|Section 2: Citizenship and Nationality
This section analyzes the intertwined issues of citizenship and nationality. Full and equal access to public and political space is conditioned by states on citizenship status81. Citizenship creates members of a political community, and citizenship rights can be linked directly to other fundamental rights, including freedom of movement, the right to own property, the right to participate in politics and government, the right to vote, and the right to hold public office. The issue of citizenship is thus core to women’s participation in public and political life.
Central to the issue of citizenship and nationality is the question of how constitutions and national legislative systems hinder or help progress in women’s equality in the domain of public and political life. This section will analyze how constitutional and legislative guarantees of equality can affect gender equality in public and political life, highlighting good practices to end discrimination through reform within these domains. It will also analyze the interplay between international human rights and customary legal systems, with a focus on how women’s rights are impacted by these layered legal systems. Finally, this section will analyze the issue of nationality, with a focus on the issue of women with precarious citizenship status, such as refugees, asylum seekers and migrant workers, an issue that increasingly requires attention in our globalized economy.
Constitutional and Legislative Guarantees of Equality
Equal citizenship for women and men should be established in the constitution and legislation of a state. Constitutional design is a critical avenue for accommodating social cleavages and redressing power asymmetries in society, and is thus an essential component in progress towards gender equality82. Irving (2010) argues that constitutions should be analyzed for their gender-sensitivity as a ‘whole’, taking account of the social cleavages and power asymmetries that affect human rights83.
Increasingly, women’s rights issues and non-discrimination clauses are being incorporated into new constitutions or are part of constitutional reform efforts. This, in part, is a result of organized campaigning by women’s activists in the final decades of the 20th century. For example, women campaigned during the framing of the 1982 Canadian Charter; the 1991 Colombian Constitution; the 1996 South African Constitution; the 1997 Eritrean; the 2003 Rwandan; and the 2005 Iraqi, both informally and as members of the drafting bodies84. While constitutional guarantees of equality do not necessarily guarantee that these rights will be available to women in practice, the articulation of equality for women is a significant and essential foundation for the realization of women’s rights and is an indispensable expression of political will. Constitutional rights are never interpreted or implemented in a political or ideological vacuum85, which means that political, cultural and social norms may continue to impact women’s ability to access their human rights. However, having the legal and constitutional framework in place within the state is a first step towards women’s full and active participation in public and political life, as an important political, legal and educational tool.
Research suggests that there are several reasons why gender equality provisions in constitutions may matter for women’s social, economic and political status. Constitutional gender equality provisions may enhance the legitimacy of rights claims and may also be part of an ‘enabling framework’ that facilitates legal change86. Provisions for gender equality may also provide a more solid legal basis and give women’s rights activists the “tools to challenge state activity in the courts”87. Research on the U.S. Equal Rights Act suggests that equal rights provisions increase the likelihood of a favourable judicial decision regarding the assertion of women’s rights and increase the likelihood of a court applying a higher standard of law88.
There are important steps that can be taken from the outset of a constitution-drafting period to ensure that constitutions do not merely become pieces of paper89. Attention must be given to the inclusion of specific constitutional provisions for gender equality and how the constitutions can be used to bring about real change for women90. In determining specific constitutional language, the drafting process must also engage with questions regarding additional necessary provisions to be included, such as availability and accessibility of judicial review or mechanisms needed to monitor or implement the constitutional provisions.
Rather than focusing on a narrow set of ‘women’s issues’, a gender-sensitive constitution should analyze all aspects of the document from a gender perspective, questioning issues of fundamental rights, and social and economic rights91. Key attention should be paid to a number of issues. For example, in the Preamble of a Constitution, it is critical that specific references to equality between women and men should be incorporated to frame the equality priorities throughout the entire document. The Rwandan Constitution provides a model example, ensuring respect for equality, human rights and fundamental freedoms, as well as international treaties in the Preamble, and specifying equality between men and women and incorporating a prohibition of discrimination based on gender equality92.
Second, there should be general gender equality provisions, clearly defining discrimination and related to a series of other issues that should be addressed, such as direct/indirect discrimination in all fields, the recognition of intersectional discrimination, and the issue of violence against women93. For example, the South African gender equality provision stipulates the prohibition of intersectional discrimination on five grounds: gender, sex, pregnancy, marital status and sexual orientation94. Both the South African and the EU Constitutions codify the prohibition of direct and indirect discrimination95. The Kenyan Constitution explicitly prohibits all forms of discrimination including violence against women96.
Third, there should be attention in a constitution to gender equality in political and public life. For example, the Colombian Constitution states, “the authorities will guarantee the adequate and effective participation of women in decision-making levels of Public Administration”97. The Ugandan and Rwandan Constitutions have also been praised for going further to introduce concrete thresholds for female representatives in political bodies, prohibiting political discrimination against women and also institutionalizing gender quotas in political bodies98.
Fourth, there should be provisions related to the uses of international women’s human rights law, such as CEDAW, in order to make these treaties self-executing within the constitution. Both the German and the Slovenian Constitutions provide explicit provision that international law supersedes federal and local laws99.
Finally, there should be provisions related to the interpretation and implementation of constitutional guarantees, and provisions related to constitutional reform and access to justice100. The case of the recently reformed Moroccan Constitution illustrates the possibility of gender equality provisions within a constitution more broadly: it institutionalizes women’s rights by encouraging the creation of women’s rights organizations; and by giving women more legal rights, such as the right to sue for divorce and the right to maintain custody over children in the case of remarriage.
Women’s protection clauses, which are constitutional provisions that specifically grant or protect the rights of women, make an important contribution. Research on the constitutional clauses for women’s protection in both Canada and Colombia shows that while women’s protection clauses cannot be shown above all else to be the cause of improved legal protection of women, they are associated with gains in women’s rights101. In addition, many different forms of women’s protection clauses exist, each with different potential consequences, and constitutional drafters should be careful to select clauses that best serve the needs of women within the context of the country102. While women’s protection clauses may help improve women’s rights and the legal protection of women, these clauses should not be relied on as the exclusive mechanisms for promoting the legal protection of women. A combination of factors in addition to constitutional clauses, such as social support networks; enabling legislation; and access to justice measures are needed to support them.
Good Practices in Constitutional and Legislative Guarantees of Equality
Good practices exist which illustrate how a state can proactively ensure gender equality through constitutional guarantees. The Greek Constitution was revised in 2001103. Under the new article 116(2), the Constitution no longer provides for derogations from the gender equality principle. Instead, it specifically stipulates that the State is obliged to take specific positive measures for the elimination of discrimination, mainly against women, aiming at the effective implementation of the gender equality principle in all sectors104. Article 116(2) of the Constitution specifically recognises the need for the State to take measures to promote equality between men and women, particularly in the “removal of existing inequalities especially to the detriment of women”105. The gender equality principle106 is a legal norm, which covers all fields and is binding on Greek authorities.
Another example occurs in Belgium where a specific provision was inserted into article 10 of the Belgian Constitution on 21st February 2002, which affirms the principle of equality between men and women. The constitution enjoins the legislature to adopt measures, which are designed to guarantee equality, specifically fostering equal access for men and women to elective and public office107. These reforms are important because they illustrate the varied ways that constitutions might guarantee equality between the sexes based on the context of the country.
The new 2009 Constitution of Bolivia contains approximately 34 references to the rights of Bolivian women. It also contains a noteworthy catalogue of civil, political, economic, social, and cultural rights that apply to both women and men. Among the rights protected are the right to be free from every form of discrimination and to political participation108. Article 11 clarifies the goal of a participatory, representative, and community democracy.
Ecuador also adopted a new Constitution in 2008109. This Constitution contains a series of principles pertinent to equality of the sexes and non-discrimination. It also guarantees important economic, social, and cultural rights such as social security for women who do unpaid work; a reference to the care-giving economy; and the right to water. The Ecuadorian Constitution codifies the principle of parity and provides for its application in all policy-making entities and instances, such as popular elections, cabinet-level ministries, the justice system, and political parties110. The Constitution stipulates that in regards to political parties, “their organization, structure and functioning shall be democratic and shall guarantee the rotation of power, accountability, and parity membership between women and men on their governing boards.”111
The women’s civil society movement were very involved in this Ecuadorian constitutional process112, illustrating the importance of activism to pressure for the creation of a constitutional framework that supports women’s rights and non-discrimination between men and women. The Ecuadorian Constitution is particularly progressive in relation to indigenous women’s rights. When the Constituent Assembly was announced in 2007, the Kichwa Women’s Network of Chimborazo developed an agenda for equality that focused on ending violence against women and on expanding women’s participation in indigenous governance and decision-making. The women’s network participated in public consultations to call on the State to guarantee collective and indigenous cultural rights, and when the Constitution was approved in 2008, it included far-reaching recognition of both gender equality and indigenous rights, including article 171 guaranteeing women’s participation and decision-making in indigenous governance and justice systems113.
Constitutional guarantees of equality are an essential first step to establishing a domestic framework that supports women’s full and equal rights as citizens in a country, thus promoting women’s active participation in public and political life. However, the legislative system of a country also needs to support the constitution through gender-sensitive laws that promote equality and non-discrimination in public and political life. Countries in all regions have adopted a range of national action plans to address discrimination against women. For example, Peru just adopted a National Plan for Gender Equality (2012-2017) that includes measures to advance women’s political participation114.
In 2003, Bosnia and Herzegovina adopted a Gender Equality Law after years of policy pressure and advocacy from women’s civil society. The Law established an Agency for Gender Equality as the state-level gender mechanism, and one of the main roles is monitoring the implementation of the Gender Equality Law and state obligations to CEDAW. The law prohibits direct and indirect discrimination on the basis of gender and guarantees equal opportunities in the public and private sphere. The Law also promotes affirmative action and temporary special measures115.
Customary Legal Systems
Constitutions which have an override for any other system of law which does not give equality to women violates the requirement of constitutional guarantees for equality116. In many regions, and especially in Africa and the Middle East, structural impediments to gender equality are firmly embedded within the constitutional texts, containing provisions that specifically subjugate constitutional equality to religious principles or exclude family and customary law from constitutional non-discrimination117. Although many of these same constitutions articulate a commitment to gender equality, the exclusion of personal or customary law from constitutional protection can severely undermine that commitment to equality, because many issues that commonly affect women are located within the legal spheres regulated by these customary and personal legal systems.
A number of countries in the African region have retained clauses that exclude personal and customary law, including Botswana, Gambia, Kenya, Lesotho, Mauritius, Sierra Leone, Zambia and Zimbabwe. Family and customary law have a direct and indirect impact on women’s participation in public and political life. However, many sub-Saharan countries have recently introduced constitutions and legislation in which customary law is overridden by the constitution and by statutory law118. There are a number of constitutions, especially in the African region, which demonstrate good practice in addressing women’s rights within the context of plural legal systems. In Swaziland, for example, Section 28(1) of the Constitutions provides that a woman shall not be forced to undergo a custom to which she is by conscience opposed119. In Kenya, the 2010 constitution states that customary law is subordinate to the Constitution, and that it is ‘void’ if it is inconsistent with the Constitution120.
In many countries, family laws on marriage, divorce, custody and maintenance, as well as inheritance and land laws, can be subject to plural legal provisions, which can be discriminatory. This can be illustrated by the heavy reservations on CEDAW articles that pertain to family and customary law. The CEDAW Committee regrets that customary and/or religious laws that discriminate against women are allowed to persist and sometimes prevail over civil laws, which would otherwise protect women’s rights. The CEDAW Committee urges States to harmonize their civil and customary legal systems so that discrimination against women does not persist. States have begun to respond to these calls for reform. Algeria and Egypt recently lifted their reservation on article 9 on nationality and Morocco and Tunisia have recently withdrawn all of their reservations. Jordan withdrew its reservation to Article 15(4) on freedom of mobility and choice of residence. However, there remain impediments to the realization of women’s human rights as a result of customary legal systems. In the current international system, it is imperative to consider the intersection between these legal systems in order to ensure that women are able to access their cultural rights in addition to their right to equality in other domains.
The progressive reinterpretation of religious laws is a good practice to advance women’s rights. Since 2000, 13 states in northern Nigeria have formally adopted Sharia laws and penal codes, in addition to the secular laws. Under these religious laws, a number of women have been convicted of extramarital sex, which carries the death penalty. A Nigerian women’s organization, BAOBAB for Women’s Human Rights, took on the legal defense of these women and argued that the current Muslim laws are a product of a particular interpretation of religious laws and that women have been excluded from participating in the process of defining them. BOABAB has made advances in critiquing, popularizing and integrating women’s rights into religious frameworks, using religious arguments in protection of these women. As a result of this work, in all cases so far, the Sharia court of appeals have rejected the former convictions121.
There is an important role for feminist movements in family and customary legal reform. Feminist activism alone does not suffice to produce change, but feminist pressure can facilitate change and progress in women’s rights and anti-discrimination. The successful case of reform of the Moroccan “Moudawana” family code in 2004 reveals a combination of factors conducive to reform, including feminist mobilization, state allies, and a window of opportunity to undermine the religious opposition122. The new Moudawana code made significant advances for gender equality, including establishing that both spouses share the family responsibility; raising the minimum age for marriage for both men and women to age 18; limiting the terms of polygamy and divorce; and granting women more rights in the negotiation of marriage contracts. Women’s NGOs in Morocco pushed these reforms to transform the economic and social landscape, through the creation of networks to fight against gender-based violence; to advocate for the reform of the Moudawana; to campaign to raise public awareness about equality, violence, the promotion of human rights, tolerance and citizenship; and to create initiatives to boost women’s participation in public and political life.
The Equality Without Reservations campaign brings together women’s organizations from across the Middle East and North Africa region to call for the removal of reservations to CEDAW and the CEDAW-Optional Protocol. More than 600 organizations from the region and from all over the world are part of this campaign and have signed the Rabat Call for Support, which calls on states to remove their reservations to CEDAW and to harmonize their national legislation with their CEDAW obligations123. The global Musawah initiative for equality and justice in the Muslim family is another civil society campaign that calls for reforms to discriminatory family laws and practices, some of which impact women’s participation in public and political life. Musawah reclaims and promotes the Islamic principles of justice, non-discrimination, equality and human dignity, to advance women’s rights in Muslim contexts in private and public life124.
International human rights law imposes an obligation on States to bestow equal citizenship on both men and women, and to guarantee women’s equal right with men, both as regards acquisition of citizenship and as regards exercise of citizenship rights in the public and political spheres125. In some countries, there exists discriminatory legislation around nationality rights and the right to confer nationality on spouses or children. For example, a number of African constitutions, in Nigeria, Zambia, Ghana and Swaziland, specify that citizenship be determined by the nationality of the father alone126.
There have also been a number of good practices in changing domestic legal systems to ensure equal eligibility to acquire nationality and to confer one’s own nationality on others. For example, the case of Botswana v. Unity Dow (1992) was the first court ruling in southern Africa based on the unconstitutionality of sex discrimination in the transfer of nationality to one’s children. Other countries, such as Mozambique, Eritrea, and Kenya, now explicitly specify that either the mother or father can pass citizenship to children127. In 2007, Morocco reformed the Nationality Code allowing Moroccan women to pass their nationality on to their children. While laws specifying the nationality of children have increasingly received attention within domestic contexts, women continue to be discriminated against in their citizenship rights by the unequal treatment of male foreign spouses as compared to the treatment of female foreign spouses.
The situation of migrant women and the general protection of their human rights is an increasing challenge in the present day, where economic globalization has led to increases in cross-border migration. Migrant workers can face difficult working conditions and discrimination based on their gender and their migrant status. For example, in 2011, the CEDAW Committee expressed concern with a policy in Israel that migrant workers who give birth must leave the country with their babies within three months of giving birth or send their babies out of the country so as to safeguard the woman’s work permit128.
The issue of women as asylum seekers or as refugees is also an important component for consideration. Refugee and asylum claims of women may be differently determined than those of men. Even where policy and legislation dealing specifically with women refugees and asylum seekers does exist, it may not actually address some major gendered insecurities129. Despite the fact that there are as many women as men in global refugee populations, fewer women than men reach developed countries as asylum seekers, indicating that women may face different obstacles from men in seeking asylum. One of the major problems women may experience is that their claims are not equally recognized within the remit of international and national conventions granting refugee and asylum status130. It has been argued, that “it is men who have been considered the principal agents of political resistance and therefore the legitimate beneficiaries of protection from resulting persecution”131. The international asylum standard is largely based on men’s political activity, which may be different from women’s political roles, as women may participate more ‘indirectly’ in political activity. The institutions and authorities that decide on asylum claims may not recognize these alternative political activities132. In addition, gender-specific forms of persecution such as FGM/C or forced marriage are often not recognized as justification for asylum.
While feminist advocacy has actively pushed norms around refugee and asylum claims at the international level and within UNHCR, these norms have rarely translated into the national context in order to support women’s rights. The transfer of these norms has especially been uneven concerning the recognition of gender-specific persecution and the protection of female asylum seekers and refugees133. Few countries have officially integrated such gender-sensitive directives into their legislation on asylum, but the first country to integrate gender guidelines into their national asylum policies and legislation was Canada. In 1993, the Canadian Immigration and Refugee Board issued Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. These guidelines affirmed that the definition of a refugee should be interpreted so as to protect women who demonstrate a well-founded fear of gender-related persecution, and sought to provide principles that would lead those making decisions on asylum claims to more fully account for the particularities of women’s experiences of persecution134. Following this legislative change in Canada, similar policies were adopted in the USA and Australia. Of note, the Australian, New Zealand and Canadian governments administer a program called ‘Women at Risk’, which identifies women and their dependent children abroad and offers a separate visa category for them. The Canadian program works with UNHCR to identify and process women for humanitarian resettlement135.