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«The Role of The African Court on Human And Peoples’ Rights in the Protection and Promotion of Human Rights in Africa: The Case Against Harmful ...»

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This chapter is an elaboration of the problem statement and seeks to give the reader a broader view of what it is that the African Court on Human and Peoples’ rights needs to address. Hence it includes examples of various cultural practices that are deemed to be harmful or discriminatory within initiation schools in Africa, as well as a discussion f why these practices still have a following on the continent. The discussion on polygamy includes examples of communities where the practice is still recognised as custom and ideas about why women from these communities find it to be advantageous, even though the practice is discouraged. The chapter is thus a reflection of the status quo within traditional communities.

1.9.2. Normative Framework of Protection

The normative framework of protection provides an indication of which regional instruments and national laws either protect the right to culture or protect women and children from harmful practices. Hence it is a discussion juxtaposing the right to culture with the responsibility on state parties to protect their citizens from harmful cultural practices. It looks at some constitution of countries as well as laws and policies in various regions.

1.9.3. The Case for or Against the Right to Culture

This chapter balances the contra views of proponents of cultural relativists who suggest that human rights are not universal by virtue of the fact that different traditional communities and people from different countries have different belief systems, thus there cannot never exist a uniform system of law that applies to all human beings merely because they are human. This view is tested against the view by proponents of the universality of human rights, who maintain that human rights should be a higher priority than cultural beliefs; in fact, cultural practices should be tested against human rights principles in order to found their legitimacy.

1.9.4 Advice or Enforcement: the Roles of the African Commission and African Court.

This Chapter looks at the roles that the African Commission and the African Court can play in terms of the balancing of the right to culture with protecting Africans from human rights violations.

Chapter 2: Situation Analysis

2.1. Initiation Schools in Africa In Africa, initiation ceremonies are rooted in deep, conservative traditions. For African females, ceremonies marking their entry into the realm of adults are also a public announcement to the community that she is ready to be married. African life revolves around the family and therefore female African initiation ceremonies tend to focus heavily on the preparation of young girls to be good wives, because it will her primarily her responsibility to look after and take care of the family, therefore her preparation for her role as the primary caregiver and well as the mother and wife is important.

Indicative of this notion is that young girls from the Krobo 17 ethnic group, which is dispersed The Krobo constituted the largest group of the Adangme-speaking peoples in Ghana. They are located in the mountains just inland from the coast and are the fourth largest ethnic group in the country. During the across Ghana, perform the Dipo ceremony which lasts about five days, whilst pre-ritual preparation requires three weeks. What happens is that the mother of a young girl will select a ‘ritual mother’ for her daughter which could be a favoured aunt. The ritual mother prepares the young girl for her future role as a wife and mother. The girl is taught how to cook, run the household, play music, dance and groom herself. During her stay at the initiation school she is encouraged to leave behind her childhood ways and become a woman 18. The ritual mother will also school the young girl in the art of seduction. The ability to please a man in every way is an art taken seriously by Krobo women. A special string of beads may be worn loosely about her hips as a visual gift to her husband. However criticized, this focus on seduction does not necessarily lead to a high-rate of promiscuity, this is due to the fact that a woman who lets a man other than her husband view her hip beads could be considered unfaithful19.

Once the young girl has completed her three-week ‘finishing school’, she is ready for the Dipo ceremony. Although the goal of the ceremony is to celebrate a young girl’s new maturity, it is also a forum for attracting a husband. To afford the best possible selection, the girl will travel with her female mentor to nearby villages to perform the ceremony. She takes with her all the glass beads owned by her family. Glass beads represent wealth among the Krobo and the more beaded necklaces, bracelets and other adornments she wears; the more attractive she will be seen to be. Traditionally the girls would perform the ceremony wearing nothing but their glass beads, but today all girls wear a loin cloth.2021 Conversely, closer to home, every year during the months of August and September, eligible maidens from the Kingdom of Swaziland attends the Reed Dance, locally known as the Umhlanga. The eight-day ceremony marks the beginning of adulthood for Swazi girls, and also announces to the Kingdom that they are ready for marriage. The ceremony, which is restricted to unmarried and childless girls, starts when the girls arrive at the royal home of the mother of the King of Swaziland. To protect the girls on their journey, reputable men nineteenth century they were one of the small states of the Gold Coast in the formative stages of political and cultural development. After the middle of the nineteenth century they became economically and politically one of the most important groups in the country because of their dominant role in commercial production of export crops. In Louis E. Wilson. 1994. The Krobo People Of Ghana To 1892 — 1991: A Political And Social History. Ohio: Ohio University Press.





Louis E. Wilson. 1994. The Krobo People Of Ghana To 1892 — 1991: A Political And Social History. Ohio: Ohio University Press. P 17 Ibid.

Beckwith, C. African Ceremonies. United States of America: HarperCollins. P. 31 A loincloth is a one-piece garment, sometimes kept in place by a belt, which covers the genitals and, at least partially, of the person wearing it. It is mostly worn by men. www.wisegeek.com/what-is-a-loincloth.htm.

Accessed 12 November 2010.

from their home villages accompany them to the dance. Within groups the girls march to the nearby reed beds with long knives, cutting ten to twenty reeds a piece. The next day the reeds are presented to the King’s mother as a sign of respect. For the next several days, the girls perform a series of songs and dances, in hopes of attracting the eye of a suitable man to marry.22 On the seventh day of the ceremony the King arrives to watch the girls dance. If he so desires, he will choose one girl from the crowd to be his wife. The King orders several cattle to be slaughtered from which everyone shares in the feast. On the eight day, the ceremony is complete and the girls return to their villages ready for marriage. 23 If the girls have not been chosen by the King to be his bride, they can be married by other men from their villages. The King however, has the right of first option.24 The Kingdom of Swaziland has been criticised in some aspects for this ceremony. The King of Swaziland has been accused of using the ceremony as a way for him to lay claim to very young girls. His brides are often under age and are thus forced into underage marriage with the King25.

Some women initiation ceremonies are slowly disappearing. To the approval of many women’s rights groups, female circumcision is one. However, this practice is still quite common among the Masaai and Himba people of Southern Africa. As in most African societies, a young girl is considered an adult once she is eligible to marry. For the Masaai and Himba, a young girl will not be suitable for marriage unless she undergoes the circumcision ceremony. Usually the ceremony is attended by the females of the girl’s family.

In a private room in their home or out in the veldt, an elderly matron cuts out the girl’s clitoris with a razor blade. The procedure is also called female genital mutilation 26 and has been condemned worldwide for its potential danger to young girls.

African tribes still practicing female circumcision insist that the ceremony enforces chastity among females and is central to the initiation rites of girls entering adulthood. Supporters Beckwith, C. African Ceremonies. United States of America: HarperCollins. p. 23 Ibid.

Beckwith, C. African Ceremonies. United States of America: HarperCollins. p. 25 Ibid.

Female genital mutilation is a customary practice usually performed by traditional practitioners, generally elderly women in the community specially designated for this task, or by traditional birth attendants.

Commonly the clitoris is amputated and the labia minora [section above the women’s vagina] are partially or totally removed, often with the same stroke. Bleeding is stopped with packing and bandages or by a few circular stitches which may or may not cover the urethra and part of the vaginal opening.

www.circumstitions.com/FGM-defined.html. Accessed 12 November 2010.

also cite that circumcision ceremonies continue to exist among males with little condemnation from human rights organizations. Himba males, for example, are forced to undergo a painful circumcision. They are absolutely forbidden to cry out in pain for fear of shaming their family, whereas females are encouraged to release their pain vocally.

Female African initiation ceremonies, much like their male counterparts, provide instructions to females on what society will expect of them as adults. Having imitated their mothers from birth, most girls are already fully aware of what will be expected of them as women. The ceremony, however, is the public expression of this expectation by the society – a positive form of peer pressure.

Another cultural practice that has been viewed has having human rights implications is the practice of polygamy (polygyny)

2.2. The Practice of Polygamy (Polygyny) Even in countries where women rights have been formally guaranteed, it is still evident that women suffer many forms of marginalization and discrimination. As the primary care givers in rural areas especially, women bear the brunt of poverty, lack of social services and disease transmissions. Formal protection that is guaranteed by law is often trumped by tradition and custom.

This can be seen with the practice of polygamy that is the state of being married to more than one spouse, at the same time. In Africa the practice of polygyny is more widespread, than that of polyandry i.e. one woman having more than one husband. A Polygynous marriage takes place when a man is allowed, by custom or tradition to take for himself, more than one wife. The practice appears more often in highly patriarchal 27 societies28. Indigenous women living in countries with Shari’ah based family codes often experience conflicts between their way of life, which is often more egalitarian and state laws which seek to afford both men and women equal rights. In Algeria, the Code de la Famille (Family Code) allows for polygamy, for the minority status of women, and for the prohibition to marry non-Muslims.

Patriarchy is based on the “pater familias doctrine”, where the male’s status is elevated above that of the woman, thus he is seen as being more important and the more dominant presence within the society. In Ruppel, O. (Ed) 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality? Macmillan Education Namibia: Windhoek. P. 67 Ruppel, O. (Ed) 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality? Macmillan Education Namibia: Windhoek. P. 69 All these aspects are said to work against Amazigh culture.29 In Namibia, polygyny is still practiced amongst the Ovambadja community in the north of the country. These marriages are classified as customary unions, and thus are not registered, which in turn creates avenue for exploitation or property grabbing by the relative of the husband once the husband dies.

Bennet states that a customary marriage offers few, if any advantages to women and children. Children gain nothing in the way of legal protection because, according to customary law, they are always affiliated to a family regardless of their legitimacy. Whereas women stand to lose legal capacities when they marry in this way and their claims to maintenance and custody and guardianship of children are not improved.30 Mair opines that African women are in an inferior position and that they suffer from serious legal disabilities. According to Mair, this situation has been caused by specific developments such as the introduction of money, information and communications technology, and the possibility of employment. The author describes a state where African women have been reduced to bartering instruments and that one of the distinguishing features of an African [customary] marriage is that a fundamental inequality exists between the sexes 31.

Further connotations by Bennet32 include the notion that customary marriages in fact violates gender equality since only men are allowed to practice it by taking more than one wife. He stresses that the issue of polygamy is one of discrimination, social inequality, and injustice

to women. In particular, Bennet writes:

“Nobody gave men any cultural right to marry more than one woman. Out of selfishness and wanting to satisfy their basal appetite, men arrogated themselves the right to have access to as many women as possible. In the days when men used brutal force to dominate and suppress women, the latter were afraid to oppose the harm being done to them. Otherwise, The Amazigh people occupy the Northern part of Africa which extends from the Red Sea to the Canary Isles in the ocean, and from the Niger in the Sahara to the Mediterranean Sea. International Labour Organisation and African Commission on Human and Peoples’ Rights. 2009. Overview Report of the Research Project by the International Labour Organisation and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the Rights of Indigenous Peoples in 24 African Countries. South Africa.

Cited in Ruppel, O. (Ed) 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality?



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