Law practitioners battle against barriers to women’s rights on 30th anniversary of landmark convention

Exactly thirty years ago this month, at a special ceremony in Copenhagen on 17 July 1980, 64 states signed into being the UN Convention on the Elimination of All Forms of Discrimination against Women.

This landmark international human rights instrument – CEDAW for short – is regarded by many as the first all-encompassing international bill of rights for women. It not only defines discrimination, but commits states to national action ensuring equality between the sexes.

The convention is important, according to Indira Jaising, a member of the UN Committee responsible for monitoring implementation, because it affords politicians a legal basis for socially progressive law making. “It paves the way,” she insists, “for government to put in place policies that are specifically tailored to ensure outcomes that are as beneficial to women as they are to men.”

Cultural and legal practices

Yet three decades on, despite today boasting 186 signatories, few countries are nearing full compliance, says Ms Jaising, a staunch defender of women’s rights and the first female in India to be appointed Additional Solicitor-General, one of the country’s six most senior legal officers.

As she explains, reconciling cultural traditions and religious and legal norms with international human rights standards has proven difficult in many nations. Discrimination against women on issues such as inheritance, marriage rights, child custody and adoption is still prevalent, even in India which has enshrined equality into its constitution and ratified CEDAW in 1993.

“Almost all countries now guarantee equality [between men and women] in their constitutions, but not many achieve equality in terms of outcomes,” she continues. “In terms of violence against women the situation is horrendous – the world hasn’t come close to eliminating it.

"In India we have a constitution which guarantees equality and our judiciary is fairly independent, but I don’t see an equality of outcomes. Women are not very well represented in the legislature and just look at literacy levels, employment law or female mortality. The practice of aborting female foetuses, too, is well known.”

Political will

In her role as Additional Solicitor-General, Ms Jaising says she expects to “refer to CEDAW” as she looks into cases of sexual harassment in the workplace and violence in the home. Yet there is a steep hill to climb, she concedes. Reconciling centuries-old cultural traditions and religious norms with international human rights conventions, while overcoming a lack of political will, is no easy feat.

“We [in India] have a lot of unequal family laws based on religion, which the government refuses to reform because it says communities have the right to preserve their traditions. They are also worried about the political fallout [of enforcing change].”

In Nigeria, another signatory to CEDAW, observers also say that implementation to date has been stymied by cultural and legal obstacles.

According to Hon Justice CC Nweze,  a Court of Appeal judge, the country’s “major problem” with respect to the implementation of the convention relates to a lack of appropriate statutory legislation to ensure the enforcement of its provisions, despite the ratification of CEDAW in 1985.

Lawmakers, he argues, have demonstrated little ambition to pass legislation to “domesticate” the convention. He claims this “legislative lethargy” has denied judges the opportunity to rely on and apply appropriate international human rights standards, especially when adjudicating on issues such as inheritance and property disputes between women and men.

“When [politicians are elected] their tendency is to fend for themselves rather than cater for the majority of people. If we had proactive lawmakers, the provisions of CEDAW would have been reflected in statutory legislation already,” he says. “If international conventions are not incorporated into domestic law they cannot be used.”

Optimism for the future

For Nigeria’s female citizenry however, there may now be cause for cheer. New guidance on fundamental rights came into force six months ago, introduced by the country’s Chief Justice. This guidance, the so-called Fundamental Rights (Enforcement Procedure) Rules, give judges the power to directly apply to cases before them the provisions of applicable international human rights conventions such as CEDAW.

“The new rules direct that we must respect all international conventions whether domesticated or not,” says Hon Justice Nweze. “This means judges have a duty to consider relevant conventions including CEDAW and apply them to cases here.”

Although the impact of the rules remains to be seen, many experts are convinced that this could be a watershed moment for the implementation of all kinds of international human rights conventions ratified by the West African country.

Predicting that its courts can now expect a “flood” of new cases from women who believe they have been subjected to discrimination, Hon Justice Nweze suggests Nigeria’s women will reap “immense benefits” from the change. “This,” he says, “is a great revolution.”

Without prejudice

The experiences and insights of both Hon Justice Nweze and Indira Jaising are dealt with in a new study, Without Prejudice: CEDAW and the determination of women’s rights in a legal and cultural context, published by the Commonwealth Secretariat.

The publication looks at the range of cultural and legal concerns relating to the implementation of CEDAW and features chapters by leading practitioners and academics currently engaged with the issue.

A compendium of useful Commonwealth documents, agreements and case law, the book acts as a practical guide for judges, adjudicators, lawyers and activists to advance the principles of CEDAW within Commonwealth jurisdictions.

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