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Conscience Magazine

No Rights Without Remedies

By Winfred Lichuma January 11, 2018

Gender equality is a human right. It refers to equal rights and access to responsibilities and opportunities by men and women, boys and girls and among all people. It does not mean sameness. Instead, it demands that opportunities and services are available for all, taking care of their interests, needs and priorities and recognizing their diversity and intersectionality. Therefore, equality is understood to include both formal equality and substantive equality.

State obligations under international and regional treaties include duties to respect, protect and fulfill human rights upon ratification of the relevant treaties. These obligations require taking positive steps on legal, policy and administrative procedures. So, the era of human rights brings with it obligations, duties and responsibilities for the state. It presents restrictions and limitations on how the state deals with its citizens and provides remedies for violations through judicial or other mechanisms.

Secularism, meanwhile, is a concept that separates religion and the state. It is said to be the best way to guarantee the human rights of freedom of religion and belief. But the relationship among gender equality, religion and secularism is problematic.

Gender roles and their associated responsibilities oppress women and further perpetuate discrimination. It is inevitable that the social construction of particular roles for men and women will permit discriminatory biases that subordinate women to men or place women in inferior positions. The United Nations recognized in a 1998 report from the Secretary General that “every occurrence of a human rights violation has a gender dimension.” You cannot talk about secularism without looking at the gender connotations.

The equality principles of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) continue to receive challenges relating to culture and religion. CEDAW is supposed to promote universal rights for all women, irrespective of their religious beliefs. Yet a review of CEDAW reveals that many Islamic nations have entered reservations on articles dealing with a range of human rights issues. Most notably, nations have lodged reservations with the requirement for the very promotion of gender equality. Islamic nations have also stated reservations with requirements for equality before the law and for elimination of discrimination against women in all matters of marriage and family relations, which includes the rights to decide freely and responsibly the number and spacing of children and to have access to the information, education and means to exercise such rights. The reason cited for these reservations was that they would interfere with a right to practice Sharia law.

Gender inequality in Africa is compounded by both religious beliefs and dogmas and the non-appreciation of women’s rights. Some religious beliefs reinforce discrimination of women. Some African states still have constitutions or legal provisions that discriminate against women based on personal laws which favor men.

Makau wa Mutua, in his paper “Limitation of Religious Rights,” says that religious freedom at the point of contract between Messianic faiths and African religion resulted in a phenomenon akin to cultural genocide. He further argues that in societies such as African ones in which religion is woven into virtually every aspect of life, legitimization of colonial religious beliefs can easily lead to the collapse of social norms and cultural identities.

Barriers in cultural and traditional practices that have prevented women from enjoying their human rights include such harmful cultural practices as early child marriages, female genital mutilation, gender-based violence and sexual abuses, denial of the right to education and limited leadership positions, among others. Customary laws are still recognized in most African countries’ legal frameworks, and courts also take judicial notice of customary laws in dealing with matters of a social nature. Most customary laws and rules have had to adapt to significant change brought by colonial rule and then decolonization. In addition to customary law, most sub-Saharan African countries are now bound by domestic constitutional law, statutory law and common law, as well as international and regional human rights treaties.

Similarly, religious beliefs can be very rigid and have been able to influence constitutions and other legal and policy documents, despite states indicating that they are secular. For example, the constitutions of Kenya and South Africa are known to establish no state religion, though they each indicate in their preamble the supremacy of the almighty God of all creation. They further indicate that they honor ethnic, cultural and religious diversity. They guarantee the freedom of conscience, religion, belief and opinion. Individuals have a right under these constitutions to manifest any religion or belief through worship, practice and teaching, and one may not be denied access to any institution, employment or enjoyment of any right because of the person’s belief or religion.

Yet these constitutions allow for clawing back fundamental human rights. For example, Article 45 of the Kenya’s constitution allows parliament to enact law under a family provisions clause that recognizes any system of personal and family law under any tradition or adhered to by persons professing a particular religion. A law like this effectively removes groups of people, especially Muslims, from otherwise established equality principles in favor of personal laws. There is no doubt that most personal laws are protected by culture and religious beliefs that are discriminatory to women. Customary law and personal law are problematic because of the potential to be discriminatory and are in conflict with human rights norms, especially norms of gender equality.

In the African context, religion has been feminized by more women being active worshippers than men. Some religious teachings require women to be submissive and are a hindrance to the actual emancipation and realization of gender equality. Secularism, through the idolization of a private sphere of human rights and the deflection of some questions on human rights to this sphere, creates new forms of gender inequalities. Gender-based violence is one of many examples of discriminatory matters that disproportionately and deeply impact women but which have remained buried in the private sphere.

Religious beliefs came to violently oppress the cultural and traditional beliefs but were also a new form of oppression for women. Consider the simple right of women to vote. Many secular states did not grant women the right to vote after they gained independence. Gender inequality is borne into patriarchal process, and most inequalities manifest in power relations that privilege men. Sexism is also a major challenge arising from secularism. It is erroneous to believe that secularism removes discrimination of women from the culture. Religious beliefs are private and so are sexual matters.

Gender equality is a fundamental human right, governed by international and regional treaties. It must be addressed using the human rights framework, requiring states themselves to guarantee equal opportunities to men and women, boys and girls. The assumption that gender equality is part of the process of secularism is not true. While it is good to have the separation of religion and the state, the state must be held to account for obligations that arise from the commitment to both international and regional treaties and domestic laws, and it must abolish all laws that discriminate against women, including personal laws in the realm of culture and religion.

Winfred Lichuma

is the chairperson of the National Gender and Equality Commission in Kenya.