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Murdoch University Electronic Journal of Law |
Author: Vanessa von Struensee
Contents
“[t]he polygamist’s wife is one of several, sometimes many, women among whom her husband must divide his time. She is sexually deprived, lonely, jealous, given to intrigue, and (particularly if she is the first wife) degraded.” [1]
Among the two forms of polygamy,[2] polygany[3] is by far the most widespread.[4] Several different schemes have been proposed it explain its incidence. Some people suspect that a desire for numerous sex partners is built into basic human biology, a factor that would explain the almost its universal occurrence, but not the exceptions or variations. Other theories based on population and ecological factors explain it as a response lengthy periods of sexual abstinence that women must follow after child birth in some cultures. This practice reduces population growth, but drives husbands to acquire additional wives to meet unfulfilled sexual needs. Demographic theory suggests that polygamy may occur because of a surplus of women that results from a high incidence of male warfare. [5]
Although civil law has banned polygamy in many nations, customary law [6] in many places still allows it. In many countries with multiple legal systems, the customary law on polygamy allows a man to take multiple wives and it prohibits a current wife from objecting to her husband’s marriage to a new woman. This practice treats women as lesser members of their families and as inferior in status to men. Polygamy forces women to live in poverty by forcing them to share resources. Polygamy also has a detrimental effect on children because when a man has more than one wife, he often has a large number of children in a short period of time. Conflicts often erupt among the families because several wives and children are competing for small and finite amount of resources. Although polygamy itself is not a prohibited practice under international human rights law,[7] it reaches other fundamental rights such as the right to dignity, the right to equality within the family and the right to equal protection under the law. It also tends to perpetuate women’s low social and economic status by forcing women to share valuable resources with their husbands other wives and children. In its complex role in inheritance law, for instance, it can directly impact a women's health, including her death from AIDS. [8]
Polygamy is important to study in even in countries which disallow it. It presents complex issues of multiculturalism and the issue appears frequently in contexts of immigration. [9]An excellent analysis on this aspect is worth quoting in full at this stage of this paper:
Attitudes to polygamy in English law[10]
Prakash Shah, University of Kent at Canterbury, p.shah@ukc.ac.uk
1. Introduction
This article documents recent developments in British legal policy towards polygamy. The issue of polygamy became linked to the arrival and the different cultural patterns of Asian and African migrants to Britain in the post Second World War period. At first, questions were raised about the recognition of polygamous unions or the possibility of English law’s control over men in such situations. Thus polygamy came up as an issue in official legal arenas in the context of the complex choice of law rules that fell to be considered under English conflicts of law or private international law. From the late 1970s, however, these were directly related to immigration matters, notably where there was a refusal to recognise the validity of a marriage when an application for entry clearance was made by a second wife. In the late 1980s, with the Immigration Act of 1988, a ban on the entry of second wives was prominently announced by statute with the background of family reunion among Bangladeshi migrants. It is also notable that legislation against polygamy in this way, if not necessarily directed at Muslims, has been closely associated with controlling the of immigration of Muslims as the case law appears to indicate. Interestingly, the ban on second wives coincided with the high point of political agitation against the Muslim presence in Britain in education and was very soon overshadowed by the Satanic Verses affair. It could thus also be seen as a redrawing of culturally articulated battles lines in the ‘clash of civilisations’. It will be argued that such culture wars, while not achieving the aim of eliminating polygamy as ethnic minorities continue to navigate among various legal levels to circumvent official laws, are being waged potentially at the expense of women and against the best interests of their children.
2. Control through choice of law rules
2.1 The comparative law context
As far as many Asian and African societies are concerned polygamy has been a long-standing practice which has often received recognition by the official legal sphere. Different states have adopted various approaches to its legal control, however, though few can be said to have achieved its outright abolition despite the advent of legal modernity. Among South Asian states, from which a large proportion of migrants in Britain originate, various approaches to legal regulation have been attempted. Modern Hindu law in India, which covers Buddhists, Sikhs and Jains too, goes furthest in this respect and potentially criminalizes it and also has the potential effect of a second marriage being declared void under the Hindu Marriage Act 1955. This has not prevented Indian courts from recognising the legal consequences of polygamy, however, as the full enforcement of the statute law is seen as often leading to injustice for the women and children concerned. In Pakistan and Bangladesh, Hindus continue to be regulated by Hindu personal law, which allows polygamy. Interestingly, the Indian Hindu legal provisions were also applied in similar form in Kenya and Uganda though not in Tanzania just prior to independence, with as yet unascertained consequences. On the other hand, the Muslim shari’a is recognised in India, permitting Muslim men to marry up to four wives, although the absence of statutory regulation has not meant absence of control by the courts. In Pakistan and Bangladesh observance of certain statutory conditions prior to contracting a second marriage are stipulated by the Muslim Family Laws Ordinance of 1961. Non-compliance with these conditions does not however, result in voiding of the marriage, although judges have still had to grapple with the difficult position of first or second wives who reluctantly find themselves in polygamoussituations. The trend of case law in South Asian countries indicates a gradually stricter approach being applied over time, with particularly strong judicial disquiet being expressed in Bangladesh (see in detail Menski 2001: 139-230 on India, Hinchcliffe 1970 and Pearl and Menski 1998: 237- 273 on Muslim law in South Asia and elsewhere, Derrett 1963: 535-556 on Hindu law in East Africa).
In all these jurisdictions polygamy continues to be observed as a social practice among Hindus and Muslims and others although its incidence has noticeably reduced over time. It is notable, however, that no state law, and arguably no customary, personal or religious law recognises an untrammelled power of men to take as many wives as possible and that there are some norms regulating the practice at the different levels. This is especially when the first wife objects to a second marriage, or is effectively deserted without being accorded the rights of a wife or the dues owed to her consequent to divorce, or when a second wife is duped into believing that no prior marital relationship exists. On the other hand, despite the views of many academic commentators that an outright ban is the right or obvious course for South Asian countries, this may not in fact be the right approach. Although this has occurred in official terms under modern Hindu law in India, and in Turkey and Tunisia, this will not absolve official fora from finding appropriate solutions to the plight of women and children and results rather in the practice ‘going underground’ (Menski 2001: 201-202 on Turkey and Tunisia, Yilmaz 1999: 228-234 on Turkey).
The uncritical acceptance of the official view that polygamy has been legislatively abolished in the countries of origin may be part of the explanation as to why there are so few reported cases in Britain on such issues concerning Hindus or Sikhs or migrants from Turkey (for earlier Hindu cases in British courts see Parashar 1982: 192-193). On the other hand, the failure to perceive socio-legal realities among ethnic minorities more clearly may well reflect wishful thinking about English law’s claims of also having legislatively ‘abolished’ polygamy, along lines of what Menski (2000) has called ‘legocentric hubris’.” (footnotes omitted)
Financial dependence created from a lack of resources can pressure women into entering polygamous marriages.[11] Polygamy exacerbates the impoverishment of women by limiting their access to financial resources during the marriage and upon divorce or death of the husband.[12] Polygamy is widespread in Asia and Africa among both Muslims and non-Muslims.[13] Polygamy has a detrimental effect on children as well as women. When a man has more than one wife, he can have large numbers of children in a short period of time. Numbers of children and wives compete for a small, finite amount of resources. In countries with population control policies, women’s rights are curtailed but one has not seen a proposal to ban polygamy,[14] which is viewed perhaps as a man’s right. Conflict often erupts among the families because a large number of children and wives are competing for a small, finite amount of resources.
Law can urge greater equality, but banning harmful practices such as polygamy, or even educating against them offers only one line of defense until women can turn to themselves for security and sustenance. Where economic development improves the situation of men, without bettering the situation of women, poorer treatment of women might become even worse in a community. [15] This was noted by a researcher in the development of irrigation projects in Sudan, where the projects were structured with male heads of households in charge of family labor.[16] This state of affairs can correlate with increased female circumcision where the increase of male economic power could lead to an increase in the practice of polygamy, a symbol of male status.[17] When adopted, polygamy has the potential to encourage stricter circumcision practices as a result of competition among wives to please their husband sexually. [18]
Today, “sub-Sahara Africa has incidence rates between twelve and thirty-eight percent compared with less than two percent for China, between one and seven percent for the Muslim countries in North Africa and the Middle East and less than ten percent for nineteenth century Mormons.” [19] In Kenya and parts of Uganda, female circumcision occurs when a girl becomes a teenager, as a rite of passage into womanhood before she is married. [20] In Sudan, Egypt, Nigeria, Eritrea, and Somalia, female circumcision occurs at a much younger age.[21] The goal in many of these communities is to protect a girl’s virginity,[22] which is vital to ensuring her prospects for marriage. [23] In communities where polygamy is prominent, female circumcision is also intended as a tool to curb women’s sex drive, thus easing the pressure on the husband to satisfy all of his wives sexually. [24] While there is no uniformity in law across Islamic African countries there are a significant range of shared social and legal problems confronting women's economic, political, domestic and social activities. Although the current legal and political framework in each African nation varies considerably, most of them demonstrate some similarities, in each country the legacy of a colonial western legal structure is coexistent with Islamic and indigenous legal frameworks that reflect local customs and religious practices with the result that contemporary legal practices are complex and there seems to be a need for evaluating the role of the laws drawn from these religious, customary, domestic, international and regional legal models. This article will present legal arguments for banning polygamy in the context of Africa.
The contrasts between countries’ stated legal status of women as ratified by international and constitutional laws and those of indigenous, Islamic, customary, tribal, legal frameworks more impactful on women’s actual experiences, illustrate the deplorable conditions for women in several societies. One of the most fundamental and serious problems confronting the majority of women in Africa is the lack of legal reform in areas traditionally governed by customary and religious laws. Women suffer serious discrimination due to non-uniform marriage and divorce laws, the application of customary property laws and inheritance laws that still favor men’s ownership of land, societal norms that condone violence against women, and lack of equal access to education as well laws governing reproductive rights, the continuing prevalence of female genital mutilation (FGM), [25] trokosi,[26] bride price, and polygamy. These are all cross cutting issues, but this paper focuses primarily on polygamy.
Some governments have attempted to redress certain of these issues. Some countries have sought to create uniform marriage and divorce laws; although in doing so they have codified certain discriminatory practices based on customary and inheritance law. [27] But the vast majority has failed to adequately reform marriage, divorce, and property laws that continue to discriminate against women. [28]
Shah Bano, a 62 year old Muslim woman in India and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim personal law allows the husband to do this without his wife’s agreement. She later recalled, “I felt enormous relief, but I also hated him.” She tried to get maintenance (similar to alimony) through the Indian court system, and seven years later her case reached the Supreme Court. Maintenance is an area of the law that falls under the personal codes, and Muslim law does not entitle women to ongoing maintenance. A divorced Muslim woman is entitled to her mahr, which is a payment to her from her husband at the time of marriage, and three months of maintenance. Following that, her family and community may help to support her. When Shah Bano’s case reached the Supreme Court in 1985, the court turned to the criminal code, which applies to everyone, specifically Article 125. This article was from the British colonial criminal procedure code of 1898 as revised in 1973. This criminal code entitles divorced, destitute women to some maintenance. The Supreme Court used this article to grant ongoing maintenance to Shah Bano, in spite of Muslim personal law. Moreover, the court went on to argue in their decision that “a common civil code will help the cause of national integration by removing disparate loyalties in laws which have conflicting ideologies” While many Hindus and women welcomed this ruling, the decision and the judges’ talk of “national integration” and questioning of citizens’ “loyalties” was deeply troubling for India’s Muslim minority, particularly given the political context of rising anti minority agitations and violence. The controversy over this decision was further deepened because both the court and its critics could find grounds for their positions in the somewhat contradictory Indian Constitution, which both protects religious rights and advocates equality before the law.”
In India, as in many African countries, “the “personal laws” of different religious communities continue to be legally recognized in marriage and divorce cases. Personal laws of all communities have been criticized for disadvantaging women. In Mohammad Ahmed Khan vs. Shah Bano Begum and Others, Supreme Court Criminal Appeal No. 103 of 1981, (the Shah Bano decision), the Supreme Court overruled a Muslim personal law, granted a Muslim women alimony but threatened the limited legal autonomy granted to the Muslim minority in India. In response, legislation was proposed to prevent such a court decision in the future. Prime Minister Rajiv Gandhi faced a rights dilemma. His decision over whether to support the Supreme Court ruling or the new legislation, like the larger debate over whether to retain these personal laws or adopt a uniform civil code, poses dilemmas and debates for students of politics, law, women’s studies and human rights. Questions raised include: How should we weigh individual women's rights against the rights of a disadvantaged minority group? Can or should we have universal women's rights? Are human rights only the rights of individuals? Can we preserve both cultural traditions and individual rights? Is it possible to compromise when faced with such a rights dilemma?”[29]
The practice of polygamy throughout Africa with its accompanying absence of equitable means for justly allocating the respective interests of a man’s numerous wives presents problematic administration of estate laws effectively barring a widow’s rights to inherit.[30]
Fundamental contradictions inherent in many African legal systems-the coexistence of modern, statutory laws with Islamic and traditional customary laws and practices—has created a complex and confusing legal regime under which women are denied legal rights. Many African governments, due to the complexity and enormity of the task, and perhaps due to their own resistance toward female empowerment are slow to enact meaningful reform, preferring to allow for extreme decentralization in matters of family or personal law.
For instance, few widows attempt to make use of the formal, legal, judicial system. [31] Widows rarely challenge the legality of prevailing customary rules of inheritance or raise the question of discrimination inherent in these rules. Activist organizations are trying to changing this. [32] Few widows have filed complaints with the police and fewer have attempted challenging the constitutionality of these oppressive customary rules and practices.[33]
Complex inheritance issues arise from polygamy and the ability of African men to jump from one form of marriage to another. Men marry wives under civil law, then add a few more under custom or start the other way around and then marry a wife under general law. Although such combinations and “juggling” of wives may cause complications during the life of the man . . . the real problem arises when he dies and the resources of the family have to be allocated among the various competing “groups” and wives within the family. [34] Given the complex relations courts have a lot of interests to balance.
The first –tier interest of the legal wife of a monogamous, statutory union, the interest of the legitimate children of such marriage, the interest of the additional “wives”, mistresses of a man who had previously contracted a monogamous marriage, the interest of the various wives in a polygamous, customary law or marriage, the interest of the many children born in a polygamous, customary law marriage, and the interest of the illegitimate children of the deceased. Second-tier interests would include those of the parents, brothers, and sisters of a man.[35]
So complex is the web of relationships and interests that may exist with regard to a single estate that several calls have been made for legislation to deal with the problem. [36] Any reform can only be a beginning that will need to be amended as its efficacy is evaluated throughout implementation.
Serious problems therefore arise when men move from monogamous, statutory marriages to polygamous, customary law marriages or vice versa, an act which clearly constitutes the offense of bigamy under existing laws in most African states.[37] Unfortunately, the offense of bigamy exists only on paper in most African states. In Nigeria, for instance, with the exception of a single prosecution in the early 1960s, no one has been prosecuted for the offense. However, it is not an exaggeration to characterize the attitudes of the Tanzanian and other African courts toward widows attempting to exercise rights as hostile.[38] Courts appear to rank interests of women as wives last; their primary consideration is usually for the children of a deceased male. [39]
Being preoccupied with more pressing matters of state, African nations may have found little time or resources or exploration to take on banning polygamy, and most likely a political will on the part of governments is lacking as emphasizing gender is relatively recent from the World Bank and other organizations involved with development. [40] Add to that the fact that state officials may be part of the very practices the laws seek to abolish one can imagine the lack of political will.[41]
Nonetheless, with growing awareness of human rights in Africa, the necessity and legality of previously accepted customary rules and practices are increasingly contested, led by women activists and intellectuals in international and national discourses and in test case litigation and court. A growing women’s movement in the continent and improved information network have been effective in moving internal struggles for women’s rights in many African countries.[42] There is a growing movement gaining momentum to contest the legality and legitimacy in a health and human rights context of widely accepted social, customary, traditional and religious practices[43]—a problem complicated by the apparent division among native women on the very important question of the place of custom in Africa today. [44] Women have been both the victims and for complex and various reasons[45] perpetrators of the various customary law rules harmful to them, an absolute accord on customary law and banning certain practices may never be found, just as many worldwide still do not agree on many other subjects. Yet gains in the rights and inclusion of women, [46] still leaves intact the fact that a majority of African women remain disadvantaged. [47]
The minefield task of reforming ingrained customary laws and practices is not one that African women activists can undertake alone. Societal and religious attitudes must be changed, and the thorny and complex issues of multiculturalism,[48] religious freedoms and preserving the rights of minorities negotiated. This must take place in the context of a commitment towards the removal of structural and institutional barriers that have oppressed African women. [49]A study of social reform in other countries indicates that effective reform demands an integrated societal involvement requiring the participation of a cross-section of the society.[50] Also we need to study countries where reform has been achieved. In localities where serious changes have occurred with women ‘s rights in Nigeria, it was the result of efforts of local women, supported sometimes by nongovernmental organizations, influences from information, and the readiness of traditional rulers and village elders for change. [51]
Specific rights need to be conferred for widows of polygamous and monogamous unions and harmful customary practices abolished. Cultures, customs, and traditions fashioned by people are not static but are changed by people to adapt to conditions. Customs are made by people and it is people who can change them. Many aspects of customary law are critically out of step with the contemporary world.[52]
Bare legislation is insufficient to change long-standing customs and committed enforcement and civil society and religious and traditional leadership is needed to achieve the realization of the law reform and social change. Moreover, too much too fast –too radical changes do have the propensity to disrupt a society and further distance the civilian population from the state. Radical reforms Justice Gubbay of Zimbabwe warned, “might alienate the more traditional and conservative elements in the society” and backfire on the very women we are seeking to protect. Proposals to ban harmful customary or traditional or religious practices may be incremental, will not be static and must be left open to progressive review in light of changing times and social acceptance.[53] Nonetheless for reasons of presenting a full debate someone should always advocate for the most progressive reform.
Any meaningful reform must change the way people view their rights and obligations here in matters of equality, inheritance, dignity, just as social movements in the United Stated have with regard to gender and racial injustices. If people’s ideas and understandings are not changed, matters will remain unchanged.[54] It is necessary that the government create a conducive environment for such a change. This would include: paying particular attention to financial, administrative, and procedural barriers women encounter in exercising their rights; exposing domestic violence; and recognizing the treatment of widows as a form of violence against women. Delays in the administration of estates and delays in court proceedings is could be addressed by establishing family law courts and sensitizing training of legal, judicial, and administrative personnel. The cost of lawsuits could be borne by subsidizing and encouraging the organizations providing legal aid and legal services. In this respect, many African and international women’s and human rights groups these groups help women understand their legal rights and work through the system.
One commentator suggests a two-tier reform approach could be adopted under which the more manageable issues are dealt with first. At one level would be laws addressing the endemic problem of looting of property by in-laws, the nature of properties to be governed by customary rules of intestacy, and the nature and extent of interest a widow should have in a husband’s estate. [55] The looting of a deceased’s property should be criminalized by a law along the same lines as Section 8 of the Deceased Property Family Maintenance Act in Zimbabwe. [56]A law creating a prima facie presumption of a wife’s contribution in a husband’s estate is needed.[57] Stewart suggests “tacit universal partnerships” as grounds on which a widow may make a claim on a deceased husband’s property.[58]
Defining which properties will be governed by customary rules of inheritance will require intense attention and focused deliberative negotiation and progressive if not radical change. As a preliminary concession to the traditional (and in the Islamic case religious) viewpoint and as a matter of practical necessity, certain properties should be excluded from any new law recognizing the rights of widows in a husband’s estate. The Ghanian Law Reform Commission before reforming the rules of intestate succession invited public comment on several proposals, including proposals recognizing a widow’s inheritance right in a husband’s estate, that “should solely apply to the property purchased by the intestate. They should not apply to family, clan, tribal or communal property, or to any position in these institutions.”[59] Moreover, if the deceased leaves a spouse and/or children, then all the family movable property purchased by the deceased, such as a refrigerator, a television set, a radio, furniture, knick-knacks, earthenware, kitchenware, books, etc, all this should go to the surviving spouse and to the children (if any) in absolutely equal parts.[60]
Reform needs to approach the complex but very important question of prioritization in the protection of widows of polygamous marriages. [61] Policy issues that need to be reconciled include whether monogamous marriages be given more protection; should all widows be entitled to equal protected in a polygamous marriage; if polygamy is prohibited what will happen to women who engage in such marriages anyway, and for marriages consumed before the law, what rules will apply. Any reform must contemplate and address a number of possible marital arrangements. [62] How are the interests of widows married under different systems of law and at different times to one man protected?
Up until now, two views have been expressed on the question. Lovemore Madhuku,[63] advocates a uniform marriage law that treats all widows alike, regardless of the nature of marriage each contracted with the husband. This approach calls for a marriage regime where the practice of monogamy in marriage is not an acceptable option. Arguing that the law has no business intervening in the “intricacies of love and lovemaking,” Madhuku calls for a uniform law where all widows left by the deceased man are treated equally. He argues “[T]here are only two extremes available: either outlaw customary law for all purposes (which is unacceptable) or treat widows equally (which is better!).” [64]
Madhuku cited Mujawo v. Chogugudza, in which a widow who had contracted a customary marriage with her deceased husband was denied any interest in his estate, the court favoring the second wife who married the deceased under the civil law. According to Madhuku, once a woman is validly married according to customary law, which the legal system allows, it is to be unacceptably technical and elitist to describe such a woman as a “mistress.” There can be no justification for preferring one married according to civil rites other than the assertion that she has taken the trouble to register her marriage. [65]
The approach advanced by Welshman Ncube calls for the preservation of monogamy and thus, a law under which a wife of a monogamous marriage is protected and ranked in priority over “other wives” of a deceased. According to Ncube, “a marriage is either civil and monogamous or it is customary and potentially polygamous. One cannot have his cake and eat it too.”[66] Ncube also calls for a regime that completely denies any form of legal recognition to the system of “mistress wives.” According to him, “the average woman who contracts a civil marriage does so under the belief that it is monogamous as provided by law. Surely she is entitled, as long as she remains married to that man, to all the law’s protection of the essential character of her marriage.”[67]
Madhuku offers that “the strongest argument against abolishing polygamy remains the submission that it is too intricate a matter for the intervention of the law at this stage.”[68]
Ncube argues that that Madhuku’s position would render the institution of civil marriage illusory i.e. that marriage would be civil and monogamous only to the extent that the husband wishes it to be so. A wife could discover after her husband’s that she is not the only widow but that there are several other “widows” with their own children who would be entitled to an inheritance share in the estate. Civil marriages would under Madhuku’s proposal be reduced game with no fixed rules with the logical conclusion that offence of bigamy would not be recognized.[69] Ncube suggests that the law not recognize polygamous “mistress wives” but provides the innocent children involved be allowed to claim maintenance from the deceased’s estate. Ncube’s arguments are compelling and provides protection to those people contract monogamous, statutory marriages with the expectation to avail themselves of legal protection afforded such marriages women who have been conned into a bigamous marriage should be entitled to sue the man responsible during his lifetime and the law of bigamy should apply to all of its practitioners to deter it.
Professor Uche U. Ewelukwa discusses the creation of a complex, dual regime which allows both marriage systems to operate thus reflecting the complexities of post-colonial social structures and arrangements in Africa. [70] The argument for this is based on consent to a lawful polygamous marriage where there will be no unmet expectations. The different women consent and the first wife is taken to have understood that her husband could take more wives and the last wife contracted the marriage knowing the man to have been married before.
Widows have continued to suffer in most African societies. The multiplicity of cultures and the gendered nature of existing cultures have prevented effective reform and spirited advocacy for change. The intractable social and political problems of the African states—the constant change in governments, the lack of democratic processes, and the absence of women in major decision-making bodies have also prevented meaningful discussions on the plight and conditions of women. [71] Despite the structural barriers to the advancement of women in the continent, much still depends on women themselves and emerging women’s human rights organizations.
As Gubbay observes:
Law does not implement itself. Until individuals, and in this case women, seek the remedies and solutions it provides, a law is virtually useless. If women continue to accept passively the old and inequitable ways of distributing estates and do not seek the right to be considered as an heir then the changes in the law have been for nought.[72]
Overcoming centuries of myths, superstitious beliefs, and male-shaped ideology is not an easy task. Stewart suggests “vigorous use of a range of complementary remedies.” [73] Such remedies could include an increased use of the international human rights mechanisms and perhaps a more aggressive stance by the women themselves. Women activists can characterize many of the burial rituals imposed on widows as a form of violence against women[74] before international bodies.
Emerging human rights and women’s rights organizations must continue to seek to address factors that have traditionally prevented the contestation of the legality of existing laws by women such as the cost of lawsuits, the absence of support groups, and advisory services and shelters for women. Ideally, human rights organizations, currently located in the big cities, should avail their services to grassroots, rural women by embarking on mass rights awareness education and providing free legal advice. organizations currently engage in such grassroots education and shelter for abused women.
Women’s rights organizers must also attempt to combat the people’s entrenched reluctance or fear of using the legal system thereby placing the system in the hands of the women who need it most. Bringing “test cases” to court is a way of opening the debate and challenging previously held assumptions about the rights and welfare of women in the society. [75] It is also important that women’s rights groups question the interpretation of customary laws by those in positions of authority. Women’s voices must demand to be heard on what constitutes customary law and present a careful evaluation of customs with a view to expunging inhuman, degrading, and discriminatory aspects while retaining a valuable part of the custom. The ongoing struggle for a more equitable property regime in the continent is not unlike that fought in the United States and England in the nineteenth century. [76]
The fight against traditional practices harmful to women form part of a global struggle against violence against women in the private sphere. The problem of women in polygamous unions cannot be divorced from the larger problems facing many Third World nations and particularly, the problems of women, children, and other marginalized groups within all nations. The legal and political problems of widows of polygamous and monogamous unions, implicates the institutional, public, and private actors in the international scene, involving the issues of rural underdevelopment;[77] the feminization of rural poverty in the poorest countries and the invisibility of women within the global economic system. Until women’s work is adequately valued and compensated, until development goals and development models embrace and address the Third World poor, and until access to economic and productive resources are open to women, real changes in the lives of women will continue to come at an unacceptably slow pace.
The question of codification and harmonization of customary law is one which has plagued most African states since the independence era. In favor of codification and harmonization is the argument of certainty and uniformity, advocates of customary law argue equally strongly that if customary law is a living law, codification would stunt its development and eventually stifle any modernization. But the law is organic and can be amended in a public transparent forum by procedure. Yet a harmful practice or custom, however codified/justified, is repugnant[78] to natural law and human rights. [79] When a widowed human being, notwithstanding her contribution to her deceased husband’s estate is left penniless, homeless, inherited and brutalized, this is immoral and illegal by contemporary legal standards. The custom denies woman’s significant direct and indirect contributions to her husband’s estate. Moreover, because the emphasis is on a male heir, the law has a wider reach and would affect childless widows and widows with only female children adversely.
Muslim communities may reform discriminatory cultural practices such as polygamy by adopting an Islamic method of reform, gradualism.[80] Gradualism was endorsed by the Prophet (Peace Be Upon Him), is ‘a method of interpretation that proceeds by degrees, advancing slowly but regularly,’[81] and can lead to the eradication of unjust practices that are inconsistent with the spirit of Islam.[82] Gambling and alcohol in the Qur’an. For example, the banning of gambling and alcohol for Muslims was introduced in the Qur’an initially as recommendations but ultimately prohibited through gradualism[83] The Muslim community practiced gradualism in abolishing slavery.[84] The Prophet (PBUH) highlighted Qur’anic principles of greater equality for women than was common at the time, yet supporting gradual rather than radical change of discriminatory practices.[85] Banning polygamy would not be an impermissible infringement on the rights of those who currently practice it. Instead, maintenance of the status quo, or even implementing the Bill’s limited reforms, which allow polygamy to continue, involves far greater violations of human rights and would conflict with Uganda’s obligations under the Ugandan Constitution and international human rights law.
Although prohibiting polygamy may appear to interfere with the freedom to practice one’s religion, such a ban would fall within well-established limitations on religious freedom. Restrictions on freedom of religion are echoed by several human rights treaties. [86] In Reynolds v. United States, [87]the U.S. Supreme Court rejected a challenge to a bigamy conviction predicated on a religious freedom claim. [88]
A large number of the world’s nations have chosen to ban polygamy[89] completely. Traditionally, this group has included the vast majority of countries in Western Europe, North America and Latin America. In the United States, the ban on polygamy was challenged by the Mormon Church,[90] which professed a religious obligation to practice polygamy when circumstances allowed. The U.S. Supreme Court approved the criminal ban on polygamy. [91]
In recent years, a number of African and Islamic countries that have traditionally allowed polygamy have also begun to ban the practice. For instance, Turkey banned polygamy completely;[92] Zaire banned polygamy; [93] Tunisia banned polygamy; [94] Burundi prohibited polygamy. [95] Mauritius banned polygamy in a comprehensive, informed, court decision addressing religious freedom and secular legal concerns. [96] Bangladesh also outlawed polygamy through a judicial opinion. [97]
Some countries still allow polygamy with and without legal restriction. Among the nations that continue to allow polygamy without substantive restriction are the Central African Republic,[98] Togo[99], Kenya, Cameroon, Congo, Ghana, Iran, Lesotho, Swaziland and Uganda.[100]
One commentator recently wrote that during the 1990s HIV infection rates in Uganda fell, from around 15 percent to around 6 percent, a success that is unique on the continent. In 2000, she continued, researchers at USAID wondered why HIV infection rates had fallen only in Uganda and not in other African countries where the epidemic had been raging for almost as long. The difference, they concluded, was that most countries relied too heavily on condom promotion alone, whereas Uganda had a range of programs that encouraged abstinence and faithfulness as well as condoms—a strategy that came to be known as ABC—for Abstain, Be Faithful, or Use Condoms.[101]
Ms. Epstein believes it that efforts to revive the Zero Grazing campaign would help reduce AIDS, because that program probably contributed greatly to the decline in Uganda's HIV rates.[102] She asked David Apuuli, head of the Uganda AIDS Commission, why the government did not revive the Zero Grazing campaign, they both concluded it was because Zero Grazing recognized that polygamy, both formal and informal, was normative and legitimate. “Africans are at higher risk of AIDS than people elsewhere not because they have so many partners, she explains, but because they often have more than one long-term partner at a time.[103] “Ugandan tribes, like many in Africa, are traditionally polygamous. Men are entitled to marry as many wives as they can afford to support, and they sleep with them at closely spaced intervals. But polygamous cultures, in which many people conduct several ongoing sexual affairs at once, create fertile ground for the spread of HIV. If all the men slept only with the women they were married to and the women did the same, HIV would not spread. However, extramarital affairs inevitably occur, as they do everywhere. In addition, economic hardship has meant that these days many men have difficulty providing for even one family, but they nevertheless continue to conduct informal relationships with mistresses, who may have additional partners themselves, sometimes out of economic necessity.” [104]
“Thus the practice of formal and informal polygamy creates a network of simultaneous or "concurrent" sexual relationships that links sexually active people not only to one another but also to the partners of their partners— and to the partners of those partners, and so on—creating a giant web that can extend across huge regions. If one member contracts HIV, then everyone else in the web may, too. Polygamous men generally seek out young women, even as they themselves age. In this way, formal and informal polygamy pumps the virus from one generation to the next. [105]
Long-term "concurrency" is far more common in Africa than in Asia and in the West, where heterosexual people tend to practice "serial monogamy." Martina Morris, a sociologist at the University of Washington, has shown that long-term concurrency is more of a public health danger than serial monogamy because it permits HIV and other sexually transmitted diseases to spread to others quickly, rather than confining them in a single relationship for months or years. Moreover, a recently infected person is much more likely to transmit HIV than a person who has been infected for a while. Thus, when a serially monogamous HIV-positive person eventually finds a new partner, his ability to infect that partner has been reduced. If someone at the hub of a network of concurrent relationships becomes infected, however, he or she is likely to infect his or her other partners very rapidly. [106]
In 1986, Ugandan health officials had not heard of "long-term concurrency" and Professor Morris had not constructed the computer models that traced the transmission of HIV. Nevertheless, the Ugandans knew that HIV was spreading rapidly through networks of sexual relationships, and it was killing people. They also knew it would be unrealistic to insist that all men abandon their extra wives and mistresses, many of whom depend on the men for the opportunity to work on the land and for money and consumer goods for themselves and their children. Zero Grazing was a compromise. It recognized that sexual arrangements in Africa are often different from the Western nuclear ideal and serial monogamy. Zero Grazing was mainly addressed to men, and its real message was:
Try to stick to one partner, but if you have to keep your long-term mistresses and concubines and extra wives, at least avoid short-term casual encounters with bar girls and prostitutes. Also, you mustn't casually seduce and exploit young women, who may be susceptible to your charms and wealth. During the Zero Grazing campaign, the proportion of Ugandan men and women with casual partners fell by 60 percent. On surveys and in focus groups conducted throughout the country, most people said that they were protecting themselves from HIV by reducing their partners or "sticking to one." “[107]
Polygamy is also common in the Middle East, where HIV infection rates are low. However, “ these cultures are very likely protected by the widespread practice of male circumcision, which probably cuts the risk of HIV transmission by some 70 percent, and by intense surveillance of women's behavior, so that while many men have multiple concurrent partners, few women do.” [108]
The most recent international AIDS conference in the summer of 2004 recognized the need to empower women and address cultural and religious factors influencing HIV vulnerability and prevention. [109] Governments must address this problem through law reform and other means in answering the call to stop the spread of AIDS from UNAIDS[110] and their own people. About half of all people living with HIV are women; they face a variety of human rights concerns in the context of the epidemic. [111]Two issues that UNAIDS recognized need urgent action by governments are property and inheritance rights.[112] When a woman’s husband or father dies, as described above, other relatives may seize all property and evict orphans and widows. Women in this situation are sometimes stripped of their possessions and forced to engage in sex work or transactional sex in exchange for survival items such as food, protection and cash. [113]
This gender inequality puts women at a much higher risk of HIV infection than men. It continues despite the fact that States are bound by the principles of the UN Charter, the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and regional instruments. [114]
In Sub-Saharan Africa, HIV is mainly transmitted through heterosexual intercourse. Variances in sexual behaviors across cultures, age groups, and gender usually influenced by culture and social, economic circumstances impact on HIV prevention interventions. As a result, poverty, underdevelopment and illiteracy contribute to the spread of HIV in the developing world yet HIV/AIDS is also seen to aggravate the poverty situation, hindering development efforts and eroding gains in various areas.
Ugandan scholar Esther Mayambala Kisakaye believes in view of the AIDS epidemic immediate action should be taken, she discusses three options: first to allow polygamy to coexist with monogamy, (Uganda) the second option could give a wife right to divorce a polygamous husband if she can prove actual or potential injury to her health or her husband’s inability to support two households (Egypt) and the third approach completely outlaws polygamy (Tunisia and Cote d’Iviore). She believes offenders should be sanctioned she addresses issue of the second wives and children being illegitimate. She says children should still be allowed to inherit from the estate whether in or out of marriage and that the debate should not be distracted by playing off rights of other wives against first wife. She recommends that cases can be decided on a case by case basis. [115]
Intestate succession in Africa is one area in which women in polygamous marriages stand at a clear disadvantage in relation to men and to women in monogamous marriages.[116] The recent law reform in Ghana resulting in the Intestate Succession Law of 1985 has generally put women in a better position upon death of a spouse by creating greater uniformity for the disbursement of property and through guaranteeing a specified portion of the estate to the spouse (gender-neutral). Nonetheless, women in polygamous marriages, however, continue to suffer upon the death of their husbands. [117]
Polygamy does inhibit and injure the rights of women, and therefore, nations have both a right, and an obligation, to protect its women and prohibit it.
Buchi Emecheta in her novel, The Bride Price, [118] tells the story of the clash between the traditional customs of a small Ibo village in Nigeria and the ever-encroaching influence of Africa's European colonizers, as seen through the eyes of a young girl. The bride price, a fee that is traditionally paid by the prospective husband's family for the prospective wife, is a theme that weaves its way throughout the novel. Emecheta uses this practice of bride price to literally, as well as symbolically, represent women's submission to men in African culture.
The Mifumi Project,[119] which works with Ugandan women on violence and abuse, emphasizes the fact that bride price is a major contributing factor to violence and abuse in the home. Whatever virtues the institution of bride price may have carried in the past, they are now lost. [120] Rather than cementing the relationship between the families concerned, and providing stability to the marriage, the customary payment of bride price now gives the husband proprietary rights over his wife, allowing him to treat her more or less like a chattel. [121] This is especially so because it equates a woman’s status in marriage with the amount of bride price exchanged and not with her skills and abilities. [122]Bride price, dowry and other related marriage gifts undermine women's status, their rights and the rights of their families. [123] Women want it reformed or abolished. [124]
The cultural impact that bride price has on women is also a contributing factor to the spread of AIDS. Mark Mathabane, a South African man, wrote an article in The Washington Post, about how the institution of bride price had affected his sister Florah in her marriage to her husband, Collin. He drew attention to the practice of lobola, in which African girls are bought as wives for a cash or livestock dowry. Mathabane cited this practice as one reason why AIDS affects more women than men in South Africa, which has 4 million people carrying HIV. Lobola, rape, and older men taking advantage of younger girls are the reasons for the spread of HIV among young women. The tale of Florah, the author's sister, highlights the need for change. Florah's husband was repeatedly unfaithful to her and put her at risk of infection with HIV and other sexually transmitted diseases. Florah could not leave her husband because he could ask for his money back and she was told leaving would disgrace the family. The author notes that many women stay in such situations and, even when faced with the threat of disease, do not mention condoms. According to Mathabane, while additional funding certainly is needed for vaccine research, prevention campaigns, and education, such "measures will be effective only if issues such as the oppression of women are vigorously addressed. [125]
Lobolo has been defended as an institution that serves to protect the wife against abuse from her husband, stabilizes the marriage and joins the two families; these defenses do not bear up under examination however. With the intense commercialization of bride price, instead of the traditional gift of livestock, nearly everyone now gives cash or a combination of cash and livestock as bride price. [126] The result is that the payment of bride price is now used to pay daily expenses instead of being kept as financial security for the divorced or widowed wife. [127] In addition, the price charged for the bride has increased enormously. [128] Such high prices have made it difficult for many men to afford paying bride price and they have therefore entered into informal unions which, in turn, undermine the institution of marriage and condemn many children to a status of illegitimacy. [129]As for the joining of two families, this too has fallen by the way side. Bride price is increasingly looked upon as a payment to either the father of the bride or, if the father is dead, then the brother of the bride. The payment is seen as being made to the individual and not to the clan. [130]
Like most cultural practices in Africa the institution of bride price was desirable and put in place for community welfare. It was aimed at building a stable long term relationship between the families of the bride and groom. However, due to modern developments on the medical scene and the unique features of bride price such as polygamy, domestic violence, wife inheritance, property rights, and patriarchy, the institution of bride price may have outlived it’s usefulness. [131] Today, bride price is used to further selfish individual needs of men and for men to control women to their social, emotional and economic detriment. It is responsible for the majority of women’s diminished power in economic, political and sexual negotiations and contributes heavily to the spread of the Human Imuno-deficiency Virus (HIV) which eventually leads to development of Acquired Immune Deficiency Syndrome (AIDS). According to statistics released by the Joint United Nations Program on HIV/AIDS (UNAIDS) and World Health Program (WHO), more than half the number of People Living With HIV /AIDS (PLWHAS) worldwide are women.[132]
Another aspect of bride price and its contribution to the spread of AIDS is that in the African customary marriage when bride price is paid, a woman loses the right to own property and hence all property that she may have acquired before marriage or that she will acquire thereafter belongs to her husband. In the words of a senior chief in Ngong, Kajiado district, “ a woman and the cows are a man’s property’”[133]
This is the concept of marriage in African society and the reason why payment of bride price exacerbates property rights violations against African women. Since women who contemplate separation or divorce have to contend with being sent away empty handed, this makes them stay in abusive relationships or those that carry the threat of infection and end up being infected with STDs and AIDS. [134]
Sociocultural practices such as bride price[135] early marriages, widow inheritance, female genital cutting (FGC) and wife sharing persist. Research findings indicate an increase in gender violence, including wife battering and rape. These same findings show that in several districts up to 20 per cent of adolescent girls have their first sexual experiences through forced sex or rape. [136]These sporadic forays into the question of bride price inspire gender activists in the fight for social justice. Research and activism against a parallel practice – that of dowry in India, led to the criminalization and outlawing of the practice, which did not however translate to changes in the traditional practice that continues to jeopardize women’s lives. Yet while dowry has received notable international attention, akin to female genital mutilation, as a human rights violation from international bodies and governments, bride price remains a hazy topic lurking behind a smoke screen of culture and marriage rituals in the deep forests of Africa. [137]
Among the rights guaranteed by this convention that relate to violence against the girl-child are the right to life and the right not to be subjected to arbitrary or unlawful interference with her privacy, family, home or correspondence. State Parties are further enjoined to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. Under Article 24 which provides for the right to health, State Parties are enjoined to take effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Such practices would include female Genital Mutilation (FGM), as well as early marriages, including polygamous marriage, which predispose the girl-child to early pregnancies and all its attendant dangers.
The problem of traditional practices-which include polygamy - dangerous to the health of women and the girl-child has been reviewed by several United Nations world conferences. The Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in 1993 expanded the scope of the international programme on human rights, emphasizing that "gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person and must be eliminated". The Beijing Declaration and Platform for Action adopted at the Fourth World Conference on Women in 1995 deal with harmful traditional practices under a number of the key areas. The Platform for Action states that the reasons why men outnumber women in certain parts of the world include harmful attitudes and practices such as female genital mutilation, son preference (which results in female infanticide and prenatal sex selection), early marriage, including child marriage, honour killings and discrimination against girls in food allocation. The Platform suggests concrete steps for governments to eradicate cultural attitudes and practices that are harmful to girls.
The Programme of Action adopted at the 1994 Cairo International Conference on Population and Development called on governments to take action to stamp out female sexual mutilation and protect women and the girl-child against such unnecessary and dangerous practices. [139]
The preamble to this convention mentions the fact that “certain customs, ancient laws and practices relating to marriage and the family are inconsistent with the principles set forth in the UN Charter and in the Universal Declaration of Human Rights. ” The preamble further provides that all the contracting States should take appropriate measures, with a view to abolishing such customs, ancient laws and practices by ensuring complete freedom in the choice of a spouse, eliminating, completely child marriages and the betrothal of young girls before the age of puberty, including establishing appropriate penalties. Many children are forced into to polygamous marriage situations.
CEDAW, despite its limits, [141]has been hailed as the most important international legal documents providing moral force for obtaining the human rights of women and attempting to prohibit practices that perpetuate women’s inequality. [142]
It is note worthy that CEDAW does not expressly condemn social-cultural practices or even violence against women. The importance of the latter was noted by the CEDAW Committee and resulted into General Recommendation No. 19 in which the Committee expressed the view that the definition of discrimination against women includes gender based violence. The Committee further emphasized that gender based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence. Accordingly, the CEDAW Committee is of the view that violence against women constitutes a breach, not only of Article 1 which prohibits discrimination against women, but also of Articles 2 and 3 which enjoin State Parties to eliminate discrimination against women in all its forms and in all fields of political, social, economic and cultural life. Article 2(f) requires States Parties to take all appropriate measures, including legislation, to modify and abolish existing laws, regulations, customs and practices that constitute discrimination against women. Therefore, customary practices such as forced marriages, early marriages and FGM, which constitute violence against women, should be outlawed.[143] The Committee has also observed that violence against women is a breach of Article 14 of the CEDAW. Article 14 requires States Parties to take all appropriate measures to eliminate discrimination against women in rural areas. Rural women are at risk of gender-based violence because traditional attitudes regarding the subordinate role of women persist more in rural communities and are more widespread than in urban areas.
Many countries have laws that discriminate against women, not just the African countries described in this paper. [144] The NGO Equality Now[145] reports on such discriminatory laws. Jordan, Morocco, and Syria codified laws reducing the punishment for "honor killings,"[146] a tribal custom requiring male relatives to kill a female family member who allegedly brings shame on the family. Haiti allows honor killings. [147] In Bangladesh and Kenya, citizenship passes exclusively from a father to his children, but not from a mother to her children. Laws in Japan and Mexico prevent divorced women, but not divorced men, from remarrying for a specified period of time after divorce. Women may not perform night work in Bolivia, France, and Madagascar. Kuwaiti law allows only men to vote. Equality Now and other NGOs have lots of reports on the fact that many countries around the world currently have laws in force that explicitly discriminate against women. Significantly, most of these countries with discriminatory laws have ratified or acceded to CEDAW.[148] Ironically, many states party to CEDAW that enforce discriminatory laws against women also enacted laws and constitutional provisions in compliance with CEDAW providing for equality between men and women. For instance, many countries party to CEDAW allow continued violence against women by permitting "honor killings," female genital mutilation (FGM), and acid attacks.[149] The terms of CEDAW apply only to those countries that ratified or acceded to the Treaty. Thus, those nations engaging in the greatest atrocities toward women continue to do so without repercussion. For example, no remedy existed for Afghan women stripped of human rights by the fundamentalist Muslim leadership of the Taliban because CEDAW's equality standards have no effect in Afghanistan. Or the Muslim women today in Sharia states of Nigeria-such as Amina Lawal who was sentenced to death by stoning for adultery in 2003 by a Sharia court that was later, thankfully, reversed on appeal not by the State of Nigeria, but by a higher level Sharia court. The state declined involvement despite its international treaty obligations under CEDAW and other instruments.
States party to CEDAW choose not to enforce its terms and obligations because of the lack of compelling sanctions and penalties for non-compliance. Countries such as Japan, Mexico, Bolivia, and Madagascar adopted CEDAW without reservation. Each of these nations preserved the right to equality under the law in their national constitutions. All of these countries, however, have laws in effect that blatantly discriminate against women, thus violating their constitutional guarantees and obligations under CEDAW. [150]
Limitations of CEDAW restrict the Committee's authority to enforce and implement the Treaty's provisions. CEDAW includes no provision for the Committee to pronounce a state party in violation of CEDAW, or to order a remedy for a violation. CEDAW established the Committee as an enforcement mechanism, but also limited the Committee's power to enforce CEDAW's provisions.
The United Nations enacted CEDAW to define discrimination against women, and establish standards that ensure equality for women across the globe. CEDAW, as the above discussion shows, has had limited impact on gender discrimination. In response, the United Nations adopted an Optional Protocol to CEDAW to remedy its ineffectiveness. The Optional Protocol gives individual women the right to petition a United Nations committee to enforce their rights if their governments fail to do so. The Optional Protocol, however, will not rectify most of the problems of CEDAW because the terms of the Optional Protocol encompass many of the same provisions as CEDAW, thereby allowing countries to continue discriminating against women, moreover, not many governments have ratified it as have CEDAW.[151]
Due to the need for stronger remedies, the Optional Protocol should provide the further right to an individual petition followed by more adequate international remedies to achieve greater effectiveness including: condemnation of states that fail to observe its obligations through a judicial proceeding in a permanent tribunal perhaps one established to deal with all crimes against humanity. The Committee could also move to have the power to forward complaints brought under the Optional Protocol to an international tribunal for judgment. This type of penalty would "affirm the existence of fundamental human rights superior to the law of the state . . . protected by international criminal sanctions." [152]
WHO and UNAIDS mentioned throughout this discussion are two more strategic agencies that can be used to advance the status of women by virtue of their status and action in the international community.
Traditional practices, especially female genital mutilation, but including polygamy, are rooted in a whole set of beliefs, values, and cultural and social behavior patterns governing the lives of the societies concerned. Although attempts were made in 1952 by the Commission on the Status of Women and in 1958 by the World Health Organization, at the request of the Economic and Social Council, to take up the question of what was then called female circumcision, the international community was not ready at the time to engage in a further discussion of the issue.
In the late 1970s, the international community and some human rights mechanisms, such as the Working Group on Slavery, started debating the issue. In 1984, the Sub-Commission on the Promotion and Protection of Human Rights (then known as the Sub-Commission on Prevention of Discrimination and Protection of Minorities) established a Working Group to study all aspects of the question of traditional practices affecting the health of women and girls - no longer referring to female circumcision or female genital mutilation.
The Working Group held a broad exchange of views on traditional practices affecting the health of women and children. When the time came to focus on specific practices, it decided to draw up a list of the most harmful traditional practices, arranged in an order of priority in the light of certain criteria such as the extent of the phenomenon and associated mortality and morbidity, the possibility of modifying the practice, the degree of awareness of its existence in the international community and the amount of documentation available.
The list drawn up by the Group included female excision, other forms of mutilation (facial scarring), force-feeding of women, early marriage, various nutritional taboos and traditional practices associated with childbirth. Mention was also made of the problem of dowries in some parts of the world, crimes of honour and the consequences of son preference.
In the light of the criteria established and taking into account the direct impact of the various practices on women's health and development, the members of the Group agreed to take up female circumcision first.[153]
Also, in 1991, the Sub-Commission appointed a Special Rapporteur on the issue of traditional practices affecting the health of women and girls,[154] Mrs. Halima Embarek Warzazi (Morocco),[155] the Sub-Commission adopted, in 1994, a programme of action for the elimination of harmful traditional practices affecting the health of women and children.[156]UNICEF has developed indicators and means of evaluating regional and national initiatives. It plans to review global experience in this regard in collaboration with WHO and UNFPA.[157]
In the context of its Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children, UNESCO has developed a programme to improve biology curricula in schools, providing for the inclusion of information on the negative effects of female genital mutilation, traditional practices such as female genital mutilation and the health implications for girls of early marriage and early pregnancy.
A number of the bodies established under human rights treaties, such as the Human Rights Committee, the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child, have addressed traditional practices affecting the health of women and girls in their consideration of States parties' reports. UNICEF now addresses child marriage[158] as part of its broader approach to gender discrimination, which undermines the right of women and children. UNICEF's Global Girls' Education Programme [159]operates in more than 60 countries to ensure that girls have an equal opportunity at education, which is key in postponing marriage and for the overall development of girls. [160]
In addition to supporting advocacy and communication campaigns in several countries, UNICEF has also helped develop two successful initiatives in South Asia and Sub-Saharan Africa the regions that have recorded the highest rate of child marriage.
The Programme of Action of the Cairo International Conference on Population and Development (ICPD) set out the context and content of reproductive rights. [161] Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents. [162] These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents. The issue of polygamy should be addressed here to a greater extent.
Currently, part of the African human rights regime is embodied in the jurisprudence of the African Charter on Human and People’s Rights (the Charter) which has created as its principle monitoring organ the African commission on Human and People’s Rights (the Commission) and established its procedures.
It is reported that human rights of women have only recently gained prominence in the commission. The Charter itself is woefully deficient on the rights of women. Culture was reinforced in the preamble when State Parties based the foundation of the instrument on ‘tradition and values of African civilisation’ and, gender only appears in the middle of a lengthy list of grounds on which individual rights may not be distinguished.[163] Further, only one out of the sixty-eight articles expressly makes reference to women and as Oloka-Onyango notes, it is placed in an omnibus clause covering family rights and traditional values ‘thereby reproducing the essential tension that plagues the realization of human rights by women. [164]
In Welch’s view, the end result is that,
[t]he Charter conveys a potentially ambiguous message in its attempt to recognize both deep-seated African values (which arguably include clear differentiation of roles and rights based on gender) and emerging global values (among which non- discrimination on the basis of sex figures prominently). [165]
It is clear from the above that originally in the African regime, the protection of human rights of women was to be dealt with within the institution of the family, an institution in which most harmful social and cultural practices continue widespread, unabated and unchecked. The practice of African societies has been to keep issues of the family sacrosanct and private. Meaning that human rights abuses on women (like harmful practices) are hardly reported or dealt with in the former sector. [166]
Fortunately, recent innovations have brought about marked improvement at the regional level. Active NGO input (for example NGOs like women in Law and Development in Africa (WILDAF), have pushed for improvements in the Commission which as an international body should exhibit a decent catalogue of human rights and effectiveness by setting acceptable international standards with regards to the rights of the Charter and mandate of the commission itself.
The Protocol is the most recent development in the African Human Rights regime to address rights of women. After a long-drawn deliberation process spanning 8 years, the Protocol on the Rights of Women in Africa was finally adopted by the African Union on July 11, 2003. The document is a supplementary protocol to the African Charter on Human and Peoples' Rights, which was adopted in 1981. Advancing the human rights of African women through creative, substantive and detailed language, the Protocol covers a broad range of human rights issues and is a comprehensive legal framework that African women can use to exercise their rights. Among other benefits it offers in promoting the human rights of women, the Protocol will advance gender equality by calling for affirmative action to promote equal participation in policy formulation, political decision-making, the judiciary and other law enforcement agencies. "Once it enters into force the Protocol will be a powerful new tool to achieve equal rights for women in Africa. It could well serve as a model for the rest of the world.” [168]
Thirty countries have already signed the Protocol and this summer has witnessed a concerted effort to get the necessary ratifications for it to enter into force. [169] Women’s NGOs approached heads of state arriving for the African Union’s July 2004 Summit, presenting them with a petition signed by individuals and organizations from across Africa supporters around the world urging swift ratification of the Protocol. Graça Machel emphatically stated, "I urge all African States to ratify the Protocol immediately because African women's rights cannot be postponed." In collaboration with national women's and human rights groups, the coalition has already begun dialogue with government officials from several countries across the continent.
By adopting the Protocol on the Rights of Women in 2003, the African Union took a significant step forward in promoting the rights of African women--unfortunately individual countries have been slow to follow through. To enter into force the Protocol needs 15 ratifications. One year since its adoption the Protocol has 30 signatories and so far only one country (Comoros) has ratified.
Although the African Charter on Human and Peoples' Rights (African Charter) imposes obligations on states parties to eliminate discrimination against women and to ensure the protection of internationally recognized women's human rights, the Protocol provides more comprehensive and specific guarantees with regard to women's human rights than the Charter. [170]
Despite the presence of CEDAW and its application to Africa, African women advocated on the need for an African human rights document; one that would directly and more relevantly address their human rights needs. In fact, CEDAW which had not made any specific provision for harmful socio-cultural practices could not through its provisions address social issues of violations of human rights by these practices. Worse still in Africa, despite its well articulated articles on women’s rights, the drafters of the Charter were only minimally influenced by CEDAW’s provisions, incorporating it only by reference and not by name.[171] Even then, CEDAW has the weakest implementation and enforcement mechanism of any of the international human rights instruments and did not until October 1999 allow for individual petitions.[172] Further, CEDAW has recorded the highest number of reservations, which further weakened its impact.[173] The reservations made by African Islamic governments to CEDAW (on the basis that it violates the teachings of the Sharia), outnumber all reservations made by such governments to all other human rights instruments.[174]
It is important to note that prior to the Protocol, women NGOs and human rights activists had continuously drawn the attention of African governments and regional bodies to the plight of African women and girls suffering from harmful religious and cultural practices. The African Committee on Traditional Practices Affecting the health of Women and Children headed the call. This NGO in cooperation with the Organization for African Unity drafted the ‘OAU Convention on the Elimination of All forms of harmful Practices Affecting the Fundamental Human Rights of Women and Girls’. The draft was eventually integrated with the Draft Protocol on Women to form the current Protocol in which provisions protecting African women from harmful practices feature prominently.
In particular, Article 5 of the protocol calls upon State Parties to condemn all forms of harmful practices which negatively affect human rights of women and which are contrary to recognized international standards. States are to put into place legislative and other measures to combat these practices, offer support to victims and timely protection to those most vulnerable to these practices. In addition, the Protocol in Article 17 guarantees women to live in a positive cultural context and the right to participate at all levels in determining cultural policies.
Further, the Protocol has made provision for rights ranging from protection from discrimination, rights to dignity and security, family rights, access to justice, economic cultural, health and reproductive rights which are relevant in the fight against harmful socio-cultural practices.
Some of the rights discussed above were introduced in the African regime for the first time, coming as an elaboration of CEDAW, and also expanding existing rights in the Charter, especially Articles 2 and 18.
In October 1998 the Commission appointed a Special Rapporteur on the rights of women in Africa was appointed[175] since the Charter did not adequately protect the fundamental rights of women. Her duties include highlighting abuses in Africa as well as commending practices of exemplary member states where improvements in the protection of women’s rights have been evident. One such visit was to Mauritania in 1997 where she issued a report highlighting violations against women including harmful traditional practices like FGM, early marriages and discriminative marriage and divorce laws.[176]
The effectiveness of the Special Rapporteur on the rights of African women has been limited with respect to improving the marginalized position of women or abolishing harmful social-cultural practices. [177] Lack of funds and human resources to implement the mandate make it difficult for the Rapporteur to accomplish her mission.[178]
The post is currently held by Angela Melo, a Mozambican jurist whose terms of reference range from carrying out a study on the situation of human rights of African women, following up implementation by State Parties and encouraging NGO work in the field of promotion and protection of the rights of African women. The Rapporteur also has the mandate to serve as a link between the Commission, intergovernmental and NGOs at regional and international level in order to harmonize the initiatives on the rights of women.
The right to health is closely related with the right to life enumerated in Article 6 of the International Covenant on Civil and Political Rights.[179] According to the Human Rights Committee, the right to life is "the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation." Although the right to life is often equated with protection against arbitrary deprivation of life, the general comment notes that "[i]t is a right which should not be interpreted narrowly." The Human Rights Committee interprets the right to life to require States to undertake positive measures, such as major initiatives "to reduce infant mortality and to increase life expectancy."[180]
The failure to take issue with either religious or medical claims that harmful practices are mandatory for health, religious, and moral reasons can also be considered to be a violation of women's right to health. Polygamy is one of these harmful practices.
Global uniformity in implementing and enforcing human rights violations will continue to be difficult to achieve. Women must still try to force the international community to recognize and respond to women's rights. Many governments promise to protect women's rights, but these promises remain unfulfilled. Although the international instruments are of limited effectiveness, as discussed above, they are of great importance. Strategies are not exclusive. Media, art, film, and literature are also important strategies: The Bookseller of Kabul [181] memoir described the pain of polygamy in an Afghanistan household, the film The Day I Will Never Forget[182] examines the practice of female genital mutilation in Kenya, and Kandahar[183] documented in film the horror of the Taliban.
International human rights covenants and discourse suggest a real avenue for legal involvement in human rights activism. International conventions provide powerful moral force to fuel efforts and support local activists in creating rights for people. Although national constitutions protecting the rights considered above may attempt to provide protection for the privacy of the home, the abolition of “private” [184] practices such as polygamy is still allowed under some countries’ constitutions and not yet prohibited by international law despite the fact that polygamy clearly infringes on the rights and freedoms of women and children. As has been shown, polygamy contributes to severe health conditions in women, thus making its ban necessary for public health purposes. In addition, polygamy undermines public morals because it creates stereotypes of women as subordinates, which is clearly against the state’s policy of promoting equality between the genders. Furthermore, polygamy infringes on the rights of freedoms of women to equality in marriage and harms the rights of children to receive adequate parenting and nurturing. Therefore, a state is clearly justified in banning the practice.
Activists and NGOs have invoked the legal obligations of states under international human rights agreements to challenge polygamy, customary and religious laws and demand that states become accountable for condoning continued discrimination and violence against women. As reported in its official statement to the Vienna World Conference: [185]
In spite of the ratification of international and regional human rights instruments, States still maintain laws and practices which discriminate against women. Selective traditions and customs are used by States to perpetuate discrimination against women and condone it in the private sphere, contrary to obligations freely assumed by States and to the expectations of the international community. This is particularly true in the field of access to land and other economic rights, legal status and capacity and rights within the family. [186]
The language of "women's human rights" strengthens the visibility and legitimacy of such demands. It also extends the accountability of states into supposedly "private" domains, as seen most clearly in pressure by WiLDAF and its member organizations to reform so called "family law." However, for a variety of reasons beyond the scope of this paper women in any given country do not necessarily agree about the harm of cultural practices. With regard to polygamy there are, for instance, some Muslim women, "either on their own volition or on the demands of their Islamic leaders," who supported polygamy and in the case of Uganda "provided the government with an escape route" not to ban it. [187]
As long as polygamy is allowed, women in such states particularly the poor and uneducated, will continue to live with increased risk for health impairments, impoverishment, and unfulfilled marital relationships. Women’s rights advocates must therefore continue to take up legal cases and advance legal arguments that can help eliminate this harmful practice which clearly violates their own national constitutions and international human rights law.
Indeed, it is true that it has been difficult to translate the normative prescriptions of international human rights instruments into practical realities for women, due to institutional and enforcement problems in the human rights regime, and the lesser importance granted to social and economic rights in the human rights regime. [188] However, international human rights norms are nevertheless powerful moral forces that local groups can continue to use to pressure the international religious and political community to ban polygamy. [189]
APPENDIX I
MARRIED WOMEN AGES 15-49
WHO ARE IN POLYGYNOUS UNION (1992-1998)[190]
SUB-SAHARAN AFRICA %
Benin 50
Burkina Faso 51
Burundi 12
Cameroon 33
Central African Republic 29
Chad 39
Comoros 25
Cote d’Ivoire 37
GHANA 28
Guinea 50
Kenya 16
Liberia 38
Malawi 21
Mali 44
Mozambique 27
Namibia 13
Niger 38
Nigeria 41
Rwanda 14
Sudan 17
Uganda 30
United Republic of Tanzania 29
Zambia 17
Zimbabwe 19
Appendix II available at http://www.unhchr.ch/html/menu6/2/fs23.htm
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States Parties shall take all appropriate measures ... to modify the social and cultural patterns of conduct
of men and women, with a view to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the superiority of either of
the sexes or on stereotyped roles for men and women.
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (art. 5 (a)),
adopted by General Assembly resolution 34/180 of 18 December 1979.
Contents:
Introduction
The Charter of the United Nations includes among its basic principles the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (Art. 1, para. 3).
In 1948, three years after the adoption of the Charter, the General Assembly adopted the Universal Declaration of Human Rights,(1) which has served as guiding principles on human rights and fundamental freedoms in the constitutions and laws of many of the Member States of the United Nations. The Universal Declaration prohibits all forms of discrimination based on sex and ensures the right to life, liberty and security of person; it recognizes equality before the law and equal protection against any discrimination in violation of the Declaration.
Many international legal instruments on human rights further reinforce individual rights, and also protect-and prohibit discrimination against-specific groups, in particular women. The Convention on the Elimination of All Forms of Discrimination against Women, for example, had been ratified by 136 States as of January 1995. The Convention obliges States parties, in general, to "pursue by all appropriate means and without delay a policy of eliminating discrimination against women" (art. 2). It reaffirms the equality of human rights for women and men in society and in the family; it obliges States parties to take action against the social causes of women's inequality; and it calls for the elimination of laws, stereotypes, practices and prejudices that impair women's well-being.
Traditional cultural practices reflect values and beliefs held by members of a community for periods often spanning generations. Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others are harmful to a specific group, such as women. These harmful traditional practices include female genital mutilation (FGM); forced feeding of women; early marriage; the various taboos or practices which prevent women from controlling their own fertility; nutritional taboos and traditional birth practices; son preference and its implications for the status of the girl child; female infanticide; early pregnancy; and dowry price. Despite their harmful nature and their violation of international human rights laws, such practices persist because they are not questioned and take on an aura of morality in the eyes of those practising them.
The international community has become aware of the need to achieve equality between the sexes and of the fact that an equitable society cannot be attained if fundamental human rights of half of human society, i.e. women, continue to be denied and violated. However, the bleak reality is that the harmful traditional practices focused on in this Fact Sheet have been performed for male benefit. Female sexual control by men, and the economic and political subordination of women, perpetuate the inferior status of women and inhibit structural and attitudinal changes necessary to eliminate gender inequality.
As early as the 1950s, United Nations specialized agencies and human rights bodies began considering the question of harmful traditional practices affecting the health of women, in particular female genital mutilation. But these issues have not received consistent broader consideration, and action to bring about any substantial change has been slow or superficial.
A number of reasons are given for the persistence of traditional practices detrimental to the health and status of women, including the fact that, in the past, neither the Governments concerned nor the international community challenged the sinister implications of such practices, which violate the rights to health, life, dignity and personal integrity. The international community remained wary about treating these issues as a deserving subject for international and national scrutiny and action. Harmful practices such as female genital mutilation were considered sensitive cultural issues falling within the spheres of women and the family. For a long time, Governments and the international community had not expressed sympathy and understanding for women who, due to ignorance or unawareness of their rights, endured pain, suffering and even death inflicted on themselves and their female children.
Despite the apparent slowness of action to challenge and eliminate harmful traditional practices, the activities of human rights bodies in this field have, in recent years, resulted in noticeable progress. Traditional practices have become a recognized issue concerning the status and human rights of women and female children. The slogan "Women's Rights are Human Rights", adopted at the World Conference on Human Rights in Vienna in 1993, as well as the Declaration on the Elimination of Violence against Women, adopted by the General Assembly the same year, captured the reality of the status accorded to women. These issues have been further emphasized in the reports of the Special Rapporteur on harmful traditional practices, Mrs. Halima Embarek Warzazi, appointed in 1988, and in the draft Platform for Action for the Fourth World Conference on Women, to be held in September 1995.
The Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, appointed by the Commission on Human Rights in 1994, has also examined all forms of traditional practices referred to in this Fact Sheet, as well as other practices, including virginity tests, foot binding, female infanticide and dowry deaths, all of which violate female dignity. In her preliminary report, the Special Rapporteur pointed out that
blind adherence to these practices and State inaction with regard to these customs and traditions have made possible large-scale violence against women. States are enacting new laws and regulations with regard to the development of a modern economy and modern technology and to developing practices which suit a modern democracy, yet it seems that in the area of women's rights change is slow to be accepted. (E/CN.4/1995/42, para. 67.)
The harmful traditional practices identified in this Fact Sheet are categorized as separate issues; however, they are all consequences of the value placed on women and the girl child by society. They persist in an environment where women and the girl child have unequal access to education, wealth, health and employment.
In part I, the Fact Sheet identifies and analyses the background to harmful traditional practices, their causes, and their consequences for the health of women and the girl child. Part II reviews the action taken by United Nations organs and agencies, Governments and organizations (NGOs). The Conclusions highlight the drawbacks in the implementation of the practical steps identified by the United Nations, NGOs and women's organizations.
I. An appraisal of harmful traditional practices and their effects on women and the girl child
A. Female genital mutilation(2)
Female genital mutilation (FGM), or female circumcision as it is sometimes erroneously referred to, involves surgical removal of parts or all of the most sensitive female genital organs. It is an age-old practice which is perpetuated in many communities around the world simply because it is customary. FGM forms an important part of the rites of passage ceremony for some communities, marking the coming of age of the female child. It is believed that, by mutilating the female's genital organs, her sexuality will be controlled; but above all it is to ensure a woman's virginity before marriage and chastity thereafter. In fact, FGM imposes on women and the girl child a catalogue of health complications and untold psychological problems. The practice of FGM violates, among other international human rights laws, the right of the child to the "enjoyment of the highest attainable standard of health", as laid down in article 24 (paras. 1 and 3) of the Convention on the Rights of the Child.
The origin of FGM has not yet been established, but records show that the practice predates Christianity and Islam in practising communities of today. In ancient Rome, metal rings were passed through the labia minora of slaves to prevent procreation; in medieval England, metal chastity belts were worn by women to prevent promiscuity during their husbands' absence; evidence from mummified bodies reveals that, in ancient Egypt, both excision and infibulation were performed, hence Pharaonic circumcision; in tsarist Russia, as well as nineteenth-century England, France and America, records indicate the practice of clitoridectomy. In England and America, FGM was performed on women as a "cure" for numerous psychological ailments.
The age at which mutilation is carried out varies from area to area. FGM is performed on infants as young as a few days old, on children from 7 to 10 years old, and on adolescents. Adult women also undergo the operation at the time of marriage. Since FGM is performed on infants as well as adults, it can no longer be seen as marking the rites of passage into adulthood, or as ensuring virginity.
Among the types of surgical operation on the female genital organs listed below, there are many variations, performed throughout Africa, Asia, the Middle East, the Arabian Peninsula, Australia and Latin America.
Types of surgical forms
(a) Circumcision or Sunna ("traditional") circumcision: This involves the removal of the prepuce and the tip of the clitoris. This is the only operation which, medically, can be likened to male circumcision.
(b) Excision or clitoridectomy: This involves the removal of the clitoris, and often also the labia minora. It is the most common operation and is practised throughout Africa, Asia, the Middle East and the Arabian Peninsula.
(c) Infibulation or Pharaonic circumcision: This is the most severe operation, involving excision plus the removal of the labia majora and the sealing of the two sides, through stitching or natural fusion of scar tissue. What is left is a very smooth surface, and a small opening to permit urination and the passing of menstrual blood. This artificial opening is sometimes no larger than the head of a match.
Another form of mutilation which has been reported is introcision, practised specifically by the Pitta-Patta aborigines of Australia. When a girl reaches puberty, the whole tribe-both sexes-assembles. The operator, an elderly man, enlarges the vaginal orifice by tearing it downward with three fingers bound with opossum string. In other districts, the perineum is split with a stone knife. This is usually followed by compulsory sexual intercourse with a number of young men.
It is reported that introcision has been practised in eastern Mexico and in Brazil. In Peru, in particular among the Conibos, a division of the Pano Indians in the north-east, an operation is performed in which, as soon as a girl reaches maturity, she is intoxicated and subjected to mutilation in front of her community. The operation is performed by an elderly woman, using a bamboo knife. She cuts around the hymen from the vaginal entrance and severs the hymen from the labia, at the same time exposing the clitoris. Medicinal herbs are applied, followed by the insertion into the vagina of a slightly moistened penis-shaped object made of clay.
Like all other harmful traditional practices, FGM is performed by women, with a few exceptions (in Egypt, men are known to perform the operation). In most rural settings throughout Africa, the operation is accompanied with celebrations and often takes place away from the community at a special hidden place. The operation is carried out by women (excisors) who have acquired their "skills" from their mothers or other female relatives; they are often also the community's traditional birth attendants.
The type of operation to be performed is decided by the girl's mother or grandmother beforehand and payment is made to the excisor before, during and after the operation, to ensure the best service. This payment, partly in kind and partly in cash, is a vital source of livelihood for the excisors.
The conditions under which these operations take place are often unhygienic and the instruments used are crude and unsterilized. A kitchen knife, a razor-blade, a piece of glass or even a sharp fingernail are the tools of the trade. These instruments are used repeatedly on numerous girls, thus increasing the risk of blood-transmitted diseases, including HIV/AIDS.
The operation takes between 10 and 20 minutes, depending on its nature; in most cases, anaesthetic is not administered. The child is held down by three or four women while the operation is done. The wound is then treated by applying mixtures of local herbs, earth, cow-dung, ash or butter, depending on the skills of the excisor. If infibulation is performed, the child's legs are bound together to impair mobility for up to 40 days. If the child dies from complications, the excisor is not held responsible; rather, the death is attributed to evil spirits or fate. Throughout South-East Asia and urban African communities, FGM is becoming increasingly medicalized.
FGM is known to be practised in at least 25 countries in Africa. Infibulation is practised in Djibouti, Egypt, some parts of Ethiopia, Mali, Somalia and the northern part of the Sudan. Excision and circumcision occur in parts of Benin, Burkina Faso, Cameroon, the Central African Republic, Chad, Côte d'Ivoire, the Gambia, the northern part of Ghana, Guinea, Guinea-Bissau, Kenya, Liberia, Mauritania, Nigeria, Senegal, Sierra Leone, Togo, Uganda and parts of the United Republic of Tanzania.
Outside Africa, a certain form of female genital mutilation exists in Indonesia, Malaysia and Yemen. Recent information has revealed that the practice also exists in some European countries and Australia among immigrant communities.
FGM is a custom or tradition synthesized over time from various values, especially religious and cultural values. The reasons for maintaining the practice include religion, custom, decreasing the sexual desire of women, hygiene, aesthetics, facility of sexual relations, fertility, etc. In general, it can be said that those who preserve the practice are largely women who live in traditional societies in rural areas. Most of these women follow tradition passively.
In the countries where the practice exists, most women believe that, as good Muslims, for example, they have to undergo the operation. In order to be clean and proper, fit for marriage, female circumcision is a precondition. Among the Bambara in Mali, it is believed that, if the clitoris touches the head of a baby being born, the child will die. The clitoris is seen as the male characteristic of the woman; in order to enhance her femininity, this male part of her has to be removed. Among women in Djibouti, Ethiopia, Somalia and the Sudan, circumcision is performed to reduce sexual desire and also to maintain virginity until marriage. A circumcised woman is considered to be clean.
Establishing identity and belongingness is another reason advanced for the perpetuation of the practice. For example, in Liberia and Sierra Leone, groups of girls of 12 and 13 of the indigenous population undergo an initiation rite, conducted by an older woman "Sowie". This involves education on how to be a good wife or co-wife, the use of herbal medicine and the "secrets" of female society. It also involves the ritual of circumcision.
Health and psychological implications
The effects of female genital mutilation have short-term and long-term implications. Haemorrhage, infection and acute pain are the immediate consequences. Keloid formation, infertility as a result of infection, obstructed labour and psychological complications are identified as later effects. In rural areas where untrained traditional birth attendants perform the operations, complications resulting from deep cuts and infected instruments can cause the death of the child.
Most physical complications result from infibulation, although cataclysmic haemorrhage can occur during circumcision with the removal of the clitoris; accidental cuts to other organs can also lead to heavy loss of blood. Acute infections are commonplace when operations are carried out in unhygienic surroundings and with unsterilized instruments. The application of traditional medicine can also lead to infection, resulting in tetanus and general septicaemia. Chronic infection can also lead to infertility and anaemia.
Haematocolpos, or the inability to pass menstrual blood (because the remaining opening is often too small), can lead to infection of other organs and also infertility.
Obstetric complications are the most frequent health problem, resulting from vicious scars in the clitoral zone after excision. These scars open during childbirth and cause the anterior perineum to tear, leading to haemorrhaging that is often difficult to stop. Infibulated women have to be opened, or deinfibulated, on delivery of their child and it is common for them to be reinfibulated after each delivery.
There has been little research in the area of the psychological implications of FGM, but evidence indicates that most children experience recurring nightmares.
In her recent book, Cutting the Rose-Female Genital Mutilation: The Practice and its Prevention,(3) Efua Dorkenoo reports that some evidence of psychological effects is emerging among the large immigrant communities now living in Europe, the Americas, Australia and New Zealand. Teenagers, in particular, are having to live in two very different cultures, where different values prevail. At school they move within the very liberal setting of the Western culture; at home they have to conform to values held by their parents. Some of these values often conflict. For some teenagers this is proving to be problematic. Girls who have been genitally mutilated have to come to terms with the fact that they are not like their classmates. Mood swings and irritability, a constant state of depression, and anxiety have all been noted among infibulated girls. A small number, upon reaching the age of consent, are being deinfibulated without their parents' knowledge and engaging in premarital relationships, thus validating the reasoning behind their parents' wishes to have the operation performed.
There are also reports of psychological and health problems suffered by women seeking medical assistance in Western medical,,facilities due to lack of knowledge regarding genital mutilation. Excised and infibulated women have special needs which have been ignored or dealt with on a trial-and-error basis. In Western countries, severe forms of FGM present challenges to midwives and obstetricians in providing antenatal and post-natal care. For example, professionals need training to know how to deliver infibulated women. The provision of health care for women and girls who have been genitally mutilated should be appropriate and sensitive to their needs. Health promotion work through women's health services can develop appropriate information materials and actively contribute to outreach work and awareness raising.
B. Son preference and its implications for the status of the girl child
One of the principal forms of discrimination and one which has far-reaching implications for women is the preference accorded to the boy child over the girl child. This practice denies the girl child good health, education, recreation, economic opportunity and the right to choose her partner, violating her rights under articles 2, 6, 12, 19, 24, 27 and 28 of the Convention on the Rights of the Child.
Son preference refers to a whole range of values and attitudes which are manifested in many different practices, the common feature of which is a preference for the male child, often with concomitant daughter neglect. It may mean that a female child is disadvantaged from birth; it may determine the quality and quantity of parental care and the extent of investment in her development; and it may lead to acute discrimination, particularly in settings where resources are scarce. Although neglect is the rule, in extreme cases son preference may lead to selective abortion or female infanticide.
In many societies, the family lineage is carried on by male children. The preservation of the family name is guaranteed through the son(s). Except in a few countries (e.g. Ethiopia), a girl takes her husband's family name, dropping that of her own parents. The fear of losing a name prompts families to wish to have a son. Some men marry a second or a third wife to be sure of having a male child. Among many communities in Asia and Africa, sons perform burial rites for parents. Parents with no male child do not expect to have an appropriate burial to "secure their peace in the next world". In almost all religions, ceremonies are performed by men. Priests, pastors, sheikhs and other religious leaders are men of great status to whom society attaches great importance, and this important role for men obliges parents to wish for a male child. Religious leaders have a major involvement in the perpetuation of son preference.
Son preference is universal and not unique to developing countries or rural areas. It is a practice enshrined in the value systems of most societies. It thus dictates the value judgements, expectations and behaviour of family members.
Son preference is a transcultural phenomenon, more marked in Asian societies and historically rooted in the patriarchal system. In certain countries in the Asian region, the phenomenon is less prevalent than in others. Son preference is stronger in countries where patriarchy and patriliny are more firmly rooted. Tribal societies, which are matrilineal societies, tended to be more gender egalitarian until the advent of settled agriculture.
In almost all regions, the practice is rooted in culture and the economics of son preference, these factors playing a major role in the low valuation and neglect of female children. The practice of son preference emerged with the shift from subsistence agriculture, which was primarily controlled by women, to settled agriculture, which is primarily controlled by men. In the patrilineal landowning communities with settled agriculture which are prevalent in the Asian region, the economic obligations of sons towards parents are greater. The son is considered to be the family pillar, who ensures continuity and protection of the family property. Sons provide the workforce and have to bring in a bride-"an extra pair of hands". Sons are the source of family income and have to provide for parents in their old age. They are also the interpreters of religious teachings and the performers of rituals, especially on the death of parents, which include feeding a large number of people, sometimes several villages. As soldiers, sons protect the community and hold political power.
Son preference in the Asian region manifests itself either covertly or overtly. The birth of a son is welcomed with celebration as an asset, whereas that of a girl is seen as a liability, an impending economic drain. According to an Asian proverb, "bringing up girls is like watering the neighbour's garden".
Psychological and health consequences
The psychological effect of son preference on women and the girl child is the internalization of the low value accorded them by society. Scientific evidence of the deleterious effect of son preference on the health of female children is scarce, but abnormal sex ratios in infant and young child mortality rates, in nutritional status indicators and even in population figures show that discriminatory practices are widespread and have serious repercussions. Geographically, there is often a close correspondence between the areas of strong son preference and of health disadvantage for females.
The areas most affected by the problem seem to be South Asia (Bangladesh, India, Nepal, Pakistan), the Middle East (Algeria, Egypt, Jordan, the Libyan Arab Jamahiriya, Morocco, the Syrian Arab Republic, Tunisia, Turkey) and parts of Africa (Cameroon, Liberia, Madagascar, Senegal). In Latin America, there is evidence of abnormal sex ratios in mortality figures in Ecuador, Mexico, Peru and Uruguay.
Discrimination in the feeding and care of female infants and/or higher rates of morbidity and malnutrition have been reported in most of the countries already listed and also in Bolivia, Colombia, the Islamic Republic of Iran, Nigeria, the Philippines and Saudi Arabia. More than two thirds of the world's population live in countries where registration of death does not occur and many more live in countries where death rates are not published by sex. Moreover, discrimination against girls has to be extreme to emerge in mortality rates. For every growing girls who dies, there are many whose health and potential for growth and development are permanently impaired. Countless reports the world over have demonstrated that, in societies where son preference is practised, the health of the female child is adversely affected.
In some communities in the Asian region where son preference is highly marked, efforts to differentiate a female child from a male child through various socio-economic norms and practices start as early as the foetal stage and continue throughout the entire life cycle. In these communities, amniocentesis tests and sonography for sex determination have resulted in the abortion of female foetuses. The introduction and expansion of scientific methods of sex detection have led to a revival of female foeticide and infanticide.
Education
Access to education by itself is not enough to eliminate values held by society, for such values are in most countries transmitted into educational curricula and textbooks. Women are thus still depicted as passive and domestically oriented, while men are depicted as dominant and as breadwinners.
Education does, however, offer the female child an improved opportunity to be less dependent on men in later life. It increases her prospects of obtaining work outside the home. As laid down in articles 28 and 29 of the Convention on the Rights of the Child, all children have the right to education, and the content of such education should be directed to the development of the child's personality, talents and mental and physical abilities to their fullest potential.
According to the United Nations Children's Fund (UNICEF), the expansion of educational opportunities over the past several decades has clearly affected girls, although this has not been a result of deliberate policy to reduce gender disparities in educational access. Girls' education, measured by gross primary school enrolment ratios, has improved substantially in the Middle East and North Africa region, for example. Nevertheless, in 1990, the region still had 44 million illiterate mothers, a large and increasing backlog left over from times of lower enrolment levels. Differences in primary school enrolment levels for boys and girls and competition between them are still very significant in a number of countries. In countries where overall enrolment is much lower than desired, girls are particularly disadvantaged.
Although in many countries school drop-out rates are steadily falling, they continue to be higher among girls than among boys. The reasons for the high drop-out rate among girls are poverty, early marriage, helping parents with housework and agricultural work, the distance of schools from homes, the high costs of schooling, parents' illiteracy and indifference, and the lack of a positive educational climate. Girls begin school very late and withdraw with the onset of puberty. Parents do not see the benefits of girls' education because girls are given away in marriage to serve the husband's family. Sons are given priority. In certain countries, enrolment rates for girls have actually declined despite attempts to increase them.
Recreation and work opportunities
According to article 31, paragraph 1, of the Convention on the Rights of the Child, States parties "recognize the right of the child to rest and leisure, to engage in play and recreational activities". However, from an early age, girls from rural and poor urban homes are burdened with domestic tasks and child care, which leaves them no time to play. Studies have shown that recreation plays a vital part in a child's emotional and mental development. When time for play is found by girls, it often takes place near the home. Young boys, however, have fewer demands made of them and are allowed to engage in activities outside the home. The status of girls is linked to that of women and their exploitation. A woman's work never ends, especially in rural areas and in poor urban households.
The Convention on the Elimination of All Forms of Discrimination against Women calls for the elimination of discrimination against women in the field of employment, "in order to ensure, on a basis of equality of men and women, the same rights" (art. 11, para. 1). It also calls upon States to ensure that women in rural areas have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform (art. 14, para. 2 (g)). Evidence indicates, however, that as girls grow older they face discriminatory treatment in gaining access to economic opportunities. Major inequalities persist in employment, access to credit, inheritance rights, marriage laws and other socio-economic dispensations. Compared with men, women have fewer opportunities for paid employment and less access to skill training that would make such employment possible. Women are usually restricted to low-paid and casual jobs, or to informal activities.
Landlessness has increased among women, and the number of women cultivators has declined in some regions, partly due to increased mechanization of agriculture. An increasing number of women in most developing countries are occupied in the informal, invisible sectors where national social and labour legislation on maternity benefits, equal wages and crèche facilities does not apply.
C. Female infanticide
Sex bias or son preference places the female child in a disadvantageous position from birth. In some communities, however, particularly in Asia, the practice of infanticide ensures that some female children have no life at all, violating the basic right to life laid down in article 6 of the Convention on the Rights of the Child. Selective abortion, foeticide and infanticide all occur because the female child is not valued by her culture, or because certain economic and legislative acts have ruled her life worthless.
In India, for example, infanticide was formally legislated against during British rule, after centuries of practice in some communities. However, recent reports have shown that there is a revival.
In certain parts of India and Pakistan, women are still considered unnecessary evils. In the past, when victorious armies took their revenge on defeated communities, women were raped as part of the spoils of war. Subsequently, these communities resorted to killing their daughters at birth or when the enemy was advancing, to spare the female population and community from shame.
Modern techniques such as amniocentesis and ultrasound tests have given women greater power to detect the sex of their babies in time to abort. Illegal abortion, particularly of female foetuses, either self-inflicted or performed by unskilled birth attendants, under poor sanitary conditions has led to increased maternal mortality, particularly in South and South-East Asia.
Female foeticide is an emerging problem in some parts of India, and the Government has introduced a bill in Parliament to ban the use of amniocentesis for sex-determination purposes. Such misuse of amniocentesis is also prohibited in the States of Maharashtra, Punjab, Rajasthan and Haryana, where the problem is more prevalent.
D. Early marriage and dowry
Early marriage is another serious problem which some girls, as opposed to boys, must face. The practice of giving away girls for marriage at the age of 11, 12 or 13, after which they must start producing children, is prevalent among certain ethnic groups in Asia and Africa. The principal reasons for this practice are the girls' virginity and the bride-price. Young girls are less likely to have had sexual contact and thus are believed to be virgins upon marriage; this condition raises the family status as well as the dowry to be paid by the husband. In some cases, virginity is verified by female relatives before the marriage.
Child marriage robs a girl of her childhood-time necessary to develop physically, emotionally and psychologically. In fact, early marriage inflicts great emotional stress as the young woman is removed from her parents' home to that of her husband and in-laws. Her husband, who will invariably be many years her senior, will have little in common with a young teenager. It is with this strange man that she has to develop an intimate emotional and physical relationship. She is obliged to have intercourse, although physically she might not be fully developed.
Girls from communities where early marriages occur are also victims of son preferential treatment and will probably be malnourished, and consequently have stunted physical growth.
Neglect of and discrimination against daughters, particularly in societies with strong son preference, also contribute to early marriage of girls. It has been generally recognized at United Nations seminars on traditional practices affecting women and children, and on the basis of research, that early marriage devalues women in some societies and that the practice continues as a result of son preference. In some countries, girls as young as a few months old are promised to male suitors for marriage. Girls are fattened up, groomed, adorned with jewels and kept in seclusion to make them attractive so that they can be married off to the highest bidder.
Health complications that result from early marriage in the Middle East and North Africa, for example, include the risk of operative delivery, low weight and malnutrition resulting from frequent pregnancies and lactation in the period of life when the young mothers are themselves still growing.
Another economic reason which perpetuates the practice of female genital mutilation is related to dowries.
The dowry price of a woman is her exchange value in cash, kind or any other agreed form, such as a period of employment. This value is determined by the family of the bride-to-be and her future in-laws. Both families must gain from the exchange. The woman's in-laws want an extra pair of hands and children; her family desire payment which will provide greater security for other relatives. The dowry price will be higher if the woman's virginity has been preserved, notably through genital mutilation.
In certain communities in South Asia, the low status of girls has to be compensated for by the payment of a dowry by the parents of the girl to the husband at the time of marriage. This has resulted in a number of dowry crimes, including mental and physical torture, starvation, rape, and even the burning alive of women by their husbands and/or in-laws in cases where dowry payments are not met.
It should be noted that the Committee on the Rights of the Child, in a number of recommendations in the light of article 2 of the Convention on the Rights of the Child, has called upon States to recognize the principle of equality before the law and forbid gender discrimination, including the adoption of legislation prohibiting harmful traditional practices such as genital mutilation, forced and early marriage of girl children, early pregnancy and related prejudicial health practices.
The work of the Committee has also permitted the identification of certain areas where law reform should be undertaken, in both civil and penal areas, such as the minimum age for marriage and establishment of the age of criminal responsibility as being the attainment of puberty. Some States have argued that girls attain their physical maturity earlier, but it is the view of the Committee that maturity cannot simply be identified with physical development when social and mental development are lacking and that, on the basis of such criteria, girls are considered adults before the law upon marriage, thus being deprived of the comprehensive protection ensured by the Convention on the Rights of the Child. The International Conference on Population and Development, held at Cairo in September 1994 (see p. 36 below), encouraged Governments to raise the minimum age for marriage. In her preliminary report to the Commission on Human Rights, the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, also recognized that the age of marriage was a factor contributing to the violation of women's rights (E/CN.4/1995/42, para. 165).
E. Early pregnancy, nutritional taboos and practices related to child delivery
Early pregnancy can have harmful consequences for both young mothers and their babies. According to UNICEF, no girl should become pregnant before the age of 18 because she is not yet physically ready to bear children. Babies of mothers younger than 18 tend to be born premature and have low body weight; such babies are more likely to die in the first year of life. The risk to the young mother's own health is also greater. Poor health is common among indigent pregnant and lactating women.
In many parts of the developing world, especially in rural areas, girls marry shortly after puberty and are expected to start having children immediately. Although the situation has improved since the early 1980s, in many areas the majority of girls under 20 years of age are already married and having children. Although many countries have raised the legal age for marriage, this has had little impact on traditional societies where marriage and child-bearing confer "status" on a woman.
Those who start having children early generally have more children, at shorter intervals, than those who embark on parenthood later. Fertility rates have been falling over the past decade, but they remain very high in Africa, parts of Latin America and Asia. Once again, the link between delayed child-bearing and education is crucial.
An additional health risk to young mothers is obstructed labour, which occurs when the baby's head is too big for the orifice of the mother. This provokes vesicovaginal fistulas, especially when an untrained traditional birth attendant forces the baby's head out unduly.
Generally throughout the developing world, the average food intake of pregnant and lactating mothers is far below that of the average male. Cultural practices, including nutritional taboos, ensure that pregnant women are deprived of essential nutriments, and as a result they tend to suffer from iron and protein deficiencies.
Poor health can be improved by a more balanced diet. The choice of food consumed is determined by a number of factors, including availability of natural resources, economics, religious beliefs, social status and traditional taboos. Because these factors place limits in one way or another on the intake of food, communities and individuals are deprived of essential nutriments and, as a result, physical and mental development is impaired. This is generally the case in most developing countries, but especially throughout Africa.
Although poor distribution of resources-whether due to harsh geographical or climatic conditions in a region, or to poverty resulting from a lack of purchasing power-contributes greatly to the severe imbalance of diets throughout Africa, taboos placed on food for religious or cultural reasons are an unnecessary practice which exacerbates the situation.
The reasons for such taboos are many, but all are steeped in superstition. Many taboos are upheld because it is believed that the consumption of a particular animal or plant will bring harm to the individual.
Permanent taboos are also placed on female members of most communities throughout Africa. From infancy, the female child is given a low-nutrition diet. She is weaned at a much earlier age than the male infant, and throughout her life she will be deprived of high-protein food such as animal meat, eggs, fish and milk. As a result, the intake of nutriments by the female population is lower than that of the male population.
Temporary taboos which are applicable only at certain times in the life of an individual also affect women disproportionately. Most communities throughout Africa have food taboos specially for pregnant women. Often these taboos exclude the consumption of nutriments essential for the expectant mother and foetus.
These nutritional taboos are unnecessary impositions made on women, who are already malnourished. It is perhaps not surprising that maternal and infant mortality rates are so high and life expectancy low in the countries concerned. But nutritional taboos also have far-reaching implications for women in the field of work, where their levels of productivity can be affected.
Lack of basic knowledge of human bodily functions can lead to illogical conclusions when illness sets in, or especially when a mother or her infant dies. Surrounded by myths and superstition, what may be a simple mishap can be explained in much more sinister terms as the product of evil spirits or bad omens.
Most rural areas throughout the developing world have disproportionately fewer health centres and clinics, trained midwives, nurses and doctors than urban areas. For most rural dwellers, health treatment must be obtained from traditional birth attendants (TBAs). Most TBAs have no formal training in health practices but acquire their skills via apprenticeship. These are skills passed down through generations of women. By observing a given situation, the TBA learns which remedy to use for which illness, or how to perform different kinds of delivery. If the situation changes, they try to adapt their knowledge and remedies and hope that that works. If things go wrong, however, supernatural explanations are given; blame is never attributed to the TBA.
According to the World Health Organization (WHO), more than half the births in developing nations are attended by TBAs and relatives. Although these women have every good intention to assist their patients, mortality rates are higher in the rural areas where they operate.
The use of herbal mixtures and magic is common during delivery throughout Africa. The chemical components of some of these mixtures are beneficial, but others are quite lethal, especially when taken in large dosage.
In the case of obstructed labour, the abdomen is at times massaged or pressed to force the baby out. Some TBAs perform surgical operations to extract the foetus, using a knife or razor-blade to cut the labia minora and vaginal opening. A similar operation, known as the "Gishiri cut", is performed in some parts of Africa, and the likely complications are known to be haemorrhaging and infection.
Among the most bizarre treatments for obstructed labour are the psychological ones. In many societies, difficulty in labour or delay in delivery is believed to be punishment for marital infidelity. The woman is pressured to confess her misdeed so that labour may continue without complications. This practice, which inflicts great mental cruelty on a woman already in agony due to obstructed labour, is prevalent in several African countries. In addition to the psychological trauma suffered by the woman, the practice further delays her being taken to hospital.
Treatment of obstructed labour by ineffective and harmful traditional methods can also cause uterine rupture. Rupture of the uterus still constitutes one of the major causes of maternal death in obstetric practice in developing countries. Death rates as high as 37 per cent have been reported in studies of hospitalized women with ruptured uterus. Foetal mortality is also very high: it was 100 per cent in a study of 144 cases of uterine rupture in one African country and 96 per cent in an Indian review of 181 cases.
Even when obstructed labour does not result in maternal death, it leads to prolonged or even permanent ill health in the majority of cases. For example, vesicovaginal fistula is a condition that has traumatic physical as well as social consequences. Due to prolonged pressure on the bladder during obstructed labour, the lower genital tract is severely damaged, causing a false passage between the bladder and the vagina. The woman suffers from incontinence of urine and sometimes of faeces as well, since 10 to 15 per cent of all vesicovaginal fistula cases have associated rectovaginal fistula.
In two African countries, a practice known as "Zur Zur" is performed on women between the 34th and 35th weeks of their first pregnancy. A deep cut is made in the anterior wall of the vagina, sometimes on the posterior wall. The wound is allowed to bleed, then the woman rests for a while before being sent home to nurse her wound. The purpose of this operation is to prepare the woman for an easy delivery. However, the consequences can be death through excessive bleeding, shock, infection of the birth canal, and vesicovaginal or vaginal fistula.
Misdiagnoses have been made by midwives and doctors who receive these women once complications set in. The bleeding is often mistaken for an ante-partum haemorrhage, and Caesarean sections have been performed; but invariably the bleeding continues. Midwives are fighting to get the practice stopped in the countries concerned.
Various forms of contraception and methods of tightening the vagina are practised throughout the world. Many involve inserting herbal mixtures and foreign objects-for example, aluminium hydroxide, cloth, stone, soap and lime-into the vagina. Many of these inserts have an irritating or erosive effect on the vaginal mucosa, which is a natural defence against infections and disease, such as HIV.
F. Violence against women
Most of the practices reviewed so far constitute acts of violence against women or the girl child by the family and the community, and are often condoned by the State. In its resolution 1994/45 of 4 March 1994, the Commission on Human Rights recognized other forms of non-traditional practices, such as rape and domestic violence, as violence against women. In that resolution (paras. 6 and 8), the Commission decided to appoint, for a three-year period, a special rapporteur on violence against women, including its causes and consequences. Ms. Radhika Coomaraswamy of Sri Lanka was subsequently appointed Special Rapporteur on violence against women.
This appointment came after more than two decades of tireless campaigning by women worldwide. An important step marked by resolution 1994/45 was that, for the first time, Governments were held accountable for acts of violence against women committed by the private individual.
In the same resolution (para. 7), the Commission invited the Special Rapporteur, in carrying out her mandate, and within the framework of the Universal Declaration of Human Rights and all other international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women, inter alia, to recommend measures, at the national, regional and international levels, to eliminate violence against women and its causes, and to remedy its consequences.
The Special Rapporteur's mandate includes carrying out field missions, either separately or jointly with other special rapporteurs and working groups, and consulting periodically with the Committee on the Elimination of Discrimination against Women. In addition, the Commission requested the Secretary-General to ensure that the reports of the Special Rapporteur are brought to the attention of the Commission on the Status of Women.
The Special Rapporteur submitted a preliminary report to the Commission on Human Rights at its fifty-first session, in 1995 (E/CN.4/1995/42).
II. Review of action and activities by United Nations organs and agencies, Governments and NGOs
A. United Nations organs and agencies
Action on traditional practices affecting the health of women and children, in particular female genital mutilation (FGM), was first taken in 1958 when the Economic and Social Council (ECOSOC) invited the World Health Organization WHO to undertake a study of the persistence of customs subjecting girls to ritual operations and to communicate the results of the study to the Commission on the Status of Women.
In 1960, the issue of FGM was debated at the Seminar on the Participation of Women in Public Life, held at Addis Ababa for the African region. Concluding remarks included a call to WHO to make a statement condemning all forms of medicalization of FGM. In its resolution 821 II (XXXII), adopted in July 1961, ECOSOC again invited WHO to study the medical aspects of operations based on customs. A seminar convened in 1979 by the WHO Regional Office for the Eastern Mediterranean in Khartoum marked a milestone in the campaign against harmful traditional practices, setting the pace and direction for international and national plans of action. Additional forms of harmful traditional practices were identified and a recommendation was made for the formation of the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children. In addition, the seminar reiterated the concluding remarks made at the 1960 seminar and urged Governments to collaborate with international bodies in a concerted effort to eliminate these practices.
Commission on Human Rights and Sub-Commission on Prevention of Discrimination and Protection of Minorities
For a number of years, many voices, both national and international, have been echoing the United Nations call for an end to the suffering of girls and women caused by harmful traditional practices. In the 1980s, the campaign against such practices became so widespread that, in 1983, the issue was taken up by the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The Sub-Commission's recommendation that a working group be established to conduct a study of all aspects of the problem was endorsed by the Commission on Human Rights and the Economic and Social Council.
The Working Group on Traditional Practices Affecting the Health of Women and Children, composed of experts designated by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UNICEF, UNESCO and WHO, and representatives of concerned NGOS, held three sessions in Geneva during 1985 and 1986. The report of the Working Group (E/CN.4/1986/42) was submitted to the Commission on Human Rights at its forty-second session, in 1986.
By its resolution 1988/57 of 9 March 1988, the Commission on Human Rights requested the Sub-Commission to consider measures to be taken at the national and international levels to eliminate the practices in question, and to report to the Commission on the subject. Pursuant to that request, the Sub-Commission appointed one of its members, Mrs. Halima Embarek Warzazi, as Special Rapporteur to study, on the basis of information to be gathered from Governments, specialized agencies, other intergovernmental organizations and concerned NGOS, recent developments relating to traditional practices affecting the health of women and children (Sub-Commission resolution 1988/34 of 1 September 1988).
The Special Rapporteur submitted a preliminary report (E/CN.4/Sub.2/1989/42 and Add.1) and a final report (E/CN.4/Sub.2/1991/6), containing information received from the above-mentioned sources, as well as information gathered during field missions to the Sudan and Djibouti. These field missions, together with two regional seminars on the subject organized by the Centre for Human Rights in Africa and Asia (Burkina Faso, 1991; Sri Lanka, 1994), have contributed to a better understanding of the phenomenon of harmful traditional practices which violate the rights of women and children.
Finally, in its resolution 1994/30 of 26 August 1994, the Sub-Commission adopted the Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children, which was prepared by the Sri Lanka regional seminar (see annex). In the same resolution, the Sub-Commission recommended the extension of the Special Rapporteur's mandate for an additional two years, to enable her to carry out an in-depth analysis of the issue, taking into consideration the conclusions and recommendations of the two regional seminars and the effects of the implementation of the Plan of Action.
The resolution also called upon the Secretary-General to transmit the Plan of Action to the International Conference on Population and Development, held at Cairo in September 1994, and to the Fourth World Conference on Women, to be held at Beijing in September 1995. The Special Rapporteur was requested to submit reports at the forty-seventh and forty-eighth sessions of the Sub-Commission, in 1995 and 1996, respectively. The Sub-Commission's recommendations were endorsed by the Commission on Human Rights in its decision 1995/112 of 3 March 1995.
Committee on the Elimination of Discrimination against Women
At its ninth session, in 1990, the Committee on the Elimination of Discrimination against Women addressed the issue of harmful traditional practices, in particular FGM. In general recommendation No. 14 adopted at that session, it indicated its recognition of work carried out by women's organizations in identifying and combating harmful traditional practices. The Committee recommended that Governments support those efforts and encourage politicians, professionals, and religious and community leaders at all levels, including the media and the arts, to cooperate in influencing attitudes towards the eradication of FGM. The Committee also called for the introduction of appropriate educational and training programmes and seminars based on research findings about the problems arising from FGM.
The same general recommendation urged Governments to:
. . .
(b) Include in their national health policies appropriate strategies aimed at eradicating [FGM] in public health care ... [including] the special responsibility of . . . traditional birth attendants . . . ;
(c) Invite assistance, information and advice from the appropriate organizations of the United Nations system to support and assist efforts being deployed to eliminate harmful traditional practices;
(d) Include in their reports to the Committee under articles 10 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women information about measures taken to eliminate [FGM].
United Nations Children's Fund
The United Nations Children's Fund (UNICEF) has supported a wide range of programme activities for the advancement of women and girls through advocacy, policy-oriented research and technical cooperation. There are many examples in the sectors of health, education, income generation and water supply and sanitation of projects successfully addressing the needs of women and girls and promoting their participation in community development.
Special attention is given to the girl child and to the need to reduce disparities in the treatment of boys and girls. The Convention on the Rights of the Child and related policy efforts have stimulated regional and country-level action for advocacy and mobilization in favour of girls and for the elimination of discriminatory social and cultural practices. Social mobilization has focused on changing attitudes, particularly those related to the preference for sons in most countries in Africa, Asia, the Caribbean and Latin America. UNICEF's national, regional and international advocacy of appropriate policies and its efforts to bring about attitudinal and behavioural change, especially in such critical areas as early marriage, female genital mutilation, teenage pregnancy and female infanticide, will be intensified through support to local and national groups and organizations concerned with these issues.
In May 1994, UNICEF's Executive Board requested the Executive Director to give high priority to a number of efforts to promote gender equality and gender-sensitive development programmes, taking into account the special needs of individual countries and, inter alia, the provisions of the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. The priorities for action include:
(a) strengthening the integration of gender concerns in country programmes by eliminating the disparities which exist at each stage of the life cycle of girls and women;
(b) promotion of ratification and implementation of the Convention on the Elimination of All Forms of Discrimination against Women, as well as the Convention on the Rights of the Child;
(c) support for specific action and strategies which promote gender equality within the family, including the sharing of parental responsibilities.
UNICEF country offices are working closely with NGO partners and Governments, as well as with other groups, including women's organizations, religious leaders, health workers and teachers.
World Health Organization
The World Health Organization (WHO) has been concerned with the issue of harmful traditional practices since 1958, when ECOSOC requested a study of the health implications of FGM. At a seminar in 1979, organized by the WHO Regional Office for the Eastern Mediterranean in Khartoum (see p. 24 above), WHO condemned FGM as a serious health risk which should be abolished, and called upon medical personnel to refrain from performing FGM.
WHO promotes and supports traditional practices which enhance health-for example, breast-feeding-and discourages those which are harmful, particularly to the health of women and girls. Among the latter, female genital mutilation presents the most dramatic risk of ill health, affecting some 75 million women and girls in Africa alone. The organization also discourages nutritional taboos which prevent pregnant and lactating women from eating essential foods. WHO works closely with all concerned national authorities, and particularly with non-governmental organizations, on these issues.
In 1993, the Forty-sixth World Health Assembly adopted resolution WHA46.18 on maternal and child health and family planning for health. The resolution expressed concern, inter alia, about the continuing inequities affecting women in general and the persistence of harmful traditional practices such as child marriages, dietary limitations during pregnancy, and FGM. It urged member States to continue to monitor and evaluate the effectiveness of their efforts to achieve the goal of health for all, in particular in eliminating traditional practices affecting the health of women, children and adolescents.
In 1994, the Forty-seventh World Health Assembly adopted resolution WHA47.10, dealing specifically with harmful traditional practices, in which it urged all member States (para. 2):
(1) to assess the extent to which harmful traditional practices affecting the health of women and children constitute a social and public health problem in any local community or subgroup;
(2) to establish national policies and programmes that will effectively, and with legal instruments, abolish female genital mutilation, child-bearing before biological and social maturity, and other harmful practices affecting the health of women and children;
(3) to collaborate with national non-governmental groups active in this field, draw upon their experience and expertise and, where such groups do not exist, encourage their establishment;
In the same resolution, the Assembly requested the Director-General of WHO to strengthen technical support to member States in implementing the above measures; and to continue global and regional collaboration with non-governemental organizations, United Nations bodies, and other agencies and organizations concerned in order to establish national, regional and global strategies for the abolition of harmful traditional practices.
B. Governments
The preliminary report (E/CN.4/Sub.2/1989/42 and Add.1) and final report (E/CN.4/Sub.2/1991/6) of the Special Rapporteur on traditional practices affecting the health of women and children contain summaries of information on the topic received, in response to requests by the Secretary-General, from 28 Governments. However, many of these Governments stated that harmful traditional practices were unknown in their countries. Others recognized the existence of some such practices, namely female genital mutilation (FGM), son preference and inferior social status of women, and practices related to marriage, pregnancy and nutrition.
A number of countries throughout the world have either taken or supported action to prevent traditional practices affecting the health of women and children, in particular FGM.
Bangladesh clearly upholds the principle of equality of men and women and prohibits discrimination against women. To protect the legal rights of women and to stop violence and repression against them, the Government has adopted the following legislation:
(a) Dowry Prohibition Act, 1980, which provides for punishment for giving, taking or abetting the giving or taking of dowry;
(b) Cruelty to Women (Deterrent Punishment) Ordinance, 1983, which provides for punishment for abduction of women for unlawful purposes, trafficking in women, or causing or attempting to cause death or grievous harm to a wife for dowry;
(c) Child Marriage Restraint Act Amendment Ordinance, 1984, which raises the marriageable age for women from 16 to 18 years, and for men from 18 to 21 years. It also provides for punishment for marrying or giving in marriage of a child;
(d) Muslim Family Laws Ordinance, 1961 (as amended in 1982), which provides for increased punishment in cases of polygamy and divorce in violation of the statutory provisions.
In the Sudan, a law was passed in 1946, under the British Colonial Administration, to prohibit the practice of infibulation.
In Sweden, the Act on Prohibition of Female Circumcision was passed in 1982. It not only seeks to bring to justice those breaking Swedish laws, but also any person living in Sweden who assists in carrying out FGM in another country which also has prohibitive laws.
In the United Kingdom, the Prohibition of Female CircumcisionAct was adopted in 1985. Measures against FGM have also been included in the child protection procedures at local authority levels.
In the United States of America, the Federal Prohibition of Female Genital Mutilation Act was under consideration by the House of Representatives in early 1995.
A number of countries which have not yet passed specific laws use existing national legislation to prohibit the practice of female genital mutilation.
In France, no specific law exists, but article 312-3 of the Penal Code is applied to prosecute persons exercising violence against or seriously assaulting a child under 15, "if the result has been mutilation, amputation or . . . loss of an eye or other permanent disabilities, or death not intentionally caused by the perpetrator". The Criminal Division of the Cour de cessation decided, by a judgement of 20 August 1983, that ablation of the clitoris resulting from wilful violence constituted a mutilation under article 312-3 of the Penal Code. While the term "female genital mutilation" is not used in the Penal Code, this decision makes it quite clear that such practices fall within the purview of the enactment.
In Norway, all hospitals were alerted in 1985 to the practice of female genital mutilation.
All the above Governments have also acknowledged the importance of education and awareness raising among both the practising communities and service providers. Practical steps are being taken in Australia, Belgium, Canada, Djibouti, Egypt, Finland, France, Germany, Italy, the Netherlands, Norway, Somalia, the Sudan, Sweden and the United Kingdom to ensure that relevant information is disseminated. Lack of information from Africa and Asia makes it difficult to ascertain what recent action has been taken at national and grass-roots levels.
Some African countries are in the process of formulating national legislation against FGM, including Burkina Faso, Djibouti, Egypt, Ghana and Nigeria. In Burkina Faso, Kenya and Senegal, statements have been made by heads of State expressing the need to eliminate FGM.
As regards Asia, the following countries reported on ongoing and planned action to eradicate harmful traditional practices at the second United Nations regional seminar on the subject, held in Sri Lanka in July 1994: China, India, Islamic Republic of Iran, Iraq, Malaysia, Nepal, Pakistan, Republic of Korea, Singapore, Sri Lanka and Thailand (E/CN.4/Sub.2/1994/10, paras. 75 ff.).
C. Non-governmental organizations
Available information indicates that increasingly more grass-roots activities in the area of harmful traditional practices are taking place in Africa and Asia, as well as in Western countries. In Australia, Canada, Europe, New Zealand and the United States of America, the work of dedicated women is raising awareness and providing training and advice to service providers such as midwives, health visitors, nurses, doctors, teachers and social workers.
Of the 29 countries in Africa identified as having communities practising female genital mutilation, 24 have branches of the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, in addition to many women's NGOs. Many established national women's organizations have carried out research and surveys, and others have ventured into communities where FGM and other harmful traditional practices prevail, setting up training programmes for excisors, traditional birth attendants and community members.
Work at this level is vital, for it is through the activities of NGOs that positive changes are being realized. Although early results of work in these communities are encouraging, to change a community's attitude totally will take at least a generation. The NGOs in question thus urgently need continuing financial support to ensure that their programmes are fully implemented.
Prominent non-governmental organizations
(a) Inter-African Committee on Traditional Practices Affecting the Health of Women and Children
The Inter-African Committee (IAC) was formed in pursuance of a recommendation made at the 1979 Khartoum seminar organized by WHO. The Committee was officially established in 1984, following a regional seminar on harmful traditional practices held that year at Dakar, Senegal. The Committee has been granted consultative status with ECOSOC.
The aims of IAC are to reduce the morbidity and mortality rates for women and children through the eradication of harmful traditional practices; to promote traditional practices which are beneficial to the health of women and children; to play an advocacy role by promoting the importance of action against harmful traditional practices at the international, regional and national levels; and to raise funds for and support local activities of national committees and other partners.
The main areas of focus of IAC are training in information campaigns, and training of local activists and traditional birth attendants.
Intensive health education workshops, enhanced by the use of visual aids, are provided for local activists throughout communities, the objective being to raise awareness of issues related to harmful traditional practices. After five months of training, these activists are ready to go back to their communities and train other community members. In this way, the information on harmful traditional practices reaches a wide audience.
Traditional birth attendants are also trained to become active in the campaign against harmful traditional practices. Educational materials are disseminated to community groups such as students, youth groups, teachers, and religious and community leaders.
IAC also organizes international and regional seminars and workshops and is in close collaboration with the Organization of African Unity, the Economic Commission for Africa and other United Nations agencies, as well as with other intergovernmental organizations, NGOS, funding bodies and individuals. The objective is to appraise and share experience and ideas in methods of good practice. The last seminar took place in April 1994 at Addis Ababa, Ethiopia.
(b) FORWARD International
FORWARD International (Foundation for Women's Health Research and Development) has been operational since 1983. It emerged from the Minority Rights Group (United Kingdom), an international human rights organization, as a special project unit. FORWARD's aim is to promote good health among African women and children internationally. Its main focus is information provision, advocacy, training of service providers, counselling and networking with other groups internationally.
FORWARD is a United Kingdom-based charity. It cooperates with community groups to develop educational materials on the health aspects of FGM, and it works very closely with local authorities in the area of child protection, by providing training to social workers and teachers. FORWARD also provides training for health professionals and gives advice on policy guidelines. The organization is co-founder of a specialized Well Woman Clinic based in the United Kingdom, which provides services and advice to excised and infibulated women.
FORWARD was instrumental at the national level in the formulation of the United Kingdom's 1985 Prohibition of Female Circumcision Act,as well as legislation on child protection. At the international level, FORWARD has provided advice and guidelines to legislators in relation to the drafting of national laws on FGM in the United States of America and Australia. The organization has worked closely with and addressed meetings organized by WHO, Amnesty International UK and other international agencies. In Africa, FORWARD has extensive links with women's groups working in the areas of health and FGM.
(c) Babiker Badri Scientific Association for Women's Studies
This organization was established in the Sudan in 1979 by a group of volunteer women in order to enhance research and education on women's issues. It is linked to the Ahfad College for Women, which is also controlled by the Babiker Badri Association. The organization is one of the pioneers in the fight against female genital mutilation, organizing seminars, workshops and studies on the subject. It runs an income-generating project for mothers in which education on FGM is gradually introduced. The Ahfad College for Women, which has more than 3,000 female students, has integrated education on FGM into its curriculum.
(d) Sudan National Committee on Traditional Practices
The main objective of this national women's organization is to educate and raise awareness of harmful traditional practices at all levels of society. The Committee has recognition and support from United Nations agencies, such as UNICEF, and other international bodies concerned with the health of children.
The Committee's main target groups are individuals who play influential roles in communities where FGM prevails, e.g. policy makers, service providers, and religious and community leaders. The Committee disseminates information via seminars, workshops, discussion groups and training sessions.
(e) Women for the Abolition of Sexual Mutilation (CAMS)
CAMS (Commission Internationale pour I'Abolition des Mutilations Sexuelles) was established in France in 1980; its head office is in Dakar, Senegal.
One prominent member of CAMS (France) has devoted her time to campaigning throughout practising communities in France. As a lawyer, she seeks to protect the girl child by implementing existing French law, which has involved prosecuting parents and excisors who have performed FGM in France. Like other NGOs working in this field, CAMS has a focus on research and awareness raising. It has also hosted a number of successful international seminars.
(f) Rädda Barnen
Rädda Barnen is the Swedish Save the Children organization. It has worked tirelessly with numerous women's groups in Africa and throughout Europe, providing vital financial support and advice.
D. United Nations seminars and conferences
(a) Regional seminars
Two regional seminars on traditional practices affecting the health of women and children have been organized in Africa and Asia by the United Nations under its programme of advisory services in the field of human rights. The first was held at Ouagadougou, Burkina Faso, from 29 April to 3 May 1991; the second was held at Colombo, Sri Lanka, from 4 to 8 July 1994.
The objectives of the seminars were to assess the human rights implications of harmful traditional practices, and to gather information from participants on measures taken at the governmental and non-governmental levels to end those practices. Participants included representatives of national Governments, United Nations agencies, and intergovernmental and non-governmental organizations. Both seminars provided the opportunity for participants to exchange information and experience. Participants were also urged to implement the recommendations of the seminars.
The recommendations adopted by the Ouagadougou seminar (E/CN.4/Sub.2/1991/48, paras. 136-138) included the following:
(i) Governments should:
Ratify and implement international instruments, including those relating to the protection of women and children;
Adopt legislation prohibiting practices harmful to the health of women and children, particularly FGM, and create a governmental body to implement the official policy adopted;
Carry out a survey and review of school curricula and textbooks with a view to eliminating prejudices against women;
Establish a national committee to combat harmful traditional practices, particularly FGM;
Cooperate with religious institutions and their leaders and other traditional authorities in order to eliminate harmful traditional practices such as FGM.
(ii) At the international level, the recommendations addressed specific United Nations bodies and agencies, including:
The Commission on the Status of Women, which was encouraged to study the issues pertaining to harmful traditional practices, particularly FGM;
UNICEF, which was called upon to continue its contribution to the campaign against FGM;
UNESCO, which was requested to provide assistance to the States concerned in preparing teaching materials, and to include the question of traditional practices in functional literacy programmes.
In addition, a special recommendation was addressed to all United Nations specialized agencies to include in their government aid programmes activities relating to the campaign against FGM.
(iii) NGOs were encouraged to intensify their activities for the elimination of harmful traditional practices. In particular, international NGOs concerned with protecting the health of women and children were requested to extend their financial and material support to national NGOS; private donors were also encouraged to support such activities. Finally, NGOs and Governments were urged to cooperate with each other in developing programmes for the retraining of FGM practitioners.
The recommendations of the Colombo seminar (E/CN.4/Sub.2/1994/10, paras. 89-90) were incorporated in the Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children, adopted by the seminar, the text of which is reproduced in the annex to this Fact Sheet.
The success of the two regional seminars has stimulated great interest among researchers and women activists the world over, thus increasing the volume of work being done and the information available on harmful traditional practices. This is an important step in understanding the prevalence and cultural justifications of the practices in question.
(b) International Conference on Population and Development
The International Conference on Population and Development, convened by the United Nations, was held in Cairo from 5 to 13 September 1994. Its main objective was to emphasize the direct links between reproductive health and human rights, thus placing the concerns of women and the girl child at the centre of the conference themes.
Concern over population explosion again prompted participants to examine the crucial causes of large families. Poverty, lack of family planning, poor health, limited access to education and lack of women's rights were identified as the main factors in that regard.
It was also pointed out that early marriage and pregnancy, leading to high fertility and poor sexual and reproductive health, prevented the girl child from pursuing fully her education and employment opportunities. The Conference reaffirmed that investment in the girl child's health, nutrition and education from infancy was crucial to development. The Conference further emphasized that there was a need to eliminate all forms of discrimination against the girl child-for example, son preference-which resulted in harmful and unethical practices such as prenatal sex selection and female infanticide.
The Conference urged Governments to increase public awareness of the value of girl children through public education, promoting equal treatment for girls and boys at all levels. It was emphasized that child marriages should be eliminated and arranged marriages discouraged. Respect for girls and women had to be instilled in boys from an early age. On the issue of FGM, Governments were urged to put a stop to the practice and to ensure that rehabilitation and counselling facilities were available for those concerned.
(c) Fourth World Conference on Women
The Fourth World Conference on Women will be held at Beijing from 4 to 15 September 1995. Convened by the United Nations, the Conference will adopt a Platform for Action concentrating on "critical areas of concern" that have been identified as obstacles to the advancement of women in the world-and set an agenda for the advancement of women at national, regional and international levels into the next century. The themes that have been identified include poverty, education, health, violence against women, the effects of armed or other kinds of conflict on women, and human rights of women.
The issue of traditional practices affecting the health of women and children has been raised at various regional meetings held in preparation for the Conference. The draft Platform for Action for the Conference makes specific mention of harmful traditional practices (E/CN.6/1995/2, annex, para. 88) and calls for increased public awareness about violence as a violation of women's human rights.
Conclusions
Most women in developing countries are unaware of their basic human rights. It is this state of ignorance which ensures their acceptance-and, consequently, the perpetuation of harmful traditional practices affecting their well-being and that of their children. Even when women acquire a degree of economic and political awareness, they often feel powerless to bring about the change necessary to eliminate gender inequality. Empowering women is vital to any process of change and to the elimination of these harmful traditional practices.
Since the World Conference on Human Rights, held in Vienna in 1993, it is hoped that all States will recognize and accept the universality and indivisibility of the human rights of women. It is also expected that there will be more ratifications of the Convention on the Elimination of All Forms of Discrimination against Women. However, much remains to be done in the field of equality, taking into account the absence, in many countries, of real constitutional guarantees of fundamental human rights for all. The persistence of negative customary norms that conflict with and undermine implementation of both national legislation and international human rights standards must be addressed.
Although such national legislation and international standards are vital in tackling the issue of harmful traditional practices, there is an urgent need for a parallel programme that addresses the cultural environment from which these practices emerged, in order to eliminate the various justifications used to perpetuate them. It is the duty of States to modify the social and cultural attitudes of both men and women, with a view to eradicating customary practices based on the idea of the inferiority or superiority of either sex or on stereotyped roles of gender.
Comprehensive and intensive programmes of formal and informal education, awareness raising and training are the approach followed by some Governments, non-governmental organizations and women's groups. In part II.C above, reference was made to the various ways in which women's organizations are trying to empower women and service providers in an effort to change attitudes regarding harmful traditional practices. This approach needs to be supported by implementation of national and international human rights norms relating to the elimination of discrimination against women. The environment of discrimination, which denies women and the girl child equal access to health care, education, employment and wealth, must also be addressed and reformed.
In the international debate, the father's responsibility towards the girl child has never been challenged. However, the duties and responsibilities of men within the family have begun to receive special attention as instruments of change. The Programme of Action adopted by the International Conference on Population and Development in September 1994 states:
Changes in both men's and women's knowledge, attitudes and behaviour are necessary conditions for achieving the harmonious partnership of men and women. . . . It is essential to improve communication between men and women on issues of sexuality and reproductive health, and the understanding of their joint responsibilities, so that men and women are equal partners in public and private life.
. . .
. . . Male responsibilities in family life must be included in the education of children from the earliest ages. Special emphasis should be placed on the prevention of violence against women and children.(4)
One of the most noticeable achievements at the international level has been the lifting of the taboo against addressing the issue of female genital mutilation, which is now acknowledged as a violation of the human rights of women and the girl child. This has created new sociocultural forces in the countries concerned, particularly among women participating in the crusade against FGM. None the less, unprecedented efforts are needed at the national and international levels to eradicate all forms of harmful traditional practices.
Governments, the United Nations and its specialized agencies, and NGOs should now play a more important role in monitoring and implementing the Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children (see annex). Technical and financial support should be given to national and regional organizations which advocate gender equality and promote human rights for all.
ANNEX
Plan of Action for the Elimination of Harmful Traditional Practices
Affecting the Health of Women and Children a/
_______
a/ Prepared by the second United Nations Regional Seminar on Traditional Practices Affecting the Health of Women and Children, held at Colombo, Sri Lanka, from 4 to 8 July 1994 (E/CN.4/Sub.2/1994/10/Add.1 and Corr. 1); adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in its resolution 1994/30 of 26 August 1994 (para. 3).
A. National action
(1) A clear expression of political will and an undertaking to put an end to traditional practices affecting the health of women and girl children, particularly female genital mutilation, are required on the part of the Governments of countries concerned.
(2) International instruments, including those relating to the protection of women and children, should be ratified and effectively implemented.
(3) Legislation prohibiting practices harmful to the health of women and children, particularly female genital mutilation, should be drafted.
(4) Governmental bodies should be created to implement the official policy adopted.
(5) Governmental agencies established to ensure the implementation of the Forward-looking Strategies for the Advancement of Women adopted at Nairobi in 1985 by the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace should be involved in activities undertaken to combat harmful traditional practices affecting the health of women and children.
(6) National committees should be established to combat traditional practices affecting the health of young girls and women, particularly female genital mutilation, and governmental financial assistance provided to those committees.
(7) A survey and review of school curricula and textbooks should be undertaken with a view to eliminating prejudices against women.
(8) Courses on the ill effects of female genital mutilation and other traditional practices should be included in training programmes for medical and paramedical personnel.
(9) Instruction on the harmful effects of such practices should be included in health and sex education programmes.
(10) Topics relating to traditional practices affecting the health of women and children should be introduced into functional literacy campaigns.
(11) Audiovisual programmes (sketches, plays, etc.) should be prepared and articles published in the press on traditional practices adversely affecting the health of young girls and children, particularly female genital mutilation.
(12) Cooperation with religious institutions and their leaders and with traditional authorities is required in order to eliminate traditional practices such as female genital mutilation which are harmful to the health of women and children.
(13) All persons able to contribute directly or indirectly to the elimination of such practices should be mobilized.
Son preference
(14) The family being the basic institution from where gender biases emanate, wide-ranging motivational campaigns should be launched to educate parents to value the worth of a girl child, so as to eliminate such biases.
(15) In view of the scientific fact that male chromosomes determine the sex of children, it is necessary to emphasize that the mother is not responsible for selection. Governments must, therefore, actively attempt to change the misconceptions regarding the responsibilities of the mother in determining the sex of the child.
(16) Non-discriminatory legislation on succession and inheritance should be introduced.
(17) In the light of the dominant role religion plays in shaping the image of women in each society, efforts should be made to remove misconceptions in religious teachings which reinforce the unequal status of women.
(18) Governments should mobilize all educational institutions and the media to change negative attitudes and values towards the female gender and project a positive image of women in general, and the girl child in particular.
(19) Immediate measures should be taken by Governments to introduce and implement compulsory primary education and free secondary education and to increase the access of girls to technical education. Affirmative action in this field should be adopted in favour of the promotion of girls' education to achieve gender equity. Parents should be motivated to ensure the education of their daughters.
(20) Considering the importance of promoting self-esteem as a prerequisite for the higher status of women in the family and the community, Governments should take effective measures to ensure that women have access to and have control over economic resources, including land, credit, employment and other institutional facilities.
(21) Measures must be taken to provide free health care and services to women and children (in particular, girls) and to promote health consciousness among women, with emphasis on their own basic health needs.
(22) Governments should regularly conduct nutritional surveys, identify nutritional gender disparities and undertake special nutritional programmes in areas where malnutrition in various forms is manifested.
(23) Governments should also undertake nutritional education programmes to address, inter alia, the special nutritional needs of women at various stages of their life cycle.
(24) As son preference is often associated with future security, Governments should take measures to introduce a social security system, especially for widows, women-headed families and the aged.
(25) Governments are urged to take measures to eliminate gender stereotyping in the educational system, including removing gender bias from the curricula and other teaching materials.
(26) Governments should encourage by all means the activities of non-governmental organizations concerned with this problem.
(27) Public opinion makers, national institutions, religious leaders, political parties, trade unions, legislators, educators, medical practitioners and all other organizations should be actively involved in combating all forms of discrimination against women and girls.
(28) Gender disaggregated data on morbidity, mortality, education, health, employment and political participation should be collected regularly, analysed and utilized for the formulation of policy and programmes for girls and women.
Early marriage
(29) Governments are urged to adopt legislative measures fixing a minimum age for marriage for boys and girls. As recommended by the World Health Organization, the minimum age for girls should be 18 years. Such legislative measures should be reinforced with necessary mechanisms for their implementation.
(30) Registration of births and deaths, marriages and divorces should be made compulsory.
(31) Health issues relating to sex and family-life education should be included in school curricula to promote responsible and harmonious parenthood and to create awareness among young people about the harmful effects of early marriage, as well as the need for education about sexually transmitted diseases, especially AIDS.
(32) The media should be mobilized to raise public awareness on the consequences of child marriage and other such practices and the need to combat them. Governments and women's activist groups could monitor the role of the mass media in this regard. All Governments should adopt and work towards "safe motherhood" initiatives.
(33) Effective training programmes should be ensured for traditional birth attendants and paramedical personnel to equip them with the necessary skills and knowledge, including concerning the effects of harmful traditional practices, to provide care and services during the antenatal, child delivery and postnatal periods, especially for rural mothers.
(34) Governments should promote male contraception, as well as female contraception.
(35) To discourage the early marriage of girls, Governments should make provision to increase vocational training, retraining and apprenticeship programmes for young women to empower them economically. A certain percentage of the places in existing training institutions should be reserved for women and girls.
(36) Governments should recognize and promote the reproductive rights of women, including their right to decide on the number and spacing of their children.
(37) Considering that non-governmental organizations have an effective role in urging Governments to enhance women's health status and in keeping international organizations informed about the trends relating to traditional practices affecting the health of women and children, they should continue to report on the progress made and obstacles encountered in this area.
Child delivery practices
(38) Contraception should be encouraged as a means of promoting the health of women and children rather than as a means of achieving demographic goals.
(39) Governments should eliminate, through educational and legislative measures and the creation of monitoring mechanisms, all forms of harmful traditional childbirth practices.
(40) Governments should expand and improve health services and introduce training programmes for traditional birth attendants to upgrade their positive traditional skills, as well as to give them new skills on a priority basis.
(41) Research and documentation are essential to assess the harmful effects of certain traditional birth-related practices and to identify and continue some positive traditions like breast-feeding.
Violence against women and girl children
(42) Violence against women and girl children is a global phenomenon which cuts across geographical, cultural and political boundaries and varies only in its manifestations and severity. Gender violence has existed from time immemorial and continues up to the present day. It takes covert and overt forms, including physical and mental abuse. Violence against women, including female genital mutilation, wife burning, dowry-related violence, rape, incest, wife battering, female foeticide and female infanticide, trafficking and prostitution, is a human rights violation and not only a moral issue. It has serious negative implications for the economic and social development of women and society and is an expression of the societal gender subordination of women.
(43) Governments should openly condemn all forms of violence against women and children, in particular girls, and commit themselves to confronting and eliminating such violence.
(44) To stop all forms of violence against women, all available media should be mobilized to cultivate a social attitude and climate against such totally unacceptable human behaviour.
(45) Governments should set up monitoring mechanisms to control depiction of any form of violence against women in the media.
(46) Violence being a form of social aberration, Governments should advocate the cultivation of a social attitude so that victims of violence do not suffer any continuing disability, feelings of guilt, or low self-esteem.
(47) Governments should enact and regularly review legislation for effectively combating all forms of violence, including rape, against women and children. In this connection, more severe penalties for acts of rape and trafficking should be introduced and specialized courts should be established to process such cases speedily and to create a climate of deterrence.
(48) Female infanticide and female foeticide should be openly condemned by all Governments as a flagrant violation of the basic right to life of the girl child.
(49) The hearing of cases of rape should be in camera and the details not publicized, and legal assistance should be provided to the victims.
(50) Traditional practices of dowry and bride-price should be condemned by Governments and made illegal. Acts of bride burning should likewise be condemned and a heavy penalty inflicted on the guilty.
(51) Families, medical personnel and the public should be encouraged to report and have registered all forms of violence.
(52) More and more women should be inducted in law enforcement machinery as police officers, judiciary, medical personnel and counsellors.
(53) Gender-sensitization training should be organized for all law enforcement personnel and such training should be incorporated in all induction and refresher courses in police training institutions.
(54) Mechanisms for networking and exchanges of information on violence should be established and strengthened.
(55) Governments should provide shelters, counselling and rehabilitation centres for victims of all forms of violence. They should also provide free legal assistance to victims.
(56) Governments must develop and implement a legal literacy campaign to improve the legal awareness of women, including dissemination of information through all available means, particularly NGO programmes, adult literacy courses and school curricula.
(57) Governments must promote research on violence against women and create and update databases on this subject.
(58) Community-based vigilance should be promoted regarding gender violence, including domestic violence.
(59) At the national level, Governments should promote and set up independent, autonomous and vigilant institutions to monitor and inquire into violations of women's rights, such as national commissions for women consisting of individuals and experts from outside the Government.
(60) Governments which have not done so are urged to ratify the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, to ensure full gender equality in all spheres of life. The States parties to these Conventions must comply with their provisions in order to achieve their ultimate objectives, including the eradication of all harmful traditional practices.
(61) NGOs should be active in bringing all available information on systematic and massive violence against women and children, in particular girls, to the attention of all relevant bodies of the United Nations, such as the Centre for Human Rights, the Commission on the Status of Women and specialized agencies, for the necessary intervention. Such information should also be shared with the Governments concerned, women's commissions and human rights organizations.
(62) Women's organizations should mobilize all efforts, including action research, to eradicate prejudicial and internalized values which project a diminished image of women. They should take action towards raising awareness among women about their potential and self-esteem, the lack of which is one of the factors perpetuating discrimination.
B. International action
The Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities
(63) The question of traditional practices affecting the health of women and girl children should be retained on the agenda of the Commission on Human Rights and the Sub-Commission, so as to keep it under constant review.
The Commission on the Status of Women
(64) The Commission should give more attention to the question of harmful traditional practices.
(65) All the organs of the United Nations working for the protection and the promotion of human rights, and in particular the mechanisms established by the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Covenants on Human Rights and the Convention against Torture, should include in their agenda the question of all harmful traditional practices which jeopardize the health of women and girls and discriminate against them.
(66) Intergovernmental organizations and specialized agencies and bodies of the United Nations system, such as the United Nations Children's Fund, the United Nations Development Programme, the United Nations Population Fund, the United Nations Development Fund for Women, the International Labour Organisation, the United Nations Educational, Scientific and Cultural Organization and the World Health Organization, should integrate in their activities the issue of confronting harmful traditional practices and elaborate programmes to cope with this problem.
United Nations specialized agencies
(67) Close coordination should be established between the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children and the relevant United Nations bodies, specialized agencies and regional organizations for the effective implementation of the Plan of Action. All specialized agencies should include in their aid programmes activities relating to the campaign against female genital mutilation and other traditional practices affecting the health of women and girl children.
Non-governmental organizations
(68) National and international non-governmental organizations concerned with protecting the health of women and children should include in their programmes activities relating to traditional practices affecting the health of women and girl children.
(69) International non-governmental organizations concerned with protecting the health of women and children should extend their financial and material support to national non-governmental organizations to ensure the success of their activities.
(70) Non-governmental organizations already positively engaged in activities for the elimination of traditional practices affecting the health of women and children should intensify those activities.
(71) Cooperation should also take place between non-governmental organizations and Governments in developing programmes for the retraining of female genital mutilation practitioners to enable them to achieve financial self-sufficiency through gainful activities.
(72) Non-governmental organizations should continue and reinforce their activities in favour of protecting the human rights of women and girl children, including the promotion of beneficial traditional practices.
Other measures
(73) Health workers should be required to dissociate themselves completely from harmful traditional practices.
(74) All women aware of the problem should be called on to react against traditional practices affecting the health of women and children and to mobilize other women.
(75) Women engaged in combating traditional practices affecting the health of women and children should exchange their experience.
Select Bibliography
Abdalla, Raqiya Haji Dualeh. Sisters in affliction; circumcision and infibulation of women in Africa. London, Zed Press, 1982. 122 p. Bibliography.
Dorkenoo, Efua. Cutting the rose; female genital mutilation: the practice and its prevention. London, Minority Rights Publications, 1994. 196 p. Bibliography.
Hosken, Fran P. The Hosken report; genital and sexual mutilation of females. 4th rev. ed. Lexington (Mass.), Women's International Network News, 1994. 444 p. Bibliography.
Inter-African Committee on Traditional Practices Affecting the Health of Women and Children. Report on the regional seminar on traditional practices affecting the health of women and children in Africa, 6-10 April 1987, Addis Ababa, Ethiopia. 182 p.
United Nations. Economic and Social Council. Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1994/45. 22 November 1994. 92 p. (E/CN.4/1995/42)
. Economic and Social Council. Report of the second United Nations regional seminar on traditional practices affecting the health of women and children, Colombo, Sri Lanka, 4-8 July 1994. (E/CN.4/Sub.2/1994/10 and Corr.1 and Add.1 and Add.l/Corr. 1)
___. Economic and Social Council. Report of the United Nations seminar on traditional practices affecting the health of women and children, Ouagadougou, Burkina Faso, 29 April-3 May 1991. 12 June 1991. 46 p. (E/CN.4/Sub.2/1991/48)
___. Economic and Social Council. Report of the Working Group on traditional practices affecting the health of women and children. 4 February 1986. 50 p. (E/CN.4/1986/42)
Economic and Social Council. Study on traditional practices affecting the health of women and children; final report by the Special Rapporteur, Mrs. Halima Embarek Warzazi. 5 July 1991. 39 p. (E/CN.4/Sub.2/1991/6)
___. Economic and Social Council. Study on traditional practices affecting the health of women and children; preliminary report by the Special Rapporteur, Mrs. Halima Embarek Warzazi. 21-22 August 1989. 21 p. (E/CN.4/Sub.2/1989/42 and Add. 1)
* BA, University of California, Berkeley, [1]981; JD, Suffolk University Law School 1989; MPH, Harvard School of Public Health 1992; Salzburg Seminar Fellow 1992; Guberman Fellow in Legal Studies, Brandeis University 1997; Fulbright Scholar in Law 2000-01; Professor of Law, Donetsk State University, Faculty of Law and Economics, Donetsk, Ukraine 2000;Co-Director, Tufts Medical School Child Abuse Prevention Program 1996-1999; Lecturer Azov School of Management, Berdyansk, Ukraine 2000-01; Director, Children’s Watch, 1993-2000; Research Grantee IREX/Woodrow Wilson Center, Regional Black Sea Policy Symposium 2001; Senior Research Analyst, International Women's Human Rights Clinic, Georgetown University Law Center, Washington, D.C. 20001 2003-2004.
1 Richard A. Posner, Sex and Reason 255 (Harvard University Press, 1992).
[2] While modern Western societies believe in the sanctity of monogamy and enshrine it in their legal codes, most social traditions, over 80%, accept at least some degree of polygamy, the union between a person and more than one spouse. Forms include: polygyny, where a man has more than one wife and polyandry, where a woman has more than one husband. See Brian Schwimmer, Department of Anthropology, University of Manitoba, at http://www.umanitoba.ca/anthropology/tutor/marriage/polygamy.html (last visited July 8, 2004)
[3] Polygyny is where a man has more than one wife see id.
[4] Id.
[5] "... polygyny occurs in many situations of relatively balanced gender ratios or even, as in the case of the Yanomamo, where males outnumber females. Accordingly, some men accumulate two or more wives only at the expense of others who never marry, or, much more usually, marry at a later age than women do. As such, the society becomes divided between young bachelors, who may remain single into their thirties and older polygynists. This arrangement may occur informally or may become a marked feature of the social structure. For example, in some South African societies, such as the Zulu, all young men in their twenties were organized into military “age regiments” and were not allowed to marry until their term of service ended. As we have already suggested, differences in marital age are also created by bride wealth requirements. The social division between polygynists and bachelors points to another prevalent theory of polygyny, which is based on social stratification. In societies where men are not distinguished by differences in access to productive resources, such as land and capital, status distinctions are mainly attained and expressed through direct control over people. This goal is most obviously achieved through incorporating many women into one’s domestic group and expanding it by fathering a large number of children. Traditional South African marriage structures again provide an appropriate example. Most societies were divided into commoner, noble, and royal strata. Commoners usually were able to marry only one wife, nobles supported several, and royals could boast numbers that reached over a hundred. A stratificational theory of polygyny also accounts for its greater incidence in comparison to polyandry, since men tend to occupy higher statuses than women in the majority of societies." Id.
[6] Customary law consists of the laws and customs of a particular tribe, or village. They almost invariably are not written, drafted, critiqued, amended or repealed like legislation. Rather village leaders and elders familiar with its application over the years are repositories of the laws and customs of the people. These persons tend to coincide with the institutions that wield significant social influence, in rural and to some extent in urban areas.
[7] CEDAW General Recommendation on Equality in Marriage and Family Relations urges, “Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependants that such marriages ought to be discouraged and prohibited.” CEDAW General Rec. 21, Article 14.
[8] See, e.g., Human Rights Watch, Just Die Quietly Domestic Violence and Women's Vulnerability to HIV in Uganda (August 13, 2004) The Ugandan government's failure to protect women from domestic violence
and discrimination increases women's risk of contracting HIV. This report documents widespread
rape and brutal attacks on women by their husbands in Uganda, where a specific domestic violence law has
not been enacted and where spousal rape is not criminalized. Many women told Human Rights Watch that
a fear of violent repercussions impeded their access to HIV/AIDS information, HIV testing, and HIV/AIDS
treatment and counseling. The Human Rights Watch report says that HIV/AIDS programs focusing on
fidelity, abstinence, and condom use do not account for the ways in which domestic violence inhibits
women's control over sexual matters in marriage. In the report, Human Rights Watch urges the Ugandan
government to enact domestic violence legislation, and to make women's health, physical integrity, and
equal rights in marriage a central focus of AIDS programming available at
http://www.hrw.org/reports/2003/uganda0803/uganda0803.pdf (last visited July 8, 2004); Laurie Garrett, Polygamy, Poverty, Oppression Of Women Are Fueling AIDS Epidemic In Africa, July 10, 2000 http://www.polygamyinfo.com/intnalmedia%20plyg%2085rutrz.htm (last visited July 8, 2004); See also Helen Epstein, God and the Fight Against AIDS, New York Review of Books, (April 2005) available at http://www.nybooks.com/articles/17963; See also J.M. Spectar, The Hydra Hath But One Head: The Socio-Cultural Dimensions Of The Aids Epidemic & Women's Right To Health, 21 Boston College Third World Law Journal 1 (2001) (The AIDS pandemic is exacting a heavy toll on women and girls in developing countries. The collusion of myriad social and cultural forces at the epicenter of the pandemic, to the detriment of women’s health, heightens the need for an international focus on women’s human rights and HIV/AIDS. It appears there is an inextricable nexus between certain socio-cultural practices and women’s vulnerability to HIV/AIDS.) available at http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bctwj/21_1/01_FMS.htm (last visited December 10, 2004). Customary law and with it traditional practices completely bars widows from inheriting land in many countries, e.g., Tanzania, from their deceased husbands, even when the land is marital property. It excludes widows from being administrators of estates. The consequences of this discrimination against widows are severe impoverishment, harassment; ostracism, ill- health and psychological damage and constitute infringements of their human rights all magnified as the scourge of AIDS has greatly increased the number of widows in Tanzania. See Mhojba infra note. Customary law completely bars widows from inheriting land from their deceased husbands, even when the land is marital property. It excludes widows from being administrators of estates. The consequences of this discrimination against widows are severe impoverishment, harassment; ostracism, ill- health and psychological damage and constitute infringements of their human rights all magnified as the scourge of AIDS has greatly increased the number of widows in Tanzania. See Monica Mhoja infra note.
[9] Immigration Laws: February, 1996 - Number #11 “The French government announced that it would henceforth recognize only one spouse per marriage, thus ending a 1980s policy of tolerating polygamy among African immigrants. During the 1980s, additional wives were informally admitted to France with the argument that immigrants were entitled to "normal" family life. There are an estimated 200,000 people living in polygamous families in France. "French Gaullists want tighter rein on foreigners," Reuters, January 25, 1996. Adam Sage, "The Friendly Face of Hatred," The Observer, January 28, 1996. Marlies Simons, "In France, African women are now fighting polygamy,"," New York Times, January 26, 1996. "European report raps Paris jails for foreigners," Reuters, January 22, 1996. Craig Whitney, "Europeans Redefine What Makes a Citizen," New York Times, January 7, 1996. Rory Watson, "Schengen moves north but France digs in," European Voice, January 3, 1996. And from the April 2002 issue of World Press Review (VOL. 49, No. 4)Society Divorce, or Else... Bissuel Bertrand, Le Monde (liberal), Paris, France, Feb. 11, 2002"Foreigners living in polygamy in France no longer have the right to obtain a legal residence card, ever since the second Pasqua law [introduced by France's then-interior minister of justice, Charles Pasqua, who sought to stem immigration to France-WPR] was passed in 1993. The enforcement of this provision has placed certain wives of African immigrants in a dire situation: Either they must separate from their husbands and seek to live on their own, or else they run the risk of not having their residence papers renewed. But separation, which some women would want, runs up against the difficulty of finding housing. In St.-Denis [a poor Paris suburb], five women are living as squatters in an empty building after leaving their polygamous husbands' homes. Kandidiatou, a 30-year-old Malian woman, bears witness to her experience as an abandoned co-spouse and the impossibility of being in a situation of this kind in France. President Jacques Chirac had only tough words to say about African immigrants in his famous speech in 1991 [when he blamed them for noise and kitchen odors]: He pointed the finger at families with one father, three or four wives, and some 20 kids, who collect 50,000 francs in social benefits without working. And so it was that the question of polygamous marriage burst forth in French political debate. Two years later, the Pasqua law gave a very blunt response to this question: Polygamous foreigners, who had heretofore enjoyed relative tolerance, could eventually keep only one wife in France. Approved by Parliament by a wide margin, at a time when the strength of the [extreme right-wing anti-immigration party] National Front was weighing heavy in French political debate, the Pasqua law was in line with official reports stating that the eradication of polygamy among immigrant populations was a necessary condition for their integration into French society. These new rules were also a response to the concerns of some African women's associations. Many denounced polygamy, which does not necessarily rhyme with autonomy. Far from it. Often, it is the husband who collects the benefits and then redistributes them. Moreover, the living conditions of these families can be very difficult. Housing, often overcrowded, deteriorates very quickly; rivalries between co-spouses are said to generate levels of tension that sometimes turn tragic. Some women arrive at the hospital with a broken arm or bruises. Others try to commit suicide. To put an end to this situation, the Pasqua law set up a kind of paperwork blackmail: If a polygamous foreigner wishes to obtain a legal residence card, he has no other choice than to live with only one of his co-spouses, while the other wives must eventually leave the conjugal domicile. In administrative language it is called "de-cohabitating." But, in order to "de-cohabitate," these women must find a place to live. In the Paris region, where housing is scarce, their searches are often fruitless. These women are immigrants, alone with several children, with few resources. Such a profile scares off a lot of sources of help, both private and public. Nonetheless, some public housing associations have seized the initiative and help their members in polygamous relationships to separate from their husbands. But these initiatives are rare. As a result, some women leave their husbands and, failing to find housing, live as squatters. The government is now aware of these difficulties. For this reason it issued a circular last year to support women who leave polygamous households. Beyond housing, these families run up against another problem: access to civil rights. Certain local administrations have enforced the Pasqua law very vigorously. In the first years they revoked the legal residence cards of polygamous foreigners, sometimes for an extended period of time, although these individuals could not be deported because they were the parents of children with French citizenship. But without papers, these adults were no longer authorized to work. Consequently, whole families found themselves in abject poverty, even though the husband had lived in France for 20 years. Sometimes the government meddled in the private lives of families to see whether the wives had actually de-cohabitated. Djeneba, a 42-year-old Senegalese woman who lives in Val-de-Marne, was summoned to appear at the police security agency. "I was asked all sorts of questions: 'Do you know that polygamy is prohibited? Do you get along well together?' " she recounts. Sometimes it happens that de-cohabitated women are required to produce certificates of divorce. But there are many wives who are opposed to the idea of getting divorced. Furthermore, to require divorce goes against a principle of private international law, i.e., personal status. International private law recognizes the validity of polygamous unions sanctioned in the country of origin. At the Ministry of the Interior, officials insisted that the circular does not oblige a polygamist to get a divorce if he wants to receive a 10-year legal residence card. He can certainly maintain his marital relationship with more than one spouse and still live in France, but only one of those spouses is allowed to live in France." available at http://www.worldpress.org/europe/0402lemonde.htm
[10] Prakash A Shah, Attitudes to Polygamy in English Law available on line at http://www.art.man.ac.uk/CASAS/pdfpapers/polygamy.pdf (last visited July 23, 2004)
[11] See Committee on the Elimination of Discrimination against Women, General Recommendation 21, Equality in marriage and family relations (Thirteenth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.HRI\GEN\1\Rev.1 at 90 (1994), para. 14 (“Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited.”).
[12] Id.
[13] Women in Development Network, http:/www.focusintl.com/statr1a1.htm (last visited July 23, 2004). 28% of women in Tanzania between 1986-1992 were living in polygamous relationships.
[14] See articles cited infra at note 264.
[15] See Gruenbaum, infra note 19 at 159–60 This has happened in cases where economic development gives men, and not women, increased power and status, which leads to the adoption of polygamy. See id. at 160. Polygamy has often worked to further entrench female circumcision, often resulting in the adoption of even more invasive practices. See id. at 163. This happens where wives compete with each other for their husband’s affections and where he expresses a preference for a wife who is infibulated or infibulated more tightly than the others. See id.
[16] See Gruenbaum, infra note 19 at 158–59 cited in Erin L.Han, Legal And Non-Legal Responses To Concerns For Women's Rights In Countries Practicing Female Circumcision, 22 Boston College Third World Law Journal (2002).
[17] Id.
[18] See id. at 163. See also Ute Gerhard, Debating Women’s Equality 1 (2001); See also Erin L. Han, Legal And Non-Legal Responses To Concerns For Women’s Rights In Countries Practicing Female Circumcision, available online at http://www.bc.edu/bc_org/avp/law/lwsch/journals/bctwj/22_1/05_FMS.htm (last visited December 14, 2004).
[19] See, e.g., Todd M. Gillett, The Absolution of Reynolds: The Constitutionality of Religious Polygamy, 8 Wm. & Mary Bill of Rights J. 497, 502 (2000). See also Calum Carmichael, Gypsy Law and Jewish Law, 45 Am. J. Comp. L. 269, 297 (1992).
[20] See Ellen Gruenbaum, The Female Circumcision Controversy at 69–71; (2001); Cynthia Fernandez-Romano, The Banning of Female Circumcision: Cultural Imperialism or a Triumph for Women’s Rights?, 13 Temp. Int’l & Comp. L.J. 137, 140 (1999); See Anika Rahman & Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide at 5, 78 (2000).
[21] See Gruenbaum, supra note at 70.
[22] See id. at 79. The practice does not necessarily protect virginity, and infibulation is sometimes re-done after intercourse. See id. at 78–79; Alexi Nicole Wood, A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective, 12 Hastings Women’s L.J. 347, 357 (2001). Nonetheless, in these communities, virginity is equated with infibulation,. See Gruenbaum, supra note at 79. Though sex may be painful for these women and girls, desire might still be present. See Minority Rights Group, Report No. 47, Female Circumcision, Excision and Infibulation: The Facts and Proposals for Change 7 (Scilla McLean ed., 1980).
[23] Minority Rights Group, supra note at 7; see Gruenbaum, supra note at 87; Wood, supra note at 357–58. Marriage is crucial to many women’s survival and support in many countries. See Gruenbaum, supra note at 79, 87.
[24] See Rahman & Toubia, supra note at 5–6.
[25] Nahid Toubia, M.D., Female Circumcision as a Public Health Issue, New England Journal of Medicine, 712-716 (Sept. 15, 1994); FGM – a Human Rights Information Pack, Amnesty International, www.amnesty.org/ailib/intcam/femgen/fgm1.htm. (last visited July 9, 2004).
[26] Trokosi occurs when a father gives his young daughter to a priest to atone for the sins of another family member. Girls as young as 10 can be given, and are required to have sex with priests as soon as their menstruation starts. Because they are kept in captivity, they are denied fundamental liberty such as contact with their families, basic food, clothing and shelter, and education. They are condemned to this life for their lifetime. Although Ghana has passed a law criminalizing trokosi, there are estimated to be about 4000 girls confined with in this system today. Anti Slavery International http://www.anti-slavery.org/global/ghana/ (last visited July 8, 2004).
[27] See Sebastian Poulter, Ethnic Minority Customs, English Law, and Human Rights, International and Comparative Law Quarterly 36, 3 (1987): 589-615. (discusses the legal rights and culture-based claims of various immigrant groups and gypsies in contemporary Britain mentions the roles and status of women as an example of the "clash of cultures," noting claims put forward by members of such groups for special legal treatment on account of their cultural differences. A few are non-gender-related claims but the vast majority of the examples concern gender inequalities: child marriages, forced marriages, divorce systems biased against women, polygamy, and clitoridectomy). Regarding the retention of polygamy and bride price in South Africa where polygamy was legalized by the South African Law Commission in August 1997 in Project 90 “The Harmonisation of the Common Law and the Indigenous Law”, Discussion Paper 74 – Customary Marriages” see generally Amanda Gouws, The Politics of State Structures: Citizenship and the National Machinery for Women in South Africa, available at http://www.feministafrica.org/03-2004/amanda.html (last visited December 10, 2004) (arguing customary marriages was recognized without recognising women's human rights and although traditions modernized somewhat polygamy and lobola (or bride price) were retained in the law. See, e.g., Lobola: Its Implications For Women's Reproductive Rights In Botswana, Lesotho, Malawi, Mozambique, Swaziland, Zambia and Zimbabwe. Research Trust : Weaver Press (2002).
[28] See discussion on CEDAW infra
[29] Laura Dudley Jenkins, Shah Bano: Muslim Women’s Rights, available at http://homepages.uc.edu/thro/shahbano/ (last visited January 27, 2005)(“The continuing legal recognition of personal law in India means that laws specific to different religious communities govern certain legal matters, including marriage, divorce, maintenance, guardianship, adoption, inheritance and succession. Although everyone is subject to the same criminal law, certain parts of civil law vary by community, a legal and administrative structure which extends back to the British colonial period. Hindus, Muslims, Christians other religious communities each have their own code for such cases. Although India’s system of personal laws is a far reaching attempt to recognize and deal with cultural and religious differences, it poses some political dilemmas. There is a raging general debate over whether India should have a uniform civil code or continue these distinct legal traditions. Specific court cases raise their own more particular issues, sometimes pitting minority religious group rights versus women’s rights. Although each of the personal codes are disadvantageous for women, including that of the majority religion, Hinduism, the public critiques of personal law by politicians, the media and activists tend to dwell on Muslim personal law (MPL) in particular. Proposals for developing a uniform civil code (UCC) that would apply to all citizens are favored by many women but are viewed with alarm by many Muslims, who have the impression that a uniform civil code is primarily meant to undermine the religion.” Id.
[30] Uche U. Ewelukwa, Post-Colonialism, Gender, Customary Injustice: Widows in African Societies, Human Rights Quarterly 24 (2002) 424–486 (discussing Nigeria but discussion valid and applicable to Africa generally); For more on the topic see Uche U.Ewelukwa, Caught Between Tradition, The Courts and Survival: Widows in Contemporary African Societies, in WOMEN’S RIGHTS ARE HUMAN RIGHTS: CULTURAL AND SOCIOECONOMIC REALITIES IN AFRICA AND THE AFRICAN DIASPORA (Nnaemeka Obioma ed.,). See generally MARTIN CHANOCK, LAW, CUSTOM, AND SOCIAL ORDER: THE COLONIAL EXPERIENCE IN MALAWI AND ZAMBIA.
[31] Uche U. Ewelukwa supra note at n.119
[32] Monica Mhoja, Land & Property Rights of Widows: A Case Study of Inheritance Customary
Laws in Tanzania available online at www.widowsrights.org/conf3.htm (last visited December 1, 2004)
[33] In the Nigerian context Uche U. Ewelukwa offers explanation applicable to the Tanzanian context which Mhoja has studied. The lack of lawsuits could be attributed to several factors. In most cases where action has been brought regarding inheritance, widows have brought such actions on behalf of their minor male children and hence, have the standing under customary law to bring such action. While her action may shock in-laws and villages, it may still be perceived by some as a battle for survival and a personal battle against greedy in-laws—not a challenge to the entire society. On the other hand, by challenging the constitutionality of a given burial ritual, a widow is perceived as rejecting long-standing customary rules and the society at large. Such legal challenges are not viewed as motivated by the need for survival, but as evidence of the negative impacts of westernization. Finally, because the privileges accorded to widows, such as the “right” of maintenance and allotment of residential home, are enjoyed subject to good behavior and a successful completion of the mourning rituals, a widow is constrained from challenging these rules. .Several factors prevent legal action by widows including past court decisions upholding patently discriminatory laws; insensitivity on the part of the police and the courts; the length and cost of potential lawsuits; ignorance; fear and superstition on the part of the widows themselves; and the absence of any meaningful support network see Uche U. Ewelukwa supra note.
[34] J.E. Stewart, "Coping With the Muddle" 1990 Legal Forum 12-20; see also J.E Stewart, Some Points To Ponder Arising From The White Paper; Legal Forum vol 5, No 2, Legal Resources Foundation 26-30; see also J.E Stewart and W. Ncube (eds) Widowhood, Inheritance Laws, Customs and Practices in Southern Africa; Women and Law in Southern Africa Project, Harare 1995. Professor Julie Stewart is the Director of the Southern and Eastern African Centre for Women’s Law (SEARCWL) formerly the Women’s Law Centre (WLC) at the University of Zimbabwe. Her research interests lie in exploring customary law and drawing the threads of different systems of law together to create a more holistic approach to law especially as it affects the lives of women. One of the critical aspects of this overall research theme is devising appropriate research methods and analytical tools which facilitate activist research on all aspects of the law a with all kinds of different groups and individual needs. Her web site is at http://www.uz.ac.zw/law/women/director.html (last visited July 23, 2004).
[35] See Uche U. Ewelukwa supra note.
[36] See e.g. Uche U. Ewelukwa, Post-Colonialism, Gender, Customary Injustice: Widows in African Societies, Human Rights Quarterly 24 (2002) 424–486 (discussing Nigeria but discussion valid and applicable to Africa generally).
[37] Uche U. Ewelukwa supra note.
[38] Uche U. Ewelukwa supra note.
[39] Uche U. Ewelukwa supra note.
[40] Advocates Challenge Bank to Put Gender on the Fast Track
(Women's issues are still outside the mainstream of World Bank lending in spite of the commitment of its leader, according to a forthcoming report by the US chapter of the Women's Eyes on the World Bank campaign) July 28, 1997 http://www.interaction.org/library/article75.html (last visited July 21, 2004);
[41] Uche U. Ewelukwa supra note.
[42] See, e.g,. Fitnat Naa-Adjeley Adjetey, Religious & Cultural Rights: Reclaiming The African Woman's Individuality: The Struggle Between Women's Reproductive Autonomy And African Society And Culture The American University Law Review 44 Am. U.L. Rev. 1351 (1995); See Crowley Program, Promise Unfulfilled: Law, Culture and Women's Inheritance Rights in Ghana, (2001) available at http://law.fordham.edu/crowley.htm (last visited July 8, 2004). See Takyiwaa Manuh, Africa Recovery Briefing Paper Number 11, April 1998 Women In Africa's Development ,Overcoming Obstacles, Pushing For Progress (April 1998) available at http://www.femnet.or.ke/documents/ csw_2002_women_africa_development.pdf (last visited July 16, 2004).
[43] See, e.g., Women of the World: Laws and Policies Affecting Their Reproductive Rights—Anglophone Africa 2001 Progress Report Women of the World: Laws and Policies Affecting Their Reproductive Rights—Francophone Africa . These reports profile the status of reproductive rights in fourteen African countries: Benin, Burkina Faso, Cameroon, Chad, Côte D’Ivoire, Ethiopia, Ghana, Kenya, Mali, Nigeria, Senegal, South Africa, Tanzania, and Zimbabwe available at http://www.crlp.org/ww_africa.html (last visited July 8, 2004).
[44] See, e.g,,. Uche U. Ewelukwa supra note
[45] Id.
[46] See Takyiwaa Manuh, supra.
[47] Id.
[48] Susan Moller Okin , Is Multiculturalism Bad for Women? Boston Review available at http://www.bostonreview.net/BR22.5/okin.html (last visited July 21, 2004)
[49] See, e.g., Amartya Sen, “Human Rights and Asian Values: What Lee Kwan Yew and Li Peng Don’t Understand About Asia,” in The New Republic, July 14, 1997, at 33-40; Amartya Sen, "Human Rights and Asian Values," The New Republic, July 14-July 21, 1997 available at http://www.mtholyoke.edu/acad/intrel/sen.htm (last visited July 21, 2004); See also Amartya Sen, Human Rights and the Westernizing Illusion, Social Studies Review: Journal of the California Council for the Social Studies available at http://www.civnet.org/journal/vol3no1/ftasen.htm (last visited July 21, 2004) ; See also Shashi Tharoor, Are Human Rights Universal? WORLD POLICY JOURNAL: Volume XVI, No4, WINTER 1999/2000 available at http://www.worldpolicy.org/journal/tharoor.html (last visited July 21, 2004). Amartya Sen: "An Assessment Of The Millennium" lecture delivered 20 August 1998 in New Delhi. http://rrmeet.undp.org.in/_disc8/00000006.htm (last visited July 12, 2004)
[50] Of reform efforts against domestic violence in the United States in the nineteenth century, Pleck notes: In all the reform periods, small organizations and dedicated individuals—ministers, millionaires, physicians, temperance activist, and women s liberationists—have made family violence a social issue that demanded public attention. Some have tried to pass legislation against domestic violence; others have founded institutions. . . . All these activists were concerned about alleviating human suffering. Some were directly involved with the victims of the abuse, while for others domestic violence was an abstract, even philosophical issue. See Elizabeth Pleck, Domestic Tyranny: The Making Of American Soul Policy Against Family Violence From Colonial Times To The Present at 5, 88 (1987) cited in Uche U. Ewelukwa supra note
[51] Uche U. Ewelukwa supra note at n. 159
[52] In Justice Gubbay’s words with respect to Zimbabwe: There is still a need for further reform, perhaps not so much of the law but of attitudes towards women. . . . we still find outmoded attitudes by virtue of which women attending the theater or going out for an evening of entertainment are treated as prostitutes and rounded up like errant cattle. . . . And all women must try and re-educate society as to their real position, rights and entitlements. Cited in Uche U. Ewelukwa supra note.
[53] Id.
[54] See Stewart, Coping with the Muddle, supra note.
[55] Uche U. Ewelukwa supra note.
[56] This is included in the Tanzanian proposal child of the deceased to remain in occupation of any immovable property that the deceased was ordinarily occupying before his death,” “confirms the right of such persons to use the tools, implements, household goods and effects and vehicles used by the deceased in relation to the immovable property,” and makes it a criminal offense punishable by a fine of up to $2000 or two years imprisonment, to act with the intention of depriving the surviving wife or children of the deceased of this right cited in Uchle supra.at n. 186 Critics may view such a law as superfluous given that the Nigerian Criminal Code and indeed the criminal codes of most African states already criminalize stealing which, in effect, is what the looting of a deceased property amounts to. A specific provision declaring state’s intent to protect widows in this regard and imposing stiff penalties for violation may, however, send a message to the general public and possibly make the law enforcement officials more willing to intervene in a matter which has characteristically been defined as a “private family matter.” Id.
[57] See Zimbabwe’s Deceased Family Maintenance Act § 7, at 39 of 1978 as amended by Act 21 of 1987; see also Stewart, Coping with the Muddle, supra note at 14.
[58] According to Stewart, it is a common phenomenon that both spouses contribute financially to purchase of a house or other capital items in the estate, yet these are often registered in the name of, or appear to be the property of the husband. If the surviving spouse is able to successfully establish a tacit universal partnership, then even before the distribution of the estate is commenced the surviving spouse will have protected what is theirs by right
[59] Cited in Uche U. Ewelukwa supra note n 189; see also Crowley Report supra note
[60] Uche U. Ewelukwa supra note n 190
[61] Esther Mayambala, "Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda," East African Journal of Peace & Human Rights Vol. 3(2): 200-239 (1996). See also Henry Onoria, "Introduction to the African System of Human Rights and the Draft Protocol," in Benedek Wolfgang, Esther Kisakye, Gerd Oberleitner (eds.), Human Rights of Women, London: Zed Books (2002).
[62] Uche U. Ewelukwa, a law professor working on the problem explains: “For example, a man may first contract a monogamous statutory marriage and subsequently enter into other customary marriages in a manner clearly constituting the offense of bigamy. Alternatively, he may first contract a customary law marriage and subsequently enter into a statutory marriage with another woman. Finally, he may enter into several polygamous, customary law marriages. As a guiding principle, any new law must attempt to meet the legitimate expectations of the parties involved. Based on this principle, the final scenario poses the least problem. Thus where all wives of a deceased are similarly situated, having all contracted a potentially polygamous customary marriage, any law recognizing a widow’s right to intestate succession should treat all such widows alike. The first two however pose problems of a more serious type.” Uche U. Ewelukwa supra note.
[63] University of Zimbabwe law lecturer, Lovemore Madhuku, is a constitutional lawyer has been chair of the National Constitutional Assembly, a pro-democracy coalition of churches, unions, human rights and student groups.. In 2000, he was instrumental in the defeat of a Mugabe-backed constitution, and was a fierce critic of the forced resignation of chief justice Anthony Gubbay. His high media profile has made him a target for the Zanu-PF party and its supporters. Within the university, his head of department, Welshman Ncube, deputy leader of the Movement for Democratic Change, is awaiting trial on treason charges arising from the alleged plot to assassinate President Mugabe. See David Jobbins, Madhuku Continues to Challenge Mugabe Network for Educational and Academic Rights http://www.nearinternational.org/alerts/d20468972e87ca4339779583e977cd9d7433.php; See Crisis Coalition Zimbabwe, Just A Taste of What’s to Come (Madhuku NCA members beaten up, Madhuku left for dead “ Heavily armed anti-riot police on Wednesday descended on National Constitutional Assembly demonstrators outside the Parliament building and set dogs on them in a bid to thwart the demonstration for a new constitution and the call for an end to human rights abuses in the country. Dr Lovemore Madhuku, the NCA Chairman and Bopoto Nyandoro, the organization’s chairman for Mashonaland East province and other demonstrators were bundled into a police truck and severely beaten and dumped in a bush on the outskirts of Harare”) June 6, 2004 available at http://www.crisis.co.zw/press/06_02_04_madhuku_beaten.htm (last visited July 21, 2004).
[64] Cited in Uche U. Ewelukwa supra note n. 193
[65] Id. at n 194
[66] Id at n 193. Lovemore Madhuku, Government White Paper Again: A Reply to a Reply, 6 LEGAL FORUM 20, 24 (1994). Id. at 24. When a man marries under customary law and subsequently contracts a civil law marriage, it would be most unfair and inequitable to disregard the earlier marriage in the favor of the subsequent one simply because the latter was a registered statutory marriage. The important question is what was the legitimate expectation of the persons involved. Ncube, White Paper, supra note , at 13.
[67] Cited in Uche U. Ewelukwa supra note.
[68] Madhuku, supra note at 21. In view of the fact that many women today willingly contract polygamous marriage, how can the law intervene? Perhaps the biggest problem posed in the enforcement of bigamy laws is the general lack of registration of marriages. Marriages are simply not registered, making it difficult to trace offenders. With the high level of illiteracy in Africa, a majority of the population is probably not even aware of any legal requirement to register marriages.
[69] Cited in Uche U. Ewelukwa supra note.
[70] Id.
[71] See Takyiwaa Manuh, Africa Recovery Briefing Paper Number 11, April 1998 Women In Africa's Development ,Overcoming Obstacles, Pushing For Progress (April 1998) available at http://www.femnet.or.ke/documents/ csw_2002_women_africa_development.pdf (last visited July 16, 2004). See, e.g., Vanessa von Struensee, Achieving Gender Balance in Ghanian Politics: The Need for Governmental Action - The Struggle of Queen Mothers for Equality in Ghana: Women's Political Participation in Traditional Governance (July 23, 2004)available at http://ssrn.com/abstract=568405.
[72] See Gubbay, supra note at 9.
[73] Stewart, Coping with the Muddle, supra note at 16.
[74] See, e.g., Mhoja supra note
[75] Uche U. Ewelukwa supra note.
[76] Uche U. Ewelukwa supra note.
[77] Id.
[78] For repugnancy doctrine see, e.g., Remigius Nnamdi Nwabueze, The Dynamics and Genius of Nigeria's Indigenous Legal Order 1 Indigenous Law Journal 2002 (University of Tornoto). This article challenges the colonial delegitimization of Nigeria's customary law. The author describes customary law's fundamental bases, and argues that these bases are what ensured customary law's survival during colonial rule, and also what provide for customary law's contemporary relevance. Globalization, increased international interaction, and the eclipse of tribal insularity necessitate a permanent form of customary law that is decipherable to foreigners and non-Indigenous people of Nigeria. However, the author opines that if rigidification of customary law is to be avoided, then the present practice of proving it as a fact ought to be retained. Factual proof is defended as an incident of the primordial nature and primary source of customary law, rather than any weakness in the comparison of customary law with the received English law. Under Nigerian law, after a rule of customary law is proved to exist, the court must consider whether it is judicially enforceable, or whether it is repugnant to natural justice, equity and good conscience. The author argues that the 'repugnancy doctrine' was routinely employed in a legal 'cleansing' mission, and was the engine for the imposition of hegemonic, foreign culture. The author suggests caution in the uncritical and contemporary use of the repugnancy doctrine and its precedents. Other instances of non-judicial enforcement of customary law are also considered, such as the contractual exclusion of customary law, and the exclusion of customary law based on the uncustomary nature of the subject matter of litigation. Finally, the author addresses the specific question of the constitutionality of customary law. Customary law's patriarchal foundation and general discrimination against women and female children are problematic issues that require sensitive and imaginative judicial use of customary law. The author argues that the Nigerian judiciary should undertake careful constitutional and sociological analysis before striking down any rule of customary law. The court should make reference to South Africa's constitutional experience, which has comparative similarities to Nigeria. The article concludes with a call for an interpretive approach to customary law that ensures its survival and adaptation to the dictates of equality in an egalitarian society.
[79] Without digressing too much into the philosophy of law see, e.g,. Catholic Information Network, Natural law is sure foundation of human rights. Pope John Paul II to Italian Catholic Jurists December 5, 1998 http://www.cin.org/jp2/jp981205.html last visited July 21, 2004); See e.g., UNESCO education server D@dalos dedicated to civic and peace education available at http://www.dadalos.org/int/ (last visited July 21, 2004). Rather than a law based on human authority, natural law represents an idea for a law that has a binding and legitimizing effect upon (positive) human law. Natural law claims unconditional applicability for every state authority and for each individual. Natural laws became embodied in the basic human and civil laws on which the modern constitutional state is based.[Taken and translated from: Reinhard Beck: Sachwörterbuch der Politik, Kröner Verlag, Stuttgart 1986, S. 637]Clearly, human rights stem from this tradition. The rationalist and enlightening form of natural law teaching reached its peak during the 17 and 18th centuries. During the 19th century it was the countermovement of positivism, based on the belief that positive (written) law alone is valid.
[80] Amina Wadud, Alternative Qur’anic Interpretation and the Status of Muslim Women, in WINDOWS OF FAITH 3 (Gisela Web ed., 2000).
[81] Leila P. Sayeh and Adriaen M. Morse , Jr., Islam and the Treatment of Women: An Incomplete Understanding of Gradualism, 30 Tex. Int’l L.J. 311, 318 (1995) available online at http://www.law-lib.utoronto.ca/Diana/fulltext/saye.htm (last visited December 28, 2004).
[82] Id. at 319.
[83] Id. at 320.
[84] Id. at n. 47 citing John L. Esposito, Islam: The Straight Path 3 (1991).
[85] Leila P. Sayeh and Adriaen M. Morse , Jr., Islam and the Treatment of Women: An Incomplete Understanding of Gradualism, 30 Tex. Int’l L.J. 311, 322.
[86] See ICCPR, art. 18(3) (“Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect...the fundamental rights and freedoms of others.”); see also UDHR, art. 29(2) (“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others....”); European Convention, art. 9(2) (“Freedom to manifest one's religion or beliefs shall be subject only to such limitations as...are necessary...for the protection of the rights and freedoms of others.”); American Convention, art. 12(3) (“Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect...the rights or freedoms of others.”). In effect, then, “[r]eligious freedom is...a very general and necessarily qualified right, whereas the right to sexual equality in relation to marriage and family life is very specific and unqualified.” Poulter, supra at 215; see also ICCPR, art. 23(4), supra; CEDAW, art. 16(1), supra.
[87] 98 U.S. 145 (1878).
[88] Id. at 161
[89] See Appendices.
[90] For a discussion of the harmful effects of modern day polygamy in the United States of America see Jon Krakauer, Under The Banner of Heaven: A Story of Violent Faith, Doubleday July 2003 (discusses polygamy, child marriage, incest and animal cruelty in modern day fundamentalist Mormon sects).
[91] United States v. Reynolds, 98 U.S. 145, 166 (1878).
[92] Irish Peace Society, Women's Rights in Islamic Marriage, available at http://www.peace.ie/read/islammarriage.html (last accessed July 9, 2004).
[93] See 10 Ann. Rev. Pop. Law. 95-6 (1983) (Decree on Polygamy of 4 April 1950 (see Ku v. Po).
[94] See Bharathi Anandhi Venkatraman, Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Sharia’a and the Convention Compatible? 44 Am. U. L. Rev. 1949, 1980 (1995). Cote D’Ivoire followed suit in 1964, outlawing polygyny. See Wendy L. Patten & J. Andrew Ward, Empowering Women to Stop AIDS in Cote D’Ivoire and Uganda, 6 Harv. Hum. Rts. J. 210 (1993)
[95] See 9 Ann. Rev. Pop. Law. 83-114 (1982) and 12 Ann. Rev. Pop. Law. Vol. 31-2 (1985) [Decree-Law No. 1/1 of Jan. 15, 1980 (in the Personal and Family law Code) and Decree-law No. 1/6 of Apr. 4, 1981].
[96] See Mauritius Const. Art. 11(1) in Bhewa v. Government of Mauritius [1991] LRC (Const) 298, 307 (15 May 1990).
[97]Jesmin Sultana v. Mohammad Elias, 17 BLD 4 (1997).
[98] Code of Persons, 1996 (spouses have the option of marrying under a regime of monogamy or polygamy).
[99] 7 Ann. Rev. Pop. Law 96-7 (1980) (Personal and Family Code (Jan. 1980).
[100] See generally The Annual Review of Population Law available at http://annualreview.law.harvard.edu/annual_review.htm ( the culmination of a twenty-year effort to make available to the public important legal information relating to the regulation of population growth and legal measures adopted by the countries of the world in this area).
[101] Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963 citing Health and Development Networks, Condom U-Turn Puts Many Young Ugandans at Risk, May 26, 2004; Human Rights Watch, The Less They Know, the Better: Abstinence Only HIV/AIDS Programs in Uganda, March 2005; Center for Health and Gender Equity, Where Is the ‘C' in ABC: Implications of US Global AIDS Policy and Funding for HIV Prevention in PEPFAR Focus Countries, March 2005; Thomas J. Coates, Science vs. Assumption in Public Health Policy: Abstinence Alone Not the Answer, San Francisco Chronicle, May 25, 2004; and Esther Kaplan, With God on Their Side (New Press, 2004).
[102] Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963
[103] Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963
[104] Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963
[105] Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963
[106] Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963
[107] Id. citing Tom Barton, Epidemics and Behaviours: A Review of Changes in Ugandan Sexual Behavior in the Early 1990s, unpublished report for UNAIDS, Geneva, 1997. Zero Grazing may be a natural reaction to the threat of AIDS. Just as in Uganda, partner reduction, combined with strategic, consistent condom use in casual relationships, has been responsible for HIV declines in Thailand and in the gay community throughout the developed world. See Susan Kippax and K. Race, "Sustaining Safe Practice: Twenty Years On," Social Science and Medicine, Vol. 57, No. 1 (July 2003), pp. 1–12; Daniel Low-Beer and Rand L. Stoneburner, "Behaviour and Communication Change in Reducing HIV: Is Uganda Unique?" African Journal of AIDS Research, Vol. 2, No. 1 (2003), pp. 9–21; Martina Morris and Laura Dean, "The Effect of Sexual Behavior Change on Long Term HIV Prevalence Among Homosexual Men," American Journal of Epidemiology, Vol. 140 (1994), pp. 217–232. Rates of casual sex have recently been declining in many African countries, including Kenya and Rwanda, and HIV rates are also beginning to fall in these countries. Professor Susan Watkins of the University of Pennsylvania has observed similar behavioral changes in Malawi, although statistics there are unreliable, so it is hard to say whether this has reduced the spread of HIV.See Susan Cotts Watkins, "Navigating the AIDS Epidemic in Rural Malawi," Population and Development Review, Vol. 30, No. 4, December 2004, pp. 673–705.) It has taken much longer for these changes to get underway outside of Uganda, possibly because there have been no campaigns to encourage partner reduction, and because social and economic factors in other countries may make this kind of behavior change more difficult.; See Helen Epstein "Fidelity Fix," The New York Times Magazine, June 13, 2004. all cited in Helen Epstein supra.
[108] See Helen Epstein, Why Is AIDS Worse in Africa?, Discover, February 2004, and John Donnelly, Circumcised Men Less Likely to Get AIDS, The Boston Globe, November 16, 2004 cited in Helen Epstein , God and the Fight Against AIDS, Volume 52, Number 7 · April 28, 2005 New York Review of Books available at http://www.nybooks.com/articles/17963
[109] AIDS 2004 - XV International AIDS Conference, July 11-16, 2004 – Bangkok, Thailand( proceedings available at http://www.aids2004.org/).
[110] UNAIDS, National Responses to AIDS: More Action Needed, available at http://www.unaids.org/bangkok2004/GAR2004_html/GAR2004_00_en.htm.
[111] Id.
[112] Id.
[113] Id.
[114] Id.
[115] Esther Mayambala, Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, East African Journal of Peace & Human Rights Vol. 3(2): 200-239 (1996).
[116] See, e.g., James P.M. Ntozi, Fred E. Ahimbisibwe, Natal Ayiga, Jonathan O. Odwee and Francis N.Okurut, The Continuing African HIV/AIDS Epidemic, 1999, 211-224 ; Department of Population Studies, Makerere University, P.O.Box 7062, Kampala, Uganda. The Effect Of The AIDS Epidemic On Widowhood In Northern Uganda, Department of Population Studies, Makerere University, P.O.Box 7062, Kampala, Uganda. http://htc.anu.edu.au/pdfs/ContinuingHIV/Ntozi_Ahimb1.pdf; Monica Mhoja, Land And Property Rights Of Widows: A Case Study Of Inheritance Customary Laws In Tanzania available at http://www.widowsrights.org/Monica%20Mhoja.doc (last visited July 8, 2004); Empowering Widows in Development: 10 Country Report: Ghana. www.oneworld.org/empoweringwidows/ 10countries/ghana.html (last visited July 8, 2004).
[117] International Human Rights Law Group, Building the Capacity of Women’s Rights NGOs in Africa to Promote and Protect Women’s Equal Rights to Equal Inheritance Report on the West African Regional Consultation in Accra, Ghana 18 - 20 November 1998 and Subsequent Activities 1998 – 1999. http://www.hrlawgroup.org/initiatives/inheritance_rights/default.asp (last visited July 8, 2004); see also Monica Mhojba, supra note .
[118] The Bride Price, although fictional, is somewhat autobiographical. The book draws on the events that Emecheta witnessed growing up in Nigeria. It is the third book that Emecheta has published, but it is the first one in which Emecheta offers a hint of hope that both the African woman as well as the descendents of slaves might overcome the potentially debilitating restrictions of their culture. Although Emecheta does not overtly criticize the traditional customs of her culture in The Bride Price, her writing has been criticized by male African writers for its negative portrayal of Nigerian customs. Despite this, Emecheta has become one of Africa's best-known women writers, and her books continue to investigate the themes of gender discrimination and the effects of caste that were initiated in The Bride Price. Buchi Emecheta. The Bride Price Paperback (27 March, 1995) Heinemann International Literature.
[119] Mfumi supra http://www.mifumi.org/index.htm.
[120] The payment of brideprice to the wife's family at the time of their marriage makes it difficult for women to leave abusive husbands, unless their families of origin are willing to return the amount paid. Vernellia R. Randall, Race, Health Care and the Law Speaking Truth to Power! Theories that Appear in the African Literature of Domestic Violence, available at http://academic.udayton.edu/race/Theories of Domestic Violence in Literature.htm. See also Eva Luswata-Kawuma, Innovations Around The World On Harmful Socio-Cultural Practices, A Paper Presented At The International Conference On Bride Price, International Conference on Bride Price and Development February 16th 18th, 2004 at Makerere University, Kampala, Uganda, available at http://www.mifumi.org/bp_conference/doc_list.h; The Mifumi bride price and domestic violence project is the brainchild of the Mifumi Project and Prompt UK. The project seeks to reduce bride price through interventions which will empower rural women in Uganda to be able to resist this degrading and dehumanizing practice. This project is the first of its kind in Uganda and is funded by the Human Rights Project fund of the British Government’s Foreign and Commonwealth Office. http://www.mifumi.org/archives/bride_price.htm (last visited July 16, 2004); International Conference on Bride Price and Development February 16th 18th, 2004, Makerere University, Kampala, Uganda all papers available at http://www.mifumi.org/index.htm.
[121] Id.
[122] Id.
[123] International Conference on Bride Price and development February 16th 18th, 2004 Makerere University, Kampala, Uganda Abstracts, Full Papers, Speeches and Publications available at http://www.mifumi.org/index.htm. W. Njogu, The Place Of Culture In Human Rights And Development: Focus On Bride Price And Other Harmful Traditional Practice; See also Mary Okioma, Bride Price- Paving The Way For A Killer, available at Mifumi supra.
[124] A referendum was held on 22nd December 2001 in Tororo across 5 sub-counties. 60% voted for reform of bride price. Mfumi supra http://www.mifumi.org/archives/bride_price.htm
[125] Available online at http://chora.virtualave.net/lobola-hiv.htm or at http://net2.valenciacc.edu/cp/destination/upload_dest/hkalim/Dest2000.rtf. In this article, which is partly based on African Women: Three Generations, his tribute to his mother, grandmother and sister, Mark Mathabane discusses how the oppression of women has contributed to the spread of AIDS in his homeland of South Africa. See Mark Mathabane, Lobola, AIDS and Africa, Wash. Post, March 27, 2000, at A27. Florah told him that “[l]ike a lot of men, [Collin] believed that, having paid lobola for me, he had a right to sleep around while it was my duty to stay at home, cook, clean, take care of the children, remain faithful and never complain.” Id. In addition to the obviously harmful impact on Florah of being treated as a piece of property or servant by her husband, his adulterous lifestyle exposed her to AIDS and other sexually transmitted diseases. Florah wanted to leave her husband, but the practice of lobola made that impossible. Her father had already spent Collin’s down payment and so he was unable to pay back the bride price in order to dissolve the marriage under customary law. Id. at A56. Instead of supporting his daughter to leave this abusive situation, the father told Florah not to disgrace the family by leaving Collin. “He insisted that if only Florah would bear Collin children, he would stop philandering.” Id. Collin’s justification for his adulterous behavior appears to be directly linked to the fact that he “paid” for Florah. This is not unusual.
[126] See South African Law Commission, Project 90, The Harmonization of the Common Law and the Indigenous Law § 4.3.2.5 (Discussion Paper 74, August 1997), at http:// www.law.wits.ac.za/salc/ discussn/dp74.html (last visited August 4, 2004).
[127] See T.W. Bennett, Sourcebook of African Customary Law 196-202 (1991).
[128] See South African Law Commission, Project 90, The Harmonization of the Common Law and the Indigenous Law at § 4.3.2.6.
[129] See Bennett,supra at 202; South African Law Commission, Project 90, The Harmonization of the Common Law and the Indigenous Law at § 4.3.2.6.
[130] See Winifred Brown, Marriage, Divorce and Inheritance: The Uganda Council of Women’s Movement for Legislative Reform 54 (1988).
[131] Mary Okioma , Bride price- Paving The Way For A Killer, International Conference on Bride Price and Development February 2004 available at http://www.mifumi.org/bp_conference/conference.htm
[132] http:// www.unaids.org.
[133] Human Rights Watch, Double Standards: Women’s Property Rights Violations In Kenya, available at http://www.hrw.org/reports/2003/kenya0303/.
[134] Human Rights Watch, Just Die Quietly, supra.
[135] CHANGE Seminar: ‘When Human Rights and Culture Clash’ CHANGE, London, January 7, 2004. CHANGE, an international women’s human rights NGO based in the UK, organized a multidisciplinary seminar on 7 January 2004 entitled ‘When Human Rights and Culture Clash.’ The event was held to commemorate the 10th anniversary of the Vienna Declaration on Human Rights. The seminar was divided into two sessions; the morning session examined ‘Issues in Marriage’ and was chaired by Christine Chinkin (Department of Law, London School of Economics). The afternoon session, chaired by Georgina Ashworth (CHANGE), examined ‘Honour and Private Violence’, and formed part of CHANGE’s consultation as a UK Partner working with the Shehrazad Project on ‘Honour-Related Violence’, coordinated by Swedish NGO Kvinnoforum. Sanchita Hosali, of the CIMEL/INTERIGHTS ‘Crimes of Honour’ Project gave a presentation in the afternoon session on problematising ‘crimes of honour’. Poverty and Child Marriage, Naana Otoo-Oyortey, Forum on Marriage and the Rights of Women and Girls, UK Naana Otoo-Oyortey’s talk began by defining child marriage as the marriage of any person under the age of 18 years and referred to international human rights norms as contained in the Convention on Child Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. In contextualizing child marriage, four factors were d: the practice of arranged marriages involving minors; the perception of child marriage as a cultural and/or religious obligation both within communities and by outside observers; forced marriage, defined by the absence of consent of either or both parties to the marriage; and the ‘exchange of goods’, such as bride price or dowry. Several trends in child marriage were identified, including the gendered nature of the practice – as research has shown that girls are overwhelming the victims of child marriage, with estimates that globally 51 million girls aged 15-19 are married. The link to poverty is seen most vividly in the consequences of child marriage, including ‘capability failure’ which is caused by lack of education, poor health and well-being resulting in the continuation of the feminization of poverty and inter-generational poverty. The Campaign on Bride Price in Africa, Patrick Ndira, Mifumi, Eastern Uganda Patrick Ndira’s talk drew on the work of the Mifumi Project in Eastern Uganda in working to address bride price - the ‘purchasing’ of a wife, paid by the husband to the woman’s family. The Project’s work has highlighted four important issues related to bride price: girl-children and women are being used as stakes to secure bride price by their families, emphasizing the commercial element of bride price; women and girls being forced into marriage for such economic gain by the families; if a bride price is not paid in full then women are often disinherited, leaving them destitute upon the death of their husbands; and homelessness is an important issue as disinherited women and those who refuse forced marriages or run away, are often left without a place to live. Nationally, the biggest challenge has been ‘naming’ the problem, as state law and policy does not use the term bride price but prefers the term bridal wealth – which is wholly inappropriate as this is not a gift given to the woman, nor is it even negotiated in her presence. At the international level, there is a need to bring the issue within a rights discourse and in particular to make the link to other ‘harmful cultural practices’, particularly FGM as FGM can bring a higher bride price. Georgina Ashworth gave a brief overview of the CHANGE publication Non-Consensual Sex in Marriage which was the result of a global investigation into the incidence of non-consensual sex in marriage, aimed at promoting women's sexual and human rights in marriage. The study revealed that marital rape is often exempted from or not recognized within criminal definitions of rape. Non-consensual sex in marriage is a prime example of law and customs colluding in the acceptance of male-perpetrated violence against women. However, there are still areas of advocacy that can be linked to non-consensual sex in marriage, in particular women’s health, and in the future links should be made to HIV-AIDS campaigns which tend to ignore gender inequalities and relations within marriage.
[136] http://www.unfpa.org/africa/uganda/1uga0105.pdf).
[137] See UNICEF, Harmful Traditions http://www.unicef.org/pon97/women1b.htm; See also http://www.unicef.org/pon97/40-49.pdf).
[138] Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49 available at http://www.unhchr.ch/html/menu3/b/k2crc.htm
[139] http://www.unfpa.org/icpd/icpd.htm
[140] 521 U.N.T.S. 231, entered into force Dec 9, 1964 available at http://www1.umn.edu/humanrts/instree/o1ccmar.htm (last visited December 10, 2004); See also Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages Opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962 entry into force 9 December 1964, in accordance with article 6 available at http:// http://www.unhchr.ch/html/menu3/b/63.htm
[141] CEDAW is often regarded as one the least effective of the international instruments, despite its high ratification rate. See, e.g., Kerri L. Ritz, Soft Enforcement: Inadequacies Of Optional Protocol As A Remedy For The Convention On The Elimination Of All Forms Of Discrimination Against Women, 25 Suffolk Transnat'l L. Rev. 191 (Winter 2001).
[142] See Luswata-Kawuma supra note
[143] See Luswata-Kawuma supra note
[144] See, e.g., Amnesty International, Reservations To The Convention On The Elimination Of All Forms Of Discrimination Against Women: Weakening The Protection Of Women From Violence, (November 2004) available online at http://web.amnesty.org/library/Index/ENGIOR510092004 (last visited December 28, 2004). In this report, AI calls on states in the region to immediately lift all reservations to CEDAW and to take steps to review relevant national legislation, in order for women in the region to enjoy their full human rights. Most of the countries in the Middle East and North Africa have ratified or acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). However, this fact is undermined by the reservations or declarations that several countries have made to the Convention which limit its application. The reasons given for the reservations vary among countries, but the most commonly used justifications for rejecting or limiting the scope of the articles are conflict with national legislation and Shari'a law (Islamic law).
[145] Equality Now, Words and Deeds: Holding Governments Accountable in the Beijing+10 Review Process 2004 (an updated version of the Beijing+5 report published by Equality Now in 1999 in preparation for the 2000 Special Session of the General Assembly. The report highlights a representative sampling of discriminatory laws in countries around the world and calls on their governments to rescind these laws in accordance with the commitment made in the Beijing Platform for Action) available at http://www.equalitynow.org/english/un/beijing10/beijing10_en.pdf (last visited December 28, 2004).
[146] See, e.g., Katja Luopa, State Responses To Honour Killings, available online at http://www.abo.fi/instut/imr/norfa/ Katja%20Luopa%20honour%20killings.pdf (last visited December 28, 2004).
[147]See Ritz supra note; See also Equality Now, supra note.
[148] See Ritz supra note; See also Equality Now, supra note.
[149] See, e.g., Amnesty International, Reservations to CEDAW- Weakening the Protection of Women in the Middle East and North Africa ,“ Several countries that have ratified CEDAW, the women's rights treaty, have made declarations or reservations that preclude or diminish the domestic applicability of CEDAW. Among the Middle Eastern and North African countries covered by this report, the majority of these reservations have been based on Shari'a law or incompatibility with existing national legislation. Amnesty International is concerned that many of the reservations are contrary to the spirit and purpose of the Convention and a new report discusses these changes from a human rights perspective” available at http://takeaction.amnestyusa.org/ctt.asp?u=618526&l=11488 (last visited December 20, 2004).
[150] See Ritz supra note; See also Equality Now supra note.
[151] See. e.g., Ritz supra note.
[152] See. e.g., Ritz supra note.
[153] Office of the United Nations High Commissioner for Human Rights Traditional practices affecting the health of women and girls: A human rights issue 2003 available at http://www.unhchr.ch/women/focus-tradpract.html
[154] United Nations. Economic and Social Council. Report of the second United Nations regional seminar on traditional practices affecting the health of women and children, Colombo, Sri Lanka, 4-8 July 1994. (E/CN.4/Sub.2/1994/10 and Corr.1 and Add.1 and Add.l/Corr. 1)
[155] Fact Sheet No.23, Harmful Traditional Practices Affecting the Health of Women and Children available at http://www.unhchr.ch/html/menu6/2/fs23.htm
[156] Economic and Social Council. Report Of The United Nations Seminar On Traditional Practices Affecting The Health Of Women And Children, Ouagadougou, Burkina Faso, 29 April-3 May 1991. 12 June 1991. 46 p. (E/CN.4/Sub.2/1991/48) E/CN.4/Sub.2/1994/10/Add.1.
[157] United Nations Population Fund (UNFPA) the United Nations Population Fund, is the world's largest international source of funding for population and reproductive health programmes see http://www.unfpa.org/
[158] http://www.unicef.org/newsline/01pr21.htm
[159] http://www.unicef.org/girlseducation/
[160] http://portal.unesco.org/education/en/ev.php-URL_ID=28413&URL_DO=DO_PRINTPAGE&URL_SECTION=201.html
[161] Chapters from Reproductive Rights and Wrongs: the Global Politics of Population Control by Betsey Hartmann are available at http://www.hsph.harvard.edu/Organizations/healthnet/reprorights/poppapers.html; Also available there are Farida Akhter , Reproductive Rights: a critique from the realities of Bangladeshi Women; Farida Akhter, Depopulating Bangladesh: Essays on the Politics of Fertility; Margaret Catley-Carlson, Population Policies and Reproductive Rights - Always in Conflict?; Sonia Corrêa, From Reproductive Health to Sexual Rights: Achievements and Future Challenges ; Nicholas Eberstadt, What if it's a World Population Implosion? Speculations about Global De-population; Seamus Grimes, Controlling Third World Population Growth: A Major Theme Of The UN Population Conference In Cairo; Lakshmi Lingam, Reproductive Rights and More; George Martine, Population and the Environment in the Current Development Scenario, Soheir A. Morsy, Deadly Reproduction among Egyptian Women: Maternal Mortality and the Medicalization of Population Control, Shilpa Phadke, Medical Termination of Pregnancy Act; Jean L. Pyle, Women, the Family and Economic Restructuring: The Singapore Model?; Mohan Rao, An Imagined Reality: Malthusianinsm, Neo-Malthusianism and Population Myth; Janice Raymond, The Production of Fertility and Infertility: East and West, South and North; Santi Rozario, The Feminist Debate on Reproductive Rights and Contraception in Bangladesh; Amartya Sen, Population Policy: Authoritarianism versus Cooperation; Gita Sen, Reproduction: The Feminist Challenge to Social Policy; Gita Sen, The World Program of Action: A New Paradigm for Population Policy; See also Mohan Rao, Surreptitious Sterilizations available at http://www.hsph.harvard.edu/Organizations/healthnet/reprorights/sterilpapers.html (last visited December 14, 2004).
[162] See, e.g. Paul Hunt, 10th CANADIAN CONFERENCE ON INTERNATIONAL HEALTH PANEL DISCUSSION ON THE RIGHTS TO SEXUAL AND REPRODUCTIVE HEALTH, OCTOBER 28, 2003 (Paul Hunt is the UN Special Rapporteur on the Right to Health) available at http://www.acpd.ca/acpd.cfm/en/section/csih/articleid/223 (last visited December 14, 2004)
[163] Luswata-Kawuma supra note
[164] cited in Luswata-Kawuma supra note
[165] cited in Luswata-Kawuma supra note
[166] Luswata-Kawuma supra note; See also Mhoja supra note. See also Uche U. Ewelukwa supra note.
[167] http://www.achpr.org/english/_info/women_en.html
[168] Statement of Faiza Jama Mohamed, Africa Regional Director of Equality Now.
[169] See, e.g., Equality Now http://www.equalitynow.org A coalition of civil society organizations including Oxfam GB, Equality Now, FEMNET, CREDO for Freedom of Expression and Associated Rights and FAHAMU announced the launch of an international campaign urging member states of the African Union to ratify the African Protocol on the Rights of Women in Africa without delay. (29 June 2004 )
[170] The Protocol on the Rights of Women in Africa: Strengthening the promotion and protection of women's human rights in Africa available at http://web.amnesty.org/library/Index/ENGIOR630052004?open&of=ENG-2AF (last visited July 22, 2004). See also The Protocol on the Rights of Women in Africa (June 5, 2004) AI INDEX: IOR 63/005/2004 available at http://www.amnestyusa.org/women/document.do?id=51444F4B0A2DDB0780256EA900424658 (last visited December 30, 2004).
[171] Article 60 of the Charter.
[172] Additional Protocol to CEDAW, which came into force on 22 December 2000.
[173] Oloka-Onyango & Tamale “The Personal is Political” or Why Women’s Rights are Indeed Human Rights” an African Perspective on International Feminism’ Vol. 17 Human Rights Quarterly.
[174] Zeid Equality, Discrimination And Constitutionalism in Muslim Africa in Oloka-Onyango (ed) Constitutionalism in Africa: Creating Opportunities, Facing Challenges. (2001) 171.
[175] See Twelfth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1998 -1999, Twenty-fourth and Twenty-fifth Ordinary Sessions, 26 April to 5 May, 1999: Banjul, Gambia. available at http://wwwserver.law.wits.ac.za/humanrts/africa/comision.html (last visited July 22, 2004).
[176] See, e.g., Distr. GENERAL E/CN.4/Sub.2/1999/14 9 July 1999 COMMISSION ON HUMAN RIGHTS Sub-Commission on Prevention of Discrimination and Protection of Minorities Fifty-first session Item 5 (a) of the provisional agenda THE IMPLEMENTATION OF THE HUMAN RIGHTS OF WOMEN TRADITIONAL PRACTICES AFFECTING THE HEALTH OF WOMEN AND THE GIRL CHILD, Third report on the situation regarding the elimination of traditional practices affecting the health of women and the girl child, produced by Mrs. Halima Embarek Warzazi pursuant to Sub-Commission resolution 1998/16 available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/6210334a31396303802567cb005011c5?Opendocument (last visited July 23, 2004). See also Luswata-Kawuma supra note
[177] Id.
[178] Id.
[179] See Rebecca J. Cook, Bernard M. Dickens, and Mahmoud F. Fathalla, Reproductive Health and Human Rights: Integrating Medicine, Ethics, and Law ,Oxford: Oxford University Press, 2003 (“the historical and legal background of reproductive rights presented in this text is an essential component to anyone interested in the field; and is therefore one of the most important foundational aspects to Reproductive Health and Human Rights. While international human rights instruments—including the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)—contain provisions related directly to reproductive rights, experience has shown that it is only through detailed interpretations of these articles by the UN treaty-monitoring bodies that many states have begun to recognize their obligations. For example, in 1999 the CEDAW Committee issued General Recommendation 24: Women and Health, which expands upon Article 12 of CEDAW and obligates states to institute provisions to ensure women attain the highest possible standard of health (the recommendations specifically addressed reproductive rights). Similarly, the ICESCR Committee stated in its 2000 General Comment 14 that reproductive rights are an element of the highest attainable standard of health. Finally, the Cairo Programme of Action (1994) and the Beijing Declaration & Platform for Action (1995) more firmly established from the outset the obligation of states to include reproductive health in their mandates for attaining the highest possible standard of health for all. Part I of Reproductive Health and Human Rights explores the medical, ethical and legal principles of reproductive health. Sections include an overview of the concept of reproductive health and inherent gender differentials; the role of men in reproductive health; a statistical analysis at the prevalence of essential elements of care around the world; and different types of health care systems. The book then moves into health related ethics, emphasizing the principles of autonomy, beneficence, non-malfeasance and justice. In addition, Part I examines legal and human rights issues, including legal reform; conscientious objection and the obligation of physicians to provide care; and the legislative implementation of human rights norms. Included in these chapters is a detailed overview of international human rights instruments as they relate reproductive health, issues such as rape, female genital cutting, marriageable age, and contraception use. Cook, Dickens, and Fathalla skillfully provide the reader with a toolbox of arguments, legal precedents, and case studies, allowing anyone from attorneys to nurses to more effectively use a rights-based approach to improving women’s reproductive health. Part II applies the medical, ethical, and legal principles discussed in Part I to specific cases of reproductive rights from a variety of cultures and societies. These include sexual assault and emergency contraception; involuntary female sterilization; HIV drug research and testing; sex-selection abortion; requests for abortion; incomplete abortion; and unsafe abortion; domestic violence; and maternal death. Each case begins with a story and background on the issue at hand, including definitions, related statistics, and relevant cultural considerations. The section continues with an overview of the medical aspects of the situation documented in the respective cases, including consideration of the possibility of conscientious objection; impact on and from ethical, legal, and human rights issues and perspectives. Finally, each case explores approaches to addressing the situation: clinical duty, obligations of the health care system, action to address underlying socio-economic elements of the case, and the women’s empowerment and human rights perspectives. Part III considers international law and states’ obligations with regard to safeguarding the universal right to reproductive health. It also includes a list of states-parties to each of these treaties and other agreements, excerpts from recommendations that expand upon related mandates, and text from the World Medical Association Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects. Nearly twenty pages are devoted to reproductive health data from almost every country, with statistics reflecting contraceptive prevalence, percentage of births attended by skilled professionals, percentage of pregnant women with HIV/AIDS, and other indicators used by the United Nations Development Programme. Part III concludes with a sample application to petition a human rights body, one of the few concrete steps that individuals residing in states-parties to treaties may take to protect their own rights. Some of the material is presented repeatedly throughout the text – a fact that demonstrates the book was prepared in such a way so to provide different readers in search of particular issues ready access to the basic reproductive rights materials According to the authors, “the primary reason for writing this book is to explain these different perspectives in ways that facilitate dialogue and collaboration...in order to enhance formulation of reproductive health laws and policies, and to expand and improve the quality of reproductive health services” (3). Perhaps most importantly, this book demonstrates the pervasive dysfunction in global women’s health care systems and the ways in which this is born out of societal standards that serve more to oppress women than to empower them. “ quoting Lisa Schechtman, Graduate School of International Studies available at http://www.du.edu/gsis/hrhw/booknotes/2004/schechtman-2004b.html (last visited December 14, 2004).
[180] See, e.g., Audrey R. Chapman , Monitoring Women's Right To Health Under The International Covenant On Economic, Social And Cultural Rights, 44 American University Law Review 1157 (1995). available at http://www.law-lib.utoronto.ca/Diana/fulltext/CHAP.htm (last visited December 14, 2004).
[181] Åsne Seierstad, The Bookseller of Kabul, LITTLE, BROWN (2004).
[182] WOMEN MAKE MOVIES, Kim Longinotto, The Day I Will Never Forget (2002) available at http://www.wmm.com/catalog/pages/c604.htm
[183] Directed by Mohsen Makhmalbaf.
[184] According the public/private divide abuses against women and or family take place in the private sphere of the family, where they are tolerated and not subject to public law or protection by the state, if applicable laws exist they are enforced with laxity, if at all. See, e.g., Ute Gerhard, Debating Women’s Equality 771 (2001).
[185] Dorothy L. Hodgson, Women's Rights as Human Rights: Women in Law and Development in Africa (WiLDAF),Africa Today Volume 49, Number 2.
[186] Id.
[187] Id. citing Florence Butegwa International Human Rights Law and Practice: Implications for Women. In From Basic Needs to Basic Rights: Women's Claim to Human Rights, edited by Margaret Schuler. Washington, D.C.: Women, Law and Development International 1995.
[188] Erin L.Han, Legal And Non-Legal Responses To Concerns For Women's Rights In Countries Practicing Female Circumcision, 22 Boston College Third World Law Journal (2002) arguing that while women must certainly use law to claim their rights, also focuses on the limitations of law as a method for claiming women’s rights in traditional communities. While law certainly is a valuable and crucial instrument of social change, obviously it does not alone accomplish change. The most effective approach to eradicating harmful traditional customs and practices is one that combines legislation and work by grassroots organizations to change public opinion and provide women with opportunities for survival. Available at www.bc.edu/bc_org/avp/law/ lwsch/journals/bctwj/22_1/05_TXT.htm (last visited December 1, 2004).
[189] Uché U. Ewelukwa, Small Victories, but the War Rages On, Human Rights Dialogue 2.10 (Fall 2003): "Violence Against Women" available at http://www.cceia.org/viewMedia.php/prmTemplateID/8/prmID/1054
[190] See The World’s Women 2000 supra note at 28.