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CHAPTER 1

1.1 GENERAL INTRODUCTION

All human beings are born free and equal in dignity… and rights…. Everyone is
entitled to … rights … without distinction in any kind, such as … sex…. All are equal
before the law and are entitled without any discrimination to equal protection against
any discrimination in violation of this Declaration and against any incitement to such
discrimination…. Everyone, without any discrimination, has the right to equal pay
for equal work….1

Everyone has the human right to freedom from discrimination on the ground of
gender, race, ethnicity, etc. These human rights are expressly set out in the
Universal Declaration of Human Rights, the International Covenants, the
Convention on the Rights of the Child (CRC)2 and other widely adhered to
international human rights treaties and Declarations.

The human right to freedom from discrimination entitles every woman, man,
youth and child to fundamental human rights including the human rights to
freedom from distinction, exclusion, restriction or preference based on gender,
etc., which has the purpose or effect of impairing the enjoyment of human
rights and fundamental freedoms; the human right to equality between men and
women; the human right to equality between boys and girls in all areas
including education, health, nutrition and employment; etc.

Furthermore, all human beings have the human right to livelihood and work,
and human rights norms and standards guarantee women full equality in all
aspects of economic life. Women have the human right on equal terms with
men to dignified, creative and productive labour, free from discrimination and
exploitation enabling them to live in peace, security, justice and dignity. Girls
also have a bundle of rights, which are fundamental to them without

1
Articles 1, 2, 7 and 23, Universal Declaration of Human Rights, 1948 A/Res/217 of 10 th December,
1948. http://www.hrweb.org/legal/udhr.html (accessed on August 1st, 2007)
2
The Convention was adopted by the United Nations General Assembly Resolution 44/25 of 20th
November, 1989. It entered into force 2nd, September 1990, in accordance with Article 49.
http://www.unhchr.ch/html/menu3/b/treaty15_asp.htm (accessed on July 29th, 2007)

1
discrimination as to their gender. The human right to equality between boys and
girls in all areas is paramount.

Therefore, the Convention on the Elimination of All Forms of Discrimination


Against Women (CEDAW)3 aims at securing the rights of women against
discrimination which manifest in the forms of unequal treatment, domestic
violence, female genital cutting, rape, etc. These unequal treatment and
violence violates the fundamental human rights of women and is an affront to
their inherent dignity. Physical, psychological and sexual violence against
women and girls plague all societies and classes and poses great obstacles to
the achievement of equality, development and peace.

An exhaustive work will therefore be carried out to critically examine the


attributes of some cultural, religious, political and legal practices to show the
various forms of discrimination against the female gender.

1.2 CONCEPT OF GENDER

Gender does not refer to women or men; the concept is generally used to refer
to the socially constructed roles ascribed to women and men in society. It is a
relational concept which refers to the relationship between women and men
and the cultural symbolic differences between them.4 Thus, the concept of
gender has been defined as;

… an all inclusive concept which not only entails what women and men do and how
they relate in society, but also embraces cultural ideas about ‘maleness’ and
‘femaleness’ and the structural inequalities which emanates from those differences.5

3
The Convention was adopted by the United Nations General Assembly Resolution 34/180 of 18th
December, 1979. It entered into force on 3rd September, 1981. http://www.hrweb.org/legal/cdw.html
(accessed on August 1st, 2007)
4
Ruth N. Kibiti Culture, Ethics and Ideology: The Gender Implications, plenary paper presented at the
CRCK seminar on: Culture, Ethics and Ideology. http://www.kenyaconstitution.org/docs/09cd001.htm
(accessed on January 12th, 2005)
5
Stolen Women, gender and Social Change 1991, 4; quoted by Ruth N. Kibiti Culture, Ethics and
Ideology: The Gender Implications, plenary paper presented at the CRCK seminar on: Culture, Ethics
and Ideology. http://www.kenyaconstitution.org/docs/09cd001.htm (accessed on January 12th, 2005)

2
A person's sex as female or male has legal significance - sex is indicated on
government documents, and laws provide differently for women and men. For
example many pension systems have different retirement ages for men or
women.

In many countries it is by no means clear that men and women are treated
equally and that they enjoy the same rights and freedoms. Human rights should
apply equally to women and men. However, women and girls are often denied
the basic rights that form part of every day life such as freedom of movement,
access to education and participation in decision-making processes. There are
many barriers to equality between the sexes. Important factors include gender
stereotyping, violence against women, social and cultural attitudes and
discriminatory laws and practices.

1.3 THE CONCEPT OF RIGHTS

A right is "a just, proper or legal claim; a thing one is entitled to do or have by
law, a legal authority or claim to something."6 It is said to be an entitlement or
justified claim to a certain kind of treatment from others, to assistance from
others or non-interference from others.7 A legal right will therefore arise
whenever the operation of a pre-existing legal rule gives an individual an
entitlement enforceable at law. It is usually accompanied by a legal duty on
another party to fulfill that entitlement or refrain from denying it. Rights are
socially established ways of acting or ways of being treated. A right is therefore
regarded as a beneficial way of acting or of being treated both for the right
holder and, more generally, for society. Thus, it is or should be something
socially accepted, recognized and protected in given societies, and such
acceptance would be deemed reasonable, even by outsiders.
6
A. S. Hornby Oxford Advanced Learner’s Dictionary of Current English, Oxford University Press,
1995, 1012
7
Jan Garrett The Concept of Rights, http://www.wku.edu/~wjan.garrett/ethics/needs.htm
(accessed on July 29th, 2007)

3
The concept of rights is older than the United Nations but relatively new in
human history. Throughout history, governments formed to protect people from
domestic criminals and foreign invaders, but people also needed protection
from their own government. Governments against their own people,
specifically governments that were above the law, committed the greatest
crimes in history. In the 20th century alone, scores of millions were slaughtered
by communist and fascist governments, which regarded their citizens as means
to their ends.

The 18th century concept of individual rights is founded on the opposite a nd


revolutionary idea, that each individual is an end in him/her, with his/her life
and happiness as the moral purpose. That's what the United States' founding
fathers meant by the individual's right to "life, liberty, property and the pursuit
of happiness.” These rights, being ‘inalienable’, cannot be abrogated by
government decree or majority vote. Because these rights apply to each
individual, nobody's rights can negate anyone else's. Individual rights are
freedoms of action that a rational being requires to choose and achieve the
values that his life and happiness require; actions such as creative thought,
productive work, voluntary association and free trade. Only such freedoms can
yield peaceful coexistence and prosperity.

1.4 EVOLUTION OF HUMAN RIGHTS

Human rights have been defined as:

…basic moral guarantees that people in all countries and cultures allegedly have
simply because they are people. Calling these guarantees "rights" suggests that they
attach to particular individuals who can invoke them, that they are of high priority,
and that compliance with them is mandatory rather than discretionary. Human rights
are frequently held to be universal in the sense that all people have and should enjoy
them, and to be independent in the sense that they exist and are available as
standards of justification and criticism whether or not they are recognized and
implemented by the legal system or officials of a country.'8
8
Nickel James Making Sense of Human Rights: Philosophical Reflections on the Universal
Declaration of Human Rights, Berkeley; University of California Press, 1987, 561-2.

4
Human rights aim to identify both the necessary negative and positive
prerequisites for leading a minimally good life, such as rights against torture
and rights to health care. This aspiration has been enshrined in various
declarations and legal conventions issued during the past sixty years, initiated
by the Universal Declaration of Human Rights and perpetuated by, most
importantly, the International Covenant on Economic, Social and Cultural
Rights9, the International Covenant on Civil and Political Rights10 and the
African Charter on Human and Peoples’ Rights.11 Together these four
documents form the centerpiece of a moral doctrine that many consider to be
capable of providing the contemporary geo-political order with what amounts
to an international bill of rights. Public authorities, both national and
international, are identified as typically best placed to secure these conditions
and so, the doctrine of human rights has become, for many, a first port of moral
call for determining the basic moral guarantees all of us have a right to expect,
both of one another but also, primarily, of those national and international
institutions capable of directly affecting our most important interests.

The concept of human rights has existed under several names in European
thought for many centuries, at least since the time of King John of England.
After the king violated a number of ancient laws and customs by which
England had been governed, his subjects forced him to sign the Magna Carta,
or Great Charter, which enumerates a number of what later, came to be thought
of as human rights. Among them was the right of the church to be free from
governmental interference, the rights of all free citizens to own and inherit
property and be free from excessive taxes. It established the right of widows
who owned property to choose not to remarry, and established principles of due
http.//www.ep.utm.edu/ (accessed on August 1st, 2007)
9
The Covenant was adopted by the United Nations General Assembly Resolution 2200A (XXI) of 16th
December, 1966. It entered into force on January 3rd, 1976, in accordance with Article 27
http://www.unhchr.ch/html/menu3/b/treaty_asp.htm (accessed on August 1st, 2007)
10
The Covenant was adopted by the United Nations General Assembly Resolution 2200A (XXI) of
16th December, 1966. It entered into force on March 23rd, 1976, in accordance with Article 49
http://www.ohchr.org/english/copyright.htm (accessed on August 1st, 2007)
11
African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21st, 1986
http://www.hrw.org/doc/?t=africa (accessed on July 29th, 2007)

5
process and equality before the law. It also contained provisions forbidding
bribery and official misconduct. The political and religious traditions in other
parts of the world also proclaimed what have come to be called human rights;
calling on rulers to rule justly and compassionately, and delineating limits on
their power over the lives, property, and activities of their citizens.12

In the eighteenth and nineteenth centuries in Europe several philosophers


proposed the concept of "natural rights;”13 rights belonging to a person by
nature and because he was a human being, not by virtue of his citizenship in a
particular country or membership in a particular religious or ethnic group. This
concept was vigorously debated and rejected by some philosophers as baseless.
Others saw it as a formulation of the underlying principle on which all ideas of
citizens' rights and political and religious liberties were based.

In the late 1700s two revolutions occurred which drew heavily on this concept.
In 1776 most of the British colonies in North America proclaimed their
independence from the British Empire in a document, which still stirs feelings,
and debate, the U.S. Declaration of Independence.

We hold these truths to be self-evident; that all men are created equal, that they are
endowed by their creator with certain unalienable rights, that among these are life,
liberty and the pursuit of happiness.14

In 1789 the people of France overthrew their monarchy and established the first
French Republic. Out of the revolution came the Declaration of the Rights of
Man.

12
“Historical origins and development of the theory and practice of human rights”
http.//www.ep.utm.edu/ (accessed on August 1st, 2007)
13
The basis of the doctrine of natural law is the belief in the existence of a natural moral code based
upon the identification of certain fundamental and objectively verifiable human goods. Our enjoyment
of these basic goods is to be secured by our possession of equally fundamental and objectively
verifiable natural rights. Natural law was deemed to pre-exist actual social and political systems.
Natural rights were thereby similarly presented as rights individuals possessed independently of society
or polity. Natural rights were thereby presented as ultimately valid irrespective of whether they had
achieved the recognition of any given political ruler or assembly. The quintessential exponent of this
position was the 17th. Century philosopher John Locke and, in particular, the argument he outlined in
his Two Treatises of Government (1688)
14
Preamble to the US Declaration of Independence http://members.tripod.com/~candst/doisussc.htm
(accessed on September 8th, 2007)

6
The term, ‘natural rights’ eventually fell into disfavour, but the concept of
universal rights took root. Philosophers such as Thomas Paine, John Stuart
Mill, and Henry David Thoreau expanded the concept. Thoreau is the first
philosopher known to have used the term, "human rights", and this was in his
treatise, Civil Disobedience.15 Other early proponents of human rights were
English philosopher John Stuart Mill, in his Essay on Liberty, and American
political theorist Thomas Paine in his essay, The Rights of Man.

In the middle and late 19th century a number of human rights issues took the
center stage. They included issues like slavery, brutal working conditions,
starvation wages and child labour. In the United States, a bloody war over
slavery came close to destroying a country founded only eighty years earlier on
the premise that, "all men are created equal." Russia freed its serfs the year that
war began. However, neither the emancipated American slaves nor the freed
Russian serfs saw any real degree of freedom or basic rights for many more
decades.16

For the last part of the nineteenth and first half of the twentieth century human
rights activism remained largely tied to political and religious groups and
beliefs. Revolutionaries pointed at the atrocities of governments as proof that
their ideology was necessary to bring about change and end the government's
abuses. Many people, disgusted with the actions of governments in power, first
got involved with revolutionary groups because of this. The governments then
pointed at bombings, strike - related violence, and growth in violent crime and
social disorder as reasons why a stern approach toward dissent was necessary.
Neither group had any credibility with the other and most had little or no
credibility with uninvolved citizens, because their concerns were generally
political, not humanitarian. Politically partisan protests often just encouraged
more oppression, and uninvolved citizens who got caught in the crossfire

15
This work extremely influenced individuals like Leo Tolstoy, Mahatma Gandhi, and Martin Luther
King. Gandhi and King, in particular, developed their ideas on non-violent resistance to unethical
government actions from this work.
16
“Historical origins and development of the theory and practice of human rights” op. cit. note 12

7
usually cursed both sides and made no effort to listen to the reasons given by
either.17

Nonetheless many specific civil rights and human rights movements managed
to affect profound social changes during this time. Labour unions brought
about laws granting workers the right to strike, establishing minimum work
conditions, forbidding or regulating child labour, establishing a forty hour work
week in the United States and many European countries, etc. The women's
rights movement succeeded in gaining for many women the right to vote.
National liberation movements in many countries succeeded in driving out
colonial powers. One of the most influential was Mahatma Ghandi's movement
to free his native India from British rule. Movements by long-oppressed racial
and religious minorities succeeded in many parts of the world, among them the
U.S. Civil Rights movement.

The modern human rights movement didn't invent any new principles. It was
different from what preceded it primarily in its explicit rejection of political
ideology and partisanship, and its demand that governments everywhere,
regardless of ideology, adhere to certain basic principles of human rights in
their treatment of their citizens. This appealed to a large group of people, many
of whom were politically inactive, not interested in joining a political
movement, not ideologically motivated, and didn't care about creating "the
perfect society" or perfect government. They were simply outraged that any
government dared abuse, imprison, torture, and often kill human beings whose
only crime was in believing differently from their government and saying so in
public. They took to writing letters to governments and publicizing the plights
of these people in the hope of persuading or embarrassing abusive governments
into better behaviour.18

Similarly, the concept of individual rights continued to resound throughout the


19th Century exemplified by Mary Wollstonecraft’s Vindication of the Rights of
17
Ibid.
18
Ibid.

8
Women and other political movements to extend political suffrage to sections of
society who had been denied the possession of political and civil rights. The
concept of rights had become a vehicle for effecting political change. Though
one could argue that the conceptual prerequisites for the defence of human
rights had long been in place, a full Declaration of the doctrine of human rights
only finally occurred during the 20th Century and only in response to the most
atrocious violations of human rights, exemplified by the Holocaust. The
Universal Declaration of Human Rights (UDHR)19 was explicitly motivated to
prevent the future occurrence of any similar atrocities. The Declaration itself
goes far beyond any mere attempt to reassert all individuals' possession of the
right to life as a fundamental and inalienable human right. The UDHR consists
of a Preamble and 30 articles which separately identify such things as the right
not to be tortured (Article 5), a right to asylum (Article 14), a right to own
property (Article 17), and a right to an adequate standard of living (Article 25)
as being fundamental human rights. As noted earlier the UDHR has been
further supplemented by such documents as the International Covenant on
Economic, Social and Cultural Rights (1966) and the International Covenant on
Civil and Political Rights (1966). The specific aspirations contained within
these three documents have themselves been reinforced by innumerable other
Declarations and Conventions. Taken together these various Declarations,
Conventions and Covenants comprise the contemporary human rights doctrine
and embody both the belief in the existence of a universally valid moral order
and a belief in all human beings' possession of fundamental and equal moral
status, enshrined within the concept of human rights.

19
In 1945 in San Francisco, 50 nations adopted the United Nations Charter, a document setting forth
the United Nations’ goals, functions, and responsibilities. Article 1 of the Charter states that one of the
aims of the UN is to achieve international cooperation in "promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex, language or
religion." The goals of Article 1 of the Charter are of a general nature. For those goals to be achieved,
specific "human rights and freedoms" needed to be defined first. Then laws and procedures had to be
drawn up that would promote and protect those rights and freedoms. For these purposes, the
Commission on Human Rights was established and charged with creating an International Bill of
Human Rights. The International Bill of Human Rights consists of the Universal Declaration of
Human Rights (UDHR), The International Covenant on Civil and Political Rights and its optional
Protocol, and The International Covenant on Economic, Social, and Cultural Rights.

9
Like the early years of many movements, the early years of the modern human
rights movement were rocky. "Appeal for Amnesty, 1961" had only the most
rudimentary organization. The modern organization named Amnesty
International gained the structure it has mostly by learning from mistakes. Over
the years combinations of these concerns and others led to formation of other
human rights groups. Among them were groups that later merged to form
Human Rights Watch, the first of them being Helsinki Watch in 1978. Regional
human rights watchdog groups often operated under extremely difficult
conditions, especially those in the Soviet Block. Helsinki Watch, which later
merged with other groups to form Human Rights Watch, started as a few
Russian activists who formed to monitor the Soviet Union's compliance with
the human rights provisions in the Helsinki accords. Many of its members were
arrested shortly after it was formed and had little chance to be active. Other
regional groups formed after military takeovers in Chile in 1973, in East Timor
in 1975, in Argentina in 1976, and after the Chinese Democracy Wall
Movement in 1979.20

While the full significance of human rights may only be finally dawning on
some people, the concept itself has a history spanning over two thousand years.
The development of the concept of human rights is punctuated by the
emergence and assimilation of various philosophical and moral ideals and
appears to culminate, at least to our eyes, in the establishment of a highly
complex set of legal and political documents and institutions, whose express
purpose is the protection and promotion of the fundamental rights of all human
beings everywhere.21

1.5 WOMEN’S HUMAN RIGHTS

20
“Historical origins and development of the theory and practice of human rights” op. cit. note 12
21
Rorty Richard. "Human rights, Rationality and Sentimentality" in S. Shute & S. Hurley (eds.), On
Human Rights: the Oxford Amnesty Lectures 1993 http://www.iep.utm.edu (accessed on July 29th,
2007)

10
Everywhere in the world, women are second-class citizens. The United Nations’
Member States have been pledging to correct that injustice and achieve equality
between men and women since 1948, when they first adopted the Universal
Declaration of Human Rights. Today, 182 countries are party to the Convention on
the Elimination of All Forms of Discrimination Against Women, declaring that human
rights and fundamental freedoms belong equally to women and men in the political,
economic, social, cultural, civil and every other field. And yet, wherever one turns -
including within the United Nations itself - men hold power and advantage
over women. Although that reality is now viewed as wrong and counter-productive,
most modern-day institutions, governments, cultures and traditions are locked in a
rut, and continue to reinforce male centrality and superiority. Women's marginal,
lower status and unrealized potential punishes half the world's population, but
weakens us all.22

The principle of the equal rights of women and men was recognized in the
Charter of the United Nations, and is contained in the Universal Declaration of
Human Rights and all subsequent major international human rights
instruments. Confirmation of the principle of equality in these instruments was
an important step in the recognition of the rights of women. Yet traditional
exclusion of women from the public domain has persisted in many countries -
relegating women to the private domain.

The need for women’s participation in all spheres of society - in both the public
and the private domains - and the recognition of inequality and discrimination
in the private domain, led to the creation of specific standards for the protection
of women’s rights. In 1979, the United Nations General Assembly adopted the
Convention on the Elimination on All Forms of Discrimination Against Women
(CEDAW).23

CEDAW establishes women’s right to non-discrimination on the basis of sex,


and affirms equality in international law. It provides that women and men are
entitled to the equal enjoyment and exercise of human rights and fundamental
freedoms in civil, cultural, economic, political and social fields.

22
Excerpt from Stephen Lewis (UN Special Envoy for HIV/AIDS in Africa) A Reformed UN Needs a
Full-Fledged Women’s Agency, February 25, 2006. http.//www.choike.org_eng/informes/5439.html
(accessed on July 20th, 2007)
23
CEDAW op. cit. note 3

11
The 1993 Vienna Conference on Human Rights24 and the 1995 Beijing
Women’s World Conference25 recognized the need to build on these principles
to assert women’s rights. These global conferences promoted the review of
policies and programmes from the perspective of their impact on women and
men - in other words, a re-evaluation of policies and programmes from a
gender perspective.

The incorporation of a gender perspective in the work of the United Nations is


fundamental to the process of mainstreaming gender. Mainstreaming gender is
an acknowledgement of the different ways in which gender roles and gender
relations shape women’s and men’s access to rights, resources and
opportunities, within and between cultures and at different stages in their life
cycles. Its aim is to achieve the advancement of women through correcting
disparities in different policy sectors and ensuring their enjoyment of civil,
cultural, economic, political and social rights.

Millions of women throughout the world live in conditions of abject


deprivation of, and attacks against, their fundamental human rights for no other
reason than that they are women. Combatants and their sympathizers in
conflicts, such as those in Sierra Leone, Kosovo, the Democratic Republic of
Congo, Afghanistan, and Rwanda, have raped women as a weapon of war with
near complete impunity. Men in Pakistan, South Africa, Peru, Russia, and
Uzbekistan beat women in the home at astounding rates, while these
governments alternatively refuse to intervene to protect women and punish
their batterers or do so haphazardly and in ways that make women feel culpable
for the violence. As a direct result of inequalities found in their countries of
origin, women from Ukraine, Moldova, Nigeria, the Dominican Republic,
24
The Vienna Declaration and Programme of Action adopted by the World Conference on Human
Rights (A/CONF.157/23) in June 1993
http://odsddsny.un.org/doc/UNDOC/GEN/N96/273/01/PDF/N9627301.pdf? (accessed on August 12th,
2007)
25
The Beijing Declaration and Platform for Action adopted by the Fourth World Conference on Women
(A/CONF.177/20/Rev.1. annexes I and II, endorsed by G.A. res. 50/42, 50 U.N. GAOR Supp. (No. 49)
at 33, U.N. Doc A/RES/50/49 on September 1995.
http://odsddsny.un.org/doc/UNDOC/GEN/N96/273/01/PDF/N9627301.pdf? (accessed on August 12th,
2007)

12
Burma, and Thailand are bought and sold, trafficked to work in forced
prostitution, with insufficient government attention to protect their rights and
punish the traffickers. In Guatemala, South Africa, and Mexico, women's
ability to enter and remain in the work force is obstructed by private employers
who use women's reproductive status to exclude them from work and by
discriminatory employment laws or discriminatory enforcement of the law. In
the United States, students discriminate against and attack girls in school who
do not conform to male standards of female behaviour. Women in Morocco,
Jordan, Kuwait, and Saudi Arabia face government-sponsored discrimination
that renders them unequal before the law, including discriminatory family
codes that take away women's legal authority and place it in the hands of male
family members and restricts women's participation in public life. Abuses
against women are relentless, systematic, and widely tolerated, if not explicitly
condoned. Violence and discrimination against women are global social
epidemics, notwithstanding the very real progress of the international women's
human rights movement in identifying, raising awareness about, and
challenging impunity for women's human rights violations.

We live in a world in which women do not have basic control over what
happens to their bodies. Millions of women and girls are forced to marry and
have sex with men they do not desire. Women are unable to depend on the
government to protect them from physical violence in the home, with
sometimes fatal consequences, including increased risk of HIV/AIDS infection.
Women in state custody face sexual assault by their jailers.

For over 80 years, the relationship between women and international


organizations has barely existed in historical records and has been scarcely
promoted by the media. Well before the Charter of the United Nations was
approved in 1945, and already at the League of Nations, women fought and
participated to include demands against discrimination, promoting the legal and
social progress of women around the world. Previously, in 1933, the first
international treaty on equality for women was discussed at the Seventh

13
International Conference of American States, which was only signed by Cuba,
Ecuador, Paraguay and Uruguay. This treaty26 gave women in all participating
countries the right to maintain their own nationality upon marriage to a
foreigner. It was the first international instrument adopted in the world with
regard to women’s rights. This Convention was decisive and acted as catalyst to
make the League of Nations acknowledge the existence and legitimacy of
women’s rights movements in the region.

The United Nations Universal Declaration of Human Rights, the principal


standard by which human rights are identified today, states that "everyone has
a right to a standard of living adequate for the health and well - being of
himself and of his family, including food, clothing, housing and medical care
and necessary social services.”27 Article12 of the International Covenant on
Economic, Social and Cultural Rights (Economic Covenant), intended to make
more specific and binding the obligations of governments to protect the
economic, social, and cultural rights enumerated in the Universal Declaration,
"recognizes the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health," and to that end States Parties. The
countries which have ratified or acceded to the Covenant are mandated to
undertake the following steps to achieve its full realization:

(a) The provision for the reduction of the stillbirth - rate and of infant
mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic,


occupational and other diseases;

(d) The creation of conditions that would assure to all medical service and
medical attention in the event of sickness.
26
Convention on the Nationality of Women adopted and signed in 1933 at the 7th International
Conference of American States. http://www.unhchr.ch/html/menu2/womenpub2000.htm#intro
(accessed on August 12th, 2007)
27
Universal Declaration of Human Rights, Article 25(1).

14
While the International Covenant on Economic, Social and Cultural Rights has
the most comprehensive definition of the right to health, other international
human rights instruments also recognize this right. The International
Convention on the Elimination of All Forms of Racial Discrimination,28 the
Convention on the Elimination of All Forms of Discrimination Against
Women29 and the Convention on the Rights of the Child30 also have provisions
related to the right to health.

The past two decades have seen women's organizations spring up around the
world. Most of the advances which women have made towards claiming their
rights have been the result of grass roots campaigning, usually by independent
women's rights organizations. Some work for their "disappeared" relative or are
community activists, fighting for basic economic and social rights such as
freedom from want. Many are lawyers seeking justice for the underrepresented.
They campaign against torture, domestic violence, equal treatment at work or
for land rights and access to credit.

This wave of courage, creativity and commitment has all too often met a wall
of government indifference and sometimes government repression of the
cruelest kind. Few governments recognize the work of women's human rights
organizations as a legitimate exercise of fundamental civil and political rights.
Women’s human rights activists have forced governments to acknowledge the
pervasive nature of violations of women’s rights and their own duty to stop
them. Despite the unprecedented visibility of the women’s rights movement
and governments’ articulation of policies supporting women’s rights, many
governments failed to reform laws that overtly discriminated against women

28
For instance Article 5(e) (iv) provides: “…States Parties undertake to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to
race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of …
economic, social and cultural rights, in particular… the right to public health, medical care, social
security and social services….” The Convention was adopted by the United Nations General Assembly
Resolution 2106 (XX) of 21st December, 1965. It entered into force on 14th January, 1969 in
accordance with Article 19. http://www.hrweb.org/legal/cerd.html (accessed on August 1st, 2007)
29
Especially Article 12
30
CRC op. cit. note 2. Especially Articles 24 and 25 of the Convention.

15
and practices that denied women’s rights. Women’s rights advocates countered
these failings with activism.

There were some milestones in 1998 that reflected women’s struggle to bring
human rights protections to bear in their own lives. In 1998 the International
Criminal Tribunal for Rwanda convicted Jean-Paul Akayesu of sexual violence
in Rwanda’s 1994 genocide, showing that there can be justice for women raped
in conflict. In three African countries, Nigeria, Uganda, and Malawi, women’s
rights activists pushed their governments to prove their commitment to
women’s rights by granting women property and inheritance rights. In Mexico,
women workers successfully petitioned a body established by the North
American Free Trade Agreement (NAFTA) to recognize and remedy workplace
sex discrimination. In these and other cases, change occurred as a direct
consequence of women’s activism: its development locally and strength
internationally. Despite this change in the rhetorical climate, in 1998 women
were frustrated in their efforts to make the structures of government live up to
the Universal Declaration. Implementation of women’s rights remained slow
and inconsistent, reflecting the unwillingness of international actors to change
the structures that accommodate and encourage daily abuses of women’s rights.
Women still saw their ability to enjoy basic human rights challenged at every
turn. Governments both proclaimed their commitment to women’s rights and
pursued policies that undermined them. At least fourteen countries31 that have
sworn to combat sex discrimination by ratifying the Convention on the
Elimination of All Forms of Discrimination Against Women continued to deny
women full citizenship and reserved the right to do so when they ratified
CEDAW. Other governments openly challenged the notion that universal
human rights extend to women. Taliban authorities in Afghanistan, for
example, confined women to their homes, cut off their access to education and
health care, and beat them on the streets.

31
Algeria, the Bahamas, Cyprus, Egypt, Fiji, Iraq, Jordan, Kuwait, Lebanon, Malaysia, Maldives,
Morocco, Republic of Korea, Turkey, and Tunisia

16
Governments in countries such as Pakistan, Russia, and Peru did little to
counter high levels of violence against women and failed to remove the barriers
that block women victims’ access to justice and needed services. The fact of
impunity for violence against women in peacetime only reinforced the
longstanding problem of impunity for such acts in times of conflict or civil
unrest. Ethnic Chinese women in Indonesia saw their reports of rape during and
after May 1998 riots denied by government officials. In Algeria, authorities
used reports of violence against women by armed extremists to discredit these
groups but did little for women survivors of kidnapping and rape. Many
governments refused to recognize, let alone remedy, discriminatory laws and
practices that have cemented women’s inequality. Morocco and Guatemala,
among others, did not repeal legislation that robs women of their right to make
basic decisions about their lives - whom to marry, whether to have children,
when to work outside the home, and whether to seek divorce.

Signs of progress recorded in 1998 thus remained isolated incidents rather than
indices of meaningful change. For example, the single conviction for sexual
violence in Rwanda set a precedent but changed little for thousands of women
awaiting justice from ad hoc U.N. tribunals in Rwanda and Bosnia. The slow
progress of governments in responding to violence against women was
tragically evident in Indonesia. Rather than setting up a credible investigation
to determine what happened and guaranteeing the security of rape victims who
came forward, the government denied not only its own involvement but also
that rapes had occurred.32

Thus, the claim on human rights protections that women did assert remained
tenuous. Universality was under siege when it came to extending human rights
protections to women. Governments did little to remedy violence and
discrimination against women, two significant indicators of women’s
secondary status in societies around the world. Gains for women’s rights

32
“Women’s Right” http://www.hrw.org/worldreport99/women/women1.html (accessed on July 7th,
2007)

17
occurred in an isolated fashion in part because they came primarily where the
cost was least; that is, women’s rights were respected only when no competing
interests dictated otherwise. Governments and other international actors
showed their willingness to abandon women’s rights when other pressures
came to bear. This was particularly evident in 1998 with the economic
downturn in parts of Asia and Eastern Europe. In countries facing economic
crises, women workers were forced out of the workforce or, in some instances,
tracked into low-skill, low-paying jobs. Adverse socioeconomic conditions in
many regions also increased the likelihood that women and girls would be
lured into forced prostitution, involuntary marriage, or other forms of forced
labor. In Russia and other countries of the former Soviet Union, for example,
women were barred from job opportunities simply because of their sex.

Governments also acted inconsistently to ensure accountability for violence


against women in conflict or refugee situations. For example, governments
turned in a mixed record in the Rome negotiations to establish an International
Criminal Court, on the one hand specifying that crimes against women be
handled by the court and, on the other, limiting the power of the prosecutor to
hold perpetrators accountable. Moreover, the precedents of the former
Yugoslavia and Rwanda did not translate into international condemnation of
sexual violence against women in other conflicts such as in Sierra Leone,
where women reported being raped and sexually assaulted as civil war raged,
or in Tanzania, where refugee women seeking shelter instead experienced high
rates of assault.33

At present, the UN has committees and agencies that deal exclusively with
women’s issues and are under-funded to perform their work.34

33
Ibid.
34
These are UNIFEM (the United Nations Development Fund for Women), DAW (Division for the
Advancement of Women), OSAGI (the Office of the Special Adviser to the Secretary-General on
Gender Issues and Advancement of Women) and INSTRAW (United Nations International Research
and Training Institute for the Advancement of Women)

18
1.6 THE RIGHTS OF THE GIRL CHILD

All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination
in violation of this Declaration and against any incitement to such discrimination.35

Human rights should apply equally to all people - men and women, girls and
boys. However, girls’ access to these rights is not always easy or guaranteed,
full or free.

All children and young people in the world have the same rights, and these
rights are listed in the UN Convention on the Rights of the Child. In 1959 a
working group drafted the Declaration on the Rights of the Child, which
consisted of ten principles setting forth basic rights to which all children should
be entitled. These principles then needed to be codified in a convention. The
formal drafting process lasted nine years, during which representatives of
governments, intergovernmental agencies (for example UNICEF and
UNESCO) and nongovernmental organizations (NGOs), like Save the Children
and the International Red Cross, worked together to create consensus on the
language of the Convention.

The resulting Convention on the Rights of the Child (Children’s Convention)


contains 54 articles that can be divided into three general categories:

i protection, covering specific issues such as abuse, neglect, and


exploitation;

ii provision, addressing a child’s particular needs such as education and


health care;

iii participation, acknowledging a child’s growing capacity to make


decisions and play a part in society.

35
Article 7 UDHR

19
The total number of member states that have ratified the Children’s Convention
has surpassed that of all other conventions. The Convention on the Rights of
the Child (CRC) sets out the fundamental rights and freedoms of all people
under the age of 18. The CRC does not give enforceable rights directly to
individual children, but imposes obligations on states to bring their rights into
national law. In the 18 years of its existence the CRC has become the most
widely adopted human rights instrument with 192 states parties.36 In Nigeria,
only ten states out of the 36 states have domesticated the Convention so far.37

The CRC builds on the Universal Declaration of Human Rights, which


proclaims that children are entitled to special care and assistance as they often
lack the physical and political means to defend their own rights. It recognizes
ways in which children are particularly vulnerable, as victims of conflict,
abuse, exploitation or neglect. It identifies their needs, confirming the rights to
primary and secondary education, adequate health care and social security,
among others.

There are also two Optional Protocols38 to the CRC which establish stronger
standards than those contained in the Convention on:

• the involvement of children in armed conflict


• the sale of children, child prostitution and child pornography

The rights of girls are thus, enshrined in one of the most widely ratified of the
United Nations core human rights treaties - the Convention on the Rights of the
Child. The Convention provides a framework for guaranteeing that all children
36
Nigeria ratified the CRC in 1991 without any reservations.
http://www.unhchr.ch/huricane/huricane.nsf/0/B39C5D8F929E7C98C1256F96002C537A?opendocum
ent (accessed on October 18th, 2007)
37
Tayo Agunbiade “UN Seat and the Nigerian Child” Thisday Newspaper, Vol. 12, No. 4339, Friday,
March 9, 2007 at p. 18
38
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography adopted and opened for signature, ratification and accession by
General Assembly resolution A/RES/54/263 of 25 May 2000. It entered into force on January 18th,
2002 & Optional Protocol to the Convention on the Rights of the Child on the involvement of children
in armed conflict adopted and opened for signature, ratification and accession by General Assembly
resolution A/RES/54/263 of May 25th, 2000. It entered into force on 12 February 2002
http://www.unhchr.ch/html/menu3/b/treaty17.htm (accessed on August 1st, 2007)

20
everywhere, without discrimination, have the right to survival, to develop to the
fullest, to protection from harmful influences, abuse and exploitation, and to
participate fully in family, cultural and social life. Every single person
regardless of their age has human rights. Children and young people have
special rights because being young sometimes makes them more vulnerable.
Some examples of the kind of rights that girls have are the right to be listened
to, the right to an education and the right to be looked after if they get sick.

1.7 CONCEPT OF DISCRIMINATION

The girl-child is discriminated against from the earliest stages of life, through her
childhood and into adulthood. In some areas of the world, men outnumber women by
5 in every 100. The reasons for this discrepancy include harmful attitudes and
practices, such as female genital mutilation, son preference . . . early marriage
...violence against women, sexual exploitation, sexual abuse, discrimination against
girls in food allocation and other practices related to health and well-being. As a
result, fewer girls than boys survive into adulthood.39

The word 'discriminate' simply means to make a distinction or to differentiate


between people or things. A person 'discriminates' when they treat another
person either more or less favourably on the basis of whatever consideration
matters to them.40

The Convention on the Elimination of All Forms of Discrimination against


Women (CEDAW) is often described as an international bill of rights for
women. Consisting of a preamble and 30 articles, it defines what constitutes
discrimination against women and sets up an agenda for national action to end
such discrimination. The Convention in Article 1 defines discrimination against
women as

...any distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women,

39
Beijing Platform for Action, paragraph 259 http://www.UNFPA_Working to Empower Women-The
Girl-child.htm (accessed on August 1st, 2007)
40
A. S. Hornby op. cit. note 6, 330

21
of human rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field.

The Convention provides the basis for realizing equality between women and
men through ensuring women's equal access to, and equal opportunities in,
political and public life - including the right to vote and to stand for election -
as well as education, health and employment. States parties agree to take all
appropriate measures, including legislation and temporary special measures, so
that women can enjoy all their human rights and fundamental freedoms.

The Convention is the only human rights treaty, which affirms the reproductive
rights of women and targets culture and tradition as influential forces shaping
gender roles and family relations. It affirms women's rights to acquire, change
or retain their nationality and the nationality of their children. States parties
also agree to take appropriate measures against all forms of traffic in women
and exploitation of women.

Girls often face discrimination from the earliest stages of life, through
childhood and into adulthood. Her low status is reflected in the denial of
fundamental needs and rights and in such harmful attitudes and practices as a
preference for sons, early marriage, female genital mutilation, domestic abuse,
incest and sexual exploitation, discrimination, less food and less access to
education.41

Overall, girls' school attendance still lags severely behind that of boys. One of
the major reasons why so many girls do not attend school is because of their
workload, both within and outside the household. Daughters are often kept at
home to help the family because the social and economic value of educating
girls is not recognized. It is a little known fact that among the world's exploited
child workers, girls outnumber boys.42

41
"Review and Appraisal of the Implementation of the Beijing Platform for Action: Report of the
Secretary-General” (E/CN.6/2000/PC/2). Published by the United Nations Department of Public
Information DPI/2035/L - May 2000. Fact Sheet No. 12 http://www.un.org/copyright.htm (accessed on
July 29th, 2007)
42
Ibid.

22
Without access to education, girls are denied the knowledge and skills needed
to advance their status. By educating girls, societies stand to gain economically.
In addition, educated mothers usually have smaller families, with healthier and
better-educated children. In times of diminished food resources, girls and their
mothers are often last to be fed, resulting in a diet low in calories and protein.
An estimated 450 million adult women in developing countries are stunted as a
result of childhood protein-energy malnutrition. Iodine and iron deficiencies
also have significant consequences for pregnant women and their offspring.

There has been an alarming increase in the number of girls infected with the
HIV virus. Adolescent girls are at high risk of contracting HIV because their
low social status often pressures them into situations where they are forced to
have unprotected sexual intercourse with men. There is an increased awareness
of the need to provide information, guidance and services to adolescent girls
with regard to sexually transmitted diseases, as well as reproductive and sexual
health. Violence against girls as well as women remains a persistent problem
that takes many forms, including sexual exploitation and abuse, rape, incest,
prostitution, child pornography, trafficking, and harmful traditional practices
such as female genital mutilation.

According to the United Nations Population Fund,43 it is estimated that between


85 and 114 million women and girls, most of who live in Africa, the Middle
East, and Asia, have undergone female genital mutilation. Trafficking in
women and children, most often for commercial sexual exploitation, is
estimated to generate up to $8 billion each year according to the International
Organization for Migration (IOM).

Girls are often treated as inferior to boys, both within the home and by society-
at-large. They are socialized to put themselves last, which in turn undermines
their self-esteem and their ability to reach their full potential as human beings.
When a girl is prevented from going to school or is too exhausted to pay

43
Ibid.

23
attention in class because of her workload at home, she is being denied her
right to education. When a girl carries the bulk of responsibility for the
housework while her brother studies, plays or attends to his interests and
hobbies, she is being discriminated against.

Girls continue to be married at a very young age in many countries and have to
cut short their education and face the dangers of repeated pregnancies and
childbirth, which jeopardize their health and well-being. Millions of school age
girls worldwide are working in domestic service, which can expose them to
significant levels of discrimination and violence and constrain their access to
education and other opportunities. The Millennium Development Goal target to
eliminate gender disparity in primary and secondary education by 2005 has
already been missed. Even where increased enrolment of girls has been
achieved, positive outcomes are not guaranteed, as girls are more likely than
boys to repeat classes or to drop out of school. Evidence also shows that girls
are less motivated to pursue studies in science and technology and have lower
achievement levels in these areas than boys, owing to low expectations and
stereotypical attitudes.44

CHAPTER 2

2.1 CULTURE AND TRADITION IN DISCRIMINATON AGAINST


WOMEN AND GIRLS

Culture may be defined as the totality of a peoples’ ways of life. This includes its
beliefs, attitudes, values, norms, customs, behaviour patterns, symbols, myths,
language, food, artifact, and other skills which members of society or community
share as a framework for interpreting the social world, including patterns of
gender roles and relationships.45

Culture has also been defined as that

Complex whole which includes knowledge, beliefs, arts, law, morals, customs and all
other capabilities and habits acquired by man as member of society.46

44
Agunbiade op. cit. note 37
45
Kibiti, op. cit, note 4
46
Ibid.

24
Therefore, culture determines or conditions gender roles and relations of a
given society. Over the years, it has become an ideology which provides
justification for the oppression of women, creates justification for their
exploitation, and create adequate space for male domination and control over
women. In other words, culture as an ideology devalues women and works in
favour of men as reflected in various cultural rituals and celebrations such as
childbirth and rites of passage.

Cultural discrimination against women goes beyond violence in terms of


beating. It includes forced marriage, dowry-related violence, marital rape,
sexual harassment, intimidation at work and in educational institutions, forced
pregnancy, forced abortion, forced sterilization, trafficking and forced
prostitution. Violence against women is a human rights abuse. The 1993 UN
Declaration on the Elimination of Violence against Women47 defines it as any
act of gender-based violence - that is, violence directed against a woman
because she is a woman or that affects women disproportionately - that results
in, or is likely to result in, physical, sexual or psychological harm or suffering
to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or in private life. On a daily basis women
are beaten and punished for supposed transgressions, raped and even murdered
by members of their family. In some cases, vicious acid attacks leave them with
horrific disfigurements. Girls and young women are forced into early marriage
by parents and relatives. In many communities, the traditional practice of
female genital mutilation continues to traumatize young girls and leave women
with lifelong pain and damage to their health.

The African Charter on Human and Peoples’ Rights is unequivocal that states
parties incur the duty to "recognize the rights, duties and freedoms enshrined in
the Charter and…to adopt legislative or other measures to give effect to

47
UN Declaration on the Elimination of Violence against Women, para. 1; CEDAW Committee,
General Recommendation 19, Violence against women (11th session, 1992), Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc.
HRI\GEN\1\Rev.1 at 84 (1994), para 6. http://www.unhchr.ch (accessed on July 29th, 2007)

25
them".48 The enjoyment of rights under the Charter is the entitlement of every
individual "without distinction of any kind such as race, ethnic group, colour,
sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or any status".49 States parties’ duties to ensure the
elimination of discrimination against women is specifically codified in Article
18(3) in which reference is also made to "international declarations and
conventions" of relevance to the protection of women’s and children’s rights.
The African Charter is unique in stipulating a duty on individuals to "preserve
the harmonious development of the family and to work for the cohesion and
respect of the family".50 This duty clearly has relevance in the context of
violence in the family.

The definition of torture under the UN Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment,51 is not limited to
acts by state officials, but also includes acts performed "with the consent or
acquiescence of a public official or other person acting in an official
capacity".52 All the elements of torture, as defined by that article, can be present
in domestic violence: it may cause "severe pain or suffering, whether physical
or mental", and may be "intentionally inflicted" for a purpose such as
"punishment" or "for any reason based on discrimination of any kind". An
example of a situation where a state may be in violation of the prohibition on
torture that is inflicted by individuals is marital rape, where it is not
criminalized by law.53

The UN Convention on the Elimination of All Forms of Discrimination Against


Women, (CEDAW) sets out in detail the obligations of states parties to secure
equality between women and men and to prohibit discrimination against

48
Article 1
49
Article 2
50
Article 29(1)
51
The Convention was adopted by the United Nations General Assembly Resolution 39/46 of 10th
December, 1984. It entered into force 26th June, 1987 in accordance with Article 27(1). Nigeria became
a state party in 2001. http://www.hrweb.org/legal/ctcp.html (accessed on August 1st, 2007)
52
Article 1(1)
53
An example is Article 16, CEDAW.

26
women. It expressly requires states parties to "take all appropriate measures to
eliminate discrimination against women by any person, organization or
enterprise"54. If the state fails to offer protection against discriminatory
practices and abuses, or to bring to justice those who commit such abuses and
to ensure reparation for the victims, it is in breach of its legal obligations. Many
of the states that have ratified CEDAW have entered reservations to some of its
provisions. Nigeria, however, has ratified without any reservations.

Violence against women and girls are all too frequently excused and tolerated
in communities where women are assigned an inferior role, subordinate to the
male head of the family and effectively the property of their husbands.
Husbands, partners and fathers are responsible for most of the violence against
women. The violence persists because discriminatory laws condone and even
legalize certain forms of violence against women. Dismissive attitudes within
the police and an inaccessible justice system compound the failures of the state
to protect women’s rights.

Violence against women and in the home is generally regarded as belonging in


the private sphere and is shielded from outside scrutiny. A culture of silence
reinforces the stigma that attaches to the victim rather than the perpetrator of
such crimes. Such practices cause trauma, injuries and death. Female genital
cutting, for example, is a common cultural practice in parts of Africa. Yet it can
cause “bleeding and infection, urinary incontinence, difficulties with childbirth
and even death,” reports the World Health Organization (WHO). The
organization estimates that 130 million girls have undergone the procedure
globally and 2 million are at risk each year, despite international agreements
banning the practice.55

Sexual violence is another problem. A local organization in Zaria, Nigeria,


found that 16 per cent of patients with sexually transmitted diseases (STDs)
were girls under the age of five, a sign of sexual assault. In the single year
54
Article 2(e)
55
“Female Genital Cutting” http://www.endvaw.org/resources/fgm.php (accessed on July 25th, 2007)

27
1990, the Genito-Urinary Centre in Harare, Zimbabwe, treated more than 900
girls under 12 for STDs. Such assaults, observed a WHO publication, put
“African women and girls at higher risk of sexually transmitted diseases
(including HIV/AIDS) than men and boys.”56

The expression Female Genital Mutilation gained growing support in the late
1970s. The word mutilation not only established clear linguistic distinction
from male circumcision, but it also emphasized the gravity of the act. In 1990,
this term was adopted at the third conference of the Inter African Committee on
Traditional Practices Affecting the Health of Women and Children (IAC) in
Addis Ababa. In 1991, the World Health Organization recommended that the
United Nations adopt this terminology and subsequently, it has been widely
used in United Nations documents.57

Amnesty International and the World Health Organization most often refer to
the practice as 'Female Genital Mutilation'. The use of the word mutilation
reinforces the idea that this practice is a violation of the human rights of girls
and women, and thereby helps promote national and international advocacy
towards its abandonment. At the community level, however, the term can be
problematic. Local languages generally use the less judgmental “cutting” to
describe the practice; parents understandably resent the suggestion that they are
“mutilating” their daughters. In this spirit, in 1999, the UN called for tact and
patience regarding activities in this area and drew attention to the risk of
“demonizing” certain cultures, religions and communities. As a result, the term
“cutting” has increasingly come to be used to avoid alienating communities. In
1996 the UNFPA-sponsored Reproductive, Educative, And Community Health
program coined the term 'Female Genital Cutting', observing that 'Female
Genital Mutilation' may "imply excessive judgment by outsiders as well as

56
Ibid.
57
“Female Genital Mutlation”
http://www.worldywca.info/index.php/ywca/world_council_07/iws_women_s_summit (accessed on
July 25th, 2007)

28
insensitivity toward individuals who have undergone some form of genital
excision.

There are several distinct practices of Female Genital Cutting that range in
severity, depending on how much genital tissue is cut away. Four major types
have been categorized, although there is some debate as to whether all common
forms of FGC fit into these four categories, as well as issues with the reliability
of reported data.58 The four major types are:

1 Clitoridectomy

Clitoridectomy involves the removal or splitting of the clitoral hood, termed


"hoodectomy" (or "clitorodotomy"), with or without excision of the clitoris.
The clitoral hood is the female prepuce, homologous to the foreskin of the
male. This term was devised in Sudan by the Anglo-Sudanese administration
in 1946 in an attempt to promote this "milder" form of Female Genital Cutting
instead of the more severe infibulation or pharaonic circumcision that was
widely practiced.59 Removal of the clitoral hood may be performed in order to
increase sexual response.60

2 Excision

Excision refers to clitoridectomy (removal of the prepuce and the clitoris) plus
the partial or total removal of the labia minora, the inner lips of the vulva,
Excision is a more extensive form of Female Genital Cutting compared to
clitoridectomy and due to the sewing together of the leftover labia minora
epidermis, which contains sweat glands, a buildup of sweat and urine in the

58
S Elmusharaf; N Elhadi, L Almroth (2006-07-15). "Reliability of self reported form of female genital
mutilation and WHO classification: cross sectional study". BMJ 333 (7559): pp. 124.
DOI:10.1136/bmj.38873.649074.55.PMID16803943
http://en.wikipedia.org/wiki/female_genital_cutting#_note-Elmusharaf_2006 (accessed on August 1st,
2007)
59
Margaret E. Davidson. “Female circumcision: What medical students should know”, Oxford Medical
School Gazette http://en.wikipedia.org/wiki/female_genital_cutting#_note-2 (accessed on August 1st,
2007)
60
Carol Ezzell. "Anatomy and Sexual Dysfunction", Scientific America, October 31st, 2000
http://en.wikipedia.org/wiki/female_genital_cutting#_note-3 (accessed on August 12th, 2007)

29
closed off space beneath this closure can lead to local or urinary infection,
septicemia, hemorrhaging and cyst formation.61 This type of FGC is also called
khafd, meaning reduction in Arabic.

3 Infibulation

Infibulation is the most severe form of Female Genital Cutting and is called
infibulation or pharaonic circumcision (referring to the Pharaohs who were
thought to practice this form). Infibulation involves extensive tissue removal of
the external genitalia, including all of the labia minora and the inside of the
labia majora, leaving a raw open wound. The labia majora are then held
together using thorns or stitching and the girl's legs are tied together for two to
six weeks, to prevent her from moving and allow the healing of the two sides of
the vulva. Nothing remains of the normal anatomy of the genitalia, except for a
wall of flesh from the pubis down to the anus, with the exception of a pencil-
size opening at the inferior portion of the vulva to allow urine and menstrual
blood to pass through. This type of Female Genital Cutting is often carried out
by an elderly matron or midwife of the village on girls between the ages of two
and six, without anaesthetic and under unhygienic conditions.

4 Other types

There are other forms which usually do not involve any tissue removal at all,
but rather the "cutting" is simulated with a knife as part of a ceremony. This
includes a diverse range of practices, including pricking the clitoris with
needles, burning or scarring the genitals as well as ripping or tearing of the
vagina or introducing herbs into the vagina to cause bleeding and a narrowed
vaginal opening. This is found primarily among isolated ethnic groups as well
as in combination with other types.

Female genital cutting is today mainly practiced in African countries. It is


common in a band that stretches from Senegal in West Africa to Somalia on the

61
Ibid.

30
East coast, as well as from Egypt (that has just banned FGC62) in the north to
Tanzania in the south. In these regions, it is estimated that more than 95% of all
women have undergone this procedure. It is also practiced by some groups in
the Arabian Peninsula, especially among a minority in Yemen.63

The countries that practice FGC the most are Somalia, followed by Egypt,
Sudan, Ethiopia, and Mali. Among ethnic Somali women, infibulation is
traditional and nearly universal. In the Arab peninsula, Sunna circumcision is
usually performed, especially among Arabs.64

2.1.1 STATUS OF WOMEN AND GIRLS UNDER NIGERIAN


CULTURES

The discussion begins by examining the image of womanhood in Nigeria.


Important stages that mark the passage to womanhood are girlhood or
maidenhood, wifehood and motherhood. These stages also reflect the images
through which women are perceived. Such images influence and determine the
responsibilities and roles that are ascribed to females and what they participate
in. Right from birth, girls are perceived in the light of their future roles as
prospective wives and mothers. Among the Igbo, at birth a baby girl is referred
to as "Akpa - ego" (bag of money), or 'unoaku' (house of money), or 'obute aku'
(source of wealth). These names are allusions to bride wealth, which would
accrue when the girl gets married and other benefits that would be derived
through interaction with prospective in-laws. Hence from infancy, the

62
BBC World News: Special Report on FGC.
http://news.bbc.co.uk/1/hi/world/middle_east/6251426.stm (accessed on August 12th, 2007)
63
Ibid.
64
Ethnic groups of African descent are more likely to prefer infibulation

31
socialization of girls is tailored towards equipping them with qualities that will
enable them fulfill their expected future roles as wives and mothers.

As young girls they are not encouraged to engage in much leisure activities as
boys. The virtues of self-control and industry are inculcated in them. Girls are
often overworked looking after younger siblings, receive early orientation for
domestic responsibility such as fetching of water and firewood, and running
other errands in the domestic sphere.

On becoming an adult, it is perceived that the most important status a woman


attains is derived through marriage. Among the Igbo, it is expected that women
must marry and this is the reason why marriage has precedence over descent.
Thus some Igbo maternity songs that emphasize the importance of marriage for
girls have been sung as follows:

"Be you as beautiful as a mermaid, the beauty of a woman is to have a husband. Be you one
who has been to the land of white people the beauty of a woman is to have a husband. If a
woman does not marry, her beauty declines…"

Nigeria is a male dominated society and women and girls are subordinate,
whether they are rich or poor, urban or rural, educated or uneducated. Women
and girls face discrimination and oppression from males. Domestic violence
has been reported as a matter of significant concern.65 Despite being almost half
of the population, this numerical strength of the Nigerian women and girls has
not affected the age-long inferior status the society bestows on them. Several
factors have been adduced for the degrading position of women in the Nigerian
society most of which can be traced to the patrichial system being operated and
the gender insensitivity of not only the male folk but the entire society
including the women who have been socialized to accept the inferior status.

It is intriguing to note that the subordination of women and girls know no


boundaries or barriers and does not depend on the social, educational or

65
Priya Verma, “Nigeria: Half of women experience domestic violence”, Off Our Backs, Vol. 35, No.
5-6, 2005 http://www.newfirstsearch.oclc.org.ezproxy.flinders.edu.au/WebZ/FFETCH?fetchtype=full
(accessed on July 29th, 2007)

32
economic status of the Nigerian women. Consequently one finds that an
uneducated and poor woman in the rural community suffers as much
subordination as an educated and rich woman in the urban center.

Gender inequality is experienced by the woman and is manifested in almost all


aspects of human endeavour in Nigeria. Cultural beliefs tend to contribute
largely to Nigerian women and girl’s gender discrimination and low status.
Some of these beliefs have been practiced for so long that they are embedded in
the societal perception almost as legal norms such that the laws of the land and
international instruments, which protect the rights of women, are flagrantly
infringed under the guise of these age-long cultural beliefs.

Furthermore, the effects of the many years of military misrule have negatively
affected the human rights treatment of the citizens of which women and girls
are worst sufferers. In addition the economic downturn as a result of the
mismanagement and corruption of the military governments has impoverished
Nigeria, placing it as one of the poorest countries despite her enormous natural
and human resources. Nigerian women and girls bear the brunt of poverty and
constitute the poorest of the poor in the society consequent upon which the
Nigerian woman and girl suffers violations of her rights from conception till
she dies66 without redress by the society.

At birth the male child is preferred to the female, as she grows the female child
suffers various forms of violence such as genital mutilation or female
circumcision. In the home she is denied education in preference to her male
counterpart and subjected to heavy burden of household chores. As a child the
female may be given out to marriage in some cultures and or become victim of
trafficking.
66
In Nigeria women suffer inequality and various forms of violence from the cradle until death. At
birth a male child is preferred and pampered, the girl child is not so welcomed. She undergoes female
genital mutilation at tender age, she is subjected to overburdening household chores to prepare her for
the societal role of home keeping, she is also given out in marriage at early ages to ensure that she does
not become promiscuous and is married out as a virgin. During and after marriage she is inferior to the
man. She is also not allowed to inherit, and subjected to physical, psychological and mental abuse and
violence.

33
During marriage the woman suffers inferior status in the home; she is not part
of decision-making, denied inheritance rights as a child or wife and is a victim
of domestic violence and marital rape. In the society the woman is a victim of
various forms of sexual assaults without redress, denied access to credit and
suffers poverty more than her male counterpart despite her enormous
contribution to the Nigerian economy especially in the informal sector. The
Nigerian women are underrepresented in the political arena in the public or
private sectors, which further lowers their status in the society.

Soldiers and security agents, deployed in repression of protests, have been


implicated in rape and violence against women, for example in Choba in
October 1999. Women and girls were killed in the Odi massacre of November
20, 1999.67 There have been violent military options68 employed by the former
Obasanjo government, to secure the oilfields and pipelines.

As it is well known, health is high on the agenda of women’s issues. The


HIV/AIDS epidemic has had a significant impact on women.69 Many girls enter
marriage at a young age and their husbands are older and often have had
multiple partners. Such girls are at risk of contracting HIV/AIDS from their
husbands. Women do not have the power to resist sex with their husbands.
Harmful marriage practices violate women's human rights and contribute to
increasing HIV rates in women and girls. In Nigeria, there is no legal minimum
age for marriage and early marriage is still the norm in some areas. Parents see
it as a way of protecting young girls from the outside world and maintaining
their chastity. Many girls get married between the ages of 12 and 13 and there
is usually a large age gap between husband and wife. Young married girls are at
risk of contracting HIV from their husbands as it is acceptable for men to have
sexual partners outside marriage and some men have more than one wife.

67
Zalik Anna, “The Niger Delta: ‘Petro Violence’ and ‘Partnership Development’ ”, Review of African
Political Economy, No. 101:401-424, 2004, p.406
http://www.ssn.flinders.edu.au/global/africa/billtucker/index.htm#_ftn43 (accessed on August 1st, 2007)
68
The Military in Nigeria just finished their bombardment of Port Harcourt in Rivers State, Nigeria.
69
60% of HIV sufferers are women: “HIV/AIDS in Nigeria” http://avert.org/aids-nigeria.htm (accessed
on August 1st, 2007)

34
Because of their age, lack of education and low status, young married girls are
not able to negotiate condom use to protect themselves against HIV and STIs. 70
There have been attempts to address the problem of educating young women
on their social and sexual rights.

One important indicator of women’s health problems is the maternal mortality


rate. This rate is 1549 per 100,000 live births in the northeast. The lowest rate
is in the southwest at 165 per 100,000 live births. The figures, in the northeast,
are among the worst in the world. Lack of access to adequate health facilities is
a major contributing factor.71 Safe termination of pregnancy is also an issue as
women are exposed to unsafe abortions.72

The impact of the structural adjustment policies of the World Bank and IMF
has fallen heavily on Nigerian women. The deregulation of prices, devaluation
of the currency and cuts to welfare services have resulted in deepening poverty
for most social groups.73 Women are the most affected by poverty in Nigeria.

There are some sensitive cultural issues surrounding Nigerian women. Women
are further exposed to the risk of AIDS by particular rites and customs. The
most shocking is the practice of female genital mutilation (FGM).74 Enforced as
a check on women’s promiscuity, and often justified as part of religious
tradition, these horrific operations are often carried out by local ‘physicians’
using unsterilized instruments. Such operations carry considerable danger to
the young girls’ health in themselves. The implications for the spread of AIDS

70
Child Marriage Briefing Nigeria, Population Council. September 2004
http://www.phishare.org/documents/PopCouncil/2478? (accessed on August 1st, 2007)
71
“Women’s Reproductive Rights in Nigeria: A Shadow Report”, p.3.
http://www.reprodutiverights.org/ (accessed on August 12th, 2007)
72
Qualls Alyssa, “Women in Nigeria Today” http://www.postcolonialweb.org/Nigeria/contwomen.html
(accessed on August 1st, 2007)
73
Pereira Charmaine, “Configuring ‘global,’ ‘national,’ and ‘local’ in governance agendas and women’s
struggles in Nigeria”, Social Research, New York: Fall 2002, Vol.69, Iss3; pg. 781 (Abstract)
http://proquest.umi.com.ezproxy.flinders.edu.au/pdqweb?index=7&did=233862391&…(accessed on
August 1st, 2007)
74
A Law passed by the Federal Government in 2002 prohibits Female Genital Circumcision. FGM has
been outlawed in some states including Cross Rivers, Delta, Edo, Osun and Ogun, and moves are been
made in Akwa Ibom and Bayelsa for the passage of laws banning FGM.

35
need not be spelt out. Female genital mutilation75 includes a number of
different procedures. There is no earthly reason why the girl-child should be
circumcised anywhere. The practice is carried on only for the reason of the
self-aggrandizement of men; for the sadistic reasons of curbing the sexual
appetites of women; and from keeping them from imagined promiscuousness.
One wonders how the excessive sexual appetites of some men and their
promiscuousness are curbed. Do women become promiscuous or prostitute by
themselves or with themselves?

The United Nations Convention on the Rights of the Child states that “States
Parties shall take all effective and appropriate measures with a view to
abolishing traditional practices prejudicial to the health of children”.76 It has
been said that FGM is a breach of Section 34 (1)(a)77 of the 1999 Constitution
of the Federal Republic of Nigeria. Despite more than 25 years of efforts to
curtail its practice, female genital mutilation (FGM) is still a deeply rooted
tradition in more than 28 countries in Africa and in some countries in Asia and
the Middle East. In the world today there are an estimated 100 million to 140
million girls and women who have been subjected to the operation. Currently,
about 3 million girls, the majority under 15 years of age, undergo the procedure
every year.

Inheritance rights also disadvantage women and girls in Nigeria. If the husband
leaves or dies, women usually receive nothing. They are left to bear the
financial burden of the family. Due to customary laws, thousands of AIDS
widows throughout Africa are denied inheritance. African women do not own
or inherit the land they cultivate or the houses in which they raise their
families. The laws give ownership of marital housing to husbands and male

75
WHO, the United Nations Children's Fund (UNICEF) and the United Nations Population Fund
(UNFPA) have defined FGM as “the partial or total removal of the female external genitalia or other
injury to the female genital organs for cultural or other nontherapeutic reasons”
76
Article 24
77
The section provides: “Every individual is entitled to respect for the dignity of his person, and
accordingly no person shall be subjected to torture or to inhuman or degrading treatment.”

36
relatives. Some women become so destitute that they resort to prostitution to
support their families.

Yet despite the codes of conduct indoctrinated into women, there are many who
live the precarious and dangerous life of the sex worker. The prime reason is a
pressure even greater than culture and religion: economic pressure. The
economic situation plays an important role in the spread of AIDS. Currently,
Nigeria produces around 100,000 graduates every year. Of these, 90% join the
teeming mass of unemployed youths. Nigeria is richly endowed with human
and natural resources, but mismanagement, misappropriation and
embezzlement in government circles have led to the masses being reduced to
abject poverty. The proportion of the population living on less than $1 a day
has reached 70% and is increasing, exacerbated by religious and ethnic
upheavals that result in death and the destruction of property.

In all this, women are worst affected. Girls are forced into prostitution to
escape poverty. Their choice is a stark one: die of starvation now or run a high
risk of contracting AIDS and dying a few years on. While the threat of hunger
remains, no amount of preaching against prostitution will change the situation.
In a country with an AIDS pandemic like Nigeria, their route for survival
becomes an instrument of death.

Prostitution is illegal in Nigeria, but there are more than a million female sex
workers and HIV infection is estimated to be as high as 30%. They are forced
into sex work, domestic servitude and various forms of modern day slavery.78
As many as 20,000 Nigerian women are estimated to be engaged in sex work in
Italy alone. Trafficking is a product of the globalization of criminal networks.
Women tend to be caught up in prostitution and trafficking because of the
desperate state of poverty in which they live.

78
Charmaine, op. cit. note 73

37
Although, Nigeria is a signatory to the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW), the concern of the human
rights community is the reluctance of the immediate past National Assembly,
under former President Obasanjo’s government, to domesticate the treaty
amidst cultural and religious misgivings about the prohibition of early
marriages for girls, as well as fears that it seeks to legalise abortion. There has
been series of reactions to the set back suffered by the Bill on CEDAW at the
National Assembly recently. Many commentators described the non passage of
the bill by the National Assembly as 'throwing away the baby with the bath
water' while a few applauded the act and appealed to the National Assembly to
ensure that the bill does not see the light of the day. However, the Convention
on the Elimination of All Forms of Discrimination Against Women, CEDAW, is
one of the most ratified human rights treaties. As at November 2 2006, 185
countries - over ninety percent of the members of the United Nations - had
become parties to the Convention. The Convention is a comprehensive bill of
rights for women and is based on the principles of equality between men and
women on the notion that women experience particular forms of discrimination
because of their gender.

Nigerian women’s low status in marriage also makes them vulnerable to


violence from their husbands. When men beat up their wives, there are no
reprisals. Marital rape must be suffered in silence. Fear of beating and rape
keeps many women from questioning their husbands’ sexual escapades. And
submission frequently reaps a death sentence as many women contract AIDS as
a result of coerced sex. For unmarried girls, the situation is even worse. If a
rape is reported, it is the girl who suffers the shame, and all chance of future
marriage. It was "Folake" who was jailed after she accused a man of rape. A
domestic worker, she said her employer’s husband had forced her into his
bedroom and made her watch a violent videotape before forcing her to have
sex. A medical examination supported her allegation. Yet she was the one
brought to court, charged with slander for making the accusation, and

38
remanded in prison until her family could raise the bail money to have her
released. The material evidence of the crime, handed over to the police, was
later said to have disappeared. No charges were brought against the man she
accused.79

AIDS has added a further, nasty dimension to this situation. Odion tested
positive to HIV/AIDS in the city of Lagos. He went to his hometown of
Igueben in Edo State from Lagos and raped eight girls there within a month,
after which he prepared a notice entitled ‘HIV Carriers in Igueben’, typed out
their names, and pasted copies on signposts all over the town. Odion and the
eight girls were arrested immediately. On interrogation, Odion explained that
he didn’t want to die alone and that he wanted to enjoy himself before he died.
The girls tested positive to HIV. In tears, they described how fear of shame and
rejection had prevented them reporting the rape.80 While rape continues to
thrive, checking the spread of HIV/AIDS becomes a Herculean task.

Countless women and girls in Nigeria are subjected to violence by some


members of their families and within their communities, as in many countries
throughout the world. Women of all ages and from all socio-economic groups,
living in rural and urban communities, are affected. The lack of official
statistics makes assessing the extent of the violence an almost impossible task,
but studies suggest levels of violence are shockingly high. More than a third
and in some groups nearly two-thirds of women in Nigeria are believed to have
experienced physical, sexual or psychological violence in the family. "Fatima",
a domestic worker aged 12 years old, was reported to have been doused with
kerosene and set on fire after she was accused of stealing meat from her
employer. The alleged perpetrator was charged in connection with her death,
but the outcome of the case is not known.”81 Under these circumstances,
women’s ability to protect themselves is minimal.
79
Amnesty International interview with "Folake", Lagos State, November 2004.
http://web.amnesty.org/library/index/ENGAFR440202006 (accessed on August 12th, 2007)
80
“Nigeria: Unheard Voices” http://news.amnesty.org/actforwomen (accessed on August 12th, 2007)
81
Guardian Newspaper Online, July 22nd, 2002
http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007)

39
Inequality in the enjoyment of human rights by women throughout the world is
often deeply embedded in tradition, history and culture, including religious
attitudes. While respect for diversity and for diverse forms of social and
cultural expression and identity must guide all human rights principles, equally
important is the recognition of the dignity and worth of women as full human
beings. International human rights law has repeatedly stressed that women's
human rights cannot be violated on the grounds of cultural norms. The
Convention on the Elimination of All Forms of Discrimination Against Women
requests states to modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women.

Nigerian women are also exposed to health hazards, including the risk of HIV
infection, by the rites they must perform at the death of their husbands. The
plight of a widow is made worse by humiliating widowhood rites, which
include requesting that a woman drink from the water used in bathing the
corpse of her husband and in many cases, widows are also expected to go into
confinement for weeks to prove their innocence from any possibility of
complicity in their husband’s death. Some widows are beaten for not wailing
enough for the death of their husband. The above examples are common in the
eastern part of Nigeria. A study on widow confinement shows that 45% of
widows were confined for varying lengths of time, 62% in South-South, 60%
in North West, 51% in South West, 48% in North East and 27% in South East.82

These religious rites are considered to be important in easing the journey of the
soul of the departed to the next world. The widow’s head is shaved with an
unsterilized razor. She may be forced to marry a relation of her late husband,
who may not have undergone an AIDS test. She is also at greater risk of being
raped. Otibhor Edogar, from Ekpoma in Edo State, is HIV positive. She could

82
Brief overview of the legal status of women in Nigeria by Abiola Akiyode Afolabi
http://web.amnesty.org/library/print/ENGAFR440082002 (accessed on August 12th, 2007)

40
not pinpoint the actual source of her contracting the infection, but she knows
that, apart from the widowhood rites she was forced to perform, she was raped
by her late husband’s younger brother, Ebakole. She had refused the village
elder’s suggestion that she marry Ebakole. Otibhor ended her account weeping:
“I am dying and abandoning my only two daughters in this cruel world.” 83

Some of such acts of punishments and atrocities committed on widows can be


summarized as follows:84

 making the woman drink some of the water used in bathing the body of
her dead husband;
 sit on the bare floor or, at best, on a straw-mat or mattress;
 sit in a position where she would be looking at the body of her husband
laid in state, overnight, until it is taken away for burial;
 not to sleep on a bed throughout the mourning period of six months to
one year;
 shave off her hair, wear rags, eat, drink and bathe in secrecy;
 eat and drink and bathe only from old and broken vessels;
 not to eat from food items provided for her husband’s funeral
ceremonies;
 to accept a substitute husband, if still of child-bearing age, and not to
become pregnant during the period of mourning;
 not to look out to see what is going on for the funeral ceremonies of her
husband;
 not to talk aloud or travel beyond a certain distance during the mourning
period;
 to know that her own monies and properties belong to her husband;
 to hands-off all monies, moveable and immovable properties of hers and
her husband’s.

83
Ibid.
84
This is well portrayed in the Nollywood Home Video, “WIDOW”

41
The woman, if she unfortunately does not have a child, is sent away as soon as
her husband breathes last. Some of such women are not even allowed to
participate in the funeral of their husbands. If the woman has only girl-children,
she could be allowed to stay in the worst type of shelter, and at the pain of
losing all the family possessions; she would also be starving with her
daughters; there is also the danger of having her daughters married away very
young, with or without her or their consent. 85

The catchphrase of the war against HIV/AIDS has been ‘Say No to Unsafe
Sex’. How realistic is this for women in Nigeria? It should be apparent from the
discussion above that their power to say ‘No’ is limited indeed. Decisions on
safe sex are left with men. Women are rarely in a position to insist on the use of
a condom if their partners do not want it. Nor can they protect themselves by
using contraceptives without their husbands’ permission or they may be
accused of infidelity. Campaigns for safe sex do not take into account the
conditions in which the majority of Nigerian women live.

The secrecy attached to women’s sexual experiences through cultural norms


also contributes in no small measure to women’s vulnerability to HIV/AIDS.
Secrecy and stigmatization also explain to a large extent why potential victims
of HIV/AIDS often refuse to be tested. Most women are therefore not aware
that they are infected.

Women and girls in Nigeria suffer violence within the home. The battery of
both wives and girls are sanctioned culturally. It is seen in most cases as a form
of discipline with a restraint not to inflict grievous harm. "Seyi" said she was
regularly subjected to violence by her husband. After one assault, she was left
permanently blind in her left eye. Her husband had reportedly suspected her of
having a sexual relationship outside their marriage. She obtained dissolution

85
In the case of Augustine Nwofor Mojekwu V Caroline Mojekwu [1997] 7 N.W.L.R. 283, the Court of
Appeal decided that the “OLI-EKPE” customs of Nnewi in Anambra State where males and not
females inherit the property of their father is unconstitutional. This custom was held as repugnant to
natural justice, equity and good conscience. The judgment is welcomed and hopefully represents a shift
in judicial attitudes to women’s rights issues.

42
of the marriage in the Lagos High Court, and later sought damages for
grievous bodily harm.86 There is no specific law to protect women against
domestic violence or wife battery in Nigeria unless a woman brings an action
under the general provisions against assault where domestic violence against
the woman is downplayed.

In a report by a Non Governmental Organization in Nigeria 87 conducted on


social welfare officers to find out the prevalence of domestic violence, it
showed that 55% of the cases received in the last one year, was on women
battering/maltreatment. Another nation wide research has also shown that the
police are reluctant to take action where cases of domestic violence are
reported to them. It is believed that it is a private affair and should be settled by
the parties or their extended family. Additionally, cultural, financial
consideration and the high cost of justice often prevent women from pressing
charges against their husbands or partners in cases of domestic violence against
the women. The failure of the law to provide adequate respite has further
compounded the issue.

In the last decade trafficking in women and girls is assuming an alarming rate
in Nigeria. Nigeria has become a source, transit and destination country for
both internal and external trafficking. Until recently when a new
comprehensive law88 was passed by the Nigerian National Assembly and
assented to by the then President Obasanjo, the provisions of the Criminal and
Penal Codes89 did not provide adequately for the crime of trafficking in women
and children. Section 34 of the Constitution of Nigeria 1999, prohibits slavery
and torture while Sections 223-225 of the Criminal Code provides for sanctions
against whosoever trades in prostitution, facilitate the transport of human being

86
Suit no. ID/1202/2001, High Court, Ikeja, Lagos State, reported in Project Alert on Violence Against
Women, Annual Report and Accounts 2001-2003, p. 13.
87
Project Alert on Violence Against Women (Project Alert), Beyond Boundaries: Violence against
Women in Nigeria, Lagos, 2001, p. 71. http://web.amnesty.org/library/print/ENGAFR440082002
(accessed on August 12th, 2007)
88
Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003
89
Criminal Code Cap. C38, Laws of the Federation of Nigeria 2004 & Penal Code Cap. P3, Laws of
the Federation of Nigeria 2004.

43
within or outside Nigeria for the purpose of commercial sexual exploitation and
make profits for it. The Penal Code also sanctioned this act in Section 278-280;
it provides for imprisonment for anyone who buys and sells minors for immoral
purposes.

Research has shown that trafficking in women and girls are mainly for the
purposes of domestic services and/or prostitution. In places like Abakaliki, in
Ebonyi State, and Edo State, young girls are forced into the sex industry partly
because most people believe that they are unlikely to carry the HIV virus.
Information provided by immigration authorities90 in Nigeria has also shown
that girls between the ages of 7-16 are transported to Gabon and Cameroon
from various points in the East of Nigeria. There are also reports of trafficking
of women and girls to Europe and particularly Italy. The report also shows that
over 20,000 Nigeria girls engage in prostitution in Italy. An unusual dimension
introduced to the crime of trafficking which makes the campaign against
trafficking difficult is the introduction of the oaths of secrecy which victims
and their parents/guardians have to undergo in traditional shrines. These oaths
are administered by traditional priests who use the body parts of the victim
such as hairs, nails, pubic hair and blood with a sanction not to divulge the
secret of the identity of the traffickers, to hold allegiance to the traffickers and
promptly pay the traffickers the debt bondage. Failure to abide by the oath is
deemed to have serious repercussion sometimes death or insanity on the
victims and their relatives.91

90
The Guardian Online, August 8th, 1998 http://web.amnesty.org/library/print/ENGAFR440042005
(accessed on August 12th, 2007)
91
Most of the women and girls trafficked to Italy and other parts of Europe are from Edo State of
Nigeria. This fact prompted the Edo State Government to pass a law with stiffer penalties against
traffickers and their accessories including the traditional priests who administer the Secret Oaths. The
federal government also passed a national legislation outlawing trafficking in Nigeria which law is
more elaborate than the previous provisions of the Criminal and Penal Codes. The new legislation did
not however take sufficient consideration for the protection of the victims and witnesses to trafficking.
Nigeria has also signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially
women and girls but is yet to ratify it. - Law And Practice Relating to Women’s Inheritance Rights In
Nigeria: An Overview by Joy Ezeilo, University of Nigeria Nsukka, Enugu Campus
http://writerblock.biafranigeriaworld.com/oyibo-e-ezeilo/ (accessed on August 1st, 2007)

44
The disinheritance of the girls and women in Nigeria, especially in Igbo culture
is, in effect, the disinheritance of daughters and wives, who are the very people
that should be considered first. The case of disinheriting daughters and wives,
more so widows in Igbo culture, cannot be more succinctly put than by Justice
Nike Tobi, in his lead judgment in the Anambra State Appellate Court, on 10 th
April 1997. This was when he showed a change of heart and leadership, by
taking the bull by the horns. He came up with a pioneer and landmark decision
in the Mojekwu vs. Mojekwu case92. In the judgment, which was clearly in
favour of girls and women, he wrote:

“All human beings - male and female - are born freely, without any inhibition on grounds of
sex; and that is constitutional. Any form of societal discrimination on ground of sex, apart
from being unconstitutional, is antithetic to a civil society built on the tenets of democracy,
which we have freely chosen as a people. We need not travel all the way to Beijing to know
that some of our customs, including the Nnewi “Oli-Ekpe” custom, relied upon by the
appellant, are not consistent with our civilized world in which we all live today, including the
appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and
not the parents. Although the scientific world disagrees with the divine truth, I believe that
God, the Creator of human beings, is also the final authority of who should be male or
female. Accordingly, for a customary law to discriminate against a particular sex is to say
the least an affront to the Almighty God Himself. Let nobody do such a thing. On my part, I
have no difficulty in holding that “Oli-Ekpe” custom of Nnewi is repugnant to natural justice,
equity and good conscience.”

The judgment has been acclaimed everywhere as a landmark decision.

2.1.2 STATUS OF WOMEN IN AFRICAN CULTURES

As stated earlier,93 violation of women's rights escalates the rate of HIV


infections throughout the continent. Sexual oppression combined with a high
biological receptiveness of viral transmission, put women at risk. According to
Linda Osermen, of the Inter-African Committee (IAC), violence against
women are a reflection of a value system which upholds and maintains the
patriarchal power structure within which women are subjugated and abused at a
monumental scale as corroborated by the reports of Special Reporters on

92
[1997] 7 NWLR p. 283
93
At pages 35 - 40

45
violence against women and on traditional practices. The IAC supports the
adoption of the optional protocol by the Commission on the Status of Women
and has been dealing with the problem of harmful traditional practices for the
past 15 years.

The Interfaith International, represented by Geneva Arif, states that violence


against women are rarely mentioned in the Commission on the Status of
Women unless it is to condemn someone else for doing the violation. Women
are vulnerable to rape and violence during times of war, by enemy soldiers or
during peace time at home. There seems to be an appalling silence from some
representatives, when these same acts against women are committed within
their home communities by male members of the communities. In some parts
of Africa, women who are perceived to have brought dishonour to their family
could be murdered by any man of the family.94 This man will only receive a
sentence lasting from 3 months to 2 years.

Female genital mutilation is practiced within a large area from the Red Sea to
the Atlantic coast. The effects are irreversible and cause a lifetime of physical
and mental suffering. A member95 of the Research, Action and Information
Network for the Bodily Integrity of Women, said there is tremendous denial in
Africa about the issue of violence against women and girls. The abuses suffered
by the continent itself, ranged from slavery to colonialism to the new economic
order which has placed Africa on the lowest rung. As a result, Africans have
created a defensiveness about any criticism of their society. They are very
proud and they do not want to change their cultures or social systems. That
philosophy is "a recipe for suicide", she stated.

Women have paid a great cost. Whenever they speak out about violations of
their rights, they are told that they are becoming "western" or that they are

94
Honour killings: This is the practice of killing girls and women who are perceived to have defiled a
family's honour by allegedly engaging in sexual activity or other improprieties before marriage or
outside of marriage.
95
Ms Toubia, “Violence Against Women and Girls”
http://web.amnesty.org/library/index/engafr440042005 (accessed August 1st, 2007)

46
adhering to the views of international agencies. It is disturbing that the issue of
violence against women is escalating in Africa, largely due to the increasing
conflict on the continent. There are the old forms of culturally-based violence,
as well as those emerging from socio-economic disparities. Female genital
mutilation and discriminatory inheritance laws, for example, deprive women of
certain basic rights, and expose them to human rights violations.

According to the World Health Organization (WHO),96 violence affects


millions of women in Africa. In a 2005 study on women’s health and domestic
violence, the World Health Organization found that 50 per cent of women in
Tanzania and 71 per cent of women in Ethiopia’s rural areas reported beatings
or other forms of violence by husbands or other intimate partners.

In South Africa, reports Amnesty International, about one woman is killed by


her husband or boyfriend every six hours. In Zimbabwe, six out of 10 murder
cases tried in the Harare High Court in 1998 were related to domestic violence.
In Kenya, the attorney general’s office reported in 2003 that domestic violence
accounted for 47 per cent of all homicides.

According to David Littman,97 of the Association for World Education, the term
"traditional or customary practices" is a shameful euphemism for crime
against women. Female genital mutilation is performed every year on more
than 1 million - perhaps up to 2 million - female babies, young girls, and
women in 30 countries in Africa. This ancient ritual should long ago have been
termed "female torture".

Another source of concern is the exposure of African women to life-threatening


illnesses like HIV/AIDS. The women in the villages are often sitting ducks
waiting to be shot. Their husbands will return to their homes for the weekend
and often refuse to use condoms. It is particularly concerning that the rate of
96
“Make Violence Against Women History”
http://www.who.int/violence_inquiry_prevention/violence/world_report/wrvh1/en (accessed on August
12th, 2007)
97
“Abuse of women escalates HIV infections in Africa” http://www.afrol.com/printable_feature/10274
(accessed on August 1st, 2007)

47
infection is higher among girls and women than it is among men. Lack of
education about the virus is a growing liability. Studies have confirmed that
better-educated young girls tend to start having sexual relationships later. It is
sad to note that in many parts of the world, cultural and social conditions
prevent young girls from receiving education. The implication is that many
girls are denied the right to inform themselves about their sexual and
reproductive rights and options.

Studies have shown that women (for biological reasons) are more vulnerable
than men to sexually transmitted diseases and other opportunistic infections
like HIV. This is especially marked in girls whose genital tracts are still not
fully mature. The genital lining of the youth and girls in particular is still not
well developed to protect the viral transmission into the body. Older women
have harder vaginal mucosal lining which does not easily break during the act
of sex, that of the young girls is still very tender and breaks easily thus
increasing chances of infection. Compounding biological vulnerability is the
fact that women are far more likely to be coerced into sex, or raped - often by
someone older, who has had greater exposure to the virus. Lack of
empowerment also causes the spread of AIDS. The youth are under the control
of adults. Girls in particular have sex with people older than they are. These
people have more power over them such that the youth are not assertive enough
to negotiate for safer sex.

Violence against women can also take less overt forms. Young girls often have
sexual relationships with 'sugar daddies" that coerce them to have sex in
exchange for gifts and favours. Such unequal relationships also have
consequences for women, in terms of their risk of infection. Worldwide,
women between the ages of 15 and 24 also account for half of new HIV
infections. Botswana is one of the countries most affected by the HIV/AIDS
pandemic. The impact of this pandemic is placing a heavy burden on the
individual and the entire economy. It is also observed that, while women and
girls are especially vulnerable to the HIV infection, there is also a

48
disproportionate burden placed on them as care-givers. In Africa, the rate of
infection in teenage girls is six times higher than in women over 35 years.
About one in four teenage girls lives with HIV, compared to one in 25 teenage
boys.98

The challenge is to find creative ways to change the social conditions that deny
young women the ability to control practices that increase their vulnerability
for contracting HIV. In many instances, women are still seen as sexual objects.
Women bear the greatest burden of HIV/AIDS. The majority of young women
cannot protect themselves against AIDS because they have to rely on their male
partners who may decide whether or not to use a condom.

Women are recognized as a fundamental force in the quest to eradicate poverty


and maintain the stability of families and societies. Without improving the
status of women, we cannot expect any real progress in society, and especially
in the battle against AIDS.

According to a 1999 study on violence against women by the Johns Hopkins


Bloomberg School of Public Health near Baltimore, United States of America,99
abusers of women tend to view violence as the only way to solve family
conflicts. Perpetrators typically have a history of violent behaviour, grew up in
violent homes and often abuse alcohol and drugs. The story of Janet Akinyi in
Kenya is a case in point. In 2006 she filed for divorce and custody of her
children after her husband attempted to kill her with a knife. She had endured
violent beatings throughout her 10 years of marriage. “We used to be okay until
he started drinking,” Ms. Akinyi told Africa Renewal. “Then he would get
furious at anything and start beating me. He would say it is the only way to
teach me to respect him.”

98
Ibid.
99
“Women: War, Peace and Violence against Women”
http://www.womenwarpeace.org/issues/violence/spraptorture_2004.pdf (accessed on August 1st,
2007?)

49
Rosa’s story buttresses the spate of violence against women in Africa. Rosa’s
husband was murdered in 1989 during an uprising in Eastern Uganda. An
illiterate housewife with no independent source of livelihood, she was left with
four small children to look after. Soon after the funeral, rumours started
circulating around the village that she had connived with the killers in order to
take over her husband’s property. She was in shock, heartbroken at losing her
husband and fearful of the future. The rumour spread like wild fire, and soon,
Rosa found herself not only having to cope with widowhood but also having to
deal with the stigma and isolation that was caused by this malicious rumour.
Even the people she had considered her close friends begun to shun her and
distance themselves from her. She was branded a “witch and harlot.”

While still contemplating her next move, the parochial chauvinistic tendencies
of the culture were set in motion. Her husband’s relatives informed her that
although she had killed their son, they would not let her go away with his
property. She had to choose one of the relatives to “inherit her.”

She said that “my husband had only one brother and his wife warned me that if
I chose him to be the heir, that would mark the end of my life. I therefore picked
on one of my late husband’s cousins – not that I loved him but because I
wanted to stay and look after my children. If I had any choice in the matter, I
would have preferred to bring up my children as a single mother since my
husband had left a big portion of land that could ensure our survival.”

So in the quest to ensure the safe upbringing of her children, Rosa chose to be
inherited by a relative so that she could stay a member of the family. However,
that was not the end of the story, as she explains “this man also had his own
wife. She called me names and threatened to kill me. I had no alternative but to
bear all these problems for the sake of my children.”

Worse still, upon inheriting her, her “successor husband” took over her late
husband’s estate and she had to share the land with the other wife. This only

50
increased the tension and conflict in the home. Rosa soon became pregnant.
Despite the added responsibilities of another child she was not receiving any
financial assistance from this “new husband” except for the land that she was
allocated to cultivate. Then after about three years of toiling in this new
situation, the past came back to haunt her. One day, her late husband’s brother
came back from the city, where he was employed as a teacher, and ordered
Rosa to pack all her belongings and vacate their home. He claimed that he had
confirmed that she was the perpetrator of her husband’s death. It was already
night, so he threatened to kill her if he found her still present in the morning.
She said: “I ran to the Clan head, who came and calmed him down and said
we would settle the matter in the morning. The next morning, I was shocked to
have all my property thrown out of the house and I was told to go back to my
parents. The only reason I was given was that they had confirmed that I was a
witch. I was only saved by my father-in-law who said that he still needed me
around so that I look after him because he was ill.”100

Rosa’s father in law remained bed-ridden for a year. When he died, her brother
in law renewed her eviction immediately after his funeral. She laments that:
“He sent me away saying I was no longer needed in their home. I was in a
dilemma and in the midst of all this my “new husband” was unable to defend
me. I had to leave the home and live as a beggar. For over six years, I lived as
a pauper and survived on hand outs from sympathizers. Then I was told by one
of the women in the village that an organization called Woman of Purpose
could help me solve my long lasting problems with my in-laws. I went to the
Woman of Purpose office in Agule and they were able to organize a dialogue
with my in-laws.” It was not easy to settle the long standing conflicts and
accusations. But by and by, Rosa was able to recover part of what she had lost.
Although the clan did not restore to her all that belonged to her, at least she was
able to get some land to support her and her family. It may not have been total

100
“Women and African Culture” http://www.rhrc.org/resources/gbv/gbv_tooks/manual_toc.htm
(accessed on August 1st, 2007)

51
justice, but at least the voice of justice was heard and that in future, justice will
triumph.101

However, violence against women, the Johns Hopkins study points out, goes
beyond the brutalization of women by individuals. The prevalence of the
phenomenon, “cuts across social and economic situations, and is deeply
embedded in cultures around the world - so much so that millions of women
consider it a way of life.” In a report by the United Nations Population Fund
(UNFPA) in 2000,102 the agency noted that in interviews in Africa and Asia,
“the right of a husband to beat or physically intimidate his wife” came out as
“a deeply held conviction.” Even societies where women appear to enjoy better
status “condone or at least tolerate a certain amount of violence against
women.” Such cultural norms put women in subservient positions in relation to
their husbands and other males. That inferior status makes women
“undervalued, disrespected and prone to violence by their male counterparts,”
observed a 2003 report by the UN Development Fund for Women
(UNIFEM).103 Ms. Radhika Coomaraswamy, the former UN special rapporteur
on violence against women, agreed, noting that discriminatory norms,
combined with economic and social inequalities, “serve to keep women
subservient and perpetuate violence by men against them.”

Focusing specifically on Africa, Ms. Heidi Hudson found in a 2006 study by


the South African Institute of Security Studies104 that “the subservient status of
women, particularly rural women, in many African countries is deeply rooted
in tradition.”

This is true to such an extent, Ms. Hudson added, that women can be perceived
as objects or property, a view reflected especially clearly in practices such as
101
This tale of the treatment of a widow in Uganda was submitted by WOMEN OF PURPOSE (WOP)
From WRI Newsletter 9 http://www.rhrc.org/resources/gbv/gbv_tooks/manual_toc.htm (accessed on
August 1st, 2007)
102
“Overall Status of Women in Africa” http://www.unfpa.org/women/bucharest/index.htm (accessed
on August 12th, 2007)
103
“Women and Violence” http://www.unifem.org/files/confirmed/149/213_chapter01.pdf (accessed on
August 1st, 2007)
104
“Focus on Africa” http://www.worldreport06/women/women2.html (accessed on August 12th, 2007)

52
wife inheritance and dowry payments. The impact of both practices was
illustrated by a 2003 study on domestic violence in Uganda by the US-based
Human Rights Watch (HRW). The study found that families justified forcing
widows to be inherited by other males in the family with arguments that the
family had “all contributed to the bride price” and that therefore the woman
was “family property.” Once inherited, a widow lost her husband’s property,
which went to the new husband. And if a woman sought separation or divorce,
the dowry had to be reimbursed. Often, the study found, “a woman’s family is
unable or unwilling” to refund the dowry, and her brothers may beat her to
force her back to her husband or in-laws “because they don’t want to give back
cows.”

Former Tanzania’s President, Julius Nyerere, was an early critic of such


cultural practices. He noted in 1984 that denying women the right to inherit and
own property leaves them economically vulnerable and dependent. That creates
a situation in which “women in Africa toil all their lives on land that they do
not own, to produce what they do not control, and at the end of the marriage
through divorce or death, they can be sent away empty-handed.” Since Mr.
Nyerere’s time, Africa’s economic decline has left many women in even worse
conditions. Their plight is so severe, noted a study by the WHO and the Joint
UN Programme on HIV/AIDS (UNAIDS),105 that many women see no option
but to remain with husbands who routinely batter them. The women stay
because men “serve as vital opportunities for financial and social security, or
for satisfying material aspirations.” Moreover, as such women are often both
poor and uneducated, “the combination of dependence and subordination can
make it very difficult . . . to demand safer sex or to end relationships that carry
the threat of HIV/AIDS infection.”

The WHO found that women with at least a secondary education were more
able to negotiate greater autonomy and control of resources within marriage,
have a wider range of choices in partners and are more able to choose whether
105
“Gender Violence” http://www.who.int/genderviolence/posters/en/ (accessed on July 29th, 2007)

53
and when to marry. Such capacities have often been associated with lower
levels of violence in the home.

Most African women, in common with women all over the world, face a
variety of legal, economic and social constraints. Indeed some laws still treat
them as minors. In Zaire, for instance, a woman must have her husband's
consent to open a bank account. Women are known to grow 80 per cent of food
produced in Africa, and yet few are allowed to own the land they work. It is
often more difficult for women to gain access to information and technology,
resources and credit. Agricultural extension and formal financial institutions are
biased towards a male clientele' despite women's importance as producers.
Women end up working twice as long as men, 15 to 18 hours a day, but often
earn only one tenth as much. With such workloads, women often age
prematurely.106

Female education affects family health and nutrition, agricultural productivity,


and fertility, yet there is a wide gender gap in education. Lack of resources and
pressures on time and energies put enormous constraints on the ability of
women to maintain their own health and nutrition as well as that of their
children. As a result, women are less well equipped than men to take advantage
of the better income-earning opportunities that have emerged in Africa.
Although food and nutrition are women's prime concerns in Africa, and they
are the principal participants in agriculture, independent farming by women has
been relatively neglected. Women's family labour contribution has increased,
but goes unpaid.

In industry and trade, women have been confined to small-scale operations in


the informal sector; however vibrant these operations are and despite the
trading empires built up by the most successful female entrepreneurs, women's
average incomes are relatively low. Women are also handicapped in access to
formal sector jobs by their lower educational attainments, and those who
106
“Women in Africa” http://www.unu.edu.unupress/unupbooks/uu37we/uu37we00.htm#contacts
(accessed on August 1st, 2007)

54
succeed are placed in lower grade, lower paid jobs. Elite women who wish to
improve their legal and economic status must expect to lose honour and
respect. There is often sexism in job promotions and unpleasant consequences
if women stand up to men. There is often more respect for male professionals
than there is for female. Women often suffer employment discrimination
because they need to take time off for maternity leave or when a child is sick.
Career women often have to work harder at their jobs to keep even with their
male counterparts. Social attitudes to women are responsible for the gender
differences in both the education system and the labour force, as we will see
below. Differential access to educational and training opportunities has led to
low proportions of women in the formal sector and their subsequent
concentration in low paid production jobs with limited career prospects. So,
although women play an important role in African society, they suffer legal,
economic and social constraints.

2.1.3 STATUS OF WOMEN AND GIRLS IN CULTURES OUTSIDE


AFRICA

Domestic violence is a global problem. In Europe violence in the home is the


primary cause of injury and death for women aged 16 - 44, more lethal than
road accidents or cancer. Indeed, “violence against women,” said the then UN
Secretary-General Kofi Annan in 1999, “knows no boundaries of geography,
culture or wealth. It is perhaps the most shameful human rights violation.”
And, he added, it is “perhaps the most pervasive.”

In Pakistan for instance, Mukhtaran Bibi, a woman sentenced to gang rape by


the Islamic & tribal leaders of a village council in southern Pakistan, has
testified at a court in Punjab's Dera Ghazi Khan town about her ordeal. She
described how the four men on trial dragged her into a hut and raped her. Face-
to-face with the men, who are on trial for raping her, Mukhtaran Bibi described

55
how she was asked to appear before the informal village council to apologise
for the alleged misdemeanour of her 12-year old brother. He had been accused
of having an affair with an older woman. He says the story was concocted to
cover up the fact that he had been sodomised by three men earlier in the day
and threatened to report the incident. She testified that when she apologised to
the council, made up of village elders in Punjab's Muzaffargarh area, one man
said she should be pardoned. But another man suddenly said she should be
raped. She described begging the council to save her, but they took no notice
and four men raped her while hundreds of villagers did nothing to stop the
assault. Afterwards, Mukhtaran Bibi said she was forced to walk home half-
naked in full public view, covered only with a piece of cloth.107

The impact of HIV/AIDS on women is particularly acute. Women are often


economically, culturally and socially disadvantaged and lack equal access to
treatment, financial support and education. In a number of societies, women are
mistakenly perceived as the main transmitters of sexually transmitted diseases
(STDs). Together with traditional beliefs about sex, blood and the transmission
of other diseases, these beliefs provide a basis for the further stigmatization of
women within the context of HIV and AIDS.

HIV-positive women are treated very differently from men in many countries.
Men are likely to be excused for their behaviour that resulted in their infection,
whereas women are not. “My mother-in-law tells everybody, 'because of her,
my son got this disease. My son is a simple as good as gold-but she brought
him this disease.”108 In India for example, the husbands who infected them may
abandon women living with HIV or AIDS. Rejection by wider family members
is also common. In some African countries, women, whose husbands have died
from AIDS-related infections, have been blamed for their deaths.

Amnesty International’s research has shown that:

107
Mukhtaran Bibi http://www.middleastwomen.org (accessed on September 18th, 2007)
108
HIV-positive woman, aged 26 http://www.middleastwomen.org (accessed on September 18th, 2007)

56
• The Russian government estimates that 14,000 women were killed by
their partners or relatives in 1999, yet the country still has no law
specifically addressing domestic violence.109

• The World Health Organization has reported that up to 70 per cent of


female murder victims are killed by their male partners.110

• On average, two women per week are killed by a male partner or former
partner in the UK. Nearly half of all female murder victims are killed by
a partner or ex-partner.111

• In 2004, in Spain 72 women died at the hands of their partners or ex-


partner, 7 of them despite having been granted protection measures.112

There is an increasing problem in Iraq of violence against women. According


to the "honour" system, a woman who has been raped or abducted is considered
to have brought shame upon her family. Under Saddam's regime, a rape victim
would frequently be killed by a brother or father to restore family honour
unless she agreed to marry her abductor. Many women are victims of this
inhumane custom and practice.113

In Afghanistan, the Afghan Supreme Court dismissed a female judge for not
wearing an Islamic veil during a meeting with US President George W Bush
and his wife last month. Marzeya Basil was among a group of 14 female
government officials who attended computer and management course in
Washington at the invitation of the US government. Basil was sacked days after
her return to Kabul for not wearing her scarf during the meeting. It has been
said that the decision for her removal was made by top authorities of the

109
Stop Violence against Women: "It’s in our hands", AI Index: ACT 77/001/2004. Page 4
htttp://web.amnesty.org/library/print/ENGAFR446102006 (accessed on July 29th, 2007)
110
Ibid
111
Ibid.
112
Ibid.
113
Azam Kamguian “International Humanist and Ethical Union Internationale Humaniste et Laique”
Tuesday, 6 April 2004 http://www.iheu.org/glossary/#term407 (accessed on September 25th, 2007)

57
Supreme Court. Deputy Chief Justice and vice-president urged Afghan women
to observe the dress code at home and abroad.

Whilst FGC is widely practiced out in the open by African Muslims and
Ethiopians and Eritreans of all faiths, it is practiced in secrecy in some parts of
the Middle East. The practice occurs particularly in northern Saudi Arabia,
southern Jordan, and Iraq, and there is also circumstantial evidence to suggest it
is present in Syria, western Iran and southern Turkey.114

The practice can also be found among a few ethnic groups in South America
and very rarely in India (Dawoodi Bohra community, a sect of the Shia
Muslims of India115). In Indonesia116 the practice is fairly common among the
country's Muslim women; however, in contrast to Africa, almost all are Type 1
or Type 4,117 the latter usually involving the symbolic pricking of blood release.

Amnesty International estimates that over 130 million women worldwide have
been affected by some form of FGC with over 2 million procedures being
performed every year. Due to immigration, the practice has also spread to
Europe, Australia and the United States. Some tradition-minded families have
their daughters undergo FGC whilst on vacation in their home countries. As
Western governments become more aware of FGC, legislation has come into
effect in many countries to make the practice of FGC a criminal offense. In
2006, Khalid Adem118 became the first man in the United States to be
prosecuted for mutilating his daughter.

114
Birch, Nicholas. "Female circumcision surfaces in Iraq" http://en/wikipedia.org/wiki/Iraq (accessed
on August 12th, 2007)
115
“Stop FGC” http://www.stopfgmc.org/client/sheet.aspx?root=168&sheet=1951&lang=en-US
(accessed on August 12th, 2007)
116
US Department of State (June 1, 2001). “Indonesia: Report on Female Genital Mutilation (FGM) or
Female Genital Cutting (FGC)” http://en/wikipedia.org/wiki/female.genital_cutting#_note-8 (accessed
on August 12th, 2007)
117
See pages 29 - 31
118
“Female Genital Mutilation” http://en/wikipedia.org/wiki/Khalid_Adem (accessed on August 12th,
2007)

58
CHAPTER 3

3.1 LEGAL SYSTEMS AND DISCRIMINATION AGAINST


WOMEN AND GIRLS

Violence against women and girls is closely bound up and interacts with
unequal power relations between men and women, and gender-based
discrimination. The right not to be discriminated against on the grounds of race,

59
sex, sexual orientation, gender expression and identity, age, birth, or religion, is
the basis of human rights - the inherent and equal dignity of every woman, man
and child. The International Covenant on Civil and Political Rights (ICCPR)
provides that "All persons shall be equal before the courts and tribunals".119

Under the UN Convention on the Elimination of All Forms of Discrimination


Against Women (CEDAW), state parties are obliged to "take all appropriate
measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women".120

Gender-based violence, which impairs or nullifies the enjoyment by women of


human rights and fundamental freedoms under general international law or
under human rights Conventions, is discrimination within the meaning of
Article 1 of CEDAW. These rights and freedoms, according to the CEDAW
Committee’s General Recommendation 19121 include:

“(a) The right to life;

(b) The right not to be subject to torture or to cruel, inhuman or


degrading treatment or punishment;

(d) The right to liberty and security of person;

(e) The right to equal protection under the law;

(f) The right to equality in the family;

(g) The right to the highest standard attainable of physical and mental
health;
(h) The right to just and favourable conditions of work."

119
Article 14(1)
120
Article 2(f)
121
CEDAW Committee, General Recommendation 19, Violence against women (11th session, 1992),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI\GEN\1\Rev.1 at 84 (1994), para. 7. http://www.unhchr.ch (accessed on July 29th,
2007)

60
In the African context, the African Charter on Human and Peoples’ Rights122
provides that states parties must "ensure the elimination of every
discrimination against women and also ensure the protection of the rights of
women and the child as stipulated in international declarations and
conventions".123 It also states that "Every individual shall be equal before the
law and entitled to equal protection of the law."124

The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa125 defines discrimination against women as:

…any distinction, exclusion or restriction or any differential treatment based on sex


and whose objectives or effects compromise or destroy the recognition, enjoyment or
the exercise by women, regardless of their marital status, or human rights and
fundamental freedoms in all spheres of life.126

States parties are obliged to take a number of appropriate legislative,


institutional and other measures to combat all forms of discrimination against
women:

…through public education, information, education and communication strategies,


with a view to achieving the elimination of harmful cultural and traditional practices
and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes, or on stereotyped roles for women and men.127

Violence against women in its many manifestations constitutes a violation of


women’s rights and fundamental freedoms. The 1993 UN Declaration on the
Elimination of Violence Against Women128 defines it as any act of gender-based
violence - that is, violence directed against a woman because she is a woman or
that affects women disproportionately - that results in, or is likely to result in,

122
African Charter op. cit. note 11.
123
Article 18(3)
124
Article 3
125
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
was endorsed by Resolution AHG/Res.240 (XXXI) on June 1995 and adopted by the Conference of
Heads of State and Government in July, 2003 in accordance with Article 66 of the African Charter on
Human and Peoples' Rights It entered into force on November 25th, 2005.
http://www.hrw.org/doc/?t=africa (accessed on July 29th, 2007)
126
Article 1(f)
127
Article 2
128
Declaration on the Elimination of Violence against Women adopted by the General Assembly by
Resolution 48/104 of 20 December 1993, http://www.unhchr.ch/html/intlinst.htm (accessed on August
12th, 2007)

61
physical, sexual or psychological harm or suffering to women, including threats
of such acts, coercion or arbitrary deprivation of liberty, whether occurring in
public or in private life. In its preamble, the Declaration describes violence
against women as “a manifestation of historically unequal power relationships
between men and women" and as one of the "crucial social mechanisms by
which women are forced into a subordinate position compared with men."

Violence against women as a fundamental violation of human rights was


highlighted first in the African context with the African Platform for Action and
the Dakar Declaration of 1994,129 which acknowledged that in most African
countries violence against women in domestic, private and public places, had
reached alarming levels. The Dakar Declaration acknowledges that "women are
subjected to violence and to the threat of violence in their daily relationships",
violence which "deprives women of their ability to achieve full equality" and
"threatens their safety, their freedom and their autonomy". It also
acknowledges that violence is often unreported as "the majority of women do
not speak out or report to the court on violence but keep silent as victims
because of fear, shame or a misplaced feeling that they are somehow
responsible".130

International recognition of violence against women is reflected in the Beijing


Declaration and Platform for Action131, adopted in 1995 at the Fourth World
Conference on Women in Beijing. At its 10 year review in March 2005, the
Nigerian Minister of Women Affairs reaffirmed Nigeria’s commitment to the
full and effective implementation of the Platform for Action and acknowledged
“persistent violence against women”.132

129
African Platform for Action, adopted by the Fifth Regional Conference on Women, Dakar, UN Doc.
E/CN.6/1995/5/Add.2, para 67, http://www.un.org/documents/ecosoc/cn6/1995/ecn61995-5add2.htm
(accessed on August 12th, 2007)
130
Dakar Declaration, para 66 http://www.hrw.org/doc/?d=africa (accessed on August 12th, 2007)
131
Report of the Fourth World Conference on Women, Beijing, 4-15 September 1995,
A/CONF.177/20/Rev.1. annexes I and II, endorsed by G.A. res. 50/42, 50 U.N. GAOR Supp. (No. 49)
at 33, U.N. Doc A/RES/50/49 (1995) op. cit. note 25
132
Statement by Obong Rita Akpan, Former Minister of Women Affairs, Federal Republic of Nigeria
http://www.un.org/webcast/csw2005/050301statements.html (accessed on August 12th, 2007)

62
The Rome Statute of the International Criminal Court133 recognizes a broad
spectrum of sexual and gender-based violence as crimes against humanity and
war crimes. These include rape, forced prostitution, pregnancy and
sterilization; and gender-based persecution.

The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa obliges states to take a variety of measures to
address violence against women in all its manifestations. The Protocol defines
violence against women as:

all acts perpetrated against women which cause or could cause them
physical, sexual, psychological, and economic harm, including the
threat to take such acts; or to undertake the imposition of arbitrary
restrictions on or deprivation of fundamental freedoms in private or
public life in peace time and during situations of armed conflict or of
war.134

It states that "Every woman shall be entitled to respect for her life and the
integrity and security of her person. All forms of exploitation, cruel, inhuman
or degrading punishment and treatment shall be prohibited", and requires
states to prohibit, prevent and punish "all forms of violence against women
including unwanted or forced sex whether the violence takes place in private or
public".135 It also obliges states to "prohibit and condemn all forms of harmful
practices which negatively affect the human rights of women and which are
contrary to recognized international standards."136

International human rights treaties and standards define the obligations of states
to secure human rights for individuals subject to their jurisdiction. They
provide guarantees of freedoms and entitlements that individuals may claim at
national, regional and international levels. Under international human rights
133
Rome Statute of the International Criminal Court, adopted on 17 July 1998 (A/CONF.183/9). It
entered into force on July 1st, 2002 http://www.icc-cpi.int/index.php (accessed on August 12th, 2007)
134
Article 1
135
Article 4
136
Article 5

63
law, states incur obligations to respect, protect, and fulfil human rights.
Government officials, or those acting with the authorization of the state, must
respect women and girls’ human rights by ensuring that no state agents commit
acts of violence against women.

The state has a duty to respect the human rights of women, for example the
State, via its state agents, has to refrain from directly or indirectly interfering
with the rights of women. Thus, where police or armed forces commit acts of
violence against women, the duty to respect is breached.

The duty to protect requires that the state and its agents must take effective
measures against other individuals or groups (including private enterprises and
corporations) who violate the integrity, freedom of action or other human rights
of the individual. This duty is upheld when the state institutes laws, policies
and practices that protect victims of violence, provide them with appropriate
remedies and bring the perpetrators to justice. The CEDAW Committee stresses
that:

"States parties should take appropriate and effective measures to overcome all forms
of gender-based violence, whether by public or private act and to ensure that laws
against family violence and abuse, rape, sexual assault and other gender-based
violence give adequate protection to all women, and respect their integrity and
dignity."137

The criminal justice system provides scant protection, the police and judiciary
often dismissing domestic violence as a family matter and failing to investigate
or press charges. The few rape victims who take their cases to court face
humiliating rules of evidence,138 discriminatory attitudes from court officials,
137
CEDAW Committee, General Recommendation 19, Violence against women (11th session, 1992),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI\GEN\1\Rev.1 at 84 (1994), para. 24 (a) and (b). . http://www.unhchr.ch
(accessed on July 29th, 2007)
138
For instance, an offence of rape exists only where the victim can prove that there was no consent on
her part and this must be corroborated by independent evidence. This puts a heavy burden on the
prosecution such that evidence of witnesses who saw the accused mounted the complainant in the act
and motion of sexual intercourse and medical evidence are required to prove rape. “Rape means a
forcible sexual intercourse with a girl or woman without her giving consent” - Iko v. The State [2001]
14 N.W.L.R. pt 732, p. 221, per Atu Kalgo JSC; A.O.A Yussuff “Consent and The Nigerian Law of
Rape” in A.L Akintola & O.A. Orifowomo (eds.”), Ife Juris Review, Vol. 1 IFJR Part 2, Ile Ife, 2004,
341. Section 211 of the Evidence Act, Cap. E14, LFN 2004 states that: “When a man is prosecuted for

64
and little chance of justice. The prohibitive cost of legal action encourages
families to seek financial compensation out of court. In such cases the state is
failing in its duties to provide effective and accessible justice for women and
girls and also depriving them of the right to redress as wall as allowing the
perpetrators to operate with impunity.

3.1.1 THE STATUS OF WOMEN AND GIRLS UNDER NIGERIAN


LEGAL SYSTEMS

The UN Convention on the Rights of the Child defines all those under the age
of 18 as children.139 It requires states to take all effective and appropriate
measures to "protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse" while in the care of parent(s), legal guardian(s) or any
other person who has the care of the child"140 and to abolish traditional
practices prejudicial to the health of children.141 It further obliges states parties
to protect children from all acts of sexual exploitation and abuse142 and from
torture and other ill-treatment.143 The Committee on the Rights of the Child has
determined that child and forced marriage is both a harmful traditional practice
and a form of gender discrimination which must be prohibited by state parties
through their legal systems.

The African Charter on the Rights and Welfare of the Child144 states that "Any
custom, tradition, cultural or religious practice that is inconsistent with the
rights, duties and obligations contained in the present Charter shall to the

rape or for attempt to commit rape or indecent assault, it may be shown that the woman against whom
the offence is alleged to have been committed was of a generally immoral character….”
139
Article 1. See pages 78 to 79 below for discussions on who a child is in Nigeria
140
Article 19(1)
141
Article 24
142
Article 34
143
Article 37(1)
144
African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990). It
entered into force on November 29th, 1999. It was ratified by Nigeria on June 23rd, 2001,
http://www.hrw.org/doc/?t=africa (accessed on July 29th, 2007)

65
extent of such inconsistency be discouraged.145 It requires states to prohibit
child marriage and the betrothal of girls and to "take all appropriate measures
to eliminate harmful social and cultural practices affecting the welfare, dignity,
normal growth and development of the child", including, in particular, customs
and practices prejudicial to children’s health or lives and discriminatory on the
grounds of sex or other status.146 States have a duty to take protective measures
against child abuse, including "effective procedures for the establishment of
special monitoring units to provide necessary support for the child and for
those who have the care of the child, as well as other forms of prevention and
for identification, reporting referral investigation, treatment, and follow-up of
instances of child abuse and neglect"147 and to protect children from all forms
of sexual exploitation and sexual abuse.148

The Nigerian legal system recognizes Nigeria’s human rights obligations. The
Constitution of the Federal Republic of Nigeria, 1999 states that:

No treaty between the Federation and any other country shall have the force of law
except to the extent to which any such treaty has been enacted into law by the
National Assembly.149

Thus, in the case of Fawehinmi v. Abacha150, the court stated that once a treaty
was domesticated and enacted into Nigerian law, this constituted a commitment
on the part of the state to be bound by its provisions.151

Law enforcement officials in a recent case were suspected of being paid or


otherwise improperly induced not to press charges against an alleged rapist but
instead to have his accuser detained on charges of slander. The woman in the
case was thus doubly victimized:

145
Article 1(3)
146
Article 21
147
Article 16
148
Article 27
149
Section 12(1) of the Constitution of the Federal Republic of Nigeria, 1999.
150
(1990) 9 NWLR (Part 475), p. 710.
151
For instance the Convention on the Rights of the Child has been domesticated as The Child Rights
Act 2003 while Convention against Trafficking in Persons has been domesticated as Trafficking in
Persons (Prohibition) Law Enforcement and Administration Act 2003

66
On 21 June 2004, "Folake", a domestic worker, was allegedly forced into the
bedroom of her employer’s husband, made to watch a violent film on
videotape, and raped. Her father took items of material evidence, including her
underwear, to the local police station. He was told that the alleged perpetrator
had already lodged a complaint of slander against Folake for accusing him of
rape. A medical examination four days after the event found evidence of
penetration and bruising on her vagina, and concluded that she had been
sexually assaulted. However, it was Folake who was subsequently brought
before the magistrate’s court in Ikeja, Lagos, where she was charged with
slander. She was remanded in custody at Kirikiri medium security prison for
seven days until her family could pay the bail. During her imprisonment, she
had no access to medical care. Her father said the family had heard that the
evidence he handed to the police has since disappeared. It is suspected that the
alleged perpetrator had used his social and political influence in his community
to exert pressure on investigating officials.152

Thus, it appears wealthy and powerful perpetrators of violence, or those with


personal connections with police officers, are widely believed to be able to buy
themselves immunity from prosecution by paying officers not to record a
complaint or not to pursue an investigation. This was the suspicion of some
observers in the case of one woman in Lagos. Maryam died on 14 December
2000 from injuries sustained after she was allegedly beaten and thrown from
the first floor of her home by her husband. Before her death, she had paid a
condolence visit to a relative, despite reportedly being banned by her husband
from visiting or receiving visits from members of her family or attending any
social functions. After her family reported her death, her husband was detained;
he was later released without charge.153

152
Interview with lawyers at Women Advocates Research and Documentation Centre (WARDC),
Lagos, November 2004 and March 2005. http://web.amnesty.org/library/print/ENGAFR440042005
(accessed on August 12th, 2007)
153
Legal Defence and Assistance Project (LEDAP), Domestic Violence: Zero Tolerance, Lagos, 2003,
p. 7 http://web.amnesty.org/library/index/engafr440042005 (accessed on August 12th, 2007)

67
Medical doctors in hospitals are required to report gunshot wounds to the
police, but not other injuries even if they may have resulted from criminal
activity. While this may encourage women to seek medical care without having
to report their abuser to the police, it also has the effect of allowing impunity to
perpetrators.

Individual women and medical professionals reported that prosecutions in rape


cases were sometimes unsuccessful because of a lack of access to medical
services or because medical evidence was not collected or preserved.
Sometimes the victim is reluctant to come forward immediately after the event,
and the medical examination may therefore be unable to establish penetration
or physical injury. A practical constraint is the lack of appropriate storage
systems for medical evidence in state hospitals, as a result of the general lack
of resources within the health care system.

The prejudice and ignorance of police officers can also lead to serious
miscarriages of justice. In one case, police officers appeared to believe that a
man was justified in throwing acid at his wife. In another case, "Justina" died in
Lagos in 1998, three weeks after acid was thrown over her, reportedly by her
husband. It was several weeks before the police detained her husband for
questioning, and women’s and human rights organizations protested at delays
in investigating and prosecuting the case outside the offices of the police
Criminal Investigation Department. Police officers excused the actions of the
husband to the demonstrators, saying that he had poured acid over his wife
after she tried to run away with his money.154

The attitude of blaming violence in the home on the victim rather than the
perpetrator is found not only among police officers and law enforcement
officials but also among some prosecutors and judges. "The dismissive attitude
of some judges in relation to violence against women including violence in the

154
Project Alert, Beyond Boundaries: violence against women in Nigeria, Lagos, 2001, pp. 123 and
124. http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007)

68
family was highlighted in one rape case in which the female judge openly
blamed the female victim for being raped."155

Intimidating and patronizing questions asked by prosecutors and judges during


investigation and trial deter women from reporting rape and other crimes of
sexual or family violence. Women fear the public and intrusive questioning
about their private lives that may be used to undermine their case.

Thus, neither the federal government nor state administrations have taken
action to reform discriminatory laws or laws that condone violence against
women. Some discriminatory legislations that directly condone certain forms of
violence against women have been introduced at state level in the last few
years.156 In other cases, discriminatory laws and practices are derived from
customary laws157 that conflict with human rights guarantees of equality and
non-discrimination in the Constitution. The different provisions on violence
against women and women’s human rights in the different legal systems
perpetuate a situation where there is no equality before the law.

The law is inadequate in offering protection for the victims of crime, fails to
protect women from violence in the family, and contributes to discouraging
women from reporting it.158 Currently, at federal and state level, there are no
laws that specifically criminalize acts of gender-based violence or offer civil
remedies in the form of protection orders against perpetrators.

Nigerian Legal Systems fail to ensure redress and adequate penal and civil
remedies. This failure perpetuates a climate of impunity for perpetrators.
Women who have experienced violence in the family have few opportunities to
obtain justice. By allowing the continued existence of provisions and rules that
legalize discrimination, violence and rape, in contravention of the Nigerian
155
A Lawyer told Amnesty International http://web.amnesty.org/library/print/ENGAFR440042005
(accessed on August 12th, 2007)
156
For instance the various forms of Sharia Law adopted by some states in Northern Nigeria; the
punishment for adultery under the Sharia Law can be said to be inhuman.
157
Domestic violence, rites performed by widows, ownership of property, inheritance, etc.
158
Nigerian NGO Coalition for a Shadow Report to CEDAW, NGOs CEDAW Report for Nigeria,
1999, p. 6. http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007)

69
Constitution and Nigeria’s obligations under international human rights law, the
federal government and state administrations are failing to exercise due
diligence to protect women from violence in the home. The Federal
government has given little attention to strengthening legal protections and
redress in law for victims of violence in the family. It has therefore not fulfilled
its legal obligations under international law to act with due diligence to protect
the rights of potential and actual victims of violence in the family.

The Nigerian Constitution of 1999 provides for equality in law: "Every citizen
shall have equality of rights, obligations and opportunities before the law".159 It
also guarantees the right to be free from discrimination "either expressly by, or
in the practical application of, any law" on grounds of "community, ethnic
group, place of origin, sex, religion or political opinion".160

Despite these constitutional guarantees, some federal laws explicitly condone


certain forms of violence against women in the family. The Penal Code,161
applicable in northern states, explicitly condones certain forms of violence in
the family. Men have the right to "correct" their wives, children or domestic
workers as long as such "correction" does not reach a threshold of severity
amounting to "grievous hurt".162 Severe injuries exceeding this threshold
include "emasculation, permanent loss of sight, ability to hear or speak, facial
disfigurement, deprivation of any member or joint, bone fracture, tooth
dislocation or any which endangers the life or which causes the sufferer to be
in severe bodily pains or unable to follow her ordinary pursuits for more than
20 days".163 Any injuries below this threshold of severity, and the acts of
violence that are their cause, are therefore permitted in law. The Criminal
Code,164 applicable in the southern states, discriminates against women as
159
Section 17(2)(a)
160
Section 42(1)
161
Penal Code Cap. P3, Laws of the Federation of Nigeria 2004.
162
Section 55 (1) (d) of the Penal Code stipulates, “Nothing is an offence, which does not amount to
the infliction of grievous harm upon any person and which is done by a husband for the purpose of
correcting his wife. Such husband and wife being subject to any natural law or custom in which such
correction is recognized as lawful”
163
Section 241
164
Criminal Code Cap. C38, Laws of the Federation of Nigeria 2004

70
regards the provisions on indecent assault. Where the victim of indecent assault
is a woman the perpetrator upon conviction receives a lower sentence
compared to where the victim had been male.165

Nigerian women face various forms of sexual assault such as rape, indecent
assault, incest, and defilement. Although there are provisions in the Criminal
Code and the Penal Code166 against various forms of sexual assault against
women some of which have stiff penalties, however these provisions are not
effectively implemented due to the technical court procedure and evidential
rules, coupled with women’s apathy to report such cases for fear of social
stigma.

No laws specifically criminalize violence in the family, and prosecutions for


violence in the family have to rely on the law on common assault and other
criminal provisions. Cases of physical and sexual abuse, including wife-
battering, are subsumed under the offence of assault. The law fails to address
the specific circumstances of gender-based violence in the family.

Rape for instance, under the Nigerian Laws attract the punishment of life
imprisonment and is defined in a gender specific manner as “Having carnal
knowledge of or sexual intercourse with a woman or a girl without her consent
or under duress.”167 The manner in which rape trials are conducted and the
nature of evidence168 required exposes the woman victim to indignity, making it
a man’s trial, but a woman’s tribulation. In our criminal justice system, the
burden of proof rests with the prosecution and guilt must be established beyond
reasonable doubt. However in practice the victim is required to prove that she
did not consent to rape. Quite often, medical evidence will show that the victim
was raped but failure to provide ‘corroboration” will jeopardize the

165
Criminal Code Sections 353: "Any person who unlawfully assaults another and thereby does him
harm is guilty of a felony, and is liable to imprisonment for three years.", and 360: "Any person who
unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to
imprisonment for two years."
166
For example, sections 353, 357, 360 (Criminal Code) and section 282 (Penal Code)
167
Section 357 Criminal Code.
168
Section 211, of the Evidence Act, Cap E14 LFN 2004.

71
prosecution’s case. The requirement of penetration to prove rape cases which
though is not part of the definition of rape but has been used over the years in
decided cases has also denied women victims of rape the deserved justice from
the law courts. It has been suggested that the law needs to be redefined and the
Evidence Act amended as regards this issue.

In effect many rape cases go unreported. According to the Tell Magazine 169
published in Nigeria, crime statistics issued by the Nigeria Police Force on the
prevalence of rape in Nigeria showed that about 136,285 cases of rape were
recorded between 1980 and 1992. Notwithstanding this startling figure, it is
believed that only one in every 50 rape cases gets reported with a high rate of
them happening in higher institutions of learning. Between June and December
1999, over 30 child rape cases were reported in newspapers and magazines in
different parts of Nigeria.

There are also no legal provisions that prohibit marital rape. Thus, a husband
cannot be charged with forcing his wife to have sex without her consent. If he
uses force or coercion, his crime is not rape but only assault or grievous bodily
harm. The absence of a law criminalizing marital rape in effect institutionalizes
discrimination against women on the basis of marital status. Having consented
to marriage, a wife’s subsequent consent, or lack of it to sex with her husband,
is deemed immaterial in law. In this way the legal system makes the wife a
commodity of the husband.

Moreover, the Penal Code condones marital rape. It states: “Sexual intercourse
by a man with his wife, is not rape if she has attained puberty.”170 This
provision does not only condone marital rape it also condones defilement of
young girls under the age of 16. This is because the age of puberty is not fixed
and any girl who for instance has commenced her menstrual period is deemed

169
December 1996 (vol. and no. not provided within the internet source) “Domestic Violence in
Nigeria” http://news.amnesty.org/mavp/news.nsf/print/ENGAFR440222006 (accessed on August 12th,
2007)
170
Article 282

72
to have attained puberty. Consequently girl children given out in marriages are
sexually assaulted without their consent and without redress from the society.

The law also does not recognize other forms of rape. According to the
definitions of rape in both the Criminal Code171 and Penal Code,172 forcible
penetration with the use of hands, bottles or other instruments is not considered
rape.173 Such crimes incur the lesser charges of indecent assault or indecent
treatment, which carry lower penalties.

The provisions on indecent assault in the Criminal Code discriminate against


women on the basis of sex. For example, if the victim of indecent assault is a
woman the perpetrator upon conviction receives a lower sentence compared to
if the victim had been a male.174 This is a clear case of discrimination in law,
which contradicts the principle of equality before the law provided in Nigeria’s
Constitution and international treaties to which it is a state party.

At state level, legal systems operate concurrently that reflect the multicultural
composition of the state. The statutory legal system is applied in parallel with
customary law and to a certain extent also religious customary law, 175 mainly
Sharia law. Many of these legal systems fail to address violence against women
in the family. In Lagos State, for example, there is no federal, state or
customary law applicable that explicitly makes violence in the family a
criminal offence. The legal system of the state, based on common law, is
likewise inadequate in ensuring justice for women who have experienced such
violence.
171
Section 357
172
Section 282(1)
173
M. O. A. Ashiru “Preserving the human dignity in Women” in A. L. Akintola & O. A. Orifowomo
(eds.), Ife Juris Review, Vol. 1 IFJR Part 2, Ile Ife, Nigeria, 2004, 252.
174
Criminal Code, Sections 353: "Any person who unlawfully assaults another and thereby does him
harm is guilty of a felony, and is liable to imprisonment for three years.", and section 360: "Any person
who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to
imprisonment for two years."
175
Customary law has been defined as a system of law that is not common law and has not been
enacted by any Nigerian legislature. It is a personal system of law, applying to members of
communities who want their affairs to be regulated by this particular system. It is evolutionary and
develops over time, its original sources of law unwritten. There are several different systems of
customary laws in Nigeria operating in parallel to each other, and in parallel to the common law
system.

73
Statutory and Islamic law176 provides for women’s capacity to inherit assets
following the husband’s death. In practice this is oftentimes overridden by local
customary laws177 on succession. Widows are most times subjected to severe
social, cultural and economic sanctions. These may involve both physical and
psychological violence. Under customary law, a woman and her children are
the chattels of a man who is the head of the family saddled with the
responsibilities to provide for them. This parallel system of customary laws
was historically founded on Supreme Court Ordinance178, adopted by the
British colonial administration, which allowed customary laws to operate, as
long as they were not "repugnant to natural justice, equity and good
conscience" and were compatible with the law in force at the time. Customary
law is still subject to this compatibility test, referred to as the "repugnancy
test".

Under the Law of Torts, for the tort of enticement and habouring, a man can
sue another man for habouring his wife but a woman cannot bring a suit for
enticement and habouring. This is discriminatory because it is well known that
in Nigeria, many men have been found to desert their homes for the houses of
other women. If this happens, the woman has no remedy under the law except
to sue for a divorce.

Another point of reference is the Police Act.179 This Act contains provisions
which are discriminatory to female police officers. Section 72(a), which deals
with the enlistment of male candidates into the Police Force, states that:

176
Under statutory law, widows are entitled to one third of the property left by the deceased husband
and children to two thirds. Under Islamic Law, the provisions on inheritance give a measure of
protection to women’s inheritance rights; a widow is entitled to one quarter of her deceased husband’s
property (or one eight if the deceased had children). This is however discriminatory. S. O. Akintola “A
focus on female discrimination and seclusion in Nigeria” in A. L. Akintola & O. A. Orifowomo (eds.),
Ife Juris Review Vol. 1 IFJR Part 2, Ile Ife, Nigeria, 2004, 315.
177
Under Yoruba customary law, for instance, the wife is often regarded as property and she is
generally not expected to entertain any expectations vis a vis her late husband’s property. Hence in
Ogunkoya v. Ogunkoya Suit No. CA/L/46/88 p. 56 (unreported) the Court of Appeal held that wives are
regarded as chattels that are inheritable by other members of the family of the deceased under certain
conditions. S. O. Akintola “A focus on female discrimination and seclusion in Nigeria”, ibid.
178
No. 6 of 1914
179
Police Act Cap. P19, Laws of the Federation of Nigeria 2004.

74
“The qualification for a male candidate seeking enlistment in the Police Force
as a recruit constable shall be as follows:

(a) age – not less than seventeen nor more than 25 years of age”

But Section 118(a) and (b) of the same Act on the enlistment of women shows
a form of discrimination in the age of a woman who can apply for recruitment.
The section provides: “The prescribed qualification for a woman seeking
enlistment in the Police Force shall be as follows:

(a) age – not less than nineteen years and not more than 25 years of age

(b) marital status – must be unmarried.”

Compared to Section 72(a), Section 118(a) and (b) shows discrimination in the
aspect of age of enlistment and marital status of who can apply. A woman must
be unmarried before she can be enlisted but no such provisions were made
concerning a male applicant. The woman must wait till she is nineteen before
she can apply while the man can apply at age seventeen.

Furthermore, Section 124 of the Police Act states that:

“A woman police officer who is desirous of marrying must first apply in


writing to the Commissioner of Police for the State Police Command in which
she is serving, requesting permission to marry and giving the names, address,
and occupation of the person she intends to marry. Permission will be granted
for the marriage if the intended husband is of good character and the woman
police officer has served in the Force for a period of not less than three years.”

This is discriminatory considering the fact that the Police Commissioner will
have to give permission to a female police officer to get married. Such
provisions do not apply to male police officers. Moreover, a male police officer
can get married anytime and have as many wives as possible; that is neither the
business of the Act nor that of the Commissioner.

75
Again, Section 126 of the Police Act provides:

“A married woman police officer who is pregnant may be granted maternity


leave in accordance with the provisions of general orders.”

Section 127 goes further to state that:

“An unmarried woman police officer who becomes pregnant shall be


discharged from the Force,….”

The above provisions are also discriminatory. Section 127 does not consider the
fact that a woman may get pregnant as a result of rape; if this happens, the
woman will still be discharged from the force. Section 128 even prohibits a
woman police officer from dressing is specific ways and from using certain
jewelries. One wonders why the Police Act is so hostile to women.

Another serious problem in Nigeria is child marriage.180 In this instance, their


consent is hardly sought. In most part of the country, there is no legally defined
minimum age of marriage. Section 18 of the Marriage Act defines a person
under the age of 21 years as a minor but allows a minor to marry with parental
consent. In the Eastern part of Nigeria, the marriageable age is 16181.

Child marriages are justified by parents on the ground that it prevents


promiscuity, which a girl child is prone to at puberty. At times, the reasons are
religious, economic and often times the low appreciation of the need for the girl
child to go to school. The 1991 Census182 shows that 2% of Nigeria married
women entered into marriage by the age of 10, 8% at 12, 25% married at 13-
15, and 40% at the age of 15, while 64% by the age of 18. The average age of
marriage for females was found to be 16.5 years.

180
“Real men don’t beat women” by Temitope Naphew in The Punch of December 12, 2006 Vol. 17 No
19,754 at p. 47.
181
Marriage Act of Eastern Nigeria. The Convention on the Right of the Child provides that a child is a
person below the age of 18. In other words, any marriage of a person below age 18 is a child marriage.
182
No official data on this issue from the 2006 Census was found.

76
Under customary law, children can marry when they have attained puberty, an
age which differs from one customary legal system to another although it is
generally assumed to be 12 years of age for girls. As a result, underage
marriages are common throughout Nigeria. Young girls are involved in
premature sexual relations with men much older than them in the absence of
criminal sanctions against child marriage or marital rape. The 1999
Constitution of the Federal Republic of Nigeria has complicated the matter. The
Constitution183 deems a child as an adult in so far that child is married. This
limb of the provision further strengthens the violence against girl children
contrary to Article 16 of the Convention on the Elimination of All
Discrimination Against Women (CEDAW), which prohibits the betrothal, and
marriage of a girl child.

The Criminal Code prescribes 16 as the minimum age for marriage but exempts
from any criminal offence a man who marries an underage girl under
customary law, thus leaving the victim of child marriage and rape without any
redress. In a situation where girls are married without full consent or at an age
where they are too young to give meaningful consent to sex, the risk of sexual
assault and rape is clear. Punishment for sexual abuse is usually limited to a
fine of 200 naira or six months’ imprisonment.

The effect of child marriage is gruesome and includes higher maternal


mortality and greater prevalence of conditions such as Vestico Virginal Fistula
(VVF). There are recent positive developments in Nigeria on the issue, for
instance, Bauchi State an area where child marriage is prevalent has enacted a
law banning child marriages. It is hoped that some other States would follow
suit.

Under Sharia law (to be distinguished from new state-level Sharia penal
legislation), which is applicable to all Muslims, a husband has the right to beat
his wife, but may use only a small implement and should not make a physical

183
Section 29(4) of the 1999 Constitution of the Federal Republic of Nigeria

77
mark on her body.184 Sharia law lays down rules regarding Muslims’ personal
lives concerning worship, rituals and moral conduct, as well as matters that are
more legal in nature such as contracts, marriage, inheritance and divorce. New
Sharia Penal Codes introduced since 1999 in 12 northern states185 have
specified new criminal offences and prescribed more severe punishments
including amputation and stoning to death. They contain provisions on rape
that legalize and legitimize marital rape by explicitly excluding it from the
definition of the criminal offence of rape.186

One problem with evidence in relation to women under the Sharia Penal Codes
is the issue of confession as evidence. According to the Evidence Act used in
conjunction with the Penal Code, a confession is not deemed to provide
sufficient evidence to secure a conviction. However, under the Zamfara Sharia
criminal procedure code for example, a confession in the absence of any
corroborative evidence can be used to secure a conviction.187

36 year old Safiya Yakubu Hussaini was sentenced to death by stoning for
zina188 on 9th October, 2001. She allegedly confessed having been made
pregnant by Yakubu Abubakar, who was subsequently set free for ‘lack of
evidence’. The Court reportedly did not pursue the allegations of coercion.

The implication of the decision in the case of Safiya Yakubu Hussaini is that
men who rape girls and women can go unpunished as long as they make sure
that there are no witnesses to their crime. But women and girls who are victims
184
Baobab for Women’s Human Rights, Women’s Access to Justice and Personal Security in Nigeria: a
synthesis report, 2002, p. 13. http://web.amnesty.org/library/print/ENGAFR440012004 (accessed on
August 12th, 2007)
185
Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara.
186
For example the Sharia Penal Code Law 2001 of Bauchi State: "Sexual intercourse by a man with
his own wife is not rape" (Section 131(2)).
187
This applies generally to both sexes.
188
The new Sharia Penal Codes define someone who has committed zina as "whoever, being a man or
a woman fully responsible, has sexual intercourse through the genital [sic] of a person over whom he
has no sexual rights and in circumstances in which no doubt exists as to the illegality of the act" (each
state shares a similar definition of zina, see for example Section 121 of The Sharia Penal and Criminal
Procedure Codes 2002 of Kaduna State). Zina was previously punishable by flogging for Muslims
under the Penal Code. However, in the States that have introduced Sharia penal laws, zina carries a
mandatory death sentence if the accused is married, while 100 lashes is the mandatory sentence if the
accused is not married. The charge of zina and the punishment for it prescribed in the law applies to
Muslims only.

78
of rape or coercion have their situation further compounded. The women will
instead be subjected to potentially false accusation of zina. This clearly violates
the rights of women while protecting those who rape them.

The Sharia Criminal Procedure Codes in Nigeria vary in their requirements


regarding the number of judges which make up properly constituted courts and
which can conduct the hearings and pass sentences in criminal, including
capital, cases in the lower Sharia courts. On appeal the requirement is generally
for three judges to hear a case. When a case is heard by one sole judge in the
lower Sharia courts this raises the concern of lack of guarantee for adequate
safeguards of fair trial standards. Thus, there are fears that this could also
distort the impartiality of the courts. Furthermore, judges ruling in capital cases
are often the same judges who adjudicate in civil matters and have rarely
received adequate training to judge criminal matters under the new criminal
procedures.189 This can also have serious implications on the competence of the
court.

30 year old Amina Lawal was sentenced to death for zina by the lower Sharia
court of Bakori in Katsina State. The court was composed of a sole judge 190 and
Amina Lawal was sentenced to death by a lower Sharia court which was not
properly constituted. The requirement according to the Katsina State Law
Providing for the Establishment of Sharia Courts and Related Matters Law No.
5 of 2000 is that a lower Sharia court in Katsina State is properly constituted
when one Alkhali191 sits with two members. Therefore, it is appears that Amina
Lawal’s right to a fair trial by a competent court as stated in the International
Covenant on Civil and Political Rights (ICCPR)192 was violated.

189
Amnesty International, “Nigeria: Security forces: Serving to protect and respect human right.” AI
Index AFR 44/023/2002, pp. 185-186. http://web.amnesty.org/library/print/ENGAFR440012004
(accessed on August 12th, 2007)
190
Amnesty International WARAN action (08/01).
http://web.amnesty.org/library/print/ENGAFR440012004 (accessed on August 12th, 2007)
191
A judge who is knowledgeable in Sharia law
192
Article 14(1) provides 1. “All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law….”

79
The State is responsible for gaps in the laws so that certain types of violence
are not prohibited, or certain categories of victims are not afforded proper
protection. The State must ensure protection against the full range of violence.

Violence within the family is not a recognized criminal offence. Acts of


physical abuse or violence are prosecuted as common assault (Criminal Code,
Section 355) or as indecent assault (Sections 353 and 360, for males and
females respectively). Unlawful assault is punishable by up to three years’
imprisonment. If it is committed "with intent to maim, disfigure or disable" or
"to do some grievous harm", or using a weapon, corrosive fluid or explosive,
life imprisonment may be imposed.193 The penalty for indecent assault against a
man is higher than for a woman, however. Thus, if the victim is a man: "Any
person who unlawfully and indecently assaults any male person is guilty of a
felony, and is liable to imprisonment for three years." 194

Furthermore, since the legal system does not provide additional protection to
the victim by complementing a criminal offence with the civil remedy of a
protection order, victims of violence in the home are even more vulnerable.
Women are deterred from seeking justice if they have to live in the same house
as the partner or husband charged with assault. The laws currently in force
discourage women from seeking the support of the law except in extreme
cases.

Lastly, the language of the law itself in Nigeria is discriminatory. Our laws are
littered with pronouns like ‘he’, him’ and ‘his’ when referring to both males
and females. Our Interpretative Act states that this pronoun when used in
statutes means both males and females. One wonders what harm will be done
to our laws if collective pronouns like ‘they’ and ‘their’ are used instead.

193
Section 332. Grievous harm is defined as: "any harm which…seriously or permanently injures
health, or which is likely so to injure health, or which extends to permanent disfigurement or to any
permanent or serious injury to any external or internal organ, member, or sense".(Criminal Code,
Section 1(1)(f))
194
Section 353

80
3.1.2 THE STATUS OF WOMEN AND GIRLS UNDER OTHER
AFRICAN LEGAL SYSTEMS

Women's land use rights have most often come through their social ties to kin
and husbands. These rights are contingent on status; a senior wife may have
stronger rights than a junior wife. A woman's rights may increase with the
length of marriage or with more children.

Among the Beti of Cameroon widows come in three types: old women, young
women without children, or only with daughters, and young widows with sons.
The value to her kin, and to herself, of various options depends greatly on her
type. An old woman remains with her sons. The younger woman without
children will be evicted. The woman with young sons will remain with her
husband's kin - tenuously surviving and protecting the interests of her sons
(which may be her own interest) against in-laws who would rather exercise
closer control over her deceased husband's farms.195

A woman's rights depend on her social position and role in both customary and
statutory law. Customary and statutory laws encompass rights of divorce,
widowhood and inheritance. Customary law also frequently enjoins a husband
to provide his wife with land, a requirement absent from most statutes.

More common is to find systems where women have only limited rights. In
Sudan-Sahelian West Africa, where women usually have very limited rights to
cultivate on their own-account, growing land scarcity and concentration are
shrinking their allotments. In East Africa, where the house-property complex
gave women certain kinds of well-defined rights, in terms of their role in
transmitting property from fathers to sons, land registration and titling have
gone exclusively to men.

A woman's marital status is very important in determining how she will be


affected by land registration in East Africa. Widows are particularly vulnerable

195
“Women in Africa” op. cit. note 106

81
because land is generally registered in the husband's name and upon the death
of their husband they are not considered heirs. Taita women in southwestern
Kenya do not own land, but had well developed use rights after marriage.
Widows had particularly strong rights, as they could "sell, pawn, or lend
parcels on behalf of minor heirs". After registration, however, their rights to act
on behalf of their guardians were limited, because the land is registered in only
the husband's name. In Central Kenya, widows continue to farm land that was
registered in their husband's name after his death. In most cases they are secure;
their male children will eventually inherit the land and continue to let their
mothers farm the land. With recent increases in land sales, however, women are
questioning their security as it is not uncommon for sons to sell their land
without their mothers' permission. Widows without male children are especially
vulnerable as the land customarily goes to her husband's relatives.196

3.1.3 THE STATUS OF WOMEN AND GIRLS UNDER FOREIGN


LEGAL SYSTEMS

Like all other forms of gender-based violence, violence against women in the
family constitutes a violation of women’s rights and fundamental freedoms. It
violates the rights of women and girls to mental and physical integrity, to
liberty and security of the person, and in some cases to life. Such violence also
prevents the full enjoyment of rights and fundamental freedoms such as the
right to health, employment and freedom of expression.

States that fail to exercise due diligence to prevent, stop, investigate, punish
and ensure redress for violence against women wherever it occurs, may be held
accountable for violating their rights under international human rights laws not
to suffer torture and inhuman treatment or punishment. For instance, in
Jamaica, violence against women persists because the state is failing to tackle

196
Ibid.

82
discrimination against women, allowing social and cultural attitudes which
encourage discrimination and violence. This violates the government’s most
basic treaty obligations under the UN Convention for the Elimination of
Violence Against Women (CEDAW), among others. Shortcomings in national
legislation do not deal adequately with marital rape, incest or sexual
harassment, thereby encouraging impunity and leaving women without the
protection of the law.197

Discrimination is entrenched and often exacerbated in the police and criminal


justice system. Women and adolescent girls are rarely believed by the police, so
have little confidence in reporting crimes against them. Evidence is often not
sought effectively or professionally, and witnesses are rarely protected. In
court, women’s testimony is explicitly given less weight than men’s, thereby
depriving women of the right to equality before the law.

Marital rape is not a statutory crime in Jamaica, although there are conditions
under common law for which it is recognized as an offence, and hence its
prevalence is difficult to establish. However, women who spoke with Amnesty
International discussed openly situations in which they had agreed to sexual
activity in order to avoid violence, or to ensure that their boyfriends or partners
provided economic support to the household.

One woman who continues to experience marital rape stated:

"If you’re in your home and your husband come and he touch, and some type of
husband use her, and she not in the mood, him start tell you from a to z and when him
angry for it you must respond. And when you respond everything good and nice. But
at the same time you may be responding to him and in the end it is killing you."198

“I believe victims don't report it a lot of times because it's too hard to prove,”
according to one rape survivor. “The justice system in Jamaica makes it too
hard on the victims to prove that they were an outstanding citizen. The victim is

197
“Violence against Women in Jamaica” http://web.amnesty.org/library/print/ENGAMR380022006
(accessed on August 12th, 2007)
198
Amnesty International interview, 11 November 2005
http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)

83
put on trial. There is not enough sensitivity and responsibility as a society, we
should be more supportive."199

The court experiences for women who make allegations of sexual assault are
reported to be overwhelmingly negative. For example, the experience of court
for a woman who was taken from her workplace and gang-raped by a large
group of men at gunpoint further added to her ordeal. "The lawyer made me
feel like a slut in court. He tried to convince the court that I was guilty for them
doing such a terrible thing to me,"200 she said.

A member of the police sexual assault team told an investigator that as


strategies of defence, lawyers for the accused could be "callous" and that cross-
examination of victims could be "brutal".201 In practice, it appears that women
who have the means, information and support to pursue an allegation of sexual
assault will do so, but the vast majority of women, usually from poorest
sectors, are unable to take on these challenges.

One of the most serious problems in the criminal justice system, is the
"warning" judges are required to issue in cases of uncorroborated sexual
assault, a compulsory practice derived from common or case-law. This warning
states:

"Madam foreman and members of the jury as this is a case of rape (sexual violence)
the law requires me to give you a warning in such cases. The law says that in these
types of cases it is desirable that there should be corroboration... This warning is
necessary because experience has shown that women and young girls often tell lies
and for that reason the law requires this independent evidence. However, if there is
no corroboration and you believe that the complainant is telling the truth and
bearing the warning in mind you can proceed to act on her evidence even if there is
no corroboration."202
199
Rape survivor, quoted in the Jamaica Gleaner, 23 January 2006.
http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)
200
6 June 2004, Jamaica Observer http://web.amnesty.org/library/print/ENGAMR380022006 (accessed
on August 12th, 2007)
201
Royes, H.(2005) http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August
12th, 2007)
202
In interviews with Amnesty International, member of the judiciary and legal counsel explained that
the warning is part of common or case law. There is a second warning in the case of young children,
wherein it is required to warn juries that children have "fanciful imaginations": the case must also be
stopped if there is no corroboration of the evidence of an unsworn child victim.
http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)

84
Killings, threatening and extortion of witnesses by gang members are common.
This, combined with low levels of awareness of the workings of the criminal
justice system, means that witnesses are often reluctant to testify in criminal
cases. One NGO worker told Amnesty International that the justice system
even has difficulties getting character witnesses to testify as to the good
character of the accused, because witnesses were so terrified that “words would
get out”, that that person had been a witness in court. Even being seen at a
police station may give rise to fears that someone is an ‘informer’. Most sexual
violence in communities in Jamaica goes unreported because women are
fearful of the retaliation of gang members.203

Lengthy case proceedings and failure to protect witnesses are significant


failings in the criminal justice system. Evidence of the victim’s sexual history
and the character of the accused and his standing in the community can be
admitted to give ‘context’ to a sexual assault trial.

One judge expressed concern that the interests of the victim were not of
sufficient importance; "In the criminal justice system no one consults the
victim. The prosecutor can get up in court and unilaterally dispose of the case;
he can make decisions about what to do with the case without the witness’s
knowledge and consent".204

One women’s rights activist noted with concern the lack of sentencing
guidelines for sexual assault crimes. The Department of Corrections reports
that in 2004, sentences for sexual offences range between less than three
months and 25 years’ imprisonment.205 In practice, this means a wide margin of
discretion for individual judges. Concerns were also expressed by some
members of the judiciary that when cases were returned on appeal, judges were
more likely to reduce the sentence in rape cases than in murder cases.
203
Moser & Holland, “Urban violence and poverty in Jamaica”
http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)
204
Amnesty International Interview, 15 November 2005
http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)
205
Department of Corrections, reported in Economic and Social Survey Jamaica 2004.
http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)

85
In most Islamic states a system of gender apartheid rules, and in several,
women are still being stoned to death for being involved in sexual relations
outside marriage. In Iran, the Sudan, Iraq, Pakistan and Afghanistan, Islamic
regimes are inexorably transforming women's homes into prison houses. In
many states, the confinement of women, their exclusion from many fields of
work and education, and their brutal treatment have become the law of the
land. In these countries, Sharia law is used as a weapon in the hands of Islamic
regimes to create a major barrier to the integration of the human rights of
women into the mainstream.206

Despite efforts being made by some members of the Iraqi administration for
instance, there is strong opposition from many religious leaders to the creation
of a society in which women can play their full part. The contribution of every
Iraqi woman will be vital in the massive task of reconstruction following the
years of bloody dictatorship and war, exacerbated by economic sanctions. But
the interim constitution, the Temporary Administrative Law, fails to give
adequate protection to women’s human rights in at least three critical areas
where women in the Middle East have historically suffered discrimination:

 It offers no explicit guarantee that women will have equal rights to


marry, within marriage, and at its dissolution.
 It does not explicitly guarantee women the right to inherit on an equal
basis with men.

 It fails to guarantee Iraqi women married to non-Iraqis the right to


confer citizenship to their children.207

In Jordan, a 34-year-old man walked free from the Irbid Criminal Court after
receiving a one-month prison term for inflicting harm on his older divorced
sister that resulted in her death in August 2001. Mohammad A. was standing

206
Azam Kamguian “International Humanist and Ethical Union Internationale Humaniste et Laique”
Tuesday, 6 April 2004 http://www.iheu.org/glossary/#term407 (accessed on September 25th, 2007)
207
Ibid.

86
trial on charges of beating his 35-year-old sister Huda with a wooden stick on
her head and other parts of her body on 30 July 2001 which caused her death a
week later. The defendant's father dropped charges against his son. The victim's
family testified in court that the woman had medical problems with her head
prior to the incident. Official sources reported that the woman, divorced for
over 10 years, was beaten up by the defendant for matters relating to "family
honour" after one of her family members accused her of developing a
relationship with a man. An official autopsy performed then on the victim
indicated the woman died because of a brain contusion as a result of physical
trauma to the head.208

In another ruling also in Jordan, a 20-year-old man standing trial for attempting
to kill his 12 year-old sister with poison after suspecting she engaged in sexual
activities with their brother, was freed after receiving a two-month prison term.
The tribunal ruled in its written verdict that the defendant committed his act in
a fit of fury and therefore his charge.209

In Iran, Nosrat Abouii, a woman who was stoned in Yazd prison managed to
escape while she was being stoned but was arrested immediately by the
government and put in jail. Also, on September 25, 2002 Goli Nik-Khou was
stoned to death after serving her 15 -year sentence in the town of Naqadeh,
western Iran. 210

In Uzbekistan, despite the constitutional guarantee of full legal equality


between men and women, in practice, women continued to face discrimination
in their access to divorce and to marital property. Privileging protection of the
family over women's equality and autonomy, the Uzbek government erected
legal and administrative barriers to divorce. Courts refused to grant women
divorce without permission from local authorities. Also, a husband's refusal to

208
“Women in the Far East” http://www.eclipse.co.uk/women (accessed on September 18th, 2007)
209
Ibid.
210
“Women under Iranian Law” http://www.azadizan.com (accessed on September 18th, 2007).
According to Islamic Sharia Law, women are buried up to their armpits for stoning.

87
divorce barred his wife's legal claim to marital property, although he, relying on
the lax enforcement of laws against bigamy, could re-marry at will.211

In Afghanistan, women have suffered different forms of discrimination


especially when the Talibans were in charge. Below is a summary of the
sufferings of women under the Talibans as stated by the Fact sheet released by
the U. S Senior Coordinator for International Women's Issues.212

• Since the Taliban became a military and political force in late


1994, women and girls in Afghanistan have become virtually
invisible in Taliban controlled portions of the country. The
impacts of Taliban imposed restrictions are most acutely felt in
the cities where women had enjoyed relatively greater freedoms.
In 1996, the University of Kabul reportedly had several thousand
women students while thousands of professional women worked
in different capacities in the city. When the Taliban takeover,
women were not allowed to attend school and others have been
forced to leave their jobs.

• The Taliban have issued edicts forbidding women from working


outside the home, except in limited circumstances in the medical
field. Hardest hit have been over 30,000 widows in Kabul and
others elsewhere in the country, who are the sole providers for
their families.

• The Taliban prohibit girls from attending school. There are a few
home based schools and some schools in rural areas which
quietly operate to educate girls. They fear closure.

• Women and girls are not allowed to appear outside the home
unless wearing a head to toe covering called the burqa. A three

211
“Legal Status of Women in Uzbekistan” http://www.hrw.org/wr2k2/index.html (accessed on
September 18th, 2007)
212
“Afghanistan Report, 2002” http://www.state.gov (accessed on September 25th, 2007)

88
inch square opening covered with mesh provides the only means
for vision. Although the burqa was worn in Kabul before the
Taliban took control, it was not an enforced dress code and many
women wore only scarves that cover the head. Women are also
forbidden from appearing in public with a male who is not their
relative.

• Women’s and girls’ access to medical services has been


drastically cut down. Women are treated primarily by female
doctors and the number of female doctors has been greatly
reduced. It is also dangerous for women to leave their homes. For
example, one mother in the city of Farah reportedly was shot by
the Taliban militia for appearing in public to take her toddler to a
doctor. The child was acutely ill and needed immediate medical
attention.

• Taliban militias mete out punishment for violations of these rules


on the spot. For example, women have been beaten on the street
if an inch of ankle shows under their burqa. They have been
beaten if they are found to move about without an explanation
acceptable to the Taliban. They have been beaten if they make
noise when they walk. According to one report, a women
struggling with two small children and groceries in her arms was
reportedly beaten by the Taliban with a car antenna because she
had let her face covering slip a fraction.

• Taliban edicts require that windows in houses that have female


occupants be painted over.213

213
Ibid.

89
CONCLUSION

Appropriate measures should be taken to prevent harm to individuals known to


be at specific and immediate risk as well as preventing harm in a more general
way at an earlier stage for all victims. For instance, a comprehensive set of
services should be provided to women to guarantee their safety before serious
violence occurs, and a general judicial and administrative framework should be
established, including effective human rights education for state officials.

States must also fulfil women’s human rights by ensuring the appropriate
infrastructure to support these laws, policies and practices, and to render them
effective. The duty to fulfil and promote human rights has reactive and
preventive aspects. It requires the state, for example, to:

 change the criminal and civil laws to ensure protection against all
forms of gender-based violence in a gender-sensitive manner;
 not allow illegal defences such as ‘correction’ under Section 55 of
the Penal Code, to promote a culture of impunity;
 ensure women access to justice by implementing laws and
encouraging women to turn to the justice system and supporting
those who do;
 provide adequate protection for victims and witnesses taking part in
investigations;
 ensure effective and impartial police investigations and prosecution
practices which are responsive to victims concerns and needs;
 complement criminal sentences with civil remedies;
 provide training and educational programs in schools and for state
agents, including judicial and law enforcement personnel and those
working in the health sector;
 provide support services for victim.

90
The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa also requires state parties to "combat all forms of
discrimination against women through appropriate legislative, institutional
and other measures" by taking measures such as:

 including in their national constitutions and other legislative instruments


the principle of equality between women and men and ensure its
effective application;
 enacting and effectively implementing appropriate legislative or
regulatory measures to prohibit and curb all forms of discrimination
particularly those harmful practices which endanger the health and
general well-being of women;
 integrating a gender perspective in their policy decisions, legislation,
development plans, programmes and activities and in all other spheres
of life;
 taking corrective and positive action in those areas where discrimination
against women in law and in fact continues to exist; and
 supporting local, national, regional and continental initiatives directed at
eradicating all forms of discrimination against women.

Additionally, this protocol places an obligation on states parties,

"…to modify the social and cultural patterns of conduct of women and men through
public education, information, education and communication strategies, with a view
to achieving the elimination of harmful cultural and traditional practices and all
other practices which are based on the idea of the inferiority or the superiority of
either of the sexes, or on stereotyped roles for women and men.”214

States must give access to

"…appropriate remedies to any woman whose rights or freedoms… have been


violated and to ensure that such remedies are determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by law.”215

214
Article 1(2)
215
Article 25.

91
CHAPTER 4

4.1 RELIGION AND DISCRIMINATION AGAINST WOMEN


AND GIRLS

And the Lord God said, It is not good that the man should be alone; I will make him
an help meet for him.216

Therefore shall a man leave his father and his mother, and shall cling unto his wife:
and they shall be one flesh.217

It seems from the above passage of the Holy Bible that God’s plan was for a
unity between the sexes and not superiority or inferiority devolving from the
differing roles of men and women. To be sure, there are passages in the epistle
of St. Paul indicating this unity. For instance the Bible states: “Husbands, love
your wives, even as Christ loved the church, and gave himself for it.”218

The question one should now ask is why are women and girls discriminated
against under the guise of religion. Another look at some parts of the bible will
show justification for this discrimination. In 1st Corinthians 14:34-35, the Bible
states:

Let the women keep silence in the churches: for it is not permitted unto them to
speak; but let them be in subjection, as also saith the law. And if they would learn
anything, let them ask their own husbands at home for it is shameful for a woman to
speak in the church.219

The above passage is clearly a contradiction of the passage of the same Bible
earlier cited. Can we now say that the passages of the Bible are contradictory?

The Qur’an, the Holy Book of the Muslims, states in Qur’an 11:228 that, “The
women ought to behave towards their husbands in like manner as their
husbands should behave towards them, according to what is just.” In other
words, equality between the married parties is thus held to be the regulating

216
Genesis 2:18, King James Version
217
Ibid at 2:24,
218
Ephesians 5:25, American Standard Version
219
American Standard Version

92
principles for all domestic relationship. Fidelity to the marriage oath is required
to both sides, and unfaithfulness leads to the same consequences whether the
delinquent be the husband or the wife. Chastity is required equally from both
the man and the woman.

The Qur’an went further to state that: “And He giveth life and death and life.
And he created pairs. The male and female from small life germ when it is
adopted.”220 This suggests equality in both sexes but is this true in practice?
Does the Qur’an not have contradictory provisions like the Bible? This
discussion will look into various world religions and show the forms of
discrimination against girls and women that can be found in them.

4.1.1 THE STATUS OF WOMEN AND GIRLS IN CHRISTIANITY

How could it have come about that a religion rooted in equality and mutuality
should have been transformed into a man-centered cult with the basic tenet of
excluding half of the human race from full personhood? When women are perceived
as less than human, the consequence is violent abuse, such as woman battering, a
crime that was not even acknowledged in our legal codes as recently as two decades
ago, let alone addressed as a significant social problem or as one that must be
addressed from the pulpit. I am convinced that the misshapen society resulting today
from this Christian mindset is adversely affecting the lives of both women and men
who refuse to challenge injustice to all women inherent in Christianity. This injustice
stems from the misogynistic assumptions of the Christian teachings derived from
Augustine, Aquinas, Gratian, and other founders of Christian precepts grounded in
the Aristotelian conviction that females are defective males. This paper will make
the connection between these Christian teachings and the acceptance of wife abuse as a
private matter, and not open to public debate, and certainly not to acknowledgement
from the pulpit.

The crime of battering came to my attention nearly twenty years ago. I was
confronted with the problem when Cathy, a ‘good Christian woman’, knocked on my
door and asked me to help her. Thinking that her husband was drinking too much she
went to a tavern to ask him to come home; his response was to beat her in the
parking lot so severely that she was taken to the emergency ward, where the doctor,
whom she had never met, asked ‘What did you do to provoke him this time?’. This
case and many similar episodes led to my legislative work in Wisconsin as a member
of the Battered Woman Task Force. It was in this capacity that I began to suspect a
strong connection between Christian upbringing and the acceptance of battering by
women and men. In particular, a strongly worded letter from a rural Wisconsin
woman accused me of sinful ways in trying to urge women to leave a battering
situation; as she put it, it was woman’s God-given duty to submit to her husband and

220
Qur’an 53:44-46

93
to suffer in silence as a good Christian woman. I was motivated to discover how this
woman had received such a message from her Christian education: that is, that for
the sake of keeping the family together, a woman had to sacrifice her own safety and
that of her children. Furthermore, the wife who is battered is made to feel the cause
of this abuse, and - like the guilty Eve - shares the guilt that accrues to all women
from the verses of Genesis.221

In ancient Rome,222 a woman’s legal position was one of complete


subordination, first to the power of her father or brother and later to that of her
husband who had paternal power over his wife. In the eyes of the Roman Law,
women were imbeciles. It also rendered them unfit to sign a contract or a will
or act as a witness. They can not also hold public office. A girl had no other
career than marriage. She could be married as early as twelve. Daughters were
in fact not wanted. The worries that a father always had with his daughter has
been summarized thus:

It is written, a daughter is vain treasure, to her father from anxiety about her he
might die during her early years, lest she is seduced; in her adolescence, lest she go
astray; in her marriageable years, lest she is childless; and when she is old, lest she
be witchcraft.223

The male morning prayer was: “… blessed art thou who has not made me a
Gentile, a slave or a woman.” In other words, women were placed on the same
level with Gentiles and slaves. Social intercourse with a woman was seen as a
moral danger, an incitement to depravity and lust, a special invitation to the evil
nature to lead it to severe impurity.224

Still on ancient Rome, legally, a woman was a minor. Socially, she was not a
responsible person. She was no better than a chattel. Women did not eat with
men; they stood and served. In the churches, they were separated from men.
They could not inherit from their fathers or from their husbands. Although
marriage was regarded as a woman’s longest ambition and the essence of her

221
Dr. Mary Ann Rossi, “The Legitimation of the Abuse of Women in Christianity” in Feminist
Theology 4, Sheffield Academic Press, 1993, pp. 57-63
http://www.womenpriests.org/theology/rossibio.asp (accessed on September 8th, 2007)
222
Rome is the seat of the Catholic, an arm of Christianity. Roman Laws are mainly based on the laws
in the Bible.
223
Ademola O. Popoola, “Gender Equality, Political Participation and Leadership: The Past, Present
and Future” in Jurisprudence Class on Feminism Handout, (unpublished) 2007, 20
224
Ibid.

94
existence, she had no power to choose whom to marry. For the most part,
marriages were arranged either by parents or by professional match makers. A
girl may be engaged when she was a baby.225

Today, anyone who has attended a Christian wedding ceremony recently can
testify to the strangle-hold of the perception in requiring a woman to ‘obey’ her
husband, “and in acknowledging and affirming the reading of the passage from
Genesis relating to the fashioning of the guilty Eve from Adam’s rib, which has
been said to be the most pernicious myth perpetrated against women.”226

On the attitude of the church towards sexuality, Christians raised in the Roman
Catholic faith cannot discuss the defilement of the body by sexual intercourse
without tracing the root of this ‘mindset’ in the teachings of the Fathers of the
church, of whom the most notable is Augustine. The early Christians, as they
chose their canonical texts, excluded all writings that conceived of God as both
male and female. The orthodox (‘straight-thinking’) God is exclusively male.
Eve is created from Adam’s side for his fulfillment. This is translated in society
into the domination of men over women as the proper God-given order for the
human race and for the Christian church.

As Augustine maleness is assimilated into monism; femaleness becomes the


image of the lower corporeal nature, or carnality and sexuality. Woman is seen
ethically as dangerous to the male. To illustrate the persistence of this male
suspicion of all women, in 1962, at the first ecumenical council convened by
Pope John XXIII in Rome, an Anglican journalist, Ann Cheetham, having been
invited to attend, was confronted by a cardinal who screamed: “Leave this
place immediately! Do not sully this conference with the presence of a
woman.” Deeply humiliated, Ann Cheetham, a lifelong worker for the cause of
women’s equality in the church, left Rome in tears, women’s only resort in the
face of a hierarchy deaf to the voices of women.227

225
Popoola op. cit. note 223
226
Rossi op. cit. note 221
227
Ibid.

95
Augustine locates the source of original sin in the male erection and women are
the cause of it. The depersonalization of women into whore, wife or mother
may be traced to his writings. Most damaging is his reiteration of the precept
that the wife must submit completely to her husband, even to the point of
physical abuse and death. Augustine formulated the idea that women were good
only for reproduction and unqualified for anything connected with mind or
intelligence. Thus, Augustine was the inventor of what the Germans call the
three K’s, Kinder, Küche, Kirche: that is children, kitchen and church, an idea
that still has life in it. In fact, as the German theologian Ute Ranke-Heinemann
notes, it continues to be the Christian hierarchy’s primary theological position
on women.228

Augustine describes the Catholic Church as the ‘true Mother of all Christians’,
as if it might be the mother of all humanity and the guarantor of all existing
social bonds: “It is you who make wives subject to their husbands...by chaste
and faithful obedience; you set husbands over their wives.”229 As a result, Peter
Brown sums up Augustine’s influence thus: “Augustine created a darkened
humanism that linked the pre-Christian past to the Christian present in a
common distrust of sexual pleasure.”230

One cannot discover anything either unnatural or immodest in a Christian


woman, becomingly attired, appearing on a platform or on a pulpit. By nature
she seems fitted to grace either. God has given to woman a graceful form and
attitude, winning manners, persuasive speech, and, above all, a finely-toned
emotional nature, all of which appear to us eminent natural qualifications for
public speaking. We admit that want of mental culture, the trammels of custom,
the force of prejudice, and one-sided interpretations of Scripture, have hitherto

228
U. Ranke-Heinemann. Eunuchs for the Kingdom of Heaven, New York, 1990
http://www.womenpriests.org/theology/rossibio.asp (accessed on September 8th, 2007)
229
P. Brown, The Body and Society London: André Deutsch, 1988, 426.
http://www.womenpriests.org/theology/rossibio.asp (accessed on September 8th, 2007)
230
Ibid.

96
almost excluded her from this sphere. Today, some men cannot sit under the
ministration of a female pastor.231

4.1.2 THE STATUS OF WOMEN AND GIRLS IN ISLAM232

In Islam, relations between the sexes are governed by the principle of


“complementarity” rather than the principle of equality.233 In many Islamic
societies, there is a division of roles creating a woman’s space in the private
sphere of the home and a man’s in the public sphere.234 Because of this
economic reliance of woman on men, the Qur'an justifies that men should
always be in charge over woman. A woman's primary responsibility is usually
interpreted as fulfilling her role as a wife and mother, whereas a man’s role is to
work and be able to financially support his wife and family.235 In some Islamic
countries, such as Saudi Arabia, sex segregation has been or is strictly
enforced. The Taliban treatment of women in Afghanistan was an extreme
example of this. Even in countries where the sexes mingle socially, they
generally remain segregated within the mosque to prevent close body contact in
order to avoid distraction during the Islamic form of prayer.236

According to Prophet Mohammed, "A slave is a shepherd of his master’s


property and a wife is a shepherd of her husband’s house and children."237

231
In our immediate environment here in Obafemi Awolowo University, Ile Ife, Nigeria, no fellowship
has a female head.
232
This has been partly discussed in Chapter 3, especially in pages 74 & 78 – 80.
233
Carla Makhlouf Obermeyer. "Islam, Women, and Politics: The demography of Arab countries",
Population and Development Review, Vol. 18, No. 1. March., 1992, 33-60
http://www.amazon.com/Systematic-Theology-Wayne-Grudem/dp/0310286700 (accessed on
September 18th, 2007)
234
“Status of Women in Islam” http://www.vatican.va/archive/ENG0015/__P17.HTM (accessed on
September 18th, 2007)
235
“Gender Roles in Islam” http://en.wikipedia.org/wiki/Gender_roles_in_Islam (accessed on
September 18th, 2007)
236
“Sex Segregation” http://en.wikipedia.org/wiki/Sex_segregation (accessed on September 18th,
2007)
237
Hadith of Prophet Mohammed quoted by Abu Dawud vol.2 no.2922 p.827
http://www.MuslimHope.com (accessed on September 8th, 2007)

97
He went further: “’O women! Give alms, as I have seen that the majority of the
dwellers of hell-fire were you (women).’ They asked, ‘Why is it so, O Allah’s
Apostle?’ He replied, ‘You curse frequently and are ungrateful to your
husbands. I have not seen anyone more deficient in intelligence and religion
than you….’ The women asked, ‘O Allah’s Apostle? What is deficient in our
intelligence and religion?’ He said, ‘Is not the evidence of two women equal to
the witness of one man?’ They replied in the affirmative. He said, ‘This is the
deficiency in your intelligence. Isn’t it true that a woman can neither pray nor
fast during her menses?’ The women replied in the affirmative. He said, ‘This
is the deficiency in your religion.’"238

According to a Muslim scholar239 women are inferior to men in Islam in many


ways. These include lesser inheritance, liability to divorce and inability to
divorce. Men can have multiple wives, but a woman can have only one
husband. The wife must stay secluded at home and must keep her head covered
even when she is inside the house. A woman’s court testimony is only counted
as half of a man. A woman cannot leave the house except accompanied by a
near relative. Only men can take part in Friday and feast day prayers and
funerals. A woman cannot be ruler or judge.240 Some of these will be briefly
explained.

In Islam, daughters only get half the inheritance of their brothers. The Qur’an
says, "Allah (thus) directs you as regards your children’s (inheritance): to the
male, a portion equal to that of two females”241 This provision of the Qur’an
seems discriminatory but in Pakistan, Syria, and Egypt, it is worse because
women cannot inherit anything242.

238
Awde Nicholas, Women in Islam : An Anthology from the Qur’an and Hadiths. St. Martin’s Press
2000. http://www.MuslimHope.com (accessed on September 8th, 2007)
239
al-Ghazali (1058-1111 A.D.) http://www.Answering-Islam.org (accessed on September 8th, 2007)
240
Why I Am Not a Muslim p.300 http://www.Answering-Islam.org (accessed on September 8th, 2007)
241
Sura 4:11
242
Caner, Ergun Mehmet. Voices Behind the Veil. Kregel Publications. 2003 http://www.Answering-
Islam.org (accessed on September 8th, 2007)

98
Women are to "abandon prayer" during their time of month.243 A menstruating
woman is not allowed to recite the Qur’an.244 According to the Muslim Sharia
Law, the witness of a woman is equal half that of a man, because of the
deficiency of the woman’s mind.245 Mohammed said that a nation will never
succeed that makes a woman its ruler.246 Eve was said to have been originally
intelligent but Allah made her stupid after the fall.247

The Prophet said, “‘Isn’t the witness of a woman equal half of that of a man?’
The women said, ‘Yes.’ He said, ‘This is because of the deficiency of the
woman’s mind.’”248 The Qur’an says, "...and get two witnesses, out of your own
men. And if there are not two men, then a man and two women, such as ye
choose, for witnesses, so that if one of them errs, the other can remind her….
"249 This means that if a Muslim man rapes a Muslim woman, the man’s word
would count twice as much as the woman’s. The word of a non-Muslim does
not count at all in a court of law against a Muslim. Thus if a Muslim man rapes
a non-Muslim woman, even if a second non-Muslim woman is present, his
word (that he did not do it) would count superior to the word of both of them.

Muslim women cannot be prophets. "The demands and physical suffering


associated with the role of messengers and prophets"250 is the reason there are
no women prophets.

Islam is against women leaders. "He [Mohammed] said, ‘Never will succeed
such a nation as makes a woman their ruler.’”251 The Qur’an says "Men are the

243
Imam Muslim, Sahih Muslim Vol.1 book 3 no.652 p.188-189 http://www.Answering-Islam.org
(accessed on September 8th, 2007)
244
Hasan, Prof. Ahmad. Abu Dawud Vol. 1, 56 http://www.Answering-Islam.org (accessed on
September 8th, 2007)
245
Nicholas, op. cit. note 238
246
Ibid.
247
Ihsan Abbas et al. The History of al-Tabari vol.1, 280,281 http://www.MuslimHope.com (accessed
on September 8th, 2007)
248
Nicholas, op. cit. note 238
249
Sura 2:282
250
Nicholas, op. cit. note 238
251
Ibid.

99
protectors and maintainers of women, because Allah has given the one more
(strength) than the other, and because they support them from their means."252

In Islam, stripping female captives of war of their clothes is acceptable. 253 After
the battle of Karbala, the Muslim soldiers supporting Yazid forcibly disrobed
the Muslim women supporting Husayn.254 Also, Muslims can forcefully have
sex with female captives. Even many Muslims who are not very familiar with
their own Hadiths might not know that Mohammed and Muslims historically
did this. It is perfectly reasonable that a Muslim would be expected not to
believe this unless there was thorough evidence, so here is the thorough
evidence.

We went out with Allah’s Messenger (may peace be upon him) on the expedition to
the Bi’l-Mustaliq and took captives some excellent Arab women; and we desired
them, for we were suffering from the absence of our wives (but at the same time) we
also desired ransom for them. So we decided to have [sex] with them but by
observing …. But we said: We are doing an act whereas Allah’s Messenger is
amongst us; why not ask him? So we asked Allah’s Messenger (may peace be upon
him), and he said: ‘It does not matter if you do not do it, for every soul that is to be
born up to the Day of Resurrection will be born.’255

Islam permits wife beating. Mohammed asked: "‘How does anyone of you beat
his wife as he beats the stallion camel and then he may embrace (sleep with)
her?’ And Hisham said, ‘As he beats his slave.’"256

The Qur’an says in Sura 4:34 "beat" or "scourge" your wife, if she is
disobedient? In Sura 4:34 the Arabic word idreb is a conjugate of daraba which
means "to beat, strike, or hit".257 Mohammed himself once deliberately struck
Aisha "on the chest which caused me pain".258 If a husband is remiss, the
Qur’an never says the wife is to have her husband beaten. Even if the husband
is a known beater, nothing is done to him. The Guardian Weekly reported that

252
Sura 4:34
253
Muslim, op. cit., note 243, 953
254
Abbas, op. cit., note 247, 161
255
Ibid. pp.732-733.
256
Nicholas, op. cit. 238
257
Hans Wehr Dictionary of Modern Written Arabic, 538. http://www.MuslimHope.com (accessed on
September 8th, 2007)
258
Muslim, op cit. note 243, 462.

100
in 1987 an Egyptian court ruled that a husband had the duty to educate his wife,
and therefore he could punish her as he wished. In a January 2004 Associated
Press article by Mar Roman, a Muslim imam in Fuengirola, Spain, Mohammed
Kamal Mustafa, was fined $2,735 and given a 15-month suspended prison
sentence for writing and distributing the book Women in Islam, which urged
husbands to hit their wives “… on the hands and feet using a rod that is thin
and light so that it does not leave scars or bruises on the body.'' 259

According to a Muslim scholar, "Allah does not accept the prayer of a woman
who has reached puberty unless she wears a veil." 260 In Afghanistan, even after
the Taliban were driven out, Afghan women are still being abused, harassed
and threatened, according to the Human Rights Watch report: "We Want to Live
as Humans".261 This would happen when they are caught without wearing their
burqa (veils). In Nigeria, a non-Muslim woman was walking where there was a
mosque on the other side of the street. The mosque service had just ended, and
when the people came out, they attacked her.

4.1.3 THE STATUS OF WOMEN AND GIRLS IN OTHER WORLD


RELIGIONS

In Judaism, One can find the discrimination against women and girls in the
wordings of the Holy Book of Judaism. The first words of the Hebrew Bible262
are B'reshit bara Elohim, that is, “In the beginning God created.”263 The verb
bara (he created) implies a masculine subject. The most common phrases in the

259
Mehmet. op cit. note 242, 152
260
Ahmad, op cit. note 244, 168
261
The Dallas Morning News 12/17/2002 http://www.Answering-Islam.org (accessed on September 8th,
2007)
262
Tanakh
263
Stuttgart Biblia Hebraica Stuttgartensia, Deutsche Bibelgesellschaft, 1990, 1
http://en.wikipedia.org/wiki/Exodus (accessed on September 8th, 2007)

101
Tanakh are vayomer Elohim and vayomer YHWH – “and God said” (hundreds
of occurrences). Again, the verb vayomer (he said) is masculine; it is never
vatomer, the feminine of the same verb form.

In Genesis 1:26, God creates the gender distinction in mankind: “Let us make
man in our image, after our likeness. So God created man in His image, in the
image of God He created him; male and female He created them.”

More detail regarding the creation of man and woman is given in Genesis 2,
where God says that it is not good for the man to be alone, and makes a woman
to help him, creating her from his rib.

In Isaiah 62:5, God is compared to the bridegroom, and his people to the bride:
“For as a young man marrieth a virgin, so shall thy sons marry thee: and as
the bridegroom rejoiceth over the bride, so shall thy God rejoice over thee.”

Under African traditional society, African Traditional Religion (ATR) is what is


practiced. The society is predominantly patriarchal in nature. Women can never
claim any equality with men and thus, face different forms of discrimination.
This can be seen in the culture of the people. For instance, wives are seen as the
property of their husbands; a male child is given better treatment compared to a
girl. In traditional society, there is no separation between the laws governing
secular and spiritual spheres. What the gods say is sanctioned by society and
forms the norms of the community. They cannot be challenged, especially by
women. This divinely ordained male dominance forms the ultimate basis of
patriarchal entrenchment in Nigerian culture.

In Hinduism, the cardinal principle on women is subjection. According to


Hinduism, a woman’s mind, speech and body is perpetually kept under
subjection.264

264
Jotings on the subject of Feminism during a Jurisprudence lecture with Dr. Ademola Popoola at Law
209 on September 17th, 2007

102
In Buddhism, the general belief is that salvation cannot be attained in the
company of a woman.265

All these religious beliefs are discriminatory to women and girls and adherents
of the different religions have hidden under these beliefs to inflict
discriminatory treatments on daughters, sisters, wives, mothers and women in
general.

CHAPTER 5

5.1 OTHER AREAS OF DISCRIMINATION

Every woman and girl is entitled to the realization of all human rights - civil,
political, economic, social and cultural - on equal terms with men, free from
discrimination. Women and girls also enjoy certain human rights specifically
linked to their status as women.
265
Ibid.

103
Abuses against women are relentless, systematic, and widely tolerated, if not
explicitly condoned. Violence and discrimination against women are global
social epidemics, notwithstanding the very real progress of the international
women's human rights movement in identifying, raising awareness about, and
challenging impunity for women's human rights violations.

Violence against women and girls is increasingly recognized as one of the most
serious and urgent challenges of our times. In all parts of the world, its very
real and harmful effects on women and girls have been seen to impede the
pursuit of development, peace and gender equality. The international
community and civil society together have concluded that there are no
circumstances that can excuse violence that targets women and girls - it is
always a violation of their human rights, it is always a crime, and it is always
unacceptable.

So far, this essay has discussed some major aspects of discrimination faced by
women in the areas of our cultures and traditions, religions and our legal
systems. These are just but a few of the innumerable areas of discrimination.
This essay will go further to discuss a few of other areas for a better
appreciation of the menace of discrimination against women and girls.

5.1.1 DISCRIMINATION IN EDUCATION

Article 13 of the International Covenant on Economic, Social and Cultural


Rights provides:
1. The States Parties to the present Covenant recognize the right of everyone to
education. They agree that education shall be directed to the full development
of the human personality and the sense of its dignity, and shall strengthen the
respect for human rights and fundamental freedoms. They further agree that

104
education shall enable all persons to participate effectively in a free society,
promote understanding, tolerance and friendship among all nations and all
racial, ethnic or religious groups, and further the activities of the United
Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to
achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and


vocational secondary education, shall be made generally available and
accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of
capacity, by every appropriate means, and in particular by the progressive
introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as


possible for those persons who have not received or completed the whole
period of their primary education;

(e) The development of a system of schools at all levels shall be actively


pursued, an adequate fellowship system shall be established, and the material
conditions of teaching staff shall be continuously improved.

For the purpose of this Convention, the term "discrimination" includes any
distinction, exclusion, limitation or preference which, being based on race, colour,
sex, language, religion, political or other opinion, national or social origin,
economic condition or birth, has the purpose or effect of nullifying or impairing
equality of treatment in education and in particular: (a) Of depriving any person or
group of persons of access to education of any type or at any level; (b) Of limiting any
person or group of persons to education of an inferior standard; (c) Subject to the
provisions of article 2 of this Convention, of establishing or maintaining separate
educational systems or institutions for persons or groups of persons; or (d) Of

105
inflicting on any person or group of persons conditions which are incompatible with
the dignity of man.266

Cultural values of the society are known to influence the sex disparity in
educational enrollment. Due to patriarchal attitudes there has been a general
preference for male education in most parts of the world. Investment in boys’
education was preferred because they remain in the families while girls are
expected to marry out.

Women's participation in national educational systems is again biased due to


the economic environments. There is also a lack of genuine political will to
ensure that girls are given equal access to education. More than two-thirds of
Africa's illiterates are women. Women are regarded as inferior to men and are
not expected to aspire as high as men, especially in what are considered as
‘male’ fields (engineering, computing, architecture, medicine, etc.). It is largely
assumed that educating women would make them too independent; in other
words, they would not do what they are expected to do - look after the house,
bring up children, and cater to their husband's needs.267

In poor countries, extending access to education and training is often difficult


when the cultural and monetary costs are high or the benefits are limited. When
families face economic problems they prefer to invest their limited resources in
the education of boys rather than provide what is considered as ‘prestigious’
education for girls who would eventually marry and abandon their professions
anyway. Thus, in poor families, boys are often given first claim on whatever
limited educational opportunities are available.268

The male preference in education also tends to result in higher dropout rates for
girls either for early marriage or for participation in trading or other activities
in the informal sector. Even where girls continued in education there had been

266
Article 1, Convention against Discrimination in Education. It was adopted by the General
Conference of the United Nations Educational, Scientific and Cultural Organization on 14th December,
1960 http://www.ohchr.org/english/copyright.htm (accessed on September 8th, 2007)
267
“Women in Africa” op. cit. note 106
268
Ibid.

106
the tendency for them to be oriented by their parents or relations to pursue
careers that are perceived to be compatible with domestic responsibilities.
Hence girls are often discouraged from going into scientific and technological
fields. This is because such fields are perceived to be male professions that are
time demanding and stressful and are encouraged to pursue perceived soft
courses in Humanities and Social Sciences.269

Often girls are cautioned about their career choices for fear of not getting
married because "men are scared of smart women”. One of the consequences
of pursuing the so called soft courses is that many girls end up getting
employed in the female dominated profession such as nursing, teaching and
secretarial jobs which attract fewer wages in comparison with employment in
scientific and technological areas. For instance, by 1960, when Nigeria became
independent only 4.7% of those employed in Civil Service were women,
majority of whom were serving in the lower cadre. By 1970 about 60.8% of
Nigeria women were still illiterate. The tendency for sex typing in occupations
tended to continue until the early 1980s. Part of the reason for the persistence
of the sex typing in occupations was due to women's lack of expertise in
scientific and technological skills. Changes in educational policies since the
mid 1980s as well as in attitudes of parents, relations and teachers towards
female education are leading to improved opportunities for skill training and
professional development for women but we are still far from the goal.270

Even when parents can be persuaded of the value of sending their girls to
school, there remains the problem of helping the girls to complete their studies.
Drop out rates in the primary grades are higher for girls than for boys in many
African countries. In Tanzania, for instance, half of the school dropouts each
year are girls of 12 to 14 years who have to leave school because of
pregnancies. Such early pregnancies are often blamed on the absence of family

269
Ibid.
270
Ibid.

107
life education and the imitation of foreign life styles.271 Very few schools allow
pregnant girls or young mothers to complete their education. The other half of
the Tanzanian pupils who drop out do so for a variety of reasons, including
poverty, traditional norms, increases in school fees and deterioration in the
quality of learning. Child marriages are also very common in Africa: although
the law in many countries does not allow girls under 16 to be married, parents
marry their daughters at an early age so they have one less mouth to feed.272

The under-representation of women in technical education, training and


employment is not unique to Africa. The situation in Africa must be seen in the
context of the serious economic and developmental problems facing many
African countries. This, together with the societal attitude to women in general,
is responsible for the gender differences both in education establishments and
in the workforce. Differential access to educational and training opportunities
have led to low proportions of women in the formal sector and their
concentration in low paid production jobs with limited career prospects.273

However, as elsewhere in the developed world, things are slowly changing for
women in Africa. More women are joining the formal sector of the economy
(especially the public sector), more girls are continuing to higher education and
joining technical courses, more women can be found in the management
hierarchy, more women are moving into professions so far dominated by men,
and more women are becoming self employed. In the years to come, we will
see many changes, although the poor economic situation in Africa will not
provide many job opportunities. There will be more competition for jobs and
women may lose out, especially where there are domestic and family demands
placed on them.

271
“Female Education in Africa” http://www.amnestyusa.org/page.do?=762 (accessed on September 8th,
2007)
272
Ibid.
273
Ibid.

108
5.1.2 DISCRIMINATION IN EMPLOYMENT

The International Covenant on Economic, Social and Cultural Rights provides:

Article 6

1. The States Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to gain his living by
work which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the
full realization of this right shall include technical and vocational guidance
and training programmes, policies and techniques to achieve steady economic,
social and cultural development and full and productive employment under
conditions safeguarding fundamental political and economic freedoms to the
individual.

Article 7
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the
provisions of the present Covenant;

(b) Safe and healthy working conditions;

109
(c) Equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no considerations other than those of
seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays

Women have had to contend with discriminatory laws and practices in the
labour force and this has obstructed and conditioned their participation and
denied them their human rights. For instance, even though across the globe
women are entering the formal workforce in record numbers, in some countries
women's very right to work is under fierce attack. For instance, on September
3, 2000, the Governor of the State of Khartoum in Sudan, citing Islamic law,
imposed a ban on women working in public places.274

Also, in Ukraine, women are faced with many obstacles to their full and equal
participation in the labour force due to the economic stagnation and failed
reforms of the post-Soviet transition period. Widespread employer
discrimination against women in the recruitment process limits women’s access
to jobs, including many high-paying and prestigious jobs. Employers in both
the public and private sectors regularly specify gender when advertising
vacancies and use information they require in interviews regarding family
circumstances to deny women employment. Age and appearance requirements
also arbitrarily exclude women from jobs for which they are professionally
qualified. Employers justify their preferences for male employees on
stereotypical assumptions about women’s physical and intellectual capacities
and their family responsibilities. As a result, women are increasingly pushed
into low-wage service sector or public sector jobs or seek employment,
including secondary employment, in the unregulated informal sector. Many
women choose to go abroad to seek better economic opportunities, a choice

274
“Work-Place Discrimination” http://www.hrw.org/campaign/wrp-mexico/alert2a.html (accessed on
September 24th, 2007)

110
that may leave them vulnerable to being trafficked into the commercial sex
industry or other forms of forced labour.275

Still on Ukraine, the government there has routinely denied that discrimination
against women in the labour force is a problem. However, many officials
acknowledged that employers frequently prefer to hire men and defended
employers’ discriminatory practices over the right of women to equal
opportunity in the work force. Although the lack of financial resources was
often cited as the primary excuse for the non-enforcement of laws, the Ministry
of Labour inspectorates demonstrates a lack of will and insufficient training to
investigate discriminatory recruitment practices. In its statistical records, the
Ministry of Labour does not include a category for recording complaints,
inspections, or violations related specifically to discrimination of any kind.276

In addition to statutory discrimination in employment, women face practical


discrimination. Even as the International Labour Organization adopted a new
international Convention on Maternity Protection in May 2000 and estimated
that 50 percent of the labour force was female, in some countries women's
participation in the workforce is determined by their reproductive status. Not
only are women's reproductive functions perceived to be in the way at work,
but their bodies are also at risk at work.

Women workers face sexual harassment and violence on the job, with little
hope of redress. Employers often considered women's reproductive and
productive roles to be incompatible, and governments did little to challenge
them. In Mexico, Guatemala, and South Africa, for example, governments have
failed to enforce international and national laws to protect women from
discrimination and violence during the hiring process and on the job.

275
State Statistics Committee of Ukraine, “Economic Activity of the Population, 2000-2002”
http://www.ukrstat.gov.ua/ (accessed on September 18th, 2007).
276
U.N. Report on Human Development in Transition: Europe and CIS, 1997, as quoted in
International Center for Policy Studies, “Economic Statistics in Ukraine,” Policy Study #13, November
2000 http://www.icps.com.ua/docs/ps/es/eng/ps_es_eng_200011_13.pdf (accessed on September 18th,
2007)

111
Women's right to exercise reproductive autonomy in the workforce has
continued to be under attack. Many transnational corporations regularly
required women to undergo pre-employment pregnancy test, with the aim of
denying pregnant women work.277

In the agricultural sector, women are likely to fare equally poorly. For instance,
women farm-workers in South Africa are discriminated against and sexually
and otherwise physically abused by their co-workers and employers. Some
discrimination are also based on marital status. Married women farm-workers,
for example, are denied employment contracts in their own names, such that
their jobs are dependent on those of their husbands. Often, women farm-
workers’ access to housing was also determined by their relationship to a man.
Because the majority of farm-owners offered housing only to permanent male
employees, single women farm-workers are generally not able to live on the
farm. In addition, women are also paid less than their male counterparts for the
same type of work or work of equal value. By reinforcing their economic
dependency on men, these discriminatory practices make women more
vulnerable to violence in their homes and the workplace on farms.278

In Nigeria, women also get discriminated against in their bid to get employed.
An example of this discrimination can be found in the provisions of the Police
Act as regards the enlistment of women into the Police Force. For instance,
under section 118(a) of the Act, only unmarried women can be enlisted into the
Police Force while under section 127, an unmarried police officer who gets
pregnant will be discharged from the Police Force.279 This is worse because no
exception was given to this provision; what about a situation where the police
woman was raped by a criminal? Will it not be worse if she losses her job after
going through the trauma of rape?

277
“Work-Place Discrimination” op. cit, note 274
278
Ibid.
279
See generally Chapter 3 at pages 76 - 78

112
5.1.3 DISCRIMINATION IN POLITICS

The Convention on the Elimination All Forms of Discrimination Against


Women (CEDAW) is an important international treaty that upholds the
importance of women's involvement in the political machinery of State Parties.
Articles 2 to 4 of the CEDAW call on State Parties to actively pursue the
elimination of discrimination in women's political participation through legal
and temporary special measures and affirmative action.

Article 7 of the CEDAW instructs State Parties to "take all appropriate


measures to eliminate discrimination against women in the political and public
life of the country….” It ensures women, "on equal terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election
to all publicly elected bodies;

(b) To participate in the formulation of government policy and the


implementation thereof and to hold public office and perform all public
functions at all levels of government; and,

(c) To participate in non-governmental organizations and associations


concerned with the public and political life of the country."

Article 8 brings women's political rights to the international arena. It instructs


State Parties to "take all appropriate measures to ensure to women, on equal
terms with men and without any discrimination, the opportunity to represent
their Governments at the international level and to participate in the work of
international organizations."

The Universal Declaration of Human Rights (UDHR),280 International


Covenant on Civil and Political Rights (ICCPR)281 and the International

280
Article 21 (1)
281
Article 3

113
Covenant on Economic, Social and Cultural Rights (ICESCR)282 all work
together to provide the foundations for women's right to political participation.

Women's political participation encompasses a wide range of actions and


strategies. It includes voting and voter education, candidacy in national and
local elections, lending support to candidates who carry gender-sensitive
agenda, campaigning against those who have policies that are ‘anti-women's
rights’, and advocating for the integration of a women's rights agenda in the
platforms of candidates and parties.283

To participate in the political processes, women need to enjoy the full exercise
of their civil and political rights. Democratic freedoms such as expression,
media, opinion, peaceful assembly, association, and others are necessary
vehicles for women's full political participation. In countries where the freedom
of association is limited, women find themselves under constant surveillance
and sometimes under threat by their own governments. In countries where
religion and culture impose numerous social restrictions and impinge on state
laws, women experience more difficulties in engaging in the public political
space. The fulfillment of basic survival and social needs, economic
independence, and freedom from family and community violence are equally
crucial requirements in women's realization of their political potentials.

In Tanzania for instance, according to the Electoral Law, a person nominated to


run for the Presidency or Vice Presidency, Parliamentary and Councilors seats
must deposit a certain amount, which is only refundable upon the death of
candidate before the elections. According to Tumaini Silaa of the Tanzania
Women Lawyers Association (TWLA), “Such fees do not only discourage
women but also low income earners, from participating in elections.” Under
such circumstances, women have to consider between depositing the amount
required and engaging in election campaign, or providing food and other

282
Article 5 (2)
283
Women Learning Partnership (WLP) http://www.learningpartnership.org (accessed on September
24th, 2007)

114
necessities for their families. The Election Act provides for offences such as
bribery, impersonating, treating, undue influence but it is silent on character
assassination, and issues such as sexual harassment of women candidates.284

While women's global activism, especially at the level of the United Nations,
has instituted mechanisms for increased representation of women in politics,
the assessment made by the United Nations verifies that women are still greatly
under-represented in political and bureaucratic posts around the world. The
UNDP reported that women "are nowhere near half of the decision-making
structures. The threshold of 30 percent advocated by the UNDP Human
Development Report, as a prelude to the 50 percent is still a dream for most
women". The Inter-Parliamentary Union's monitor pegs at 15.2 percent the total
number of women in parliaments. Thus, campaigns for balanced gender
representation in government such as the 50/50 Campaign of the Women's
Environmental and Development Organization remain one of the most strategic
moves to increase women's political participation.285

Facts and Figures of Women in Politics

• In 2002, women still accounted for only about 14 percent of members of


parliament worldwide.
• Out of over 180 countries, 14 are headed by women, six women are vice
presidents.
• With 48.8 percent of seats won by women in the recent parliamentary
elections, Rwanda became the country that has the most number of
women parliamentarians in the world.
• Currently, women in Sweden hold 45.3 percent of seats in parliament,
Denmark with 38 percent, Finland with 37.5 percent, and The
Netherlands with 36.7 percent.

284
“Tanzania: Poverty and discrimination discourages women from politics”
http://www.Somalinet.com/news/work/EastAfrica (accessed on September 24th, 2007)
285
International Women's Democracy Center (IWDC) http://www.iwdc.org/ (accessed on September
24th, 2007)

115
• Sweden, Denmark, Finland, Norway, Iceland, Netherlands and Germany
had all reached the 30% goal of parliamentary seats taken by women by
the end of 2002 along with Argentina, Costa Rica, South Africa and
Mozambique.
• In May 2003, Qatar appointed Sheikha bint Ahmed Al-Mahmud as the
state's first woman cabinet minister. The appointment followed an April
29 referendum in which Qataris overwhelmingly approved a written
constitution recognizing a woman's right to vote and run for office.
• The proportion of women parliamentarians in the United States is 14
percent, France 11.8 percent and Japan 10 percent. In Rwanda, women
compose 48.8 percent, and in Uganda 24.7 percent.
• Kuwait and the United Arab Emirates do not give women the right to
vote or stand for election.
• 7 percent of the world's total cabinet ministers are women. Women
ministers remain concentrated in social areas (14 percent) compared to
legal (9.4 percent), economic (4.1 percent), political affairs (3.4
percent), and the executive (3.9 percent).
• There are 9 women ambassadors to the United Nations. They are from
Finland, Guinea, Jamaica, Kazakhstan, Kyrgyzstan, Liberia,
Liechtenstein, Somalia, and Turkmenistan.
• In the United Nations system, women hold 9 percent of the top
management jobs and 21 percent of senior management positions, but
48 percent of the junior professional civil service slots.
• In 1893, New Zealand became the first nation to grant women full
voting rights.
• Among the countries in the developing world that were the earliest to
grant women the right to vote were: Albania (1920), Mongolia (1924),
Ecuador (1929), Turkey (1930) and Sri Lanka (1931).
• Some of the latest countries to grant women suffrage are: Switzerland
(1971), Iraq (1980), Namibia (1989), South Africa - black population
(1994).

116
• Some countries still do not have universal suffrage. Among them are
Brunei Darussalam, Kuwait, Sultanate of Oman, Saudi Arabia, and
United Arab Emirates.
• Among the developing nations which have not ratified the Convention
on the Elimination of All Forms of Discrimination Against Women
(CEDAW) are: Bahrain, Palestine, Qatar, Saudi Arabia, Sultanate of
Oman, Syrian Arab Republic, United Arab Emirates.

• The United States is the only industrialized nation that has not ratified
CEDAW.286

5.2 WOMEN AND GIRLS IN CONFLICT SITUATIONS

“The differential impact of armed conflict and specific vulnerabilities of women can
be seen in all phases of displacement.”287

There is a growing understanding among practitioners and policy makers that


the experiences of women and girls vary significantly from that of men during
flight, in exile and once peace has been brokered or populations return home.
Less, however, is understood about the many forms of violence and risks to
women and girls’ safety and wellbeing during various phases of displacement,
and how to address them.

While all conflict-affected populations are at risk in terms of their physical and
social protection, women and girls are often at greater levels of risk and are
more often victims of sexual and gender based violence. Further, they may not
have the same traditional protection mechanisms available to them as do men.
Men and boys are more likely to carry weapons and be party to the conflict.
Women and girls are more likely to be civilian casualties, innocent victims of

286
Source: Online Women: Statistics, Online Women in Politics
http://www.onlinewomeninpolitics.org/statistics.htm (accessed on September 24th, 2007)
287
Former UN Secretary General, Kofi Anan. UN Security Council, Report of the Secretary-General on
Women, Peace and Security, October 2002. http://www.womenscommission.org (accessed on
September 24th, 2007)

117
warring factions and the recipients of male violence and aggression. In a given
refugee context, women refugees may be more vulnerable than other refugees,
finding themselves separated from their family members or traditional support
mechanisms, or isolated from their communities. They may have to assume
new roles and status as a result.

War and civil unrest are increasingly wreaking havoc on the lives of women
and girls, causing them to flee violence, abuse, intimidation and insecurity and
resulting in their internal or external displacement. Health and education
services and facilities are disrupted and local economies shattered. War often
disrupts girls’ school attendance as it is unsafe for them to leave home due to an
increased presence of armed elements and general lawlessness, or because they
have greater workloads as males are involved in the conflict.288

Soldiers, militia, and their sympathizers continued to sexually assault women


with impunity in armed conflicts around the globe, including in Sierra Leone,
Chechnya, East Timor, the Democratic Republic of Congo, Afghanistan,
Indonesia, Kosovo, Bosnia, and Angola. Despite international recognition of
rape and other sexual assault in armed conflict as crimes, governments and the
international community rarely responded vigorously to investigate and punish
such violence. In fact, they typically went no further than rhetorical
condemnation. In addition, women faced rampant violence and discrimination
in their post-conflict lives. Women refugees, in their countries of refuge,
continued to be sexually and otherwise physically attacked by armed groups
and civilians. Women returning to their communities, post-conflict, found
negligible protection from domestic violence or state-tolerated sex
discrimination.289

Wartime rape and other forms of gender-based violence remain constant threats
in politically unstable regions and countries. Forced migration caused by

288
Ibid.
289
“Women in Conflict” http://www.hrw.org/reports/2000/fry/index.htm#TopOfPage (accessed on
September 18th, 2007)

118
conflict increases the vulnerability of women and girls in every regard but
especially with respect to gender based violence. Displaced women and girls
are often resilient survivors, courageous protectors and untiring caregivers.
They hold their families together under the most difficult and inhumane of
circumstances and do so while at increased risk to their safety and well-being -
risks that include rape, beatings, torture, hunger and abandonment. For instance
in Sudan in September 2003,290 Fatima left her village of Houta, with her
neighbour and her 9-month-old baby on her back in search of firewood in the
bush. Later that day, the Janjaweed invaded their village and the two women
were taken by force from the bush to Kadja, a village further east. After
walking for five days, they arrived in Kadja and Fatima was separated from her
neighbour. She was then compelled to work as a shepherdess for the flocks,
always closely watched by her captors. On her fourth day in Kadja, one of the
Janjaweed told her that her husband had been killed during the attack on her
village. During her time in Kadja, Fatima was raped during the night by
different men and by two men in particular who raped her the most frequently.
Approximately five months later, part of the flock under her care was stolen. As
retribution for this loss, the Janjaweed who owned the flock grabbed her baby
son, 13 months old, and beat him on the ground in front of her and killed him
with crushing blows to the head. The Janjaweed tried to justify their actions
stating that Fatima would work more effectively without the child. Three
months after this incident, Fatima escaped from Kadja to Chad with the help of
one of the wives of the Janjaweed. She passed through Houta during her
journey, where she confirmed that her husband was dead. She traveled alone
during the night, hiding herself and fearing for her life throughout the entire
journey. Fatima finally arrived at a clinic in Birak where it was confirmed that
she was seven months pregnant.291

290
Lifesaving Reproductive Health Care: Ignored and Neglected, Assessment of the Minimum Initial
Service Package (MISP) of Reproductive Health for Sudanese Refugees in Chad, Women’s
Commission for Refugee Women and Children and the United Nations Population Fund (UNFPA),
August 2004. http://www.womenwarpeace.org/issues/displacement/displacement.htm (accessed on
September 24th, 2007)
291
Ibid.

119
Thus, in addition to coping with the impelling reasons for their flight, they may
be confronted with new challenges, such as providing for themselves and their
children in situations of particular hardship, as well as new forms of violence
and risks, in the country of refuge.292

Displaced girls, because of their age, developmental stage and maturity, are at
increased risk of abuse, exploitation, coercion and manipulation. Girls are more
vulnerable than boys to mistreatment and to recruitment by traffickers and
armed factions. They may lack the assertiveness required to stand up for
themselves and say “no” to risky situations. They may see older men as
protectors, providers and “sugar daddies,” without understanding the risks
involved and may, hence, be particularly susceptible to transactional sexual
relationships (that is, exchange sex for food or other assistance or services).
They may lack understanding and education on sexually transmitted infections,
including HIV/AIDS. Further, they may be burdened with overwhelming
responsibilities: caring for siblings, at times as head of a child-headed family;
performing multiple domestic tasks, such as cooking, cleaning, fetching water;
and collecting firewood for either their own family or other families.
Consequently, they may be unable to attend school or participate in normal
developmental activities that help mitigate vulnerability to risk.293

Displaced elderly women may also be at increased risk for violence and
exploitation, especially if they are physically fragile, suffering from chronic
health problems, abandoned or without able-bodied caretakers. The
international community has not done particularly well in engaging elderly
displaced women in services and programmes. They have often been treated
more as persons with multiple needs rather than as resources with a lifetime of
experience and wisdom. As a result, elderly displaced women are often
marginalized within the displaced population, excluded from decision-making
292
UNHCR, “Women at Risk” Resettlement Handbook 2004, 14.
http://www.unicef.org/graca/women.htm (accessed on September 8th, 2007)
293
Benjamin, Judy, “Women, War and HIV/AIDS”, in Women’s Commission for Refugee Women and
Children http://www.prb.org/Content?ContentGroups/Articles/011/Women,_War,_and_HIV_AIDS
(accessed on September 18th, 2007)

120
bodies and, hence, more vulnerable to abuse. Their marginalization may be
compounded by mobility problems and health concerns that can make access to
services and programs difficult, if not impossible, rendering them isolated and
potentially forgotten.294

While protection risks are prevalent in virtually all camp settings, the risks are
multiplied several times over for displaced persons in urban contexts where
they often receive little or no assistance. In urban settings it is much more
difficult for assistance providers and human rights activists to identify, monitor
and support displaced persons. They may be hidden among already
underserved, poor local populations in shanty-towns or scattered over broad,
densely populated urban areas with limited infrastructure such as reliable,
affordable transportation to access assistance agencies.295

Cultural norms may further restrict women’s ability to move freely. It is


difficult to implement programmes in such contexts or to even adequately
assess needs. It is also difficult to engage the displaced community in a
concerted and sustained manner. As such, the urban displaced may be
marginalized, vulnerable to exploitation by landlords, employers and host
community members who may prey on their lack of legal status and lack of
support systems.296

Displaced women and girls with physical and mental disabilities, such as
mobility impairments and mental retardation, are often more vulnerable to
abuse and sexual exploitation, as they may lack the mental or physical capacity
to resist physical violence and sexual advances. They may be targeted by
displaced or host community men and youth because they are deemed less able
to protect themselves. Due to the social stigma that surrounds their disability,
they may also be less likely to be protected by community members. Further,
294
Ibid.
295
Marie Stopes “Displaced and Desperate: Assessment of Reproductive Health for Colombia’s
Internally Displaced Persons”, in International and the Women’s Commission for Refugee Women and
Children, 2003, 20. http://www.womenwarpeace.org/issues/displacement/displacement.htm (accessed
on September 24th, 2007)
296
Ibid.

121
they may, at times, be the last to receive food and other humanitarian assistance
from family or other caretakers.297

In addition to food and shelter, women affected by war also need means of
generating incomes. Widows are often unable to provide for themselves and
their families in traditional societies. Due to cultural and religious restraints,
lack of education or child-care responsibilities, women are not always able to
obtain meaningful employment and are therefore unable to provide for their
families. Given their isolation and seclusion, it is difficult for NGOs to assist
them, and governments may be either unwilling or unable to provide the
necessary social services. While it is vital to present economic opportunities to
women, it is imperative to undertake this with sensitivity to the current social
climate in order to avoid exacerbating the problem.298

The far-reaching consequences of rape linger not only with the victims, but also
with their families and society long after the conflict ends. Consequently, both
the rape survivor and relatives feel shamed and humiliated. During the Rwanda
genocide of Hutus against Tutsis for instance, an estimated 50% of women
were raped. Babies born as a result of the rapes were unwanted reminders of a
period of horror. The rapes of more than 20,000 women during conflicts in the
countries of former-Yugoslavia brought rape to the fore as a war crime.299

Although most international attention is focused on rape, women and young


girls in conflict areas - like Darfur, in western Sudan - risk daily physical
attacks of all kinds when they leave refugee camps to collect essential supplies
like firewood and water. Post-conflict Afghanistan and Iraq also experienced a
significant increase in violence against women because of breakdowns in
security.

297
Ibid.
298
Kevin M. Cahill, M.D “Issues of Power and Gender in Complex Emergencies” in Emergency Relief
Operations; Fordham University Press, NY, 2003
http://www.un.org/womenwatch/daw/public/w2apr98.htm (accessed on September 24th, 2007)
299
“Impact of War on Women” http://www.un.org/womenwatch/daw/index.htm (accessed on
September 24th, 2007)

122
Whenever social protection systems for communities break down, gender-
based violence intensifies, leading to further deterioration of women’s status.
Cambodian women assert that the brutal Pol Pot regime and conflict
significantly influenced men in their society, causing them to become more
violent and to lose respect for women and family life. 300

Even after hostilities cease, a variety of conflict-related health issues persist,


such as post-traumatic stress, malnutrition, war-related injuries, and the scars of
sexual abuse. The lack of reproductive health services in particular has harmful
long-term ramifications for women and their children. Maternal and child
mortality rates soar when services are absent. Women are often forced to give
birth away from their traditional medical practitioners. The risk for contracting
communicable diseases also rises during conflict, as heightened population
mobility, increased presence of soldiers, relaxed social behaviour controls, and
widespread poverty are common in conflict situations, leading to high-risk
behavior and increased exposure to HIV and other diseases. Another lasting
consequence of conflict for women is the impact on children. In cases where
rape has been a weapon, unwanted pregnancies often lead to the abandonment
of the resulting children.301

While conflict inflicts suffering on everyone, women are particularly affected


by its short and long term effects. Sexual assault and exploitation are frequently
employed as tools of war; victimization leads to isolation, alienation, prolonged
emotional trauma, and unwanted pregnancies that often result in abandoned
children. As culturally-designated caregivers, women must struggle to support
their families and keep their households together while the traditional bread-
winners - husbands and sons - are caught up in the fighting and are unable to
provide for their families. The new role as primary provider exposes many
women to further abuse. Conflict shatters the comfort of predictable daily
routines and expectations. Women and girls are equally affected in a fragile
300
Ibid.
301
“War Consequences on Women” http://www.un.org/womenwatch/daw/beijing/index.html (accessed
on September 24th, 2007)

123
environment where social services they once depended on degrade or
disappear. The effects of conflict on women and girls are devastating.

5.3 TRAFFICKING IN WOMEN AND GIRLS

Around the world, governments have continued to allow trafficking of women


and girls for forced labour and servitude to flourish with near impunity. Lured
with fraudulent promises of lucrative opportunities, women migrate within and
across borders for work.302

Trafficking is;

“…the recruitment, harbouring, provision, receipt, transportation and/or obtaining


of individuals; using force or threats of it, coercion, fraud and/or using systems of
indebtedness or debt bondage; for purposes of sexual or other forms of economic
exploitation.”303

In other words trafficking in persons is the recruitment, transportation, transfer,


harbouring or receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation includes, at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to slavery, servitude or
the removal of organs.304

Trafficking does not occur in a vacuum. Violations of women's human rights in


countries of origin, including state-tolerated sex discrimination, domestic
violence, and rampant sexual violence, contribute to women's vulnerability to

302
“Trafficking in Persons” http://www.hrw.org/about/projects/traffcamp/intro.html (accessed on
September 8th, 2007)
303
Firoza Chic Dabby Trafficking Consideration and Recommendations for Domestic Violence
Advocates http://www.ojp.usdoj.gov/ovc/help/tip.htm (accessed on September 8th, 2007)
304
Ibid.

124
abuse. Whether women travel voluntarily, find themselves tricked into
migrating, or are sold into the sex industry or sweatshops, trafficking victims
suffer horribly similar human rights violations. Stripped of their passports,
often unable to speak the local language, sold as chattel, and terrified of local
law enforcement authorities and their traffickers, many women and girls
struggle to pay off the enormously inflated debts owed to traffickers; others
attempt to escape. For example, Nigerian women's rights organizations
reported that hundreds of Nigerian women and girls hoping to escape poverty
and discrimination at home voluntarily migrate to Europe in response to job
offers as domestic workers or waitresses. Upon arrival, many find themselves
trapped in forced prostitution, saddled with exorbitant debts, and forced to
work under brutal conditions. Like other trafficked women around the world,
Nigerian women struggled to pay off their ‘debt’.305

Forbidden to refuse any customer, women who dare to resist encounter harsh
punishment from their employers, including physical assault. Some clients also
sexually and physically attack the women; other clients rob them. Their status
as “illegal migrants” make the women particularly vulnerable to attacks by
customers and traffickers alike.306

Human trafficking is a global problem. The traffickers' web spans the whole
planet; people are moved from poor communities in the southern hemisphere to
richer countries in the North. There is also a lot of South-South trafficking and
a sprinkling of South-bound trade. According to a UN report, "Trafficking in
Women: The Czech Republic Perspective",307 offenders often target and exploit
underage victims because of their mental and social immaturity, and, above all,
their difficult life situations.

305
“Nigeria: Trafficking in Women and Girls” http://www.hrw.org/about/projects/traffcamp/intro.html
(accessed on September 8th, 2007)
306
Ibid.
307
UNODC and UNICRI (2004), “Trafficking in Women: the Czech Republic Perspective”, Prague:
Institute of Criminology and Social Prevention.
http://www.unicri.it/wwd/trafficking/czech/docs/obchod_eng.pdf (accessed on September 8th, 2007)

125
Even though all human trafficking cases have their individual characteristics,
most follow the same pattern; people are abducted or recruited in the country of
origin, transferred through transit regions and then exploited in the destination
country. If, at some stage, the exploitation of the victim is interrupted or ended,
they can be rescued as victims of trafficking in persons and it is possible they
might receive support in the country of destination. Either immediately or at
some later point, victims might be repatriated to their origin country; in some
cases, relocated in a third country; or, as unfortunately too often still happens,
are deported from destination or transit countries as illegal migrants.308

Africa is predominantly an origin region for victims of trafficking. Western


Europe and Western Africa are reported to be the main destination sub-regions
for African victims. This points to intra-regional human trafficking in Africa in
general and Western Africa in particular as an identified trend.

According to the United States Department of State’s "Trafficking in Persons"


(TIP) report for the year 2005, the number of people globally trafficked across
international borders is between 600,000 and 800,000 per year.309 Due to its
clandestine nature, accurate statistics on the magnitude of the human trafficking
problem at any level are elusive and unreliable. Figures that are available range
from the actual number of victims rescued or repatriated to estimates of the
total number of trafficked victims in existence. The lack of reliable statistics
can be attributed to a number of factors. Many countries lack anti trafficking in
persons legislation. Even when legislation is in place, laws may only define
human trafficking as applying to certain exploitative practices, such as sexual
exploitation, and not other forms of exploitative behaviour like child labour.310

The United Nations Convention against Transnational Organized Crime (the


Convention)311 and two of its supplementing protocols, the Protocol to Prevent,
308
Ibid.
309
U.S. Department of State (2005), “Trafficking in Persons Report”.
http://www.state.gov/g/tip/rls/tiprpt/2005/ (accessed on September 8th, 2007)
310
Ibid.
311
. The United Nations Convention against Transnational Organized Crime, the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, especially Women and Children, the Protocol against the

126
Suppress and Punish Trafficking in Persons, especially Women and Children
(the Trafficking Protocol) and the Protocol against the Smuggling of Migrants
by Land, Sea and Air, were adopted at the same time by the General Assembly
at its Millennium Meeting in November 2000. The Convention and the two
supplementing Protocols were then opened for signature at a high-level
conference in Palermo, Italy in December 2000 and constitute the first serious
attempt by the international community to answer the global challenge of
transnational organized crime with a global response in the form of
international law.312

Previous instruments to fight trafficking in persons and forced prostitution,


such as the 1949 Convention for the Suppression of the Traffic in Persons and
of the Exploitation of the Prostitution of Others and the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), failed
to provide a definition of trafficking in persons and focused mainly on the
punishment of traffickers. The Trafficking Protocol, however, provides a
working definition of trafficking in persons, requires ratifying States to
criminalize such practices and also addresses the issue of victims' rights
through, again, requiring ratifying States to provide assistance to, and
protection for victims of trafficking. The Convention and its three
supplementing Protocols have all entered into force.313 These laws have not
stopped trafficking as we shall see below through examples of few countries.

Israel is a destination country for trafficked persons. Women are trafficked


primarily for prostitution, but also for domestic labour. The main countries of
origin are Russia, Ukraine, Moldova, Azerbaijan, Kazakhstan, Turkey and

Smuggling of Migrants by Land, Sea and Air, and the Protocol against the Illicit Manufacturing of and
Trafficking in Firearms, http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf (accessed on
September 8th, 2007)
312
Ibid.
313
The United Nations Convention against Transnational Organized Crime entered into force on 29
September 2003. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children entered into force on 25 December 2003. The Protocol against the Smuggling of
Migrants by Land, Sea and Air entered into force on 28 January 2004. http://www.unodc.org/pdf/

127
Dominican Republic.314 According to a 2000 Amnesty International report,315
hundreds of women are trafficked to work in Israel’s sex industry each year.
They are held in debt bondage, subject to violence and imprisoned by their
‘owners’. Other sources suggest the figure is significantly higher. Deception
through promises of work in waitressing, catering, modelling and medical
massage appears to account for approximately 30% of women trafficked. The
remaining understand that they will work in prostitution, but are unaware of the
conditions that will confront them on arrival.316

Ireland is a receiving country for the trafficking of persons for the purposes of
sexual exploitation. The sex industry in Ireland centres on the main cities,
especially Dublin and Cork. The women and girls appear to be sent from
Romania, Kosovo, Moldova and Albania. Organised criminal gangs from
Albania and Kosovo have been implicated in the trafficking of women and girls
to Ireland. There is little information on trafficked women. However media
attention has started to focus on the issue. A recent newspaper report from
Ireland317 highlighted the plight of women and girls being brought to Ireland
with permits, to work in lap dancing clubs. The report identified that women
and girls were having their earnings removed by criminal gangs both within
Ireland and on return to their home country. On arrival at Dublin, some women
have their passports confiscated by the clubs and are held in prison like
conditions. On return to their home countries, the gangs who sent the women to
Ireland in the first place would sometimes take up to 90% of their earnings.

Indonesia is a country of origin, transit and destination for trafficking in


persons, particularly women and girls for sexual exploitation and forced labour.
According to the Indonesian Women’s Coalition for Justice and Democracy, as
314
Gold, L, Ben Ami, N, Korzen,S, Levenkron, N, ‘National NGO’s report to the annual UN
Commission on Human Rights:’ Evaluation of National Authorities activities and actual facts on the
Trafficking in persons for the purpose of prostitution in Israel, March
2002.http://www.protectionproject.org (accessed on September 1st, 2007)
315
Ibid.
316
Ibid.
317
Guerin, J, Lap-dancing clubs hit by permit ban, Sunday Independent, September 1st, 2002, p.8.
http://www.med.ic.ac.uk/divisions/60/europapnew/activities/ireland_activities.htm (accessed on
September 8th, 2007)

128
many as 400,000 Indonesian women and girls are trafficked each year. As a
source country, women and girls are taken to Malaysia, Singapore, Japan,
Taiwan and Australia.318 One report suggests that 4268 of the 6809 women in
prostitution in Malaysia are from Indonesia.319 In some of the poorer regions of
the country, including West Kalimantan and Sumatra, there have been reports
of people selling their daughters, some as young as 14 years, into ‘contract
marriages’ with Taiwanese men.320

Estimates of women and girls working in Indonesia’s sex trade are staggering
and concern about HIV/AIDS is leading to a growing demand for younger
girls. The International Labour Organization estimate that 21,000 children are
working in prostitution in Indonesia, and believe that many girls end up there
after failed marriages entered into at very young ages. Other sources place the
figure higher, suggesting that 30% of Indonesia’s 1.3 million prostitutes may be
less than 16 years of age.321 In some cases, it is believed that housemaid
recruitment agencies are being used as a cover up for trafficking of young
women and girls into prostitution. On their arrival at railway or bus stations,
from the villages, the women are lured by brokers with false promises of well-
paid employment as waitresses, domestic helpers or factory workers.322

India is a source, transit and destination country for trafficked persons, mainly
women and girls. The country is also a transit route for Bangladeshi girls and
women recruited for sexual exploitation in Pakistan.323 As an origin country,
women and girls are trafficked to other countries in Asia, the Middle East, and
the West for sexual exploitation and domestic work.

318
“Bureau of Democracy, Human Rights and Labour”, in Country Reports on Human Rights
Practices: Indonesia, March 2002. http://www.protectionproject.org (accessed on September 1st, 2007)
319
A Gunawan, Few women trafficking cases go to court, The Jakarta Post, 8 November 2001
http://www.protectionproject.org (accessed on September 1st, 2007)
320
“Bureau of Democracy, Human Rights and Labour,” op. cit, note 318
321
Ibid.
322
Ibid.
323
“US State Department, Bureau of Democracy, Human Rights and Labour,” in Country Reports on
Human Rights Practice: India. http://www.csm.com (accessed on September 8th, 2007)

129
India is the main receiving country in the region for women and girls trafficked
from Bangladesh and Nepal for forced labour and prostitution. NGO’s estimate
that between 12,000 and 50,000 persons are brought into India annually from
neighbouring countries,324 many from Nepal. Furthermore internal trafficking is
widespread with movement from poor rural areas to the cities. It is estimated
that over 40,000 tribal women, primarily from the deprived states of Bihar and
Orissa have been trafficked.325 An NGO report suggests that the 17 red light
areas in the region of Bihar employ 2,250 prostitutes and that these women
play a major role in enticing parents and teenage girls into the net. In addition,
these brothels act as transit points for exchanging and procuring girls from
Bangladesh, West Bengal and Nepal.326 Over 2.3 million girls and women are
believed to be working in the sex industry against their will within the country
at any given time and the UN report states that approximately 40% are under
18 years of age.327

Women are recruited through false promises of work and marriage, as well as
some abductions. Family involvement in selling young girls into the sex trade
is common. There have been reports, in north Bihar, of young girls being
purchased from their parents and sold into the sex trade in Mumbai or sent to
the Gulf states. Boys are trafficked to the Middle East primarily with the
consent of parents and fraudulently as ‘sons’ of Bangladeshi or Indian woman
who already have a visa for the Gulf.328

Italy is a receiving country for trafficking and a transit country to other EU


destinations. Women trafficked for sexual exploitation in Italy come mostly
from the Balkans (Albania, Romania, the Former Yugoslavia, Bulgaria),
Eastern Europe (Moldova, Russia, Belarus and the Ukraine) West Africa
324
Radhika Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes
and consequences, Mission to Bangladesh, Nepal and India on the issue of trafficking of women and
girls, UN Commission on Human Rights, 2001. http://www.casa-alianza.org/EN/lastminute (accessed
o September 8th, 2007)
325
Ibid.
326
Arun Srivastava, In north Bihar, girls come a dime a dozen: NGO study, Indian Express, 13
November 2001. http://www.casa-alianza.org/EN/lastminute (accessed on September 8th, 2007)
327
US State Department, Bureau of Democracy, Human Rights and Labour, op. cit. note 323
328
Ibid.

130
(Nigeria) as well as Latin America (Colombia and Ecuador). Women are
trafficked to Italy on tourist visas, with false documents, or illegally by boat
from Albania. Albanian crime networks are involved in the trafficking of
Albanian and other Eastern European women to Italy and are notorious for
their violence. Often Albanian women are trafficked by their fiancées and/or
boyfriends. According to NGOs working on trafficking in Italy, Albanian
traffickers are turning more and more to other Eastern European countries as it
is becoming more difficult for them to recruit girls from their own country.329

Nigerian women and girls also make up a significant proportion of trafficked


women in Italy. They are most frequently brought to Italy by relatives or false
relatives or recruited by other women who had previously been victims of
trafficking. Nigerian girls are forced to undergo specific ‘juju’ rites in order to
ensure submission to their pimps and madams and to continue paying off their
debts. NGOs report that Nigerian girls are exposed to less physical control
from their exploiters in comparison to Eastern European girls because the
control imposed on them by the traditional rites is enormous and has great
psychological impact on them.330 The current trend in the Nigerian group is that
more and more of those trafficked are minors from small villages with very
little or no education.331

Nigeria is a sending, receiving and transit country mainly for women and girls.
The main countries of origin are Benin, Togo, Ghana and Niger. Italy appears
to be the primary country of destination for trafficked women and girls.
However other countries of destination and transit include European countries
such as Spain, Belgium, Germany, the United Kingdom, France, the
Netherlands and the Czech Republic, Gulf and Middle Eastern States such as
Saudi Arabia and Lebanon, as well as other African countries including Gabon,

329
Information provided by Association IROKO, based in Turin, Italy
http://www.med.ic.ac.uk/divisions/60/europapnew/activities/ireland_activities.htm (accessed on
September 18th, 2007)
330
Ibid.
331
Ibid.

131
Cameroon, Benin and the Ivory Coast. There is also evidence of internal
trafficking of women and children within Nigeria.332

It is estimated that up to 50,000 Nigerian women are trafficked to Europe each


year. Nigerian women alone are thought to constitute over 57% of African
women and girls presently in Europe, and according to Italian authorities, there
are 10,000 Nigerian prostitutes in Italy, many of whom are believed to be
victims of trafficking. Because authorities have become alert to direct flights
from Nigeria to Italy, traffickers have begun to use other European countries
like Great Britain and France as transit points.333

As in many other countries, trafficking is not only limited to women, but


includes children as well, many of whom are exploited as workers on
plantations, as domestic workers, and in the sex industry. Women and girls are
also trafficked for marriage and begging.334 Trafficked children can work up to
20 hours a day, and Nigeria reports that one out of five children die of illness or
mishaps.335 It is estimated that 3,000 - 4,000 child victims of trafficking are
repatriated to Nigeria annually.336

The above examples have shown that the main methods of trafficking are
through promises of work, fraud, and deception in addition to other common
methods. Common means include false passports and visas, tourist visas and
false job and marriage contracts. The primary factors contributing towards
trafficking appear to be poverty, unemployment, a failing education system,
and organised criminal groups.

332
U.S. Department of State: Trafficking in Persons Report (2001),
http://www.oneworld.org/ips2/nov/childlab.html. (accessed on September 8th, 2007)
333
BBC News: “Trafficking Nightmare for Nigerian Children,” Wednesday 10 January 2001.
http://news.bbc.co.uk/hi/english/world/africa/newsid_841000/841928.stm (accessed on September 8th,
2007)
334
International Organization for Migration: “New IOM Figures on the Global Scale of Trafficking,”
in: Trafficking in Migrants Quarterly Bulletin, No. 23 (April 2001).
http://www.ilo.org/public/english/bureau/inf/pr/2001/21.htm (accessed on September 18th, 2007)
335
ILO Press Release: “Day of the African Child: 16 June 2001. ILO Reports on Child Trafficking in
West and Central Africa.” http://www.ilo.org/public/english/bureau/inf/pr/2001/21.htm (accessed on
September 18th, 2007)
336
Ibid.

132
5.3 WOMEN LIBERATION MOVEMENTS

The Women’s Liberation Movement is the social struggle which aims to


eliminate forms of oppression based on gender and to gain for women equal
economic and social status and rights to determine their own lives as are
enjoyed by men.337 The phrase women's liberation was first published in
Simone de Beauvoir's influential 1949 essay, The Second Sex, but the roots of
the women's liberation movement reach back much further. Ever since men
have claimed dominance over women in patriarchal societies, there have been
strong women who have fought for dignity and human rights. At various times
in history, these women have banded together to form feminist social
movements, such as those that arose at the end of the eighteenth and nineteenth
centuries and during the 1920s and 1940s. 338

These movements were often followed by backlash periods of increased


suppression of women. Such a period of suppression occurred during the
1950s, which in turn inspired a new period of female rebellion that began in the
1960s. This latter rebellion constitutes the largest and most widely publicized
social movement of women in history. It affected women of all races and
classes around the world.339

The repression of the 1950s acted like a pressure cooker on rage and
frustration. Unwilling to return submissively to second-class status, African
Americans began to demand equal rights. The civil rights movement they
started became an inspiration for other movements.

The pressure cooker of the 1950s was especially stifling for women. During the
world wars, with many men in military service, women had been actively
337
Vintee Sawhney, The Women's Liberation Movement of the 1960s
http://www.cwluherstory.com/phpweb/index.php (accessed on September 18th, 2007)
338
Tina Gianoulis Women's Liberation Movement http://www.glbtq.com/contributors/bio_184.html
(accessed on September 25th, 2007)
339
Ibid.

133
sought for employment at more interesting jobs for higher wages than they had
ever known before. Once the war ended, they were unceremoniously fired and
their jobs given to men returning from the war.

Societal pressure urged women to become dependent and “feminine”, and to


stay home to take care of husband and family. Many women worked for the
same reasons they had always worked, to support themselves and their
families. But society's image of the 1950s’ woman was the ‘aproned’
housewife. Women who did have jobs outside the home were usually relegated
to dead-end "pink collar" jobs and paid far less than men.

In addition, the 1950s brought the creation of the housing development and the
nuclear family. Millions of houses were built in suburbs, and middle class
families moved in. Rather than the sprawling extended families that had been
common on farms and in urban tenements, the typical suburban family
included husband, wife, and a couple of children.

Within suburban developments, families were often isolated, each in its own
house surrounded by its own yard. Most isolated of all were the women. While
husbands left for work and children for school, wives stayed home, planning
and preparing meals and doing housework. Doctors prescribed tranquilizers,
barbiturates, and even lobotomies to help women accept their stifling roles
serenely.

In the early 1960s however, the invention and distribution of the first reliable
oral contraceptive, the birth control pill, opened a door in many women's
trapped lives by giving them the power to plan or avoid pregnancies. In
addition, the civil rights movement forced the passage of new laws. In
particular, Title VII of the Civil Rights Act of 1964 forbade job discrimination
on the basis of race, color, religion, sex, or national origin. The addition of sex
to the Civil Rights Act was almost an afterthought, but it proved to have
significant consequences. The Equal Employment Opportunity Commission

134
did little at first to enforce the part of Title VII that applied to women, however.
But in 1966, at the Third Annual Conference on the Status of Women in
Washington, D. C., a group of 28 women formed an organization to fight for
women's rights. They called it the National Organization for Women (NOW).
By the end of the year, NOW had 300 members; by the end of the century it
would have half a million.

Through mainstream organizations such as NOW, women began to demand


changes in discriminatory laws, but women's liberation encompassed far more
than the quest for legal rights. Women began to seek freedom, respect, and the
right to an individual identity and a fulfilled life. No longer satisfied to define
themselves in terms of husbands and families, these women performed the
most radical act of all: they began to talk to each other. Using a technique
called “consciousness raising”, women began to meet and talk about their lives.
In these “consciousness raising” groups, women found that problems they had
thought were individual were, in fact, shared by many other women. They also
began to think that these personal problems could be solved only by changing
society. This idea gave rise to one of the most important slogans of the 1960s
women's liberation movement, “The personal is political”. 340

While men, from government officials to radical leftists, had trivialized


women's issues, by talking together women began to construct a political
analysis of a sexist society that encompassed the government, the educational
system, the media, religion, the family, and even the language. Rape, abortion
rights, and day care became issues just as important as equal pay for equal
work. The new feminists rejected the traditional role that had been imposed
upon women of the 1950s. In one of the most famous actions of the women's
liberation movement, in 1968, a hundred women gathered to protest the
shallow values of the Miss America pageant. Into a trashcan, they threw
symbols of the sexual objectification of women such as bras, girdles, and
340
“Women Liberation Movement 2”
http://www.glbtq.com/socialsciences/womens_liberation_movement,2.html (accessed on September
25th, 2007)

135
make-up. Though nothing was burned, the media seized on the event, and
feminists were “bra-burners” ever after.341

By the late 1960s, the women's liberation movement had expanded with energy
and excitement. Women started women's centers, women's health clinics, rape
crisis centers, and bookstores. They formed political groups that published
feminist political writings, such as Redstockings' “Bitch Manifesto”. Bread and
Roses in Boston took over a building on the Harvard campus where they set up
a day care center and taught classes for ten days before being forced out. They
used money that they collected from supporters to open one of the longest
running women's centers in the United States. In 1969, Cornell University in
Ithaca, New York became the first college to offer accredited Women's Studies
courses.

Although many defined the movement as white and middle class, working class
women and women of colour were some of the most important founders of
women's liberation. Strong Black feminists such as Cellestine Ware, Florynce
Kennedy, and Barbara Omolada were pivotal in the formation of feminist
theory. African American women's groups such as Mothers Alone Working,
formed in 1965, and the Mount Vernon/New Rochelle Group, formed by Pat
Robinson in 1960, may not have called themselves feminist, but they were
models of women's liberation. Most radical feminist groups came to place on
their agendas the struggle against racism and classism alongside the struggle
against sexism, seeing them inextricably related.342

The women's liberation movement flourished into the late 1970s, gaining
energy as it spread. Women published newspapers such as Washington D. C.'s
Off our backs and Denver's Big Mama Rag. Lesbian feminists published
literary journals, such as Moonstorm in St. Louis and Amazon Quarterly in
Berkeley. Because male-dominated publishing houses could not be counted on

341
Ibid.
342
Ibid.

136
to publish women's work, feminists started their own publishing houses,
including Spinsters, Ink, Kitchen Table Press, and the Feminist Press.

Women gathered in women's restaurants, coffeehouses, and bars. They listened


to women's music, like that of Alix Dobkin and Meg Christian, and watched
women's theater groups, such as At the Foot of the Mountain in Minneapolis.
Feminists created a women's culture, which was closely intermingled with
lesbian culture.

As frequently happens, however, there was a conservative backlash to the


explosion of activity and energy of the women's movement. Anti-feminists had
always trivialized the movement, calling feminists humourless and strident, but
by the 1980s, conservatives began to treat women's liberation as a fait
accompli. Women had once been discriminated against, laws had been
changed, and now all was well, they said. Young women became reluctant to
call themselves feminists and some began to call themselves “post feminist.”343

However, the women's liberation movement lives on, both in the work of older
feminists who never stopped working to address the issues of sexism, and in
the younger women who continue to be inspired by the courage and dedication
of generations of women who fought for liberation, lesbians prominent among
them.344

343
Ibid.
344
“Women Liberation Movement 2”, op. cit, note 340

137
CHAPTER 6

6.1 SUMMARY

Development entails role performance and collective participation. A


meaningful development aims at increasing the productivity of the populace as
well as effective utilization of the human resource potentials. In the process all
sources of inequality in resource distribution and allocation should be
eliminated so that both genders derive benefit from their endeavours. This
essay has tried to show that ideologies influencing the perception of
womanhood and girlhood are linked with some of the factors that have
constrained and undermined girls and women's efforts to attain self-
actualization and effective participation in the development process. The essay
has also highlighted some of the discriminations women live with in different
parts of the world. These discriminations arise in the practise of our cultures
and traditions, religions, legal systems, etc. These discriminations also come in
the form of female genital mutilation, violence, rape, honour killing,
disinheritance, employment discrimination, discrimination in politics,

138
displacement during conflict and associated problems, etc. A short discussion
was also made on Women Liberation Movement.

6.2 RECOMMENDATIONS

To handle the contradictions, which peoples' perception of womanhood pose


for women in the development process, the following suggestions are
recommended.

 Countries that are parties to International Conventions and treaties like


the International Covenant on Civil and Political Rights, International
Covenant on Economic, Social and Cultural Rights (ICESR), the
Convention on the Rights of the Child (CRC), the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW)
and the African Charter for Human and People’s Rights that are yet to
incorporate them into the domestic laws should do so. An overview of
the current socio-political and legal situations globally shows that some
governments have not performed its obligation by the domestication of
these treaties. Hence, one of the major steps that should be taken is the
incorporation of the CRC and CEDAW in domestic laws. The reluctance
of the government in this regard has to a large extent hampered the full
enjoyment of women and girls of their internationally recognized rights.
 In the event of any conflicts in countries that practice multiple systems
of law like Nigeria, the Constitution should be supreme; for instance,
where the customary and Sharia laws are discriminatory and unjust, the
Constitution should apply in favour of the protection of women and
girls.
 In the sphere of paid employment it is important to deemphasize gender
socialization which hinders goal aspirations of girls and women toward
scientific and technological skills. Education is the key to effective

139
emancipation and empowerment of women. Efforts must be made to
ensure that girls have qualitative education in all fields not only in the
Arts, Education and Social Sciences but also in Science, Mathematics
and Technology. Progress is already being made in this direction and
must be sustained. The leadership potentials of women can only be
enhanced through sound education.
 There is also the need to address the issue of gender discrimination in
employment based on employers' perceptions about appropriate roles for
women. In particular, the tendency to discriminate against single
females in key positions is contrary to the principles of justice and
human rights. Similarly, the reluctance in employing married women on
grounds of costs related to maternity leave and absenteeism due to
domestic responsibilities, creates a dilemma for women in fulfilling their
obligations as mothers and wives.
 Public enlightenment efforts are needed to sensitize the populace that
child minding and domestic responsibilities are not women's problems
but should be undertaken through concerted efforts of both genders.
 The provision of adequate day care facilities will go a long way in
alleviating some of the conflicts women experience in coping with their
career and domestic obligations.
 There is the need for the promotion of positive aspects of the perception
of womanhood such as self-control, industry and resourcefulness. Such
attributes would promote women's chances of attaining self-
actualization in the development process while the harmful ones should
be eliminated.
 It is imperative to educate and sensitize more stakeholders in the society
for the protection of women’s rights and overall development of women
and the society. There is need for NGOs to strengthen their efforts to
increase awareness in local communities, working with traditional
authorities and community leaders to educate and reach the mass of the
people for the eradication of gender discrimination.

140
 To prevent the transmission of HIV, the secrecy surrounding sexual
issues must be replaced with information and education. Sex education
should form part of the school curriculum. Stigmatization and
discrimination against AIDS sufferers should be resisted, and their rights
advocated.
 Women must be empowered to make decisions about their own bodies.
They must be encouraged to resist religious, cultural, and economic
pressures to engage in unwanted sexual relationships. They must be in a
position to avoid unprotected sex. An enabling atmosphere should be
promoted by governments, including sponsored seminars and
conferences.
 Girls should be empowered. The empowerment will be a key to
breaking the cycle of discrimination and violence and protecting and
promoting their human rights. Empowerment entails a process whereby
girls gain more control over their lives, become active members of their
communities and are able to make informed choices about issues that
directly affect them. Supporting the empowerment of girls entails the
elimination of all barriers that prevent them from developing their full
potential, including through the provision of equal access to, and full
participation in, education and training, health services, community
activities, and girl-friendly spaces for interaction with their peers.
Information and Communication Technology (ICT) can be effectively
used as an instrument for empowerment, by providing unique
opportunities for improving girls’ access to information on health,
nutrition, education, and other human development opportunities, and
by creating new opportunities for social interaction.
 Appropriate measures should be taken to prevent harm to individuals
known to be at specific and immediate risk as well as preventing harm
in a more general way at an earlier stage for all victims. For instance, a
comprehensive set of services should be provided to women to
guarantee their safety before serious violence occurs, and a general

141
judicial and administrative framework should be established, including
effective human rights education for state officials.
 Various world religions have different cultural practices which cannot be
justified; such harmful practices should be eradicated.
 States must also fulfil women’s human rights by ensuring the
appropriate infrastructure to support these laws, policies and practices,
and to render them effective.

6.3 CONCLUSION

Every woman and girl is entitled to the realization of all human rights - civil,
political, economic, social and cultural - on equal terms with men, free from
discrimination. Women and girls also enjoy certain human rights specifically
linked to their status as women.

In almost all countries, women continue to be underrepresented in decision-


making positions. Women’s work continues to be undervalued, underpaid or
not paid at all. Out of more than 100 million children who are not in school,
the majority are girls. Out of more than 800 million adults who cannot read,
the majority are women.

Abuses against women are relentless, systematic, and widely tolerated, if not
explicitly condoned. Violence and discrimination against women are global
social epidemics, notwithstanding the very real progress of the international
women's human rights movement in identifying, raising awareness about, and
challenging impunity for women's human rights violations.

Worst of all, violence against women and girls continue unabated in all
continents, most countries and cultures. It takes a devastating toll on women’s
lives, on their families and on society as a whole. Most societies prohibit such
violence - yet the reality is that, too often, it is covered up or tacitly condoned.

142
Thus, perpetrators of violence against women and girls go unpunished. Such
impunity - viewed by many as equally widespread, and equally unacceptable,
as the violence - is a key element in perpetuating that violence and
discrimination. As long as impunity for violence against women and girls is
accepted and tolerated by society, so too will society continue to accept and
tolerate acts of violence. But despite growing awareness of the magnitude of
the problem, its dimensions, forms, consequences and costs - to both the
individual and society at large - the political will to end the culture of impunity,
and to effectively prevent and address violence against women and girls, has
not yet materialized.

Discrimination against women and girls is increasingly recognized as one of


the most serious and urgent challenges of our times. In all parts of the world, its
very real and harmful effects on women and girls have been seen to impede the
pursuit of development, peace and gender equality. The international
community and civil society together have concluded that there are no
circumstances that can excuse violence that targets women and girls - it is
always a violation of their human rights, it is always a crime, and it is always
unacceptable.

Changing this requires all of us - women and men - to work for enduring
change in values and attitudes. That means transforming relations between
women and men, at all levels of society. It means working in partnership -
governments, international organizations, civil society and the private sector. It
means men assuming their responsibility. It means ensuring that women and
girls enjoy their full rights and take up their rightful place in society.

Increasingly however, women and men in the world are drawing attention to
injustice and discrimination against women, and asserting the rights of the
women and girls who suffer violence in the home. Amnesty International and
other NGOs are supporting their campaign, and highlighting the abuse of
human rights that family violence represents. Governments must meet

143
obligations under international human rights law to prevent violence against
women, and where it occurs, assist women in escaping violence and securing a
full remedy. In other words, authorities should monitor violence against women
in the home, to ban it in law and repeal laws that allow it to flourish, to end
discrimination against women in the criminal justice system, and to take
positive measures to challenge social prejudices against women.

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