women and hr

Citation: 8 U. Botswana L.J. 79 2008

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International Human Rights, Women, Gender

and Culture: Perspectives from Africa

A. Griffiths*

ABSTRACTThis paper explores the issue of how state law accommodates diversityfrom a human rights perspective that focuses on the Convention on theElimination ofAll Forms of Discrimination Against Women (CEDA W).,While it takes the form of a case-study from Botswana, the paper alsoexplores how other African states deal with the issue of human rights,particularly with regard to women's rights and gender issues. In doingso it examines states' engagement with, and responses to, pan-Africanand regional initiatives in this area. This raises questions about theways in which legal plurality is perceived and dealt with, for legalpluralism is a fact of life for many African states, especially thosethat have been subject to colonialism. How states deal with internalpluralism, however, and how they accommodate or resist transnationallaw, in the form of human rights, varies. It is important to have aknowledge of these variations, and how they operate in concrete terms,if a meaningful understanding of the contexts in which human rightsexist in Africa is to be acquired.

1. LEGAL PLURALISMANDITS COLONIAL HERITAGEIN BOTSWANA

When Botswana, formerly the Bechuanaland Protectorate underBritish indirect rule, became independent in 1966, it decided toretain the legal system which it had inherited from its colonialoverseers. This legal system acknowledged different forms oflaw within the Protectorate, namely customary and common law.It defines customary law as being "in relation to any particulartribe or tribal community the customary law of that tribe or tribalcommunity so far as it is not incompatible with the provisionof any written law or contrary to morality, humanity or naturaljustice."'2 In contrast, common law is "any law, whether written

Professor of Law, School of Law, University of Edinburgh.1979 1249 UNTS 13.

2 Section 2 Customary Law [Application and Ascertainment] Act no.51 of 1969.This declaration of incompatibility with respect to morality, humanity or naturaljustice is often referred to as "the repugnancy clause and it features in many Africanstates that were formerly colonial subjects.

HeinOnline -- 8 U. Botswana L.J. 79 2008

80 UNIVERSITY OF BOTSWANA LAW JOURNAL

or unwritten, in force in Botswana, other than customary law".'Thus the Act that acknowledges the co-existence of two formsof law that are defined in opposition to one another, representingsystems which are mutually exclusive.

These provisions raise issues about the recognition ofcustomary law and the general relationship between customarylaws and received, externally based laws. These issues havebeen the subject of debate, not only with regard to Botswanabut also with regard to other jurisdictions, and the complexitiesof interpretation are illustrated by the work of various authors.4

Inherited from the colonial period, such classifications of law,replicated elsewhere in colonial territories, are the product of aparticular approach adopted in respect of these territories, onewhich created a clear divide between Africans and Europeans.This divide was marked by what was initially conceived of asseparate systems of law, one for governing Africans and the otherfor Europeans. These classifications embodied legal pluralism, inthe classic sense, which embraces the "dual system of law" theorypromoted by Hooker,5 for they applied one system of law, thecommon law, to Europeans, and the other, the customary law, toAfricans.

Whether under direct or indirect rule, regulation took theform of law which, as Chanock,6 among others has noted, was thecutting edge of colonialism in its attempt to control and governits colonial subjects while bringing about their transformation andthat of the societies in which they lived. In this context, whileEuropean or Western law was imposed on colonial subjects, itwas also recognised that such law was inappropriate in certaincases, for example, in governing the family life of subrogatedpersons and that regulation of such matters should be left to the

3 Ibid.4 A. Aguda, "Legal Development in Botswana from 1885 to 1966", Botswana Notes

and Records, (1973), pp. 5, 52-63; A.N. Allott, New Essays in African Law, Lon-don, Butterworths, (1970); T. Bennett, Application of Customary Law in SouthernAfrica: The Conflict of Personal Laws, Cape Town, Juta, (1985); C.G.M. Hims-worth, "The Botswana Customary Law Act", Journal of African Law, (1972), pp.16, 4-18; S.A. Roberts, "The Kgatla Marriage: Concepts of Validity," in S. Rob-erts (ed.), Law and the Family in Africa, The Hague: Mouton, 1977, pp. 241-260;A.J.G.M. Sanders, "The Legal Dualism in Lesotho, Botswana and Swaziland: AGeneral Survey", Lesotho Law Journal, (1985), pp. 1-47; A.J.G.M. Sanders, "TheInternal Conflict of Law in Botswana", Botswana Notes and Records, (1985), pp.77-87. z

5 M. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws,Oxford, Oxford University Press (1975).

6 M. Chanock, Law Custom and Social Order: The colonial Experience in Malawiand Zambia, Cambridge, Cambridge University Press (1985), p. 4.

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HUMAN RIGHTS, WOMEN, GENDER AND CULTURE 81

local, customary, or indigenous law of that group. It thereforebecame necessary to study these forms of law to provide fortheir incorporation within the framework of the colonial state.In this way local, customary, or indigenous law was viewed assomething "other" than Western law; as a separate and distinctform of law. Under this model of legal pluralism, the state definesthe parameters that mark the territories of legal systems withinits domain, such as customary and Islamic law, in ways thatdepict them as separate and autonomous spheres. In this context,Hooker7 who surveys plural legal systems in Asia, Africa, andthe Middle East defines legal pluralism as circumstances "in thecontemporary world which have resulted from the transfer ofwhole legal systems across cultural boundaries".

Thus, Common law in the Bechuanaland Protectorate 8

existed to govern the European "self', while customary lawgoverned the African "other". Such a perspective reflected aview of "culture" that separated the European from the Africanin a way that promoted and upheld the concept of difference.Part of this process of differentiation stemmed from a perceptionof Africans as possessing a group identity that was foreign to aEuropean concept of law focused on the individual as the legalsubject who was the bearer of rights9 . Thus formal law engagedin the kind of essentialising of social categories and identitiesand in so doing created the conditions which lead to "conceptualoppositions becoming frames of reference for comprehendingculture", a standpoint that has been strenuously critiqued byFeatherstone l°. The issue becomes yet more complex with therecognition that since independence all Batswana now have

7 M. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws,Oxford, Oxford University Press (1975), p. 9.

8 This was derived from the Roman-Dutch system operating in the Cape, which isnow part of South Africa. This form of law had its roots in the Continental assimi-lation of Roman law at the time of its reception in Europe in the late medieval andearly modern period (Hahlo and Khan 1960). While operative in Botswana today,Roman-Dutch law forms part of the common law together with legislation passedby the National Assembly. For a European lawyer this provides an unusual defini-tion of common law that includes statutory provisions. Such a definition, however,is used to distinguish common from customary law in Botswana.

9 This kind of catgorisation has bedeviled discussions on land reform in Africa seeGriffiths, A. (2006). "Making Gender Visible in Law: Kwena women's Access toPower and Resources," in A. Helium, J. Stewart, S. Sardar Ali and A. Tsanga (eds.),Human Rights, Plural Legalities and Gendered Realities: Paths are Made by Walk-ing. Harare, Zimbabwe: Weaver Press and Southern and Eastern African RegionalCentre for Women's law (SEARCWL) (2006), pp. 139-163.

10 M. Featherstone, Global Culture: Nationalism, Globalization and Modernity, Lon-

don, Sage (1992), p. 2 .



access to and are governed by a range of institutions that spanboth customary and common law." As with other African states,these institutions and laws are governed by the Constitution thatrepresents a key reference point for mediating the relationshipbetween international human rights and domestic law.

2. CEDAW AND THE AFRICAN CHARTER:NEGOTIATING CULTURE

The domestication of human rights not only involved takingaccount of the Universal Declaration of Human Rights (UDHR)adopted by the UN General Assembly Resolution 217A(III) of10 December 1988 but also various International Covenants 12

as well as the Convention on the Elimination of All Forms ofDiscrimination Against Women CEDAW. The CEDAW is viewedas "groundbreaking"' 13 as it created "an international bill of rightsfor women and established the principle of equality through civiland political rights, including sexual and reproductive rights,as well as rights affected by cultural factors. 14 Thus, it firmlyestablished the principle that "women's rights are human rights", 15

something the UDHR had failed to achieve on its own. Promotingequality and non-discrimination for women as part of a humanfights agenda has raised issues that have sparked intense debatesabout human rights in general. These revolve round a fundamental

It is important to note that while common and customary law in the protectorateoperated through different institutions and personnel they were never totally sepa-rate and some Batswana, namely, elites, were able to utilise common law. Indeed asthe papers in Evans, M. and R. Murray (eds.), The African Charter on Human andPeople's Rights: The System in Practice 1986-2000. Cambridge and New York:Cambridge University Press (2002), demonstrate Africans actively engaged withlaw in all forums and did so as much to enhance political maneuvering amongthemselves as with Europeans.

2 The International Covenant on Civil and Political Rights, Adopted by GeneralAssembly Resolution 2200A(XXI) of 16 December 1966 and the InternationalCovenant on Economic, Social and Cultural Rights adopted by General AssemblyResolution 2200A(XXI) of 16 December 1966.

3 C. van der Westhuizen, Gender Instruments in Africa: Critical Perspectives, Fu-ture Strategies, Midrand, Institute for Global Dialogue, (2005), pp. 15 - 2 1.Expert Group Meeting, Achievements, Gaps and Challenges in linking the Imple-mentation of the Beijing Platform for Action and the Millennium Declaration andMillennium Goals, Baku, EGM/BPFA-MD-MGD/2005/REPORT United NationsDivision for the Advancement of Women, Department for Economic and SocialAffairs, (2005), pp.7 . Another important international mechanism for gender is theBeijing Platform for Action 1995 which cannot be dealt with here. For details seeWesthuizen op.cit.J5 I. Okola- Onyango, S. Tamale, "The Personal is Political or Why Women's Rightsare Indeed Human Rights: An African Perspective on International Feminism,"17Human Rights Quarterly, (1995).

DECEMBER 2008



tension between the desire to establish universal rights on the onehand, and on the other an awareness of cultural differences, thatseems to negate the possibility of finding common ground onwhich to base such rights.

This tension has found expression through discussionspromoting universalist or relativist perspectives on the issue.' 6

In these discussions "culture" has been invoked as a strategictool for supporting or rejecting these positions. Thus, somescholars focus on the ethnocentric character of the UDHR thatderives from "an idealist European political philosophy". 7

Armstrong et al. and Rwezaura et al. have drawn attention to itsEurocentric character, while others have been critical of the typeof jurisprudence that underpins international human rights on thegrounds that it is premised on a mixture of law and modernisationtheory and liberal Western feminist jurisprudence, that fails totake adequate account of the voices, views and needs of womenof colour.18 In these debates distinctions have been drawn betweensocial universes that are depicted and analysed in terms of binaryoppositions representing the "self' or "other" of Western theory,represented by labels such as East/West, coloniser/colonised, and

16 A. A. AI-Na'im, "Problems of Universal Cultural Legitimacy for Human Rights",

in A.A. Al - Na'im and F. Deng (eds.), Human Rights in Africa: Cross CulturalPerspectives, Washington DC, Brookings Institution, (1990); A.A. AI-Na'im, "Hu-man Rights in Cross Cultural Perspectives: A Quest for Consensus, Philadelphia,University of Pennsylvania Press, (1992); E. Brems, "Enemies or Allies? Feminismand Cultural Relativism as Dissident Voices in Human Rights Discourse", 19 Hu-man Rights Quarterly, (1997), pp. 136 - 164; M. Chanock, "Culture and HumanRights: Orientalism, Occidentalizing and Authenticity", in M. Madami (ed.), Be-yond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rightsand Culture, New York, St. Martin's Press, (2000), pp 1 5 - 35; K. Engel, "FromSkepticism to Embrace: Human Rights and the American Anthropological Asso-ciation from 1947 - 1999", 23 (3) Human Rights Quarterly, pp. 536 - 559; J.K.Cowan, M.B.Dembour, R.A. Wilson (eds), Culture and Rights: AnthropologicalPerspectives, Cambridge, Cambridge University Press, (2001).

17 R.A. Wilson (ed.), Human Rights, Culture and Context: Anthropological Perspec-tives, London and Chicago, Pluto Press, (1997), pp. 4.

18 A. Armstrong et al., Uncovering Reality: Excavating Women's Rights in African

Family Law, Harare, WLSA Working Paper No. 7, (1993); Rwazeura et al., "Part-ing the Long Grass: Revealing and Reconceptualising the African Family", 35Journal of Legal Pluralism and Unofficial Law, (1995), pp. 25 - 73; M.C. Lam,"Fleeing Foreign Feminism" 19 Signs, (1994), pp. 865 - 893; A.O.Ilumoka, "Afri-can Women's Economic, Social and Cultural Rights - Towards a Relevant Theoryand Practice" in R, Cook (ed.), Human Rights of Women, National and Interna-tional Perspectives, Philadelphia, University of Pennsylvania Press, (1994), pp.320; V. Nesiah, "Towards a Feminist Internationality: A critique of U.S FeministLegal Scholarship" 16 Harvard Women's Law Journal, (1993), pp. 189 - 210; B.Hooks, Taking Back: Thinking Feminist, Thinking Black, Boston, Sheba FeministPublishers, (1989); J. Okola- Onyango, & S. Tamale, "The Personal is Political orWhy Women's Rights are Indeed Human Rights: An African Perspective on Inter-national Feminism," 117 Human Rights Quarterly, (1995).



colonial/postcolonial. Scholars, such as Banda 19 and Chanock ° ,have drawn attention to the different ways in which culture hasbeen deployed in an African context, either on the part of somefeminists who challenge the universalism of human rights on thebasis that it represents an idealised, northern male perspective onrights that are ethnocentric, or on the part of self-interested maleelites from the south, who are anxious to promote African cultureas being inimical to a rights based discourse of the north centredon the individual.

Whatever the position, it is important to move beyonddiscussions about the foundation of human rights, for as An-Na'im and Hammond2 remind us, "the specific origin of an ideaor institute does not mean it cannot achieve universal acceptance."As Chanock22 notes; "the claim that 'rights' are cultural doesnot displace the desirability of 'rights' being universal". Thus,human rights should not just be seen as the product of Westernpolitical philosophy and experiences23 but rather the historicalbasis of the modern concept of human rights should be broadenedto encompass a feeling of ownership. In this way the Western"authorship" of human rights would be rejected in favour ofa view of these rights as representing a common standard ofachievement for all humanity (which is the essence of theiruniversality). As An-Na'im and Hammond24 observe, there willalways be a tension between the relative and the universal so thatthe real issue becomes, "how can one acknowledge and addressnational priorities as well as cultural and contextual factors withoutallowing that to be the means for repudiating the principles of

,9 F. Banda, "The End of 'Culture'? African Women and Human Rights", in J. Mur-risson et. At. (eds.), Remaking Law in Africa: Transitionalism, Persons and Rights,Edinburgh, Centre for African Studies, University of Edinburgh, (2004), pp. 115- 136.

20 M. Chanock, "Human Rights and Cultural Branding: Who Speaks Up and How",in A. A. An Na'im (ed.) Cultural Transformation and Human Rights in Africa,London and New York, Zed Press, (2002), pp. 38 - 67.

21 A. A. An-Na'im and J. Hammond, "Cultural Transformation and Human Rights inAfrican Societies", in A. A. An-Na'im (ed.) Cultural Transformation and HumanRights in Africa, London and New York, Zed Press, (2002), p. 16

22 M. Chanock ,"Human Rights and Cultural Branding: Who Speaks Up and How",in A. A. An Na'im (ed.) Cultural Transformation and Human Rights in Africa,London and New York, Zed Press, (2002), pp. 43.

23 M. Mandami, "The Social Basis of Constitutionalism in Africa", 28 Journal ofModern African Studies, (1990), pp. 359 - 374; U. Baxi, The Future of HumanRights, Oxford, New york and Delhi, Oxford University Press (2002).

24 A. A. An-Na'im and J. Hammond, "Cultural Transformation and Human Rights inAfrican Societies", in A. A. An-Na'im (ed.) Cultural Transformation and HumanRights in Africa, London and New York, Zed Press, (2002), pp. 17-18.

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universality?" In addressing this issue they25 take the view thatthis tension can be mediated "once it is realised that upholdingthe universality of human rights as a highly desirable objectivedoes not mean that it should be taken as either an accomplishedfact or a static or immutable phenomenon." Thus the paradigmfor human rights is not static but open for "further discussion andclarification in the African context"26

What is essential to realising these rights is the "importanceof internally produced conceptions, priorities and implementationof human rights"27 . African states have engaged in this processadopting, among their many initiatives, the African Charter onHuman and People's Rights;28 the Southern African DevelopmentCommunity's (SADC) Gender and Development Declaration1997 and its Addendum on Violence 1998; the Optional Protocolto CEDAW 1999; and the Protocol to the African Charter onHuman and Peoples' Rights Relating to the Rights of Women inAfrica 2003.

3. CONTEXTUALISING LAW: BOTSWANA AND THECASE OF UNITY DOW

I would now like to discuss the issue of legal pluralism and humanrights in Botswana in the context of a landmark case that wasbrought before the High Court, that of Unity Dow v The AttorneyGeneral.2 9 This was a case that involved discrimination on thebasis of sex and its effect on the citizenship rights of children.It was brought by Unity Dow, a prominent lawyer who wasactive in pursuing women's rights and who was familiar with theprovisions of international conventions including CEDAW.30 Thelatter specifically contains guarantees of equality and freedom

25 A. A. An-Na'im and J. Hammond, "Cultural Transformation and Human Rights inAfrican Societies", in A. A. An-Na'im (ed.) Cultural Transformation and HumanRights in Africa, London and New York, Zed Press, (2002), p. 20.


27 A. A. An-Na'im (ed.) Cultural Transformation and Human Rights in Africa, Lon-

don and New York, Zed Press, (2002), p. 6.28 26 June 1981, OAU Doc CAB/LEG/6713 REV.5. For details of how this operates

in practice see Evans, M. and R. Murray (eds.), The African Charter on Human andPeople's Rights: The System in Practice 1986-2000. Cambridge and New York:Cambridge University Press (2002).

29 High Court Misca. No. 124/90.30 Indeed she had participated in the drafting of the 1967 Declaration which preceded

CEDAW.



from discrimination by the state and by private actors in all areasof public and private life.3 In doing so "it codifies the existinggender-specific and general human rights instruments containingguarantees of freedom of discrimination on the grounds of sex,though it adds some new provisions ' 32 . In doing so it strengthensthose provisions of the African Charter that recognise theimportance of women's rights. These are: Article 18(3) thatprohibits discrimination against women in the context of thefamily; Article 2 dealing with non-discrimination; and Article 3that upholds equal protection.

Aware of these provisions, Unity Dow challenged thegovernment of Botswana on the basis that changes made to theCitizenship Act 1984 violated some of her fundamental rightsand freedoms that were guaranteed under the bill of rights inthe Constitution. The basis of her argument was that she wasprejudiced by the provisions of this Act because, being female,she was prevented from passing citizenship to her children, andthat this denied her the equal protection of the law and the rightnot to be discriminated against on the basis of her sex (guaranteedunder sections 3 and 15 of the Constitution) when compared tosimilarly situated male citizens. The case arose out of changesmade by the government to the Citizenship Act in 1984 to restrictthe categories of persons who could become citizens throughbirth or descent. Section 4 of the Act provided that children bornto Batswana women married to foreigners no longer had the rightto be citizens of Botswana by virtue of their birth there. This wasreinforced by section 5, which dealt with citizenship by descentand which prevented such women from passing on citizenshipto their children. These provisions did not apply, however, toBatswana men who married non-citizens, whose children wereentitled to full citizenship. Nor did they apply to the children ofunmarried Batswana women whose fathers were non-citizens.3

31 By 2005 179 states had signed this Convention see Westhuizen op. cit. at p. 15.32 A. Byrnes, "Human Rights Instruments Relating Specifically to Women with Par-

ticular Emphasis on the Convention on the Elimination of All Forms of Discrinmi-nation against Women," in A. Brynes et. al. (eds.), Advancing the Human Rightsof Women: Using International Human Rights Standards in Domestic Litigation,London, Centre for Comparative and Public Law, the University of Hong Kong forthe Commonwealth Secretariat, (1997), p. 43.

31 A similar situation exists in Egypt where, despite the fact that women have nominalequality under Article 40 of Egypt's constitution, women nonetheless find them-selves with unequal rights with regard to passing on their nationality to their chil-dren if they marry foreigners under Citizenship Law No 26 (1975). An amendmentmade by President Mubarak in May 2003 allows Egyptian women married to for-eigners to pass their nationality to their children under certain limited conditions.However, the new law continues to prohibit these children from joining the mili

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Unity Dow, who was a prominent lawyer in the capital city (and isnow a High Court judge), challenged these provisions on the basisthat they contravened section 3 of the Constitution of Botswanawhich confers rights and freedoms on individuals in Botswana aswell as section 15 which provides for non-discrimination.34

In appealing to the Constitution in this way, Dow wasraising, for the first time in Botswana, the issue of human rightsand discrimination on the basis of sex in relation to domesticlaw. This was the first time in the history of the country that awoman had challenged the government in court. At the time thatshe brought her action she was a leading member of the feministorganisation Emang Basadi ("Stand Up Women") and a participantin the Women and Law in Southern Africa Project who marrieda US citizen in 1984. Unity had three children, one born in 1979when she was unmarried and two born after her marriage to PeterDow. As a result her first child was entitled to citizenship whileher subsequent children who were born in Botswana after 1984were not, even although they had lived there since birth.

The case raised issues that are pertinent elsewhere in Africa.These concern attempts to reconcile women's human rights withgroup claims to cultural life, particularly where such claims resultin the violation of women's rights. So, for example, the AfricanCharter, while promoting women's rights in certain contexts(outlined earlier), also provides for respect for positive Africanvalues in Article 29(7). This raises questions about how thesevalues are to be perceived and the extent to which they can, if ever,take precedence over women's human rights. Ndashe35 points outthat while "Article 18 attempts to give effect to women's humanrights in a family context", nonetheless "uncertainty exists overwhether this clause promotes women's rights to equality or whetherit could serve as a basis for the violation of women's rights iftraditional African values, which are widely believed to be biasedagainst women, were to be upheld". While Banda asserts3 6 thatcommentators have taken the view "that 'positive African cultural

tary, the police and certain government posts.34 For further details see Unity Dow v. The Attorney General, High Court Misca. No.

124/90, or [1991] LRC (Const) 623 and The Attorney General v. Unity Dow, courtof Appeal, Civil Appeal No. 4/91 or 1992 LRC (Const) 574.

15 S. Ndashe, "Using the International Human Rights Instruments to Re - EnvisionGender in Customary Law" in C. van der Westhuizen, Gender Instruments in Af-rica: Critical Perspectives, Future Strategies, Midrand, Institute for Global Dia-logue, (2005), pp.75 - 95.

36 F. Banda, Women, Law and Human Rights: An African Perspective, Oxford and

Portland, Oregon, Hart Publishing (2005), p. 251.



values' have to be read as being compatible with the rest of theCharter, especially its provisions on non-discrimination" this hasnot prevented African elites from resisting such an interpretationby resorting, as Chanock 37 has demonstrated, to the language of"culture."

It wasjust such an argument that the government of Botswanaused to reject Dow's case. In its response to Dow's challenge, thestate appealed to culture to justify its position by arguing thatsociety in Botswana upholds a patrilineal structure that is maleoriented and that this had been taken into account when theConstitution was enacted. This meant that section 15 which dealswith discrimination expressly declined to cover sex. This was sobecause the whole fabric of the customary law in Botswana isbased on patrilineal society which is gender-discriminatory inits nature. The argument was made that if such discriminationwere to be outlawed then customary law itself would cease toexist.38 In other words, the government was invoking a right to aculture argument - that is, to the continued existence of Tswanacustomary law which is patriarchal in nature - in order to deflectan individual human rights claim.

In resorting to culture, the government was attempting tomobilise one view of society in Botswana, while Unity Dowsupported by national and international feminist groups promotedanother; one that upheld the concept of non-discrimination andequal treatment for women.3 9 At the end of the day the High Courtfound in favour of the petitioner on the grounds that it would beoffensive to modem thinking and the spirit of the Constitutionto find that the Constitution was deliberately framed to permitdiscrimination on the grounds of sex. In reaching this decision thejudge was heavily influenced by the provisions of the CEDAWalthough Botswana was not a signatory to the Convention at that

'7 M. Chanock, "Human Rights and Cultural Branding: Who Speaks Up and How",in A. A. An Na'im (ed.) Cultural Transformation and Human Rights in Africa,London and New York, Zed Press (2002).

3 It is interesting to note that while the Citizenship Act is based on Common Law,nonetheless the government considered its effects in the context of the nationallegal system as a whole, including customary law. It is also interesting to note thatwhile denial of citizenship falls within the realm of public law, the discriminationwhich it upheld was based on a conception of gendered roles within the family, thusexposing the fallacy of separating out the 'public' domain from that of the 'private'.For a discussion of how these two domains intersect to affect women's lives inBotswana. See Griffiths, A., In the Shadow of Marriage: Gender and Justice in anAfrican Community. Chicago, University of Chicago Press (1997).

9 Note the Amicus Brief lodged with the High Court on behalf of Dow by the UrbanMorgan Institute for Human Rights, University of Cincinnati College of Law.

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time. Botswana had however, ratified the African Charter andthe court was able to point to this engagement with human rightsas indicating a commitment to the principles of equal protectionbefore the law and non-discrimination on the basis of sex.

When the state appealed, the Court of Appeal reaffirmedthe judgment of the High Court rejecting the argument that theneed to respect and preserve tradition and custom justified thedeliberately gender-discriminatory citizenship legislation. Onceagain the court placed great reliance on provisions of internationalhuman rights instruments upholding non-discrimination, equalprotection of the law, and the elimination of discriminationagainst women.40 As a result of this case the governmentreluctantly amended the Citizenship Act to provide that childrenacquire citizenship from either parent, by birth if they are born inBotswana, and by descent if born outside the country.41 It also,subsequently, ratified CEDAW.42

3.1 The broader dimensions of the Dow case: Ongoingdevelopments

The case raises interesting issues about the extent to whichconstitutional guarantees of freedom from discrimination includesex and gender. In considering this issue it is necessary toconsider the position of customary law 43 and whether or not itis subject to such non-discrimination provisions or given specialdispensation. Where the latter applies it is important to consider

For discussion of the case see Molokomme A., "Discriminatory Citizenship Lawsin Botswana: Emang Basadi," in Women, Law and Development: International andHuman Rights Watch Women's Rights Project (ed.), Women's Human Rights Stepby Step. Washington DC: Women, Law and Development International (1997);and Dow, U., "National Implementation of International Law: The Dow case," inUnited Nations (ed.), Bringing International Human Rights Law Home. New York:United Nations. (1997) and for discussion of how women in Botswana find them-selves differentially situated with regard to a "rights" discourse see Griffiths, A.,"Gendering Culture: Towards a Plural Perspective on Kwena Women's Rights,"pp. 102-126, in J. Cowan, M.B. Dembour and R.A. Wilson (eds.), Culture andRights. Cambridge and New York: Cambridge University Press (2001).

41 Citizenship (Amendment) Act 1995.42 It became a party to the Convention on 13 August 1996.41 For a discussion of where customary law is not detrimental to women see Griffiths

(2001) op cit. pp. 115-117); Helium, A. (1999). Women's Human Rights and LegalPluralism in Africa: Mixed Norms and Identities in Infertility Management in Zim-babwe. Oslo and Harare, Tano Aschehoug and Mond Books (1999) and Nyamu-Musembi, C., "Are Local Norms and Practices Fences or Pathways? The Exampleof Women's Property Rights," in A.A. An-Na'im (ed.), Cultural Transformationand Human Rights in Africa, London and New York: Zed Books (2002), pp. 126-150.



the conditions under which such special dispensation arises whichare often attached to matters of personal law.' In the Unity Dowcase the judiciary interpreted the Constitution of Botswana in away which was compatible with international human rights law.Since this case, there has been a subsequent ruling in, StudentRepresentative Council of Molepolole College of Education vAttorney General,45 where a policy excluding pregnant femalestudents from College for a year was held to be discriminatory.Positive judicial interpretation of this kind has been adoptedin cases elsewhere on the continent.46 Such approaches pointto the importance of exploring the primary processes throughwhich international human rights law interacts with domesticconstitutional law in order to analyse the main effects that theseprocesses have on gender jurisprudence in domestic law.47

Since the Unity Dow case, the Botswana Centre for HumanRights, Ditshwanelo, was established in 1993 and there havebeen further developments with regard to women's human rightsand gender on the continent. It is impossible to detail them all48

here but there are several that should be acknowledged. Thefirst development is the SADC4 9 Declaration on Gender andDevelopment 1997. This regional bloc of states represents aworking group that covers fourteen countries built on Article 6of the SADC treaty that prohibits discrimination on the basis ofsex, by expressly stating that gender equality is a fundamentalright and by making provision for mainstreaming genderconcerns within the organisation's work.5" Thus SADC countries

4 For a typology of models that exist see Banda F., 'The End of "Culture"? AfricanWomen and Human Rights', pp. 115-136, in J. Murison, A. Griffiths and K. King(eds.), Remaking Law in Africa: Transnationalism, Persons and Rights. Edinburgh:Centre for Africa Studies, University of Edinburgh (2004), pp. 115-136.

'5 Civil Appeal No 13 of 1994 [1995] (3)LRC 447.46 For another example see the South African case of Bhe v Magistrate Khayletisha

and Others CCT 49/03.4' R. Rubio - Marin, & M. I Morgan, "Constitutional Domestication of International

Gender Norms: Categorization, Illustrations and reflections from the Nearside ofthe Bridge," in K.K. Knop (ed.), Gender and Human Rights, Oxford and New York,Oxford University Press (2004), pp. 113 - 152.

48 For example, the Dakar Platform for Action 1994 and the Constitutive Act of theAfrican Union (AU) that replaced the Organisation of African Unity (OAU) thathas the promotion of gender equality as one of its founding principles.

9 This consists of 14 countries, Angola, Botswana, Democratic Republic of Congo,Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Seychelles,Swaziland, Zambia, and Zimbabwe.

50 For a more detailed account of SADC and the Declaration see Banda F., Women,Law and Human Rights: An African Perspective. Oxford and Portland, Oregon,Hart Publishing (2005), pp. 53-55.

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undertake to focus on women's interests in socio-economic,cultural and civil, and political fields. The importance of law inthis context is highlighted by the Declaration's requirement thatstates must engage in "repealing and reforming all law, amendingconstitutions and changing social practices which still subjectwomen to discrimination, and enacting empowering gender-sensitive laws. 51

The second development is the Optional Protocol toCEDAW52 to which seventy six states have become memberswhich enables women to file complaints directly with theCEDAW committee. It expands the Committee's functions toallow it to receive communications and to launch an inquiry ifit has reason to believe that grave or systematic violations ofwomen's rights are going on within a state. However, the inquiryprocedure cannot be invoked if a state has opted out. While manystates have signed up to CEDAW, many of them have doneso with reservations, and fewer of them have signed up to theOptional Protocol 53 making its remit more limited. As Banda 4

has noted, "the issue of reservations is significant, for it impactsdisproportionately on women's rights, particularly those in thefamily". The third development is the Protocol to the AfricanCharter on Human and People's rights on the Rights of Womenin Africa.5 This came about because of dissatisfaction with theAfrican Commission on Human and People's Rights, which hasthe task of monitoring the African Charter, for its failure to makestates accountable for gender-based discrimination occurringwithin their countries. For this reason it was considered necessaryto draft a separate instrument for women.56 Innovations made bythe Protocol include its substantive provisions on reproductiverights57 and its prohibition of harmful cultural practices, includingfemale genital mutilation, 8 It also attempts to deal with the issueof "African cultural values" and their interpretation by stating

"' 1997 Declaration H(iv).52 Adopted 6th October 1999.

5 C. van der Westhuizen, Gender Instruments in Africa: Critical Perspectives, Fu-ture Strategies, Midrand, Institute for Global Dialogue (2005), p. 15 .

4 F. Banda, Women, Law and Human Rights: An African Perspective, Oxford andPortland, Oregon, Hart Publishing (2005), p. 65.

15 This was finally adopted at the African Union meeting hosted by Mozambique inMaputo in July 2003.

56 For details see Banda (2005) op.cit pp.66-82.

57 Article 14.

11 Article 5.



clearly that the concept of culture is to derive from principles ofequality and democracy requiring women to be consulted aboutthe content of cultural norms that operate in their societies. 9

4. IMPORTANCE OF THE ROLE OF LAW IN THESEPROCESSES

These developments point to the fact that working with humanrights and gender issues is an ongoing process. This is one that isintimately connected to whether or not states have signed up toand ratified international instruments and Conventions on humanrights, the extent to which they have entered reservations optingout of certain provisions, the extent to which they have legislatedto implement human rights within their jurisdictions, the extentto which these rights have become domesticated through judicialinterpretation and whether or not there are effective mechanismsfor their enforcement. It is not possible to detail the multipleways in which law becomes intertwined in these processes here.However, dissatisfaction with the way in which women's humanrights are being addressed and implemented by African stateshas lead one scholar to inquire whether " the instruments worthit?". 60

Focusing on the "rights" aspects of law has created problemsfor some feminist scholars61 who have critiqued a rights-basedapproach to law on the grounds that it underpins a system ofadversarial relations in which it is the rights of those who havepower and privilege that prevail over the competing claims ofothers in ways which fail to take account of an individual'srelationships with and responsibilities towards other people. Foras Chanock 62 notes, processes of legalisation and juridicalisation

19 Preamble and article 17.60 Quote from Cathi Albertyn, Head of the Centre for Applied Legal Studies at the

University of Witwatersrand, South Africa quoted by Westhuizen (2005) op. cit. atp. 20;

61 N. Lacey, "From Individual to Group?", in B Hepple and E Szyszczak (eds.), Dis-crimination: The Limits of Law, London, Mansell (1992), pp 106 - 107; D. Rhode,"Feminist Perspectives on Legal Ideology", in J Mitchell and A. Oakley (eds),What Is Feminism,?, Oxford, Blackwell (1986); F. Beveridge and S. Mullally, "In-ternational Human Rights and Body Politics ", in I Bridgeman and S. Millns (eds.),Law and Body Politics: Regulating the Female Body, Aldershot, Bartmouth (1995),pp. 241 - 244; S. Palmer, "Critical Perspectives on Women's Rights: The EuropeanConvention on Human Rights and Fundamental Freedoms", in A Bottomely (ed.),Feminist Perspectives on the Foundational Subjects of Law, London, Cavendish(1996), pp. 225 - 226.

62 M. Chanock, "Human Rights and Cultural Branding: Who Speaks and How", in A.A. An Na'im (ed.) Cultural Transformation and Human Rights in Africa, London

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of rights "have the effect of displacing other ways of talking aboutrights". An-Na'im also raises questions about the value of "rightsdiscourse" as a vehicle for local people's demands for satisfactionof their economic, social and cultural claims. Nonetheless, hefirmly takes the view that "experience clearly indicates that bothrural and urban populations need to articulate their demandsfor individual and collective justice in 'rights language', forthose demands to be recognized and satisfied." This is becauseit is necessary to take account of "the concrete realities of theeconomic and social policy of nation-states which are inescapablylinked to international relations and trade, financial institutions,regional and international security systems, and so forth". Suchconditions render a rights approach "essential for dealing withthis complex web of local and global dimensions of life today. '"63

Ways can be found to reconstruct rights in manners that takeaccount of some of the feminist critiques outlined above. Lacey, 64

for example, provides potential avenues for exploration when itcomes to dealing with the normative reconstruction of rights froma feminist perspective.

5. AFRICAN COURT OF HUMAN AND PEOPLE'SRIGHTS

One development that may provide enhanced protection for humanrights is the creation of the African Court of Human and People'sRights (ACHPR). It was established in 1998 by a Protocol 65

concluded in 1981 in Banjul, Gambia, under the aegis of theOrganisation of African Unity, now the African Union. This cameabout twelve years after the African Charter came into force. TheProtocol establishing the ACHPR, however, did not come intoforce until 1 January 2004 upon its ratification by fifteen memberstates. The Court is located in Arusha, Tanzania. Originally it wasto be one of two separate courts for the reconstituted organisation.However, in July 2004 the AU determined that the ACHPRshould be merged with the African Court of Justice. The draft

and New York, Zed Press (2002), p. 61.63 A. A. An-Na'im (ed.) Cultural Transformation and Human Rights in Africa, Lon-

don and New York, Zed Press (2002), p. 7.64 N. Lacey, "Feminist Legal Theory and the Rights of Women," in K. K. Knop (ed),

Gender and Human Rights, Oxford and New York, Oxford University Press(2004), pp. 47 - 53.

65 Protocol to the African Charter on Human and People's Rights on the Establishedof an African Court on Human and People's Rights.



instrument establishing the merged court has not yet, howevercome into existence. The process has been hampered by the non-ratification of the Protocol on the Court of Justice. Nonetheless theAU appointed eleven judges to the ACHPR on 22 January, 200666The judges come from Algeria, Burkina Faso, Burundi, Ghana,Lesotho, Libya, Mali, Rwanda, Senegal and South Africa, andUganda and they are normally elected for six-year terms. They canbe re-elected once. The President and Vice-President of the courtare elected to two-year terms. The AU is now considering a draftof a new protocol that will make the Court into the African Courtof Justice and Human Rights. According to Sheila Keetharuth,Chairperson of the Coalition for an Effective African Court thatrepresents a loose coalition of national and international NGO's,national human rights bodies and individuals, who reported on the16 April 2008, "the discussion of the merged Court is presentingmany challenges. We do not yet know what the merged Courtwill look like.... [But] for now we need to focus on advocatingfor the Court to begin functioning soon".67

The Court marks an important step forward with respect topromoting human rights in Africa for many reasons. Perhaps themost important of these is the fact that the Protocol provides 68

that actions may be brought before the Court on the basis of anyinstrument, including international human rights treaties, whichhave been ratified by the State party in question. Not only that,but the Court can apply as sources of law any relevant humanrights instrument ratified by the State in question, in additionto the African charter.69 What this means is that the ACHPRcould become the judicial arm of a whole range of human rightsagreements concluded under the auspices of the United Nations 70

or of any other relevant legal instrument codifying human rights.7'This is extremely valuable because very few of those agreementscontain judicial mechanisms that ensure their implementation.As a result of the Protocol, several African states could end upwith a dispute settlement and implementation control system

6 Information downloaded from African International Courts and Tribunals on http://www.aict-ctia.org/courts-conti/achpr cases.html on 1/10/08.

67 Quote taken from NGO's and the African Court on Human and People's Rights- Social Edge, downloaded from http://www.socialedge.org/blogs/alyson-in-af-rica/archive/2008/04/16/ngos-and the af... on 10/10/08.

6 Article 3(1).69 Article 7.70 E.g. the International Covenant on Civil and Political Rights.

7' Such as those adopted by the International Labour Organization, and even environ-mental treaties.

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that is stronger and that has more "teeth" than the one ordinarilyprovided for in treaties generally.

This marks a potentially new level of accountability forAfrican states. For previously, the protection of rights listed in theAfrican Charter rested solely with the African Commission, a quasi-judicial body, modelled on the UN Human Rights Committee,with no binding powers. Under the Charter, the Commission'sfunctions are limited to examining state reports, consideringcommunications alleging violations, and interpreting the Charterat the request of a state party, the AU or any other organisationrecognised by the AU. Under this system the Commission hada poor record of fostering enforcement and compliance withthe Charter. An additional strength of the ACHPR concerns thestanding of individuals and non-governmental organizations(NGO's). Unlike any other judicial body, advisory opinions canbe asked for by not only member states and AU organs, but by anyAfrican NGO that has been recognised by the AU, provided that atthe time of ratifying of the Protocol or thereafter, the State at issuehas made a declaration accepting the jurisdiction of the Court tohear such cases. Moreover, in the areas of contentious jurisdiction,individuals can also bring cases if the above declaration has beenmade by the state at issue.72 This represents a step forward fromthe Inter-American Court, that is one of the three regional humanrights bodies that have been established, where individuals haveno standing at all, but is still far from the progressive attitude ofthe third body, the European Court of Human Rights. It remains tobe seen once the Court is up and running how effective it will bein promoting human rights in Africa. The burden of expectationon the Court is very high due to frustration about the weaknessesof domestic courts and the African Commission. However, forthe Court to make an impact, it is essential that its effectiveoperationalisation is not unduly delayed, that the Commissionstarts referring cases to the Court without delay, that individualsmake use of the limited direct access possibilities, and that theCourt's advisory jurisdiction is explored.

6. WHY LAW IS NOT ENOUGH: LOOKING BEYONDTHE STATE AND MOBILISING PARTICIPATION

However, there are limits to what law can achieve with respect to

a human rights agenda, especially given the position of the state in

72 Article 5 of the Protocol.



Africa. This has come about for a number of reasons that includesits colonial inheritance. What became post-independence Africanstates were invented by European powers in the last quarter ofthe nineteenth century with the result that unlike elsewhere inthe world where the state was the product of an evolutionaryprocess resulting in the creation of ajudicial/political community,the African state preceded the evolution of a common nationalidentity or values binding together the communities co-existingwithin the same national boundaries.

This has resulted in a situation where the state lacks domesticlegitimacy. Chanock 73 draws our attention to the fact that thedemand for "rights" arises "in the case of most of Africa, not asthe ideological driving force of an internal political revolution,but as a measure of quality control for the governance of the kind

" 74of state approved by dominant outside economic processes".Thus, there is a need to understand "the role of the post colonialstate in Africa in its broader regional and global setting 75. The roleof development aid as promoted by the international communitycannot be ignored "given the ways in which it has linked aid to theadoption of structural adjustment programmes, and more recentlyto the promotion of good governance, transparency, accountabilityand the rule of law." What has arisen in many cases has been anabuse of law and legal process that An-Na' im 76 has dubbed "grossand frequent".

Part of the problem lies in the paradox that the very institutionthat is entrusted with regulating and protecting human rights, thestate, very often turns out to be the worst abuser. Thus while lawis important in upholding the enforcement of these human rightsand for developing "operational definitions of each human rightand the mediation of competing claims of rights77 this assumesthat the necessary legal apparatus is in place, namely "a certain

73 M. Chanock, Culture and Human Rights: Orientalism, Occidentalising andAuthenticity,"in M. Madami (ed.), Beyond Rights Talk and Culture Talk: Com-parative Essays on the Politics of Rights and Culture, New York, St. Martins Press(2000), pp. 29 - 30.

7 For a discussion of the impact that this has on countries, see the World Commissionon the Social Dimension of Gloablization (2004).

7 A. A. An-Na'im and J. Hammond, "Cultural Transformation and Human Rights inAfrican Societies", in A. A. An-Na'im (ed.) Cultural Transformation and HumanRights in Africa, London and New York, Zed Press (2002), p. 28.

76 A. A. An-Na'im (ed.) Cultural Transformation and Human Rights in Africa, Lon-don and New York, Zed Press, (2002), p. 2.


DECEMBER 2008



conception of the rule of law, independence of the judiciary andexecutive compliance with judicial determinations.78 Even wherestates are willing to engage with these issues they may be unableto do so due to a lack of resources. This failure to promote andenforce human rights may be caused by forced displacement,citizenship, migration and nationality, and the proliferation ofineffectual regional institutions. The challenge results from doubtsabout the effectiveness of contemporary international law, whichdespite its rhetoric of equality of state and non-discrimination,masks the reality of an inequality that imperial international lawopenly relished and promoted.

Despite all the efforts that have been made to promotehuman rights and gender issues there is still a great gap betweenactivists' aspirations and reality. For while the UN and AfricanUnion set strategic plans for themselves "the mechanisms formonitoring the implementation of such plans are weak79. This islargely due to "a lack of implementation at the national level)". 80

In their work on the African Gender and Development Index,Ruzvidzo and Tiagha81 report that "half of Africa's populationwas living on less than a dollar a day, with the majority of thesepeople being women" and that "women constituted about 80%of the poor" on the continent. They note that despite attempts tomake policies gender sensitive "implementation and as a result,outcomes are not".82

Does this mean that the project should be abandoned? Whileacknowledging the problems Banda83 urges us not to lose sight ofthe fact that law "is a powerful tool that can stimulate change".In her view, the recognition of women's rights at an institutionallevel represents "an important gain upon which women need to


7 B. Barn, "Forward", in C. van der Westhuizen (ed.), Gender Instruments in Af-rica: Critical Perspectives, Future Strategies, Midrand, South Africa, Institute forGlobal Dialogue, (2005) p. 9.

0 C. van der Westhuizen, Gender Instruments in Africa: Critical Perspectives, Fu-

ture Strategies, Midrand, Institute for Global Dialogue, (2005), p. 1 5 .

8' T. Ruzvidzo and H. N. Tiagha, "The African Gender and Development Index: AnAfrican Response to the Decade Review of the Beijing Platform for Action", in C.Van der Westhuizen (ed.), Gender Instruments in Africa: Critical Perspectives,Future Strategies. Midrand, South Africa (2005), pp. 29.

82 Ibid.

81 F. Banda, "The End of "Culture"? African Women and Human Rights", in J. Muri-son, A. Griffiths, and K. King (eds.), Remaking Law in Africa: Transnationlaism,Persons and Rights, Edinburgh: Centre for Africa Studies, University of Edinburgh(2004), pp. 124 .



build by holding states accountable for the violations of theirrights".84 Thus, she argues that whatever states' motivations maybe in adopting a human rights agenda "this new found genderconsciousness is to be welcomed and used by women to press forreal change within their own communities".85What this highlightsis the need for local engagement and for a dynamism that initiates,not from the top down, but from below.86

One way of achieving this is, to quote 87 to "do more withless". This means adopting a more proactive approach, one that ismore centred on people and that "involves a consensus-buildingprocess around the normative content and implementationmechanisms of human rights".88 Thus the strategy becomes oneof empowering local actors to protect their own rights thoughgreater investment in local constituencies and resources. Thiswould have the advantage of reducing the untenable reality ofhuman rights dependency that is based on local the population'slack of means for calling their own governments to account forhuman rights abuses at the domestic level. It would also mitigatean over-reliance on international pressure brought to bear on suchgovernments by the international community that make the rightsof local populations dependent on external actors. Although criticalof regional and international attempts to implement human rightsin Africa 89 does not reject them as either irrelevant or useless butcalls for a more inclusive and integrated "dynamic and dialecticalsynergy of local, regional, continental and global efforts".

Understanding local contexts is important because theyshow that "neither the fate of transnational law nor its impactupon local legal constellations can be understood without givingattention to the plural legal character of such local situations". 9°

Such contexts supply a specificity that provide concrete data foranalysis that may be used to show how women do not form a

84 Ibid. at p. 1 16.

11 Ibid. at p. 117.86 F. Butegwa, "Mediating Culture and Human Rights in Favour of Land Rights for

Women in Africa: A Framework for Community-Level Action, in A.A. An-Na'im(ed.) Cultural Transformation and Human Rights in Africa, London and New York,Zed Press, (2002).

97 A.A An-Na'im (ed.), Cultural Transformation and Human Rights in Africa. Lon-don and New York, Zed Press (2002).

8 Ibid. at p. 16.89 Ibid. at p. 110.

9o F. Benda-Beckman and K. and A. Griffiths (eds.), Mobile People, Mobile Law:Expanding Legal Relations in a Contracting World, Aldershot United Kingdomand Burlington United States of America, Ashgate Publishing (2005), p. 7.

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homogenous group and to "assess the efficacy of internationallyinitiated law reform in improving the position of differentgroups of women in different life situations".9 The work ofNyamu-Musembi92 provides valuable data on how local normsand practices produce and redefine ideas about human rights bydrawing on the practices of administrative and informal socialinstitutions at the local level. In providing examples from herresearch in Kenya on gender relations and access to and controlover property, such as land, she identifies those features that arefavourable to the realisation of gender equality and those thatare detrimental. In tracking the effects of legislation in Uganda,Bikaako and Ssenkumba show how, despite statutory amendmentsthat legally improve women's rights to inherit land, such changeshave had very little impact because inheritance is dependant uponmale mediation that allows customary law (that does not allowwomen to inherit land) to continue to dominate. Although womenhave benefited from a shift in custom that means that customaryinheritance law "is no longer automatic" the extent to whichchange is occurring "is still minimal"9 3

Chanock94 points to the important role that local andinternational NGO's and associated social movements play instruggling to promote rights and in producing "a rights cultureoutside the state". He notes that it is "from these locations, ratherthan from governments that the formulations which expressthe struggle for social justice and rights in terms compatiblewith local culture may come". 95 There has certainly been aproliferation of NGO's in recent years accompanying a shiftin policy from providing direct aid to governments on the partof multilateral agencies and donor states with a correspondingredirection of investment and development funds to private sector

A. Griffiths, "Gendering Culture, Towards a Plural Perspective on Kwena Wom-en's Rights," in J. Cowan, M.B. Dembour & R.A Wilson (eds.), Culture and Rights,Cambridge and New York, Cambridge University Press (2001), p. 10 6 .

92 C. Nyamu-Musembi, "Are Local Norms and Practices Fences or Pathways? The

example of Women's Property Rights" in A. A. An-Na'im (ed.), Cultural Transfor-mation and Human Rights in Africa, London and New York, Zed Books, (2002).

93 W. Bikaako and J. Ssenkumba, "Gender, Land and Rights: Contemporary Con-testations in Law, Policy and Practice in Uganda," in L. Muthoni Wanyeki (ed.),Women and Land in Africa: Culture, Religion and Realizing Women's Rights, Lon-don and Cape Town, Zed Books and David Phillip Publishers (2003), p. 251.

14 M. Chanock, "Human Rights and Cultural Branding: Who Speaks and How," in A.A. An Na'im (ed.), Cultural Transformation and Human Rights in Africa, Londonand New York, Zed Press (2002), p. 60.

91 M. Chanock "Human Rights and Cultural Branding: Who Speaks and How", in A.A. An Na'im (ed.) Cultural Transforma ';on and Human Rights in Africa, Londonand New York, Zed Press, (2002), ?_ 60.



organisations. These "represent a diverse array of organisationsfrom multimillion-dollar organisations that operate on severalcontinents to agencies that represent commercial interests, grassroots alliances, or village based religious or cultural groups."96

Despite their variations, it is clear that whatever their particularcomposition, "local and transnational NGOs may also operateon a global level, forming alliances with private companies orother NGOs to facilitate the exchange of ideas and information,mediation between commercial interests and humanitarianconcerns, and lobbying organisations like the UN on issues suchas women's empowerment and environmental preservation".97 Assuch they represent a potentially important bridge between localand transnational interests and groups that can be used to bringpressure to bear on states with regard to human rights issues. TheUnity Dow case provides an example of just such an alliancebetween the local women's organisation, Emang Basadi, inBotswana and other international feminist and legal organisationswho supported Unity Dow in her case against the government ofBotswana.

98

Much of what has been achieved to date with regard towomen's human rights and gender issues has come about throughthe efforts of activists who have mobilised to produce the DakarPlatform for Action (1994), the Beijing Platform for Action(1995) and the Millennium Development Goals (2000). Women'sNGOs have been particularly active in this respect. Accordingto Banda99 the "depth and reach of the African Protocol onWomen's Rights, and arguably its radical vision, can be seen tobe the result of NGO impact". She also acknowledges that muchof the drafting and coming into force of the SADC Declaration onGender and Development 1997 and its Addendum on Violence"can be attributed to lobbying by the vibrant and strong women'smovement in the southern African region"."°° One regional

96 A. Griffiths, "Legal Pluralism", in R. Banakar and M. Travers (eds.), An Intro-duction to Law and Social Theory, Oxford and Portland Oregon, Hart Publishing(2002) p.299.

97 L. Leve and L Karim, "Introduction to Privatising the State: Ethnography of De-velopment, Transnational Capital and NGO's" 24 (1) PoLAR, (2001), p. 53.

98 These included not only the Minnesota-based International Women's Rights ActionWatch who were assisted by the Morgan Institute for Human Rights, and who filedthe amicus brief referred to earlier, but also the Women and Law in Southern Af-rica group, a regional NGO. Those working on Dow's behalf also received fundingfrom the Swedish Development Agency (SIDA).

9 F. Banda, Women, Law and Human Rights: An African Perspective, Oxford andPortland, Oregon, Hart Publishing, (2005), p. 287.

100 Ibid.

DECEMBER 2008



working group that has been especially active in this area is theWomen and Law in Southern Africa Group (WLSA) that havecarried out regional research, drafted legislation and raised publicawareness about women's human rights. Not only have theseNGO's mobilized participation, drafted policies and instrumentsand cajoled or acted as a pressure group in getting governmentsto adopt and implement a human rights agenda, but a number ofthem have also taken on the task of representing victims of humanrights violations before the African Commission.

Groups such as the Women's Environment and DevelopmentGroup (WEDA) continue to press for progress, drawing attentionto governments' failures with respect to national implementationof global commitments (WEDO 2005). As part of the processthe Economic Commission for Africa (ECA) has developed theAfrica Gender and Development Index, a tool "to measure theperformance of all governments in addressing gender equalityand the empowerment of women".' 0 ' It also helps "to streamlinereporting on various instruments on gender equality and women'sempowerment since the Beijing Platform for Action (BPFA),CEDAW, and the millennium development goals (MDG's)".10 2

It is clear that despite the gains made with respect to women'shuman rights and gender issues in Africa there is still a long way togo. In assessing the role of the state in this process it is essential totake account of the ways in which it intersects with development,transnational capital, civil society and non-governmental actors.Nation-states can no longer be treated as discrete legal entitiesthat can be studied in isolation either internally or externally. 103

As this paper has demonstrated what is required "is anotherperspective on the relationship between local, regional, national,and global domains and their relationship with law"."° This isone that must move beyond an ossified notion of culture andthe binaries that it underwrites. This means moving beyondtraditional approaches to legal pluralism of the type advocated by

101 T. Ruzvidzo and H. N. Tiagha, "The African Gender and Development Index: An

African Response to the Decade Review of the Beijing Platform for Action", in C.Van der Westhuizen (ed.), Gender Instruments in Africa: Critical Perspectives,Future Strategies. Midrand, South Africa (2005), p. 27.

102 Ibid.103 F. Benda-Beckman and K. and A. Griffiths (eds.), Mobile People, Mobile Law:

Expanding Legal Relations in a Contracting World, Aldershot United Kingdomand Burlington United States of America, Ashgate Publishing (2005).

0 A. Griffiths, "Legal Pluralism", in R. Banakar and M. Travers (eds.), An Intro-

duction to Law and Social Theory, Oxford and Portland Oregon, Hart Publishing(2002) p. 3 00 .


102 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2008

Hooker'05 to engaging with a pluralism that recognises that "statelaw is not the only source of power".10 6 Such an approach entailsa "reterritorialisation" of the grid of power; one that takes accountof the horizontal and relational nature of contemporary processesthat stream across space in its attempts to articulate the complexways in which power and authority come together to constructmeaning at multiple levels including the recognition of diversityand its limits.

105 M. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws,

Oxford, Oxford University Press, (1975).106 F. Benda-Beckman and K. and A. Griffiths (eds.), Mobile People, Mobile Law:

Expanding Legal Relations in a Contracting World, Aldershot United Kingdomand Burlington United States of America, Ashgate Publishing, (2005), p. 14.


women and hr

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