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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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Macmillan Education Namibia: Windhoek. P. 69 Mair. 1969. In Ruppel, O. (Ed) 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality? Macmillan Education Namibia: Windhoek. P. 71 Bennet. T. 1996a: 17. In Ruppel, O. (Ed) 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality? Macmillan Education Namibia: Windhoek. P. 70 what women in her right senses would allow another woman to share the same man with her, let alone going out of her way to bring a woman to her husband?33” Bennet’s views and add merit to the notion that polygamous marriages do discriminate against women; however his validations for his opinions are over critical. The disadvantage of empirical research which forms the primary research methodology of academics such as Bennet and Hinz34 is often a search for a pre-determined hypothesis formed by the researcher before he has met his research subjects, leading to a pre-determined notion of what the outcome of the research should be. Needless to say, such an attitude leads to the pursuit of answers as opposed to the pursuit of experience, which would give these researchers a better, and perhaps less critical view of what actually happens within these communities.

Therefore, even though the existence of harmful cultural practices are a reality, it is important to be mindful of the fact that there is a rationale attached to these practices within the community’s in which they exist, hence what could be considered as being harmful, detrimental or disadvantageous to observers and researchers, might not necessarily be considered to be harmful by the people actually exposed to these customs. However, those within these communities are not necessarily without remedy, there are measures in place to protect those subjected to harm or detriment.

Chapter 3: Normative Framework of Protection

Cultural practices form an inherent part of African society; however, some of these practices inherently detract from the rights that are enjoyed by women and children on the African continent. As earlier indicated with regards to initiation schools, the initial purpose of these schools is to prepare young girls to be good wives and to turn young boys into men. It is seemingly a process of passage into adulthood that cannot and in some instances will not be abandoned by African tribes. It is reasonable for human rights pressure groups to condemn and oppose certain cultural practices that are harmful or discriminatory to women and children, however, the best option is not always to get on the human rights band wagon and feverishly advocate for the abolishment of these practices.

Bennet. T. 1996a: 17. In Ruppel, O. (Ed) 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality? Macmillan Education Namibia: Windhoek. P. 70 Professor Manfred Hinz is a seasoned researcher and customary law specialist that has published;

amongst others; a book called: A Southern African perspective. Manfred O. Hinz, Helgard K.

Patemann One should have an understanding of the human factors involved. What appears oppressive and harmful to a human rights agency or advocacy group that is looking in on a community from the outside, is more often than not a necessary and liberating experience for the peoples who engage in such practices.

A fitting example is the practice of polygamy that is practiced amongst the Ovambadja people in the northern part of Namibia. The Namibian Constitution in terms of article 10 (2) states that no person shall be discriminated against on the grounds of inter alia sex.35 Whilst section 2 of the Married Persons Equality Act 36 sought to abolish the marital power that husbands had over wives, but stating that both parties to a marriage solemnised in Namibia shall be equal in marriage. Polygamous marriages are not civil but customary in nature, and therefore are not registered. During an expert workshop 37 before the launch of the book Women and Custom in Namibia: Cultural Practice versus Gender Equality 38 the researchers of the book39 were adamant that polygamous marriages were discriminatory and detrimental to the rights and welfare of women and thus had to be abolished. Surprisingly however, Ovambadja women, who were themselves polygamously married and who attended the workshop ardently opposed this notion. They maintained that polygamous marriages have benefits for people in communal areas that could not be comprehended by young girls from the city40.

Firstly, polygamy ensures that each child knows and grows up with a father figure; they prided themselves on not being single parents as so many Namibian women are, but rather parents to many children. The women maintained that ploughing the land was a tough, yet necessary job, however in a polygamous marriage there are more women and children and thus more people to work the fields and mind the cattle. Speaking frankly a young lady related that men are inherently promiscuous beings, they were created to sow their seed far and wide, however, by being in a polygamous marriage she knew exactly who the women were that her husband was sleeping with. She found this to be a better situation than having her husband sleeping around and exposing her to HIV/AIDS. The leader of the group advocated rather that polygamous marriages should be allowed to be registered in order to afford women rights within and after these marriages.





Constitution of the Republic of Namibia. No. 1 of 1990. p. 8.

No. 1 of 1996 The Expert Workshop was held at the Safari Court on the 15 th of September 2008.

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

Of which I was one. I co-authored the research chapter entitled; Women and Custom: a research overview.

Referring to myself and my colleague Lotta Ambunda, who at the time was only 21 years of age.

Needless to say the human rights experts and researchers at the workshop were shocked, but had learnt that there was much more to culture and cultural practices than just its position vis-a-vis human rights.

In South Africa it reported that due to the fact that more and more initiation schools were becoming dangerous because boys were being circumcised under unhygienic conditions and because the initiation process that facilitates passage from boyhood (ubukhwenkwe) to manhood (ubudoda) was too stringent many initiation schools across the country were being closed down, with most of the closure taking place in the Mpumalanga province and the Eastern Cape, were most of the Xhosa people reside. However, instead of stopping the practice it was reported that the ban had forced the practice into secrecy, forcing many young men to run away to attend illegal initiation schools thus having the contra effect of placing the lives of more young men at risk as people looking to make money set up illegal initiation schools41.

Hence, instead of abolishment one should be open to the notion that with regards to culture protection in better than prevention.

Regional Protection 3.1. Initiation schools versus the Rights of the Child The concept of children attending initiations schools is a frowned upon, yet necessary process that children that live in areas were customary laws are dominant need to go through to either be respected by members of the community, as would be the case for boys who attend initiation schools, or for girls this process would qualify her as being ready for marriage in the eyes of community members. The system of initiation schools is largely an impressionate one. The emphasis is therefore not always on the well-being of the child, but rather on how that child would best be viewed by member of the community.

However, there are practices within initiation schools that are harmful, though deeply rooted in culture.

Female genital mutilation (FMG) remains an obstacle to the human rights of women and girls. According to a research on the position in Nigeria it was found that only the Fulani do not practice FMG whilst the Ijaw practice some form of female genital mutilation. According BBC News. Circumcised Die in South Africa. Reported: Thursday 28 May 2009.

to research by the international Labour Organisation, FGM is also extensively practiced among numerous pastoralist groups in Eastern Africa, the Horn of Africa and among various pastoralist groups in Western Africa. In Nigeria, there are no federal laws banning female genital mutilation42.

The African Children’s Charter is clear on the position of children in African societies and calls upon state parties to endeavour to bring their respective legislative structures on par with the common aspirations of the Charter. Interestingly the preamble of the African Children’s Charter notes with concern the fact that the situation of most African children remains critical due to amongst others, cultural, traditional and developmental circumstances, however it takes into consideration the virtues of the African child’s cultural heritage, historical background and the values of African civilisation which inspires and characterise the concept of the rights of the child. Therefore, it is clear that from the onset there exists an understanding that the African child does find her or himself in a dire situation due to certain cultural practices, however because that cultural heritage inspires the human rights an African child has, there can be no separation between culture and rights.

However, a blind eye is not turned to those practices that are harmful. In fact article 1(3)

stresses that:

“Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligation contained in the Charter shall to the extent of such inconsistency be discouraged.” One should note that the word “discouraged” is used as opposed to “abolished”, “outlawed” or rendered “null and void”. My first inclination would be to add that this is a way around swift action on the part of African States in dealing with harmful cultural practices. As a regional institution, the African Union is in the best position to deal with the issue on a continental basis, therefore failure to pronounce itself in the strongest terms creates the impression that harmful cultural practices versus the human rights of children has not yet become a priority.

However, is this really the case? Or is the African Union, treading lightly in balancing the rights of the child with an inherent African phenomenon such as culture?

International organisations are heavily dependent on state co-operation 43. Hence, pronouncing itself too strongly on an aspect that forms a part of the social fibre of so many 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. P. 135.

Dugard. J. 2003. International Law: A South African Perspective. Butterworths: Durban. P.126.

African states could lead to antagonism and thus blatant disregard for the provisions of any of its human rights instruments. It would seem though that the African Union is rather in the habit of encouraging, or discouraging, persuading or dissuading, rather that abolishing or outlawing.

Furthermore, African States realise that culture forms an inerasable part of African life, therefore article 12 of the African Children’s Charter calls upon state parties to: “...Respect and promote the right of a child to fully participate in cultural...life and [to] encourage the provision of appropriate and equal opportunities for cultural...activity.” article 12 should be read with article 21 of the African Children’s Charter to best contrast state responsibility with regards to the rights of the child. Article 21 on protection against harmful social and cultural

practices calls upon state parties to take appropriate measures to:

“...eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular...those customs and practices [that are] prejudicial to the health or life of the child and...Those customs and practices discriminatory to the child on the grounds of sex or other status...” This provision presents a conspicuous move from the soft hands that state parties are dealt with in article 1(3). It goes beyond placing a positive duty on state parties to hone the right of the child to participate in cultural life, to stating pre-emptively the duty on state parties to protect the child from harmful cultural practices.

At a broader spectrum Article 18 of the African Charter on Human and Peoples Rights includes a guarantee for the protection of children at a general level.

Having due regard for the fact that it is stressed that the rights of children should be protected and respected, the question arises, who should protected the rights of children i.e.

who are the real right holders in terms of children?

The importance of the answer to this question has its basis in the notion that cultural practices such as the attendance of initiation schools for both boys and girls could often be a decision that is made without consulting the child. A natural consequence of living within a traditional community has at its ebb the fact that there are certain aspects of community life that are expected to occur when a child reaches a certain age. Girls between the age of 14 and 19 years when they leave for initiation schools in the Krobo culture, whilst the Reed Dance in Swaziland is reserved for eligible maidens between the age of 13 and 20 years of age44. One can then deduce that it is anticipated that when a girl child reaches that age, that Beckwith, C. African Ceremonies. United States of America: HarperCollins. P. 30 she is expected to part take in the initiation ceremony, as failing to do so could bring shame to her family. Her personal view about this is seemingly not considered.

It would seem that this notion is fuelled on by the African Children’s Charter, in that even though article 7 of the Charter grants the child the freedom to express themselves, subject to restrictions prescribed by law, the main test employed when assessing the rights of the child,

is the test for the best interests of the child. This is clear from article 4 which states that:



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