No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 April 2015
“The freer women are to share their gifts with society and to assume leadership in society, the better are the prospects for the entire human community to progress in wisdom, justice and dignified living …” So argued Mary Ann Glendon, the Vatican delegate to the Fourth World Conference on Women in September, 1995. While Glendon's point is well taken, in many societies, including the Catholic Church which Glendon represented at the Conference, women often do not have the opportunity to choose their roles and share their gifts and talents with society in the manner they deem most appropriate. In patriarchal societies women's roles and contributions are often reduced to the periphery. This is the case in traditional societies where the community is viewed as the bearer of rights, and the roles assigned women are designed to ensure that they conform to the needs of the community, rather than the needs of individual women. Women are often socialized into accepting the roles mapped out for them by the community, and attempts to challenge them often lead only to ostracization by the community.
1. The Conference was held in Beijing, China from September 4 - 15, 1995 (hereinafter Beijing Conference). Glendon made these remarks in her address to the Conference. See Glendon, Mary Ann, Vatican Delegation in Beijing, 25 Origins 203 (09 14, 1995)Google Scholar.
2. In her address to delegates at the Conference, Glendon acknowledged that the Catholic Church had been guilty of the practice of marginalizing the contributions of women. Id at 203.
3. The Vatican's emphasis on the family and the importance of the role played by women in the family was made evident in Glendon's address. Glendon noted that: “To affirm the dignity and rights of all women, whose quest for personal fulfilment and the construction of a stable society is inseparably linked to their commitments to God, family, neighbor and especially to their children.” Id at 204.
4. It appears to be very difficult for the Catholic Church to engage in dialogue with its own members about controversial issues. In Lincoln, Nebraska, many Catholics who belong to organizations that question the Church's teachings on specific issues like the ordination of women, artificial birth control, or abortion were excommunicated in May, 1996 by Bishop Fabian Bruskowitz for belonging to organizations that in Bishop Brus-kowitz' eyes are incompatible with the Church's teachings. Calls for reconciliation and the recent (August 1996) formation of a project called Catholic Common Ground by Cardinal Bernadin of Chicago, Illinois have been treated cautiously because it is unclear to what extent dialogue can be established when many subjects will be considered “off-limits” because there is official Church teaching on those subjects.
5. Pope John Paul II took preliminary steps in 1995 to ensure that women made more of a contribution to the liturgical life of the Church in various areas. This will be discussed more fully below. Similarly, several African leaders are taking steps to conform with the provisions of CEDAW in order to address the conditions of women.
6. Mojekwu, Chris C., International Human Rights: The African Perspective in Nelson, Jack L. and Green, Vera M., eds, international Human Rights: Contemporary Issues 85 (Earl M. Coleman Enterprises, Inc., 1980)Google Scholar.
7. Bennett, T.W., The Compatibility of African Customary Law and Human Rights, Acta Juridica 18, 21 (1991)Google Scholar. Bennett argues (in a somewhat bigoted fashion in my opinion), that “As the term ‘human rights’ implies, the bearer of the right is the individual human being. International and constitutional provisions pay little attention to group rights, and in fact concern with group rights has a relatively shallower history and a less high-minded purpose than was the case with human rights.” Bennett does not seem to me to be according due respect to the philosophical differences that underlie the approaches of the two societies towards rights. Western individual rights based thinkers tend to conceive of rights as constituting a recognized set of claims that one can assert against the State or a person in authority. Community oriented thinkers have a more loosely formulated approach to “rights,” conceiving of them more as a debate “over the fundamental understandings of what kind of society we are, and the role of common moral intuitions in contributing to those understandings.” Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse 110 (Free Press, 1991)Google Scholar.
8. Nelson, and Green, , eds, International Human Rights at 85 (cited in note 6)Google Scholar. The views of Mojekwu are also supported by the writings of Kaunda, Kenneth D., A Humanist in Africa 24 (Longmans, Green and Co., Ltd., 1966)Google Scholar, and Nyerere, Julias K., Freedom and Socialism: Uhuru Na Ujamaa, A Selection from Writings and Speeches 1965-1967 2 (Oxford U Press, 1968)Google Scholar.
9. Morton Winston claims that we “generally understand ‘human right’ to mean a kind of universal moral right that belongs equally to all human beings simply by virtue of the fact that they are human beings.” Winston, Morton E., ed, The Philosophy of Human Rights (Wadsworth Publishing Co., 1989)Google Scholar. The problem is, as Mary Ann Glendon points out, that this “dialect of rights talk disserves public deliberation not only through affirmatively promoting an image of the rights-bearer as a radically autonomous individual, but through its corresponding neglect of the social dimensions of human personhood.” Glendon, , Rights Talk at 109 (cited in note 7)Google Scholar.
10. Howard, Rhoda E., Human Rights in Commonwealth Africa 18 (Rowman and Littlefield, 1986)Google Scholar; see also generally Asante, S.K.B., Nation Building and Human Rights in Emergent African Nations, 2 Cornell Intl L J 72, 85 (1969)Google Scholar.
11. Nelson, and Green, , eds, International Human Rights at 86 (cited in note 6)Google Scholar.
12. The fact that losing your membership in the group meant losing your human rights might explain in part why many women today are still reluctant to claim their full range of rights for fear that they will be ostracized by their group.
13. Nelson, and Green, , eds. International Human Rights at 86 (cited in note 6)Google Scholar.
14. Gluckman, Max, The ideas in Barotse Jurisprudence (Yale U Press, 1965, repr Manchester U Press, 1992)Google Scholar.
15. Nhlapo, T.R., The African Family and Women's Rights: Friends or Foes?, Acta Juridica 135, 148 (1991)Google Scholar.
16. Id at 143.
17. Id at 144.
18. Id.
19. Obiora, L. Amede, Reconsidering African Customary Law, 17 Legal Stud Forum 217, 235 (1993)Google Scholar.
20. Id at 235. Glendon made the same point in her address at the Beijing Conference. See Glendon, , 25 Origins at 203 (cited in note 1)Google Scholar.
21. Obiora, , 17 Legal Stud Forum at 233 (cited in note 19)Google Scholar.
22. Moreover, these officials would in all likelihood have addressed their inquiries regarding indigenous legal systems to the men that they encountered rather than the women. As Carol Gilligan has noted, the gender of the person responding to questions about justice and the operation of the legal system has a significant influence on the way in which the system is perceived. See Gilligan, CarolIn a Different Voice (Harvard U Press, 1982)Google Scholar.
23. As the 1994 Cairo Conference on Population and Development exemplifies, much attention is being directed towards the issue of birth control in Africa in an effort to slow down the population growth. Cliquet, Robert and Thienpont, Kristiaan, Population and Development (Kluwer Academic Publishers, 1995)CrossRefGoogle Scholar. If African women, once revered for being mothers, are now being encouraged not to have children, or at least not so many children, their very identity is being challenged. Because of the narrowness of the role ascribed to them, for example, that of a child bearer, it is difficult for African women to create other identities for themselves.
24. Obiora, , 17 Legal Stud Forum at 229 (cited in note 19)Google Scholar; citing as authority for this proposition the fact that property is bequeathed per stirpes, for example, to a branch of the family, rather than to an individual per capita.
25. Glendon, , Rights Talk at 109 (cited in note 7)Google Scholar. Tom Shaffer, in The Legal Ethics of Radical Individualism, 65 Tex L Rev 963 (1987)Google Scholar continually reminds me that this is not the case, and that there is no such thing, to use B.F. Skinner's phrase as “just a human being.”
26. Nhlapo, notes that “… the African value system does not perceive women as separate entities but always as adjuncts to the family.” Nhlapo, Acta Juridica at 145 (cited in note 15).
27. This paradox is clearly illustrated by a group of ANC women calling itself the Mothers and Daughters of the Nation which was formed to ensure that women's rights were heeded by the ANC at their National Convention. One supporter of women's rights who did not wish to associate herself with the group because of their name commented that the Mothers and Daughters of the Nation never stand alone as just women, but must always see themselves in relation to something else; they always have to be someone's mother, wife or daughter.
28. Nhlapo, Acta Juridica at 144 (cited in note 15).
29. Once married, a woman may stay with her husband's family even if he dies, or she may return to her family.
30. Nhlapo, Acta Juridica at 145 (cited in note 15).
31. An example of the importance placed on motherhood is the sororate and levirate unions. If a woman was barren her husband could take one of her younger sisters as a wife to bear him children, (the sororate union). If a woman's husband died, one of his male relatives would take the responsibility of having children with the woman, (the levirate union). See Bennett, T.W., A Sourcebook of African Customary Law for Southern Africa 410 (Juta & Co., Ltd., 1991)Google Scholar.
32. It has been argued by Bennett and others that colonial intervention in customary law via legislation and judicial law making fixed customary law at a certain stage in its development and discouraged the growth and change that had previously been central to customary law. Bennett, , Acta Juridica at 25 (cited in note 7)Google Scholar.
33. A. C. Myburgh argues that a woman is permitted to exercise the group's authority in certain limited ways such as by offering herself in marriage to a member of another group. Myburgh, A. C., Papers on Indigenous Law in Southern Africa 79 (J. L. van Schaik (Pty) Ltd., 1985)Google Scholar. While this may be the case, it must be added that such an offer has to be made with the approval and consent of the rest of the members of the group.
34. It is debasing to women that they have no say in the acquisition of land which will be used to essentially enslave them. See, for example, Schapera, Isaac, A Handbook of Tswana Law and Custom 198, 201 (LIT Verlag, 1994)Google Scholar; stating that the amount of land a married tribesman is entitled to is directly reflected by the number of wives he had. “There is no limitation in theory to the number of fields a man may have. Every married man is allowed to have as many fields as he wishes to cultivate; and the only effective check upon the number is imposed by his capacity for working them.” However, “… since the vast majority of men nowadays are monogamists, this factor no longer plays much part in determining the size of a plot.”
35. Nhlapo, , Acta Juridica at 145–6 (cited in note 15)Google Scholar.
36. See Bennett, , A Sourcebook at 154 (cited in note 31)Google Scholar. This system broke up families by permitting only workers with work permits to reside in urban areas and requiring that the rest of the family remain in the rural areas. Often it was the male rights bearer of customary law who was working in the cities or on the mines while his family remained in the rural area. This same person was supposed to exercise rights on behalf of a group that he had very little contact with for eleven months of the year.
37. With the limited education that most girls receive, the only jobs available to them are as domestic workers.
38. This is illustrated by the fact that maintenance for African children has become a subject of legislation; in many African countries the law now requires African men to pay child support. Previously this was not an issue as the structure of the extended African family, and the dictates of customary law meant that children were usually cared for by the families of their father.
39. Nelson, and Green, , eds. International Human Rights at 87 (cited in note 6)Google Scholar.
40. Howard, Rhoda E., Cultural Absolution and the Nostalgia for Community, 15 Hum Rts Q 315, 319 (1993)CrossRefGoogle Scholar.
41. Id at 332.
42. Id. Undoubtedly many African women share this view. Wilfred Scharf, Professor of Law at the University of Cape Town in a lecture he gave on December 1, 1991 at Notre Dame Law School, pointed out that in Zimbabwe, many women are opposed to the newly introduced Age of Majority Act which accords majority to every individual at the age of 18. Scharf says that some women oppose this law because they feel that it renders them “all alone, without the guardianship and support of the family” that they had known under customary law.
43. African [Banjul] Charter on Human and Peoples' Rights, Preamble, Art 18, 21 ILM 58 (1982).
44. GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966), Arts 14(1), 2(1), 999 UNTS 171.
45. Howard, , 15 Hum Rts Q at 336 (cited in note 40)Google Scholar. Howard is very critical of communitarianism and refers to the “myths” of community living, because it is her view that proponents of communitarianism idealize societies that practice community oriented legal systems. I, unlike Howard, believe that there are still viable and fairly cohesive communities which can practice a community system of law. However, Howard's point is well taken that justice for the members of the community is often overlooked when communitarianism is asserted.
46. GA Res 217A (III), UN Doc A/810 at 71 (1948)Google Scholar.
47. See, for example, the International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 (1966), 993 UNTS 3.
48. A country is permitted in international law by Article 2(d) of the Vienna Convention on the Law of Treaties to sign and ratify a treaty but to enter a reservation to one of the provisions contained in the treaty. There is no record of any of the African countries entering reservations based on the fact that individual rights are inimical to their community oriented customary law systems. Perhaps one reason for this is that proponents of customary law have not had sufficient influence on their respective governments to demand this. Also, African countries are often accused of having such poor human rights records that they do not feel comfortable making such reservations in front of western governments. Vienna Convention on the Law of Treaties, UN Doc A/Conf 39/28, UKTS 58 (1980), 8 ILM 679Google Scholar.
49. A lack of participation in the drafting of those international conventions encompasses both the scenario where an African country may not have had a delegate at the Conference which endorsed the convention, and the scenario where African delegates may have been present, but may not have had the same influence or input as western countries.
50. Glendon, , Rights Talk at 112 (cited in note 7)Google Scholar.
51. Id at 115.
52. Emile Durkheim notes that “the State is too remote from individuals; its relations with them too external and intermittent to penetrate deeply into individual consciences and socialize them within.” Glendon, , Rights Talk at 118 (cited in note 7)Google Scholar.
53. Id at 109.
54. Donnelly, Jack, Universal Human Rights in Theory and Practice (Cornell U Press, 1989)Google Scholar.
55. I regard the Organization of African Unity (OAU) as a community.
56. African [Banjul] Charter at Art 20(3) (cited in note 43).
57. Beall, Jo, Hassim, Shireen and Todes, Allison, ‘A bit on the Side’?: Gender Struggles in the Politics of Transformation in South Africa, 33 Feminist Rev 30, 32 (Autumn, 1989)CrossRefGoogle Scholar.
58. Kaganas, Felicity and Murray, Christina point out that “The liberation movement has tended to subsume women's interests under the broader political struggle.” Kaganas, Felicity and Murray, Christina, Law, Women and the Family: The Question of Polygyny in a New South Africa, Acta Juridica 116, 117 (1991)Google Scholar.
59. Beall, , Hassim, and Todes, , 33 Feminist Rev at 32 (cited in note 57)Google Scholar.
60. Nhlapo, , Acta Juridica at 139 (cited in note 15)Google Scholar.
61. Kaganas, and Murray, , 32 Acta Juridica at 118 (cited in note 58)Google Scholar.
62. Nhlapo is of the opinion that “… the overriding value in the African family is reflected in the non-individual nature of African marriage …” Because feminism was seen as asserting the individuality of the parties to a marriage, it was (and still is) considered a threat to African society. Nhlapo, , Acta Juridica at 137 (cited in note 15)Google Scholar.
63. Riley, Denise, Am I that Name? Feminism and the Category of ‘Women’ in History (U of Minnesota Press, 1988)Google Scholar.
64. Moore, Henrietta L., Feminism and Anthropology 2, 7–8 (U of Minnesota Press, 1988)Google Scholar; Kaganas, and Murray, , Acta Juridica at 118 (cited in note 58)Google Scholar.
65. Rhode, Deborah L., ed. Theoretical Perspectives on Sexual Difference (Yale U Press, 1990)Google Scholar.
66. Teson, Fernando R., International Human Rights and Cultural Relativism, 25 Virginia J Intl Law 889, 891 (Summer 1985)Google Scholar.
67. See, for example, the Covenant on Economic, Social and Cultural Rights (cited in note 47); the Covenant on Civil and Political Rights (cited in note 44); and the African [Banjul] Charter (cited in note 43).
68. See, for example, Articles 1 and 2 of the Universal Declaration of Human Rights (cited in note 46) which provide for the equality, dignity and freedom of all human beings without any distinction on the basis of sex.
69. For example, the African [Banjul] Charter (cited in note 43) is devoted to upholding African civilization and heritage and the African perspective of human rights, yet it too provides for freedom from discrimination on the basis of sex. It is not altogether clear from this document which right is to be accorded preference.
70. This right was clearly established by Article 2 of the Universal Declaration of Human Rights (cited in note 46). It has been expanded on by Article 3 of the Covenant on Economic, Social and Cultural Rights (cited in note 47) which provides for the equal access of men and women to economic, social and cultural rights. Moreover, the right to freedom from discrimination on the basis of gender is recognized in the Covenant on Civil and Political Rights (cited in note 44) and the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), GA Res 34/180, 34 UN GAOR Supp (No 46) at 193, UN Doc A/34/46.
71. CEDAW, Art 5(a) (cited in note 70).
72. The Committee was established pursuant to Article 17 of the Convention. It is comprised of 23 experts from various geographical areas who are elected by the states parties to the Convention. CEDAW, Art 17 (cited in note 70). See the report of the Committee found in CEDAW/C/SR113 25 Feb, 1988.
73. African [Banjul] Charter, Art 18(3) (cited in note 43).
74. Id at Art 17.
75. D'Sa, Rose M., Human And Peoples' Rights: Distinctive Features of the African Charter, 29 J African L 72, 74 (1985)Google Scholar.
Howard even conceives the whole African concept of human rights as being “a concept of human dignity.” Howard, , Human Rights in Commonwealth Africa at 18 (cited in note 10)Google Scholar.
76. African purists may argue that because Natural law originated in the west it is not applicable to African institutions or philosophies; however, the Greek and Roman societies in which Natural law developed were centered around the family or agnatic group and were patriarchal, much like in Africa. Thus applying Natural law to customary law is not wholly inappropriate. Finnis, John, Natural Law and Natural Rights 221 (Oxford U Press, 1980)Google Scholar.
77. Howard, , Human Rights in Commonwealth Africa at 18 (cited in note 10)Google Scholar.
78. Finnis, , Natural Law and Natural Rights at 221 (cited in note 76)Google Scholar.
79. See Weinreb, Lloyd L., Natural Law and Justice at 167 (Harvard U Press, 1987)Google Scholar. Weinreb argues that “All people ought to be treated alike in some respects, … because they have specifically human characteristics in common.”
80. Finnis, , Natural Law and Natural Rights at 223 (cited in note 76)Google Scholar.
81. Rodes, Robert E. Jr., The Legal Enterprise 159 (Dunellen Pub Corp and Kennikat Press Corp, 1976)Google Scholar.
82. The failure of the current system of customary law to accord women equal respect has been challenged by African women themselves. At the All Africa Law Conference held in Swaziland in 1981, the subordinate position of women subject to customary law was a focal point of discussion. The eighth Final Resolution of the Conference provided that: “[A]ny rule, institution or custom which degrades woman or fails to accord her the fundamental rights belonging to every individual is repugnant to justice.” The incompatibility of women's rights with the current system of customary law has become obvious - what remains to be determined is whether the two can ever be reconciled. The First All Africa Law Conference on the Individual Under African Law, Swaziland, 11-16 October, 1981, Final Resolution 8, 25 J African Law 58, 59 (1981)Google Scholar.
83. Weinreb, , Natural Law and Justice at 166 (cited in note 79)Google Scholar.
84. Call to Action is a group that amongst other things calls for the ordination of women to the priesthood and for the Church to revise its teachings on requiring celibacy for priests. Excommunication is the strongest sanction in the Catholic Church. It deprives a Catholic of participating in Church Sacraments such as communion or holding office in the Church. A Catholic who has been excommunicated is considered severed from the Church until such time as she or he repents.
85. Monsignor Thorburn's remarks were made in an interview with NPR Weekend Edition, Catholic Community in Lincoln, NE, Takes a Hard Stance, Transcript #1182-11 (06 30, 1996)Google Scholar.
86. For a report on the project see Seeking Catholic ‘Common Ground,’Newsday A13 (08 13, 1996)Google Scholar.
87. Bishop D'Arcy's response to the project was reported in DeAgostino, Martin, Catholics in Conflict: Some See Church Polarized, Unity Imperiled, South Bend Trib, D1 (08 16, 1996)Google Scholar.
88. The Pope made these remarks during a speech given at the tomb of Mary McKillop in Sydney, Australia on Jan 19, 1995; see Paul, Pope John II, Women's Roles Discussed at Nun's Beatification, 24 Origins 558, 559 (02 2, 1995)Google Scholar.
89. Id at 559.
90. Id.
91. Gately, Edwina, A Warm Moist Salty God: Women Journeying Towards Wisdom 74 (Source Books, 1993, repr 1994)Google Scholar.
92. Id at 77.
93. Id at 55.
94. Paul, Pope John II, Letter to Women, 25 Origins 139 (07 27, 1995)Google Scholar.
95. Paul, Pope John II, Post-Synodal Apostolic Exhortation Christifideles Laid, of His Holiness John Paul II on the Vocation and the Mission of the Lay Faithful in the Church and the World 153 (US Catholic Conf, 1988)Google Scholar.
96. Paul, Pope John II, Appeal to the Church on Women's Behalf, 25 Origins 185 (09 7, 1995)Google Scholar.
97. Paul, Pope John II, On Fully Fostering Women's Roles in the Church, 25 Origins 203 (09 14, 1995)Google Scholar.
98. Nhlapo, , Acta Juridica at 141 (cited in note 15)Google Scholar.
99. Id at 146.
100. Paul, Pope John II, 25 Origins at 203 (cited in note 97)Google Scholar.
101. Gately, , A Warm Moist Salty God at 45 (cited in note 91)Google Scholar.
102. Id.