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III. REGIONAL AND NATIONAL LEGAL REGIMES
It is tempting to say, as many policy-makers have found it easy to do, that the wide range of abuses against women and girls described above is difficult or impossible to address because so many of the abuses have deep cultural roots. But the problems persist in large part because the legal, policy, and program environment in Africa allows them to persist. Changes in the law, more gender-sensitive policies, and more well-conceived programs are a necessary if insufficient step toward eradicating these abuses. In countries with some measure of democratic processes, changes in law and policy are likely to generate wider debates that may eventually influence cultural and social norms.
All sub-Saharan African countries except Somalia and Sudan have ratified CEDAW.227 CEDAW includes numerous commitments to eliminate gender inequality in the law and ensure equal access to services. CEDAW also requires governments to take steps to modify traditions that are based on women’s inferiority or stereotypes of women or men.228 The Declaration on the Elimination of Violence against Women, which exhorts U.N. member states to pursue a range of measures to prevent gender-based violence and ensure accountability for perpetrators, was passed by the General Assembly in 1993.229 The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both widely ratified in Africa, also prohibit discrimination based on sex.230
As noted above, international human rights law recognizes women’s right to sexual autonomy, including the right to be free from nonconsensual sexual relations. The right to sexual autonomy is reflected in a number of international declarations and conference documents.231 Sexual autonomy is closely linked to the rights to physical security and bodily integrity,232 the right to consent to and freely enter into a marriage, as well as equal rights within the marriage.233 When women are subjected to sexual coercion with no realistic possibility for redress, a woman’s right to make free decisions regarding her sexual relations is violated.
In addition to CEDAW and other global instruments, a number of regional human rights instruments in Africa are relevant to the abuses discussed in this paper. The African Charter on the Rights and Welfare of the Child (the Charter), which entered into force in November 1999 and is widely ratified, contains many of the protections contained in the Convention on the Rights of the Child. Where the CRC refers to “a child temporarily or permanently deprived of his or her family environment,” the Charter refers to “a child who is parentless or who is . . . deprived of his or her family environment,” but the protections noted are otherwise similar.234 Article 16 of the Charter refers to protection of children from “all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse.”
The formulation of the African Charter on Human and Peoples’ Rights was drafted in the late 1970s and has been widely ratified on the continent.235 Article 2 of the Charter includes a guarantee of freedom from discrimination based on sex, but women’s rights are otherwise not well elaborated. In July 2003, however, the African Union adopted a “Protocol to the African Charter of Human and Peoples Rights on the Rights of Women” that includes many of the principles and much of the language of CEDAW and the Declaration on the Elimination of Violence against Women. The protocol will enter into force after fifteen countries ratify it. It asserts the right “to be protected against sexually transmitted infections, including HIV/AIDS” (article 14). It calls for the prohibition of FGM (article 5) and protection from sexual violence in armed conflict (article 11). At the same meeting in July 2003, the African Union also adopted a declaration on HIV/AIDS that noted the vulnerability of women and girls to HIV/AIDS, “particularly in societies marked by gender inequality, where the burden of care for the sick and for the children orphaned by AIDS falls overwhelmingly on women.”236 It is a missed opportunity that recent African Union decisions do not reflect a serious analysis linking human rights violations against women and girls with HIV/AIDS beyond the fact that the burden of care for people affected by AIDS falls disproportionately on women.
Equally important, national law and policy in many African countries fail to reflect the principles of gender equality found in international law, the Organization of African Unity, and its successor, the African Union. In particular, many domestic laws and policies lack protections for women’s and girls’ rights in the areas of rape, domestic violence, property and inheritance rights, right to education, and right to information—all crucial for protection against HIV/AIDS. Conclusions of the Center for Reproductive Rights’ excellent analysis of national law in fourteen sub-Saharan countries237 are revealing, including:
States must not only facilitate women’s exercise of their human rights by ensuring that the conditions for such exercise are free of coercion, discrimination, and violence,238 they must also provide an effective remedy if human rights are violated and enforce such remedies.239 Most national governments in Africa have done almost nothing to create conditions conducive to women’s exercise of their property rights, for example, as evidenced by coercive wife inheritance and cleansing practices, discriminatory laws and customs, and the violence women face if they try to assert their rights. Moreover, it is clear in a number of countries that judges, magistrates, police officials, and local authorities do not apply legislation and case law on inheritance and division of property, demonstrating that these states are in violation of their obligation to provide an effective remedy to women’s property rights violations.
Taken together with inequitable inheritance and property rights and other abuses described in this report, it is clear that there is a legal and human rights crisis for women in Africa. As the Center for Reproductive Rights concluded:
The South African Experience: Legislation and Special Courts
The government of South Africa has taken some pioneering steps to establish legal and judicial frameworks for dealing with rape and domestic violence. South African legislation on domestic and sexual violence, sometimes cited as a model for the continent, offers useful guidance for other countries in drafting and implementing legal protections for rape survivors. The 1998 Domestic Violence Act breaks new ground by covering rape within marriage and violence in both marital and nonmarital relationships and abuse by parents, guardians, other family members, and anyone co-resident with the victim.241 The Act imposes duties on the police to provide necessary assistance, including arrangements for suitable shelter and medical treatment, to victims of domestic violence, as well as information about their rights; there are sanctions for noncompliance with these duties.242 A 2001 evaluation found, however, that the failure to allocate sufficient resources to police, courts, and other support services undermined the implementation of the Act.243
South Africa’s draft law on sexual offenses (Sexual Offences Bill), currently being reviewed by a parliamentary committee, proposes important changes to broaden legal protection of rape survivors and to facilitate prosecution of sexual offenses. These include expanding the definition of rape to make it gender-neutral and to include anal as well as vaginal penetration; establishing procedures such as testimony by closed-circuit television for children and other “vulnerable witnesses”; and changing common law rules that allow courts inappropriately to devalue some victims’ testimony.244
The bill that is under consideration as of this writing fails to include an earlier provision obliging the state to provide medical care and counseling for survivors of sexual violence who have sustained injuries or psychological harm or have been exposed to sexually transmitted infections. The deletion of this provision was apparently due to cost considerations. Advocates have noted that inscribing these obligations into law is essential to ensure accountability of the government in meeting its commitment to provide PEP and other services to rape survivors.245 In view of earlier experiences, including with the Domestic Violence Act, they have urged that sufficient resources be allocated to ensure meaningful implementation and enforcement of the new law.246
South Africa has also taken steps to improve the prosecution of sexual offenses by establishing specialized sexual offenses courts.247 These courts aim to reduce the trauma experienced by sexual assault complainants during the investigations and prosecution; to improve coordination among criminal justice agencies; and to increase the reporting, prosecution, and conviction rate for sexual offences. To this end, training is provided to officials involved in the investigation and prosecution of sexual offences, and courts are equipped with special facilities to minimize contact between victims and perpetrators (such as closed-circuit television and two-way mirrors, and separate waiting and interview rooms). Cases are managed by specially trained prosecutors who handle lighter-than-average caseloads to allow them more time for case preparation.
The Wynberg Sexual Offences Court, the first such court in South Africa, was established in 1993, in response to advocacy on the part of women’s organizations to improve the treatment of rape victims in the criminal justice system.248 In 1999, the Sexual Offences and Community Affairs unit was created within the National Prosecuting Authority to improve the handling of sexual offences cases against women and children. The unit’s priorities include the establishment of sexual offences courts throughout South Africa and of multidisciplinary care centers for victims of sexual and domestic violence. To date, the National Prosecuting Authority has established 43 sexual offenses courts,249 while continuing to monitor the courts’ performance and provide staff training.250 The National Prosecuting Authority, together with the Ministry of Health and the South African Police Services, has also established several multidisciplinary centers for victims of sexual offenses and domestic violence at hospitals in Eastern Cape, Western Cape, and Gauteng.251 These centers are staffed by health care professionals, counsellors, police, and prosecutors who work together as a team, enabling rape survivors to receive medical treatment and counselling and to report an offence to police at one site.
227 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981. Ratification information can be accessed at http://www.unhchr.ch/pdf/report.pdf.
228 CEDAW, art. 5 (“States Parties shall take all appropriate measures: …To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”)
229 United Nations General Assembly resolution 48/104, December 20, 1993. Published as A/RES/48/104 February 23, 1994. The declaration can be accessed at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.RES.48.104.En?Opendocument.
230ICCPR, art. 2(1); International Covenant on Economic, Social and Cultural Rights ICESCR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, art. 2(2).
231 At the U.N. International Conference on Population and Development held in October 1994 in Cairo, Egypt, and the U.N. Fourth World Conference on Women held in September 1995 in Beijing, China, governments explicitly endorsed women’s sexual autonomy. In the 1994 Cairo Programme of Action on Population and Development, delegates from governments around the world pledged to eliminate all practices that discriminate against women and to assist women to “establish and realize their rights, including those that relate to reproductive and sexual health.” In the 1995 Beijing Declaration and Platform for Action, delegates from governments around the world recognized that women’s human rights include their right to have control over and decide freely and responsibly on matters related to their sexuality free of coercion, discrimination and violence. See United Nations, Programme of Action of the United Nations International Conference on Population and Development (New York: United Nations Publications, 1994), A/CONF.171/13, 18 October 1994, para. 4.4(c) and United Nations, Beijing Declaration and Platform for Action (New York: United Nations Publications, 1995), A/CONF.177/20, 17 October 1995, para. 223.
232 ICCPR, art. 9. Article 9 of the ICCPR guarantees to everyone “liberty and security of person.” This right, although traditionally applied to conditions of arrest or detention, has been expanded over time to cover non-custodial situations.
233 ICCPR, art. 23 and CEDAW, art. 16. See also article 16 of the UDHR.
234 African Charter on the Rights and Welfare of the Child, OAU Doc. CAM/LEG/24.9/49, 1990, arts. 25(2) and 16.
235 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986
236 African Union, Maputo Declaration on HIV/AIDS, Tuberculosis, Malaria and Other Related Infectious Diseases, approved 12 July 2003.
237 Center for Reproductive Rights, Women of the World: Anglophone Africa Progress Report 2001 (New York, 2001), especially pp. 166-173; and the Center’s Women of the World: Laws and Policies Affecting their Reproductive Lives—Francophone Africa (New York, 2000), especially pp. 190-200.
238 United Nations, Programme of Action of the United Nations International Conference on Population & Development, para. 7.3.
239 ICCPR, art 2(3).
240 Center for Reproductive Rights, Women of the World: Laws and Policies Affecting their Reproductive Lives—Francophone Africa, p. 200.
241 South Africa, Domestic Violence Act, Act No. 116 of 1998, Section 1(vii); see alsoSouth African Police Service, Domestic Violence National Instruction 7/1999, Section 2.
242 Domestic Violence Act, Sections 3, 18(2, 4); South African Police Service, Domestic Violence National Instruction 7/1999, Sections 7-10, 13.
243 Penny Parenzee, “While Women Wait . . Monitoring the Domestic Violence Act,” Nedbank ISS Crime Index, vol. 5, no. 3 (May-June 2001).
244 South Africa, Criminal Law (Sexual Offences) Amendment Bill, 2003, Sections 2-4, 14, 15, 18, 24. Advocates have criticized the bill for limiting the definition of rape to penetration by genital organs and creating separate statutory offences to cover penetration by objects or by body parts other than genital organs or involving penetration of the mouth and recommended that Parliament look to Namibia’s Combating of Rape Act (defining “rape” as the intentional commission of a sexual act with another person under coercive purposes and “sexual act” to cover a number of penetrative and non-penetrative acts (including the insertion of the penis, any other body part and any object)) and to the International Criminal Tribunals for Rwanda and for the former Yugoslavia, which acknowledge that rape is a form of aggression and that the central elements of the crime cannot be captured in a mechanical description of objects and body parts, as alternative models for definitions of rape. See, e.g.,Combrinck, Gender Project, Community Law Centre, University of the Western Cape and Lillian Artz, Institute of Criminology, University of Cape Town, Defining Rape and Indecent Assault, submission to Parliamentary Portfolio Committee on Justice and Constitutional Development on Sexual Offences Bill, September 15, 2003 (including proposed redefinition of offense of rape); Rape Crisis Cape Town Trust and IDASA, Submission on the Sexual Offences Bill to the Committee on Justice and Constitutional Development, September 15, 2003; Women’s Legal Centre, Submission to the Justice and Constitutional Development Committee in Response to the Criminal Law (Sexual Offences) Amendment Bill Published in Government Gazette No. 25282 Dated 30 July 2003, September 15, 2003. The bill also has been widely criticized for including in the definition of rape situations where a person “intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed that he or she is infected by a life-threatening sexually transmissible infection in circumstances where there is a significant risk of transmission of such infection to that person.” Advocates argue that this provision is likely to increase women’s vulnerability to a charge, because women, who are more likely to know their HIV status due to testing done at antenatal clinics, may risk violence or other serious consequences if they reveal their status, insist on condom use or refuse sex and therefore fail to disclose their status. It has also been criticized as counterproductive to public health efforts to curb the spread of disease and further entrenching discrimination and stigmatisation of people with HIV. See ibid.
245 See, e.g., Rape Crisis Cape Town Trust and IDASA, Submission to the Sexual Offences Bill to the Committee on Justice and Constitutional Development, September 2003; see also Heléne Combrinck, “Positive Duties of State Officials Towards Victims of Sexual Assault,” submitted on behalf of the Gender Project, Community Law Centre, University of the Western Cape, as part of the submission to the South African Law Commission Discussion Paper 102, by the Children’s Rights Project, Community Law Centre, University of the Western Cape; Department of Forensics and Toxicology, University of Cape Town; Gender, Law & Development Project, Institute of Criminology, University of Cape Town; Gender Project, Community Law Centre, University of the Western Cape; and Women’s Legal Centre, March 2002.
247 The Wynberg Sexual Offences Court, the first such court in South Africa, was established in 1993, in response to advocacy on the part of women’s organizations to improve the treatment of rape victims in the criminal justice system. The Wynberg Sexual Offences Court is described in the Human Rights Watch report, Violence Against Women in South Africa (1995), pp. 118-121. The Durban Magistrate’s Court established a specialized sexual offences court in 1994. Human Rights Watch interview with Val Melis, Senior Public Prosecutor, Durban Magistrate’s Court, May 16, 2003.
248 See ibid.
249 Human Rights Watch interview with Thoko Majokweni, director, Sexual Offence and Community Affairs Unit, National Prosecuting Authority of South Africa, New York, October 2, 2003. The National Prosecuting Authority hoped to have 60 such courts by end-2004.
250“Fighting Sexual Offences Against Women and Children: Specialized Courts and the Changing Legal Framework,” Presentation by Anton du Plessis, head of the Crime and Justice Programme, Institute for Security Studies, Pretoria, South Africa, Second South African Gender Based Violence and Health Conference, May 7, 2003; Overview of Sexual Offences and Community Affairs Unit, http://www.npa.gov.za/SOCA/SOCADefault.asp (retrieved August 24, 2003).
251 The Thuthuzela Mult-disciplinary Care Centre at G.F. Jooste Hospital in Cape Town was launched in July 2000. Similar centres have since been opened in Limbode and Mdantsane, Eastern Cape; and in Soweto, Gauteng. The National Prosecuting Authority plans to open up ten such centres by the end of 2004. Anton du Plessis presentation, May 7, 2003.