GENDER AND LAW IN NORTH AFRICAN COUNTRIES IN-LIGHT OF THEIR ACCESSION TO THE CONVENTION OF THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
Regional Adviser for the subregional follow-up meeting on the Implementation of the Global and African Platforms for Action - North Africa, Octobre 1998
Table of Contents
Introduction
The Convention on the Elimination of All Forms of Discrimination Against Women
Reservations
Strategies for removing expressed reservations
Bibliography
Introduction
1. The North African countries have made many efforts in terms of legislation to promote the advancement of women with a view to expiring them to modern life and democratic ideals while keeping faith with their Arab and Islamic culture. While North African women do, in public law, have the same rights as men, they cannot practically enjoy those rights since they do not have the legal capacity to do so under private law. This is the issue that must be thought out and addressed because it seriously limits the access of women to positions of responsibility and decision-making.2. This much is clear from the study prepared by Mrs. Hassania Chelbi and Mr. Mongi Bedoui on the Post-Beijing situation of women in North Africa: Realities and Prospects. While there are country-specific differences, the study shows that women are still far from achieving the gender equality proclaimed in the international instruments that have been ratified by countries of the subregion and incorporated in their basic laws. Such discrimination is certainly to blame for the economic invisibility of women mentioned in the report. The visible contribution of women to economic activity remains modest in comparison to their real contribution to the economy and that degree of invisibility substantially influences the perception of their actual participation in public life, becoming the most poignant expression of their status.
3. The fact that women are not seen to be active in economic and social development is due, among other things, to the rules and regulations governing society and which have the effect of keeping women away from activities and positions which would give them material security, power and influence in public as well as private life. For years now, the development debate has been focusing increasingly on the issue of rights, their interpretation and application and on the inclusion of a gender perspective.
4. Realizing that men and women approach legal issues from different perspectives, the women's movement has, in recent years, been fighting relentlessly for the inclusion of a gender perspective in all human rights instruments.
5. The basic rights of women form an integral and indivisible part of all human rights and liberties. In its first paragraph, the June 1993 Vienna Declaration affirms that all human rights and basic freedoms are universal in character and inviolable and that all States have a legal obligation to promote universal respect for, the guarantee and protection of all human rights and basic freedoms for all.
6. This obligation is further prescribed for all States in conformity with the United Nations Charter and other human rights instruments. Member States are obliged to promote and protect the basic rights and liberties of all citizens without any distinction. The idea is to eliminate every form of discrimination based on gender and to guarantee the participation of women, on an equal footing, in the political, civil, economic, social and cultural life of their society whether it be at the local, national, regional or international level.
7. The promotion and protection of all the rights of women listed above, particularly regarding their personal status, is of crucial importance to the democratic management of public affairs and sustainable development.
8. Indeed, for women, the right of citizenship has no meaning so long as they are not in control of their future within their own family and are considered as minors all their life, subject to a custodian who contracts their marriage or to the authority of their spouses in securing permission to exercise a profession, obtain a passport or a loan. What meaning can the right to education have when the marriageable age of women is set at 15 in some countries? What meaning too can the right to health, civil and political freedom have when women are subjected to the duty of obeying their spouses?
9. The follow-up of the implementation of the Beijing and Dakar Platforms for Action provides an excellent opportunity to discuss this issue which touches on the universality, indivisibility and interdependence of human rights. In the Beijing Declaration, member States committed themselves to ensuring that women and girls would fully enjoy all human rights and fundamental liberties and to taking effective measures to punish violations of those rights and liberties. They also considered lack of respect for the basic rights of women and deficiencies in the promotion and protection of those rights as the priority areas in which urgent action must be taken and called upon Governments, the international community and civil society (including private-sector non governmental organizations) to take strategic action within this context.
10. Their primary objective was to promote and protect the fundamental rights of women through the full implementation of all human rights instruments, particularly the Convention on the Elimination of All Forms of Discrimination Against Women.
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The Convention on the Elimination of All Forms of Discrimination Against Women
11. The Beijing Conference placed particular emphasis on the Convention because of the place it occupies among international human rights instruments. The Convention analyzes the significance of the concept of equality and ways of achieving such equality. It also spells out a programme of action whereby States parties to the Convention can guarantee the enjoyment of those rights. The monitoring mechanism, the Committee for the Elimination of Discrimination Against Women (CEDAW) plays the role of following up on the degree to which member States implement the various provisions and give it greater effect, since the State parties can be held internationally accountable for the protection and promotion of the rights set forth in the Convention.
12. What is more, the optional protocol being drafted as part of the Convention will enable individuals and groups of individuals to inform the Committee about eventual human rights violations and provide genuine protection for women against discrimination.
13. Except for Mauritania and the Sudan (according to the most recent documents available to us) all countries of the subregion have ratified the Convention. The ratification dates vary from country to country.
Accession of countries in the subregion to CEDAW
Date of
signature
instruments of ratificationAlgeria
22 May 1996
Egypt
16 July 1980
18 September 1981
Libya 16 May 1989
Morocco
21 June 1993
Mauritania
Sudan
Tunisia
24 July 1980 20 September 1985
14. Although they have signed the African Charter for Human and People's Rights which proclaims egalitarian principles in Article 18 which states that the State must see to the elimination of any form of discrimination against women and to the protection of the rights of women and children as stipulated in international declarations and conventions, both Mauritania and the Sudan are lagging behind in the ratification process.
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Reservations
15. Most of the States in the subregion believe in the ideals of the United Nations Charter but their commitment has yet to be demonstrated fully and completely. Indeed, all of them have used the proviso in article 28 to express reservations about the Convention. Even Tunisia which is known to be in the vanguard when it comes to the status of women and which had not expressed any reservations when ratifying many conventions which directly or indirectly affect the status of women, interprets the Convention in a restricted sense. The 1980s were particularly marked by the rise of religious fundamentalism and problems of ethnic identity. The provision in the article stipulates, however, that no reservations incompatible with the purpose and objective of the Convention will be allowed.
16. Of the 30 articles of the Convention, four have been the object of reservations, except for article 29 on the settlement of disputes which is not concerned with the main purpose of the Convention. These are articles 2, 9, 15 and 16:
*Article 2 generally defines national obligations under the Convention and measures to be taken to eliminate discrimination against women. Reservations to this article have been expressed by Algeria, Egypt, and Libya while Morocco has made a declaration;
*Article 9 which deals with nationality has been limited in its scope by the reservations of Algeria, Egypt, Morocco and Tunisia;
*Articles 15 and 4 which compel all States to accord equal right to men and women in the matter of free movement and right of residence has drawn declarations from Tunisia and Morocco and Algeria;
*Article 16 which raises the issue of discrimination against women within the family is completely rejected by Algeria, Egypt and Morocco which have expressed reservations about all the provisions therein:
Tunisia expressed reservations about subparagraphs (c), (d), (f), (g) and (h) of paragraph one;
Libya has expressed a reservation concerning article 16 paragraph (1) and subparagraphs (c) and (d).
17. The countries of the subregion expressed no reservations about articles rejected by other countries, in particular article 7 concerning the participation of women in public life, article 11 on employment and article 13 on family allowances and credit allocated to women. Apart from Morocco which went on to make a declaration regarding succession to the throne, they all showed their specific differences by focusing on the family and justified their attitude by invoking religion and sharia law (except for Algeria which invokes its family code that happens to be principally derived from sharia law).
18. Since the reservations expressed by States of the subregion limit the rights of women within the family, it can be wondered while this is so. The family has always been considered as the custodian of ethnic values and customs and the traditional distribution of gender roles on which patriarchal society is based. Therefore, in spite of the progress made in promoting the advancement of women, the countries of the subregion are ambivalent about the status of women and this is what can be found reflected in the family codes which discriminate against them and the public law which is egalitarian.
19. The national constitutions which advocate equality among all citizens are sometimes contradicted by laws or even by ministerial bye-laws or circulars which discriminate against women in terms of their legal status. If women cannot be the equals of men in the private domain, they cannot possibly be so in the public domain and cannot exercise their political, economic, cultural and other rights enshrined in most of the constitutions.
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Strategies for removing expressed reservations
20. With regard to the basic issues, such reservations maintain the laws which discriminate against women within the family and keep them from becoming fully integrated in the development process. It would therefore be necessary to pursue strategies that enable the removal of the reservations at least and, in the short-term, those which do not arouse major resistance in terms of religious belief. A case in point is the attribution of the mother's nationality to her children. The limitations here are currently creating many tragic situations. Indeed, given the mobility of citizens of the subregion many mixed marriages have been contracted as a result of which widows, divorcees and abandoned spouses are facing hopeless situations because they cannot transmit their own nationality to their children. Since this issue has nothing to do with religious sanctity, it might be possible to develop more egalitarian legislation in this respect.
21. Some countries are already beginning to do this. In reply to questioning about the reservations expressed about article 9, the representative of Egypt announced to the Committee during its consideration of the second periodic report in February 1990 that discussions were underway to withdraw that reservation. The representative of Tunisia stated during the submission of that country's initial report and subsequent period it report in January 1995 that in spite of the reservations expressed, many legal reforms promoting the advancement of women have been adopted in 1993 in pursuance of the reforms that date back to 1956. These included the transmission of mothers' nationality to their children and other reservations were going to be withdrawn in the near future.
22. Moreover, those provisions that are currently stirring controversy will require the pursuit of strategies that enable religion and culture to play a more positive role in promoting the protection of the basic rights of women. This effort has already begun in some countries and must be sustained and replicated in others. Such gender equality promotion refers specifically to the religious and cultural values which uphold the principles of respect for human life, the equality of all human beings, the need for social order and protection against arbitrary decisions.
23. It is necessary, pending these structural reforms which might take time and given the urgency of the situation to consider other ways of going around these cultural constraints and achieving equality. Such alternatives have always existed in Muslim society and must be made known because of the large number of women who do not know of them. Marriage contracting is a case in point that is recognized under sharia law and enables the bride-to-be to stipulate certain personal and material conditions. One other common practice in some families is to endow the bride, at the time of marriage, with gifts that compensate for the inequality of succession. Innovation can also be made by creating practices suited to modern life.
24. It is also important to educate women about their basic and legal rights and the machinery for protecting those rights in order to make it easier for them to be understood and accepted by the family and community and to claim them in their own right.
25. Governments, NGOs, development agencies and individual men and women should all be involved in this effort aimed at doing away with the inferior legal status of women and correcting an unbalanced and destabilizing social system so as to bring it into line with international norms and principles of universality and indivisibility.
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Bibliography
La non-discrimination à l'égard des femmes entre la Convention de Copenhague et le discours identitaire. Colloque UNESCO-CERP - Tunis 13-16 January 1988.
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