Women’s Rights in African Constitutions: a Desideratum or a Mere Feminist Utopian Agenda?

Women’s Rights in African Constitutions a Desideratum or a Mere Feminist Utopian Agenda

Chapter One of Women’s Rights in African Constitutions a Desideratum or a Mere Feminist Utopian Agenda

 INTRODUCTION

Background of the Study

It would appear correct to say that the subject of women’s rights is one of the most contentious and seemingly nebulous aspects of human rights jurisprudence. The struggle for the recognition and enforcement of women’s rights spans through centuries and global borders; yet a lot of nations of the world still have reservations about the subject while others have not ratified some of the core Conventions. The issue of women’s rights has grown amidst thistles and thorns and a lot of international, regional, sub-regional and national instruments have been developed through the years. These instruments severally place specific obligations on State parties to take legislative and other measures to ensure that women’s rights are protected and enforced.[3]Africa is one region of the world whose slow development has attracted a lot of concerns from the United Nations and other developed countries due to her peculiar pedigree.[4]Although Africa may be seen as a late comer in the formation of a regional instrument for the protection of human rights,[5] she has a reputation for having a unique Charter which addresses individual rights, people’s rights among other features that are not in other instruments and above all for having a charter that reflects African values.[6]The need to specifically enumerate and ensure the protection of women’s rights led to the adoption of a special Protocol to the African Charter on women’s rights.[7]A notable feature of the Women’s Protocol is that in Article 2(1)(a) parties are mandated inter alia to “include in their national constitutions and other legislative measures if not already done, the principle of equality between women and men and ensure its effective application.” There has been series of agitations from women about the need to catalogue the rights of women in Constitutions of African countries.[8]Some African Countries have actually taken commendable steps in enumerating some women’s rights in their constitutions while others are yet to do so.[9] The failure of some countries to articulate the rights of women in their constitutions and the heavy reservations raised by some African Countries on the rights of women actually call for a rethink on the chances of attaining the philosophy behind the rights of women in Africa.[10]Beyond the idea of integrating the rights of women in constitutions is the question of acceptability of some of the rights to the African people and women themselves. Thus, the question of universalism of human rights and the question that some rights are culturally relative still struggle for ascendancy.[11] Irrespective of the conceptions, theories and idiosyncrasies, one fact remains sacrosanct and widely accepted, which is, that the cries of women in Africa for their rights are quite alarming[12] and several efforts have been made to address these issues[13], even though the efforts may not be commensurate with the cries. The challenges may be daunting but there are still a lot of prospects.[14] While a lot of approaches have been adopted by the stakeholders, there is still a yawning gap between dreams of realization of women’s rights and the fulfillment. It is therefore expedient to balance the cries for women’s rights with the concerns of other stakeholders in order to arrive at a concrete set of rights that will stand the test of time.[15]Other core stake holders, such as the African Union, National governments, religious leaders, traditional rulers and family heads need to be enlightened about agreeable core rights of women in Africa and such rights should form part of the Constitutions of African states.[16]

Statement of Research Problem     

In spite of the general Constitutional provisions on freedom from discrimination on basis of sex and gender equality, among other rights; there is a recurrent clamour, especially from women, for the need to specifically enumerate and provide for the enforcement of the rights of women in African National Constitutions.[17] The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa requires state parties to include in national constitutions, make legislations and take appropriate measures for the full realization of women’s rights stated in the protocol.[18]Regrettably, women’s rights are yet to be enumerated in Constitutions of most African Countries, neither are there specific provisions for the enforcement of these rights in the Constitutions or specific National legislations. Writings on women’s rights have not separated issues of women’s rights from the general feminist agenda; which creates reluctance from other stakeholders, to balance women’s rights with the rights and concerns of other stakeholders and to address peculiar legal and factual circumstances of the African women. The constitution is seen as the grundnorm in most African States and rights that are not enumerated in constitutions are not usually given sufficient respect.[19]

Thus, the central statement in this thesis is that, given the peculiar problems of women in Africa, enumeration and provision for enforcement of their rights in constitutions of African States is a necessity, but it must be balanced with the concerns of other stakeholders.

Research Questions

1. What is the rationale behind differentiating Women’s Rights from general provisions on human rights available to everyone?
2. What are the obstacles to the constitutional enumeration and provision for enforcement of women’s rights in Africa?

iii..   How can the African Union, National Governments, Women organizations and other stakeholders solve the legal comatose involving women’s rights without twisting the neck of other beneficiaries of human rights?

1. Are women the architects or contributories of their own misfortune or complete victims of masculine idiosyncrasies and high handedness?
2. Do precedents of the rights of women in other world regions fit into the African women context and is it a question of wanting “to be like other nations” when they have a peculiar pedigree?
3. What core rights of women should be integrated in Constitutions of African Countries?