Navigating the gap between public and private law

There exists elaborate framework of international treaties, conventions and other documents for the protection and promotion of the human rights of women to which Southern African governments are party to. However, the instruments are not self-enforcing and unless they are translated into meaningful rights for individuals at the national level, they do not have any positive impact on women’s lives.

 

In most Southern African Development community (SADC) countries, the primary source of human rights is the bill of rights in the constitution, where such exists. In those SADC countries with written constitutions, gender discrimination is outlawed, with South Africa, Namibia and Malawi having the most advanced provisions. In many cases however, the same constitutional provisions that guarantee gender equality allow “derogations” or exceptions in the so-called “private law” areas of customary law, personal law and family law.

 

For example, the Zambian Constitution was amended in 1996 to include sex as one of the grounds on which discrimination is outlawed, but it exempts discrimination arising from family law and customary law. The Botswana Constitution contains a similar provision, despite a 1991 Court of Appeal decision that states that gender-based discrimination is prohibited by the Constitution. Clearly, these definitions of discrimination do not comply with that contained in the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), and it would appear that the constitutions seek to protect customary laws and other culturally specific practices. But the CEDAW definition of discrimination is quite unequivocal in stating that the social and cultural fields are included in the areas where discrimination is prohibited.

 

This dichotomy between public and private law, and the assumption that the state will only recognise rights in the “public” sphere, and not interfere in the ‘private’ sphere has far reaching consequences for women in particular. For it is precisely in the so-called “private law” area of customary law and family law that most provisions that discriminate against women and children are to be found, and serious violations of the human rights of women occur.

 

An example from Zimbabwe demonstrates this. The Legal Age of Majority Act has since 1982 conferred full legal capacity on all persons above the age of 18 years. This means that in theory, women have the same rights to inherit, be guardians of their children and sue and be sued in their own right. However, in what is clearly a major setback for women’s rights, the Zimbabwe Supreme Court ruled in April 1999 that a daughter, who had been evicted from her deceased father’s house by a half brother, could not have the same inheritance rights as her brother. According to the court, “African culture” is quite clear that women and men are not equal, especially within the family. This ruling is despite the Constitution of Zimbabwe’s provision on gender equality and the countries’ ratification of CEDAW and instruments.

 

Some SADC member states have instituted legal reforms making provision for equality between women and men in law and in practice. Amendments of criminal laws to increase penalties for sexual offences have been made in some countries, and in the field of civil law, legislation giving women equal rights in marriage has been enacted and strengthened. In others, reviews of gender discriminatory laws are being conducted, with a view to proposing amendments. In almost all countries in the region, NGOs conduct training programmes on women’s human and legal rights, and provide free legal services for women who cannot afford to pay legal fees. 

 

In spite of these commendable efforts by SADC member states, a number of critical challenges remain. With respect to international and regional instruments, countries need to take four related and interdependent steps in order to deliver human rights from the international and regional levels to women at the national level. These steps are adoption, dissemination, incorporation and enforcement.

 

In some cases, member states do not adopt these instruments, by delaying signature, accession and ratification. Others adopt the instruments but fail to incorporate them into their domestic laws, or to disseminate and enforce them. Without such action, the human rights contained in such instruments have no meaning and make no difference to the lives of women.

 

At the national level, the major challenge facing most member states is the slow pace at which laws, policies and plans are being translated into concrete programmes that will benefit ordinary women. In particular, there is a need to bring customary laws which undermine women’s rights into line with constitutional provisions which guarantee gender equality.

 

This can be done in an innovative manner through public consultation and education, without necessarily dispensing with benign, ceremonial practices which are valued from a cultural point of view. In some cases, such as where customary laws have both positive and negative effects on women, they can be modified or regulated through legislation and social engineering.

 

An example in point is the practice of lobola or bogadi, which may have negative consequences in so far as it appears to commodify women, or imply male control over women’s reproductive rights. However, it is also seen as a token of appreciation from the family of the husband, and as a type of insurance for the woman in case she is compelled to return to her people when the marriage collapses. The solution in such a case could be not to abolish the institution entirely, but instead standardise and regulate the amounts to be paid. The state could also legislate to the effect that such transfer has no legal consequences on the validity of the marriage, and does not confer any control by the husband and his family over the wife’s reproductive capacity and rights.

 

In conclusion, a proactive approach towards harmonising the status of women under customary law with their rights as guaranteed under the constitutions and laws of SADC member states is without doubt a necessary pre-requisite for giving meaningful content to women’s human rights.