Friday, March 19, 2010

Harmful Traditional Practices A Worldwide Problem

– Janet Sallah-Njie

NEWS BANJUL, THE GAMBIA(MB)-The President of the Female Lawyers Association of The Gambia (FLAG), Janet Sallah-Njie has said harmful traditional practices are not only a problem in the Gambia, but a world-wide problem.
Ms Sallah-Njie was speaking on 10 February 2010 at the Paradise Suites Hotel during a sub regional conference on Female Genital Mutilation (FGM).
The one-day event was hosted by the Gambia Committee on Traditional Practices Affecting the Health of Women and Children (GAMCOTRAP).
She presented a 12-page paper on the subject: “Ratified Conventions dealing with harmful traditional practices in The Gambia, and the way forward for law reform”.
According to the lawyer, harmful traditional practices constitute acts of violence against women and are thus violations of women’s human rights and their health.
She added that harmful traditional practices are not only a problem in The Gambia, but that such practices have an international dimension and, therefore, affect people all over the world, especially those within traditional and indigenous communities.
Violence against women, she went on, “in all its forms, is the most pervasive, yet least recognised human rights abuse in the world”.
“It is also a profound health problem, sapping women’s energy, compromising their physical health, and eroding their self-esteem”.
The FLAG president noted that despite its high cost, almost every society in the world has social institutions that legitimize, obscure and deny abuse, adding that this is why the international community has come together to formulate and adopt various legal instruments to address these problems by developing international norms.
Those international instruments, she highlighted, are the Universal Declaration of Human Rights, International Convenant on Civil and Political Rights, International Convenant on Economic, Social and Cultural Rights and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Ms Sallah-Njie further explained that it has been recognised for some time that within general human rights norms, and the international bill of rights, all rights apply to all people, that is, all people are created equal.
These norms were, therefore, of general application and, as such, she went on “did not recognise the gender dimensions of violence and harmful traditional practices”.
Concerning the Convention on the Elimination of All Forms of Discrimination Against Women, she pointed out that the women’s convention does not, however, specifically refer to violence as a form of discrimination or as an obstacle to the equal enjoyment of rights by women.
According to her, many see this as a major weakness in the instrument and, therefore, question its value as forming the normative framework through which to address violence against women.
However, it has fallen to the Committee for the Elimination of Discrimination Against Women to take steps to try to fill this vacuum, and validate the women’s convention as a viable instrument in dealing with violence against women.
Ms Sallah-Njie continued: “To date, the Committee has issued four general recommendations on the subject, two of which were preliminary in nature and dealt with the issues of female circumcision and genital mutilation.
“The third, issued in 1989, urged states parties to include in their reports information on violence and on measures introduced to deal with it, but that has never been the case.
“The failing in the recommendation, however, was seen to be the fact that it did not provide a definition of violence against womenn and did not ask states to take specific measures to deal with it,” she added.
The Universal Declaration on Elimination of Violence Against Women (VAW) in article one, she went on, provided, for the first time, a comprehensive definition of violence against women in an international legal instrument.
It reads: “Any act of gender-based violence that results, or is likely to result in physical, sexual or psychological harm or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in public or private life”.
Furthermore, the Platform for Action and the Beijing Declaration recognised violence against women as an obstacle to the achievement of the objectives of equality, development and peace.
The protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, she said, is indeed innovative as it provides for matters which are not covered in other human rights instruments relating to gender violence.
The protocol reads: “Violence against women means - all acts perpetrated against women which causes or could cause their physical, sexual, psychological, and economic harm, including threats to take such acts, or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war”.
Concerning the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, Ms Sallah-Njie stated that the two instruments provide the legal framework for the protection of the girl child from harmful traditional practices, and other acts of violence against women.
On matters of concern with regards to violence against women and harmful traditional practices, with special emphasis on the laws of The Gambia, the FLAG president said The Gambia has ratified all the international instruments addressing harmful traditional practices and other forms of violence against women.
Despite the ratification of these international protocols, she went on, “there is no specific comprehensive legislation prohibiting such a societal menace, as in the case of some other jurisdictions”.
Notwithstanding the absence specific laws prohibiting harmful traditional practices and violence against women, “there are laws of general application to both men and women and, if applied and implemented strictly and effectively, without any bias and with a bit of judicial activism, may have the effect of addressing the rights of women and to protect them from violence or gender related violence”, she noted.
The Constitution of The Republic of The Gambia, Ms Sallah-Njie stated, specifically provides for women to be accorded full and equal dignity of the person with men as well as having the right to equal treatment with men, including equal opportunities in political, economic and social activities citing Section 78(1) and (2) of the Constitution.
Sections 20 and 21 generally provide for protection from slavery and forced labour and protection from inhumane treatment respectively.
Right to Marriage, Section 27, states “men and women of full page and capacity shall have the right to marry and find a family”, while sub section (2) further provides that “marriage shall be based on the free and full consent of the intended parties”.
Section 29 protects the rights of children and, in particular, sub-section (2) provides that children under the age of Sixteen (16) are entitled to be protected from economic exploitation, and shall not be employed in or requested to perform work that is likely to be hazardous or to interfere without their education or harmful to their health or physical, mental, spiritual, moral or social development”.
Citing Section 33, she said, it provides for protection from discrimination, and is extended to include “gender”.
Section 33 subsection (2) provides that subject to subsection (5), “no law shall make any provision which is discriminatory either of itself or in its effect”.
Dilating on the Children’s Act 2005, she stated that the Act provides for matters relating to the rights and responsibilities of children and, among others, provides for a criminal justice system for children.
This Act, she explained, is quite an innovation as it seeks to protect young girls from all forms of harmful practices.
In particular, Section 19 provides that: “No child shall be subject to any social and cultural practices that affect the welfare, dignity, normal growth and development of the child.
This provision is an innovation as it is not made subject to matters relating to personal law. The presumption, therefore, is that from birth to the age of 18 a child is protected from any form of social or cultural practice that is harmful to his/her health or discriminatory on the grounds of sex or other status.
The question then is: “What is the legal effect of this provision considering the constitutional provision in paragraph (c) and (d) of sub section (5) of section 33?”
What ever the effect is, she went on, the Children’s Act is still an innovation and a big step forward for children, especially young girls who are mostly affected by harmful social and customary practices and discriminatory laws.
This innovation, Ms Sallah-Njie said, should be followed by the enactment of a comprehensive legislation addressing the rights of women, so that when young girls grow up they will continue to enjoy the same legal status and rights.
She continued, “the saving grace is perhaps that by the time a young girl attains the age of 18, she will be well informed and empowered enough not to accept forced marriage, discriminatory practices and all forms of harmful traditional practices, despite the absence of a specific law prohibiting it, and the exceptions contained in Section 33 of the Constitution.
According to the FLAG president, the Women’s Bill, “if and when enacted should indeed be an innovation for the enhancement of women’s rights, and in particular should protect women from these customary and social practices that are likely to affect our health, welfare and well being”.
She explained that the bill is quite comprehensive as it seeks to address all aspects of a woman’s life, particularly those likely to affect her legal status.
She cited Section 6 and 7 of the Bill, which she said seek to protect women from all forms of violence and harmful social and cultural practices.
About the realities of harmful traditional practices in The Gambia, she asserted that there are several customary practices in the country that have the direct effect of perpetrating violence against women and depriving them of their right to human dignity and in most cases adversely affect women’s health.
On the way forward, she said these include adopting best practices from countries with legislation mentioning Senegal, behavioral change strategies to be put in place and concerted efforts for the enactment of the women’s Bill without any further delays.
However, empowerment of women, economically and socially will help them to develop positive self-esteem, to make informed decisions and choices, and not to condone and accept violence in all its forms.
Also, the enactment of legislation prohibiting FGM and all forms of violence against women including harmful traditional practices.
Networking of civil society organisations (CSOs), traditional leaders and institutions, community based organisations (CBOs), professional groups, legislators, the executive, media etc., is also essential, she said, pointing out that “the legislative process is a very long and arduous journey, so it calls for the concerted efforts of all in the process”.

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