CONSTITUTIONAL JURISPRUDENCE - GENDER EQUALITY AND WOMEN'S EMPOWERMENT: MAY 2017 UN WOMEN - Mujeres y Constitución
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ACADEMIC PAPER GENDER EQUALITY AND WOMEN’S EMPOWERMENT: CONSTITUTIONAL JURISPRUDENCE MAY 2017 UN WOMEN
ACADEMIC PAPER
GENDER EQUALITY AND
WOMEN’S EMPOWERMENT:
CONSTITUTIONAL
JURISPRUDENCE
UN WOMEN
NEW YORK, MAY 2017
© 2017 UN Women
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represent the views of UN Women, the Just Governance Group
or International IDEA, or the view of their respective Boards or
Council members.TABLE OF CONTENTS
3. Analysis of constitutional jurisprudence: gender-based violence. . . . . . . . . . . . . 38
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1. Child marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.2. Duties of the state to address domestic violence . . . . . . . . . . . . 40
Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.3. Duty of the state to address and redress sexual violence �������� 44
3.4. Evidentiary rules in cases of sexual violence. . . . . . . . . . . . . . . . . 47
Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.5. Sexual violence and armed conflict . . . . . . . . . . . . . . . . . . . . . . . . 49
Constitutional provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.6. Customary, religious or patriarchal practices
CEDAW and international instruments. . . . . . . . . . . . . . . . . . . . . . . . . . 12 that violate the physical integrity and dignity of women . . . . . . . . . . 52
Judicial reasoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.7. Summary observations related to gender-based violence �������� 56
Public-interest litigation approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Constitutional provisions in GBV cases . . . . . . . . . . . . . 56
Addressing gaps through further research. . . . . . . . . . . . . . . . . . . . . . 12 Application of CEDAW and other
international instruments in GBV cases . . . . . . . . . . . . . 57
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Innovative approaches to judicial
reasoning and strategic litigation in GBV cases ������������ 57
1.1. Objectives and scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Trends in GBV cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1.2. Overarching theme and sub-themes . . . . . . . . . . . . . . . . . . . . . . . 14
Patterns in GBV cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Family law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Areas for further research. . . . . . . . . . . . . . . . . . . . . . . . . 59
Gender-based violence . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Women’s access to public life. . . . . . . . . . . . . . . . . . . . . . 16 4. Analysis of constitutional jurisprudence: women’s access to public life. . . . . . . 60
1.3. Methodology, scope and sources . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4.1 Right of mother to pass nationality/citizenship to children �������� 60
Sources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.2. Equality in identity-related registration . . . . . . . . . . . . . . . . . . . . . 62
Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.3. Women’s political participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Exercise of equality, cultural and religious
2. Analysis of constitutional jurisprudence: family law. . . . . . . . . . . . . . . . . . . . . . . . 20 rights related to women’s access to public
spaces and full participation in society. . . . . . . . . . . . . . 66
2.1. Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.4. Summary of observations
2.2. Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
related to women’s access to public life. . . . . . . . . . . . . . . . . . . . . . . . . 70
2.3. Inheritance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Constitutional provisions:
2.4. Summary observations related to family jurisprudence ������������ 34 women’s access to public life . . . . . . . . . . . . . . . . . . . . . . 70
Constitutional provisions in family law cases ���������������� 34 Application of CEDAW and other international
instruments: women’s access to public life. . . . . . . . . . . 70
Application of CEDAW and other
international human rights treaties. . . . . . . . . . . . . . . . . 35 Innovative approaches to judicial reasoning and
strategic litigation: women’s access to public life ���������� 70
Innovative approaches to judicial
reasoning and strategic public interest litigation ���������� 35 Trends in the resolution of tensions:
women’s access to public life . . . . . . . . . . . . . . . . . . . . . . 71
Trends in the resolution of tensions . . . . . . . . . . . . . . . . 36
Patterns in the resolution of tensions:
Patterns in the resolution of tensions . . . . . . . . . . . . . . 36 women’s access to public life . . . . . . . . . . . . . . . . . . . . . . 71
Areas for further research. . . . . . . . . . . . . . . . . . . . . . . . . 37 Gaps: women’s access to public life. . . . . . . . . . . . . . . . . 71
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
4 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 5ACKNOWLEDGMENTS
5. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
UN Women and International IDEA would like to express their gratitude to Just
5.1. Constitutional provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Governance Group in their professional and diligent carrying out of the research
Provisions that support the resolution of tensions
and drafting of the report. Both organizations would also like to thank the
between rights and customary, traditional, religious staff involved in the conceptualization, review and finalization of the report. In
or cultural rules and practices . . . . . . . . . . . . . . . . . . . . . 72 particular, Beatrice Duncan and Aneesa Walji of UN Women, and Katalin Dobias,
Provisions providing access Melanie Allen, Sumit Bisarya, David Prater and Lisa Hagman of International
to courts and strategic litigation. . . . . . . . . . . . . . . . . . . . 73 IDEA.
5.2. Application of CEDAW and other
international human rights treaties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 The Just Governance Group (JGG) would The identification and translation of judicial
also like to acknowledge the support of a decisions involving constitutional analysis and
5.3. Innovative approaches to judicial number of individuals who made it possible women’s equality rights from the Middle East
reasoning and strategic litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 for the consultants to undertake this global and North Africa region would not have been
exploratory study. JGG engaged two law and possible without the voluntary contributions of
Innovative approaches to judicial reasoning. . . . . . . . . . . . . . . . . . . . . 75
gender specialists to write the study: JGG academics and JGG colleagues from the region
Innovative approaches to executive director, Kimberly Inksater and including Samia Bourouba (Algeria, Associate
strategic public interest litigation. . . . . . . . . . . . . . . . . . . 76 University of Ottawa law professor, Jennie Professor at the High School of Magistracy,
Abell. The principal researchers received Algiers), Dr Ali Al-Hilali (Dean of College of
5.4. Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
support from University of Ottawa Faculty of Rights, Al-Nahrain University, Baghdad,
5.5. Patterns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Law interns, Stefanija Savic and Piratheeca Iraq), Dr Sami Al-Kilani (JGG, International
Vimalarajah, and JGG associates, Dr Sami Community Action Network-ICAN; School
5.6. Areas for further research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 al-Kilani and Zeynep Baser. of Social Work, McGill University, Montreal,
Canada and An-Najah National University,
Annex. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Nablus, Palestine) and Zeynep Baser (JGG,
Turkey).
Annex A. Bibliography of secondary literature. . . . . . . . . . . . . . . . . . . 82
Annex B: Legal and judicial references. . . . . . . . . . . . . . . . . . . . . . . . . . 89
B.1. Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
B.2. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
B.3. Constitutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
B.4. International treaties . . . . . . . . . . . . . . . . . . . . . . . . . 95
Annex C. Content analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Comparative content analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
About the partners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
The Just Governance Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
International IDEA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
UN Women. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
6 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 7ABBREVIATIONS EXECUTIVE SUMMARY
This exploratory global study of constitutional jurisprudence on gender equality
AFJB Association des Femmes Juristes du Benin and women’s empowerment, conducted by the Just Governance Group as part
of a project partnership between International IDEA and UN Women, reveals
BLAST Bangladesh Legal Aid Services and Trust
a series of important findings regarding the current state of lived realities
CEDAW Convention on the Elimination of all Forms of Discrimination against Women for women living under constitutions which purportedly provide for equality
CONTRALESA Congress of Traditional Leaders of South Africa between men and women and prohibit discrimination based on gender.
FGM Female genital mutilation As is well-known, even the best drafted constitutions cannot change the lives of
GBV Gender-based violence citizens by themselves. Numerous obstacles—including legislative and executive
inertia or resistance to change, economic inequalities, social and cultural mores
ICCPR International Covenant on Civil and Political Rights
and imbalance of power in government and society—must be overcome before
ICECSR International Covenant on Economic, Social and Cultural Rights the words of the constitution become meaningful tools for societal change.
IDEA International Institute for Democracy and Electoral Assistance
However, from the range of cases selected in Recommendations
JGG Just Governance Group this—admittedly brief—study, there are also
several reasons to be optimistic about progress. Constitutional provisions
LAC Latin America and the Caribbean Courts have shown themselves to be both
MENA Middle East and North Africa progressive and strategic, willing to engage Constitution-makers and women’s rights
in social context and substantive equality advocates may consider the following
NGO Non-governmental organization analyses to arrive at equitable decisions in line provisions during reform processes:
with the sprit, not just the letter, of the law.
UDHR Universal Declaration on Human Rights 1. Promote the constitutional provisions
Further, the cases demonstrate a wide range
of different constitutional provisions which that were identified as contributing
UN United Nations
have been referenced to improve women’s factors to successful decisions in
UN Women United Nations Entity for Gender Equality and the Empowerment of Women equity and agency, beyond non-discrimination this exploratory study; provide for
and equality clauses. purposive interpretation of the law
based on its aims and objectives or on
In terms of issues particular to the plural constitutional rights; allow organizations
legal systems, courts have used constitutional to have standing in constitutional cases
guidance on how courts should interpret related to the public interest (see the
different sources of law, both in terms of using constitutions of South Africa, Zimbabwe
constitutional compliance review to ensure and Colombia); permit differential
customary law is not harmful to women’s treatment for disadvantaged groups in
rights, and in using international treaties to an effort to achieve equality through
fill gaps in legislation, to produce positive affirmative measures; recognize
decisions with regards to the issues dealt with international law, especially international
in the study (family law, gender-based violence human rights law, as a source of law;
and women’s access to public life. and include mechanisms that permit the
constitutional court to monitor previous
Another notable positive trend in the cases
constitutional decisions.
analyses was the benefit of broad standing
requirements which allow both public interest 2. Seek the removal of provisions that
litigation and the joining of amici curiae to the exempt issues such as family-related
benefit of women litigants. matters, and/or customary authorities
from complying with non-discrimination
The vastly different contexts in which these guarantees, or find ways to reconcile
constitutional provisions operate around the these competing claims.
world do not allow for generalization, but we
provide here some tentative recommendations
for consideration which arise from the case
analyses.
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
8 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 9CEDAW and international instruments the intersection of equality in cultural, 13. Study complex situations such equality rights, especially in relation to
religious and customary rights protected as polygyny to identify the distinct customary, traditional or religious rules
3. Women’s rights advocates and in the constitution. Situate women within challenges faced by the wives and and practices that come into conflict with
amicus curiae should introduce specific their culture, religion and/or customary children of second and subsequent constitutional provisions.
provisions of CEDAW and other community. marriages and the differential impact of 15. Assess the constitutional training
international human rights treaties judicial decisions on them.
9. Provide access to amici curiae or received by judges or customary and
in arguments before the courts to
interveners to assist the court with 14. Study the background to apparently religious authorities that have a mandate
underscore the state’s obligation to
broadening and developing a detailed successful cases and the methodology to resolve or settle disputes between
address inequality and discrimination,
understanding of the context and the adopted by organizations that have individuals and groups, and identify
especially if there are gaps in the
jurisprudence. effectively engaged in public interest areas for improvement.
protections for women in legislation or
litigation that has advanced women’s
the constitution. Public-interest litigation approaches
4. Judges should consider applying
international treaties ratified by the state Lawyers and women’s rights advocates should
to reinforce the obligations to advance consider approaches that have been identified
gender equality and women’s rights. as successful in the sample of cases in this
study:
Judicial reasoning 10. Gather significant evidence to
demonstrate the disadvantage or harm
Judges and judicial training institutes may
experienced by women. Documentary
wish to consider the following approaches
evidence, especially reports published
supportive of gender equality and women’s
by an international agency or academic
rights in litigation and judicial training
institution, is useful to support social
programmes.
context analysis by the court. Expert
5. Apply innovative interpretative witnesses are especially important in
techniques such as social context criminal cases. For any type of public
analysis, substantive equality analysis, interest litigation, it is important to
evidence-based decision-making and demonstrate how individual women
purposive interpretation to advance and/or girls and women and/or girls who
gender equality jurisprudence. are differently situated are directly and
6. Examine all of the rights relevant negatively affected by the law, custom or
in a case and proceed to balance and practice in order to convince the court of
resolve the tensions between them its discriminatory effects.
through intersectional and purposive 11. If addressing customary law in
approaches that prioritize the rights in the courts or customary authorities,
terms of the spirit, aims or values of the argue for the application of a ‘living law’
constitution. A detailed interpretation approach in an effort to encourage the
provides important information related flexibility and evolution of customs that
to the issues to the government, discriminate against women and/or girls.
the legislature and the public. This
analysis, and a clear declaration of Addressing gaps through further research
unconstitutionality, provides the basis Women’s rights organizations, research
for the implementation of the decision. institutes, judicial institutes and others
7. Assess whether groups of women or could study the gaps identified in this
girls would be left unprotected because exploratory study to develop a more detailed
of a judgment. It is especially important understanding of the issues. Many of the gaps
to ensure that women’s rights are would need to be studied at the national or
not infringed to permit the continued regional level rather than the international
application of a custom or practice that level.
has been proven to be discriminatory.
12. Study the effects of landmark
8. Critically examine rules and practices cases on women in similar situations
that discriminate against women and identify how to multiply the
regardless of whether the rules and effects further through legislation,
practices are culturally based or claimed governmental action or civil society
to be central tenets of religion. Consider initiatives.
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
10 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 111
INTRODUCTION
indigenous and community justice lives and the degree to which women’s human
systems…may be formally recognized by rights had advanced. The researchers noted
the state, operate with the acquiescence tensions between customary, religious and
of the state, with or without any explicit traditional patriarchal rules or practices in
status, or function outside of the state’s judicial decisions in relation to three sub-
Constitutions serve as the foundation and framework for the formulation and regulatory framework. (CEDAW GR 33, themes: family law, gender-based violence
implementation of national legislation and policies. They possess the status para. 5) and women’s access to public life (including
nationality). These sub-themes are presented
of the highest norms against which all state acts and omissions are evaluated. It is to be expected that courts will need to on a continuum beginning with family law,
Constitutional provisions are often inspired by the international human rights compare and balance rights, such as religious which was historically considered to be within
obligations of states, and therefore reflect a broad range of social, economic, principles, collective rights (including the the ‘private’ sphere, to gender-based violence
right of indigenous peoples to administer
cultural, political and civil rights and guarantees of public goods. The 20- justice within their own justice system) or an
and then women’s access to the ‘public sphere’.
year review of the Beijing Declaration and Platform for Action demonstrates individual’s cultural and religious rights with Family law
that a number of states have introduced reforms to their constitutions in the right to equality and non-discrimination.
CEDAW provisions call for states parties to
order to enshrine the principle of equality between women and men and the This exploratory study examines how state
courts, using constitutional provisions, take all appropriate measures to eliminate
prohibition of discrimination on the basis of sex. Building on the prohibition discrimination against women, including
interpret, address and often change or limit
of discrimination, some states have introduced provisions in constitutions to religious, customary (including indigenous) discrimination within marriage and the family.
promote specific areas of gender equality, such as representation in national or traditional patriarchal laws or practices Article 16 (1) addresses a number of the issues
parliaments, economic and social rights, access to justice, equality in the family that are deeply rooted in a culture in order to relevant to family law jurisprudence reviewed
in this study:
and marriage, and the creation of gender equality mechanisms. reach a positive result that respects women’s
equality. 1. States Parties shall take all appropriate
The judiciary plays an important role in 1.1. Law itself is an expression of culture and both
measures to eliminate discrimination
interpreting these constitutional provisions against women in all matters relating
and laws. In 193 countries, constitutional Objectives and scope the law and culture are dynamic and evolving to marriage and family relations and
review bodies have been created to determine (Geertz 1983; Rosen 2006; Greenhouse 1998). in particular shall ensure, on a basis of
the constitutionality of an action or inaction The objective of this exploratory study is to According to the UN Human Rights Council: equality of men and women:
by both public and private entities and assess trends and patterns in judicial decision- ‘Culture permeates all human activities
(a) The same right to enter into marriage;
individuals. In the past 25 years, such bodies making at the domestic level that applies and institutions, including legal systems,
constitutional provisions to address gender in all societies across the world. Culture is (b) The same right freely to choose a spouse
have contributed to the emergence of gender
equality and women’s rights when they are created, contested and recreated within the and to enter into marriage only with
equality constitutional jurisprudence across a
affected by customary, religious or patriarchal social praxis of diverse groups interacting their free and full consent;
number of areas of law, such as citizenship,
reproductive rights, education and decision- laws or practices. in economic, social and political arenas. It is (c) The same rights and responsibilities
making. The impact of constitutional decisions manifested in individual and collective self- during marriage and at its dissolution;
on women is not always clear however, and expression, understanding and practices’ (h) The same rights for both spouses in
(2012: 4). Based on this broad understanding
the enforcement of constitutional decisions 1.2. respect of the ownership, acquisition,
is generally a matter for the legislative and of culture and the relevance of law within a management, administration, enjoyment
executive branches of government. Overarching theme and culture, the study considers systems of law and disposition of property, whether
or practices of legal regimes that are distinct
This global exploratory study of constitutional
sub-themes from state law but that may or may not be
free of charge or for a valuable
consideration.
jurisprudence related to gender equality formally recognized by the constitutional text
The overarching theme of the study is how
represents a preliminary assessment of of a state. These could include alternative, Tensions between traditional, cultural or
review courts address gender equality within
how some courts from selected countries in indigenous, customary, tribal or clan-based customary rules or practices and women’s
plural justice systems, which are defined by
the global south address tensions between justice systems; or Islamic, Judaic, Christian or equality rights are exemplified in what has
the CEDAW Committee as:
constitutional provisions and customary, Hindu religious-based laws or practices. The historically been considered the private
religious or ‘traditional’ (understood as the coexistence within a State Party of study also considers the traditional (including institution of the family. Women claim their
patriarchal traditions) laws or practices. The state laws, regulations, procedures and patriarchal) legal principles or rules of the state rights in relation to this institution through
study also attempts, albeit superficially, to decisions on the one hand, and religious, legal culture that have historically presented family law, customary law and/or personal
understand how women and girls have been customary, indigenous or community obstacles to women’s equality. (religious) law.
or will be affected by constitutional decisions. laws and practices on the other.
Therefore, plural justice systems include A preliminary review of constitutional This sub-theme, relative to the overarching
multiple sources of law, whether formal jurisprudence related to the overarching theme of this exploratory study, represented
or informal, whether state, non-state theme revealed that constitutional challenges a significant level of constitutional litigation in
or mixed, that women may encounter varied depending on the regional, subregional Asia and Africa. The cases reviewed in this sub-
when seeking to exercise their right to and national cultural context, which includes topic address the issues of marriage, including
access to justice. Religious, customary, the operative legal regimes regulating women’s customary marriage practices, polygyny and
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
12 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 13adultery; dissolution of marriage, including sets the minimum age of marriage at 18 years Through the lens of international human after 2000.2 It involved a sampling and analysis
the division of property; and inheritance. In of age (the age of majority) and the Convention rights law, citizenship has increasingly been of landmark constitutional jurisprudence
these cases, the courts need to address the on the Rights of the Child (CRC) calls on states defined as multidimensional (Davy 2014); and (including that involving strategic litigation)
tensions between constitutional provisions parties to abolish traditional practices that as an active practice or process in the social from countries in four regions: Africa, Asia and
and customary or religious marriage, divorce harm the child. Given that minors are not able world as much as it is a status or identity vis- the Pacific, Latin America and the Caribbean
and inheritance practices and antiquated to legally consent, all forms of child marriage à-vis the state and political rights (Meer and (LAC) and the Middle East and North Africa
patriarchal common law or statutory principles can generally be considered forced. The Sever 2004; Sweetman et al. 2011). Feminist (MENA).3
that do not meet the equality rights provisions second category of cases relates to the duty of scholars have argued that the interpretation
in constitutions or international instruments. the state to address domestic violence. These of citizenship should be reconceived from a While the study prioritizes the decisions of
cases demonstrate the diminishing public/ gendered perspective: ‘Gendered exclusion constitutional review courts, some lower
Gender-based violence private dichotomy in human rights discourse from citizenship is linked to the public/private court decisions are also included if they are
and challenges to patriarchal legal principles. divide that identifies men’s role as being in the considered landmark decisions that advance
The recognition of gender-based violence women’s rights in three areas of law: family
(GBV), including domestic violence and sexual A third group of cases examines the duty of the public world of politics and paid employment,
state to address and redress sexual violence; and women’s in caring and child-rearing in the law, GBV and women’s access to public life.
violence, as a public law issue in the 1990s Article 2 (f) of CEDAW obliges states parties
placed heightened and more precise duties and patriarchal evidentiary rules in cases home’ (Meer and Sever 2004: 6).
of sexual violence are a fourth specific issue ‘To take all appropriate measures, including
and responsibilities on state actors to address Article 7 of CEDAW calls on states parties to: legislation, to modify or abolish existing laws,
violence against women and girls, whether it addressed in constitutional litigation. A fifth
area of concern, especially in constitutional take all appropriate measures to regulations, customs and practices which
occurs within the family, community or work, constitute discrimination against women’. The
challenges in Latin America, are cases of eliminate discrimination against women
or as a tactic of armed conflict. This sub-topic study therefore identifies ‘positive’ decisions
sexual violence in armed conflict.1 Finally, the in the political and public life of the
relates to both the practices and principles that advance women’s rights within these
tensions related to cultural rules and practices country and, in particular…ensure to
in the state legal culture that have resulted thematic parameters and is limited in scope to
that are either used to justify GBV or amount women, on equal terms with men, the
in impunity for both state and private actors, those that address tensions between gender
to GBV are examined. right:
and the practices in customary or religious equality standards and patriarchal, religious,
communities that cause grievous harm to (a) To vote in all elections and public
Women’s access to public life customary or traditional norms and practices.
women, up to and including death. referenda and to be eligible for election
This sub-theme captures several issues related to all publicly elected bodies; The discussion in this report reflects an
GBV is defined as ‘violence that is directed to an expansive understanding of citizenship, intersectional approach. The Human Rights
(b) To participate in the formulation
against a woman because she is a woman in particular women’s equal rights in relation Council’s 2012 report on women’s rights and
of government policy and the
or that affects women disproportionately’ to nationality, family name, birth registration cultural rights promotes a paradigm in which
implementation thereof and to hold
(CEDAW General Recommendation no. 19: and therefore political participation. The cases women should not have to choose women’s
public office and perform all public
Violence against Women, 1992) and includes reviewed challenge traditional patriarchal rights over cultural rights, or vice versa, but
functions at all levels of government;
‘…physical, sexual or psychological harm rules and practices that discriminate against realize their right to equality while exercising
or suffering to women, including threats of (c) To participate in non-governmental
women in the public sphere. organizations and associations their cultural rights (UN Human Rights Council
such acts, coercion or arbitrary deprivations 2012: 5). The UN Special Rapporteur in the
of liberty, whether occurring in public or Article 9 of CEDAW places a duty on states concerned with the public and political
life of the country. field of cultural rights proposed addressing the
in private life’ (article 1, UN Declaration on parties to give women equal rights with men intersectionality of cultural rights and women’s
the Elimination of Violence against Women, to ‘acquire, change or retain their nationality’. The study explores judicial decisions related rights rather than examining ‘whether and
DEVAW, 1993). Gender-based violence affects Meanwhile article 16 (1) (g) deals with ‘the to rules or practices that negatively affect how religion, culture and tradition prevail over
the human rights of women and girls, including same personal rights as husband and wife, women’s ability to fully enjoy nationality and women’s human rights’ (UN Human Rights
the right to life, the right to equal benefit and including the right to choose a family name’. equal rights related to nationality, citizenship, Council 2012: 4).
protection of the law, the right to equality, the Narrowly conceived, citizenship relates to identity, political participation and access to
right to security and the right to dignity. juridical civic issues such as the right to public places. On the latter issue, women’s This study examines only those issues brought
nationality, the ability to pass nationality or equality rights intersect with cultural and to formal state justice systems and not
A significant level of constitutional litigation citizenship to marital partners and children, appeals to religious, customary or indigenous
was identified in this sub-theme and cases religious expression in the public sphere.
and birth registration (UNESCO 2016). These review tribunals. While some women seek to
were further grouped into specific issues. rights, to nationality and to choose a family challenge and change traditions and practices
First, child marriage cases are addressed name, are ‘gateway rights’ that allow women within a customary or religious legal system,
as an egregious violation of girls’ rights. It is to exercise other rights and be active citizens 1.3.
important to recognize that child marriage,
also referred to as early marriage or forced
in all aspects of public life to the same degree Methodology, scope and 2 The understanding is that cases such as Vishaka v State
as men.
marriage, fits squarely within the sub-topic sources of Rajasthan (India), Attorney General v Unity Dow (Botswa-
na) and other pre-2000 judicial decisions have been
of GBV. Child marriage is increasingly being discussed at length in the secondary literature and
addressed within the framework of GBV (Girls The study involved desk research and analysis that it is important to examine more recent and lesser
Not Brides 2014) because early marriage is of constitutional jurisprudence, especially known decisions.
often forced and child brides are more often 1 Constitutional decisions from African countries by review courts (courts of appeal, supreme 3 For the purposes of this study, due to similarities in
subject to physical and sexual violence. CEDAW affected by armed conflict were not found in the data- courts and constitutional courts) delivered some of the issues, Turkey is included in the Middle
bases used. East and North Africa region.
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
14 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 15often invoking international human rights a constitutional challenge. It is also important as fertile for constitutional litigation as some organizations do not appear to be using the
instruments, such as the Convention on the to recognize that women have multiple legal Anglophone countries, due in part to their state courts to appeal decisions by indigenous
Elimination of All Forms of Discrimination identities and may engage with more than one different legal cultures and histories. Indeed, authorities.12 Similarly, constitutional cases
Against Women, within an alternative, legal regime in their daily lives. The choice of examining the francophone countries of related to women’s access to public life are
customary or religious system (Levitt and modes of engagement is influenced by the Angola, Burundi, the Central African Republic, more numerous in the MENA region and to
Merry 2009; Bourouba 2016a), others seek to specific political and cultural context in each Chad, the Democratic Republic of the Congo, a lesser extent in Asia and the rest of Africa.
challenge traditions and practices by means of individual country. Congo, Equatorial Guinea, Gabon and Rwanda, Where cases addressed more than one issue,
Fombad (2014a) finds a widening gap between the team dealt with them under only one sub-
constitutional texts and practice in these theme. A list of legal and judicial references
countries. can be found at Annex B. In sum, the case
Box 1
selection criteria and factors considered in the
Sources While the initial plan was to balance the final selection of cases were:
coverage of cultures and religions across the
Cases relevant to the overarching theme and initial parameters noted above, that is, post- • post-2000 decisions;
sub-topics, preliminary research revealed
2000 domestic constitutional review or landmarks cases, were identified in databases and
that the overarching and sub-themes were • domestic decisions;
the secondary literature. The secondary literature made it possible to identify specific cases
not uniformly covered by judicial decisions • decisions published in English, French,
and the priority issues of national women’s organizations and organizations that support
in all the regions. For example, the landmark Spanish, Arabic or Turkish;
strategic litigation. A bibliography of the secondary literature reviewed is attaches as Annex
cases that challenged civil codes or family- • constitutional review or landmark
A. At the same time, the following databases and websites were used to identify relevant
related matters in countries in Latin America decisions from lower courts where
judicial decisions:
tend to have occurred prior to 2000. On the the constitution was referenced in the
• Cornell Law School, women and justice database;4 other hand, more recently, women in Latin judicial decision;
• Regional databases or websites such as the Southern Africa Legal Information America have launched important court cases
related to sexual and reproductive rights • decisions that addressed tensions
Institute,5 and the African Human Rights Case Law database;6
and egregious acts of gender-based violence between religious, customary and
• Francophone jurisprudence from superior courts;7 traditional rules or practices that fall
during armed conflict or post-armed conflict.
• National legal institute (lii) or court websites; Given that the former issue is outside of within the three sub-topics; and
• Subject matter-specific databases, such as the Women’s Link Worldwide the scope of this study, the issue of gender- • decisions that advanced gender equality.
Jurisprudence Database,8 or Articulación Regional Feminista,9 which assess and based violence, for which post 2000 cases are Table 1.1 shows the number of cases by sub-
categorize the cases uploaded to their databases;10 available, is the predominant theme in the theme and region.
• The Council of Europe website, which highlights important constitutional cases from cases reviewed from that region. It was also
around the world.11 noted that while in African and Asian countries
women are challenging customary laws and
12 This was confirmed during the inception phase
practices, in the Latin American countries through interviews with experts/specialists in the
where indigenous law is formally recognized region and through searches on national constitu-
4 in constitutions, such as Colombia and Bolivia, tional court sites.
5 indigenous women or their representative
6
7
Table 1.1
8
Number of judicial decisions by sub-theme and region
9
10 Region
No. of cases
11 Sub-theme
by sub-topic
Asia Africa MENA LAC
Family law 6 15 2 0 23
Limitations
It is important to note that, for a number of websites provided more recent court decisions. Gender-based 11 5 1 6 23
reasons, it was not possible or practical to The regions are diverse and vary in terms of violence (GBV)
identify the same number of cases in each of size, legal culture, regime type, the priority
the four regions. The databases referenced given to women’s rights and the prevalence Access to 3 4 9 0 16
of constitutional litigation, especially strategic public life
above are not always comprehensive or
regularly updated (in part due to lack of public interest litigation. According to some Total 20 24 12 6 62
resources). The francophone databases were scholars (Kamga 2014; Fombad 2014a), decisions
especially limited. National and subregional Francophone African countries have not been
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
16 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 172
ANALYSIS OF
declared that the refund violated article 31 (1)(b), first time the Supreme Court had examined the
which guarantees men and women equal changing nature of marriage and the tensions
rights at marriage, during marriage and at between modern domestic relationships and
its dissolution. Furthermore, they found that traditional or religious marriage. The main
CONSTITUTIONAL the refund of a bride price is an example of
an unconstitutional or prohibited custom
pursuant to article 32 (2) of the Constitution,
issue of interest for the purposes of this
study was the first issue addressed by the
court: whether a live-in relationship amounts
JURISPRUDENCE: FAMILY which states that: ‘Laws, cultures, customs and
traditions which are against the dignity, welfare
or interest of women or any other marginalised
to a relationship that is akin to marriage,
and thereby falls within the definition of a
domestic relationship under Section 2(f) of the
LAW
group to which clause (1) relates or which Protection of Women from Domestic Violence
undermine their status, are prohibited by this Act, 2005 (Domestic Violence Act).
Constitution’. Article 32 (1) permits affirmative
action for groups ‘marginalised on the basis The Supreme Court referred to the Hindu
of gender, age, disability or any other reason Marriage Act and the Domestic Violence Act
In many jurisdictions, family law or family-related issues are addressed in created by history, tradition or custom, for the to determine whether the two individuals
culturally based regimes, such as religious or customary law, or alternative purpose of redressing imbalances which exist had been in a domestic relationship. The
dispute resolution mechanisms. In these regimes and state legal systems against them’. court determined that the appellant was a
mistress and had not presented sufficient
women have historically been disadvantaged by patriarchal family The judgement was seen as a partial success evidence to prove the relationship was
arrangements that privilege men in marriage, the dissolution of marriage and (Wambi 2015). The majority in the Supreme similar to a marriage, and therefore she was
inheritance. These three issues are explored under this sub-theme. Court (and the Constitutional Court) appeared not entitled to seek remedies for domestic
to be reluctant to make a declaration on violence and maintenance. While the court
a notorious cultural practice. While they appeared to punish the claimant for living
2.1. took judicial notice of the practice, the lead with a married man, the decision is important
judgement briefly references the right to because the court recognized the existence
Marriage culture (article 37 of the Constitution) but does of cohabitation in India and defined the
not provide guidance on the constitutional categories of domestic relationships that may
The cases in this issue area related to customary were not bought and sold, they continued
limitations on the right to practice one’s or may not be established under section 2(f)
practices in marital arrangements address the to refer to the custom by its commonly used
culture. The dissenting or second opinion of the Domestic Violence Act. The court (para.
definition of a domestic relationship and the term. The majority judgement found that the
is more nuanced and contextual.13 The 37) described various categories of domestic
characterization of adultery. custom did not result in inequality or domestic
dissenting judge agreed with the decision in relationship and noted whether they fall
violence, as argued by Mifumi. The majority
The custom of paying a ‘bride price’ the lead opinion that the refund of a bride within the legislation. Domestic relationships
also found that the custom does not fetter the
was challenged in Uganda by the non- price is unconstitutional but went further by can occur between: (a) an adult male and an
parties’ free consent to enter into marriage.
governmental organization, Mifumi, and 12 acknowledging the abusive aspects of the adult female, both unmarried; (b) a married
On both of these issues the majority found
individual petitioners in Mifumi (U) Ltd & Anor practice and assessing these against various man and an adult unmarried woman, which,
that the evidence (affidavits) submitted did
v Attorney General & Anor. The appellants constitutional provisions. She noted that the entered knowingly, may be a relationship
not provide evidence that persons are forced
claimed that the marriage custom of paying demand for a bride price by the bride’s family ‘in the nature of marriage’; (c) an adult
into customary marriage, although the judge
a bride price—a payment or gift from the will have fettered the free consent of a man unmarried man and a married woman, which,
writing the majority opinion did note that
groom’s parents to the bride’s parents—as a and a woman intending to marry, contrary entered knowingly, may be a relationship
there were reports of parents removing their
precondition for a valid customary marriage to article 31 (3) of the Constitution (pp. 66– ‘in the nature of marriage’; (d) an unmarried
daughters from school and forcing them to
is unconstitutional because it violates several 67). This judge found the payment of a bride adult female who unknowingly enters into a
marry in order to receive the bride price.
articles of the Constitution of Uganda: article price to be inconsistent with article 21, as it domestic relationship with a married male,
The majority did find the refund of bride
31 (3), dealing with free consent of the man promotes inequality, and is clearly contrary to which may be a relationship ‘in the nature of
price to be oppressive based on the affidavit
and woman when entering into marriage; article 31, equal rights in marriage, and article marriage’; and e) same sex (gay or lesbian)
evidence provided. The judge noted that in
article 21, which protects the right to equality 33, which sets out the specific rights of women. relationships, which are not recognized under
cases involving the dissolution of customary the Domestic Violence Act. The court noted
and non-discrimination; and article 24, which The minority opinion referenced CEDAW,
marriages where the bride’s relatives had the modern marital-like arrangements in
refers to respect for human dignity and articles 2 (f) and 16 (1) (b) and (c).
given gifts to the husband’s relatives, these Indian society that parliament recognized
protection from inhuman treatment. Mifumi
are not returned. With regard to the refund The Supreme Court of India addressed the in the Domestic Violence Act by referring to
appealed the Constitutional Court’s dismissal
of the gifts provided to the bride’s parents, definition of domestic relationships, including ‘domestic relationships’ but the court called
of the petition to the Supreme Court.
the court found: ‘In my considered view, the cohabitation or ‘live-in’ relationships, in Indra on parliament to revise the legislation to
The Supreme Court of Uganda (Kampala) custom of refund of bride price devalues the Sarma v VKV Sarma in 2013. This case was the define live-in relationships and the remedies
examined the term ‘bride price’ at the instance worth, respect and dignity of a woman [….] the available at their dissolution.
of one of the government respondents. custom completely ignores the contribution of
13 This case, among others, does not characterize
Although the majority opinion agreed that the woman to the marriage up to the time of its additional opinions that follow the first, presumably
the term was inaccurate because women breakdown’ (pp. 44–45). The majority therefore majority, opinion.
GENDER EQUALITY AND WOMEN’S EMPOWERMENT: GENDER EQUALITY AND WOMEN’S EMPOWERMENT:
18 CONSTITUTIONAL JURISPRUDENCE CONSTITUTIONAL JURISPRUDENCE 19Another issue that causes tensions between Boko Nadjo (Coordinator of Women in Law In a 2005 decision by the National Court of was able to guarantee fair treatment, among
equality rights protections and customary and Development in Africa, WiLDAF, Benin) Justice of Papua New Guinea, Magiten v Beggie, other things (article 5 of the Marriage Law).
practices is the practice of polygyny, where describes the initial law reform efforts, which the plaintiff husband claimed to have married Insa petitioned the Constitutional Court for
custom or legislation allows men to marry began in 1995, and the way in which the his first wife’s sister and protested that this a judicial review, claiming that his decision
multiple wives. The research identified four recommendations were effectively shelved second wife married his brother. The plaintiff to practice polygyny was part of his religious
cases addressing polygyny, which is often by the National Assembly until 2002, when claims that the defendants’ marriage, of his practice of Islam and that the Marriage Law
described as polygamy, and one reference to sustained political pressure from women’s second wife and brother, violated custom contravened his constitutional right to practice
polyandry, when one woman marries multiple advocacy groups, human rights networks, (he alleged a serious breach of custom). The his religion (articles 28 E and 29). The court did
men.14 The cases are from African (Benin and trade unions and the women’s movement judgement reviewed marriage customs in the not apply constitutional provisions related to
South Africa) and Asian (Indonesia and Papua forced an engagement with the issues. In cultural context and applied a seven-step test equality rights (articles 27, 28 D, H and I) in its
New Guinea) jurisdictions. April 2002 they organized a large march on to determine the validity, applicability and analysis. Instead, it justified state regulation
the National Assembly. The President of the enforceability of a custom. Article 55 of the of polygyny in terms of women’s rights
Benin’s Constitution (1990) directly incorp-
National Assembly refused to meet with them, Constitution of Papua New Guinea provides established in the Qur’an and the teachings
orates the African Charter on Human and
so they held a press conference to mobilize for equality rights and Schedule 2 (2.1) (Sunnah) of the Prophet. The court found that
Peoples’ Rights (including its 34 articles related
support. The Family Code was voted in in June
to human rights) and provides liberal standing recognizes custom as underlying law so long the state’s duty did not violate the petitioner’s
2002. Although an improvement, the new
and access to individuals and NGOs seeking to as it is not inconsistent with the Constitution, constitutional rights as the Marriage Law only
Code still contained provisions on polygamy
challenge legislation and any interference by the a statute or general principles of humanity. provides that polygyny must be practiced in
and women giving up their name on marriage.
state or private individuals with the provision The Constitution begins with a list of National accordance with each religion. In this case,
It was these provisions that were the subject of
of those rights. In addition, immediately Goals and Directive Principles, which include Islam provides that it must be practiced with
constitutional challenge in the reference case.
before the Constitution was adopted, the a number of pronouncements related to fair and equal treatment of all wives and their
The Constitutional Court held that religious
Forces Vivantes National Conference was equality. The National Court adopted a literal children. The court did not apply domestic
and cultural practices, including polygamy,
held in Benin in February 1990 and is said to approach to interpretation of the Constitution precedent or international human rights
are subject to constitutional scrutiny,
represent early efforts to implement the rights and a formal equality approach when it instruments to aid its interpretation of the
including the right to equality (article 26). The
of women in the country (World Organization found that customary law was discriminatory Constitution. The decision is an example of a
constitutional guarantee of equality overrides
against Torture 2004). The Association Des because it recognized polygyny but not positive result derived from an interpretation
family law legislation with respect to a number
Femmes Juristes du Benin (AFJB) was created polyandry. Ultimately, however, the court and application of Islamic principles.
of legislative provisions, including article 74,
in January 1990, and is an example of a civil relied on another aspect of customary law
which provides that men can be polygamous
society group whose work seems to have and concluded that the husband had not The 2013 judgment of the South African
but not women. In addition, article 12 (1) of the
been bolstered by these developments. For paid a bride price in his second marriage; Constitutional Court in Mayelane v Ngwenyama
law did not allow a wife to keep her maiden
example, the AFJB has played a significant role is important in terms of developing ‘living’
name. A series of related provisions in the and furthermore that his first marriage was
in establishing women’s rights in the country, customary law and tools for interpreting
legislation that implicitly recognized polygamy a statutory marriage under the Marriage Act.
relying on both constitutional protections and customary law, as well as for prospectively
were also held to be unconstitutional. It is This statute does not permit polygyny and
various international agreements ratified by recognizing women’s equality rights in the
important to note the significance of strong therefore the court ultimately found that the
Benin. Recognizing that ancestral customs and context of polygynous customary marriages.
advocacy leading to this decision, including defendants had not breached custom because
lack of knowledge of rights and duties often The case centred on the interpretation of
by a wide range of actors from civil society the plaintiff had not actually married the
result in human rights violations, the AFJB has section 7 (6) of the Recognition of Customary
and a prominent member of the National defendant, essentially annulling the ‘second
pushed for the publication of written laws and Marriages Act. This section addresses
Assembly, the wife of a former president and marriage’. The judgment relied on domestic
promoted the rights and duties of citizens, proprietary interests in situations where
prime minister, who also applied to the court precedent, particularly a case in which the
with a particular emphasis on the rights of the husband wishes to enter into a second
in this case, requesting that the court find a judge declared that ‘the Constitution is the
women and children (World Organization customary marriage. The appellant and
number of other provisions unconstitutional. modern culture’ (p. 18). The court recognized
Against Torture 2004). respondent were both wives of the deceased.
As a further demonstration of the strength that customary law evolves and therefore
In Review of the Constitutionality of of political movements for equality in Benin, modern custom rather than ancient traditions Both widows attempted to register customary
family legislation, the Benin Constitutional advocacy groups were finally successful in are the source of custom, but appeared to marriages after the demise of the deceased
Court assessed the constitutionality of 2004 in pushing for new legislation (Le Code find a solution that would please both parties because the husband had failed to apply to a
family legislation (Le Code des Personnes et des Personnes et de la famille, enacted 7 June and avoid any explicit declaration on the court to approve a written contract to regulate
de la Famille) in a 2004 reference from the 2004) in response to the court’s ruling. The matrimonial property pursuant to section
constitutionality of multiple marriages.
National Assembly.15 This legislation had been new code abolished polygamy, recognized 7 (6) of the above-mentioned Act. The first
promulgated only after considerable delay the equality of spouses and provided for In the 2007 Indonesian case Re M Insa, the wife claimed that the second marriage was
and sustained advocacy by women’s groups. equal rights in inheritance and property, petitioner, Insa, wished to practice polygyny null and void, as she had not given consent.
legislatively sidelining the customary law that without interference from the state. Law no. However, the High Court found that the Act
was inconsistent with women’s equality.16 1 of 1974 on Marriage required men wishing did not require consent. Three amici curiae
14 Polygyny is generally provided for in customary law to marry more than one wife to submit an (friends of the court) were admitted to help
but not polyandry, so the use of the term polygamy is application to a court in his locality (articles the Constitutional Court interpret customary
over-inclusive.
16 Le Code des Personnes et de la Famille (2004) elimi-
3 and 4 of the Marriage Law); and for the law and practice: the Women’s Legal Centre
15 The researchers reviewed an English summary of nated the applicability of customary law in art. 1030: applicant to demonstrate the consent of any Trust, the Commission for Gender Equality
the case but the full version of the original decision in ‘les coutumes cessent d’avoir force de loi en toutes other wife or wives and that the applicant and the Rural Women’s Movement.
French could not be located. matières régies par le … code’.
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