Sep 27, 2011, 1:38 PM
At a time when a number of African States are grappling with the challenges of ratification and domestication of the Convention on the Elimination of all Forms of Discrimination Against Women, and the African Protocol on the Rights of Women in Africa, The Gambia has taken the bold and progressive step of enacting the Women's Act, 2010.
The Women's Act, 2010 was enacted by the National Assembly on Tuesday the 12th day of April 2010. The enactment of this Act is quite historic and commendable for The Gambia as a nation.
It should be a source of hope, peace and prosperity for both men and women in The Gambia, as it recognises and gives legal effect and force to The Gambia's international legal obligations and commitments made towards upholding the legal status of women. The long title of the Act provides that, it is:
"An Act to implement the legal provisions of National Policy for the Advancement of Gambian Women and Girls, and to incorporate and enforce the United Nations Convention on the Elimination of all Forms of Discrimination Against Women and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa."
The long title suggests that the Act incorporates and domesticates all the provisions of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (The Protocol). The long title does not limit or restrict the incorporation and enforcement of any provisions of these two instruments. The presumption is that if we are to use the long title as an aid to interpretation of the Act, where we have any gap or lacuna in the law, we can then have recourse to the original text of these two instruments to fill the gap or lacuna and assist in determining the true intent of the National Assembly. This is quite innovative, and goes further in that it can be interpreted to mean that even if we find any particular provision of these two instruments have not been provided for in the law, it can be applied and enforced, by having recourse to the original text as signed and ratified by The Gambia without any reservations.
The Act having been enacted by the National Assembly would become law, and enforceable in The Gambia upon receipt of the requisite Presidential Assent. Since the original Bill had gone through a very wide and comprehensive consultative process, it would be fair to predict that it would indeed receive Presidential Assent with relative ease. The consultative process involved all stakeholders including, the legal profession, the judiciary, parliamentarians, senior government officials and policy makers, religious and traditional leaders, grass roots women, community leaders, and civil society organizations.
The Act is divided into twelve parts and an examination of these provisions would be necessary to determine the extent to which the Bill has changed the legal and legislative framework relating to the Rights of Women in The Gambia.
The first Part of the Bill merely deals with preliminary matters, whereas Parts two to ten provide for substantive rights accorded to women. Parts eleven to twelve, on the other hand, provide for administrative matters relating to the Governing Council i.e. the National Women's Council, the Executive Arm i.e. the National Women's Bureau and other miscellaneous matters relating to administration, financial provisions and the power to formulate policies relating to the rights and welfare of women.
PART II WOMEN'S HUMAN RIGHTS PROTECTION
Section 4- Right to Dignity
Section 5- Right to Life and Security of the Person
Section 6- Protection from Violence
Section 7- Access to Justice and Equal Protection before the Law
Section 8- Right to Freedom of Expression
Section 9- Right to Freedom from Discrimination.
Section 10- Prohibition of Discrimination
Section 11- Right to Movable and Immovable Property
Section 12 & 13 Matters relating to Enforcement of Rights and Jurisdiction
The above provisions incorporate the Constitutional provisions relating to protection of Fundamental Human Rights, but making them more specifically applicable to Women. The provision relating to protection from violence is, however, innovative as it provides for a protection not hitherto provided for in the Constitution or any other law in The Gambia. It reads;
(1) "Every woman shall be protected against any form of physical, sexual, psychological or economic harm, suffering, or violence whether occurring in public or private life.
(2) Any form of violence against women is hereby prohibited.
(3) All Government Departments, agencies, organs, public or private institutions shall take appropriate measures to promote and protect women?s rights and their legal status from any form of abuse or violence by any person, enterprise, organization or institution."
It is pertinent to observe that the obligation to protect women from violence is imposed on Government and public institutions, organs and agencies and also private enterprises.
PART III GOVERNMENT OBLIGATION TO ELIMINATE ALL FORMS OF DISCRIMINATION
Section 14 of the Bill deals with the Government's obligation to eliminate all forms of discrimination against women in line with its international obligation under the CEDAW and the Protocol. The provision is quite comprehensive, and calls on Government Departments and other public institutions to implement measures, policies and strategies to eliminate discrimination, including periodic training of personnel on gender and human rights, and mainstreaming gender perspective in planning and programming of all activities and initiatives. This in effect means that the measures and strategies mentioned in this section are a legally binding obligation, and should be implemented as a matter of must.
PART IV TEMPORARY SPECIAL MEASURES IN FAVOUR OF WOMEN
Section 15 deals with temporary special measures to be adopted by every organ, body, public institution, authority or private enterprise aimed at accelerating de facto equality between men and women. Under this section a distinction is made between de facto and de jure discrimination. Considering the social and cultural set up of The Gambia, there may be instances where even though the law does not create or cause any impediment for women, the social and cultural environment may not be conducive for the achievement of equality. Here, Government and all private institutions are called upon to take positive steps to achieve genuine de facto equality. This becomes more relevant in the political arena and decision-making at all levels, where women are not legally barred from participating effectively on an equal footing with men, but may not be able to do so due to cultural bias in favour of men, and stereotypical perception of the role of women.
With the enactment of the Women's Act, 2010, political parties, Government, the private sector and all other agencies, organs and institutions are called upon to put in place temporary special measures to ensure genuine de facto equality. We hope that there would be a concerted and deliberate effort on the part of all political parties to ensure that, as a first step, at least one-third of candidates fielded for election would be women. Following this, it is hoped that there be a gradual upward move to a 50 percent quota for women at all levels of decision making. We would also call on both Government and private institutions to ensure that affirmative action is implemented to ensure that the requisite percentage of women are at the top decision making level.
PART V PROHIBITION OF DISCRIMINATION IN THE FIELD OF EMPLOYMENT
This Part expressly prohibits Discrimination against Women in the field of employment. It covers provisions such as:
16 - Prohibition of discrimination against women in employment
17 - Free choice of employment and profession
18 - Equal remuneration
19 - Social Security benefit
20 - Maternity leave
21 - Protection of health and safety at work
22 - Discrimination used in marriage or maternity
23 - Support services
24 - Protection during pregnancy
25 - Periodic review of legislation
This Part is of fundamental importance to the contribution of women in the socio- economic development of the country. It ensures that women are accorded equal opportunity and equal rights in the field of employment. It also ensures that adequate support services and facilities are put in place for women to continue to take part in nation-building during the crucial period of pregnancy, lactation and child bearing and upbringing in general. The provision recognises the contribution of women during the period of maternity, and makes mandatory adequate compensation during this period. It further ensures that women in The Gambia are not disadvantaged in any way during this crucial, yet very important period in the human cycle.
A fundamental and progressive innovation is found in Section 20 dealing with maternity. This section extends the maternity leave period to six months paid leave and another six months unpaid leave. It also affords the father the opportunity to take part, and take responsibility in the upbringing of children. The section provides thus
"(1) Every woman is entitled to a period of six months maternity leave with pay or with comparable social benefit without loss of employment, seniority or similar benefits.
(2) Every woman is entitled to a further six months unpaid maternity leave without loss of her employment, seniority or similar benefits.
(3) In order to reinforce the common responsibility of men and women in the upbringing and development of their children, every father is entitled to a reasonable period of time not exceeding ten days as paternity leave, for every child delivered for him."
PART VI - ELIMINATION OF DISCRIMINATION IN THE FIELD OF EDUCATION
This Part recognizes the relevance of education and awareness in the process of emancipation of women and young girls. It guarantees the right to basic education in line with the constitution of The Gambia. It also imposes an obligation on Government to ensure that the right curriculum is taught in schools, and that such curriculum would be geared towards the elimination of stereotyping of women and girls and ensure their total integration in nation-building at all levels. Section 27 and 28 in particular ensure the continued education of young girls who are victims of early marriage or teenage pregnancy, and expressly prohibits the expulsion of girls on the basis of pregnancy.
PART VII - RIGHT TO HEALTH
This Part of the Act seeks to protect the health and reproductive rights of women. It expressly guarantees women the right to health, access to appropriate services, and to take decisions concerning their state of health. The Part also goes further to impose an obligation on Government, in line with CEDAW and the Protocol, to put in place adequate facilities and services to ensure that the health rights guaranteed to women are respected. The effective implementation of this Part is indeed crucial, as it alleviates women's suffering from the menace of high rates of maternal mortality, which remains a problem in Africa, with the Gambia being no exception.
PART VIII - RURAL WOMEN
This Part incorporates Article 14 of CEDAW which addresses the plight of Rural Women. It recognises the particular and specific problems faced by Rural Women. It specifically imposes an obligation on Government to take steps to ensure that Rural Women take part in the formulation and implementation of policy at all levels, benefit directly from Social Security, have access to credit and appropriate technology to develop their capacity, and to benefit from training and education; both formal and informal.
PART IX - MARRIAGE AND THE FAMILY
This Part incorporates the provision of both CEDAW and the Protocol relating to marriage and the family. The incorporation of these provisions in our laws is quite commendable, as an early attempt to legislate for such provisions had been abortive. As far back as 1988, the Law Reform Commission sought to codify the Islamic Law relating to marriage under the aegis of the Mohammedan Marriages (Formation and Dissolution) Bill. The proposals from the Commission were not accepted and as a result the Bill died a very unnatural death even before it saw the light of day. This part covers matters of personal law which are based on traditional or religious practices and on concepts of distinctive roles and rights for men and women. These are indeed areas that had continued to pose considerable problems for women vis a vis their legal status and rights to marriage and family life. It covers provisions such as:
34- Right to marry
35- Consent of both parties to marriage
26- Registration of marriages
37- Right to retain maiden name
38- Right to retain nationality
39- Nationality of children
40- Joint responsibility for children
41- Right to acquire property
42- Separation, Divorce, and annulment of marriage
43- Widows rights
44- Right to inheritance
This Part successfully incorporates the relevant provision of CEDAW and the Protocol, except that sections 43 and 44 dealing with Widow's Rights and right to Inheritance are made subject to personal law. These two provisions have the effect of maintaining the status quo and reflecting the position of the law prior to the enactment of the Women's Act. This notwithstanding, it is always positive to view the cup as half full, rather than half empty. The Part, taken as a whole, could be said to be progressive as it attempts to codify and provide for matters which had hitherto been subjected to different interpretation and application in their use and enforcement before the traditional and religious adjudicatory bodies.
PART X ADDITIONAL RIGHTS UNDER THE PROTOCOL.
This Part covers rights under the Protocol which are not covered in CEDAW, such as:
45- Right to peace
46- Protection of women in armed conflict
47- Right to food security
48- Right to adequate housing
49- Right to positive cultural context
50- Right to a healthy and sustainable environment
51- Right to sustainable development
52-Special Protection of elderly women
53-Special Protection of women with disability
54-Special Protection of women in distress
The provisions of this Part virtually mirror the relevant Articles of the Protocol on the subject matter. This therefore constitutes a wholesale incorporation of the said Articles. These provisions seek to situate and address the specific problems of African Women, as a special group, deserving special care and attention. The Part also prescribes for necessary budgetary allocation to be put in place to ensure that all the rights guaranteed and protected under the Act can be effectively implemented. Section 55 dealing with budgetary allocation, recognizes the resource and monetary implication for the full realization of these rights and therefore imposes an obligation on all Government Departments and Public Institutions to provide budgetary resources to implement and monitor the implementation of the Act. It is hoped that these provisions of the Act would be taken into due consideration as Government, Public and Private Institutions alike prepare for their budgets for 2011.
PART XI and XII
These two Parts provide for the governance structures and financial provisions to ensure the implementation of the Act. Part XI establishes the National Women's Council and provides for its composition and powers. It also establishes the executive arm of the council, which is the National Women's Bureau, and entrusts it with responsibility for implementation of the policies of the Council. Part XII provides for the formulation and adoption of a National Women?s Policy following widespread consultation with all stakeholders.
Having highlighted the innovative provisions in the Act, it is also pertinent to note that even though the long title of the Act suggests that it incorporates all the provisions of CEDAW and the Protocol, it is noticeable that Article 5 of the Protocol, dealing with "Elimination of Harmful Traditional Practices", has not been provided for in the Act. Perhaps this takes us back to the initial reservation entered in the ratification of the Protocol, which were subsequently removed. Article 5 is indeed one of the provisions that were initially reserved.The saving grace with regard to this particular Article of the Protocol can be found in section 19 of the Children's Act 2005, which expressly prohibits and eliminates all harmful traditional practices as applicable to children under the age of eighteen. It is hoped that once children are protected up to the age of eighteen, they would be adequately empowered and enlightened to say "NO!" to all forms of harmful traditional practices.
Notwithstanding, the omission of Article 5 of the Protocol, the Women?s Act, 2010 is indeed a commendable innovation taken by The Gambia for the domestication of CEDAW and the African Protocol. Whilst commending Government for this laudable initiative, it is also pertinent to note and recognize the participation of civil society in The Gambia, for the intensive mobilization that led to the ratification of the Protocol and the eventual enactment of the Act.The Government, public institutions and the private sector is called upon to take note of all of the provisions of the Act, and to ensure their incorporation in all public documents and instruments, and the internal regulations and policy guidelines. It is also pertinent to note that compliance with the Act is mandatory and non-compliance may attract criminal penalty as prescribed in Sections 73 and 74 of the Act.
To end on a very positive note, I would conclude that this piece of legislation is the most progressive enactment that has been passed by the National Assembly. Its full realization would have the positive effect of uplifting and improving the socio-economic fabric of The Gambia, for the benefit of all men, women, boys and girls.
Courtesy of Janet Sallah Njie
President of Female Lawyers Association
(To Be Continued)