Study on discrimination against women in law and in practice in political and public life, including during times of political transitions Consultant Souad Abdennebi-Abderrahim



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Study on discrimination against women in law and in practice in political and public life, including during times of political transitions

Consultant
Souad Abdennebi-Abderrahim

Consultancy for the mandate of the Working Group on the issue of discrimination against women in law and in practice

The objective of this study is to present the state of discrimination against women in law and in practice in political and public life, including during times of political transitions in Africa.


The study examines the main advances, challenges and best practices since 1980, when the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) entered into force. It provides in particular a general overview of women’s political participation in the continent, focusing notably on women’s political participation during times of political transition showing the main advances, challenges, best practices and highlighting the increasing backlash against women rights which is happening in some countries.
The methodology adopted for this study comprised mainly desk review of Human Rights Mechanisms and United Nations documents, and other sources including NGOs as well as States’ responses to the questionnaire sent by the Working Group and other information submitted to the Working Group.
The paper is divided into five sections:


  • The first section provides a contextual background within which gender equality and women’s empowerment are pursued with a review of the international, continental and regional normative framework on gender equality and major trends in the past three decades;




  • Section two highlights the achievements in eliminating laws which directly or indirectly discriminate against women in political and public life in the past three decades;




  • Section three looks at implementation of laws on equality and non-discrimination and women’s human rights and the effectiveness of equality laws and reforms;




  • Section four examines women’s political participation in countries in transition;




  • And the last section presents conclusions and recommendations for consolidating gender equality through equal political representation.


Table of Contents

IV. Implementation of laws on equality and non-discrimination and women’s human rights...30


V. General conclusions and recommendations………………………………………………..44



  1. Introduction

It is important to acknowledge that efforts to promote gender equality in Africa have progressed over the past 30 years. This impetus has been facilitated by the various instruments endorsed by member States in a number of commitments and declarations that include the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), known as the women’s international bill of rights, the International Covenant on Political and civil rights (ICCPR), the Protocol to the African Charter on Human and People’s Rights (ACHPR) on the Rights of Women in Africa, the Program of Action of the International Conference on Population and Development (ICPD), the Beijing Platform for Action (BPFA) and the Millennium Development Goals (MDGs).


51 of the 54 African member States have ratified the CEDAW and 24 its Optional Protocol, which provides a mechanism for reporting State violations. Some countries have moved to a step further and aligned their constitution and national legislation to the provisions in CEDAW. Further, most member States have established institutional mechanisms for addressing gender equality and women’s empowerment. More importantly, some governments are increasingly integrating the question of gender in national budgets, and this has triggered more transparency and gender responsiveness in public expenditures. However, passing laws and policies alone does not ensure substantive gender equality or even equity and respect for women’s human rights. Inequality remains a reality in several sectors such as politics, economic and social areas.
In spite of political, societal, cultural, economic, and psychological barriers, African women are finding ways to overcome challenges and participate in the political life of their societies in several countries. Interestingly, the largest number of women in decisions making positions are from countries that have recently experienced armed conflict. Rwanda, Burundi, Mozambique and Uganda continue to demonstrate statistically significant improvement in overall governance quality over the past five years. The successful candidacy of Africa's first female elected president, Ellen Johnson Sirleaf, followed by the election of Mrs. Joyce Hilda Banda  who is the first female President of Malawi since 7 April 2012 show that things are changing in Africa.
However, African countries have not all achieved a same level of progress in terms of Gender equality. Africa is not a homogeneous region and there is no single archetype for African women. If several countries from East and Southern Africa have recorded big progress in this area, countries in North, West and Central regions of the continent are far behind..
The North African countries where political changes has occurred early in 2011, and which have made some progress in the field of women’s rights are at risk of regression ,such as Egypt, Libya, and in particular Tunisia, a pioneer in the field of women's rights from its independence in 1956. These countries are now experiencing serious violations of women's rights in spite of a long period of activism and struggle for gender equality. The change occurred in the Arab region commonly named the Arab Spring threatens to become a cold winter for women's rights and human rights violations may spread in many other countries as already seen in Mali. Gender activists, human rights defenders and international organizations are called upon to support and assist women to enable them to move forward and fully exercise their human rights as recognized by international instruments.


  1. Overview of the participation of women in political and public life in the region




  1. Contextual analysis

This section examines Africa’s political and institutional context that impacts effectiveness of women’s political rights.


Political liberalization
Before analyzing the situation of women's political participation in Africa and efforts to eliminate discrimination against African women, it is important to review the progress made ​​in terms of political governance at regional level since the independence up till today. Before the mid-1980s, African political systems were dominated by authoritarian regimes. After 1989, Africa witnessed a sudden resurgence of liberalization and competitive multiparty democracy has been adopted in many countries such as, Algeria, Benin, Botswana, Cape Verde, Ghana, Malawi, Mali, Mauritius, Mozambique, South Africa, Tanzania, Zambia etc... The scope of political representation has widened through various structures like regional and local governments and representative assemblies. Today, many African countries have a multiparty democracy with varying degrees of stability, acceptance and legitimacy. The culture of political authoritarianism manifested in military dictatorships and one-party systems dominant in many African countries has in the last three decades gradually given way to democratic systems and several countries have embarked on constitutional reviews to promote a culture of adherence to rule of law, due process and political accountability such as Ethiopia, South Africa and Uganda. Tanzania has amended its constitution six times since the dawn of its multiparty democracy. (UNECA Africa Governance Report 1).
The shift from one political party to multiparty, and in some cases from military to civilian rule, created favorable conditions for greater participation of women in public life, and even to aspire to positions of national leadership. Thus, in December 1997, Charity Ngilu and Wangari Maathai ran for the presidency of Kenya and became the first ever female presidential candidates of the country. Despite their failure, these women have set a precedent in their country1.

Even if access to political space has been gradually less limited for African women, challenges in terms of political governance remain in many countries. The democratic process is often fragile, uneven and remains weak. Virtually most of national constitutions in Africa recognize human rights and prohibit discrimination on the basis of gender, ethnic, religious, racial or geographical diversity. However, poverty, low literacy, the gap between urban and rural areas and other factors like customs, culture and the patriarchal gender system, are hampering the full exercise of citizenship and political integration.


Proliferation of NGOs and related implications
The positive shift in attitude toward democratic change of government had a good impact on women’s rights reforms. Several women’s association emerged in the 1990s, and served as catalysts for many of the constitutional and legal challenges. NGO activism has helped to popularize and legitimize gender issues and put them on the agendas of political leaders, parliamentarians and human rights activists. “These movements had new priorities, new leaders, and new sources of funding independent of state patronage networks, which older women’s organizations had depended on to a greater extent. The democratizing trends allowed women’s organizations greater room to maneuver.”2 These organizations had an important role in raising people and politicians of awareness on gender equality, but they showed less ability to form a "hegemonic bloc" in civil society against well-mobilized and well organized conservative movements3. Indeed, in many countries, conservatives and religious leaders have influenced public discourse on gender issues and affected the adoption and implementation of women’s human rights. Conservative women’s groups are created to oppose measures to promote women’s rights within the family and the community, using messages that exaggerate the class and cultural differences between women such as in Mali in 2010 where an estimated fifty thousand Malian men and women demonstrated against a new Family Code on the grounds that it is against religion and culture and recently in Egypt, Tunisia, Morocco and Libya and other Sub-Saharan countries with the resurgence of religious fundamentalists.
The Beijing Platform for Action
The Beijing Platform for Action (BPFA) adopted by governments at the Fourth World Conference on Women in 1995 played a major role in improving African women representation in politics, thanks to the monitoring and evaluation system established at international, regional and sub-regional levels. Sharing experiences and best practices has created emulation among countries.
Conflicts and peace processes
Africa has been affected during the last three decades by several armed conflicts and coup d’états (Algeria, Angola, Burundi, Central African Republic, Chad, Democratic Republic of Congo (DRC), Republic of Congo, Côte d’Ivoire, Djibouti, Eritrea, Ethiopia, Ghana, Guinea, Guinea-Bissau, Liberia, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Sudan and Uganda.)
Recently in 2011, a series of pro-democracy movements known as the Arab Spring or Arab Awakening swept the Middle East and North Africa. By the end of 2011, regimes had been toppled in Tunisia, Egypt, Libya  and Mali. Nevertheless, the Malian case is different from the other countries cited above. In fact, while the Arab leaders targeted by the popular uprisings against them throughout 2011 were autocratic and despots like Gadhafi, Ben Ali of Mubarak, Malian President Touré was democratically elected. The resurgence of conflict and social upheavals in some countries and their impact on women’s human rights must be considered, since this could abolish all progress on gender equality.
All these civil conflicts have destroyed economies, societies and institutions, creating a large measure of dislocation, loss of life, crippling disability, loss of property and widespread human insecurity for the majority of people particularly women and children.
Other human development challenges: the attainment of the MDGs in Africa
African countries are still affected by a range of social and economic issues, with an important impact on the exercise of women’s rights in public and political life. The continent continue to face many social development challenges including chronic poverty, poor health status, inequitable access to education, unemployment, gender inequalities and increased number of excluded and vulnerable people. According to the Global Gender Gap Report of 2012 Sub-Saharan Africa has the lowest score in education sector.
Despite the economic progress observed in the continent during the past decade, African countries are experiencing significant development challenges related to insufficient economies and poor social inclusion—arguably one of the key issues that sparked social unrest and political change in Egypt and Tunisia earlier in 2011. Economic growth has been limited to some sectors and its fruits unevenly distributed among the population
The feminization of HIV and AIDS pandemic and the high maternal mortality rates observed in the continent pose major threats to the attainment of gender equality and women’s empowerment. The vulnerability of women and girls to HIV remains particularly high in Sub-Saharan Africa; more than 76% of all HIV-positive women in the world live in the region. In most of Sub-Saharan Africa countries, the majority of people living with HIV are women, especially girls and women aged 15-24. In South Africa, HIV prevalence among women aged 20-24 is approximately 21%, compared to 7% among men in the same age range.4
Regional and sub-regional initiatives
The African Union (AU) and its institutions, particularly the Directorate for Women, Gender and Development and the Women and Gender Sectorial Cluster Committee5, has boosted the issue of gender equality and provided commitments that national mechanisms can pursue. In 2003, the AU adopted, the Women’s Rights Protocol, which offers significant potential for ensuring the rights of women by setting norms and standards for promoting and protecting women’s rights on the continent.
Furthermore, the AU Solemn Declaration on Gender Equality in Africa (SDGEA), adopted by the AU Assembly of Heads of State and Government in Addis Ababa, Ethiopia, in July 2004, was a critical milestone. This Declaration contributes to strength the African ownership in terms of gender equality agenda and keeps the issues alive at the highest political level in Africa. By adopting Solemn Declaration, countries undertake themselves to report annually to the Chairperson of the AU Commission on their progress towards gender equality and gender mainstreaming at national level. The African Union Women’s Decade, 2010 – 2020, offers another means of holding national mechanisms to account. These initiatives cited above have recently been strengthened by the appointment in July 2012 of Mrs. Dlamini-Zuma from South Africa as first Women President of the African Union
The establishment of the New Partnership for Africa’s Development (NEPAD) is another notable initiative. NEPAD is a program adopted by the Assembly of Heads of State and Government of the AU in 2001. It provides an overarching policy framework and vision for Africa’s economic and political agenda. The advancement of women’s role in social and economic development through education and training, income generation, facilitating credit and ‘assuring their participation in the political and economic life are included in NEPAD’s agenda (paragraph 49).
The African Peer Review Mechanism (APRM)
The African Peer Review Mechanism (APRM), established through NEPAD program provides a framework addressing gender inequality in the continent. By mid-2011, 30 of Africa’s 54 states had acceded, and 14 had successfully been through their first review.6 With some variations across countries, the APRM has provided a platform for non-state actors to engage on governance and policy issues, including gender equality and discrimination against women. A number of controversial issues on women’s rights have been addressed, including access to land, political participation of women in public life, harmful cultural practices, violence against women, affirmative action, and gender mainstreaming.7 Policy reforms around governance and economic development have been adopted in many African countries as a direct result of recommendations made by the APRM experts. For instance, and following the APRM recommendations, Algeria has adopted affirmative action to increase political participation of women8.
National gender equality mechanisms
According to the ECA’s Fifteen-year Review Report of the implementation of the Beijing Platform for Action in Africa (BPfA+15)9, most of African countries have established institutional mechanisms for the advancement of women, and initiated strategies and policies in order to promote women’s status and notably women's political participation. However, these countries face several constraints to the operation of their respective mechanisms such as :
• Inadequate financial and human resources;

• Negative attitudes and perceptions which lead to resistance to gender and development

issues;

• Lack of appreciation of the gender’s concept by a cross section of the population;



• Inadequate gender-disaggregated data;

• Inadequate capacity for accounting gender-mainstreaming activities;

• Lack of effective monitoring and evaluation systems and tools in place to follow up properly on implementation; and absence of national policies that deal with equality between men and women.


  1. Overview of the human rights framework in the region

This section provides an overview of some commitments that African countries have made with respect to women’s human rights at the regional and international levels. Specific attention is given to CEDAW and the Protocol on the Rights of Women in Africa.



The principle of equal rights between men and women is also affirmed in the charter of the United Nations, as well as in the Universal Declaration on Human Rights. This principle has also been reaffirmed by Article 2 common to the Covenant on Civil and Political Rights (CCPR) and to the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The CEDAW guarantees specific rights to women, establishes obligations for States or responsibilities attached to these rights and creates mechanisms to monitor the compliance of States actions with their obligations, namely the Committee for the Elimination of Discrimination against Women (CEDAW Committee). In CEDAW Convention, discrimination is considered as a significant constraint to economic growth and prosperity, and States parties are urged to take appropriate steps towards modifying the orientations and patterns of socio-cultural behavior in the gender context in order to eliminate traditional prejudices. In addition, the Convention combines de jure and de facto equality, and emphasizes the need to take special provisional measures towards the attainment of that objective.
The Convention sets out specific areas where States must ensure that women do not suffer from discrimination. These areas include: participation in public life,, nationality, education, employment, healthcare, economic and social life, and equality before the law and marriage.
The African region has adhered entirely to the Convention except three countries, Somalia, Sudan and South Sudan. As of September 2012, 51 of the 54 African countries are parties to the Convention ten of them, most of the North Africa region have made reservations to the Convention (Algeria, Egypt, Lesotho, Libya, Mauritania, Malawi, Mauritius, Morocco, Niger, and Tunisia.) These countries justify their reservations due to incompatibility of the provisions with religious and customary practices. However after discussion and dialogue with the CEDAW Committee‘s members and regional and national pressures of women’s movements, some of these countries have withdrawn all their reservations such Malawi and Mauritius during the 1990’s and Morocco and Tunisia recently. Algeria and Egypt lifted their reservation on article 9 on nationality and Libya replaced in 1995 its General Declaration by specific reservations on article 2, 16(1) (c) and 16 (d).
CEDAW Articles 3, 4, 7, and 8, and General Recommendations 28, 25, 23 of the CEDAW Committee.
The issue of women political participation has been substantively addressed by the Convention. Articles 7 and 8 of CEDAW explicitly cover the right of women to non-discrimination in a country’s public and political spheres, as well as their right to equality with men with regard to the following: the right to vote; the right to be eligible for election to all publicly elected bodies; the right to participate in the formulation of government policy and its implementation; the right to hold public office and to perform all public functions at all levels of government; the right to participate in non-governmental organizations (NGOs) and associations concerned with the public and political life of the country; and the right to represent the national government at the international level and to participate in the work of international organizations. In addition, the preamble of the Convention links the ‘full and complete development of a country, the welfare of the world and the cause of peace’ with the need for the ‘maximum participation of women on equal terms with men in all fields’, implicitly including the public and political aspects.
In order to fully understand Articles 7 and 8, one must read them in conjunction with Articles (1–5). These contain obligations with respect to conduct and results for States parties as regards their actions (legislation, policies and programs) to empower women and engender cultural change. Thus, States parties are obliged: to eliminate direct and indirect discrimination; to implement the concepts of both formal equality and substantive or de facto equality; to embody the principles of equality and non-discrimination in their constitutions and laws; to pursue the realization of these principles in practice by taking appropriate measures against persons, organizations and enterprises that discriminate against women; and to protect women from discrimination both through legal proscriptions, including sanctions, and competent national tribunals and other public institutions; to act without delay (and without considering financial resources); to undertake all appropriate measures to ensure the full development and advancement of women in all fields; and to modify and eliminate social and cultural patterns based on prejudice, customary and traditional practices, sex-role stereotypes and the alleged inferiority or superiority of either of the sexes.
The concept of substantive equality takes into account the facts concerning, and the consequences of, biological differences between women and men, as well as socially constructed differences as regards the roles and tasks that have been ascribed to them; Substantive equality allows for non-identical treatment of women (as compared to men) both for reasons of protection (maternity functions) and correction (acceleration of the achievement of de facto equality). Such action, according to Article 4 of CEDAW, is not discriminatory. To ensure gender equality, women must benefit not only equal rights but also equal opportunities. These issues must be kept in mind when trying to achieve substantive equality with men in public and political life.
General Recommendations of the CEDAW Committee
General Recommendations 5, 8, 23, 25 and 28 of the CEDAW Committee are very important for the discussion on quota systems to increase the participation of women in public and political life
General Recommendations 5 and 8 of 1988 addressed the issue of temporary special measures, including quota systems and general recommendation 23 of 1997 on women in political and public life, explicitly deals with Articles 7 and 8. It lists a number of requirements and obligations that States parties have to fulfill.

The general recommendation 25 of 2004 concerning Article 4 (1) on temporary special measures is very important to the appliance of quota systems. This article affirms that temporary special measures are not discriminatory when their application is aimed at accelerating the attainment of de facto equality between women and men. General Recommendation 25 explains the meaning of this definition in the context of the Convention as a whole and provides an in-depth analysis of the justification for applying Article 4 (1), as well as when and how to do so. Article 4 (1) must be read in conjunction with the Convention’s Articles 1, 2, 3, 5 and its application must be considered in relation to all of those other articles, including Articles 7 and 8, which state that States parties ‘shall take all appropriate measures’; contends that states parties, as a consequence, are obliged to adopt and implement temporary special measures in relation to any of these articles, if such measures can be shown to be necessary and appropriate in order to accelerate the achievement of substantive equality for women; underlines the fact that temporary special measures are ’temporary’. The ‘measures’ include a variety of legislative, executive, administrative and other regulatory instruments, policies and practices, such as: outreach and support programs; allocation and/or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion and highlights various aspects of those processes that states parties will have to go through when applying temporary special measures, including quotas.


The last General recommendation no. 28 of October 2010 clarifies that 'discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity. It highlights that States have to condemn 'all forms of discrimination, including forms that are not explicitly mentioned in the Convention or that may be emerging' and elaborates on the State obligation to adopt policies to this end. In this regard, the general recommendation calls on States to devote resources 'to ensuring that human rights and women's non-governmental organizations are well-informed, adequately consulted and generally able to play an active role in the initial and subsequent development of the policy.' Furthermore, it acknowledges the important role of civil society in the development of State policies for the elimination of discrimination against women.
Optional Protocol to CEDAW
With the view to reinforce the implementation of CEDAW, the United Nations General Assembly adopted the Optional Protocol to CEDAW on 6 October 1996. The Protocol entered into force on 22 December 2000. As of 28 November 2012 twenty four African countries acceded to the CEDAW Protocol 10
UN Resolution 1325

Another global tool which can be used to impulse women political participation, is the UN Resolution 1325 which is the result of women’s organizations activism in the area of women, peace and security, rather than from member States directly. United Nations Security Council Resolution 1325 on women, peace and security, adopted in October 2000 emphasizes the critical importance of women’s participation in national institutions for the prevention, management and resolution of conflict. It enjoins governments, the UN and parties in conflict to adopt a gender sensitive approach to peace processes and to develop special mechanisms to protect the human rights of women and girls in conflict situations11.


However, despite the great importance of this tool, the Final Report to the United Nations Department of Peacekeeping Operations, Department of Field Support "Ten-year Impact Study on Implementation of UN Security Council Resolution 1325 (2000) on Women, Peace and Security in Peacekeeping, reveals that very modest progress have been achieved to date in this area. Peacekeeping missions have observed a limited participation of women in peace negotiations and agreements (i.e. The peace negotiation on Darfur and Cote d’Ivoire conflicts). The peace talks on the conflict in DRC have experienced an evolution in the participation of women. The 2009 March Peace Agreement included three women out of 14 members of its executive branch and 22 women out of 66 members of the subsidiary organ. This is a huge improvement on the involvement of women compared to the 2008 Goma Agreement which included only 1 woman out of 49 members of its executive board.12 In addition, very few countries (such as Cote d’Ivoire, Liberia, Uganda and Sierra Leone) have adopted national action plan to implement the SCR 1325.
Instruments adopted at Regional Level
The African Union (AU) developed norms, guidelines and standards for women’s empowerment and gender mainstreaming. Gender equality principles are enshrined in the Constitutive Act of the AU, the AU Protocol on women’s rights, the Solemn Declaration on Gender Equality in Africa, and the Charter on Democracy, Elections and Governance.
The Protocol to the African Charter on Human and Peoples' Rights on the rights of Women in Africa was adopted in Mozambique on July 11, 2003 It went into effect in November 2005 after 15 of the 54 African Union Member States ratified it. It is indeed a positive step towards combating discrimination and violence against women and significant in the efforts to promote and ensure respect for the rights of African Women.


The protocol among others requires African States to eliminate all forms of discrimination and violence against women in Africa, and to promote equality between men and women. Member States are obliged to integrate a gender perspective in their policy decisions, legislation, development plans and activities, and to ensure the overall well-being of women.13

The Protocol endorses affirmative action to promote the equal participation of women, including equal representation of women in elected office, and calls for the equal representation of women in the judiciary and law enforcement agencies.14 Articulating a right to peace, the Protocol recognizes the right of women to participate in the promotion and maintenance of peace. 

Article 9 on the Right to Participation in the Political and Decision-Making Process requires States Parties to ensure increased and effective representation of women at all levels of decision-making.15


It’s important to note that there are some contentious issues in the African Protocol which have brought about its opposition; the article on reproductive health, especially on legalization of abortion, which is mainly opposed by Christians and Muslims, the provisions on female genital mutilation, monogamous marriages, minimum age of marriage, equality before, during and after marriage and property right to land16. Out of the 54 African Union Member states, 47 have so far signed the Protocol and as of September 2012, 34 countries have ratified it. Three Countries have neither signed nor ratified the Maputo Protocol.17

The African Charter on Democracy, Elections and Governance
Adopted in 2007, the Charter is seen as the most comprehensive commitment by the AU to consolidate democratic governance in the continent. Forty one member states have signed the Charter, and as of July 2012 only 17 ( Benin, Burkina-Faso, Cameroon, Chad, Ethiopia, Ghana, Guinea Bissau, Guinea, Lesotho, Mauritania, Nigeria, Niger, Rwanda, South Africa Sierra Leone, Togo and Zambia ) have ratified it. The Charter entered into force on 15 February 201218
The Charter provides an important reference points on problems of democracy and governance in the continent. It deals among others with issues of women in policy and decision making processes. It can be a useful engagement tool for CSOs and women’s rights defenders to push for compliance by member states, and for discussion of the underlying principles.19
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