THE LEGAL FRAMEWORK FOR THE REPRODUCTIVE RIGHTS OF WOMEN UNDER INTERNATIONAL HUMAN RIGHTS LAW
3.4 CHAPTER CONCLUSION
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Charter on Human and People‟s Rights on the Rights of Women in Africa. The Bill might have been able to pass, if there had been gender parity in the senate.
In voting for legislators, men vote against women, on the grounds that women are inferior and therefore cannot legislate on their behalf. Women are discriminated against by excluding them from politics through traditional methods based on male- centered interpretation of culture.155 In some situations, husbands find a way of stopping their wife from participating, due to the belief that a woman‟s job is to take care of the home and that participating in such activities will hinder her from performing her role as a mother and wife. This is as a result of wrong perception about in politics they are seen and treated as (prostitutes/ wayward) of easy virtues, cultural rebellions among others.156 Women‟s lack of participation in legislative processes has a great impact on the enforceability of their reproductive health rights.157 Men‟s efforts, if any, to promote these rights will inevitably not be sufficient, because they are not the direct beneficiaries of such rights.
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affect the assessment of a particular state‟s level of compliance as will be analysed in the following chapters with particular reference to Nigeria and South Africa, the focus of the states for this investigation.
The international community is not putting sufficient pressure on states to comply with the provisions of the treaties to which they are party. As noted earlier, the lack of commitment to monitoring compliance with the various treaties is due to several factors. These include financial issues. Given that human rights treaties are not effectively monitored, there is little incentive for ratifying countries to make the costly policy changes that would be necessary to meet their treaty obligations.159 The inaction of monitoring committees has negatively affected state parties‟
attitudes to such treaties. Furthermore, it has been argued that enforcing socio-economic rights is costly. Unlike civil and political rights, these types of rights require governments to put facilities in place to ensure that women enjoy and realise their rights. Most of the states that are signatories to these instruments, are not willing to domesticate them. While it is easy for them to accede to these instruments, they lack the political will to put them into effect in their own countries. As noted earlier, this excuse is not tenable in all cases, because some of the rights that are being breached do not require financial commitment. An example is the various rights that are breached in the private sphere – such as domestic violence and marital rape, among others - which may directly or indirectly impact a woman‟s right to autonomy.
The laws of some countries do not promote the enforcement of international instruments in their domestic courts, unless such instruments are domesticated and form part of their law. South Africa and Nigeria fall into this category. However, various provisions in South Africa‟s Constitution demonstrate her will to protect the reproductive health rights of women. Apart from protecting the reproductive health rights of individuals, the Constitution also promotes gender equality. One could argue that South African constitutional framework makes it relatively easy to domesticate the various international treaties that promote these rights. However, Nigeria is an example of a country that lacks the political will to domesticate international instruments.160 This is because her Constitution does not accommodate the protection of these rights. As noted
159 Oona A. Hathaway “Do human rights treaties make a difference? (2002) 111(8) The Yale Law Journal 1935, 2020.
160 While Nigeria acceded to the CEDAW and the African Protocol on the Rights of Women, these treaties are yet to be domesticated in this country.
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in this chapter – its provisions stand in the way of the domestication of the various instruments that promote these rights.
Most human rights instruments do not allow individuals to directly prosecute infringement of their rights. For instance, Article 5(1) of the African Protocol gives automatic access to only the African Commission, state parties, and African intergovernmental organisations. An individual is only granted access to the court when the state concerned gives permission by accepting the competence of the court at the time of acceding to or ratifying the Protocol or at any time thereafter. It goes without saying that an individual whose rights have been infringed and who is unable to get justice in a domestic court cannot access the African Court on Human and Peoples‟
Rights to adjudicate such matter, if her country has not accepted the jurisdiction of the court in such cases. This is surprising, as in most cases of a breach of human rights, it is the rights of individuals that are breached.
In the same vein, there is inadequate education on the various reproductive health rights of women. Ignorance has caused some women to either overlook infringement of their rights or they are unable to recognise a breach of their rights. This will lead to continual infringement of the rights of such an individual. Furthermore, even when both men and women are aware of these rights – due to various African cultural beliefs, such rights are easily dismissed and some regard them as a “toothless bull dog”, given that they cannot stand the test of time. These and many other factors discussed in later chapters have greatly affected the realisation of the reproductive health rights of women – despite the various international instruments that protect these rights as will be illustrated in the investigation undertaken in Nigeria and South Africa as discussed in the next two chapters.
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