Constitutions should enshrine and guarantee women’s human rights without exception. In particular, Constitutions should:
Drafters should review existing legislation for compliance with the constitution and ensure that constitutional guarantees are transposed into statutory law.
Ethiopia’s Constitution addresses “Rights Relating to Marriage, the Individual and the Family,” stating that men and women “have equal rights while entering into, during marriage and at the time of divorce.” (Article 31(1)). Additionally, Article 35 “Rights of Women” addresses women’s right to equality with men under the Constitution and in marriage, affirmative action in favor of women, and women’s right to property and land. The Constitution also states a prohibition against customs and laws harmful to women.
Malawi’s Constitution broadly addresses women’s right to equality, irrespective of their marital status, specifically addressing freedom from discrimination in civil law, contracts, property, child custody and upbringing. In terms of marriage, the Constitution guarantees them equal protection of the law with regard to dissolution of marriage, disposition of joint marital property and maintenance. Article 24(1) states:
Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right--
(a) to be accorded the same rights as men in civil law, including equal capacity--
(i) to enter into contracts;
(ii) to acquire and maintain rights in property, independently or in association with others, regardless of their marital status;
(iii) to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing; and
(iv) to acquire and retain citizenship and nationality.
(b) on the dissolution of marriage--
(i) to a fair disposition of property that is held jointly with a husband; and
(ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.
In The Attorney General of the Republic of Botswana v. Unity Dow, 103. I.L.R. 128 (Bots. Ct. App. 1992), the plaintiff Unity Dow, a female citizen of Botswana, successfully challenged the legitimacy of Botswana's Citizenship Act on the constitutional ground that the Act unlawfully discriminated against her on the basis of her gender. Under Botswana's Citizenship law, citizenship was denied to the children of a female citizen married to a foreigner. The court of original jurisdiction found, and the appellate court upheld, that the Citizenship Act in this respect unconstitutionally discriminated against women. Significantly, to make this finding, the court rejected the argument that the absence of gender or sex as protected classes in the Botswana Constitution was an intentional reflection of the patriarchal nature of the society. In reasoning to conclusion on this point, the lower court cited to a variety of cases from around the world, including the United States Supreme Court case South Dakota v. North Carolina, 12 U.S. 268 (1940), in which Justice White wrote that all of a Constitution's provisions “bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument.”
Uganda’s Constitution specifically addresses the right of widow under Article 31, Rights of the Family. Article 31 grants women and men equal rights at and in, during and after marriage, and also states that children may not be separated from parents except by law. The provision also states, “Parliament shall make laws for the protection of the rights of widows and widowers to inherit property of their deceased spouses and to enjoy parental rights over their children.”
Previous Topic Drafting the legislative preamble