Raise your glasses to cheer a formidable 30-year old – (can you possibly guess? CEDAW. To all you human rights experts out there of course you know what I’m referring to: the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. Outside the specialist circles, you might be forgiven for thinking that I probably pulled that name out of a hat or out of some obscure academic journal.
According to the OHCHR, CEDAW has been ratified by 186 countries.
This means that a huge number of countries have actually signed up to an internationally-binding legal treaty to protect their womenfolk from all forms of discrimination. The tension though arises when the provisions under human rights law are in direct conflict with cultural norms backed up by customary law as it is known in various African states.
Some might argue that customary laws are an essential part of the culture and making of a people and therefore should not be tampered with especially not by human right laws which are by-products of post-colonial thinking.
I guess this is where the real tension lies – recognising whether every part of our cultural and ancestral norms should be left as it is or whether necessary modifications or even radical overhauls are needed in view of rapidly changing communities in which we find ourselves.
A case in Kenya has proved that we have to be prepared to judge each case or situation on its merit whilst keeping an open mind about the possibility that no system of law or justice is perfect. In order to make lasting progress as a people we have to be willing make big changes in our laws especially where the wellbeing of vulnerable members of society are concerned.
In a 2008 case, a Kenyan High Court overruled the Masai customary law that fails to recognise a daughter’s right to inherit from her father’s estate. The precedent for this was a case in 2005 where it was unequivocally stated that “where discrimination is at stake, the Constitution and human rights standards must prevail”. A copy of the 2008 ruling is available at:
http://www.kenyalaw.org/Downloads_FreeCases/SUCCESION_CAUSE_No_1263%20OF%202000.pdf
This particular case is viewed as a success story by the OHCHR and rightly so as it shows that where there is the political will, the existing tensions between cultural norms and the human rights laws can indeed be resolved without disparaging local customs and traditions....
This was a really interesting post. Of equal importance (i.e. equal to the ruling by the court) is the enforcement of such judgements. Without disparaging the importance of these sorts of landmark rulings real freedom for those who've been victims for so long, requires their enforcement. Here the UN record hasn't been so exemplary.
ReplyDeleteThanks for these comments....I do wholeheartedly agree.If the UN record has been what it should be,then there really won't be a need to galvanise the support of civil society organisations and the international community as a whole. This ruling just opens up the idea that indeed diverse possibilities exist for negotiating and bridging the divide between human rights provisions and the daily experience of people who are marginalised in one form or another. The UN as an organisation itself can be a bit of an unwieldy truck that is probably a victim of its own often "utopian ideals"....The onus is still on State governments to traslate their international commitments into domestic constitution and then enforce these provisions.Hopefully pressure from within and without these communities will give the required push..All we can do is try...........
ReplyDeleteThis is a good post. My concern has always been the applicability of international conventions (even CEDAW) at the national and local levels especially in the case of Africa, in which cultural norms are in conflict with human rights provisions. However, the Kenyan case shows that some progress is being made.
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