Vol. 16 No.2 (February 2006), pp.156-159
WOMEN, LAW AND HUMAN RIGHTS: AN AFRICAN PERSPECTIVE, by Fareda Banda. Oxford: Hart Publishing, 2005. 320pp. Hardback. £25.00/$50.00. ISBN: 1841131288.
Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email: l.westnewman [at] auckland.ac.nz
This is a long and comprehensive book whose range defies effective reduction to a short review essay. I cannot hope to do justice to the detailed scholarship and commitment that created it. What I can do, however, is to give a sense of its richness that will, I hope, lure you to read it. Too little is known in the west about Africa in general and African women in particular. Those of us who involve ourselves in the discourse and practice of human rights law have particular need to know more about the possibilities and impossibilities of transplanting such thinking to places generally regarded as ‘other’ to the western world. There is also value in subjecting our own assumptions to the thoughtful gaze of those whose world taken for granted is quite different from our own.
Fareda Banda describes her project, and the experiences that prompted her engagement with these fraught and complex issues, in an introductory chapter which also provides brief conceptual clarifications of some key terms and ideas through which her discussion is framed. Her intention is to examine the position of women in Africa and to discover whether law might have a part to play in their struggle for empowerment and if so, what form that might take. Banda grew up in Zimbabwe and is a Lecturer in Law at the School of Oriental and African Studies within London University. Both these experiences have, through personal experiences which are described in the preface, contributed significantly to her involvement with the subject of this book. The African Law section of the School of Oriental and African Studies, where I was a student in the early 1970s, has a long association with many of the states which, pre-independence, comprised the African arm of the British Empire (on which, it was said, the sun never set – such was its geographical diversity and extent). That legacy of European imperialism still colors the legal systems of many African states. The gender inequalities which are Banda’s particular concern, although probably exacerbated by European influence, may also predate it. Here, as in many other colonized societies, debate continues over the extent of pre-European contact gender inequality which characterized local social arrangements and traditions.
In presenting an explicitly feminist analysis of the problems faced by African women in the present day world, Banda sets her discussion on a solid base of clearly described feminist legal theory which supports and offers coherence to the explication and argument. Feminist legal theorists have been particularly effective in uncovering and demystifying the many ways in which social customs and cultural practices – including those [*157] grounded in religion – isolate women in the ‘home’ (or private sphere) and undermine their capacity to function as effective agents in the public world of civil society. In this case the particular focus is on hindrances to their ability to acquire and manage property and thus achieve economic independence from male tutelage. It is also on the social ills attendant on this inability that afflict so many women, including those of Africa – sexual violence, reproductive wrongs, female genital cutting, poverty and more.
The feminist theory employed in this book is the creation of what the author describes as ‘non-western feminists’ and those who write from a non-western perspective – a framing which allows the inclusion of, for example, African American and postcolonial theorists who work in Anglo-American contexts. The terminology she uses is of ‘north’ and ‘south’ feminists rather than the perhaps more commonly used ‘the west’ and ‘the rest’ distinction; this is a useful and generally more appropriate terminology (though just slightly confusing for those of us who live under ‘first world’ social conditions within the southern hemisphere). For readers not well acquainted with this strand of feminist thought, Banda’s outline of its important critiques of western feminism in relation to the women and concerns which are the focus of this book are a useful corrective to the lens of Eurocentric (in the sense of white western) feminism. For example, she points out that “feminism’s roots in western gender politics” creates difficulties for those who seek to use a feminist analysis outside the societies where it began. Questions, drawing from the work of Oyewumi (1997), are noted about “the suitability of transposing western critiques of patriarchy on to non-western societies” (p.9). Amadiume’s twenty year old critique of ‘victim imperialism’ – the white feminist practice of “using the experiences of black women to highlight gender discrimination” – is reiterated. Banda also points out the more recent assertion by south feminists of an important socio-economic dimension to the differences between north and south feminism in that northern economic dominance has a significant negative impact on the lives of women in the south (p.8). The detailed discussion that follows needs to be read in the light of these important reminders.
Chapter Two describes the evolution of legal systems after colonization, the different positions on the nature of customary law developed after this time, the issue of cultural difference and equal treatment for women as provided for in the constitutions of three states and some case law interpretations of those constitutional provisions in relation to inheritance laws that discriminate against women. In effect this sets the scene for the reader by giving practical examples of the shape women’s antidiscrimination rights issues may take within the current legal configurations where constitutional protections against discrimination may be invoked.
Chapter Three traces the development of human rights thinking and translation into legal provisions in Africa. Banda documents the extent of engagement with human rights instruments, pointing [*158] out that, although left out of the early drafting, 48 states on the continent are parties to the International Covenant on Civil and Political Rights 1966, and 45 to the International Covenant on Economic Social and Cultural Rights 1966. At the same time she notes the essentially ‘western’ construction of the norms and assumptions inherent in rights discourse and a similar influence in claims to custodianship of its content. Rights issues relating to women, however, have always been difficult. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women draws heavily on CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) which, despite extensive ratification by African States, has remained effectively unimplemented in any practical ways. Adopted in 2003, that protocol has civil, political, socio-economic and cultural rights. “It is the first human rights instrument to have substantive provisions on reproductive rights and to make (limited) provision for the right to abortion. It prohibits harmful cultural practices and confronts and controversial issue of genital cutting . . . [proscribing it] even if performed in a medical establishment” (p.81). But more than a year after its adoption only five states had ratified it. Nevertheless, Banda believes that even though there are serious ‘sticking points’ over issues related to ‘private sphere’ rights, “the recognition of women’s rights at the institutional level is an important gain upon which women need to build by holding states accountable for the violations of their rights” (p.83). The Charter thus creates a platform for women to work toward real change in their own communities.
Subsequent chapters consider these issues in more specific contexts – family law, violence against women, reproductive rights, and the rights of girl children especially in relation to female genital cutting. This leads into a discussion of culture and the problems of reconciling it with human rights norms, rights-based approaches to development issues and women’s participation in public and political life. She concludes that, while “human rights cannot conjure up resources that do not exist” nor effect global redistribution of resources, “the growing jurisprudence on socio-economic rights shows that in some instances it can force states to re-think the internal and international distribution of resources” (p.310). For women, that (together with international agreement on some “baseline standards”) constitutes a move toward legal, social, and political recognition of their humanity. As critical race theorists have often pointed out, when you have few or no rights in your own society, then rights thinking may be flawed and inadequate to the magnitude of its task – but it is undoubtedly better than nothing.
As a resource for materials about human rights in Africa this book may well be in a class of its own, with fifty-five pages of bibliographic references, as well as reproductions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979. As a contribution to [*159] the international human rights literature, it is a substantial source for teaching and for future research in the field.
Accepting that the human rights movement is not universally recognized or approved as the appropriate panacea for all social ills and inequalities, this book nevertheless takes the idea of rights seriously and measures its viability against success and failure of such norms to “challenge gender ascriptions within the African continent” (p.3). In one sense it is a quite specialized book – it is about the details of African women’s lives and the differences that rights law might make to them. It is about the negotiating and shaping drafts of ‘rights on paper’ and finding a way through the problems and problematics of the cultural relativism debates. But on another level it also operates as a broad critique of rights thinking and practice so as to pose critical questions and challenges relevant to all who are interested in the strengths and weaknesses of human rights as a means toward a more just and equal world.
Amadiume, Ifi. 1987. MALE DAUGHTERS, FEMALE HUSBANDS: GENDER AND SEX IN AN AFRICAN SOCIETY. London: Zed Press.
Oyewumi, Oyeronke. 1997. THE INVENTION OF WOMEN: MAKING AN AFRICAN SENSE OF WESTERN GENDER DISCOURSE. Minneapolis: University of Minnesota Press.
© Copyright 2006 by the author, Catherine Lane West-Newman.