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VI. UGANDA’S OBLIGATIONS UNDER INTERNATIONAL AND REGIONAL LAW

The fact that domestic violence is committed in the privacy of the home does not absolve states of their responsibility to remedy it. The privacy of marriage is not inviolable; states are legally obligated to ensure that laws governing marital relations are nondiscriminatory and to criminalize violations of bodily integrity, whether committed by an intimate partner or otherwise. States are obliged to guarantee that victims of domestic violence have recourse to laws that protect them from domestic violence, and that perpetrators of domestic violence are punished. A state is therefore responsible for ensuring that discriminatory laws are repealed, that adequate laws regulating domestic violence are enacted, and that state officials respond appropriately to prosecute domestic violence. States also have an obligation to ensure that all their citizens have access to the best possible standard of health achievable, which includes ensuring that citizens have access to health information. Uganda has ratified international and regional human rights treaties providing for women’s rights to protection against violence and women’s rights to health.⁴⁴⁸ Unchecked domestic violence and a female population unable to access HIV/AIDS services are clear indications that the government is failing to meet its responsibilities.

The Committee on the Elimination of Discrimination against Women, (the CEDAW Committee) has established that violence against women violates the principle of nondiscrimination and equality enumerated in the Convention,⁴⁴⁹ which states: “The term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”⁴⁵⁰ A state’s responsibility to protect women from nondiscrimination extends to ensuring “that public authorities and institutions shall act in conformity with this obligation,”⁴⁵¹ and taking “all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”⁴⁵² CEDAW requires states to take “all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”⁴⁵³ Discriminatory marriage and divorce laws, unequal property and inheritance rights, and the unequal treatment of women within the justice system violate the principle of nondiscrimination.

International human rights law recognizes state accountability for abuses by private actors and requires states to show due diligence in preventing and responding to human rights violations. In General Recommendation 19, the CEDAW Committee emphasized: “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”⁴⁵⁴ The 1988 Velásquez-Rodríguez case before the Inter-American Court of Human Rights articulated this principle: “An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.”⁴⁵⁵ The court determined that a state must take “reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”⁴⁵⁶

The due diligence requirement extends to a government’s responsibility to address violence against women. In her first report, the U.N. Special Rapporteur on violence against women, its causes and consequences (the Special Rapporteur) emphasized: “In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators. States are under a positive duty to prevent, investigate and punish crimes associated with violence against women.”⁴⁵⁷ This duty goes beyond the enactment of laws prohibiting domestic violence. The Special Rapporteur has noted: “States must find other complementary mechanisms to prevent domestic violence. Thus, if education, dismantling of institutional violence, demystifying domestic violence, training of State personnel, the funding of shelters and other direct services for victim-survivors and the systematic documentation of all incidents of domestic violence are found to be effective tools in preventing domestic violence and protecting women's human rights, all become obligations which the State must exercise due diligence in carrying out. The due diligence standard is not limited to legislation or criminalization.”⁴⁵⁸ The United Nations Declaration on the Elimination of Violence against Women also calls on States to exercise due diligence to investigate and punish acts of violence against women, whether committed by the State or by private actors.⁴⁵⁹ A state’s consistent failure to do so amounts to unequal and discriminatory treatment, and constitutes a violation of the state’s obligation to guarantee women equal protection of the law.⁴⁶⁰

CEDAW explicitly acknowledges social and cultural norms as the sources of many women’s rights abuses, and obliges governments to take appropriate measures to address such abuses. Article 5(a) of CEDAW obliges states 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.” The ICCPR also provides that “everyone shall have the right to recognition everywhere as a person before the law.”⁴⁶¹ The U.N. Human Rights Committee, the body that monitors compliance with the ICCPR, has interpreted this to prohibit the treatment of women “as objects to be given together with the property of the deceased husband to his family,”⁴⁶² which clearly proscribes the practice of widow inheritance. The argument that some practices are cultural norms and hence impervious to alteration cannot justify a state’s failure to address discriminatory practices. The Human Rights Committee affirms, “States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights.”⁴⁶³ The Ugandan government has done little or nothing to prohibit such widespread practices as widow inheritance and the payment of bride price, nor has it addressed customary law and practices that inhibit women’s full realization of their rights to property ownership.

Human rights law also requires that governments address the legal and social subordination women face in their families and marriages. Article 16(1) of CEDAW provides, “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.” In particular, states are required to afford to women the right to enter into marriage only with their free and full consent,⁴⁶⁴ equal rights with their spouses in marriage and during any separation or divorce,⁴⁶⁵ equal parental rights and responsibilities,⁴⁶⁶ equal rights with regard to the number and spacing of their children,⁴⁶⁷ and equal rights of “ownership, acquisition, management, administration, enjoyment and disposition of property.”⁴⁶⁸ The Human Rights Committee has said: “It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist.”⁴⁶⁹ Women in Uganda contend with discriminatory marriage and divorce laws, unequal rights with respect to owning, acquiring, and disposing of property, and limitations on their rights over their own children.⁴⁷⁰ The Ugandan government maintains the legality of polygynous unions and ignores the coercive nature of widow inheritance, which clearly conflicts with the right of women to enter into marriage only with free and full consent.

Numerous treaties and international treaty bodies acknowledge women’s equal property and inheritance rights. The CEDAW Committee has stated: “There are many countries where the law and practice concerning inheritance and property result in serious discrimination against women. . . . Often inheritance rights for widows do not reflect the principles of equal ownership of property acquired during marriage. Such provisions contravene the Convention and should be abolished.”⁴⁷¹ The right to property is guaranteed under article 14 of the African Charter on Human and Peoples’ Rights (African Charter). The Universal Declaration of Human Rights, widely regarded as customary international law, provides, “Everyone has the right to own property alone as well as in association with others.”⁴⁷² The Human Rights Committee declares that women should have equal inheritance rights to those of men upon the death of the spouse.⁴⁷³ Discriminatory property and inheritance rights under both statutory and customary law and the state’s failure to protect women from eviction and the theft of their property have been demonstrated to be widespread in Uganda.

The presumption of consent to sex in marriage is contrary to international understanding of sexual rights and bodily autonomy. Both the International Conference on Population and Development (ICPD) Programme of Action 1 and the Beijing Platform for Action 2 reflect an international consensus recognizing the inalienable nature of sexual rights. Paragraph 96 of the Fourth World Conference on Women Platform for Action states, “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.”⁴⁷⁴ According to the Committee on Economic, Social and Cultural Rights⁴⁷⁵ (ESCR Committee), the right to health includes the right to control one’s body and embraces sexual and reproductive freedom.⁴⁷⁶ International protections for the right of women to have autonomy over their sexuality can also be found in the principle of bodily integrity enumerated in the ICCPR that provides for the right to liberty and security of the person.⁴⁷⁷

Article 12 of the ICESCR provides for the right of everyone to the enjoyment of “the highest attainable standard of physical and mental health.”⁴⁷⁸ This right imposes an obligation on states to take steps necessary for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases,” ⁴⁷⁹ and for “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”⁴⁸⁰ Article 12 of the ICESCR also provides for the right to prevention, treatment, and control of diseases.⁴⁸¹ The committee has interpreted this to mean that states are required to promote “social determinants of good health, such as . . . gender equity.”⁴⁸² The ESCR Committee recommends “that States integrate a gender perspective in their health-related policies, planning, programmes and research in order to promote better health for both women and men. A gender-based approach recognizes that biological and socio-cultural factors play a significant role in influencing the health of men and women.”⁴⁸³ The committee has specifically highlighted protecting women from domestic violence as “a major goal” in reducing women's health risks,⁴⁸⁴ and states, “It is also important to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights.” CEDAW provides a particular obligation to eliminate discrimination against women in the rural areas, in order to ensure that they benefit from, among other things, access to adequate health care facilities.⁴⁸⁵

The fact that the right to the highest attainable standard of health outlined in the ICESCR requires only “progressive realization,” does not absolve states from having a “specific and continuing obligation to move as expeditiously and effectively as possible toward the full realization of [the right].”⁴⁸⁶ States are required to promote and support institutions providing counseling services; provide information campaigns, including with respect to HIV/AIDS and domestic violence;⁴⁸⁷ train health care staff to respond to the specific needs of marginalized groups; and disseminate information on harmful traditional practices.⁴⁸⁸ According to the CESCR Committee, the failure to prosecute perpetrators of domestic violence, to discourage harmful traditional practices both in law and in fact, and to adopt a gender-sensitive approach to health, amount to violations of a state’s obligations under CEDAW.⁴⁸⁹

The CEDAW Committee recommends that States “intensify efforts in disseminating information to increase public awareness of the risk of HIV infection and AIDS, especially in women and children, and of its effects on them.”⁴⁹⁰ The Committee further recommends that HIV/AIDS programs “give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection.”⁴⁹¹ The HIV/AIDS and Human Rights: International Guidelines, issued in 1998 by the Office of the U.N. High Commissioner for Human Rights and UNAIDS, highlight the need for legislation addressing discrimination and violence against women including harmful traditional practices.⁴⁹² The 2001 U.N. General Assembly Special Session (UNGASS) Declaration of Commitment on HIV/AIDS emphasized the need to integrate the rights of women and girls into the global struggle against HIV/AIDS.⁴⁹³