When culture overrides the law: Does 'rights talk' always get results?

By Kathambi Kinoti - AWID

The gulf between the law and practice

Most women's rights practitioners would agree that getting progressive laws
passed to protect women's rights is difficult, but the real battle is in
getting them implemented. This is the reason why the Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW) for
instance, has comprehensive reporting requirements from each state that is
party to the treaty.

Around the world, particularly in the global South, there are numerous
examples of negative cultural practices and restrictive interpretations of
religious norms prevailing over the law:

- In South Africa, despite a recent ban on virginity testing, the practice
continues unabated, with traditional leaders like King Goodwill Zwelithini
openly expressing defiance. [1]
- In Pakistan, there is the notorious case of Mukhtar Mai, the woman who
was reportedly gang-raped on the orders of a jirga allegedly as a
punishment for sexual offence her brother had committed. [2]
- In Guinea, since 1965, female genital mutilation has been a crime
punishable by death, yet the overwhelming majority of young girls still
undergo the practice. [3]

Traditional legal mechanisms still prevalent

Most of the countries where there is a gap between the law and practice
were colonized by Northern powers who introduced a legal system that
mirrored the system in their own countries and largely ignored the
extensive bodies of traditional law of the colonized people. The new laws
therefore did not take adequate account of the power wielded by culture and
traditional modes of
governance, a power that exists to date and continues to be overlooked. A
2002/3 UNIFEM study in Somalia showed that most people, even before the
collapse of the Somali state in 1991, were far more likely to refer their
disputes to the council of elders (known as 'guurti') than to the courts.
During the war and the reconstruction of the country, the elders performed
an indispensable role in maintaining social order. Sometimes, even if
people would like to access the protection of the state, it is practically
impossible. In some parts of Kenya such as the vast,
underdeveloped Turkana District, government services are stretched so thin
that people would have to walk for hundreds of kilometres to get to a
police station. Traditional all-male councils of elders in these and many
other communities around the world perform a vital quasi-legislative and
judicial role, but at the same time perpetuate discrimination against women
and violation of women's human rights. Customary law in most traditional
societies is unwritten, obtained from the usually unreliable memory of the
elders, and often applied on an ad-hoc basis.

The simple juxtaposition of a new legal system alongside the ancient system
did not necessarily automatically win people over to the 'Western' way of
thought. Also, it has been argued that one of the reasons for the gap
between laws in the books and the
practice on the ground may be the 'culture of rights.' [4] Although human
rights are unquestionably rooted in the inherent dignity of every
individual, for some people the culture of rights is associated with a
Western worldview because the articulation of the universal human rights at
an international level has in the past been, and continues to be driven by
European and North American countries. So in condemning aspects of
'Western' culture such as 'sexual permissiveness' proponents of traditional
practices such as virginity testing and female genital mutilation point to
the value of 'protecting women's honour.' They also stress their human
right to practise their culture. Cultural relativism has also encouraged
the continuation of cultural practices that violate human rights.

Rights talk versus culture talk

Mahmood Mamdani, uses the following example to illustrate how different
cultures may perceive the same violation:

''Imagine that a man slaps a woman in rural
KwaZulu-Natal, South Africa. At the same time another man slaps a woman in
a popular neighbourhood in Khartoum [Sudan], and yet a third does the same
in a classroom at the Sorbonne in Paris. All three women protest: the woman
in Paris that her rights have
been violated, the woman in Khartoum that her dignity has been violated,
and the woman in KwaZulu-Natal that custom has been violated. Every victim
protests. But the language of protest is different in each case.'' [5]

According to Mamdani, the language of protest bears a
relationship to the language of power, and therefore to understand why
protest employs the language of rights in Paris, dignity in Khartoum, and
custom in KwaZulu-Natal we must remember that power claims to uphold rights
in Paris, dignity in Khartoum and
custom in KwaZulu-Natal.

If his premise is correct, then the power structures in traditional
communities such as those in KwaZulu-Natal will uphold custom over right,
while the Islamic structures in Khartoum will uphold dignity over custom,
and the secular structures in Paris will uphold right over custom or
dignity. The question for women's rights advocates then becomes: How do we
appropriately appeal to the overriding values of the different power
structures in order to protect women's rights?

In Europe it is recognized that some practices that are said to be based on
religious beliefs have a negative effect on women, both women native to
Europe and immigrants. Often the line between culture and religion is
blurred. The Committee on Equal
Opportunities for Men and Women of the Council of Europe recently passed a
resolution calling for European states to protect their resident women in
Europe against rights violations done in the name of religion. [6] It
proposes specific policy and legislative measures, such as refusing to
accept cultural and religious relativism, and enforcing policies against
honour killings and female genital mutilation. While this may work in
Europe, other ways to engage the real power structures in the global South
will have to be explored. In Turkana, Kenya, one women's NGO, the Turkana
Women Conference Centre has been training women, to perform paralegal
duties in their local communities. Taking into account the pervasiveness of
traditional dispute resolution structures, they have explored ways to gain
credibility in their communities by working within the system instead of
confronting it head-on. They report that they now sit in on local councils,
convened by administrative chiefs, and their input is sought on
resolving disputes involving women. However, they are not an integral part
of the system, and act more as advisors. This approach does not challenge
the contravention of women's equal right to representation, but it does
bring gains for women's rights. It raises the question whether human rights
are an end in themselves, a means to the end of social justice, or both.

It is clear that the current human rights framework is not adequately
curbing traditional practices that are harmful to women. Yet compromising
women's rights is not an option. Women's rights advocates must explore
alternative ways of achieving the end of protection of the human rights and
dignity of women.

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Notes:

1. See La Franiere, Sharon. 'Tradition binds African women, despite laws,'
New York Times, Sunday, January 1, 2006. http://www.whrnet.org/
2. http://news.bbc.co.uk/2/hi/south_asia/4223436.stm
3. Ibid note 1.
4. Nhlapo, Thandabantu. 'The African customary law of marriage and the
rights conundrum,' ''Beyond Rights Talk and Culture Talk,'' Cape Town:
David Philip Publishers, 2000.
5. Mamdani, Mahmood, ed. ''Beyond Rights Talk,'' op.cit. p. 1.
6. Report of the Committee on Equal Opportunities for Women and Men,
September 16, 2005. Doc 10670, Council of Europe.
http://assembly.coe.int/Documents/WorkingDocs/doc05/EDOC10670.htm