An Opportunity for Women Rights in Zambia

The time is crucial for Zambians. Their decisions today will determine the years or perhaps decades ahead. The country is drafting its new Constitution. Zambians especially women should be more watchful as the choices made now will decide the kind of life they and their next generation will be living. The Constitution Review Committee’s proposal to repeal gender discriminatory Article 23 should be welcomed whose clauses (4)(5) and (7) allowed for discrimination on the basis of custom and other traditional practices in areas of marriages, inheritance and death (burial rights). The Committee has taken a step to repeal the Article 139 (13) that subsumed feminine gender in the masculine gender and rendered women invisible. But there is more that can done for the women of Zambia.

Women must be provided full rights relating to their health and reproduction. First draft of the Constitution provides contradictory provisions for the reproductive rights of women. Article 52 states that without limiting any right or freedom guaranteed under the Bill of Rights, women have the right to reproductive health. But in Article 28 (1), the proposed draft says that a person has the right to life, which begins at conception. Determining the point of fertilization is medically difficult and if assumed that life begins at conception, it would compromise the human rights of women. These two articles contradict each other and if read with Article 317, the latter can lead to restrictions as a result of which reproductive health services and procedures may become unconstitutional in Zambia.

Photo Credit: Richard Mulonga/IPS

Other African constitutions have provided women these rights too. In South Africa, although the Constitution does not mention abortion but the two sections of the bill of rights give women these reproductive rights. Section 12(2) and section 27(1)(a) implicitly guarantee this right to women. Constitutions of Tanzania and Uganda also accept the rights if the life of a woman is in danger. Kenyan Constitution approved in 2010 accords women this right in Article 43 (1) (a).

The Republic of Zambia is also under international commitment to guarantee this right to women. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that Zambia ratified in 1985 provides that states Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

The Constitution must also provide equality and non-discrimination as a non-derogable right. First draft does not expressly mentions equality or proscribes unfair discrimination as a non-derogable right. Article 69, relating to non-derogable rights and freedoms proposes does not mention equality or nondiscrimination as a non-derogable right. Other African constitutions have guaranteed provision of such equality among genders. Constitution of South African expressly provides against unfair discrimination and counts it as a non-derogable right. Article 9 says there cannot be any discrimination on the grounds of race, color, ethnic or social origin, sex, religion or language. This article is a part of the Table of Non-Derogable Rights. In Malawi according to Article 45.3 of the Constitution women rights are non-derogable rights that are included in the Chapter IV.

The Constitution does not provide for specific women representation in National Assembly and District Councils. Article 136 of the proposed draft that deals with the composition of the National Assembly does not specify any seats for women. Although the initial draft ensures women representation in Parliamentary Service Commission, Judicial Service Commission, Provincial Assembly but it does not guarantee women representation in National Assembly and District Council. The constitution is vague on women representation and it is possible that there won’t be enough numbers in Parliament if the Constitution does not specifically provide for the seats for women. The proposed draft is also vague about representation of women in political parties.

The number of women in National Assembly has declined over the years. In the 2011 Elections, there were only 17 women elected as compared to 141 men that make for 10.76% of the total seats. Zambia is a party to the SADC Declaration on Gender and Development (SADCGD (1997) which provides for, amongst other measures, the achievement by member States of a minimum target of 30% women in politics and decision-making positions by 2005. It is time to fulfill the commitment now.

Moreover, some Constitutions in Africa do ensure women representation in their Parliaments. The Constitution of Tanzania allows for reserved seats through its Article 66. 1(b) and Article 78.1. Ugandan Constitution also ensures women representation in Parliament for each district through Article 78(1) and one-third membership in its local governments through Article 180. The new Kenyan Constitution passed in 2010, through its Article 81 (b) of maintains a one third requirement for either gender in elective bodies giving women of Kenya at least 1/3 minimum in elective public bodies.

The proposed draft must also specifically include the right to be free from ‘gender-violence’. It does not mention gender violence expressly in the Bill of Rights. Its Article related to security rights does not include ‘gender violence’.  Although addition of “gender violence” was considered and reviewed by the Constitution Review Committee (mentioned in report on page 136,137) but it was recommended that the provision should be maintained without addition.  

Zambia is required by Convention on the Elimination of All Forms of Discrimination against Women to ensure measures to eliminate violence against women. Although CEDAW does not contain an explicit reference to violence against women, the CEDAW Committee has issued a General Recommendation (No. 12 eighth session, 1989) that states that violence directed against a woman recognized and addressed as discrimination under the convention.

The proposed draft interestingly, does not guarantee provision of socio economic rights. The language is vague is Article 61, which provides that Parliament shall enact legislation that provides measures, which are reasonable, to achieve the progressive realization of the economic, social and cultural rights and in such matters, where the state cannot fulfill its duty, the constitution court cannot interfere. Zambia is under commitment to ensure provision of socio economic and cultural rights especially to women. Article 3 of CEDAW says that States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women.

The making of the Constitution is a choice to decide about the future. The proposed draft should reflect the future goals and aspirations of Zambians especially its women. Zambia also has this opportunity to fulfill its international commitments and follow the leading examples of other African constitutions. The making of this Constitution is a chance to rectify discriminatory elementsembedded in customs, laws and mindsets and Zambians, should view this as an important opportunity.

Dichotomy of Laws in Pakistan

Equality Now is an international human rights organization that works to  protect and promote the rights of women and girls worldwide. I focus specifically on promoting the legal rights of women and advocacy against sexual violence. Through its Discrimination in Law program, Equality Now supports and publicizes selected laws prevalent in legal codes and statutes of different countries addressing the most common and significant gender based discriminations in law.

Rights and benefits arising out of citizenship are an essential concept to every legal framework. It is the duty of the State to treat all its citizens equally and guarantee the provision of rights they are entitled to. These duties of the State are also referred to as fundamental rights. However, sometimes these fundamental rights are violated  by the parallel set of laws framed to achieve a particular purpose. Such a contradiction exists in Pakistan, for example, where the Citizenship Act of 1951 violates the basics of the Constitution. Its section 10 provides for the process married women can acquire citizenship in Pakistan. A married man can earn citizenship for his spouse but a woman cannot do the same. She is not entitled to pass on her [the right of citizenship to her spouse even by fulfilling all the other requirements, if her spouse is a foreigner.

The Constitution of Pakistan, the supreme law of the land, provides for non-discriminations on the basis of sex. Article 25(1) states that all citizens are equal before law and entitled to equal protection of law. Its Section 2 prohibits any gender discrimination and prescribes that there shall be no discrimination on the basis of sex alone.

The Citizenship Act should not withstand this paradox however it still exists. There had been efforts in Pakistani Parliament to change it but they all ended in a pigeonhole. Dr. Attiya Inayatullah, a PML-Q member, introduced a private member bill to amend the Pakistan Citizenship Act, 1951 on June 10, 2008. It sought to amend the section by adding that a man who is married to a Pakistani woman shall be eligible to apply for registration as a citizen of Pakistan after fulfilling the conditions as laid out in section 10 of this Act, for a foreign woman. A private member bill was also tabled by the ANP member National Assembly Bushra Gohar on February 17, 2010 that sought to amend the section to provide the married women right of citizenship for their spouses. The Ministry of the Interior opposed both bills in the house. They are now pending in Parliament either because committees have not taken any action or members did not show further interest in such legislation.

In 2006, Federal Shariat Court in its original jurisdiction took suo motu notice using its powers under Article 203-D after a news item reported that citizenship was denied to a Pakistani woman’s foreign husband. The court asked the Ministry of Law, the Ministry of the Interior and the Attorney General for an explanation on the matter. The ministry responded with the approval of the Ministry of Law, Justice and Human Rights and gave the following bizarre concerns for upholding the provision:

1.     Afghan refugees and Biharis will misuse it.

2.     Unemployment will go up.

3.     After divorcing Pakistani women a foreign man will be able to roam around in Pakistan freely.

4.     Foreign women marrying Pakistani men cannot be equated to foreign men marrying Pakistani women in our society

5.     It will provide ingress to Indian male citizens into Pakistan.

However, the Court rejected these concerns and decided on December 19, 2007 that the Act is discriminatory against women and asked the President of Pakistan to amend the Pakistan Citizenship Act within six months so that a Pakistani female's non-Pakistani husband could also get Pakistani citizenship, just like a foreign woman married to a Pakistani man. Although the Federal Shariat Court is an apex level court for Islamic laws in Pakistan, still the aforesaid act will remain the same until Parliament/President approves changes to it.

Citizenship of any country is a sacred and earnest commitment of allegiance towards the constitution and laws of the State. It cannot be ensured if laws relating to citizenship are not appropriately designed or are discriminatory. This dichotomy of laws and discrimination do not hold valid ground as it violates the Constitution of Pakistan and the country’s international commitments under the Convention on the Elimination of All Forms of Discriminations against Women (CEDAW). One can only hope that Parliamentarians and the Commission on Status of Women (a body formed to recommend laws related to women) with its new powers will take note of this to ensure that women in Pakistan are guaranteed their legal rights.

This blog reflects the personal views of the author and not necessarily those of Equality Now.