via Integration of gender equality vital | The Herald January 22, 2015
This is the second in a series of articles analysing regional progress on gender equality and women’s empowerment.
Looking back to 2008 when the Sadc Gender Protocol was ratified, considerable progress has been made to achieve the target to endeavour to enshrine gender equality and equity in constitutions and ensure that these are not compromised by any provisions, laws or practices; review amend and/or repeal all discriminatory laws; and abolish the minority status of women by 2015.
On constitutional and legal affairs, the protocol urged member states to enshrine gender equality and equity in their constitutions and ensure that these rights are not compromised by any provisions, laws or practices. Affirmative action was proposed in domestic legislation, equal access to justice, marriage and family rights, in relation to persons with disabilities, rights of widows and widowers and the girl and boy child. Both in terms of process and content considerable progress has been made at the regional level in integrating gender and women’s empowerment into constitutions.
A major criticism of regional economic blocs or multi-national groupings in general is that progress on implementation is very slow. This may be due to negotiation processes to identify and agree on the framing of common problems and afterwards on the best collective strategy for member countries. There was general consensus among the 15 members of the country who signed the protocol that constitutional and legal reviews were necessary.
In 2010, only two countries, Zambia and Zimbabwe had initiated constitutional review and attendant legal reform processes in line with the protocol and at the end of 2014, the figure had risen to 13. The initial number rose to three with Mauritius in 2011 and the biggest jump was in 2012 where seven countries were undertaking constitutional reform following the addition of Madagascar, Mozambique, Namibia, Seychelles and Tanzania to Zambia and Zimbabwe. In May 2013, Zimbabwe enacted its new progressive constitution while Angola, Democratic Republic of Congo and Malawi remained engaged. Tanzania and Zambia picked up the pace in 2014 while the Malawi process became stagnant.
South Africa has also tabled the Gender Equality and Women Empowerment (WEGE) Bill meant to give effect to the constitutional guarantees that for many years remained a benchmark for other Sadc countries. Zimbabwe has tabled the Gender Commission Bill, meant to establish the institution, alongside other independent institutions, meant to enhance implementation of the constitutional clauses on gender equality by addressing systemic discrimination.
According to the Sadc Gender Protocol Barometer 2014, a regional publication that since 2009 has monitored progress, ‘one of the biggest challenges facing Sadc member states is the contradiction between customary and common law’. In terms of content, while all Sadc countries except Seychelles outlaw discrimination on the basis of sex, Botswana, Lesotho, Malawi, Mauritius and Swaziland still have claw back clauses in their constitutions that uphold customary law and practices that may violate women’s rights.
These mainly relate to marriage and family laws on marriage, pregnancy, death and inheritance. It should ,however, be noted that Zimbabwe has recognised women’s rights in contentious issues such as marriage, property and personal security and bodily integrity. It is noted that abortion, marital rape and sexual diversity still do not feature.
Specific constitutional provisions for gender equality have been included by all Sadc countries except Botswana, Madagascar, Seychelles and Zambia. While Botswana and Mozambique do provide for the promotion of gender equality they have no other provisions that relate to gender. Botswana, DRC and Mauritius do not address contradictions between the constitution, law and practice through a law review and alignment process. Lastly, Angola and Botswana do not provide for any affirmative action. It should be noted that for those countries in the region whose representation of women in the national assembly has vastly increased, it is due to some form of affirmative action or the other. Mauritius provides for minimum 30 percent representation of either sex on party lists as candidates. Zimbabwe adopted proportional representation for party lists candidates in Senate and reserved 60 seats for women in the National Assembly.
“We have worked hard to ensure that by 2015, the sadc region is able to show that efforts have been made towards ensuring that the Sadc Gender Protocol targets are met. However, we have already started to lobby for a post-2015 agenda that ensures that gender equality is a reality in all the countries,” says Emma Kaliya, chairperson of the Gender Protocol Alliance, which produces the barometer. Kaliya is also chairperson of the NGO Coordinating Network in Malawi.
In seeking social transformation, social scientists propose an analysis of three areas: content, structure and culture. Content assesses the degree to which the constitution, laws and policies provide a conducive environment for gender equality and women’s empowerment.
Structure audits how ready institutions mandated to enforce the constitution or laws are to deliver services according to the letter and spirit of said laws. Lastly, culture studies inherent beliefs, values, attitudes and possibly behaviour that shapes the norms and standards to which people adhere.
That the dual legal system operating in Sadc mainly fuels the contradiction between what is on paper and what is lived reality is clear.
Lack of or inadequate commitment to the progressive legal instruments has resulted in non enjoyment of gender equality and inadequate empowerment of women and girls. There is general consensus that while considerable progress has been made in sadc on ensuring relevant laws are in place, disparities skewed in favour of men continue to dog economic empowerment, participation and representation of women in politics and decision making, education, health, gender based violence, peace building and conflict resolution, environment and media, culture and ICTs.
There is therefore need, according to constitutional rights experts, for institutions such as courts to ensure that adverse customary laws are reviewed. “The guiding principle should be that customary law is living law and therefore cannot be static but must account for the changing lived experiences of the people it aims to serve,” says Muna Ndulo, a constitutional and legal rights expert and also Chair of Gender Links, the regional secretariat to the Alliance.
With constitution making largely done for the majority Sadc countries, focus now needs to be on constitution building which is the process of making the supreme laws a living reality for the region’s people, particularly women and girls.
Virginia Muwanigwa is a gender activist and Chairperson of the Women’s Coalition of Zimbabwe (WCoZ) which is the focal point to the Sadc Gender Protocol Alliance.
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