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Harmonization of new legislation with existing law (formal and customary)

When enacting legislation on harmful practices, drafters should also review and either repeal or reform existing laws that are contrary to or create barriers to the equality of women and girls and the elimination of harmful practices. Thus, any new legislation should include a provision requiring that laws, in any area, that conflict with the underlying goal of women’s equality, safety and education, be repealed or amended.

To this end, drafters should develop and review laws in other areas to ensure they reflect a commitment to establishing the equality of women and girls. Examples include:

  • Development of uniform civil laws relating to family and property law that have clear supremacy to conflicting customary or religious law;
  • Development of laws that prevent discrimination against minorities;
  • Development of immigration laws that protect the rights of women and girls;
  • Development of laws that protect the advancement of women in employment, and ensure the right to health and education for women and girls; and
  • Development of laws that direct all sectors of society to provide support for women and girls to empower themselves to participate in protecting their human rights and achieving an end to harmful practices. 


Amendments to Laws

In order to be fully effective, the adoption of new legislation on violence against women should be accompanied by a review and amendment, where necessary, of all other relevant laws to ensure that women’s human rights and the elimination of violence against women are consistently incorporated. (UN Handbook 3.1.6)

  • Legislation should provide for the amendment and/or removal of provisions contained in other areas of law, such as family and divorce law, property law, housing rules and regulations, social security law, and employment law that contradict the legislation adopted, so as to ensure a consistent legal framework that promotes women’s human rights and gender equality, and the elimination of violence against women. (UN Handbook 3.1.6)
  • Drafters should anticipate and allow for amendments to the various laws against harmful practices as unintended consequences and unforeseen types of harmful practices develop.

    For example, having medical personnel perform female genital mutilation has been presented as a misguided effort to legitimize the practice of female genital mutilation or make it seem safer. This “medicalization” of female genital mutilation must be considered and accounted for in drafting new laws and amendments to old legislation.  Legislation should not only explicitly make medical personnel liable for performing female genital mutilation, but criminal penalties should actually be enhanced and individuals should face administrative penalties, such as loss of license to practice medicine, as well. (See: Female Genital Mutilation)
  • Drafters should review and amend laws as events such as migration, globalization, conflict situations, as well as the changes in modern technology and other developments, change the types of harmful practices that exist as well as the way harmful practices are executed.

    For example, increased access to medical technology has allowed more individuals to easily determine the sex of a fetus. In turn, this has increased the misuse of such technology to facilitate sex-selective abortions based on son-preference. In response, India’s Pre-Natal Diagnostic Techniques (PNDT) Act of 1994 (and amendments) prohibits and penalizes the use of any form of technology to determine and disclose of the sex of a fetus. The Act was initially enacted in 1994 to stop sex-selective abortions and curb the growing gender imbalance in India’s population. Due to modern developments, however, the Act continues to be amended to address newer technologies which allow for the selection of sex before and after conception. 

 

CASE STUDY:  Sierra Leone – Forced Marriage: A crime against humanity

The Good Practices on Harmful Practices Expert Group Report identified conflict and post-conflict situations as factors that perpetuate harmful practices such as forced marriage. The Report highlighted the case of Prosecutor vs. Brima, Kamara and Kanu (AFRC Case) in Sierra Leone as a “landmark judgment recognizing forced marriage as a crime against humanity under international criminal law for the first time in history.”  In that case, the Special Court for Sierra Leone focused on the elements of force and coercion, the presence of a conjugal relationship, and harm to the victim within the context of the Sierra Leonean armed conflict. During the conflict, combatants abducted girls and women to act as “bush wives.” These women and girls were subjected to rape, sexual slavery, and forced labor tasks, such as cooking, cleaning and portering. In these cases, the forced marriage involved conditions of sexual slavery and forced labor. The court, however, distinguished the crimes of forced marriage and sexual slavery, defining forced marriage as the “situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.” The court, for the first time in history, prosecuted forced marriage as an “other inhumane act” under crimes against humanity under international criminal law. (See: Prosecutor vs. Brima, Kamara and Kanu (AFRC Case), Special Court for Sierra Leone, 2008, ¶ 190)

 

Resolving Conflict with Customary and Religious Laws

Harmful practices are deeply rooted in cultural beliefs and practices. The right to enjoy and practice one’s culture is a valued human right, but it is not more important than protecting women and children from harmful practices that negate their enjoyment of other recognized human rights. The international legal and policy framework clearly establishes that governments cannot invoke culture, tradition or religion to justify or defend harmful practices. Drafters of new legislation should, therefore, ensure that customary practices and laws do not authorize or condone harmful practices. 

Many countries have multiple legal systems, and formal, customary, and even state-sanctioned customary legal systems may co-exist. Conflicts among these systems, both in the written laws and their application, can arise. While one system may provide protection to women from discrimination, another system may conflict in law or practice to discriminate against women. Drafters should specifically review conflicting customary and religious laws or situations of dual legal systems where civil law operates adjacent to customary or religious laws governing family law or property law which may traditionally discriminate against women. Laws should resolve conflicts between customary and formal laws in a manner that respects survivors’ human rights and principles of gender equality.(See: UN Handbook, p.15) Where a constitutional guarantee of supremacy of statutory over customary law does not exist, drafters should consider incorporating a provision in the new legislation that grants primacy to the legal system that is most in compliance with international legal standards. Laws should ensure that any supremacy laws include outreach to local and customary leaders to facilitate the implementation of these guarantees. Laws should ensure that use of a customary adjudication mechanism does not preclude the victim from accessing the formal justice system.

Drafters should consider prefacing laws condemning harmful practices with reference to international legal obligations requiring states to modify such practices. Under CEDAW, states are obligated to take appropriate measures to modify social and cultural patterns that discriminate against women (Art. 5(a)). The Committee on the Elimination of All Forms of Discrimination against Women General Recommendation 19 states:

[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.

CEDAW has also expressed concern over practices that uphold culture over eliminating discrimination. In its Concluding Observations on Nepal’s periodic report (1999), CEDAW expressed its concern over the Supreme Court in Nepal prioritizing the preservation of culture and tradition when interpreting discriminatory laws. Also, the Human Rights Committee has drawn attention to minority rights that infringe upon the rights of women. In General Comment 28, it stated that those “rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law” (¶ 32). The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa also requires States Parties to prohibit “all forms of harmful practices which negatively affect the human rights of women” and take all necessary legal and other measures to protect women from harmful practices and all other forms violence, abuse and intolerance (Art. 5). Similarly, the African Charter on the Rights and Welfare of the Child requires States to take “all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child,” including customs and practices that discriminate based on sex (Art. 21).

(See: Honour Crimes Section)

(See: Ensure Constitutional Protection Provisions above regarding supremacy of constitution and national laws)

 

Promising Practice: South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (No. 20876), Ch. 2, Art. 8

South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act prohibits all forms of gender-based discrimination, including female genital mutilation, discriminatory property policies, access to health services, education and employment.  It specifically limits traditional, customary or religious practices which perpetuate these and other forms of gender-based discrimination: 

Prohibition of unfair discrimination on grounds of gender

8. Subject to section 6, no person may unfairly discriminate against any person on the ground of gender, including—

(a) gender-based violence:

(b) female genital mutilation;

(c) the system of preventing women from inheriting family property:

(d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child;

(e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources:

(f) discrimination on the ground of pregnancy;

(g) limiting women’s access to social services or benefits, such as health, education and social security;

(h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons;

(i) systemic inequality of access to opportunities by women as a result of the sexual division of labour. (Emphasis Added.)