Women, Law and Human Rights An African Perspective

by Banda, Fareda

• ISBN13: 9781841131283
• ISBN10: 1841131288
• Format: Hardcover
• Copyright: 2005-09-25
• Publisher: Hart Publishing

Summary

Africa, with its mix of statute, custom and religion is at the centre of the debate about law and its impact on gender relations. This is because of the centrality of the gender question and its impact on the cultural relativism debate within human rights. It is therefore important to examine critically the role of law, broadly constructed, in African societies. The book focuses on women's experiences in the family. This is because the lives of women continue to be lived out largely in the private domain, where the right to privacy is used to conceal unequal treatment of women which is justified by invoking 'custom' and 'tradition'. The book shows how law and its interpretation is used to disenfranchise women, resulting in their being deprived of land and other property which they may have helped to accumulate. It also considers issues of violence within the home, reproductive rights and examines the issue of female genital cutting. The role of women in development is explored as is their participation in politics and the NGO sector. A major theme of the book is a consideration of the linkages of constitutional and international human rights norms with local values. This is done using feminist tools of analysis. The book considers the provisions of the Protocol to the African Charter on Human and People's Rights on the Rights of Women which was adopted by the African Union in July 2003.

Author Biography

Fareda Banda is a Lecturer in Law at the School of Oriental and African Studies in the University of London.

Table of Contents

Preface	vii
Acknowledgements	xi
Table of Cases	xix
Table of Statutes and Legal Material	xxiii
1 Introduction	1	(12)
Feminist debates	7	(3)
The scheme of this book	10	(3)
2 Law in Africa	13	(28)
Creating law(s) and legal systems	14	(3)
Creating customary law	17	(2)
Customary law in post-colonial states	19	(2)
Choice of law dilemmas	21	(4)
Moving towards guaranteeing women's rights: the impact of liberation struggles	25	(2)
Equality	27	(6)
Constitutional protection of women's rights	33	(7)
Conclusion	40	(1)
3 Human Rights in Africa	41	(44)
Feminist analysis of international law	42	(2)
The African perspective	44	(1)
Engaging with international human rights on the African continent	45	(2)
Human rights in the African system	47	(4)
Sub-regional initiatives	51	(6)
CEDAW in Africa	57	(9)
Protocol to the African Charter on Human and People's Rights on the Rights of Women—history and drafting	66	(13)
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa 2003—overview	79	(3)
Conclusion	82	(3)
4 Family Law, Gender Equality and Human Rights	85	(74)
Impact of human rights	87	(3)
Feminist perspectives on family	90	(3)
North Africa	93	(4)
West Africa	97	(3)
East Africa	100	(3)
Southern Africa	103	(5)
Bridewealth	108	(4)
Relationships in the shadow of law	112	(2)
Pluralism and the internal conflicts between marriage systems	114	(2)
Pluralism and polygyny	116	(3)
Other types of marriage arrangements	119	(2)
Early marriage	121	(3)
Divorce	124	(5)
Property distribution on divorce	129	(7)
Maintenance after divorce	136	(2)
Children	138	(6)
Nationality	144	(4)
Death	148	(9)
Conclusion	157	(2)
5 Violence against Women and Reproductive Rights	159	(48)
Defining the problem	160	(1)
International developments around violence against women	161	(4)
National developments and constraints	165	(4)
Economic violence	169	(1)
Sexual violence against women	170	(2)
Non-consensual sex in marriage	172	(4)
Sexual violence against young women and girls	176	(3)
Issues of access to justice	179	(1)
Strategies for combating violence against women	180	(1)
Reproductive rights	181	(19)
Health as a human right	200	(5)
Strategies to protect women's reproductive rights	205	(1)
Conclusion	206	(1)
6 Female Genital Cutting, Human Rights and National Legislation	207	(40)
Introduction	207	(1)
Constructing an understanding of the practice	208	(2)
Reasons given for the practice	210	(2)
Feminist contestations over meaning and strategies around FGC	212	(6)
The human rights framework	218	(7)
Children's rights	225	(4)
Efficacy of the human rights approach	229	(1)
National legislation	230	(1)
Colonial initiatives	230	(1)
Post-independence laws on FGM	231	(4)
Advantages of using law to tackle FGC	235	(2)
Disadvantages of using law to tackle FGC	237	(2)
The role of civil society organisations in eradicating FGC	239	(1)
Select case studies	239	(6)
Conclusion	245	(2)
7 Culture, Development and Participation	247	(50)
The monolith—'culture'	248	(2)
Regional considerations of 'culture'	250	(3)
The culture v human rights industry	253	(6)
The joys of listening and talking to each other—obtaining normative consensus through cross-cultural dialogue	259	(4)
Development	263	(4)
International aid policy	267	(2)
Women in the development process: transformations	269	(5)
Gender and poverty	274	(5)
Political participation	279	(6)
'Civil society' and non-governmental organisations	285	(9)
Conclusion	294	(3)
8 Conclusion	297	(14)
Overview of the development of human rights	298	(1)
The weak African state	299	(5)
Culture	304	(2)
Democratising the family	306	(3)
Expanding the feminist project in Africa	309	(2)
Appendix A: Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa	311	(14)
Appendix B: Convention on the Elimination of All Forms of Discrimination Against Women 1979	325	(12)
Bibliography	337	(56)
Index	393