VII. Zambia’s International Legal Obligations

Although the Zambian government has taken impressive steps to address some of the gender-based abuses covered in this report and to address the need for free ART by adults and children living with HIV/AIDS, it is falling short of many of its human rights obligations to women, including women living with HIV, under international law.212

Violence against women, including domestic violence, raises a range of human rights abuses that governments have a direct responsibility to address.  For example, domestic violence violates a woman’s rights to dignity, personal freedom, and physical integrity, as well as their right to freedom from cruel and inhuman treatment.  Governments have positive obligations to protect against violations of these rights, even if the perpetrator is a non-state actor, such as a spouse or partner.

International human rights law makes clear that violence against women is a form of gender-based discrimination that governments must eliminate.  Zambia is a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).213 The CEDAW Committee has on several occasions made clear that the definition of discrimination under the treaty includes gender-based violence as it is “violence that is directed against a woman because she is a woman or that affects women disproportionately.  It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.  Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.” 214

Regional treaties to which Zambia is also bound, namely the African Charter on Human and Peoples’ Rights, also enshrine the principle of non-discrimination on several grounds, including sex.215  The Charter calls on all states to eliminate “discrimination against women” and to ensure the protection of the rights of women, as specified in international human rights conventions.216 

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the African Women’s Rights Protocol), which Zambia ratified in May 2006, clearly states that “every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her legal and human rights.”217 The protocol further protects women’s rights to life, integrity, and security of the person.218 It prohibits all forms of cruel, inhuman, or degrading treatment and calls upon states parties to take appropriate and effective measures to:

a) enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public;

b) adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women;

c) identify the causes and consequences of violence against women and take appropriate measures to prevent and eliminate such violence; ….

f) establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women.219

Zambia also made political commitments to “take urgent measures to prevent and deal with … violence against women” by signing the SADC Declaration on Gender and Development and its addendum on the Prevention of Violence Against Women and Children. 

The accounts of women affected by gender-based violence documented in this report, and the government’s lack of adequate response documented in Chapter VI above indicate that the Zambian government must do more to protect women from gender-based violence and to meet its obligations under international human rights law.  The inadequacy in addressing violence against women has placed tremendous constraints on women’s HIV treatment and is generally reflected in the high-levels of gender-based violence in the country in the absence of effective deterrence.  The lack of adequate government response to gender-based violence is also reflected in the wide range of services that nongovernmental organizations provide.

The International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Zambia is also a party, specifically requires states to take steps to achieve progressively the full realization of the right to “the enjoyment of the highest attainable standard of physical and mental health.”220  General Comment 14 of the Committee on Economic, Social and Cultural Rights (the Committee), the independent panel of experts that monitors the implementation of the ICESCR, recommends that states “integrate a gender perspective in their health-related policies, planning, programs, and research in order to promote better health for both women and men.”221  The Committee further recommended that states remove all barriers interfering with women’s access to healthcare services.222 

The Committee stressed the importance of developing national strategies to eliminate discrimination against women, including the protection of women from domestic violence to reduce their health risks.223 According to the Committee, “the failure to protect women against violence or to prosecute perpetrators; [and] the failure to discourage continued observance of harmful traditional … practices,”224 amount to violations of the states’ obligation to protect women’s right to health.  The Committee further stipulates that “the failure to take measures to reduce the inequitable distribution of health facilities, goods and services, [and] the failure to adopt a gender-sensitive approach to health,”225 amount to violations of the states parties’ obligations to fulfill the realization of the right to health.226

Ensuring that health facilities that provide ART are capable of detecting and responding to gender-based violence would remove a significant barrier that women with HIV experience when accessing appropriate health services, including ART.  This would also help to address domestic violence and the needs of women whose rights have been violated by it.  In order to meet its obligations to protect and fulfill women’s right to health, Zambia must take measures that will help protect against domestic violence and facilitate access to health services for women living with HIV/AIDS who have been abused. 

International human rights law also safeguards women’s right to equal enjoyment of property rights, including in areas of inheritance and allocation of property upon divorce.  CEDAW specifically obliges state parties to “accord to women, in civil matters, a legal capacity identical to that of men…. In particular, [states]… shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.”227 CEDAW also requires states to take appropriate measures to ensure equal rights and responsibilities in marriage and divorce.228  It accords the same rights to both spouses “in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property.”229

Zambia’s obligations concerning women’s equal property rights are further defined in General Recommendation 21 by the CEDAW Committee,230 which states, “The right to own, manage, enjoy and dispose of property is central to a woman's right to enjoy financial independence, and in many countries will be critical to her ability to earn a livelihood and to provide adequate housing and nutrition for herself and for her family.”231  The CEDAW Committee further affirms that “any law or custom that grants men a right to a greater share of property at the end of a marriage or de facto relationship, or on the death of a relative, is discriminatory and will have a serious impact on a woman's practical ability to divorce her husband, to support herself or her family and to live in dignity as an independent person.”232

Like CEDAW, the African Women’s Rights Protocol requires states to enact legislation to guarantee equality between women and men in marriage,233 and in cases of separation, divorce, or annulment of marriage.234  The protocol stipulates married women’s right to own and manage their own property freely.235 The protocol further affirms that upon separation or dissolution of marriage, “women and men shall have the right to an equitable sharing of the joint property deriving from the marriage.”236 

International law also affirms women’s equal rights under laws relating to inheritance.  General Recommendation 21 of the CEDAW Committee states: “There are many countries where the law and practice concerning inheritance and property result in serious discrimination against women. As a result of this uneven treatment, women may receive a smaller share of the husband's or father's property at his death than would widowers and sons ….  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.”237

The experiences of women documented in this report indicate that the property rights of women who marry under customary law are often violated with impunity, and that despite the existence of the Intestate Succession Act, property grabbing is still practiced.  By failing to ensure that women enjoy and can enforce their property rights, the Zambian government is failing to meet its legal obligations discussed above.   

International human rights instruments also set out what protections should exist against abuses linked to individuals’ HIV status.  The Office of the High Commissioner for Human Rights’ and UNAIDS’s international guidelines on HIV/AIDS and human rights provide a road map for governments to enable them to effectively incorporate human rights protections linked to HIV/AIDS into national law.  The guidelines cover the elimination of violence against women (including harmful traditional practices, sexual abuse, and exploitation), protection against discrimination, the need for legislation to address public health issues related to HIV/AIDS, and reform of criminal law to ensure consistency with international obligations. 238  Zambia still does not have specific laws that address discrimination against people living with HIV/AIDS, although a process to develop an HIV/AIDS human rights charter has started.239 

212 Zambia has ratified the following relevant treaties: the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights, and the Protocol to the African Charter on Human and Peoples’ Rights on Women’s Rights in Africa.  Zambia is also a signatory to the 1997 SADC declaration on Gender and Development and its addendum on the Prevention and Eradication of Violence Against Women and Children (1998), where SADC leaders affirmed their commitment to the prevention and eradication of gender-based violence in the region.  Zambia has not domesticated many of these treaties, however.  While this does not absolve the country from its international legal obligations, it affects domestic enforceability.   Human Rights Watch interview with Engwase Mwale, executive director, NGOCC, Lusaka, February 13, 2007. 

213 Adopted and opened for signature, ratification and, accession by General Assembly Resolution 34/180 of December 18, 1979, entry into force December 3, 1981.  Zambia ratified CEDAW on June 21, 1985.

214 See for example the UN Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against Women, (Eleventh session, 1992),Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UNDoc\HRI\GEN\1\Rev.7 (1994), para. 1.

215 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 October 21, 1986, art. 2.

216 Ibid., art. 18(3).

217 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the second Ordinary Session of the Assembly of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force November 25, 2005, art. 3(1).  

218 Ibid., art. 4.

219 Ibid., art. 4 (a-c, f).

221 UN Committee on Economic, Social and Cultural Rights, “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights,” General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), para. 14(20).

222 Ibid., para. 21.

223 Ibid., para. 21.

224 Ibid., para. 51.

225 Ibid., para. 52.

226 Ibid., para. 52.

227 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, art. 15(2).

228 Ibid., art. 16, para. 1(c).

229 Ibid., art. 16, para. 1(h).

230UN Committee on the Elimination of Discrimination against Women, General Recommendation 21, Equality in Marriage and Family Relations, (13th session, 1994). 

231 Ibid., para. 26.

232 Ibid., para. 28.

233 Protocol to the African Charter on Human And Peoples' Rights On The Rights Of Women In Africa, art. 6.

234 Ibid., art. 7.

235 Ibid., art. 6(j).

236 Ibid., art. 7(d).

237 UN Committee on the Elimination of Discrimination against Women, General Recommendation 21, Equality in Marriage and Family Relations, para. 35.  Para. 34 of this recommendation requires party states to include comments on inheritance laws (both statutory and customary) and their effects on women.

238 Office of the High Commissioner for Human Rights and UNAIDS, "HIVAIDS and Human Rights: International Guidelines," from the second international consultation on HIV/AIDS and human rights, September 23-25, 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998, art. 61.

239 Human Rights Watch interview with Matrine Chuulu, WLSA regional coordinator, Lusaka, January 28, 2007. See also  WLSA, “Report of the Situational Analysis on the Development of an HIV/AIDS Human Rights Charter,” unpublished draft, on file with Human Rights Watch.