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African Women Still Not Getting Justice in National Courts, New Report Finds

(PRESS RELEASE) Today, the Center for Reproductive Rights announced new research finding that national courts in African Commonwealth countries have failed to fully protect women against human rights violations, particularly in cases of sexual violence, marital disputes and child custody. Volume II of Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts, an analysis of cases in the last decade affecting women's rights, shows that the courts have recognized equality, reproductive and sexual rights inconsistently, despite guarantees of those rights in their countries' domestic laws, and regional and international agreements. The analysis focused on courts in Botswana, Kenya, Namibia, Nigeria, South Africa, Swaziland, Uganda, Zambia, and Zimbabwe.

"The courts are central to women's everyday experiences," said Elisa Slattery, co-editor of the report Legal Grounds II and legal adviser and regional manager for the Africa Program at the Center for Reproductive Rights. "When the courts hold governments responsible for the agreements that they've made, it empowers women to control their lives and participate in society as full and equal citizens. When they don't, it reinforces gender discrimination which in turn fuels sexual violence, the high incidence of early or coerced marriages, deteriorating access to reproductive health services, and the passage of discriminatory laws, among other human rights violations."

Various regional and international instruments and declarations have recognized women's rights in a human rights framework. Most recently, governments of the African Union adopted in 2003 a new Protocol on the Rights of Women in Africa which guarantees comprehensive rights to women, including the right to social and political equality with men and to control of their reproductive health. Several African countries have also passed laws that secure the equality of men and women under the law and protect women from discriminatory customary practices, including Uganda and Ghana. In spite of these positive developments, much work remains to be done to ensure that these national, regional, and international norms translate into concrete improvements in women's lives.

The cases highlighted below illustrate the role that courts can play in perpetuating violations of the human rights of women and girls.

Sexual violence and inadequate sentencing. In the 2006 case, WB v. The State, South Africa's High Court reduced the sentence of a father who pleaded guilty to raping his six-year-old daughter from life to fifteen years. According to the court, the father's prior good character including being a "caring and loving" father earned him a lesser sentence. Sexual violence can result in devastating long-term consequences for the survivor's physical and mental health and violates the rights to integrity, dignity and security. Human rights treaties and experts have emphasized the importance of protecting girls and women from sexual violence and punishing it when it does occur.

Discriminatory treatment of women in marriage-related laws. In the 2007 case Muyambo v. Bere, the Zimbabwe High Court found Eunice Bere liable for adultery with a married man, Godwin Muyambo, but did not at any point address his responsibility in the affair. Mr. Muyambo's wife sued Ms. Bere for adultery and sought monetary damages. Although Ms. Bere argued that she did not know that he was already married and had married Mr. Muyambo under customary law, the court declared the customary marriage law invalid. It also found Ms. Bere liable for adultery and responsible for the end of the Muyambos' marriage and ordered her to pay compensation to Mrs. Muyambo. This case highlights how women bear harsher legal penalties for adultery than men do and is indicative of the fact that the law privileges male sexuality over female sexuality.

Child custody and responsibility. In the 2006 case RM v. Attorney General, Kenya's High Court upheld a national law, the Children Act of 2001, stating that the father of a child born out of wedlock is not legally obligated to support the child until paternity is established. RM's putative father disappeared four months after RM was born. Prior to that, he and RM's mother lived together before she was born, he paid hospital expenses for the birth, and named the baby after his mother. RM's mother filed an action to declare the Children Act unconstitutional, arguing that it discriminates against children born to unwed parents and conflicts with the international treaty, the Convention on the Rights of the Child. The court disagreed, stating that the different treatment of nonmarital children was not discriminatory because its main purpose was to protect the child by obliging the immediately available parent (the mother) to support the child without delay. The court also said that Kenyan national laws should be upheld even if they are inconsistent with international law.

Exclusion of women in property inheritance. In 2004, in Mojekwu v Iwuchukwu, the Supreme Court of Nigeria strongly criticized a Court of Appeal's decision condemning a custom that prohibits females from inheriting property. The case involved a property dispute between a deceased man's wife and nephew. Augustine Mojekwu, the nephew, claimed that as the closest surviving male relative of the deceased, he was entitled to inherit his house. Caroline Mojekwu, the wife, on the other hand, argued that her son, Patrick, who had passed away before her husband, had fathered an infant son who should inherit it. Mrs. Mojekwu also had two daughters, but under the Nigerian custom, they were not a consideration. In its decision, the Court of Appeal declared the custom invalid and found that a different custom, which allowed the deceased's daughters to inherit the property, applied. The court added that the custom the nephew sought to rely on was repugnant to natural justice, equity and good conscience, and that it violated the right to gender equality guaranteed in the Constitution and international human rights law. On appeal, the Supreme Court agreed with the lower court that the custom invoked by the deceased's nephew did not apply in the case, but cautioned that the lower court's "general and far-reaching" language could lead to criticism of all customs that exclude women. Mrs. Mojekwu passed away before the Supreme Court ruled, leaving one of her daughters Theresa Iwuchukwu as party in the case.. Customary laws that exclude women from inheriting property expose them to physical harm such as sexual violence and abuse, deprivation of shelter, and carry negative social and economic consequences for them and their dependants.

Legal Grounds II is a joint publication of the Center for Reproductive Rights, the International Reproductive and Sexual Health Law Programme of the University of Toronto, and the LL.M Programme on Reproductive and Sexual Rights of the University of the Free State in South Africa.