'Women and the Constitution' was one of the main issues discussed at the six-day International Symposium on the Making of the Eritrean Constitution held last month at Selam Hotel, Asmara. Following the papers presented by Florence Butegwa from the Harare-based Women in Law & Development Centre, and Saba Issayas from the National Union of Eritrean Women (NUEW), the symposium discussed whether it is possible to reconcile the conflict between traditional values and women's fundamental rights, the issue of a separate section in the constitution regarding women's rights,and how to promote women's political participation and enforce guarantees to equality.
There can be no democracy while women, who constitute half (or in some countries more than half)of the society, are neglected and their rights are abrogated, reiterated both presenters. But many of the fundamental rights of women are not recognized and practiced because of entrenched cultural practices or values. " Our constitution," said Ms. Saba, predicting challenges ahead, " will be the product of the struggle between the forces of progress and those who want to maintain the status quo."
Ensuring women's access to economic resources, education and justice; preventing culturally-imposed physical and psychological abuses; ensuring equal representation of women in policy and decision-making processes; avoiding discrimination in acquiring citizenship, employment and job promotion; and changing the prevailing ideas of gender and power relations are among the notions advocated by activists. But how is it possible to go ahead with these notions without violating religious and cultural values? Ms. Butegwa's paper, Old Problems and New Challenges, stated that there is no way the conflict can be resolved unless the constitution is categorical and creates the institutions and powers to make gradual transformation possible. Irvin Leonard Markowitz, a professor of Political Science at Queen's College in New York, urged caution in putting these issues into the constitution. According to his classification one is an individual and the other a collective right. "If there is protection of women's rights to be free from physical abuses such as genital mutilation, this is enforceable as an individual right. But if there is a claim against enforcement of this individual right on the grounds of tradition and culture (a collective right), and if the constitution enshrines the notion that there are fixed and determinent collectivities which have collective rights to be exercised against their own individual members, a conflict will arise." Prof. Shadrack from the South African University of Witwatersrand, pointed out that the predominant culture at the moment, including religion, is male dominated. "Therefore when we talk about changing relations between men and women, men will be the conservative force, trying to cast tradition as if people were born with those traditions from the beginning when those things were created by men over history. So we recognize that the process of changing is difficult and protracted."
Ms. Saba said it is rather a question of commitment. "Our constitution has to provide women with protection against cultural practices that violate women's rights, dignity and equality. Women have to have constitutional protection against all forms of violence, be it within the family or in society." Ms. Saba commented that it is always when the question of women's rights is addressed that reservations or disputes are raised respecting tradition or culture.
The political environment in Eritrea so far is favorable to women, according to Ms. Saba. She appreciated the gender composition of the Constitutional Commission and the proclamations issued by the Government of Eritrea to provide for equal rights. On the other hand she stressed the need for strong advocacy and the organization of women to overcome the influence of traditionalist elements during the constitution-making process and after. Hussien M. Adam, a Somali Professor from the College of the Holy Cross (USA), having explained his opposition to the old values, gave the following advice:
"These issues are too complicated to be simply dealt with by law. If you want to put them as your law, do it. If you want to write them in the constitution, do it. But when it comes to implemention, be very soft, be very educational and phsychological in your approach." Prof. Abdullahi An- Na'im from Human Rights Africa Watch and Dr. Christine Obbo from France, also stressed education.
As all the human rights enshrined in a constitution are also women's rights, said CCE Council member Dr. Seyoum Haregot, there is no need to have a different section regarding women's rights. Though this view was taken for granted, there was an argument that constitutional provisions guaranteeing fundamental human rights and freedoms be expressed in a language that is gender specific. Ms. Butegwa expressed her concern that the wording be chosen carefully so that any man or woman understand that the human rights listed in the constitution are also women's rights. "For instance, having a constitution that says every person in Eritrea can vote is not enough," she said. "We must find the language that will guarantee the right of every man or woman to participate in public affairs at all levels at all times." It should be noted also that there are constitutional issues that relate to women only. The challange is to strike a balance by ensuring that these issues are addressed while ensuring that all other provisions in the constitution (which are also a concern to women) reflect this fact. For this effect, Saba pointed out, equality provisions in the constitution will have to be complemented by protection clauses against discrimination in employment based on women's reproductive role.
On how to promote the participation of women in political activities, Ms. Butegwa opted for reserving a proportion of seats in elective positions to the women of Eritrea in the beginning. She mentioned that there are many countries in Africa, Europe and Latin America which give such guarantees. For Ms. Saba too, the quota system is the only viable alternative till the level of women's politicization and activism is improved. But in the meantime Ms. Saba urged for a thorough assessment of strategies adopted in other countries with regard to the quota system because the moves taken in that direction since the independence of Eritrea in village, district and provincial assembly elections have resulted in some discouraging impressions: " Those elected through the quota system are considered to be women's representatives instead of representatives of the whole community. This tends to marginalize them and weaken their position or influence once in office."
Dr. Amare Tecle, of the CCE's Council, suggested to start with the enforcement of the second generation of rights. These economic, social and cultural rights would give women the right to property and the right to education. The realization of these rights, according to his suggestion, would make it easy for women to acquire the first generation of rights - civil and political rights. Prof. Shadrack mentioned the South African approach to implement women's rights whereby the Interim Constitution has established both a Human Rights Commission and a Special Gender Equality Commission. These have powers to monitor, investigate, recommend and assist people to go to court to enforce their rights. Saba Issayas of the NUEW shares the same view. According to Ms. Saba many democratic constitutions have remained ineffective in promoting and realizing gender equality because they lack mechanisms for enforcement and advocacy. Therefore, she said, "The importance of establishing a national gender commission has to be discussed seriously in the context of our experience in the liberation struggle and in the past four years since independence."
Ms. Florence Butegwa opposed the establishment of separate government institutions to deal with women's rights. "In many countries there are Women's Bureaux, Women's Commissions or Ministries of Women but they are poorly-funded and are only places where demoted civil servants are sent. They are rubbish bins which free other ministries to carry out their tasks effectively."
Prof. Owen Fiss of Yale Law School also seriously criticized this method. " No matter how determined you are to have effective political representation, it is not clear to me that the separate commission, whether it is a commission on women and children or it is a human rights commission, is the most effective way to do it. The United States has two such groups. Over thirty years of existence, these two organizations have made little contribution."
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