Implementing the Principle of Gender Equality through the Law: Some Lessons from Southern Africa

Abstract

The adoption, on 18 December, 1979, of the Convention on the Elimination of All Forms of Discrimination Against Women marked a historic development in the struggle for gender equality. The Convention has subsequently been ratified by a record number of African states, forty-six in all. All these states are also parties to the African Charter on Human and Peoples’ Rights which, in Article 18 (3), confirms their commitment to women’s rights and gender equality. Yet only a few of these states have taken the necessary measures to implement this commitment in their respective municipal legal systems. Arguably, the major obstacle in the efforts to implement the principle of gender equality is the institution of patriarchy, which underlies African customary legal systems. However, Southern African countries have taken the lead in. addressing the institutionalized inequality to which African women are still subjected. Thus, the fairly recent constitutions of Lesotho, Malawi, Namibia and South Africa, for example, all contain bills of rights entrenching fundamental human rights, including the right to gender equality and nondiscrimination. In addition, the courts in some of these countries have also made pointed, though isolated, attempts to actualize the promise of gender equality through judicial interpretation by engaging and incorporating international human rights law into the interpretative process. In the process, these courts have had to address and resolve the vexed problem of reconciling the claims for gender equality, on the one hand, and the gender-discriminatory aspects of customary law and practices in these societies, on the other hand. This paper presents an account of the various efforts being made by some Southern African countries to implement the principle of gender equality. It is argued that the protection of gender equality in the constitutions or legislation of these countries will remain largely ineffective unless the constitutional and legislative intent is matched by real structural changes in power relations in these societies. This requires an interrogation of certain assumptions about power that the interests of patriarchy have presented and defended as time-honoured values. It also requires that where state action and legislation do not accord with the principle of equality, on which the human rights idea is predicated, such action and legislation must be reviewed or struck down.