The courage not to look away: Protecting women’s rights by strategic litigation

Presentation to the training in the use of strategic litigation workshop for lawyers from countries in east, southern, western Africa, December 3-4, 2012

 By Irũngũ Houghton, Oxfam Pan Africa Director[i]

 It gives me great pleasure to share some thoughts at the opening of this workshop here in Nairobi.

 Listening to the self-introductions, I can only wonder what could happen in a room of 17 committed lawyers and a training manual over two days.[ii] My remarks recall two personal moments, sketch the current context and the potential of strategic litigation for advancing the realisation of the African Union Protocol on the Rights of Women in Africa.

 I am 14 years of age and standing ten back in a bus queue. My absent-mindedness is shattered by a violent attack on a woman towards the front of the queue. Another woman has grabbed her by the hair and proceeded to pull out her hair one root at a time. No-one moves to help her. Five minutes later, the woman attacker walks off leaving her victim on the floor sobbing. Her hair is strewn all around her. Still no-one moves to help her. My silence and inaction humiliates me. I later swear, I will never allow such a thing to happen again.

Five years later, I am relaxing on a sofa in my uncle’s house when he comes into the room and suggests confidently, that I study law, for he explains, lawyers make good money. I respectfully decline.  I am not interested in money. I am only interested in why Africa is so endowed with resources yet its people so poor. I study history and political science instead. Both experiences have some irony given my presentation this morning.

 2013 marks the fiftieth anniversary of the Organisation of African Unity and the tenth year since the AU protocol on the rights of women in Africa was adopted. Predictably, African citizens will be tempted to sink into afro-pessimism. In so doing they will be ignoring the tremendous progress we have made as a continent and a world. By 2012, 35 African countries have ratified the AU Women’s Protocol, bringing millions of women and girls in sight of important freedoms and rights.  Worldwide, 139 constitutions now enshrine gender equality and non-discrimination. 125 countries have constitutions and laws that outlaw domestic violence. Yet, it is true that many of these frameworks alongside international and continental human rights instruments are rights on paper and not rights in practise.  Millions of women continue to be denied safety in their homes and communities, essential maternal healthcare and the rights to assets and matrimonial property.

 Strategic Litigation is the process of pressing legal charges against the state, organisations, individuals or a group of individuals in court. As a tool for advancing rights on paper, strategic litigation provides an opportunity for lawyers – private, public or not for profit – to restore the integrity of our law courts, Governments and communities. It provides for women’s organisations another avenue for realising the deferred dream of the Protocol.[iii]

There are at least four reasons for strategic litigation on the Protocol. Firstly, it provides a practical and direct way of protecting women against denial, dispossession violence and disempowerment and pressing for redress and compensation. Secondly, it enables women to visibly speak and act in ways that increases public understanding of the Protocol’s provisions thus reducing the public space for repeat abuses. Thirdly, by demanding enforcement, it increases the accountability of states and non-state actors (organisations, individuals and groups of individuals) to protect and promote these rights. Lastly, it can provoke short, medium and long-term policy and legal reform to strike down discriminatory laws.

 In the 2012/12 UN Women Progress report, they offer an illustrative case-study from Nepal on striking down marital rape.

 TheMeera Dhungana on behalf of FWLD v HMG

In Nepal, married women subjected to rape by their husbands had no recourse to justice until 2002, when the Forum for Women, Law and Development (FWLD) brought a case to the Supreme Court. The case invalidated the provision of the criminal code that exempted husbands from being charged with the rape of their wives. In rejecting the Government’s argument that outlawing marital rape would offend Hindu beliefs, the ruling also ended the conflict between the country’s Muluki Ain civil code, based on Hindu religious principles, and the 1990 Constitution, which pledges to end all forms of gender discrimination. The Court stated: ‘ Sexual intercourse in conjugal life is a normal course of behaviour, which must be based on consent. No religion may ever take it [marital rape] as lawful because the aim of a good religion is not to hate or cause loss to anyone.’

The Court ordered Parliament to amend the rape law, but the penalty for marital rape was set at only six months’ imprisonment, significantly lower than for other types of sexual assault. FWLD went back to court, winning a decision that the difference in penalties was discriminatory and that the law must be amended.3 Cases such as these reflect sweeping changes to the assumption that a wife implicitly consents to all sexual activity. By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal codes. [iv]

Introducing themselves, workshop participants spoke about their own challenges of stopping child defilement, wife desertion, under age marriage, denial of the right to safe abortion, forced sterilisation of women living positively with HIV, rape and property and asset stripping. Strategic litigation is a key lever to transforming the lives of women and girls and the conditions in which they live.

Building communities, cities, law courts, countries and a continent that works for all women, not just the educated and advantaged, requires some boldness, some unreasonability. If you take this on, you will honour the 100s of men and women who spent hours crafting each line and word in the Protocol, the 1000s of organisations across the continent and the millions of women whose lives are in need of transformation.

If you refuse to do what I did so many years ago – to look the other way while a woman’s rights were stripped in broad daylight – we can change the world, one space at a time. Ironically, eighteen years on, I wish I had done law. You did, now put it into the highest practise possible.

I wish you a productive workshop with bold action-plans. I look forward to meeting again to listen to the victories we have achieved through strategic litigation.

I thank you

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[i] Irũngũ Houghton is Oxfam pan Africa Director. He acknowledges the assistance of Moreen Majiwa, Oxfam Pan Africa Legal Officer, in writing this presentation. Comments on this paper are welcome and can be emailed to irunguh@oxfam.org.uk or tweeted to @irunguhoughton.

[ii]  See The Guide to using the Protocol on rights on women in Africa for legal action (2012) (http://www.equalitynow.org/protocol ) and for the AU Women’s Protocol visit http://www.africa-union.org/root/au/Documents/Treaties/Text/Protocol

[iii] Since 2004, members of the Solidarity for African Women’s Rights have implemented several strategies to accelerate policy implementation through a multi-sectoral approach by Governments and public understanding of the rights and freedoms contained in the Protocol.

[iv] UN Women Agency – 2011-2012 Progress of the World’s Women http://progress.unwomen.org