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Constitutional guarantees

Constitutions should enshrine and guarantee women’s human rights without exception. In particular, Constitutions should:

  • PROHIBIT discrimination based on sex;
  • GUARANTEE equal protection of the law to women and men;
  • GUARANTEE equal rights between women and men;
  • GUARANTEE equal rights and responsibilities between women and men in marriage, including consensual unions, civil marriages and customary marriages;
  • GUARANTEE a woman’s right to own, administer and control property and land;
  • MAKE modified or partial community of property the default legal regime for marital property;
  • PROVIDE equal rights to women and men in inheritance and succession;
  • STATE that conflicts between formal and customary laws are to be resolved in a manner that guarantees equality of women and men and the effective protection of women against any act of discrimination. 
  • EXCLUDE provisions that allow for exceptions in discrimination, such as adoption, marriage, divorce, devolution of property, burials, other personal matters and customary practices. The CEDAW Committee’s General Comment No. 29 specifies that “States parties should guarantee equality between women and men in their constitutions and should eliminate any constitutional exemptions that would serve to protect or preserve discriminatory laws and practices with regard to family relations.”

Drafters should review existing legislation for compliance with the constitution and ensure that constitutional guarantees are transposed into statutory law.

Promising Practices:

Ethiopia’s Constitution addresses “Marital, Personal and Family Rights” stating that men and women “have equal rights while entering into, during marriage and at the time of divorce.” (Article 34). 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. 

  • Women shall, in the enjoyment of rights and protections provided for by this Constitution, have equal right with men. (Article 35(1))
  • Women have equal rights with men in marriage as prescribed by this Constitution. (Article 35(2))
  • The historical legacy of inequality and discrimination suffered by women in Ethiopia taken into account, women, in order to remedy this legacy, are entitled to affirmative measures. The purpose of such measures shall be to provide special attention to women so as to enable them to compete and participate on the basis of equality with men in political, social and economic life as well as in public and private institutions. (Article 35(3)).
  • The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited. (Article 35(4)).
  • Women have the right to acquire, administer, control, use and transfer property. In particular, they have equal rights with men with respect to use, transfer, administration and control of land. They shall also enjoy equal treatment in the inheritance of property. (Article 35(7))

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.

Uganda’s Constitution specifically addresses the right of widows 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.” Article 33, “Rights of Women,” also provides generally that “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.”