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The African Commission on Human and People’s Rights and the woman question

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Abstract

This paper proposes that in developing jurisprudence on women’s rights, the African Commission will need to ask the woman question, particularly the African woman question. The woman question requires a judicial or quasi-judicial body to always put woman at the centre of any decision with a view to addressing the historically disadvantaged position of women in society. Asking the African woman question means examining how the peculiar experiences of African women have been ignored by laws rooted in patriarchy across the region. Although the Commission has handled few cases directly dealing with women’s rights, the paper suggests that the Commission can draw inspiration from decisions of other regional and international human rights bodies such as the European Court on Human Rights and the Committee on Elimination of All Forms of Discrimination against Women (CEDAW Committee) on how to ask the woman question. The paper recommends that in line with feminist reasoning, there is a need for the African Commission to develop a consistent gender-sensitive approach in dealing with cases that may have implications for women. In essence, the African Commission must ask the African woman question when dealing with cases on the enjoyment of women’s fundamental rights.

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Notes

  1. Bhe & Others v. Magistrate Khayelitsha [2005 (1) BCLR 1 (Constitutional Court)].

  2. Ramantele v. Mmusi and Others (CACGB-104-12) [2013] BWCA 1 (Botswana Court of Appeal).

  3. Ukeje v. Ukeje [2014] All FWLR (pt. 730) 1323 at 1341.

  4. Practical reasoning as a method tackles problems not as “dichotomized conflicts but as dilemmas with multiple perspectives, contradictions and inconsistencies” (Bartlett 1990, p. 829). Feminist practical reasoning admits differences in human experiences and the importance of taking into consideration competing or inconsistent claims. However, it does not hide its bias by indicating which moral and political choices underlie that bias.

  5. In Mackinnon’s words (1982, p. 29), feminist consciousness-raising refers to “the collective critical reconstruction of the meaning of women’s social experience, as women live through it”. Feminist consciousness-raising aims at creating knowledge through exploring experiences that derive from sharing of life events The kernel of consciousness-raising is to draw the attention of governmental and non-governmental institutions and the public at large, via the media, political campaigning, lobbying and even the arts, to the challenges women encounter by reason of patriarchy.

  6. Wishik has further asked seven important questions feminists often asked, which include: (1) What have been and what are now all women's experiences of the ‘Life Situation’ addressed by the doctrine, process, or area of law under examination? (2) What assumptions, descriptions, assertions and/or definitions of experience—male, female, or ostensibly gender neutral—does the law make in this area?… (3) What is the area of mismatch, distortion, or denial created by the differences between women's life experiences and the law's assumptions or imposed structures?… (4) What patriarchal interests are served by the mismatch?… (5) What reforms have been proposed in this area of law or women's life situation? How will these reform proposals, if adopted, affect women both practically and ideologically?… (6) In an ideal world, what would this woman's life situation look like, and what relationship, if any, would the law have to this future life situation?… and (7) How do we get there from here?

  7. For excellent examples of putting ‘the woman question’ and other forms of feminist legal reasoning into practice, see the various Feminist Judgments Projects: Hunter et al. (2010), Douglas et al. (2015), Stanchi et al. (2016), Enright et al. (forthcoming 2017).

  8. Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 11 July 2003 (known as African Women's Protocol).

  9. Legal Resource Foundation v. Zambia (2001) AHRLP 84 (ACHPR 2001) para 63.

  10. Ibid 63.

  11. Doebbler v. Sudan (2003) AHRLR 153 (ACHPR 2003).

  12. Article 152 of the Sudanese Criminal Law of 1991provides as follows: 1. Whoever commits, in a public place, an act, or conducts himself in an indecent or immoral dress, which causes annoyance to public feelings, shall be punished, with whipping, not exceeding forty lashes, or with fine, or with both. 2. The act shall be deemed contrary to public morality, if it is so considered in the religion of the doer, or the custom.

  13. Ibid para 37.

  14. Ibid para 41.

  15. Ibid para 42.

  16. Unreported case no 9/2002 delivered on 20 March 2002.

  17. Aydin v. Turkey (European Court of Human Rights) Application No. 29289/95. Judgment of 25 September 1997.

  18. Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt Communication 323/06 decided during the 10th Extraordinary session of the African Commission on Human and Peoples’ Right held between 12 and 16 December 2011.

  19. Aydin v. Turkey (European Court of Human Rights) Application No. 29289/95. Judgment of 25 September 1997.

  20. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, January 19, 1984, Inter-Am. Ct. H.R. (Ser. A) No. 4 (1984) para 57.

  21. Maria da Penha v. Brazil (2001) IACHR para.56.

  22. See the Inter-American Court decision in Velasquez Rodriguez v. Honduras (1988) IACtHR, para. 173; see also, Declaration on Violence against Women and General Recommendation 19 of CEDAW.

  23. Communication 294/2004—Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development (on behalf of Andrew Barclay Meldrum) v. Republic of Zimbabwe (ACHPR).

  24. Const. Petit. No. 2 of 2003 [2004] UGCC 1(3/10/2004).

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Authors and Affiliations

  1. Dullah Omar Institute, University of the Western Cape, Bellville, South Africa

    Ebenezer Durojaye

  2. Faculty of Law, Adekunle Ajasin University, Akungba-Akoko, Ondo State, Nigeria

    Olubayo Oluduro

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  1. Ebenezer Durojaye
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  2. Olubayo Oluduro
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Correspondence to Ebenezer Durojaye.

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Durojaye, E., Oluduro, O. The African Commission on Human and People’s Rights and the woman question. Fem Leg Stud 24, 315–336 (2016). https://doi.org/10.1007/s10691-016-9334-8

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