Gender equality and women’s rights are guaranteed in most Southern African constitutions but these do not result in substantive equality for women. Among other struggles, women remain unequal, under-represented at all levels of decision-making and experience high levels of gender based violence (GBV). These conditions obstruct women from realising their human rights.
 
On paper, all countries in the Southern African Development Community (SADC) have strong provisions on gender equality and equity. In addition, 13 countries, except Mauritius and Botswana have signed and ratified the SADC Gender Protocol (SGP), and are in the process of domesticating the provisions. SADC countries have also committed to other continental and global instruments promoting human and women’s rights. These include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979), the African Union Protocol on the Rights of Women in Africa, the Beijing Declaration and Platform for Action (1995) and the United Nations Millennium Declaration (2000) that spells out the Millennium Development Goals (MDGs).
 
In practice however, these instruments and their clauses are compromised by a lack of political will, slow implementation of key pieces of legislation that promote gender equality, and flagrant abuses of human and women’s rights.
 
As South Africans observe national Women’s Day on 9 August 2014 the Women Empowerment and Gender Equality (WEGE) Bill that aims to give effect to gender equality provisions in the Constitution is currently on hold. WEGE’s key provisions address the “social development’ of women, via education and training aimed at eradicating gender-based discrimination and violence and increasing education around access to healthcare. The other key focus area is equal representation and empowerment of women through the progressive realisation of a minimum of 50 percent representation and ‘meaningful participation’ of women in public and private decision-making structures, including businesses and political parties. There are specific provisions that address the socio-economic empowerment of rural women and women with disabilities.
 
Recent developments on the WEGE are of concern. The Bill has been referred back to Parliament from the National Council of Provinces (NCOP). The NCOP asked how the Bill was linked to other legislation meant to address women empowerment as previous legislation had failed on that objective. What then, was the guarantee that the Bill would be effective?
 
The 2014 Human Rights Watch World Report highlights concerns about human rights abuses in Angola that contradict the provisions in the Constitution as well as other human rights commitments made by the country.
 
In early April 2014, the United Nations High Commissioner for Human Rights, Navi Pillay, visited Angola at the invitation of the government. During her visit, Pillay raised a wide array of human rights concerns, including media restrictions and freedom of expression; the state’s use of excessive force to repress protests; mistreatment and sexual violence against migrants; forced evictions; and violations of economic and social rights. Pillay’s visit shone a spotlight on Angola’s human rights record, which is mostly ignored by regional and international partners in favour of strengthening trade links.
 
Another key challenge in most SADC countries are the contradictions emerging from dual legal systems either through the formal recognition of customary law or common practice. As a result women are treated as minors and do not enjoy the rights guaranteed in the countries’ constitutions. Muna Ndulo, professor of law and director of the Cornell University’s Institute for African Development, also chairperson of the board of Gender Links, discusses the impact of dual legal systems in the Indiana Journal of Global Legal Studies.
 
The sources of law in most African countries are customary law, the common law and legislation (both colonial and post-independence). In a typical African country, the great majority of the people conduct their personal activities in accordance with and subject to customary law, which has a great impact on matters such as marriage, inheritance and traditional authority. Customary laws were developed in an era dominated by patriarchy, some of its norms conflict with human rights norms that guarantee equality between men and women.
 
While recognising the role of legislation in reform, it is argued that the courts have an important role to play in ensuring that customary laws are reviewed and developed to ensure that they conform to human rights law and contribute to the promotion of equality between men and women. The guiding principle should be that customary law is living law and therefore cannot be static and must account for the changing lived experiences of the people it aims to serve.
 
Ndulo states that many constitutions recognise the application of customary law without resolving its conflict with human rights provisions. He uses the Zambia Constitution as an example to illustrate ‘claw back’ clauses that qualify and compromise constitutional provisions on equality and non-discrimination.
 
The new Tanzania Constitution is proposing far reaching changes including press freedom; the public’s right to access information; education for all; greater representation for women in politics; and the adoption of a federal system of government.
 
The draft guarantees women 50 percent representation in Parliament, an increase from the current 30 percent quota. At present, women parliamentarians are appointed to special seats by parties. Under the proposed Constitution, political parties would lose the power to nominate women to parliamentary seats and instead, voters in every province would elect two parliamentarians, of who one has to be a woman.
 
Moving forward all SADC countries must make constitutions living documents that change women’s lived reality and ensure equal rights for women.
 
– Kubi Rama is the Deputy Chief Executive Officer of Gender Links. This article is part of the Gender Links News Service special series on Women’s Month.