International Journal of Law, Policy and the Family 17, (2003), 1–27

G L O BA L S T A ND A R D S : L O C A L VA L U E S F A R E DA B A N D A *

ABSTRACT

The article, which is divided into three parts, first considers the debate around the universality of human rights focusing on family law in patrilineal African countries. It begins with a consideration of the discussions surrounding the drafting of the Universal Declaration of Human Rights 1948 before moving on to look at the positions of those who advocate a universal understanding and application of human rights norms and those who contend that universalism is no more than a fig leaf for western inspired values. The second part of the article argues that the whole cultural relativism v universalism debate is really about gender issues and in particular cultural justifications found in personal laws for discriminating against women. It considers and critiques frameworks advanced for reconciling global standards with local values. Finally the article advances the argument that the global/local debate in human rights is mirrored in discussions which have emerged between northern and southern feminists over priorities and strategies for challenging patriarchy. To see whether the two groups are really as far apart as the literature sometimes seems to suggest, the article examines African originated human rights instruments touching on issues of gender, and notes that they appear to reflect a universalist construct of values found in international human rights instruments emanating from the United Nations.

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I N TR O D U C T I O N

In the week leading up to international human rights day in 1998, The Independent on Sunday1 ran a feature on the 50th anniversary of the Universal Declaration of Human Rights (UDHR). The centrepiece of the feature was an interview with Nelson Mandela who was described as the embodiment of the principles contained therein. This contrasted sharply with an article published in another English newspaper2 in July of the same year on Mandela’s recent marriage to Graca Machel. The Guardian had run, as a headline on its front page the following ‘Mandela buys wife’. The piece began ‘The world’s feminists had better brace themselves?’ Implicit in the *Department of Law, School of Oriental and African Studies, University of London, Thornhaugh Street, Russell Square, London WC1H 0XG. This article is in memory of the Late Chief Justice of Zimbabwe, Enoch Dumbutshena, an advocate and champion for women’s rights. Special thanks to support and forbearance from John Eekelaar. International Journal of Law, Policy and the Family, Vol. 17, No. 1,  Oxford University Press 2003; all rights reserved

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use of the verb buys was a value judgement – the custom of lobolo (bridewealth) common to patrilineal African societies and widely practised was, from The Guardian’s perspective, akin to wife buying. That Nelson Mandela, regarded as a towering icon, could engage in such practices was evidently disappointing to The Guardian. And yet I pondered – whilst it may have been disappointing for The Guardian and its liberal followers that Mandela still subscribed to such questionable (by the undefined feminist standard) practices, as an African, I recognized that both personally and politically, he really did not have that much room for manoeuvre. For him not to have paid bridewealth would have raised its own headlines in the black South African psyche. Was he saying that there was something wrong with our customs? Mandela as the embodiment of human rights and Mandela as the purveyor of customary law, to my mind represents the conundrum around which much of the debate on universalism or global standards v cultural relativism or local values is centred. The universal part of Mandela is that which encapsulates civil and political rights whilst the relativist part is that dealing with his private life. It is this issue which the article explores. Divided into three parts, the article starts by looking briefly at the arguments advanced for and against adopting a cultural relativist stance. I have eschewed a detailed examination of the philosophical arguments, largely because I wish to concentrate on how the issue of global standards and local values is mediated using the customary family law of patrilineal societies in Africa as an example. It has been noted: . . . within the context of cultural relativity the family, particularly the African family, is notoriously difficult to penetrate and hence the need to enter it with (the culturally acceptable) models and language. The need to democratize the family and thereby empower both women and the youth within it is obvious. What is not so obvious is how this can be done effectively.3

Given the highly contested nature of the legitimacy of global standards at the local level and indeed the multi-faceted nature of ‘local values’, mediating the two will not be an easy task. Indeed the power differentials between men–women, elders–younger, different ethnicities–religious groupings, make it quite clear that getting a coherent set of values with which to test global standards is in itself one of the main challenges. Indeed it is fairly clear that the local is also very political and does not always present a level playing field, especially for the younger members of the society. It is for this reason that the younger members of society, both male and female, are probably more likely to be attracted to the global or universalist version or view of the world as it offers them greater space and autonomy. I will explore some of the strategies for doing this.

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The universality of human rights norms is a central tenet in human rights discourse. Indeed this call to universality has been echoed throughout the decades4 including at the Vienna conference in 1993 which proclaimed ‘the universal nature of human rights is beyond question’.5 Equally clear has been the resistance to the universalization of the rights found in the UDHR and subsequent human rights instruments. This was seen clearly in the regional conferences leading up to the Vienna conference so that the Bangkok Declaration of the Asian countries noted rather pointedly: that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm setting, bearing in mind the significance of national and regional particularities and various historical, cultural, and religious backgrounds.6

The questioning of the universality of the principles contained in the UDHR is a long-standing one so that in 1947 the American Anthropological Association opined that the Declaration should also have included ‘a statement of the rights of men to live in terms of their own traditions’.7 The Association also noted that the Declaration ‘ . . . represented, to an excessive extent, an attempt to impose western values on other cultures’.8 Although often framed as a North v South debate, the reality is that differences over the inclusion and interpretation of rights arose fairly early on in the foundation of the UN and indeed in the preparation of the UDHR. There were differences between western countries and the Soviet bloc over the prioritization of rights which reflected the different economic and political ideologies. There was a conflict over the individual approach to human rights favoured by western European states and the collectivist approach of the eastern European states as well as conflicts over socio-economic rights favoured by the eastern bloc and the western preference for civil and political rights.9 There was also the issue of freedom of religion which was so important to Roosevelt but which did not find favour with the Muslim countries, particularly Saudi Arabia.10 However it is true to say that it is mainly southern states that have complained about the perceived imposition of international human rights norms. Shivji notes that the human rights agenda reflects the ideology of the West, arguing that human rights represent another attempt at imperialist capitalist domination of the south and the perpetuation of class differences.11 Wilson12 contends that the human rights movement can now be seen as ‘one of the most globalized political values of our time’. He contends that human rights have now taken over as an ideology from the capitalist/communist ideologies which existed before the fall of the Berlin wall. Evans13 echoes this position asserting that an analysis of the

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human rights movement requires a consideration of power dynamics14 which he argues show quite clearly that western hegemony results in an inequitable distribution of bargaining counters, hence the dominance or validation of rights, mainly civil and political, considered important by and to western countries. These rights he argues are of significantly less importance to people in the south who are faced primarily with economic difficulties. Universalists counterclaim by arguing that human rights are about people rather than states or ideologies. The contention of some universalists is that the cultural relativist position is invoked by states which wish to circumvent or limit the rights of citizens.15 Higgins argues: It is sometimes suggested that there can be no fully universal concept of human rights for it is necessary to take into account the diverse cultures and political systems of the world. In my view this is a point advanced mostly by states and by liberal scholars anxious not to impose the western view of things on others. It is rarely advanced by the oppressed, who are only too anxious to benefit from perceived universal standards. The non universal, relativist view of human rights is in fact a very state centred view and loses sight of the fact that human rights are human rights and not dependent on the fact that states, or groupings of states, may behave differently from each other so far as their politics, economic policy and culture are concerned.16

However African academics like Nhlapo17 urge caution, arguing that it is not always clear to the citizens themselves that these human rights are to be embraced or that they are there for their benefit. This is particularly the case in post-apartheid countries such as Namibia, South Africa and Zimbabwe, where the very countries now pushing for a human rights culture were themselves complicit in the violation of the human rights of the indigenous groups.18 The allegations of western bias which are often advanced by southern states about the drafting of human rights instruments such as the UDHR, are dismissed as being inaccurate, for it is noted that developing countries were also involved in the process of drafting these instruments and hence they represent global values.19 However it is arguable whether Liberia, Ethiopia and Egypt, three of the independent20 African countries involved in the process, are representative of the whole of Africa. On this point Zvobgo21 has gone so far as to contend that if it had to be drafted again today, the UDHR would be a substantially changed document. Whilst Zvobgo is primarily concerned with power differentials between the old West and the Third World, other commentators have mooted a redrafting of the UDHR to encompass a more gendered view of the world.22 It is also argued that in ratifying human rights instruments subsequent to the UDHR, southern states have bound themselves to the uphold the rights contained therein and cannot therefore be heard to complain about the origins of those rights. Indeed southern states are taken to be in agreement with them. Similar

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arguments are made about the inclusion in many national constitutions of the principles enunciated in the UDHR. However it is worth noting that, unlike the South African constitution which was negotiated by representatives of the various political parties, other African constitutions were handed down by the colonial powers as a precondition to the granting of independence. These cannot be said to express the will of the people. It is arguable that international treaties suffer from similar problems. Renteln23 notes that the people who ratify human rights instruments tend to be the political ´elite in a country and may not necessarily be representing the position of all in that country.24 This is particularly pertinent in a country which does not have a democratic system of government. With the human rights and good governance movement in the ascendance,25 it has become necessary for countries to ratify human rights instruments, whether or not they intend to be bound by them, simply to enable them to access international capital.26 The issue of reservations is also problematic, particularly if one looks at the large number of reservations to the Women’s Convention.27 Ratifying human rights instruments enables a country to claim that it is committed to upholding human rights and yet reservations, particularly to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), show that often states shy away from tackling what are often the most pressing problems within that state.28 So far the argument has been presented as being about two polar positions – universalism v relativism – but, like all things, the reality is more complex. There are those who see human rights norms, as currently enunciated, as having been present in many societies prior to the establishment of the UN, in which case the UN sponsored instruments are merely a reflection of norms found in many societies and not just western societies with a positivist law tradition. Howard talks about the dignity which attaches to people in all societies.29 An Na’aim30 refers to the principle of reciprocity encapsulated in the old adage ‘do unto others as you would have them do unto you’ as being present in most societies. Indeed in a foreword to a book on the 50th anniversary of the Universal Declaration of Human Rights31 the Secretary General of the UN states: Human rights are foreign to no culture and intrinsic to all nations. They belong not to a chosen few, but to all people. It is this universality that endows human rights with the power to cross any border and defy any force.

Over time there appears to have been a softening of the absolute universalist approach so that there is now a call for local values or cultural traditions to be taken into account in the implementation of international human rights norms. Arguably the regional human rights framework goes some way towards meeting the need for culturally sens-

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itive and more contextualized notions of human rights.32 A good example of this approach is that taken by the Dutch Advisory Council on International Affairs.33 The question was whether universal acceptance of human rights meant that they had to be applied in the same manner throughout the world. The Advisory Council was of the opinion that they did not have to be applied uniformly especially since they were being applied in a diverse range of social, cultural and economic environments.34 It was contended that states had some latitude in policy-making, but the question remained as to how far states should be allowed to derogate from internationally accepted human rights standards. The Advisory Council cites with approval the use of the margin of appreciation doctrine used by the European Court.35 Latitude36 is to be determined by looking at: — the prevailing circumstances — the right which is said to have been violated — the specific nature and seriousness of the violation

Here it is worth noting that the issue of respect for different cultural traditions appears to apply mainly to that surrounding women and religion.37 It is instructive that, just as no government will argue to be allowed to torture its citizens, so too the concessions to culture and religion only appear to apply in the private sphere.38 Put simply, there is no margin of appreciation permitted or indeed ever claimed for torture – the occasional derogation from certain civil and political rights in times of emergency, yes, torture never. This is not to suggest that states do not torture their citizens. Clearly some do. However, none would try to claim that torture is culturally acceptable or justifiable. The article will now look at how the issue of global standards and local values has been mediated in the private sphere with a focus on issues surrounding women living in patrilineal societies in Anglophone Africa. Nhlapo acknowledges the difficulty of this task especially where family law is concerned noting: Not only is it (family law) central to the structure of African society (and therefore a sensitive issue in which any proposed changes are likely to be violently resisted), it is also a field in which the major participants are the most politically powerless people in society – women and children.39

Much has already been written about the public private divide in law in international law.40 Charlesworth, Chinkin and Wright’s piece on feminist analysis of international law is perhaps the best known example of this.41 They contend that international law as currently expressed reflects male concerns. That the cultural relativism debate appears to be almost solely on gender lines appears to confirm rather than refute their assertion.

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Before considering the issue of customary law and its relationship to human rights one has to define what is meant by customary law and how it came into being. An understanding of the history and development of customary law is central to an understanding of some of the resistance to the introduction of human rights instruments into African societies. At the time of colonization a new system of law was introduced into the colonized country. This was to be the general or civil law which was to apply in the public law arena. However due to a shortage of colonial staff and the resistance of the indigenous people to changing their personal laws, it was decided early in the colonial enterprise that the indigenous peoples should be allowed to retain their personal laws which are now referred to as customary laws. However, this was subject to the proviso that the law was not ‘repugnant to natural justice and morality’ – the repugnance it is assumed, referring to British Victorian sensibilities. The Chief Justice of Southern Rhodesia interpreted it thus: ‘the words ‘‘repugnant to natural justice and morality’’ should only apply to such customs as inherently impress us with some abhorrence or are obviously immoral in their incidence’.42 It is here worth noting that, to this day, Africans equate human rights and the need to change customs with that repugnance clause. Indeed part of the struggle for independence was so that Africans could reclaim their much derided culture, thus the resistance to the perceived re-imposition of European values in the guise of human rights norms. That custom which was a flexible, non-written system of ‘law’ was changed over time. This was partly because, although Africans were allowed to keep their personal laws, the judicial tasks were to be carried out by Native Commissioners’ Courts which were to apply ‘native law’. The difficulty was in ascertaining what that law was. Unlike the French with their Code Civil and the English with a common law tradition, the African law was not, to the European mind, in any recognizable or readily ascertainable form. There were no written statutes and precedents did not exist. What was one to make of it? The colonizers set about creating a customary jurisprudence. It is important to acknowledge that changes in the customary law were not imposed solely from above. Some came from the people themselves. For example, when witnesses were called to give evidence on an aspect of the customary law under dispute, they used the opportunity to give an interpretation which suited them and from which they stood to benefit. As the custodians and repositories of customary law were male, it was the male view which was represented. Discussing South Africa Walker43 has noted that both the indigenous men and the colonizers were committed to tradition and traditional leadership so that ‘successive white governments worked to refashion pre-colonial society

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in the interests not only of a white but also of a patriarchal supremacy’. This mutation of local claims into legal rules took place, as Chanock44 notes ‘ . . . through a process not only of selective understanding by colonial officials but also of selective presentation of claims’. For the indigenous men involved in this process of interpretation of the customary law, it was a question of an oppressed group using their limited leverage to gain for themselves more rights and privileges. For the colonizers it was important to keep the indigenous male population reasonably happy for their co-operation was needed in the form of labour to develop the country, and thus their assistance was sought in developing the personal law to apply to the governed peoples. Not having any economic or political leverage and having been denied legal capacity, African women were largely left out of this re-definition of customary law. It thus becomes clear that customary law, however one defines it, throws into relief the concept of justice being gendered. So how does one resolve a customary law which allows polygyny but not polyandry and which leads to women having fewer rights to property than men, with international human rights norms particularly those contained in Article 2(f) and 16 of CEDAW?45 We now turn to a consideration of these issues. Many approaches have been suggested.46 These include the evolutionary approach which calls for allowing custom to reform itself, the revolutionary approach which says that any customary principle which appears to contravene an international norm must fall away, to the more complex suggestions of allowing derogations if they are ‘proportionate’ to the violation of the human right and a call for mediating between customary law and human rights norms, thus ultimately transforming both, or finally an approach which calls for the maintenance of the status quo. Before examining the approaches, it is important to understand the goals of the reconciliation process. The goal is often expressed as being about equality. The concept of equality has already been much critiqued in both domestic47 and international law.48 The liberal notion of equality, which is the basis of antidiscrimination provisions in human rights instruments, is based on a notion of sameness with men – women are to be made or put in the same position as men.49 However this idea of sameness or evenhandedness has been much criticized as not taking into account the socio-structural inequalities of women.50 Without addressing the power differentials, aiming for a formal standard of equality will not necessarily lead to an improvement in women’s lives.51 It thus becomes important to acknowledge the social, economic and cultural disadvantages suffered by African women and to ask what is the aim as regards the use of human rights norms52 – sameness with men – and whether this is possible given the whole structure of African society and customary law (the official version) or something else. A thorough exploration of

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this issue is beyond the parameters of this article which proceeds with a consideration of the difficulty of reconciling customary law norms with the liberal notions of equality that are contained in the international human rights instruments.53 Among those who argue for a simple test of compatibility between customary law and human rights standards is Beyani.54 Discussing the Women’s Convention, and the African Charter55 which provides in Article 18(2) that ‘The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community’ and in Article 29 (7) that The individual shall have the responsibility to preserve and strengthen positive African values in his relations with other members of society in a spirit of tolerance, dialogue and consultation and in general to contribute to the promotion of the moral well being of society

he argues that there can be no allowance for a derogation from international standards for the sake of cultural values. These he argues have to be consistent with human rights standards: This means that whatever their nature, the morals and cultural values in question must neither discriminate against women, nor impair their enjoyment of human rights on an equal basis with men and they ought to be consistent with human rights standards.56

Although acknowledging the complexity and highly politicized nature of cultural values, which are subject to manipulation and change, Nhlapo57 takes issue with the simple compatibility test, not least because it fails to take account of the views of the people governed by the laws, which they may actually value, and whose values they may want to retain. Citing Allott58 he notes that law reform without popular support is likely to fail because people will simply ignore the changes and go on with their lives as before.59 This is indeed true and has been proved time and time again starting from the days of colonization.60 Nhlapo’s other criticism of this approach is that it suggests a ranking of systems which always has the customary system as the lesser or inferior one.61 It has also been suggested that a formulaic application of human rights norms throughout the world could have a counterproductive effect and may actually harm the development of a human rights culture in a society.62 However, it seems to the writer that it may be too easy to dismiss the compatibility approach out of hand. To give an emotive example, is the fact that the de jure abolition of female genital cutting63 might prove difficult to police, or indeed enforce, mean that the practice should be left unregulated? We know that interested parties may try to defend it on a cultural platform but surely legal and judicial silence on the matter is tantamount to legitimating what some64 have argued is simply a political rather than cultural position?

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This is not to suggest that outlawing female genital cutting will bring an end to the practice or indeed that law is the only tool – clearly not – but law remains an important tool, particularly when used in conjunction with other strategies.65 Declaring it a human rights violation makes it quite clear that cutting is a violation of a girl’s physical integrity, especially since there is often an absence of informed consent. Arguably whilst the universal aim should be the eradication of the practice, the local strategies will vary across different groups. The evolutionary approach is favoured by those such as Stewart66 who see the imposition of change on a society as being counterproductive. They believe that custom should be allowed to evolve and change over a period of time. They point to the fact that with modernization there has already been an erosion of the more discriminatory aspects of custom67 and that if allowed to develop on its own, the populace will, by a process of negotiation, fashion a newer and more egalitarian system. In support of this contention they point to the fact that the ‘customary law’ which is the subject of judicial decisions and academic writing, is not the system by which the majority of the population live their lives. ‘Real people’, it is argued, are governed by what is called the ‘living law’ which is described as being unwritten, irregular, flexible and highly negotiable, representing the law governing the social life of the people in their day to day lives and often changing in response to changing conditions.68 Research undertaken in southern African countries on issues of inheritance would bear this out. Briefly, the customary law of inheritance, as recorded, dictates that when a man dies leaving a family, the eldest son inherits. Technically this is done in a representative and administrative capacity. However empirical research69 which involved talking to chiefs and other community leaders as well as members of the respective communities, showed that in many instances women were allowed to inherit and administer the estate in line with international human rights norms contained in Articles 1570 of CEDAW but not recognized by the official customary law. The sociological debate71 about using law to change society is usually framed in terms of the use of formal institutions, namely the judiciary and the legislature, to bring about a change in society, but the research outlined above appears to suggest that the change may be the other way – which is society changing law. The problem is that sometimes the courts and legislature lag behind. This is clearly seen in two decisions on inheritance of the Supreme Court in Zimbabwe. The first72 said that a woman could inherit only in the absence of a male heir – if there was a male heir, his claim took precedence. This, the court said, was because customary law did not recognize the right of a daughter to inherit from her father and therefore the Legal Age of Majority Act (which had removed the sex-based impediment by granting African

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women legal capacity for the first time) did not have any effect and could not be invoked to convey a non-existent right to the daughter. Admittedly at the time of the decision Zimbabwe had not yet ratified the Women’s Convention.73 The second controversial case is Magaya v Magaya74 in which the Supreme Court refused to recognize the right of a woman to inherit, equating the position of an African woman in customary law to that of a junior male.75 The decision has been much criticized as failing to take into account socio-cultural and legal changes.76 The case also calls into question the seriousness of the view put forward by the then Chief Justice of Zimbabwe,77 that: . . . judiciaries should make a greater conscious effort towards the protection and active enforcement of fundamental human rights and freedoms, and should always endeavour, wherever possible, to construe domestic legislation so that it conforms with the developing international jurisprudence of human rights.78

The decision managed to confound both the women’s movement and Zimbabwean government. The government had, in the previous year, passed the Administration of Estates Amendment Act 199779 with the aim, inter alia, of ensuring that women would be given equal rights of inheritance with men.80 The government found itself trying to find a way out of the difficulty caused by the Supreme Court’s unnecessarily restrictive interpretation of the law.81 The South African decision in Mthembu v Letsela and Another82 yielded equally unfortunate results. The case was brought on the basis of Section 8 of the interim constitution (the anti- discrimination provision) and challenged the customary rule of succession favouring the first born son. The court took cognizance of the fact that the heir was expected to look after the widow and any other dependants and concluded that whilst the customary rule did discriminate between people on the basis of sex or gender, it did not do so unfairly. The judge is quoted as saying:83 If one accepts the duty to provide sustenance, maintenance and shelter as a necessary corollary of the system of primogeniture, I find it difficult to equate this form of differentiation between men and women with the concept of ‘unfair discrimination’ as used in Section 8 of the Constitution. In view of the manifest acknowledgement of customary law as a system existing parallel to the common law by the Constitution . . . and the freedom granted to persons to choose this system as governing their relationships . . . I cannot accept the submission that the succession rule is necessarily in conflict with Section 8.

Given the racially based choice of law system in force until fairly recently in South Africa, it seems incongruous for a judge to hold that an African woman has chosen a system of law which discriminates against her, but not unfairly, so she should live with it, which is the effect of the decision.84 From a human rights perspective the question becomes, what is one to do when the courts themselves are prepared

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to equivocate over what type or level of discrimination is unfair and therefore unacceptable? Perhaps one of the main difficulties with adopting the evolutionary principle is the lengthy time it may take to achieve transformation of the custom and the difficulty of measuring change. If law is about certainty, the evolutionary position is not ideal. Women in Law in Southern Africa (WLSA)85 would answer this criticism by suggesting that: The family has to be encouraged to respond to women’s needs, while being open to scrutiny so that if it fails to deliver, a rights formula can be imposed against it to enforce protection of women’s interests and rights. Perhaps this formulation is very much like the state holding the ‘big stick’ in the enforcement process but forbearing to use it, unless the delivery frame in society fails to deliver.

A cynic might suggest that this is tantamount to saying ‘You can decide, as long as the decision you reach accords with our values.’ Put succinctly one could argue that the approach is that of ‘my way or the high way’, arguably no different from adopting a top down approach and imposing an ‘acceptable’ view on the family. Justice Albie Sachs of the South African Constitutional Court has advanced the proportionality argument as one of the ways of dealing with the human rights and culture conundrum. Sachs’s argument is that there needs to be a balancing of rights. He contends: A peripheral transgression of a manifestly fundamental right might have less significance than a grievous violation of a right that might be regarded as less important. It all depends on the context, on the severity of the breach and on its impact on the dignity of the persons concerned, rather than on a formal classification of the right in question.86

This again leads us to the question of derogating from rights – but which ones, how extensive is the derogation to be allowed and who is to decide? Sachs himself recognizes that there may be differences of opinion between those he terms outsiders, who are the people who administer the law, and insiders who are the subjects of the law. He acknowledges that not everyone should be allowed to determine judicial principles yet he sees the need for some form of community involvement in the resolution of social disputes and problems.87 He suggests that this community participation should be governed by new values and principles. Although correctly identifying the tensions, Sachs fails to highlight the realities of the composition of the two groups; the outsiders – judiciary and legislature are, in South Africa, as in many other countries, largely male, so even the distorted outsider view is a masculine construction. Given the racial balance88 of the South African judiciary, it is arguably a white perspective, thus further removing it from the reality of many people’s lives. Similarly, the ‘insiders’ may

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themselves represent a select ´elite group either by virtue of being male or more likely by enjoying a privileged class position. The lives of urbanized professional women are not representative of the lives of most women in Africa and yet it is this group which is at the forefront of asking the ‘woman question’ and suggesting solutions to it. The need to legitimate human rights norms in the eyes of local communities is central to most considerations of ‘folk’ law and international human rights. It is argued that without this legitimization, international human rights will remain Utopian paper ideals, unacknowledged and unused.89 However the issue of the methodology to be used in this transformative process is itself riddled with potential pitfalls. For example, how does one deal with ‘undesirable’ (by human rights standards – although the use of the word undesirable itself raises a hornet’s nest about who is defining the acceptability or otherwise) cultural practices? Getting a human rights mandate is, as An Na’im contends, complicated, not least because each culture sees itself as being in opposition to other cultures so that there is a sense of a fight to the finish both for the preservation of one’s culture and from a desire to have some impact and influence on other cultures.90 So cultures want to remain ‘untainted’ but still have some effect upon others. Part of the trouble is that maintaining a strong sense of cultural self involves repulsing outside threats or incursions and it also means developing and having an unshakeable identity which does not lend itself easily to change or reform.91 In short, An Na’im’s approach demands a quid pro quo – local cultures have to review their practices and rid themselves of ‘undesirable’ values. Meanwhile other groups/countries must also be seen to examine their own cultural traditions. For example, An Na’im notes that western countries must be prepared to expand their notion of rights to include other types of rights (for example, economic) which they have long thought to be vague or non-justiciable. For both groups, this involves building from the ‘immediately local, through the national and regional levels, towards greater international cooperation in the promotion and protection of human rights’.92 He develops this argument in a later article where he notes: In this way, the combination of all the processes of internal discourse and cross-cultural dialogue will, it is hoped, deepen and broaden universal cultural consensus on the concept and normative content of international human rights.93

The most interesting part of An Na’im’s approach is that which looks at the reconstruction or re-evaluation of local cultural traditions. An Na’aim recognizes that the conflict is not simply one of a monolithic local standard facing off against a set of monolithic international human rights norms. He acknowledges that the local dialogue will have

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to confront and deal with the existence of the official state law as well as religious and customary laws of different groups within that one society. This requires that local actors engage in dialogue with each other to ascertain their commonalities and also points of difference and to work towards reconciling those differences. Only when this internal discourse is done can the cross-cultural dialogue begin and with it the filtering of local values through global standards. An Na’aim’s approach is, in its recognition of the plural nature of most internal systems, more sophisticated than those approaches which see local values as being homogenous. Indeed that is one of the difficulties of the notion of customary law. The state-sanctioned version is a homogenized version; arguably it represents the cultural traditions of the dominant group at the expense of minority groups. However, I am not sure that he acknowledges explicitly enough the political nature of this dialogue process both internally and cross-culturally. Given the male domination of cultural organizations and religious systems, and the relative powerlessness both in economic and socio-cultural terms of women within these systems,94 it is not clear that what will emerge from the dialogue will not be yet another form of male hegemony to add to the ones that already exist in both domestic and international law. There is of course the cultural purist approach. Here the argument is in favour of the retention of the status quo. Using this approach, any engagement with human rights principles must be subject to the prevailing local conditions. Indeed this was the approach adopted by South African chiefs during the negotiations for the interim constitution. They argued that customary law should not be made subject to the sex discrimination clause.95 However as has been noted so many times before, culture is not static.96 It is constantly being challenged and redefined and is indeed evolving. To argue for things to remain as they are is both unrealistic and unhelpful. The above are some of the approaches that have been suggested for dealing with the filtering of local values using international human rights standards. The complexity of the problem which necessitates the use of multiple strategies in resolving the discrepancies and the longterm nature of the project together with its open-endedness makes any preference for any one strategy risky. PART

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In preparing this article I have been struck by the similarities between the global standards–local values debate in human rights and the evolution of feminism and its own north–south debates.97 The feminist debates can crudely be divided into a black–diaspora critique of northern-based feminism (the chief protagonist of whom is Bell hooks98) and a north-south feminist discourse which, in reflecting the breadth and

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diversity of southern women’s experiences, has many voices and perspectives.99 The main criticism made of ‘northern feminism’100 is that it is insular or essentialist and reflects the world as viewed through the eyes of white middle class women.101 Black–diaspora feminists introduce race and class as important intersections102 which impact upon black women’s experience of discrimination in northern countries. To this critique one could add religious prejudice manifested in negative stereotyping of Muslim women as oppressed.103 Audre Lorde criticizes both northern white feminism and black feminism for their collective silence on the issue of sexuality.104 Southern feminists criticize northern feminism for not taking on board the impact of colonialism on the lives of women in the south. They challenge the silence as refusing to acknowledge the benefits enjoyed by white women of the privileges associated with whiteness.105 Amadiume excoriates white women for what she sees as victim imperialism, that is, using the experiences of black women to highlight gender based discrimination.106 She also questions the suitability of transposing western critiques of patriarchy onto non-western societies. Increasingly the debate has also taken on a socioeconomic dimension with a challenge to fellow feminists to interrogate globalization and the negative impact of northern economic dominance on the lives of women in the south.107 Given these differences one might wonder what the constituent parts of African feminism are. It would appear that just as northern women have identified many ways of interrogating women’s position in society so, too, are there many southern feminisms. It would appear that for African women, strategies for challenging existing gender inequality are an important part of finding the African voice.108 This has to be done in the light of a strong belief in family and motherhood which have been identified as the sites of ‘oppression’ of women by some northern feminists.109 Nnaemeka links the existence of African feminism to its resistance of the northern feminist agenda.110 She identifies several areas of disagreement111 which frame the African resistance to northern feminisms, one of which is universalism. It is to the issue of African women’s attempts to engage with the human rights discourse to which the article now turns. From an African woman’s perspective112 one of the problems of the whole human rights enterprise is the individualized nature of human rights. Women in many parts see themselves and are identified as being part of a collective. To say to a woman that she has entitlements which may bring her into conflict with the rights of others is to present her with a seemingly intractable problem. To take a concrete example – what if the demand for a share of her deceased husband’s property results in friction with her in-laws and ostracization of her children whom she may perceive as needing the protection of the in-laws both spiritually and financially? Should she continue to demand that her

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rights to an equal share of property be respected without heed to the social costs? The discussion turns on the growing call for gender-based instruments on the continent and the progress made on that front. In analysing the instruments drawn up to date, namely the Southern African Development Community’s113 (SADC) two Declarations on Gender and Development of 1997,114 the Addendum to that declaration on Violence Against Women of 1998115 and the Draft Additional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of African Women,116 attention will be paid to the voice of African feminism which emerge. The emergence of and push for new human rights instruments on the continent seems to indicate that African women have tired of the softly softly approach, and have come to the conclusion, however reluctantly, that as long as women are dependent on the kindness of rights holders, that is, men, they will not enjoy their full rights. The demand for separate instruments which target gender based discrimination is an attempt to re-focus state attention towards addressing women’s uneven and unequal participation in development and their exclusion from the benefits of socio-economic, cultural and political gains.117 The SADC Declaration on Gender and Development provides in the preamble: While some SADC member states have made some progress towards gender equality and gender mainstreaming, disparities between women and men still exist in the areas of legal rights, power-sharing and decision-making, access to and control over productive resources, education and health among others.

The two SADC Declarations, ratified by all 14 member states, aim to eradicate discrimination against women by removing discriminatory laws, tackling gender-based violence and women’s poverty caused by their lack of access to productive resources, whilst also facilitating greater participation in the political arena. Echoing Articles 2(f) and 5(a) of CEDAW, the 1997 Declaration calls for: Repealing and reforming all laws, amending constitutions and changing social practices which will still subject women to discrimination, and enacting gender-sensitive laws.118

At no point in the Declaration is a defence of culture or an exemption for ‘cultural considerations’ made, thus suggesting that in SADC human rights principles prevail – at the normative level at least. The Declaration also recognizes that access to and control over resources is essential if women are to be empowered. Linked to this is the recognition of the need for good quality education119 which demand is echoed in the national priority areas of SADC states, 11 of whom cite education as the most pressing concern, followed by health.120 Increasingly atten-

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tion has been paid to the need for greater female participation in the political arena. The 1997 Declaration sets a target of 30 per cent women parliamentarians by the year 2005,121 which target is unlikely to be met in most SADC countries.122 The Addendum to the Gender and Development Declaration dealing with violence is a bold attempt to highlight an issue which is one of the greatest impediments to the enjoyment of women’s rights within the SADC region. Violence is widely defined to include violence occurring in both the private and the public sphere. The types of violence are also widely defined to include ‘physical and sexual violence, as well as economic, psychological and emotional abuse’.123 The Declaration further specifies the nature of violence experienced by women and include ‘economic deprivation, marital rape, femicide, female genital mutilation and traditional practices harmful to women’.124 The inclusion, in the prohibited category, of sometimes ‘culturally defended’ practices such as female genital mutilation again points to an acceptance of the universalist construction of human rights by SADC countries. However, this is in no way to suggest that that commitment translates into practice on the ground, but it does move away from seeing human rights of the type outlined in the SADC Declarations as being western inspired and imposed. More controversial perhaps may be the inclusion of marital rape as being a manifestation of genderbased violence. Although some countries in SADC have enacted laws which make marital rape a crime,125 others are proving resistant to calls for the outlawing of marital rape arguing that such a law will undermine the institution of marriage.126 Interestingly, the Declaration seems to anticipate such resistance and thus States Parties are required to promote: . . . eradication of elements in traditional norms and religious beliefs, practices and stereotypes which legitimise and exacerbate the persistence of tolerance of violence against women and children.127

Rather than being a defence of culture, usually found in cultural relativist arguments, one could argue that statements such as the above reflect a view that ‘culture’ and its interpretation is indeed one of the impediments to women’s empowerment. In addition to calling for changes in the law and the provision of legal aid, the 1998 Addendum on violence also calls upon states to make provision for adequate counselling and health services. These sub-regional initiatives have been followed up at the regional level with the drafting of the Draft Protocol to the African Charter on the Rights of Women in Africa.128 A joint initiative of the African Commission and Women in Law and Development in Africa (WILDAF),129 the Draft Protocol was drafted by a working group chaired by the Special Rapporteur on the Rights of African Women.

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Several drafts later, the Protocol was adopted by the Commission and forwarded to the Organization of African Unity, now African Union, for its consideration. The document relies heavily on United Nations instruments including CEDAW and the general recommendations thereto as well as the United Nations Declaration on the Elimination of Violence Against Women, 1993.130 This document is uncompromisingly pro-woman and anti-defence of discriminatory cultural practices. Put differently, might this be the document which, at the normative level, puts to rest claims of a north–south dichotomy in the understanding of human rights? This is because it is so obviously universalist in its outlook. An examination of a few provisions will help to illustrate this point. Adopting the definition of discrimination found in CEDAW,131 the Draft Protocol makes far-reaching demands. In the economic sphere it calls for equal access to resources, including land. It also demands that states ensure that women are equal participants in and beneficiaries of development.132 In this regard states are enjoined to reduce defence spending133 so that they may be better able to fund health and education. It is in the field of family law that the Draft Protocol throws down the gauntlet and takes on the defenders of unequal cultural practices. Specifically the Draft Protocol demands that women have access to their husband’s property on death and that they be not subject to harmful and degrading practices.134 Moreover the Draft Protocol demands equal access to marital property on divorce.135 Perhaps the most controversial of the family law provisions is the injunction that polygyny be prohibited.136 Most legal systems on the continent recognize polygny, either as a customary or religious ‘right’ of men. Is this one demand too far? In its refusal to acknowledge current practice and to countenance the socio-economic rationales underpinning the practice of polygyny, have the drafters of the Protocol shown themselves to be just as alienated from the concerns of grassroots women as they accuse northern women? In defence of the drafters, could one argue that the document merely reflects the view of the Committee on the Elimination of All Forms of Discrimination Against Women whose general recommendation on equality in marital relations calls for polygynous marriages to be ‘discouraged and prohibited’.137 One could argue that unlike the requirement to ‘prohibit’ polygyny of the Draft Protocol, the CEDAW general recommendation in prefacing the word prohibited with ‘discourage’ is more considered. By calling for the process to be ‘discouraged’, the Committee recognizes that it will be a process of challenging the practice and that change will be gradual. The call for prohibition, by contrast, is not likely to find support amongst the ordinary people (some might argue men), and is therefore likely to be yet another paper tiger. Indeed support for this contention can be found in the large number of reservations

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attached to Article 16 of CEDAW, specifically by states which have Islam as the dominant religion.138 Following on this, one might argue that so ‘outrageous’ a demand actually undermines the document and will lead to the more ‘sensible’ or ‘reasonable’ demands being lost.139 The drafters of the Protocol appear to be aware of the cultural minefield and include the standard African fingerprint provision on African cultural values.140 However, they go further and provide that women are to be involved in the negotiation of African values, which are to maintain their dignity.141 In this regard, state obligations include taking appropriate measures to ‘protect women and society against all forms of intolerance and repugnant cultural and religious practices’.142 This again suggests an outright rejection of a version of culture which relies for its legitimacy on gender-based discrimination. In turn this suggests the adoption of a universalist viewpoint in preference to one that maintains a discriminatory cultural rationale. There is of course ample evidence to illustrate that changing the law is not enough.143 For change to be effective, there needs to be a coming together of cultural, legal, socio-economic and political forces in conditions in which change can be initiated and the gains sustained. The reality is that it is rare to find the constellation of all these factors arranged favourably. Arguably law is the most constant factor of all. If this is indeed the case, then cannot law be used as the engine which drives change?144 ‘Law’ is not to be accepted uncritically. However, an engagement, filtering and implementation of law using feminist tools of analyses can yield positive benefits for women.145 Ultimately, what matters is not whether we attach the label ‘universal’ or ‘relativist’, ‘northern’ or ‘southern’, but that all change feeds into the goal of according to women worldwide their full humanity. N OT E S 1

The Independent on Sunday 6 December 1998. The Guardian 17 July 1998. Women and Law in Southern Africa (1998: 36). 4 Cf Teheran Conference on Human Rights 1968 UN Doc. A/Conf 32/41. 5 The Vienna Declaration and Programme of Action, adopted by The World Conference On Human Rights, 24 June 1993, UN Doc A/Conf 157/24 (Part 1), 13 October 1993. 6 Bangkok Declaration as cited by C. Cerna ‘Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts’ (1994) 16 HRQ 741– 3 at para 8. See also Jacobsen and Bruun (2000). However on the question of universality, the NGO group from the Asia-Pacific explicitly noted: ‘While advocating cultural pluralism, those cultural practices which derogate from universally accepted human rights, including women’s rights, must not be included.’ Bangkok NGO Declaration on Human Rights Meeting of 110 NonGovernmental Organizations from Asia-Pacific (NGO 1993) (Alfredson and Tomasevski, 1995: 49). 7 As quoted in Advisory Council on International Affairs (1998: 10). 8 Ibid. 9 Cassesse (1990: 59–61). 10 Renteln (1990: 30). 2 3

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Shivji (1994: 3). Wilson (1997: 1). Evans (1998: 2–3 ); cf A. An Na’aim (1990: 30). 14 Wilson (1997: 23). 15 Donnelly (1989: 88). 16 Higgins (1994: 96–7). 17 Nhlapo (1995: 208). 18 Ibid 216–17. 19 Renteln (1990: 53). 20 South Africa was also represented at the UN and was one of eight countries that abstained in the vote. However, South Africa, having formally embraced the policy of apartheid, can hardly be said to have been representing the interests of all its citizens ( Alston,1993: 60–1). 21 E. Zvogbo (1990: 90–106). 22 A group of Latin American women drafted a document on the Universal Declaration of Human Rights From a Gender Perspective (Women and Law in Southern Africa, 1997: 25–6). For full text, see Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM) (2002) Declaration of Human Rights from a Gender Perspective. 23 Renteln (1990: 54). 24 It is questionable whether this could ever be achieved. 25 Wilson (1997: 23). 26 Evans (1998:12). 27 Convention on the Elimination of All Forms of Discrimination, 1979 adopted 18 December 1979, G. A Res. 34/180, UN GAOR, 34th Session, Supplement n 46, at 193 UN Doc A/34/46. Of all the international human rights treaties, CEDAW has the most reservations. 28 Cf. Chinkin (1997: 64) and Cook (1991: 281). 29 R. Howard in An Na’im (1992: 81). 30 An Na’im (1990: 37). 31 Danieli et al (1998). 32 Renteln (1990: 37). 33 Advisory Council on International Affairs (1998). 34 Ibid p. 1, cf. Hellum (1999: 421 et seq). 35 Marcx v Belgium (1979) EHRR 330B. 36 Sachs (1998) also advocates proportionality, his thesis will be explored in the next part, cf WLSA Botswana (1999: 16, 17). 37 Cf Cerna. (1994: 746, 752). 38 Cf Renteln (1990: 60) and Cerna (1994: 744). 39 Nhlapo (1989: 17). 40 Charlesworth and. Chinkin (2000: 56–9). 41 Charlesworth et al (1998: 613), see also Kim (1993: 50). 42 C. J. Tredgold. in Chiduku v Chidano 1922 SR 55 at 58, cf. WLSA Botswana (1999: 61). 43 Walker (1994: 347–9). 44 Chanock (1980). 45 Article 2 contains a list of state obligations under the Convention which include in 2(f) duty to eradicate customs which discriminate against women and Article 16 which contains a detailed list of entitlements of both men and women in the family. 46 Oloka-Onyanko and.Tamale (1995: 691). 47 Freeman (1990: 1418). 48 Charlesworth et al (1991) and Romany (1993). 49 Cf Article 1 of CEDAW. 50 Mackinnon (1987, 1989). 51 For an overview of theories of equality see Sinclair (1996: 28 et seq). 52 Bunting (1993: 6). 53 A thought provoking article on this is by Gaidzanwa (1994: 92). 54 Beyani (1994: 285). 55 The African Charter on Human and Peoples’ Rights (1982: 21). 56 Beyani (1994: 285–92). 57 Nhlapo (1998: 617) and Nhlapo (1989: 1). 58 Allott (1981: 228–36, 329). 59 Nhlapo (1998: 632). 60 See May (1987). 12 13

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Nhlapo (1998: 630). Wilson (1997: 23). This practice is called many different names and each is loaded with political meaning. These include female circumcision, female genital surgeries, female genital operation and so on. At the time of writing the term female genital cutting seemed to be one of the terms in use in academic writing although the UN and its agencies refer to it as female genital mutilation. 64 Professor Rwezaura, personal correspondence. 65 Cf Dorkenoo (1995: 83–123). 66 Stewart (1998: 217). 67 Cf Muhammad (1989: 29). 68 Arnfred (1995: 3). 69 Ncube and Stewart (1995). 70 Article 15 deals with equality before the law. 71 May (1987). 72 Vareta v Vareta SC 126–90 (unreported). 73 Zimbabwe ratified CEDAW in 1991 but has yet to incorporate it into domestic law as required by Section 111B(1) (a) and (b) of the Constitution. 74 Magaya v Magaya 1999 (1) ZLR 100. 75 Ibid at p108. 76 Tsanga (1999), Coldham (1999) and Banda (2001: 125). 77 Gubbay (1997: 227).. 78 A. Gubbay Ibid. Cf. obiter dicta in Zimnat Insurance Co Ltd v Chawanda (1990) ZLR 143, 154. The focus of the Chief Justice’s article was on civil and political rights and this raises the possibility that perhaps in the Chief Justice’s view those are the only rights worthy of protection and active enforcement. The fact that the lives of African women are lived out largely in the private sphere means that their interests may not be a priority. Cf. WLSA Botswana (1998: 22). 79 Administration of Estates Amendment Act 1997. Act 6. 80 For a detailed discussion of the Act see Banda (1997: 525). The facts of the case arose before the promulgation of the Act. However there had been other cases in which a more egalitarian view of women’s right to inherit has been taken. These include cases such as Chihowa v Mangwende 1987(1) ZLR 228. The Supreme Court said that this had been wrongly decided by an earlier Supreme Court bench on which Justice Gubbay, now Chief Justice, had sat and concurred with the judgement, Gubbay (1999:112). 81 See 11 Legal Forum (1999) ‘Magaya v Magaya S-210–98: Parliamentary Debate’ at 128. See also E.Sithole ‘Magaya v Magaya S-210–98: A Case Comment’ (1999)11 Legal Forum 126–8. 82 1997 (2) SA 936. Upheld on appeal: 2000 (3) SA 867. 83 Nhlapo (1998: 629). 84 The case is discussed by Fishbayn (1999). 85 Women and Law in Southern Africa (WLSA) Botswana (1998: 40). 86 Quoted by Nhlapo (1998: 628). Sachs (1998: xvi) develops this idea. 87 Sachs (1998: xvi–xvii). 88 At the time the paper was presented although much has been done to make the judiciary more representative of the population. 89 An Na’im (1990: 31–2) . 90 Not unlike early Christian missionaries whose goal was to win converts but not to be converted to the religion/practices of the host societies. 91 An Na’im (1990: 36–7). 92 An Na’im (1990: 49). 93 An Na’im (1994: 165 and 174). 94 Freeman (1995: 149). cf Stewart (1996: 219). 95 Nhlapo (1995: 208). 96 Cf Kaganas and Murray (1994). 97 Cf Bunting (1993). 98 hooks (1984) this is in no way to suggest that hooks is the sole voice critiquing ‘white northern feminism’. far from it, see generally Bhavnani (2001). 99 Mohanty et al (1991). 100 Of which there are many types. Cf Charlesworth and Chinkin (2000: 38–46), see also Conaghan (2000: 351). 101 By way of contrast see Mackinnon (1991: 13). 102 Crenshaw (1991: 1241). 62 63

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This view has gained greater ‘legitimacy’ after the events of 11 September 2001 when the sins of the Taliban, vis-a-vis their treatment of women, have been extrapolated into a commentary on Islam’s treatment of women generally. 104 Lorde (1984, 1986) see also hooks (2000), however, Amadiume (1987: 9) would describe sexuality as ‘the priorities of the West (which) are of course totally removed from and alien to the concerns of the mass of African women’, cf Nnaemeka. (1998b: 7). Interestingly, an African country, South Africa, is the first in the world to include sexual orientation as a ground on which a person cannot be discriminated against in the equality provision of its constitution, thus suggesting that the Lorde position may have had some impact. Alternatively, one could see the inclusion of sexuality as the importation and imposition of alien values on an unwilling population. On this see Patron (2000: 124–25). Amadiume (1987: 114) later asserts that western women’s focus on the harmful impact of polygyny on the lives of African women is yet another manifestation of their obsession with issues of sex. 105 Nnaemeka (1998) and Bhavnani (2001). 106 Amadiume (1987: 8). 107 Cf Oloka-Onyoko. and Tamale (1995: 691,7235–40) and Illumoka (1994: 307). 108 Nnaemeka (1998: 5) argues that ‘ . . . the majority of African women are not hung up on articulating their feminism, they just do it. In my view, it is what they do and how they do it that provide the ‘‘framework’’; the ‘‘framework’’ is not carried to the theatre of action as a definitional tool. It is the dynamism of the theatre of action with its shifting patterns that makes the feminist spirit/engagement effervescent and exciting but also intractable and difficult to name’. See also the Introduction to Mikell (1997). 109 Cf Delphy (1984). 110 Nnaemeka (1998: 6). 111 Ibid. These include ‘radical feminism, motherhood, language, sexuality, priorities (gender) separatism . . . ’ It is of course arguable that Nnaemeka misrepresents some aspects of western feminism. 112 I acknowledge that there is no one ‘African woman’ who embodies and reflects all the diversities of African womanhood. 113 SADC is a regional grouping of countries comprising: Angola, Botswana, Democratic Republic of Congo Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. 114 SADC (1997). 115 SADC (1998). 116 Draft Protocol to the African Charter on The Rights of Women in Africa (Kigali 15 November 1999) DOC/OS (XXVII)/159b. The paper looks at this draft which was adopted by the African Commission in Kigali in 1999. It is constantly being amended and redrafted and has yet to be finalized. Cf. Murray (2000: 24). 117 SADC (1997: 20). 118 SADC (1997: H(iv)). 119 Ibid H(v). 120 SADC Gender Unit (1999: 10). 121 Ibid H(ii). 122 Cf Tamale (1999). 123 SADC (1998: para 5). 124 Ibid para 5(a). Other types of violence include ‘sexual harassment and intimidation, trafficking in women and children, forced prostitution, violence against women in armed conflict’ at para 5(b). 125 Zimbabwe Sexual Offences Act 2001. See also the Zimbabwean case of H v H [1999] (2) ZLR 358, cf. Nkiwane (2000). 126 Malawi is one such country (Tenthani, 2001). 127 SADC (1998: para 13). 128 Draft Protocol to the African Charter on The Rights of Women in Africa (Kigali 15 November 1999) DOC/OS (XXVII)/159b. 129 It is interesting that the draft has its origins in the NGO world. Cf. Murray (2000: 96). Arguably this influences its content making it more radical than anything ‘State originated’. What remains to be seen is what the ‘State approved’ version looks like and whether it sheds a different light on the universal/cultural relativism and feminism debates. 130 United Nations Declaration on the Elimination of Violence Against Women, GA/Res 48/104, 20 December 1993.

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131

Draft Protocol Article 1 which is similar, but not identical, to article 1 of CEDAW. Draft Protocol Article 21. Ibid, Article 12(3). 134 Ibid, Article 9. 135 Ibid, Articles 8(3) and 8(4). 136 Ibid, Article 7(3). 137 Committee on the Elimination of Discrimination against Women, General Recommendation 21, UN Doc A/49/38, 1994 at para 14. 138 Cf Connors (1997: 85). Interestingly the version of the draft under consideration is silent on the issue of reservations, potentially leaving it open to States to destroy the effect of the Draft Protocol by making reservations to key provisions. 139 Interestingly this was one of the most widely debated provisions at the expert group meeting held to discuss the Draft Protocol. Delegates objected to the use of the word ‘prohibited’ not least because it failed to take into account existing polygynous unions. Suggestions included retaining polygyny if the parties mutually consented and a requirement that the State guarantee the protection of women’s rights and welfare in existing polygynous relationships. Report of the Meeting of Experts on the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 12–16 November 2001 Ethiopia: Addis Ababa. EXPT/Prot.Women/Rpt(1) at 10. I am grateful to Dr Rachel Murray for forwarding this report to me. 140 Found in the African Charter (1981) Article 29(7) and in the African Charter on the Rights and Welfare of the Child, adopted July 1990, OAU Doc. CAB/LEG/TSG/Rev 1, preamble and Article 31(d). Draft Protocol (1999) Articles 2 and 19. 141 Draft Protocol, Article 2(b). The concept of dignity is not without its difficulties not least because one woman’s dignity is another’s oppression. Cf Nhlapo (1998) who argues that for some women there is greater dignity in being a wife in a polygynous union than in remaining unmarried. Conversely other women may feel that polygyny removes women’s dignity, forcing them to compete for the husband’s affections and finances. 142 Draft Protocol Article 19(2) (b). 143 Stewart (1993: 226). 144 Again Ann Stewart would urge caution in relying on ‘instrumentalist conceptions of law’ and in assuming that ‘there are universal truths about either law or women’, see Stewart (1993: 241). 145 Cf Smart (1989). 132 133

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