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CHAPTER ONE

INTRODUCTION

1.1.      National Human Rights Institutions (NHRIs)

Marginalized and vulnerable groups have always existed in societies. Such groups have always needed protectors of their rights. In democratic countries institutions have had to be established to ensure that the rights of these groups are protected. National Human Rights Institutions (NHRIs) are part of these institutions. NHRIs are important and vital as they ‗serve as independent bodies for the protection and promotion of human rights‘.1

The United Nations (UN) describes NHRIs as ‗a body established by a government through the constitution, or the law or decree, with the specific functions of promotion and protection of human rights‘.2 It is universally accepted that the benchmark of standards which all NHRIs ought to comply with are the Paris Principles3, adopted by the UN General Assembly in 1993.

The Paris Principles are a set of guidelines outlining minimum standards for NHRIs. These standards relate to the competence and responsibilities of the NHRIs; their composition; guarantees of their independence and pluralism; and the methods of their operation. The Paris Principles reinforce the principle that NHRIs play a significant role at national level ‗in promoting and protecting human rights and fundamental freedoms and in developing and enhancing public awareness of those rights and freedoms‘.4 It is universally accepted that unless an NHRI adheres with the Paris Principles it cannot be accredited as an NHRI and its effectiveness is brought into question. Of particular significance for this paper is the minimum standard impacting on the mandate and powers of NHRIs. It is important that NHRIs have a broad mandate and that its powers in relation to the promotion and protection of human rights are not limited. This is relevant when addressing the issue of the protection of women‘s rights.

1  J Matshekga ‘Toothless bulldogs? The human rights commissions of Uganda and South Africa: A comparative study of their independence’ (2002) 2 African Human Right Law Journal 68.

2  R Murray The role of National Human Rights Institutions at the international and regional levels: an Africanexperience (2007) 3.

3  The Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (Paris Principles), Resolution 18/134 of 20 December 1993.

4  Paris Principles (n 3 above).

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As institutions that have recognition at national, regional and international level, NHRIs are in the best position to protect and promote women‘s rights in accordance with their overall purpose to protect human rights. NHRIs as semi-official institutions have the advantage of being able to have a relationship with government and non-governmental institutions (NGOs). Murray captures this as follows:

NHRIs are different from NGOs because they are presumed to occupy some semi-official position. On the other hand, an NHRI is presumed to be the watchdog of government and in order to do so, must not be in the pocket of government; it must ideally have integrity to step back and make decisions alone which may conflict with the views of the government.5

An NHRI is ‗an official body working on the protection of human rights…and are in a unique position to influence politicians and civil servants‘ and thus ‗guarantee a certain expertise…free from any politically partisan approach‘.6 If this component of an NHRI is handled well there can be optimum results for the protection of women‘s rights throughout Africa. NHRIs can influence greater and speedier implementation of legislation protecting women‘s rights through state agencies and work with non-state actors as well. Although this balancing act is not an easy task, it is one that NHRIs need to undertake with care and diligence. In carrying out this task NHRIs should be aware of ‗succumbing to the pressure‘7 of other actors in order to ensure that it is effective in its promotion and protection of human rights. Though NHRIs cannot attend to all social ills and there must be realistic expectations placed on them viewed in light of the political, economic and social context in which they were created,8 the importance in women‘s rights protection cannot be downplayed.

5  Murray (n 2 above) 6.

6  N 2 above.

7  N 2 above.

8  R Murray ‘National human rights institutions: criteria and factors for assessing their effectiveness’ (2007) 25/2

Netherlands Quarterly of Human Rights 191.

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1.2       Protection of women’s rights

Human rights by their nature include the rights of women. Women have been marginalized for many years throughout the world based on their being women and through discrimination based on culture, patriarchal supremacy and at times religious traditions. Therefore there has been a need to try and eliminate every form of discrimination of women and to protect and promote women‘s rights. The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) defines discrimination against women as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.9

On a regional level in Africa, the Protocol on the Rights of Women10 adopts a similar definition of discrimination against women as does CEDAW, save that the definition includes that discrimination against women includes ‗differential treatment based on sex‘.11

Despite progress and success in the protection women‘s rights, women still face issues which negatively impact on their human rights. Work that has been done by NHRIs and NGOs has led to many states enacting legislation and policies for the protection of women‘s rights. For example both Ghana and the Republic of South Africa (RSA) have legislation that criminalizes domestic violence against women, something that was once unheard of in Africa because domestic matters were considered private and not involving the state.

Due to the issues that still face African women in Ghana and RSA there should be no false sense of complacency in the protection of women‘s rights because of the progress made. Some of the issues facing women are those that have been in existence and have either gotten worse or evolved. As a result of these existing issues the protection of women‘s rights continues to be an area of great importance. The fact that there are still bodies set up at international,

9  Adopted by the UN General Assembly in Resolution 34/180 of December 1979.

10 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Protocol on the

Rights of Women), adopted 11 July 2003.

11 Art 1(h) Protocol on the Rights of Women.

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regional and national levels to try and address issues facing women is testament of the fact that there is still a need to protect women‘s rights. The UN Secretary-General confirms that:

Violence against women and girls continues unabated in every continent, country and culture. It takes a devastating toll on women‘s lives, on their families, and on society as a whole. Most societies prohibit such violence — yet the reality is that too often, it is covered up or tacitly condoned.12

Sadly despite positive achievements for the protection of the rights of African women they still face violations of their civil and political, and socio-economic rights.

Protection of women‘s civil and political rights in Ghana and RSA are still a challenge due to violations of the rights to life,13 human dignity14, equality15 and protection from slavery and forced labour.16 The protection of socio-economic rights is also a concern due to issues relating to land, poverty, lack of access to basic health care and education. Furthermore there is the challenge of HIV/AIDS in Africa17 where women are most vulnerable to infections due to rapes, unfaithfulness of their partners and/or the inability, in certain situations, to negotiate for safe sex.

A recent conference attended by the author in Ghana at the Women‘s Human Rights Policy Advocacy Forum Series (Ghana‘s Women Conference)18 an official from the Ghanaian NHRI – Commission on Human Rights and Administrative Justice (CHRAJ) confirmed that although work had been done, there was still a greater role for each stakeholder to play in the protection of women‘s rights in Ghana. These practices include female genital mutilation (FGM) and trokosi.

12  United Nations Development Fund for Women ‘Violence against women – facts and figures’ www.unifem.org/…/violence_against_women/facts_figures_violence_against_women_2007.pdf (accessed 16 August 2010).

13 Sec 11 of the Constitution of the Republic of South Africa Act 108 of 1996 (South African Constitution) and art 13 of the Constitution of the Republic of Ghana (Amendment) Act 1992 (Ghanaian Constitution).

14 Sec 11 South African Constitution and art 15 Ghanaian Constitution.

15 Sec 9 South African Constitution and art 17 Ghanaian Constitution.

16 Art 16 Ghanaian Constitution.

17  Houda Mejri ‘Major Gains and Challenges for Women in Africa’, 8 March 2005

(accessed 16 August 2010).

18 Held by the Ark Foundation of Ghana on 9 September 2010.

The challenges that continue to face women should not cause discouragement but should lead to a vigorous protection of women‘s rights. It is in this role that NHRIs are of grave importance. As promoters and protectors of human rights, NHRIs play a pivotal role in ensuring that a culture of human rights is practiced in a country.

1.3       Problem statement

Harmful cultural practices, GBV, rape, HIV/AIDS, stigmatization/discrimination are just some of the issues that women in Ghana and RSA continue to face. These practices and incidents continue to violate their rights and raise the concern that there should be greater protection of women‘s rights. Unfortunately, women continue to be vulnerable and marginalized and are ‗most often the ones whose human rights are violated‘.19 Women‘s rights require special attention, promotion and protection due to their vulnerability and marginalization. The effect of continued degradation and discrimination of women has an adverse affect on society at large.

Though it would be unrealistic to expect a complete eradication of the violation of women‘s rights, it is important to ascertain the relationship between the protection of these rights and the existence of NHRIs. The problem therefore is the fact that violations of women‘s rights continue in Ghana and RSA and need to be addressed.

1.4       Research questions

The main question that this paper seeks to answer is whether the NHRIs have fulfilled their mandates by the protection of the rights of women in Africa and the impact made. In order to get an answer to this question the following areas will be examined:

·      What are NHRIs and what the overall challenges faced by women in Africa and in particular women in Ghana and RSA?

·      What are the mandates, powers and functions of CHRAJ and South African Human Rights Commission (SAHRC)? Do the mandates equip them to protect women‘s rights? What is their responsiveness to gender within their own structures? .

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