Saturday, 6 January 2007

The veil over the rule of law

‘It is not wrong for women to reject laws which concern them, if these laws have been made by men without their consultation.’

UNIFEM Director Noeleen Heyzer recently quoted Montaigne at a session of the UN Security Council in discussions about the newly appointed Peace-Building Commission (October 26 2006)

A concerted effort is now being made by African women lawyers and human rights activists to highlight how current law discriminates against women and what changes are necessary, at national and regional level, to ensure their participation in peacekeeping operations and democratic processes.

At the beginning of November the ECOWAS Gender and Development Centre held a regional workshop in Banjul to discuss a unified strategy. The participants came up with a plan of action to lobby their own governments ahead of the next African Heads of State Summit, to be held in Burkina Faso in December 2006.

In The Gambia, as in other parts of Africa, women live under four levels of law.

International law emphasises the equal rights of women and there are a number of instruments which do this, notably the UN Convention for the Elimination of Discrimination against Women (CEDAW 1993). The Additional Protocol (on the rights of women) to the African Charter on Human and People’s Rights was adopted by the African Union in Maputo 2003. This goes further than CEDAW as regards issues such as ‘harmful practices’ (female genital mutilation) and violence against women.

Many, though not all, individual African countries have ratified such conventions and protocols. But this doesn’t mean that the rights of women are assured because, in order to bring cases of discrimination to court, changes in national legislation often need to be made.

There is resistance to this among (predominantly) male legislators in African parliaments. ‘They don’t understand that international law takes precedence over national law,’ I was told by a woman lawyer, ‘they need “sensitisation” about the law.’ But when the AU Summit was held in Libya and then Sudan, the women’s lobby was even prevented from attending: their visa applications were rejected.

National law is enshrined in the Constitution of the state. The Constitution itself often includes reference to the equal rights of men and women, as in Uganda, The Gambia and Mali, but this doesn’t always translate into equality for women. Why not?

The Malian association of women lawyers has already been lobbying for a 30% quota for women in elections. This is legal under CEDAW article 4 Temporary measures to achieve equality and there is nothing in the Malian Constitution to prohibit it. But when the proposition was recently put to Parliament by President Touré (who supports the principle), it was rejected.

In The Gambia, where women make up a majority of the active electorate, this is explained as follows: ‘Traditionally, society views men as natural leaders, while women are supposed to give support to their men in the background.’

Islamic Law Mali is a secular state but, as in The Gambia, women don’t always make recourse to the high court because they are also subject to Islamic (sharia) Law - which is administered by religious leaders. In The Gambia this is applicable by the Mohammedan Law (Recognition) Act, as part of the Constitution.

Under this Act, the general provision affording protection from discrimination for women is excluded from those laws which make provision for adoption, marriage, divorce, devolution of property, death or other matters of ‘personal law’ - which particularly affect women.

Under sharia law, men are allowed to take another wife (up to four) without the consent or even the knowledge of his first wife. He can divorce any of his wives without their consent or knowledge by saying ‘I divorce thee’ three times in front of the Imam. The inverse, of course, does not apply. The rules for adultery follow the same pattern and in some countries, like Nigeria, can have fatal consequences for women.

Women do have some rights under sharia law during marriage and the divorce process, but are usually unaware of them. The proposed, and still contested, Women’s Bill has sought to codify these rights and entitlements in The Gambia. In all events, these rights revolve around ‘consent’ and there are many pressures on a Muslim woman to say ‘yes’ when she really means ’no’.

Customary law
A key factor in the abuse of Islamic law is that people’s understanding of it is influenced by what is know as customary practice. In the Gambia this is also recognised in the Constitution under The Law of England Application Act, which provides that ‘customary law is part of the laws of The Gambia in so far as it concerns members of the community to which it applies.’ In other words - over 90% of the population.

Customary practice underpins the traditionally accepted roles and relationships between men and women in African society. This is where the practice of FGM comes from, the dowry system whereby young girls are sold into marriage as a transaction between two families and the practice of living with (read belonging to) her in-laws. Even in Uganda, which has made real progress in the political participation of women, these customs still inhibit their personal freedoms.

Another example of customary law is the treatment of widows. If a man dies, his wife is not entitled to his property unless and until she agrees to be inherited by his family. ‘This means that under customary law, a woman is (again) treated as a chattel.’ The fact that this practice is upheld by the Church of Nigeria (the largest Christian community in the world) as well as by the sharia court, is evidence that it predates any religious law.

In short, as the President of FEMNET puts it: ‘the big problem in Africa is that a woman doesn’t belong to herself.’

The public domain

This has a particular bearing on women’s (non) existence in the public sphere. Under customary practice, women do not speak out in the public domain, it is ‘not their place.’ The social pressure for a woman to ‘keep her place’ (that is, indoors) comes from both men and other women. The exception applies to older women who are awarded respect and given a public voice ‘providing they have behaved themselves properly as young women’ (as I am reliably informed).

So when male African parliamentarians argue that the 30% quota (or whatever) in ‘unconstitutional’ and goes against ‘custom’ what they are really saying is that women should still be subject to age-old customary law, while men continue to enjoy the rights of modern legislation.

They simply don’t want women to share the influence and autonomy that comes with participation in the public domain.

No wonder that some men don’t want to take the Maputo Protocol on board, since it proposes that women have the right to a ‘positive cultural context’ rather than the ‘culture that has been wrongly and selfishly used by men to perpetuate serious crime against women.’

Among those enlightened and educated African men and women who do want to see the system change, customary law is widely recognised as the barrier to women’s advancement in African society, barring them from an equal role in decision-making and peace-building processes.


That veiled question

Africa’s hot and dusty, it’s still in the process of modernisation and often the internet server doesn’t work, so we might expect that there to be a few glitches in respect to the law here.

But, in fact, the same concentric system of law applies in the UK. International laws are ratified but not legislated for, European human rights law is disregarded and Muslim women are still subject to aspects of sharia and customary law even though these might not be officially recognised – because, as in The Gambia, the Sex Discrimination Act 1975 prohibits discrimination against women in the public domain (employment, education) but does not touch on ‘personal law’.

When Jack Straw made his now infamous statement about the veil, he is said to have offended ‘Muslim opinion’. This is, unsurprisingly, voiced by mainstream male Muslim religious leaders, speaking, of course, with their face uncovered. The reason the British government has to be seen to be listening to their views is because of the increasing threat of terrorism.

As always in any conflict, women’s bodies are caught in the crossfire between warring male factions.

This whole mad max chain of events – the Bush Doctrine, the rise in Islamic fundamentalism and related terrorist acts, Afghanistan, Iraq, Israel-Palestine, Hamas, Israel-Lebanon – has adversely affected the status of women across the Arab world.

Yes, and down into the Muslim populations of sub-Saharan Africa, where, for example, ambassadors of fundamentalism from Pakistan have been busy since 9/11 encouraging Touareg leaders in the north of Mali to take their girls out of school and their women out of politics – and to take up the practice of FGM which was never part of their traditional culture.

The same forces have been at work on the Mandinka population of the Gambia. So it’s not unreasonable to suggest that a similar process has been happening in the UK. In addition, when any minority group feels beleaguered in society, the response is to retrench, defend, protect and this invariably impacts on the freedom of its women.

Yet, while we rightly invoke international law to condemn the actions of the US (not that it makes any difference) we are content to let British Muslim women continue to live under customary law – because that is where the veil comes from, not the Q’uran.

Only liberal intellectuals could seriously suggest that Muslim women have a free choice about wearing the veil. The choice they make, within their community, is between bowing to social pressure and suffering social ostracism, at best, psychological or physical punishment at worst, as many studies in the UK have documented.

Young women taking the veil as a political protest in the UK might seem to be the exception, but in reality they are still confusing customary practice with Muslim identity.

No woman who truly belongs to herself (who is the subject of her own world and not an object in others’) would choose to make herself invisible (commit an act of self-negation) when she goes out in public.

As my strong-minded Muslim colleague in Banjul puts it: ‘All women are beautiful. Why should we hide it?’

She has just learned that her husband of 12 years has acquired a second wife, he wasn’t happy with his first marriage because my friend is ‘too independent.’ Already the in-laws are closing in, trying to pressure her into not making a fuss, not to file for divorce in the high court and not to fight for custody of their five children. It’s tough, she’s devastated, but at the same time she says: ‘I don’t accept that anything a man says or does should make me feel bad about myself.’

This is not a philosophical debate about ‘dislocation’ and the ‘other’ – it’s a question about the fundamental rights of women to walk and talk and work freely. Do we accept that in UK society, as elsewhere in the world, Muslim women enjoy fewer rights than Muslim men or Western women? I know that, in the end, ‘only yourself can set you free’ (Bob Marley) - but a little help from the rest of society wouldn’t come amiss.

The veil over the public participation of Muslim women contravenes the internationally agreed Convention for the Elimination of Discrimination against Women, so why don’t we legislate against it?

Who knows? If Jack Straw had stuck to his guns, one of his female constituents may someday have been able to turn round to her in-laws and explain sweetly: ‘Under British law I am required to speak face to face, as an equal, to my MP.’ And if she was very lucky, she might get away with it.

November 2006

1 comment:

James Fletcher Baxter said...

Consider:
The missing element in every human 'solution' is
an accurate definition of the creature.

The way we define 'human' determines our view of self,
others, relationships, institutions, life, and future. Many
problems in human experience are the result of false
and inaccurate definitions of humankind premised
in man-made religions and humanistic philosophies.

Human knowledge is a fraction of the whole universe.
The balance is a vast void of human ignorance. Human
reason cannot fully function in such a void; thus, the
intellect can rise no higher than the criteria by which it
perceives and measures values.

Humanism makes man his own standard of measure.
However, as with all measuring systems, a standard
must be greater than the value measured. Based on
preponderant ignorance and an egocentric carnal
nature, humanism demotes reason to the simpleton
task of excuse-making in behalf of the rule of appe-
tites, desires, feelings, emotions, and glands.

Because man, hobbled in an ego-centric predicament,
cannot invent criteria greater than himself, the humanist
lacks a predictive capability. Without instinct or trans-
cendent criteria, humanism cannot evaluate options with
foresight and vision for progression and survival. Lack-
ing foresight, man is blind to potential consequence and
is unwittingly committed to mediocrity, collectivism,
averages, and regression - and worse. Humanism is an
unworthy worship.

The void of human ignorance can easily be filled with
a functional faith while not-so-patiently awaiting the
foot-dragging growth of human knowledge and behav-
ior. Faith, initiated by the Creator and revealed and
validated in His Word, the Bible, brings a transcend-
ent standard to man the choice-maker. Other philo-
sophies and religions are man-made, humanism, and
thereby lack what only the Bible has:

1.Transcendent Criteria and
2.Fulfilled Prophetic Validation.

The vision of faith in God and His Word is survival
equipment for today and the future. Only the Creator,
who made us in His own image, is qualified to define
us accurately.

Human is earth's Choicemaker. Psalm 25:12 He is by
nature and nature's God a creature of Choice - and of
Criteria. Psalm 119:30,173 His unique and definitive
characteristic is, and of Right ought to be, the natural
foundation of his environments, institutions, and re-
spectful relations to his fellow-man. Thus, he is orien-
ted to a Freedom whose roots are in the Order of the
universe.

- from The HUMAN PARADIGM