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Abstract

This article discusses the challenges of the realization of women’s rights in relation to the concept of culture relativism in sub-Saharan Africa. It examines how the concept of culture is misconstrued with a traditional hierarchy and patriarchy approach that intervenes in the realization of women’s rights in sub-Saharan African states. Many societies are concerned that the promotion of gender equality would interfere with local culture; hence they feel that gender equality should not be promoted for ethical reasons. Women have been left with the unpleasant situation of choosing between their rights or their culture. Through secondary analysis and a critical review of the literature, the article engages in the debate on cultural diversity and gender equality, to challenge the existing stereotypes in sub-Saharan African cultures. It argues that traditional and cultural practices should adhere to the values of equality and human rights. The article proposes that cultural considerations will have to yield whenever a clear conflict with human rights norms becomes apparent.

Keywords

Culture relativism human rights women’s rights gender equality history

Introduction

Anthropologists refer to the term ‘culture’ to include ‘inherited ideas, beliefs, values, and knowledge, which constitute the shared bases of social action’ (Ssenyonjo, 2016: 383). In this respect, it refers to a society or group in which many people live and think in the same ways (Collins English Dictionary, 1999: 385). It is a macro concept, which also incorporates religion as one of its aspects (Raday, 2003; 663–677). Perceptions about the characteristics and behaviours appropriate for women or men and about the relationships between women and men are shaped by culture (Otnes and Tuncay-Zayer, 2010: 23). Among the critical aspects of culture are gender identities and gender relations because they shape the way not only how daily life is lived in the family, but also in the broader community and at the workplace. Gender, as similar to race or ethnicity, functions as an establishing principle for society because of the cultural connotations given to being male or female (Otnes and Tuncay-Zayer, 2010: 23). This is apparent in the division of labour according to gender, as in many communities there are clear patterns of women’s duties and men’s duties both in the household and in the wider community (Zimmerman, 2002: 48). There are also cultural reasons why those divisions of labour should be so. The patterns and the explanations vary among communities and change from time to time (Zimmerman, 2002: 48).

Though the specific nature of gender relations differs among societies in sub-Saharan Africa, the general pattern is that women have less personal independence, fewer resources at their disposal, and limited influence over the decision-making processes that shape their communities and their own lives (Msuya, 2017: 30). This pattern of difference based on gender is a human rights issue (Volpp, 2001). The social change which has been experienced by people around the world in recent decades, due to accelerated economic globalization and the attempt to fight against homogenization of all women’s experience within white middle-class feminism, has intensified the tensions between cultural rights and women’s human rights (Aderinto, 2013; Namazie, 2001). People have responded to experiences of economic dislocation, loss of livelihoods, migration and armed conflict by invoking a rigid and monolithic conception of culture that is intended to reassert traditional power relations and to garner a sense of stability and continuity in the face of rapid social transformations in many contexts (Namazie, 2001). In recent years, advocates for women’s human rights from a broad spectrum of countries, religions, ethnicities and social sectors have worked to emphasize the indivisibility of human rights and to reassert the interrelationships between cultural rights and women’s human rights (Talpade, 1991: 57).

Likewise, cultural rights have been linked to the protection of women’s rights (United Nations, 2010). In almost every country, women are now working to demonstrate that cultural rights and women’s rights can be mutually reinforcing (United Nations, 2010). They are trying to highlight and build cultural practices and traditions that are supportive of the human rights framework (Msuya, 2017: 21). They are articulating the centrality of cultural rights to the exercise of the collective rights of indigenous peoples such as the right to territory, education, language, natural resources, religious expression and self-determination (Okin, 1998). They argue that only the protection of those rights enables indigenous women and their families to enjoy the full range of their human rights as women, including their right to a life free of violence (Okin, 1998). Because many women’s rights infringements are justified by appeals to cultural or religious norms in sub-Saharan Africa, both concepts of cultures and women’s rights come under scrutiny in this article (Okin, 1998). It is the aim of this study to provide an analysis of the human rights perspective on culture and tradition in sub-Saharan Africa. Most of the ethnic groups in sub-Saharan African countries are patriarchal in nature, and their cultures and tradition resemble each other. The study concludes with observations and recommendations to address these issues for better efforts to respect, protect and fulfil women’s rights in sub-Saharan Africa.

The concepts of culture and tradition under human rights law

Culture is critical to almost every area of society, but most especially the law (Irina, 2011). From a legal perspective, it becomes essential to examine the conception of culture and its place within the domain of human rights law. An encompassing definition of culture is provided in the Universal Declaration on Cultural Diversity of 2001, which was developed by the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) governing body and adopted on 2 November 2001 in Paris. It defines the term ‘culture’ to cover those values, beliefs, convictions, languages, knowledge and the arts, traditions, institutions and ways of life through which people or groups express their humanity and the meaning they give to their existence and to their development.¹ This Declaration, which was the first of its kind within the international community, elevates cultural diversity to the rank of the common heritage of humanity. The definition of culture in the UNESCO Declaration aims to preserve cultural diversity as a living and thus renewable treasure that must not be perceived as being an unchanging heritage, but as a process that guarantees the survival of humanity (Foblets, 2010: 74). It also aims to prevent segregation and fundamentalism which, in the name of cultural differences, would sanctify those differences and so counter the message of the Universal Declaration of Human Rights (Matsuura, 2002).

It is clear from the UNESCO definition that culture is no longer regarded as a mere commodity; rather, it entails the ‘doing’ of human beings by virtue of being members of the community (Matsuura, 2002). The Declaration construes culture as an expression of a person’s or a group’s identity. The definition demonstrates two dimensions of culture. The first dimension relates to the physical characteristics of a person or a group which can be observed externally; for example, religion, language and custom. The second dimension is more subjective, as it relates to the way of thinking and acting by a group (Irina, 2011). The Declaration makes it clear that each individual must acknowledge both ‘otherness’ in all its forms and the ‘plurality’ of men’s or women’s own identities within communities that are themselves plural.² It has paved the way for the preservation of cultural diversity as a capacity for expression, creation and innovation and as an adaptive process. The Declaration has brought two approaches together and covers the debate between those countries which would like to defend cultural goods and services as courses of identity, values and meaning and those which would hope to promote cultural rights (Berman, 1995: 541). It thus highlights the causal link and unites both balancing attitudes by clarifying that one cannot exist without the other.

The UNESCO Declaration also provides the main lines of an action plan which is an outstanding tool for development that is capable of humanizing globalization (Berman, 1995: 541). Rather than giving instructions (Matsuura, 2002), it provides general guidelines to be turned into ground-breaking policies by member states in their specific contexts, in partnership with the private sector and civil society. The Declaration also emphasizes the understanding of moving from cultural diversity to cultural pluralism under Article 2, which states the following:

In our increasingly diverse societies, it is essential to ensure harmonious interaction among people and groups with plural, varied and dynamic cultural identities as well as their willingness to live together. Policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society, and peace. Thus defined, cultural pluralism gives policy expression to the reality of cultural diversity. [As it is] dissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life. (Foblets, 2010: 74)

In addition, Article 3 of the Declaration delineates cultural diversity as a factor in development:

Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence.³

Article 4 of the Declaration insists that cultural diversity should presuppose respect for human rights:

[T]he defense of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.⁴

The approach of UNESCO through all its cultural conventions is firmly grounded on the principle of the universal nature of human rights, which was established as international law in the UN Charter for all without distinction (Berman, 1995: 541). Of importance is the understanding, acknowledgement and tolerance of other cultures on the foundation of a binding global ethic that originates from universal values and mutual respect across cultural boundaries (Berman 1995: 541). Many important cultural rights are included in human rights, such as the right to participate in cultural life and the enjoyment of one’s culture, which should be given equal attention. Yet, in accordance with international law, those cultural rights are not unlimited,⁵ as they are limited at the point where they infringe on another’s human rights.⁶ Thus, international treaties are universal; they are supposed to be applicable in all countries which have signed those treaties and for that reason they must prevail even when they are in conflict with cultural and religious practices (NGO Platform on Diversity and Cultural Rights, 2005). A clarification of the definition of cultural rights within the human rights system and an elucidation of the nature and consequences of their violation constitute the best methods for preventing the use of cultural rights in favour of cultural relativism, something which is contrary to the universality of all human rights (UNESCO, 2009: 40). It also prevents the use of cultural rights as a pretext for setting communities, or even entire populations, against one another (Palombella, 2007). Often, cultural rights lie outside or in opposition to human rights when they essentially, according to the principle of indivisibility, form an integral part of these rights.⁷

The existence of the coherence of cultural rights is present, as such rights exist on the boundary between economic, civil, political, social and cultural rights and the rights of minorities, and their definitions remain incomplete (Meyer-Bisch, 2013: 49). This condition constitutes a dangerous gap in the protection of all human rights, especially at a time when respect for cultural diversity takes front of stage as an important issue in globalization and as a challenge for the universality of human rights (Nabudere, 2005). Universality is the common challenge which needs to be taken on, because it is not the smallest common denominator as it consists of cultivating a human condition through permanently working out our ambiguities (Nabudere, 2005). Sustaining cultural diversity and cultural rights is a highly sophisticated process. Cultural diversity is not just a matter of stitching together differences of culture, language, and so on, but it is a proactive attitude that has to be promoted in terms of principles, standards and practices (Gbakwa, 2002). When cultural diversity is only considered passively as a mere piecemeal of colours, it will slowly decrease as if those colours were melting into one another; but when it is conceived in active terms as a process that needs to be exercised, then it will flourish, as if the chromatic spectrum were opening up like a fan (Geertz, 1973: 57). However, it has been argued that this definition has the inconvenience that it is not operating in a human rights context. According to this perspective, a cultural activity relates both to the intimacy of each person and to social relations (Meyer-Bisch, 2013: 49). The Declaration thus elevates cultural diversity to the rank of the common heritage of humanity and promotes the following principle:

Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.⁸

From a legal perspective, culture is generally considered as a quality possessed by the individual that directly influences the ability to enjoy the rights and freedoms as recognized in international human rights law in effective and meaningful ways (Almqvist, 2005: 40). The cultural dimension of the individual in human rights, culture and the rule of law is represented by skills as cultural equipment, cultural norms as an adiaphora, and ideology as a comprehensive doctrine, as noted by Jessica Almqvist (2005: 40). She further explains that the notion of cultural equipment consists of things such as skills, know-how and tools, while the category of adiaphora refers to cultural norms and rules regulating human activities that are viewed as ultimately indifferent from the standpoint of cosmopolitan law (Almqvist, 2005: 40). In her opinion, such activities include ways of dress, marriage, death, divorce, caring for the elderly and sick, disposing of the dead, and so on. She explains that the final aspect of culture captures political convictions of right and justice having their source in ethical, religious and philosophical comprehensive doctrines (Almqvist, 2005: 41). She adds that all facets of culture, such as skills, norms and ideology, have relevance and fundamental implications in advancing respect for human action. Together they constitute the cultural dimension of the individual and are generally understood as the product of membership in society. Edward Tylor also provides a classic definition of culture in these words: ‘Culture is that complex whole which includes knowledge, belief, art, law, morals, custom, and any other capabilities and habits acquired by man as a member of society’ (Tylor, 1973: 1). Apart from being acquired and learned, culture is also generally understood as fabricated and therefore not ‘natural’ (Kant, 2001: 262–263). It is a quality possessed by individuals and organizations such as public, private, political, social, legal and cultural dimensions (Kant, 2001: 262–263). However, the cultural dimensions of organizations might not always accord with individual dimension. It might be that people are able to make effective use of their rights in a significant way, but it depends a great deal upon the character of the social environment as well as the culture in use by public institutions where people function in their places of residence, work and life (Irina, 2011). The notions of public culture and social culture capture two main types of culture that the individual is related to apart from his or her own culture. Social culture is also called the background culture of civil society, which is the culture of daily life and its many associations such as universities, churches, learned scientific societies and clubs (Kant, 2001: 262–263). Thus the term ‘public political culture’ comprises the political institutions of a constitutional regime and the public traditions of their interpretation, which include those of the judiciary and historic texts as well as documents of common knowledge (Merryman, 1985: 2). It is important to note that the individual’s culture may relate to social and public cultures, but the different cultures may also diverge in the sense that the individual does not possess the skills, observe the cultural norms, or affirm the ideological outlook that dominates public and social institutions in society at present.

Culture can also be described as a set of attitudes, beliefs, morals, customs, values and practices that are commonly shared by a certain group which may be defined in terms of their geographical, political or regional ethnicity (Merryman, 1985: 2). There is also another form of culture that has to do with activities undertaken by people and the product of those activities. These activities reveal the intellectual, moral and artistic aspects of human life and are protected by the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005. Moreover, from a lawful viewpoint, various culture-related interests and concerns have been progressively brought forward and attached to the fabric of human rights law. For instance, the idea of a right to culture as an individual right to take part in social life, which was perceived for the first time in the UDHR, has been reaffirmed various times in global instruments as the right to take part in cultural life, as the right of children to participate freely in cultural life and the arts, or as the right to equal enjoyment and participation in cultural activities.⁹

Culture and women’s rights

The focus of the women and culture debate in the UN has largely been on women in the family and the effect of culture on the enjoyment of their rights (United Nations, 1996: 7). Various issues related to culture have continued to feature as impediments to the enjoyment of women’s rights, even after the adoption of the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) of 1979.¹⁰ Several general recommendations made by the Women’s Committee have identified culture, among others, as being an impediment to the enjoyment of women’s rights (Banda, 2005: 248). The normative political theory tends to employ culture in a more restive way because political theorists are consumed by the question of justice, equity and autonomy from a human rights perspective (Phillips, 2010: 58). They have been preoccupied with what rights, if any, can be claimed by minority groups (Phillips, 2010: 58). They take a cultural group as more unified and homogeneous than it really is (Talpade, 1991: 57).

However, the theories of multiculturalism focus on conflicts between majority and minority groups, but do not sufficiently consider conflicts within each group such as age, gender or class. They take these groups as entities as they are and play down the internal tensions that exist within. This stance has recently been widely criticized, notably in feminist critiques on multiculturalism debates (Talpade, 1991: 57). A familiar critique of gender essentials to make similar changes against culture essentials has been extended by feminist literature. Feminist scholars question the particular use of natural or cultural distinctions, arguing that they falsely present the body as a perceived recipient of cultural meanings. They also argue that seemingly biological distinctions between female and male are socially constructed as a gender distinction between men and women (Volpp, 2001).

On establishing feminist arguments about recognizing women as agents and not victims and applying it to the multicultural debate, Farida Shaheed, a UN expert in the field of cultural rights, proposes that the paradigm that views culture merely as an obstacle to women’s rights should be shifted to the right of women to seek equal enjoyment of cultural rights (UN Human Rights Office of the High Commissioner, 2012). Traditions and culture should not be obstacles to the realization of women’s rights, but they should rather be a means of paving the way for the right of women to take part in cultural and traditional life. This right should include the right not to participate in particular traditions and customs that infringe on human dignity and rights (UN Human Rights Office of the High Commissioner, 2012). Another feminist scholar, A. Phillips, contemplates that few people are driven by culture and argues that bad behaviour is mostly what constitutes the threat to women’s rights (Phillips, 2010: 58). She further proposes that careful attention is needed to balance participation between men and women to ensure that cultural disadvantage is identified and remedied. She also argues that the pre-assumption that people’s actions, values and attributes are determined by membership of culture or a group should be rooted out. Women’s rights are rights, just like any other rights of human beings. Thus, women need to be protected by all states regardless of the political, economic and cultural system in which they live.

Women’s rights under international conventions are universal norms to which all countries must adhere and women, like men, are entitled to exercise their human rights, which include fundamental rights and freedoms within the family and society at large (Okin, 1998). Cultural relativism has been condemned for ignoring violations of women’s rights and for actually legitimizing them (Namazie, 2001). This fact not only makes it necessary to oppose any violations of women’s rights, but it also makes it racist and against the maxim of freedom of choice (Sweetman, 1995). It is for this reason that some human rights theorists and practitioners perceive cultural rights to be in tension with the human rights of women (Sweetman, 1995). In many societies in sub-Saharan Africa, people are concerned that the promotion of gender equality would interfere with local culture, and they therefore feel that gender equality should not be promoted for ethical reasons (Schalkwyk, 2000). In other cases, the cultural values of a particular area are described as a major constraint on efforts for gender equality, and therefore action against this is considered to be difficult for practical reasons (Sweetman, 1995).

Women are the ones who have been tasked with the main responsibility for transmitting cultural practices and group identity to succeeding generations in many sub-Saharan African communities (Schalkwyk, 2000). This is because culture exists through, and is generated by, the lived experiences of people (Schalkwyk, 2000). The role of women in transmitting culture also situates them as creators and custodians of culture; consequently, many communities view women’s adherence to and promulgation of cultural norms as essential to cultural survival (Babb, 2010). However, in many communities the rights of individual women are subordinated to upholding women’s role as the carriers of group identity. So, women are often denied the right to make autonomous decisions regarding their own sexuality, marriage and childbearing, and even their children’s religion, nationality and citizenship (Babb, 2012). Then again, women’s primary role in transmitting and creating culture serves as a basis for protecting and enhancing women’s status within their families and society at large (Babb, 2012).

The ongoing efforts to attain women’s rights have been undermined by the articulation that positions culture as static, sacred, monolithic and outside history (Speed, et al., 2006: 48). Cultural change happens as societies and households respond to social and economic shifts associated with globalization, environment, new technologies, pressures, armed conflict, development projects, and so on (Bourque and Warren, 1981: 103). Therefore, customary laws, like any other living law, are not supposed to be static; they are dynamic aspects of the life of a country and its social fabric and therefore have to change (Bourque and Warren, 1981: 103). Negotiations between traditional law and custom and new forms of legal protection have occurred through international advocacy (Allison, 2015: 18). Most people advocating for women’s rights view those kinds of rights as interdependent and mutually constitutive (International Indigenous Women’s Forum, 2005: para. 13). What was considered a culture yesterday may not be so tomorrow, and today’s innovation may turn up to be a tradition in future days International Indigenous Women’s Forum, 2005: para. 13). They are formed and reformed through daily practices and exchanges in social, political and cultural arenas. Culture and tradition must be therefore reviewed so that they do not violate the fundamental rights and freedom of women. There can never be a culture that is not mediated by multiple axes of inequality which must themselves be mapped against the larger economic, political and social conditions of a state (Ewelukwa, 2002). From this perspective, respect for cultural differences exists simultaneously with the belief that cultural practices and beliefs can and do change over time.

Those who defend human rights violations in the name of culture have a habit of putting the framework of human rights in opposition to culture. This thinking assumes that it is culture that subordinates women and that modernism, in the form of universal human rights, constitutes the legal protection that liberates them. This suggests that beliefs that underpin a human rights framework do not find their origin in other value systems. In fact, a wide range of cultures puts forward notions of rights and human dignity upon which to condemn violence and oppression (United Nations, 1999). However, some women who are experiencing human rights violations on the basis of both gender and culture explain that it is not a culture that lies at the root of women’s oppression, but practices and norms that deny women’s education, gender equity, resources, and political and social power (United Nations, 2006: paras 47 and 55). In this context, the UN Special Rapporteur on Violence against Women 3 (1996) declares:

It is important to emphasize that not all customs and traditions are not protective of human rights … However, those practices that constitute definite forms of violence against women cannot be overlooked nor justified on the grounds of tradition, culture or social conformity. (United Nations, 2006: paras 47 and 55)

It is therefore true that some aspects of culture may be used to violate women’s human rights, whereas other aspects of culture may be used to promote a human rights framework in sub-Saharan Africa. For instance, before colonialism, many sub-Saharan African indigenous communities practised relatively democratic gender relations and reproduced worldviews that defined gender roles as complementary rather than hierarchical.¹¹ Women were teachers, instilling knowledge and traditional values in children (Mba, 1982: 27), playing a vital role in teaching moral beliefs and traditions by caring for their families. Women were also the first teachers of trapping, hunting and fishing. Older women, drawing on experience and wisdom, trained children to be respectful, thankful, and gentle with animals. Women promoted African culture through dance, music, art and clothing (Mba, 1982: 27). The survival of communities was dependent upon women, as they had a broad knowledge of herbs and traditional medicine. Women also gathered food for their families. In some areas, like Kikuyu in Kenya, women were the major food producers, choosing how to cultivate the land (Msuya, 2017: 35).

The African kinship system enabled women to be economically independent. Women’s responsibilities for managing the home and raising children caused them to be seen as heads of their households (Hakansson, 1994). Another excellent example of a woman with great political power is the Nguni King of Mozambique’s widow, the priestess in charge of the shrine in the burial place of her deceased husband (Hakansoon, 1994). She was even consulted by the reigning king on various important matters. Other women occupied the position of head of state. In West Africa there was a female member of the Alafin’s council – judiciary body called the Iyalode in Yoruba (Fyle, 1999). She was the spokesperson at the Alafin’s meetings, responsible for women’s rights. By the 19th century in Sierra Leone, women were selected as heads of towns and sub-regions among the Mende and Sherbro people, one of them being Madame Yoko (Day, 1994a). Therefore, for indigenous women, cultural preservation as an element of cultural rights may be a strategy for transmitting values that support women’s human rights (UN Human Rights Office of the High Commissioner, 2014: 67).

Some generally recognized cultures have specific gender-related forms of abuse that were not recognized as typical human rights abuses in the past. Such an abuse is, for instance, slavery, which is generally recognized as a fundamental violation of human rights, but the practice of parents giving their daughter in marriage in exchange for money has not typically been seen as an instance of slavery. If a husband marries his wife without her adult consent or if he beats her for disobedience or misfortune, or if he confines her to their home, forbids her to work for pay or appropriates her wages, these manifestations of slavery may not be recognized as violations of human rights in many cultures. In some societies, these acts are regarded as normal, appropriate behaviour in parents or husbands (UN Human Rights Office of the High Commissioner, 2014: 67).

How far an African woman should go in asserting her rights is a major concern in sub-Saharan Africa. There is a silent notion that women can enjoy their rights within certain boundaries, normally drawn when man starts to feel threatened (Akumu, 2015). Once an African woman crosses those boundaries, she will then be considered to have over-enjoying rights to the ‘point of becoming un-African’ (Akumu, 2015). Rather, many customs have been revolutionized into harmful practices of individuals who use culture as a scapegoat when it benefits their intentions. A large number of harmful traditional practices in sub-Saharan Africa are based on a perception of male superiority, and women suffer many human rights abuses in the name of culture. The reality is that harmful traditional practices to which women are subjected benefit male perpetrators to a large extent (Msuya, 2017: 223). Female sexual control by men and the economic and political subordination of women perpetuate the inferior status of women and inhibit structural and attitudinal changes that are necessary to eliminate gender inequality.

Cultural practices, such as forcing young girls into ritual servitude, Trokosi (slaves to the Gods), Wahaya (fifth wife), Ukuthwala (kidnapping girls for marriage), payments of dowry, male dominance, female genital cutting, ghost marriage (nyumba-ntobhu), widows’ inheritance, domestic violence and cleansing, and child marriage, perpetuate the violation of women’s rights and that the issue of culture continues to feature as an impediment of women’s ability to enjoy equal rights with men (Msuya, 2017: 223). The above-mentioned cultures have been evidenced in numerous ethnic groups from the eastern, western and southern parts of sub-Saharan Africa. Most women’s rights infringements occur in the private circle of family life and are justified by appeals to society to adhere to cultural norms. Consequently, women experience less personal independence, have fewer resources at their disposal and have limited influence over the decision-making processes that shape their communities and their own lives (Msuya, 2017: 223). They are left in the unpleasant situation where they have to choose between their rights or their culture; yet as mothers they are tasked with the main responsibility of transmitting cultural practices and group identity to succeeding generations. Hence, their rights are subordinated to upholding their role as the carriers of group identity.

Until recently there has been little acknowledgement of women’s particular vulnerability to poverty and the need for basic social services such as health care, because their biological reproductive capacity and their greater responsibility for children are recognized in virtually all societies (Tripp, 2013). Even some human rights activists, until recently, have been unwilling to recognize the many culturally sanctioned abuses and instances of neglect of women as serious violations of human rights (Human Rights Watch, 2013: 77). It can be contended that the spirit and purpose of international instruments that should safeguard societies have not been put into practice in some sub-Saharan African countries, particularly at grassroots level. Some of the pieces of legislation in use in sub-Saharan African states are those that were enacted during colonial times (Msuya, 2017: 34). It has been observed that it is often not easy to implement new legislation in sub-Saharan Africa, as many cultural practices no longer reflect their origin or the original customs that provoked them (Msuya, 2017: 34). Some African human rights proponents justify those abuses under the argument of cultural relativism, arguing that it is possible for Africa to have a different interpretation of human rights from the rest of the world (Msuya, 2017: 34). Blind adherence to these discriminating cultures, combined with the government’s inaction to curb or eradicate these practices, has made large-scale violence against women possible (Human Rights Watch, 2013: 78). It is pitiful to note that some customary practices that are perpetuated by culture and religion and that are harmful to women are still protected by law in many sub-Saharan African countries (Human Rights Watch, 2013: 78). There is less political will in some sub-Saharan African states to amend discriminating legislation, as the same rulers who agree that some cultures which violate women’s rights are unacceptable have found a new way to replace them ‘in the glass ceiling called African culture’ (Akamu, 2015). The situation as it is does not accommodate culture as it used to be practised in sub-Saharan Africa. The need for cultural practices to review and abolish in line with human rights requirements cannot be avoided. This means that there has to be a limit to the practice of some customs so that they can accommodate gender equality (Oyewumi, 1997: 12). Most women in sub-Saharan Africa are not aware of their basic human rights, and the state’s inaction ensures their acceptance of ‘the way it is’; consequently, the perpetuation of harmful traditional practices affects and corrodes women’s well-being. There is a stubborn persistence of negative cultural norms that are in conflict with and undermine the implementation of the provisions of the constitutions and international human rights standards in sub-Saharan Africa (Alston, 1994: 86).

Recommendations

Cultural obstacles in sub-Saharan African states are intensely entrenched and most countries have not adopted immediate and effective measures, mainly in the arenas of education, teaching and information, to combat gender bias as a prerequisite of both CEDAW¹² and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa of 2003.¹³ States need to take ‘appropriate measures’ to amend ‘social and cultural patterns of conduct’ to eradicate biases and harmful practices based on the idea of stereotyped roles of the subordination of women.¹⁴ It does not matter how high the obstacles are; transformation is possible. The inequality which is rooted deeply in sub-Saharan African states may be uprooted or changed, through public education. The stereotypical gender roles can be challenged through academic instruction, textbooks and patterns of engaging in the education method. Constant education will overcome entrenched forms of resistance, embolden the participation of women and change certain harmful practices. Education is important for the formation of a culture where women’s rights are understood, appreciated and promoted. Many women in sub-Saharan Africa have not heard about the existence, not to mention the content, of the Protocol to the African Charter on Human and Peoples’ Rights which protects Women in Africa. This enlightenment leads to the majority of the women in sub-Saharan African supporting practices that discriminate against them. Therefore, it is essential for the sub-Saharan African states to give urgent consideration to the general duty of states to make changes to the social and cultural arrays of conduct of their citizens through public education.

However, the focus on available international human rights laws to eradicate harmful cultures may at face value appear as a western pressure for change in sub-Saharan Africa. Such a focus is sometimes criticized as being heavy handed and insensitive and is often perceived as culturally imperialistic in most sub-Saharan African countries. It is argued that efforts to change discriminative cultures are most effective when they originate from within the culture that practises them. Struggles to alter or eradicate harmful cultures thus require the cooperation and understanding of local community leaders, policy-makers, and the people who have experienced or witnessed the hardships caused by harmful practices within their societies. These people will be of assistance in promoting upright conduct and respect for human dignity. Religious and traditional leaders have a great influence on customs and practices and are therefore vital in efforts to change society’s attitudes in sub-Saharan Africa (Msuya, 2017: 227). They usually have a say in how people live their lives and how they are governed. Therefore, empowering and enabling local leaders in advocating for the abolishment of harmful practices is likely to be an effective way of bringing about change. It is a strong argument that, if traditional leaders support the abolition of harmful practices, then people in their communities are likely to do the same. These leaders will be useful in dispelling the myths that are attributed to the continuation of harmful practices, particularly those that affect women and girls. Continuing to use their services will, in the end, change many harmful traditional practices for a better dispensation in sub-Saharan African societies.

Traditions and culture should not be obstacles to the realization of women’s rights, but rather a means of paving the way for women to obtain their rights. In this context, the right to take part in cultural activities and practices and in traditional life includes the right not to participate in particular traditions and customs that infringe on human dignity and rights. Governments in sub-Saharan Africa need to strengthen their domestic laws and policies that protect women from a culture of violence against them. Positive traditional methods and practices must be used to eradicate the harmful ones for a better understanding of rural social realities. For example, traditional dances and rituals such as ngoma can be used to discourage harmful traditional cultural practices and eliminate discrimination against women. We can encourage dialogues about human rights in different traditional systems that comprise different cultures and religions to challenge negative aspects of our culture in our communities. Indigenous languages should also be used to address harmful traditional and cultural practices and gender discrimination, as sub-Saharan African societies have many languages in which to convey strong and positive messages. We can capitalize on that advantage and use native languages as an asset instead of a liability to clearly communicate the need to eliminate discriminative and harmful cultural practices. Harmful traditions can effectively be addressed through a grassroots approach, which would take cognisance of all aspects of a particular culture by trying to work within that system of beliefs to eradicate the harmful ones. The United Nations Population Fund (UNFPA) refers to this as the ‘culture lens’ approach (Scorgie, 2002: 55). This approach is an analytical programming tool that helps policy-makers and development practitioners to understand and utilize positive cultural values in order to reduce resistance to change.

Useful cultural practices that traditionally protected women and girls should be considered in designing programmes to address gender inequality and to eradicate harmful cultures. The upholding of human rights must be done in such a way that communities do not feel that the integrity of their culture is being compromised. In this way, parents and society as a whole will be able to feel that they are not losing their heritage, but that women’s rights will be preserved. It is important for communities to feel that their traditions and cultures are not being disregarded. The community should also be included in the process. When educating the society about harmful traditional practices, the focus should be on the negative consequences rather than on human rights or legal aspects. In this way, people will be more likely to accept what they are being taught.

Conclusion

It is important to be culturally sensitive, but this does not mean that respect for culture warrants uncritical and insensitive adherence when cultural, traditional or religious practices are invoked. Culture or tradition as a rationale for discrimination against a vulnerable group should not be accepted; rather, both sub-Saharan African societies and governments should look for opportunities to counteract prejudice and its consequences. Sensitivity to and respect for culture would be better demonstrated by adherence to the values of equality and women’s rights as espoused by the international community in relation to issues of women’s position in society. Cultural values are therefore required to take a back seat when they do not adhere to human rights norms.

The assumption that cultural values are static and inalienable ignores the reality that they conflict with human rights and requires urgent change. This assumption has thus disregarded the many worthwhile and forward-looking efforts by international and national societies that question discriminating cultural values to work effectively towards equality. It is crucial and useful to view culture as a dynamic aspect of sub-Saharan African societies. It was established by Steiner that

‘[c]ulture is plastic, made and remade through the course of history, not unshakable and essentialist in character but in many respects contingent, open to evolution and to more radical change through purposeful human agency informed by human rights ideals’ (2006: 753, 777). If culture can be viewed in this context, practices that are harmful to women will be grasped not as static objects, but as historical processes. Decisions about what aspects of culture and tradition to protect are not for outsiders to make. Customary laws which are not discriminating and human rights should complement each other rather than being exclusive. While it is essential to uphold traditional life and diversity, it is equally crucial to uphold the human dignity of all men and women, on the basis of equality. Although it is imperative that we draw attention to the fact that most Western understandings of African traditional law are influenced by their negative attitudes towards all things in Africa, it is important to realize that African theory and practice have been influenced by and have become part of the global movement for the globalization of human rights. By enthusiastically joining international human rights instruments and adopting African instruments such as the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, states are embracing the international human rights movement and its universality. All in all, cultural values are supposed to be continually reinterpreted in response to new needs and conditions. Some values will be reaffirmed in this process, whereas others will be challenged as no longer appropriate (Speed et al., 2006: 48).

Footnotes

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Norah Hashim Msuya

Notes

Author Biography

Dr. Norah Hashim Msuya is an academician and Advocate of High Court of Tanzania and Subordinate Court therein. She is a legal Lecturer of Mzumbe University Tanzania. She has published and lectured widely on public international law, human rights, administrative law, as well as children and women‘s rights. Norah is also a coordinator and founder member of the Tanzania Legal Aid Organization for Women and Children, a non-governmental organization which provides legal assistance and education to women and children in Tanzania. Currently, she is doing Postdoctoral Research in the College of Law and Management Studies at University of KwaZulu Natal, South Africa.

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