Harmful Traditional Practices Affecting Women in Africa: An Examination of the Legal Framework

AUTHOR: SEUN BRAIMOH

Student (LL.B), Faculty of Law, University of Lagos

INTRODUCTION

There are several human rights instruments which guarantee the rights of all human beings, locally, regionally and internationally. Despite this, Harmful Traditional Practices commonly referred to as HTPs still exist. In the words of Yakin Erturk (UN Special Rapporteur on Violence against Women) at the Human Rights Council Panel Discussion on Female Foeticide and Girl Infanticide, 20^th March 2007; “What we have learned is that violence against women is a universal problem and that one type of violence is intimately linked to another as the root causes are the same; they are all very much related to gender inequality”. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) has by virtue of Article 1, defined HTPs as ‘all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity.’ Harmful practices, in relation to rights of women, are forms of violence which have been committed primarily against women and girls in certain communities and societies for so long that they are now considered, or presented by perpetrators, as part of accepted cultural practice.

HARMFUL TRADITIONAL PRACTICES

The phenomenon of HTPs has gone on for centuries without its recognition as a grave problem. However, it should be recognized that it is another one of the numerous problems to be tackled in the society. The international community no longer views it in light of cultural diversities and looks at it from the perspective that it infringes upon the individual rights of women.

These harmful practices go on right from when the child is in its mother’s womb. The list of HTPs is inconclusive due to the diversity existent among communities. Nevertheless, the common ones include: female infanticide and prenatal sex selection, Female Genital Mutilation (FGM), child marriage, commodification and forced marriages, maltreatment of widows among a host of several others. It is beyond any shadow of doubt that these acts grossly violate the rights of the women and children which have been guaranteed in several Human Rights Instruments.

The preference for the male child over the female child is a form of harmful traditional practice. Before the child is even born, in some societies, the female child is already discriminated against. Prenatal sex selection and female infanticide are results of son preference. Sex Selection is the attempt to control the sex of the offspring to achieve a desired sex. According to the United Nations Population Fund, one reason for sex selection is a preference for sons. Here, the sex of the child is checked and if it turns out to be a female child, the foetus is aborted. The controversial issue of abortion arises owing to the fact that there exists a conflict between two rights – the right to life of the foetus and the right to privacy of the mother. It is agreed in some jurisdictions that abortion infringes upon the right to life of the foetus. In some jurisdictions, abortion is allowed up to a certain stage of the foetal development. In the landmark case of Roe v Wade, 410 U.S. 113, the court held that the right to privacy guaranteed to individuals extended to a woman’s right to an abortion. Nevertheless, it can be agreed upon that female infanticide and sex selection amounts to a gross violation of the right to life of the female child and freedom from discrimination.

HARMFUL TRADITIONAL PRACTICES AND FEMALE GENITAL MUTILATION

Female Genital Mutilation, commonly practiced in some African societies such as Ethiopia, Mali, Somalia among a host of several others has erroneously been referred to as Female circumcision. The term ‘mutilation’ describes how the genitalia is damaged badly through the act. It is the removal of some or all parts of the most sensitive female genital organs. This practice of FGM is not restricted to African societies alone, with countries like Indonesia, Yemen and Malaysia having it as part of their culture. FGM could be in form of clitodectomy (removal of the clitoris); excision (removal of the clitoris and labia minora), infibulation (entire genitalia stitching and narrowing vaginal opening). This is done to control their sexuality and as a transition rite into adulthood. It has been confirmed the FGM has no health benefits, whereas the complications are far-reaching, ranging from urinary problems, infections such as tetanus, haemorrhage, severe pain (as anaesthesia is usually not administered), etc. This horrific process of FGM obviously violates a number of individual rights guaranteed to the female sex, including right to freedom from torture (Article 5 of the African Charter; Article 7 of the ICCPR); right to good health (Article 12 of the ICESCR; Article 16 of the African Charter; Article 12 of the CEDAW), both psychologically and physically; right to liberty and sexuality among a host of several others. FGM also carries a strong message about the subordinate role of the female sex in the society, therefore encouraging discrimination against them.

HARMFUL TRADITIONAL PRACTICES AND CHILD MARRIAGE

Another issue that stems from these traditional practices is the recurring problem of child marriages. The Convention on the Elimination of All Forms of Discrimination against Women in Article 16(2) (b) provides that women have ‘the same right freely to choose a spouse and to enter into marriage only with their free and full consent’. This clearly kicks against child marriage. This convention has been ratified by 189 states including Nigeria. It is therefore a surprise how child marriages are still practiced with impunity. It is interesting to note that even the 1999 Constitution of the Federal Republic of Nigeria implicitly encourages child marriage by virtue of Section 29(4)(b) which describes ‘any woman who is married’ to be of full age.

Forced marriage can be described as a marriage in which one or both parties are married against their will. This is practised across several communities in South Asia and Africa. The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and the Institutions and Practices Similar to Slavery defines “institutions and practices similar to slavery” to include various forms of forced marriages. Child and forced marriages amount to an infringement of a number of rights including right to education, health (as marriage usually results in marital rape and pregnancy for young girls) and equality. These rights are contained in several human rights instruments such as Convention of the Rights of the Child, African Charter on the Rights and Welfare of the Child among a host of several others.

In similar vein, widows, in some Nigerian societies, also fall victim of this degrading and inhumane behaviour. Rather than regarding them as people who have lost a loved one, they are humiliated. In the Eastern part of Nigeria, the widows have their hair violently shaved off and they are forced to drink the water used to wash the corpse of their husbands. This is to prove their innocence in the death of their husbands. They also do not enjoy inheritance rights after the death of their husbands.

CONCLUSION

These HTPs are constantly evolving and new ones are evolving constantly, as seen in the medicalization of Female Genital Mutilation and prenatal infanticide. The development in technology allows for the process of amniocentesis which is a test conducted to determine the health, sex and genetic constitution of the foetus. With this, it is easier to detect whether the foetus is male or female; facilitating prenatal infanticide. The CEDAW Committee in defining violence against women described it as “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental, sexual harm or suffering, threats of such act, coercion and other deprivations of liberty.” It is obvious that the above-mentioned practices violate several rights. They are in themselves discriminatory as they are on women due to the fact that they are women. Despite the existence of several legislations which kick against Harmful Traditional Practices, they still exist in the society. The preferred form of putting an end to these is through enlightenment of the general populace on the dangers of these acts by promoting awareness about the human rights these acts infringe upon.
‘Seun Braimoh is a 300 Level student (LL. B in view) at the University of Lagos. She is a member of the ADR Society and the Mooting Society. She loves good music and good food. She hopes to major in the fields of Commercial Law, Human Rights and Arbitration.