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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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Polygamous marriages are often entered into by women who are either under age or who do not know another way of life. Even more, these marriages are considered in most countries to be customary union, and thus by that very fact spouses of these marriages would not enjoy the same type of protection that would be granted to spouses of a civil marriage. The Namibian government for instance does not recognise and thus does not register polygamous marriages despite many calls for it to do so. 66 Anyolo argues that even though there is the preconceived notion that polygamous marriages are disadvantageous to women, within the Namibian society, the issue of polygamy needs to be re-addressed as was stressed by the Committee on the Elimination of Discrimination against Women in 1997,

which had the following comment on Namibia’s first country report:

“Namibia should address the question on polygamy. It is further said that even in countries where there were religious sanctions for such marriage; efforts were being made to discourage them.” Inherent Discrimination The practice of polygny is inherently discriminatory to women in that it allows for men to have several wives, but does not afford women the right to marry several men. 67 Article 2 (1) (a) of the African Protocol to the African Charter on the Rights of Women in Africa states that See also Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women Anyolo, P. Polygyny among the Ovambadja; A female perspective. In Ruppel, O. 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality. Windhoek: Macmillan Publishers. 83 Articles 2 and 18(3) of the African Charter.

State Parties must combat all forms of discrimination against women by ensuring the equality of men and women within its national constitution and legislative instruments.68 Hence there exists a responsibility on states to ensure that cultural practices that discriminate against women are done away with. Hence even though polygamy is a cultural practice and the right to culture is protected by various international instruments, the practice of polygamy is one that has detrimental consequences for the rights and welfare of women in Africa. Article 2(1) (d) of the African Protocol to the African Charter on the Rights of Women in Africa (Women’s Protocol) requires States to enact and implement legislation that curbs harmful practices which endangers the health and well being of women. Polygamy poses various harms to women, in particular the proliferation of HIV/AIDS infections. 69 The United Nations Program of Action provides for shared responsibilities in respect of raising children; however the practice of polygamy is impedious to this obligation as women are expected to handle duties related to child rearing and the provision of food for the family70.

Furthermore, article 5 of the Women’s Protocol, requires that States prohibit all forms of harmful practices that negatively affect the human rights of women. Article 6 (c) is informed by the abovementioned articles in that it: “encourages monogamy, as opposed to polygamy, as the preferred form of marriage”.

In addressing the need to ensure greater gender equality during marriage, most Constitutions of African States protects the rights to equality and non-discrimination as an important part of their Bill of Rights. Discrimination on the basis of sex, for example, is generally prohibited in most Constitutions. The Constitutions of Egypt, Kenya, Namibia and Uganda prohibit discrimination on the grounds of sex but do not mention gender, whereas the Nigerian and South African constitutions prohibit discrimination on the basis of gender and sex, but the South African constitution goes a step further in addressing and prohibiting discrimination on gender related issues such as pregnancy and marital status71.

Chapter 4: The Case for or Against the Right to Culture Women and children have been identified as forming part of those groups in all African societies that need protection and support. The women forms a corner stone of the African society in that she is responsible for the continual existence of a nation Martin Meredith See also Article 2(a) of the Convention on the Elimination of All Forms of Discrimination Against Women.

See the decision of the Benin Constitutional Court in this regard in review of constitutionality of family legislation (2004) AHRLR 127 (BeCC 2002) Para 7 and 8.

Ibid.

Article 22(2) of the South African Constitution

writes: “...she carries Africa in her belly... the Mother of all souls 72.” The proclaim that:

“bantfwana bangulimba loya embili” whilst the Nyanja declare: “ana ndiwo tsogolo lathu” which, literally translated means; that children are the future. They convey the message that children should be protected and nurtured because without them, society will die73.

There is no real concern for the rights of the adult man, which some would consider to be reverse discrimination. However, I respond to this by highlighting the fact that most of the drafters of these human rights instruments were men, which shows a level of commitment they have to women and children. Moreover, perhaps the need to ensure and protects women’s and children’s rights flows from the conduct of men: Their need to over assert their dominance in patriarchal society has created gender roles that are discriminatory, and harmful to women and children74, hence the need to give special attention to the protection and promotion of the rights of the woman and child over that of the man. Finally, citing reverse discrimination is an affirmation of what women’s activists have long advocated: That there is, in fact, discrimination existing between men and women. To reverse mechanically means to go or apply a notion backwards. What is important then, is to realise that in order to apply that notion backwards is to recognise and embrace that it had, in fact been applied for ward in the first place. Much like the adage of an eye for an eye 75...One eye had to be missing first. Of course some do believe this would leave the world blind, but that is another debate.





In returning to my line of thought, the rights of women and children are recognised as being of a particularly special genre, and rightfully so. But the modus operandi that is discernable from The African Charter on Human and People’s Rights, The African Children’s Charter as well as the African Women’s Charter is not one advocating for the annihilation of culture in its totality, based on the premise that the right culture embodies customs and traditions and practices that are harmful to women and children. No, rather, one notes that for every time that these instruments discourage harmful cultural practices there is an acknowledgment that culture forms a necessary and innate part of African society followed by a call on state parties to act positively with due consideration for the fact that culture must and will remain rooted in the African society.

Meredith, M. 2006. The State of Africa: A History of fifty years of Independence. Jeppestown: Jonathan Ball Publishers. 227.

Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective.

Pretoria: University Law Press. P39 Ambunda, L. & De Klerk, S. Women and Custom: A research perspective. In Ruppel, O. 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality. Windhoek: Macmillan Publishers. 69 This is a Biblical adage that captures the essence of the principles of retributive justice. He who has wronged, should also suffer a wrong.

The African Children’s Charter recognises in its Preamble that children find themselves in a critical situation doe to, inter alia, cultural and traditional circumstances, but goes on to proclaim in that very preamble that cultural heritage, historical background and the values of African civilisation should inspire and characterise concepts on the rights and welfare of the child. Article 1(3) calls upon state parties to discourage any custom, tradition, and cultural practice that is contrary to its obligations under the Charter76, but then calls upon those same states to respect and promote the right of the child to fully participate in cultural and artistic life in article 1277. Meanwhile, perhaps most vigorously article 21 pre-emptively states that state parties shall take all measures to eliminate customary practices that are harmful, discriminatory and prejudicial to the child and it specifically mentions that child marriage should be eliminated by setting the minimum age of eligibility to marry at eighteen. But then article 31(d) of the Children’s Charter places the responsibility on the child to preserve and strengthen African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation to contribute to the moral well being of the society.

It is thus clear that the African Heads of States and Governments in drafting and adopting the African Charter of the Rights and Welfare of the Child 78 was doing a tango on a stretch of land that was filled with landmines of conflicting interests.

The African Children’s Charter’s fundamental difference from the United Nations Convention on the rights of the Child (CRC) is that where he drafters of the Convention on the Rights of the Child took a universal approach to human rights, the African Children’s Charter has made room for cultural relativism. There is no doubt; there are merits to both these approaches.

Since the Convention on the Right of the Child was adopted by the General Assembly in 1989, be instrument has become somewhat of a pioneering piece of legislation. It included the longest and most inclusive list of rights attributed to one group of individuals; it was the quickest ratified instrument of all human rights instruments and thus came into force the fastest.79 It is the most ratified human rights instrument 80, in that it has been ratified by all the world’s nations except East Timor, Somalia and the United States of America.81 Article 1(3) of the African Charter on the Rights and welfare of the Child. 1990/1991.

Article 12 of the African Charter on the Rights and Welfare of the Child. 1990/1991.

1990/1991 The UN Convention on the Rights of the Child came into force nine months after its adoption.

http://www.ohchr.org/english/countires/ratification/11.htm #N40. Accessed 5 November 2010.

As of 26 September 2006, CRC had 192 state parties.

Seemingly this haste in adoption and ratification was indicative of the fact that there existed a general consensus and acceptance of the principles and guidelines set out by the Convention. It seemed there existed a prima facie notion that that the world was in agreement as to the substantive rights that children have and the manner in which children’s rights should be protected, promoted and ensured. Alas, this was not the case.

Thoko Kaime writes that the enthusiasm that greeted the adoption of the Convention on the rights of the Child must be tempered with the flurry of reservations, declarations and the accompanying objections that greeted these record ratifications. He notes that no less than 70 state parties have entered reservations or declarations, some of which attempt to subject the Convention under various religious, cultural or traditional observations existent within the concerned states82.

Therefore, while the global ratification of the Convention on the Right of the Child indicate a general global consensus and acceptance of the principle that the welfare of the child will be best achieved by the promotion and protection of their rights; there isn’t a global consensus on form that protection should take83. Creating a disparity between what and the how regarding the rights and welfare of women and children.

But, the struggle between universal ideas and the relevance of context filters through to all human rights.

The notion of the universality of human rights has its genesis in the wording of the Universal Declaration of Human Rights, which in its Preamble stated that human rights: “...Is a common standard of achievement for all peoples and all nations.” Hence, the notions was created that human rights apply to all, and thus were considered to be universal in nature.

Donnelly writes: “To have human rights, one does not have to be anything other than be born a human being”84 Clearly, this notion that human rights belong to the individual is characteristic of the Western liberal ideology. To simplify it, the Westerner is conscious of the self, whereas the African is preoccupied with the society in which she finds herself, The Westerner is prone to self preservation, whereas the African wants firstly, to co-exist.

Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective.

Pretoria: University Law Press. P.16 Ibid.

Donnelly, J. 1982. Human rights and human dignity: An analytical critique of non-Western conceptions of human rights. American Political Science Review 303 306. In Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective. Pretoria: University Law Press. 17 In that vein the Westerner opines that every person has comprehensive and equal rights, as an individual living within a human society. Universalists do not deny that people from different cultures or backgrounds may be different, but they insist that individual sameness or similarity should prevail over cultural differences when it comes to human rights.85 I find myself, prone to disagree with this opinion. It is my opinion that there are different dynamics that will either rob or enrich a person of his or her human rights. It is pointless in my mind to firstly attribute a right to someone to do not know that they have it, thus knowledge of rights will enrich some, whilst others will continue on without the slightest inclination that their reality is either oppressive or discriminatory and that they deserve better.

Article 15 on child labour of the African children’s Charter firstly is not known to and secondly serves no purpose for the child who works at a cattle post 100km from his homestead in the Omaheke Region. His reality is who will mind the cattle that sustains my family, if I don’t?

The women of the Ovambadja tribe in northern Namibia are not concerned with the inherent discrimination that is attributable to entering into a polygamous marriage, her reality is, why should my child grow up without a father? Sharing a good man is better that no man at all.



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