Global Report for the Working Group on the issue of discrimination against women in law and in practice
Megan Alexandra Dersnah
This report highlights and synthesizes information on the issue of discrimination against women in law and in practice, within the realm of political and public life. It examines issues of women’s equality and empowerment in relation to their status as full and equal citizens in different political systems, and with different national, regional, global contexts. It explores new developments and trends in women’s political participation, in terms of representation, participation and influencing the agenda. The report also highlights new political arenas for women’s political empowerment, such as ICTs and the use of the Internet. The report has a special focus on the way women’s public and political life is impacted during times of political transition with analysis of the opportunities and challenges that transitions present for empowering women.
The 1997 CEDAW general recommendation on public and political life focused on three rights for women: the right to vote and to be eligible for election; the right to participate in policy formulation and implementation; and the right to participate in non-governmental organizations and associations concerned with public and political life1. More than a decade later, new understandings of public and political life are emerging based on new ways of thinking about discrimination, gender, public life and political participation. In times of political turmoil and transition, for example, concepts such as political settlement, state-building, inclusive democracy, transitional justice and constitutional design are imperative for consideration, if women are to fully access public and political life in post-transitional society. Furthermore, new technologies for access to public and political life are emerging, and the role of these new forms of communication and new modes of political practice must be interrogated. This is a new horizon for women’s political empowerment and it must include the consideration of collective action and demands for accountability; access to justice and reparation for the violation of rights; and a comprehensive approach to political and civil rights that acknowledges the interconnection with and indivisibility of economic, cultural and social rights.
Eyben (2010) describes political empowerment as “people’s capacity to influence policy, make demands, and call to account the state institutions that impact upon their lives. This includes political representation and collective action”2. When considering women’s participation in public and political life, empowerment must also consider women’s access and mobilization within formal and informal political spaces. No longer can political empowerment be conceptualized as limited to the formal sector, including elections and political parties. It now must span new public and political spaces that, as yet, remain under-analyzed, raising new questions regarding women’s voices and influence, the power of coalitions that span from local to transnational levels, and new forms of accountability. This report offers insight into the intersections between the formal and informal, highlighting how state-society relations can create opportunities for progressing gender equality goals, and emphasizing these new ways of thinking about political and public life.
The methodology for this report is based on a desk review of relevant information. The information is derived primarily from a synthesis of five regional reports, as provided by the Working Group, that compile key themes, trends and good practices from across all regions. Information from the United Nations and human rights mechanisms, academic resources, and research published by NGOs with established expertise in the field were also important components of this research. Finally, this report incorporates information that was provided to the Working Group during expert presentations on various issues related to women in public and political life.
The first section raises key themes that underpin the consideration of these issues and that must be incorporated into efforts for change. Discrimination against women in public and political life is related to the discrimination that women face in other aspects of their lives, as human rights are indivisible. Structural and systemic barriers in society, such as deeply entrenched gender roles and negative gender stereotyping, limit women. This is linked to the disproportionate burden that women face in caregiving responsibilities, which can limit their ability to access public and political life. Women are also affected by intersectional discrimination: multiple forms of discrimination that can seriously burden gender equality. Their participation in public and political life is also affected by violence against them. This section analyzes the international human rights legal framework that shapes our thinking about women’s rights within public and political life. Local, national and regional actors have used international human rights tools to promote gender equality in law, and these norms frame our understanding of the obligations of states to address gender inequality in public and political life.
The second section analyzes the intertwined issues of citizenship and nationality, which exist at the heart of discussions of women’s participation in public and political life. Central to this issue is the question of how constitutions and national legislative systems hinder or help progress women’s equality. Constitutional protection clauses and legislation that support the principle of equality are essential to provide a framework for further action. In addressing the interplay between international human rights and customary legal systems, this section also recognizes the need to respect multiple and often overlapping forms of justice in plural legal systems, while questioning how these concepts interact. Finally, this section analyzes discrimination against women on the basis of nationality, highlighting the issue of female migrant workers, asylum seekers and refugees.
The third section analyzes the concept of access to public space. This section focuses on a vision of public and political life that must go beyond the formal political sphere to account for the spectrum of public and political activities that range from formal to informal. New forms of political participation for women often span beyond traditional institutionalized forms of politics. Any conceptualization of public space must include an understanding of new and expanding public spaces in the digital sphere. New technologies for access to public and political life are emerging, and these forms of communication are creating new modes of political practice. These spaces provide opportunities for coalition-building; the transfer of knowledge; and the projection of voice, allowing for women’s movements to more effectively promote gender equality goals. This section also analyzes women’s access to public spaces beyond the political, such as women’s participation in trade unions, associations and religious organizations.
The fourth section explores more formal modes of political participation, including the right to choose political leadership; the right to participate in political leadership; and the ability to influence the political process once elected. Progress has been made in all regions regarding these three components of political participation. This section highlights developments and trends across the regions, as well as barriers to women’s participation. In so doing, it analyzes efforts that can be taken to reduce barriers, such as temporary special measures in the form of legislative and voluntary quotas. Quotas can be contentious tools of politics, but research overwhelmingly suggests that they are effective when properly implemented. One theme in this section, which carries through to other sections, is the significance of the women’s advocacy movement to produce change and progress in gender equality. This is especially the case when considering effective ways for women to ensure they have an influence in power once they are elected to politics.
The fifth section considers women’s participation in public and political life during times of transition. These moments open opportunities for positive change regarding women’s rights and gender equality, but they can also lead to backsliding if the sufficient and necessary factors are not in place. It is essential that women participate in transitional processes at all stages to ensure their gender-sensitivity. Women should be active participants in the negotiation of the peace agreement, in the constitution-building or reform process, and in the process of transitional justice. Gender issues should be located at the heart of a transition, rather than as an after-thought, because gender power relations are intimately linked to broader patterns of power and resource distribution in society.
Finally, the conclusion discusses key themes raised throughout the report, such as the importance of conceptualizing formal and informal political spaces; new public spaces through Internet and ICT communications; interrogating the interaction between women’s human rights and culture and religion; the need to adopt a multi-scalar approach, which analyzes the interaction between global, regional, national and local levels; and the need to incorporate new concepts, such as state-building, that are particularly relevant in times of political transition. This section concludes with recommendations to national, regional and international actors.
Section 1: Public and Political Life: Themes and the International Legal Framework
Women continue to experience significant discrimination related to their participation in public and political life in most domains of the public sphere and in all geographical regions. For example, The European Commission recently acknowledged that, “Across the EU, women are still largely outnumbered by men in positions of responsibility in all fields. The reasons for the under-representation of women in power and decision-making are multifaceted and complex”3. There are significant barriers to women’s participation in public and political life that stem from economic, social and cultural issues, as well as from negative stereotypes about women and entrenched gender roles.
One key issue, when conceptualizing gender discrimination within the public sphere, is the issue of how public and private space are differently gendered. For over two decades, feminist scholars have been working to dismantle the divide between public and private space4. A 2005 IDEA report underlines how the public sphere has traditionally been a domain for men, stating that “[m]en, across virtually all cultures, are socialized to see politics as a legitimate sphere for them to act in”5. While at the international level, there is increasing consensus about the obligations of States to address the barriers to women’s full and active participation in the public sphere; at the domestic level, there is still progress to be made in advancing women’s equality in this domain. National legislation and constitutions adversely affect women’s participation in public and political life in some states by limiting women’s participation through exclusionary or discriminatory clauses, thus restricting women’s ability to fully engage in the public sphere6.
The indivisibility of women’s human rights underpins women’s participation in public and political life. The issue of gender equality in political and public life cannot be considered in isolation, as women aspiring to participate in political and public life continue to face complex barriers related to the attainment of their full range of human rights, such as social, economic, cultural, family, health and safety rights. As the former Prime Minister to Norway, Gro Harlem Brundtland has stated: “Everything is interconnected”7. Social policy, labour market policy, gender equality policy, family policy and economic policy are all elements related and dependent of each other8. The indivisibility of these rights is made evident, for example, when analysing the continuing financial crisis in Europe, which has significantly impacted women’s participation in national parliaments and gender equality issues in political policy9.
Another important theme is how entrenched gender roles and negative stereotyping can act as a persistent practical hurdle to women’s participation in political and public life. Entrenched gender roles and stereotypes serve to reinforce discrimination against women through the persistence of harmful norms, practices and traditions, and patriarchal attitudes regarding the roles, responsibility and identities of women and men in all spheres of life10. For example, the disproportionate burden on women of child-rearing and family responsibilities hinders progress in women’s participation in political and public life in many geographical regions. This may be because “[t]ypically, institutions in the public domain were established on the assumption that those who worked in them had few or no domestic responsibilities.”11 This phenomenon is identified as the “sexual division of labor”, which is reflected in the lack of an equitable division of labor in the family12. This has a significant impact on women, since the options to balance work and family responsibilities are still very restricted13,14.
In addition to women’s caregiver responsibilities, women’s participation in political and public life can be significantly limited by patriarchal culture, where women are not considered socially fit to enter politics. This can be connected to their stereotyped role as caregivers, such as in the case of Uzbekistan where major media outlets have called for women to return to “the bosom of the family and to refuse the prospect of a public career”15. This limiting factor is broadly related to women’s and men’s entrenched gender roles in society, such as in the case of behaviour norms for Cambodian women, known as Chba’p, which constrain their ability to access opportunities outside of the household, or in Timor-Leste, where there exists a dominant patriarchal system that delegates different functions to men and women, excluding women from many decision-making processes, especially in politics16. Traditional views on gender roles and stereotypes can be an impediment to the realization of full gender equality and these cultural beliefs can permeate all action within the political and public spheres of the State. Cultural beliefs can constitute direct, indirect and structural discrimination against women.
Intersectionality is a key theme when considering discrimination against women, as women may encounter overlapping forms of discrimination that reinforce their marginalization and unequal access to public and political space. These intersectional forms of discrimination may include their status as indigenous or minority women, migrant women or women with precarious citizenship status, women from the lesbian, bisexual, trans and queer community, and rural women, among others. The Special Rapporteur on violence against women, its causes and consequences has recently stated that multiple and intersecting forms of violence have contributed to and exacerbated violence against women17.
Where data is available, women who experience multiple forms of discrimination tend to fare worse in terms of participation in public and political life18. For example, in 2007, Belgium reported the pay gap between men and women was worse for those from immigrant communities because immigrant women earned 10% less than ‘Western women19. Racism can have a significant impact on women from ethnic and religious minorities and marginalized caste groups. Intersecting strands of discrimination on the basis of sexual orientation and gender make participation in political and public life particularly difficult and inaccessible for LBTQ women. In 53 countries worldwide, consensual homosexual acts between adult women are illegal, denying such women the protection of the law and limiting their access to services20. Even when countries have decriminalised homosexuality, homophobia and transphobia continue in many regions, acting as a societal barrier to women’s full enjoyment of their rights, which can thus adversely affect their full participation in public and political life.
The literature also suggests that there is an important relationship between discrimination against women in public and political life and violence against women. Violence is a form of discrimination that inhibits equality between the sexes and restricts women’s empowerment, and can act as a significant impediment to civil, political, and economic, social and cultural rights21. Gender-based violence has become one of the most important areas of new legislation and constitutional provisions. In Africa, while most constitutions mention violence, recently there has been a rise in specific references to violence against women22. Legislation around domestic violence has recently been enacted in Malawi, Madagascar, Mauritius, Sierra Leone, South Africa and Zimbabwe23. Harassment and violence against female political candidates can act as a disincentive for women to participate in political life. In Sierra Leone, there was a case of a female district councillor who was prevented from campaigning in public by the male secret society, which would gather at her events and beat her female supporters24. In addition to violence, the threat of violence can stop women from fully participating in political life. The fear of violence can have the psychological effect on women of restricting their participation.
States have an obligation to exercise due diligence to prevent, investigate, and in accordance with national legislation, punish acts of violence against women whether those actions are perpetrated by the State or by private persons25. The case of Bolivia offers a good practice, where the House of Representatives in 2009 passed an Act on anti-gender-based-harassment and violence in politics, to defend the rights of female political candidates in elections from violence and harassment. Included in this Act is the prohibition of pressure, threats, harassment, or persecution against a woman candidate, as well as pressure on a female candidate’s family26. Political violence and harassment against women can significantly limit their capacity to engage in public and political life. It is increasingly clear that violence against women not only affects women in the private sphere, but also can hinder their participation in the public sphere and in political life.
The International Human Rights Legal Regime
While serious impediments to women’s full and active participation in public and political life persist, progress has been made at the international and regional levels to ensure that legal human rights mechanisms are in place to support women’s participation in this realm. Indeed, equality for women in public and political life is an obligation for all regimes as well as being a prior condition for the legitimacy of democratic regimes, as well as their responsibility and obligation27.
International Human Rights Mechanisms
The principle of the right to equality and the prohibition of discrimination, which are at the basis of women’s access to public and political life, are enshrined in the founding document of the UN, The United Nations Charter28. The Universal Declaration of Human Rights (UDHR), which forms the basis of the bill of rights of many national constitutions, also enshrines the entitlement of all persons to non-discrimination including on the basis of sex29. Two instruments coming out of the UDHR, the International Covenant on Civil and Political Rights, 1966 (ICCPR) and the International Covenant on Economic Social and Cultural Rights, 1966 (ICESCR) provide more specific agreements on the right to equality between men and women in public and political life and the General Comments of their respective treaty-monitoring organs have actively promoted women’s participation in public and political life30. This International Bill of Rights guarantees equal protection before the law to all and serves as the basis for international human rights law around the protection of the right to participation in public and political life31.
The Convention on the Elimination of Discrimination Against Women (CEDAW) is the leading instrument to address women’s human rights, with most states having signed or ratified it and participating in the reporting process32. By ratifying CEDAW, these countries have an obligation to eradicate all forms of discrimination against women by adopting measures to respect, protect, and fulfill all of the rights contained in CEDAW at the national level33. The definition of discrimination contained in Article 1 of CEDAW encompasses any difference in treatment made on the basis of sex, which intentionally or in practice, places women in a position of disadvantage, and impairs the full recognition of their rights in the public and private spheres. This prohibition of discrimination extends to domains that limit the full exercise of women’s right to participate in public and political life. Article 7 is particularly relevant to the rights of women in the field of political participation, including their right to be elected to public office, to fully participate in the public functions and service in their countries, and the right to vote34. This right should be read in combination with Article 8, which provides that States must ensure that women can have the opportunity to represent their governments at the international level, and to participate in the work of international organizations free from any form of discrimination35.
Several CEDAW General Recommendations are also very useful for clarifying women’s rights and State obligations to ensure equality in public and political life. In General Recommendation 23, the CEDAW Committee has identified a set of obligations States have in order to fully guarantee women’s rights to political participation, including the adoption of general positive measures and temporary special measures to ensure that women have the right to participate fully in public policy formulation in senior level positions; that their right to vote is incorporated in their constitutions and/or legislation; that groups representing the rights of women have adequate participation spaces; to address public attitudes that discriminate against women and discourage their involvement in political, and public life; and to ensure the presence of women in all areas of international affairs36. It also includes many aspects of civil society concerned with public and political life37. CEDAW also requires States to ensure that women have equal opportunities to represent their governments at the international level and to participate in the work of international organizations38.
CEDAW’s General Recommendation 28 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.” The CEDAW Committee understands gender equality as a principle, which provides that “all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the limitations set by stereotypes, rigid gender roles and prejudices.”39 States must pursue this aim by adopting an immediate, comprehensive, multi-sector policy oriented towards the elimination of discrimination against women40.
While all women may experience discrimination, some women experience a greater impact due to their multiple identities. CEDAW therefore adopts an intersectional approach, which recognizes that discrimination may arise based on a combination of grounds, which then produces a kind of cumulative discrimination. This approach takes into consideration the historical, social and political contexts of discrimination. CEDAW also obliges States to consider the intersectional forms of discrimination that women may face, since not all women are similarly affected by discrimination41. This is important when considering public and political life because women may be multiply discriminated against in access public and political life. For example, Dalit women in India experience multiple discrimination based on sex, class and caste, and this impacts their ability to access political office. Even when quota-based seats have been reserved for them, Dalit women are often overpowered by dominant male caste leaders and have very little autonomy in political and public life42.
Gen. Rec. 25 on Temporary Special Measures states that “[e]quality of results is the logical corollary of de facto or substantive equality”43. Under Article 4 of CEDAW, States can and should adopt temporary measures aimed at accelerating the equal participation of women in the political, economic, social, cultural, and civil spheres. The CEDAW Committee’s definition of these measures is broad, as they encompass “a wide variety of legislative, executive, administrative and other regulatory instruments, policies and practices, such as outreach or support programs; allocation and/or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems”44. The Inter-American Commission on Human Rights has affirmed that special temporary measures may be required to achieve women’s de facto equality with men, and that such measures are in full compliance with the principle of non-discrimination and human rights standards45. It is important for States to recognize the difference between the “temporary” nature of these special measures, and general policies that a State must adopt to ensure gender equality, as the former must be discontinued after their desired results have been achieved46.
In the European Union47, the term ‘positive action’ is used48, which includes different forms of directly or indirectly sex-related measures aimed at eliminating the exclusion of women49. These measures are based on the implicit assumption that positive action must challenge the formal understanding of sex equality, which insists on the principle that men and women ought to be treated consistently according to the same standard of treatment50. Different forms of sex-based positive action can be distinguished. ‘Hard’ measures are mandatory and create direct, strict preferences for women as an underrepresented group. The most common examples are: equality plans, target-related preferences in appointments to decision-making bodies, nomination parity and quotas. ‘Soft’ (voluntary) positive action measures also play an important role, such as measures favouring the encouragement of women’s participation, through financial support for parties that use positive action efforts, joined commitment programs, or equality prizes. This type of positive action measure may also include outreach measures (e.g. encouraging women to run in an election, to apply for a position or participate in training programs) or antidiscrimination support measures (e.g. an obligation to eliminate non transparent, discretionary decision-making) as well as redefining merit51.
As to the gender quotas used in relation to political participation, they may have either a mandatory or a voluntary character. In the case of the former, legislation mandated by the constitution or by electoral laws may reserve strict seats or create candidate quotas for women. In the case of the latter, quotas may also be decided voluntarily by political parties. Quotas work differently under different electoral systems and are most easily introduced in proportional representation systems. However, quotas have also been implemented in some majority systems52. In the context of appointed decision-making bodies, flexible quotas, which involve a combination of numerical targets and a strong or tiebreak preference, are mostly used. The use of temporary special measures will be elaborated further in Section 4 of this report, especially regarding the use of gender quotas in political participation.
Beyond CEDAW, the Beijing Platform for Action and Beijing+5 have been active mechanisms for the promotion of women in power and decision-making positions. The Fourth World Conference on Women, held in Beijing in 1995, drew attention to the persisting inequality between men and women in public life and political decision-making. The Beijing Platform for Action set a target for women to hold 50 per cent of managerial and decision-making positions in the United Nations by 200053. To accelerate the implementation of action in this area, the Commission on the Status of Women, at its forty-first session in 1997, adopted Agreed Conclusions (1997/2), which emphasized that attaining the goal of equal participation of men and women in decision-making was important for strengthening democracy and achieving the goals of sustainable development. The Commission reaffirmed the need to identify and implement measures that would redress the under-representation of women in decision-making, including through the elimination of discriminatory practices and the introduction of positive action programmes54.
Taking into account the importance of increasing women’s participation in positions of power and decision-making, the General Assembly, at its fifty-eighth session in 2003, adopted resolution 58/142 on women and political participation, which urged Governments, the UN system, NGOs and other actors to develop a comprehensive set of policies and programmes to increase women’s participation in decision-making, including in conflict resolution and peace processes, by addressing the existing obstacles facing women in their struggle for participation. The United Nations Security Council has also promoted women’s political participation through their Resolutions on Women, Peace and Security, beginning in 2000 with Resolution 1325, and including Res 1820 (2008); Res 1888 (2009); Res 1889 (2009) and Res 1960 (2010). Security Council Resolution 1325 (2000) recognizes that women play an important role in conflict prevention, peacekeeping, conflict resolution and peace-building, and stresses the need to increase women’s participation in decision-making with regard to conflict prevention and resolution55.
Regional Human Rights Mechanisms
A number of regional human rights mechanisms support and complement international human rights mechanisms, reinforcing the obligations and responsibilities of States to ensure non-discrimination in public and political life.
The European Union has mandated legislation that has been significant in the advancement of eliminating discrimination against women in political and public life. Most European countries in the region are members of the Council of Europe and are subject to the European Convention on Human Rights (ECHR). When the European Economic Community (EEC) was adopted in 1957, only one provision56 was included to combat gender discrimination, namely the principle of equal pay between men and women for equal work. With the entry into force of the Treaty of Amsterdam in 1999, the promotion of equality between men and women throughout the European Community became one of the essential tasks of the Community57. Furthermore, according to Article 3(2) EC, the Community shall aim to eliminate inequalities, and to promote equality between men and women in all the activities. This obligation of gender mainstreaming means that both the European Community and Member States must actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities.
EU gender equality law was further developed with the adoption of the Charter of Fundamental Rights of the European Union. This Charter, inter alia, prohibits discrimination on any ground, including sex (Article 21); it recognizes the right to gender equality in all areas and the necessity of positive action for its promotion (Article 23)58. It also defines rights related to family protection and gender equality. The reconciliation of family/private life with work is an important aspect of the Charter; guaranteeing the ‘right to paid maternity leave and to parental leave’ (Article 33). Currently, the Charter is a non-binding fundamental rights instrument. However, EU institutions, including the European Court of Justice, often rely on the Charter as a source of fundamental rights that must be respected in the EU59.
The Athens Declaration in 1992 was an important moment for the advancement of women’s participation in public and political life in Europe. Women with experience in high political office gathered in Athens at the invitation of the Commission of the European Communities for the first European Summit on ‘Women in Power’. The Declaration, “proclaimed the need to achieve a balanced distribution of public and political power between women and men”60. Over 400 women attended the conference and the declaration was distributed to all European governments and women’s networks in the region. This Declaration is seen as a major turning point in achieving parity for equal representation of women within political life in Europe61
In Latin America and the Caribbean, most states have signed on to a number of regional human rights agreements pertaining to gender equality and the prohibition of discrimination on the basis of sex, such as the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belém do Para). The Inter-American System of Human Rights has also recognized the right of every citizen to participate in government and public affairs as a fundamental right, which must be exercised free from all forms of discrimination and in accordance with the principle of equality62. Article 23 of the American Convention codifies the right of every citizen to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected in genuine periodic elections; and to have access under general conditions of equality to the public service of his or her country.
The Convention of Belém do Pará recognizes the right of women to have equal access to the public services of their countries and to take part in the conduct of public affairs63. Belém do Para is a particularly important mechanism within international human rights law as it is one of the few international human rights instruments that explicitly incorporates a gender-based perspective, recognizing the link between violence against women and discrimination, and the impact that violence can have on civil, political and economic, social and cultural rights64. Belém do Para also establishes that States have a positive duty to use due diligence to address structural, direct and indirect discrimination against women.
Since 1948, OAS Member States have adopted a number of international legal instruments, which have become the normative basis of the Inter-American System of Human rights. They have provided for the creation of the Commission and the Court to promote the observance of these treaties across the Americas. These treaties and declarations have incorporated the right to political participation and the right to be free from discrimination on the basis of sex within their texts65. For example, the Inter-American Democratic Charter states explicitly that discrimination against women is an obstacle to achieving genuine, inclusive, and participatory democracy66. The Charter also establishes the importance of eliminating all forms of discrimination, including gender discrimination, as a means of strengthening democracy and citizen participation67. The Ministries of Women in the region have also organized regional women’s conferences with ECLAC, which have achieved and produced consensus documents on the issue of the political participation of women. The 2007 Consensus of Quito was a declaration by the Ministers that reiterated the link between human rights and participative and inclusive democracy; the economic and social development of Latin America and the Caribbean; the contribution of women to the return of democracy to the region; and the importance of the principle of ‘parity’ in decision-making68.
In the Asia-Pacific region, there have been shifts towards greater co-operation and communication, with the Association of Southeast Asian Nations (ASEAN), the Arab Charter, The Commonwealth of Nations, OPEC and SAARC as notable examples. Cross-country cooperation on a range of issues has become the key to not only a better understanding of women’s rights and gender equality goals, but to also reach regional development goals69. The Arab Charter of Human Rights of 200470 guarantees equality but within the framework of the “positive discrimination’ of the sharia. This raises the question of how to engage international human rights laws within the context of and in intersection with customary legal systems. These questions will be raised again in Section 2 of this report. The Charter also guarantees non-discrimination, including on the basis of sex71, equal protection of the law72, freedom of political activity and the right to public office73, and freedom from domestic violence74.
The African Union (AU) and its institutions, particularly the Directorate for Women, Gender and Development and the Women and Gender Sectorial Cluster Committee75, have raised attention for the issue of gender equality in the African region. 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. The AU Solemn Declaration on Gender Equality in Africa (SDGEA), which was adopted by the AU Assembly of Heads of State and Government in Addis Ababa, Ethiopia in July 2004, also contributes to strengthening African ownership of the gender equality agenda. The African Union Women’s Decade, 2010 – 2020, offers a means of holding national mechanisms accountable. These initiatives have also recently been strengthened by the appointment in July 2012 of Mrs. Dlamini-Zuma from South Africa as first Woman President of the African Union76.
The Protocol to the African Charter on Human and Peoples' Rights on the rights of Women in Africawas 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 a positive step towards combating discrimination and violence against women and is significant in efforts to promote and ensure respect for the rights of African women. The Protocol 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 women77. The Protocol endorses affirmative action to promote the equal participation of women, including equal representation of women in elected office, in the judiciary and law enforcement agencies78.
Using International Human Rights Mechanisms to Promote Equality for Women
Across different geographic regions, state and non-state actors have used and mobilized international and regional human rights mechanisms to promote equality of women in the realm of public and political life. There are a number of good practices illustrating the reliance on these legal tools. In light of the fact that these sources of legal authority have assisted state and non-state actors in progressing gender equality within domestic contexts, the continued action and cooperation of international and regional mechanisms, and the dissemination of women’s human rights entrenched by them, is also a good practice79.
Some very significant constitutional gains have been won in countries where there has been a broader national move for constitutional renewal, and an interest from women’s NGOs in using CEDAW as an advocacy tool. CEDAW principles have been integrated into new constitutions and have guided the reform of established constitutions through amendments. Many States have implemented, amended or repealed domestic legislation to incorporate some or all of the provisions and principles of CEDAW. For example, the Australian 1984 Sex Discrimination Act was established to meet obligations to CEDAW and seeks to eliminate sexual harassment in areas of public activity.
CEDAW principles on public and political life are also being successfully transmitted into the legal principles within regional courts. For example, in the 2012 case of Staatkundig Gereformeerde Partij (SGP) v. Netherlands80, 10/7/12, the ECHR applied Article 7 of CEDAW to a case where it was asked to reject a national court’s decision to find a political party to be in violation of the State’s Constitution. The party, the SGP, professes the absolute authority of the Word of God over all areas of societal life. The SGP rejects the idea of absolute equality of human beings, which it sees as false teaching of the French Revolution. Essentially, the SGP believes that although all human beings are of equal value as God’s creatures, differences in nature, talents and place in society should be recognised. Thus, women are not inferior to men as human beings; but unlike men, women should not be eligible for public office. Relying on CEDAW, the ECHR rejected the appeal from the political party finding its application to be manifestly ill founded and based on discriminatory stereotypes about women.