Protection of gender ’s rights

Dr Rosalie K Katsande
 Key concepts critical to the protection and promotion of gender’s human
rights.

THE PUBLIC-PRIVATE DIVIDE

• Human rights law requires State agents to respect,
protect and fulfil human rights standards and rules
established at the international, regional and national
levels.
• Historically, this set of rules have focused on actions
directly attributable to State agents.
• Any wrong committed within the private sphere,
without any direct intervention by State agents, was
not considered a human rights violation.
• It is now recognized that the obligations of States to protect and
fulfil human rights clearly encompass the duty to protect women
from violations committed by third parties, including in the private
sphere, and to take positive steps to fulfil their human rights.
• The Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) covers both public and private acts.
• Article 2 (e) specifically addresses the obligation of States to
address discrimination against women perpetrated by any person,
organization or enterprise,
• article 2 (f) concerns the modification and abolition not only of
discriminatory laws and regulations, but also of customs and
practices.
• article 5 (a) requires States “to modify the
social and cultural patterns of conduct of men
and women, with a view to achieving the
elimination of prejudices and customary and
all other practices which are based on the idea
of the inferiority or the superiority of either of
the sexes or on stereotyped roles for men and
women”.
 NON-DISCRIMINATION AND EQUALITY BETWEEN
WOMEN AND MEN

• Non-discrimination and equality between women and

men are central principles of human rights law.
• Both the International Covenant on Civil and Political
Rights and the International Covenant on Economic,
Social and Cultural Rights prohibit discrimination on the
basis of sex and guarantee women and men equality in
the enjoyment of the rights covered by the Covenants.
• Article 26 of the International Covenant on Civil and
Political Rights also provides for equality before the law
and equal protection of the law.
• The definition of discrimination in the
Convention on the Elimination of All Forms of
Discrimination against Women encompasses a
variety of possible discriminatory actions (any
distinction, exclusion or restriction) having
either the express purpose or the actual effect
of discriminating against women.
• The Convention goes further than other human rights
treaties in also describing in detail the State obligations and
actions to be taken to achieve gender equality in practice.
• It not only requires equality between women and men, but
also prohibits practices that can perpetuate women’s
inequality.
• Substantive gender equality and formal gender equality, as
well as de facto discrimination and de jure discrimination,
are central concepts in the Convention’s equality framework.
 de jure or direct discrimination
• Discrimination and inequality can occur in different ways.
• Discrimination occur through de jure or direct
discriminatory provisions, such as when a law or policy
restricts, prefers or distinguishes between certain
groups, for instance, prohibiting women from driving,
owning land or inheriting property.
• While much progress has been made to eliminate
discriminatory laws, many persist and reforming them
should be a matter of the utmost priority for States to
comply with their human rights obligations.
 de facto or indirect discrimination
• Laws, policies or programmes can also have
detrimental effects on women even though they
appear to be gender-neutral.
• This is known as de facto discrimination.
• For instance, aid programmes which distribute
benefits to the “head of household” may not benefit
women equally since men are often considered the
head of a household.
 Equality of results and substantive equality

• The Committee on the Elimination of Discrimination against

Women has explained that, to achieve actual equality, the
underlying causes of women’s inequality must be addressed; it is
not enough to guarantee identical treatment with men.
• In the Committee’s view, the Convention requires that women
should be given an equal start and also that the State should
create an enabling environment for the empowerment of women
in order to achieve equality of results (also referred to as equality
of outcome).
• Achieving substantive equality requires a change in attitudes, in
gender roles and stereotyping; a fundamental societal change
which will lead to a change in women’s lived realities.
OVERVIEW OF GENDER RELATED
INTERNATIONAL INSTRUMENTS
 International/Universal Declarations

Universal Declaration of Human Rights (1948)

• The Universal Declaration of Human Rights is a global expression of the rights to which all
human beings are entitled.
• It recognizes that the dignity of all people is the foundation of peace and justice; calls for
the respect of human rights of all persons on the basis of the rule of law; and emphasizes
the entitlement of all individuals to the enjoyment of their rights and freedoms “without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status” (art. 2 of UDHR).

• The articles 3 and 7 call for the “security of all persons” and the “right to protection
without discrimination” respectively.

• In Article 21, the Declaration stresses people’s right to participate in the governance of
their country and right of equal access to public service in their country.
Declaration on the Elimination of Violence against Women (1993)

• The Declaration on the Elimination of Violence against Women is based

on the premise that violence against women is an impediment to
peace, equality and development.
• The declaration condemns violence against women and calls on states
to prevent, investigate and punish such acts.
• It further calls on states to provide female victims of violence with
access to mechanisms of redress; include resources for combating
violence against women in government budgets; promote education
aimed at eliminating gender prejudices and any customs which stem
from unequal power relations; and collaborate with women’s groups.
• It also includes a specific focus on training and sensitization of law
enforcement officers and public officials aimed at preventing,
investigating and punishing violence against women.
Beijing Declaration and Platform for Action (1995)

• The Beijing Declaration and Platform for Action declares that “women’s
rights are human rights”.
• It is structured along 12 critical areas of concern and calls for the
advancement and empowerment of women in all spheres.
• Among other things it addresses issues relating to violence against
women, women and conflict, and women’s access to power and decision
making.
• It examines the impact of armed conflict on women, as well as the roles
(both positive and negative) which women play in situations of conflict.
• It advocates a cooperative approach to peace and security which
emphasizes the importance of empowering women both politically and
economically; including in terms of their adequate representation decision
making structures for conflict prevention, resolution and peace-building.
 International Conventions/Treaties

Covenant on Civil and Political Rights (1966)

• The International Covenant on Civil and Political Rights
emphasizes on the equality of all persons before the law
and their entitlement to equal protection and to civil and
political liberties.
• The article 2, paragraph 1 calls States Parties to “undertake
to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the
Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status”.
 Convention on the Elimination of All Forms of
Discrimination against Women
(CEDAW) (1979
• CEDAW defines discrimination against women as any
"distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective
of marital status, on the basis of equality between men and
women, of human rights or fundamental freedoms in the
political, economic, social, cultural, civil, or any other field".
• Articles 7 and 8 specifically call on states to eliminate
discrimination against women in all spheres of political and
public life and to enable women to represent their
governments on an equal basis with men
REGIONAL INSTRUMENTS
African Union Protocol to the African Charter on Human and People’s Rights
on the Rights of Women in Africa (2003)

• The African Union Protocol to the Charter on Human

and People’s Rights on the Rights of Women in Africa
is designed to promote and ensure respect for the
rights of African women.
• It requires African governments to eliminate all
forms of discrimination and violence against women
and to promote equality.
• The Protocol also commits African governments to
include in their national constitutions and other
legislative instruments these fundamental principles
and ensure their effective implementation.
• It obligates governments to integrate a gender
perspective in their policy decisions, legislation,
development plans and activities, and to ensure the
overall well-being of women.
• In Article 9, the Protocol calls for action to promote
participative governance and the equal participation of
women in political and decision-making processes.
• Article 10 calls for measures to ensure the increased
participation of women in structures and processes for
conflict prevention, management and resolution at local,
national, regional, continental and international levels.
 African Union Solemn Declaration on Gender Equality in Africa
(2004)

• The Solemn Declaration on Gender Equality in Africa is an instrument

for promoting gender equality and women's empowerment.
• It strengthens African ownership of the gender equality agenda by
placing gender mainstreaming at the highest political level in Africa.
• In order to ensure the effective monitoring of the Declaration, key issue
areas encapsulated in the Declaration have been classified into six
thematic clusters:
– governance,
– peace and security,
– human rights,
– health,
– education and
– economic empowerment.
• The cluster on governance calls for the application of
the gender parity principle to all the organs of the AU.
• On peace and security, the Declaration calls for the
full and effective participation and representation of
women in peace processes including the prevention
and management of conflicts and post-conflict
reconstruction.
• It specifically calls for the appointment of women as
special envoys and representatives of the African
Union.
 African Union Gender Policy (2008)
• The African Union Gender Policy is a document that summarizes all of the
existing decisions and declarations of the AU and other global commitments
on gender and women’s empowerment as it relates to women in the African
continent.
• The Policy provides a mandate for the operationalization of the AU’s
commitments to gender equality and women’s empowerment at the level of
the AU Commission and all of its organs, regional economic commissions and
member states.
• It specifically calls for the promotion of good governance and rule of law,
which guarantee human rights and rights of women through
– democratic and transparent institutions;
– the adherence to the principle of gender equality between men and
women and boys and girls in enjoying their rights and sharing their
opportunities, benefits and contributions;
– the strict observance of the principle of gender equity which
guarantees fairness and equal treatment for all;
– the compliance to the Parity Principle as enshrined in the
Constitutive Act of the African Union;
– the promotion of the principle of shared responsibility,
accountability and ownership of the commitments made by
the AU;
– the promotion of regional integration as a vehicle for the
advancement of the African continent and its peoples; and
– the application of the principle of subsidiarity to ensure the
efficient and effective implementation of the policy at all
levels.
 KEY GENDER ISSUES

• Despite States’ obligations under international law,

women around the world continue to experience
violations and abuses of their human rights.
• Some of the most harmful and prevalent abuses occur in
the following areas:
– violence against women,
– reproductive health,
– participation in society and government,
– marriage and family,
– labor and employment, and
– property rights.
 Violence against Women

• Violence against women has been defined to include “any act of

gender-based violence that results in, or is likely to result in,
physical, sexual or mental harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life
• Freedom from violence and fear of violence is essential to the full
enjoyment of all human rights. Under international human rights
law, States have an obligation to refrain from committing acts of
violence against women See, e.g.,Maputo Protocol, art 4 
• Violence against women takes many forms, including but not
limited to sexual violence, sexual violence in conflict zones,
genital mutilation, and domestic violence.
 Sexual Violence
• Sexual violence includes rape, enforced
prostitution, and other forms of sexual assault
• States have an obligation to prevent State
actors from committing sexual violence against
women, as well as a duty to adopt laws and
policies to prevent such abuses by private
persons and to ensure the effective
investigation and prosecution of those
responsible
 Domestic Violence
• Domestic violence may be emotional, psychological, physical, or sexual.
• Although this kind of abuse involves relationships between individuals and
generally takes place in the private sphere, States still have a positive
obligation to provide legal mechanisms to protect women from domestic
violence, including the investigation and prosecution of those responsible. 
• Human rights bodies have held that States have positive obligations to
investigate and prosecute domestic violence. In a landmark decision
concerning Brazil, the Inter-American Commission declared that the State
had an affirmative obligation to take all measures to prevent and end
violence against women, including prosecution of domestic violence. IACHR,
Report No. 54/01, Case 12.051, 
• In this regard, the CEDAW Committee has noted that “[w]omen’s human
rights to life and to physical and mental integrity cannot be superseded by
other rights, including the right to property and the right to privacy.” 
Sexual & Reproductive Rights and Health 

• Sexual and reproductive health are critical to a

woman’s overall health and well-being.  States have
an obligation to ensure that all women have access
to comprehensive reproductive health services. See,
e.g., CEDAW Committee, General recommendation
N0.24
• Women and Health  Reproductive health services
should include sexual health information and
education, family planning, maternal healthcare and
STI/HIV testing and treatment
 Abortion

• With the exception of the Maputo Protocol, the core international and regional
human rights treaties do not explicitly address the issue of abortion.
• The Maputo Protocol requires State parties to: …protect the reproductive rights
of women by authorising medical abortion in cases of sexual assault, rape, incest,
and where the continued pregnancy endangers the mental and physical health of
the mother or the life of the mother or the foetus. Maputo Protocol art 14 (2)(c).
• However, even where clear treaty obligations do not exist, the UN Human Rights
Committee and European Court of Human Rights have addressed the issue of
abortion. The European Court of Human Rights has found that States have a
“broad margin of appreciation” in determining when abortions will be permitted
under domestic law.
• However, once a State has chosen to enact legislation allowing access to
abortion, the State has a duty to ensure that the legal framework takes into
account the legitimate interests of all relevant parties
 Education

• States are also obligated to remove barriers

that hinder women’s meaningful participation
by ensuring equal access to education.
• In this regard, CEDAW requires States parties
to ensure that women have the same
conditions and opportunities in schools by
taking action to reduce female student drop-
out rates and other similar problems. CEDAW
art 10
 Political and Civil Participation
• Under international human rights law, women and men have
an equal right to participate in political and civil society. 
• In terms the international Covenant on Civil and Political
Rights art 3 and CEDAW art 7, states have a duty to ensure
that their laws and policies allow women to take part in civil
and political processes such as voting in elections, registering
as a candidate, campaining and running for political office
• Article 7 of CEDAW specifically prohibits discrimination
against women in political and public life and is interpreted
broadly to encompass all areas of political and public life.
• In order to overcome women’s historical underrepresentation
in legislative bodies and political leadership, the Committee on
the Elimination of Discrimination against Women recommends
the use of temporary strategies such as financial assistance
and training, recruitment, and gender equality campaigns to
overcome the existing deficits. (CEDAW Committee, General
Recommendation no 23 para.)
• The Human Rights committee also emphasized that states
parties to the ICCRP must take effective and positive measures
to promote and ensure women’s participation in public affairs
and office, including appropriate affirmative action.
 Marriage & Family

• All persons of legal age have the right to marriage and

a family. CEDAW art 16.
• Women therefore, have the right to entre into a
marriage or start a family, but cannot be compelled to
do either
• Choosing to exercise either of these rights should not
have a detrimental effect on women’s exercise of other
human rights, such as is in the case when national
laws restrict women’s political participation or
property ownership on their marital of family status
 Marriage

• Under international human rights law, a woman has the right to

choose whether, when and whom to marry. See, e.g.,CEDAW art
16. marriage may only be undertaken with the woman’s consent
or it constitute a violation of he rights. 
• Child marriage not only violates CEDAW but also the protections
set forth in the Convention on the Rights of the Child. CEDAW
Committee, General recommendation No 21, Equality in
Marriage and Family Relations paras 36 – 37.
• States may prevent the practice of child marriage by setting a
minimum age of marriage. Art. 6 Maputo Protocol requires
African states to enact legislation that sets the minimum age for
marriage at 18
• DURING a marriage and at its TERMINATION,
women have the same rights as their male
spouses under international human rights
law. See CEDAW arts,9 (1). 11(2)and 16
• This means that both partners in a marriage
must have equal rights and that a woman can
not lose any fundamental rights by marrying or
divorcing. See Maputo Protocol arts6 and 7
 Family & Parental Rights

• The Universal Declaration of Human Rights, in Article 16,

describes the family as a “natural and fundamental group unit
of society [that] is entitled to protection by society and the
State.”
• International human rights law protects the equal rights of
women within a family as well as women’s right to choose
whether or not to have family.
• Should a woman elect to have a family, she is entitled to
choose both the number and the spacing of children. CEDAW
art 16 (1)(e) and Maputo Protocol art. 14
• Therefore, women’s access to family planning and
reproductive health services are closely connected to right to
family
• Today, the term family is understood broadly to include unmarried couples
with children, married couples with children, and single parents. See Human
Rights Committee, General Comment No 28, Equality of Rights between men
and women para 27.
• Regardless of the form that a family takes, the treatment of women in the
family both at law and in private must accord with the principles of equality
and non discrimination. see CEDAW Committee General Comment No 21,
Equality in marriage and family relations para 13.
• CEDAW art 16 requires States parties to ensure that women and men have
the same rights and responsibilities in the family as parents, with regard to
– Guardianship
– Adoption of children
– In choosing a family name and profession and
– In owning and administering property
 Labor & Employment

• Under international human rights law, women have the right to fair wages,
adequate working conditions, and employment without discrimination.
• CEDAW art 11 requires States parties to take “all appropriate measures to
eliminate discrimination against women in the field of employment.” 
• Both men and women are equally entitled to :
– Work
– Social security and paid leave
– Employment opportunities
– Protection of health and safety
– Choice of Profession
– Job security,
– promotions and benefits
– Equal salary and wages
• Additionally, the ICESCR recognizes the right of everyone to the
opportunity to gain his living by work which he freely chooses or
accepts.
•  Art 6 and 7 specifically protects the right to fair and equal wages
sufficient to provide a decent living for workers and their families.
• Regional human rights treaties also include special protections for
pregnant employees, workers with family responsibilities, and new
mothers. See Maputo Protocol, art 13.
• International labour Organizations also regulates the treatment of
women in the workplace through several conventions that
specifically address the fair treatment of women.
 Property

• CEDAW specifically protects the rights of women to administer property

and to enjoy property rights equal to those of a male spouse under
law. CEDAW art 15 and 16.
• The right to property is also recognized in Art 17 of the Universal
Declaration on Human Rights and is included in some Regional Human
Rights Conventions e.g. African Charter on Human and People’s Rights art
14
• Although the right to property is not explicitly recognized in the
International Covenant on Civil and Political Rights, the Human Rights
Committee has interpreted Article 16 (legal personhood) to protect the
capacity of women to own property as an element of the right to
recognition as a person before the law. See Human Rights
Committee, General Comment No. 28, the equality of rights between men
and women para 19