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Gender Equality and Women's Empowerment ACADEMIC PAPER GENDER EQUALITY AND WOMEN’S EMPOWERMENT: CONSTITUTIONAL JURISPRUDENCE MAY 2017 UN WOMEN © 2017 UN Women The electronic version of this publication is available under a Creative Commons Attribute- NonCommercial-ShareAlike 3.0 licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this licence see: <http:// creativecommons.org/licenses/by-nc-sa/3.0/>. This publication is independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of UN Women, the Just Governance Group or International IDEA, or the view of their respective Boards or Council members. ACADEMIC PAPER GENDER EQUALITY AND WOMEN’S EMPOWERMENT: CONSTITUTIONAL JURISPRUDENCE UN WOMEN NEW YORK, MAY 2017 TABLE OF CONTENTS Acknowledgments ...................................................... 7 Abbreviations ......................................................... 10 Executive Summary .................................................... 11 Recommendations. 11 Constitutional provisions .................................... 11 CEDAW and international instruments ......................... 12 Judicial reasoning ........................................... 12 Public-interest litigation approaches .......................... 12 Addressing gaps through further research. 12 1. Introduction ........................................................ 14 1.1. Objectives and scope .................................... 14 1.2. Overarching theme and sub-themes ...................... 14 Family law ..................................... 15 Gender-based violence .......................... 16 Women’s access to public life ..................... 16 1.3. Methodology, scope and sources ......................... 17 Sources. 18 Limitations ..................................... 18 2. Analysis of constitutional jurisprudence: family law ....................... 20 2.1. Marriage .............................................. 20 2.2. Divorce ............................................... 25 2.3. Inheritance ............................................ 30 2.4. Summary observations related to family jurisprudence ������������ 34 Constitutional provisions in family law cases ���������������� 34 Application of CEDAW and other international human rights treaties ................ 35 Innovative approaches to judicial reasoning and strategic public interest litigation ���������� 35 Trends in the resolution of tensions ............... 36 Patterns in the resolution of tensions ............. 36 Areas for further research ........................ 37 GENDER EQUALITY AND WOMEN’S EMPOWERMENT: 4 CONSTITUTIONAL JURISPRUDENCE 3. Analysis of constitutional jurisprudence: gender-based violence ............ 38 3.1. Child marriage ......................................... 38 3.2. Duties of the state to address domestic violence . 40 3.3. Duty of the state to address and redress sexual violence . 44 3.4. Evidentiary rules in cases of sexual violence ................ 47 3.5. Sexual violence and armed conflict ....................... 49 3.6. Customary, religious or patriarchal practices that violate the physical integrity and dignity of women ......... 52 3.7. Summary observations related to gender-based violence �������� 56 Constitutional provisions in GBV cases . 56 Application of CEDAW and other international instruments in GBV cases ............ 57 Innovative approaches to judicial reasoning and strategic litigation in GBV cases . 57 Trends in GBV cases ............................. 58 Patterns in GBV cases ............................ 58 Areas for further research ........................ 59 4. Analysis of constitutional jurisprudence: women’s access to public life ...... 60 4.1 Right of mother to pass nationality/citizenship to children �������� 60 4.2. Equality in identity-related registration .................... 62 4.3. Women’s political participation ........................... 63 Exercise of equality, cultural and religious rights related to women’s access to public spaces and full participation in society ............. 66 4.4. Summary of observations related to women’s access to public life ........................ 70 Constitutional provisions: women’s access to public life ..................... 70 Application of CEDAW and other international instruments: women’s access to public life .......... 70 Innovative approaches to judicial reasoning and strategic litigation: women’s access to public life ���������� 70 Trends in the resolution of tensions: women’s access to public life ..................... 71 Patterns in the resolution of tensions: women’s access to public life ..................... 71 Gaps: women’s access to public life. 71 GENDER EQUALITY AND WOMEN’S EMPOWERMENT: CONSTITUTIONAL JURISPRUDENCE 5 5. Conclusions. 72 5.1. Constitutional provisions ................................ 72 Provisions that support the resolution of tensions between rights and customary, traditional, religious or cultural rules and practices .................... 72 Provisions providing access to courts and strategic litigation ................... 73 5.2. Application of CEDAW and other international human rights treaties ........................... 74 5.3. Innovative approaches to judicial reasoning and strategic litigation ............................. 75 Innovative approaches to judicial reasoning. 75 Innovative approaches to strategic public interest litigation. 76 5.4. Trends . 77 5.5. Patterns ............................................... 78 5.6. Areas for further research ............................... 80 Annex ................................................................ 82 Annex A. Bibliography of secondary literature .................. 82 Annex B: Legal and judicial references. 89 B.1. Cases. 89 B.2. Legislation ................................. 93 B.3. Constitutions ............................... 94 B.4. International treaties ........................ 95 Annex C. Content analysis ................................... 96 Comparative content analysis ................................ 97 About the partners ..................................................... 98 The Just Governance Group .................................. 98 International IDEA .......................................... 98 UN Women. 99 GENDER EQUALITY AND WOMEN’S EMPOWERMENT: 6 CONSTITUTIONAL JURISPRUDENCE ACKNOWLEDGMENTS UN Women and International IDEA would like to express their gratitude to Just Governance Group in their professional and diligent carrying out of the research and drafting of the report. Both organizations would also like to thank the staff involved in the conceptualization, review and finalization of the report. In particular, Beatrice Duncan and Aneesa Walji of UN Women, and Katalin Dobias, Melanie Allen, Sumit Bisarya, David Prater and Lisa Hagman of International IDEA. The Just Governance Group (JGG) would The identification and translation of judicial also like to acknowledge the support of a decisions involving constitutional analysis and number of individuals who made it possible women’s equality rights from the Middle East for the consultants to undertake this global and North Africa region would not have been exploratory study. JGG engaged two law and possible without the voluntary contributions of gender specialists to write the study: JGG academics and JGG colleagues from the region executive director, Kimberly Inksater and including Samia Bourouba (Algeria, Associate University of Ottawa law professor, Jennie Professor at the High School of Magistracy, Abell. The principal researchers received Algiers), Dr Ali Al-Hilali (Dean of College of support from University of Ottawa Faculty of Rights, Al-Nahrain University, Baghdad, Law interns, Stefanija Savic and Piratheeca Iraq), Dr Sami Al-Kilani (JGG, International Vimalarajah, and JGG associates, Dr Sami Community Action Network-ICAN; School al-Kilani and Zeynep Baser. of Social Work, McGill University, Montreal, Canada and An-Najah National University, Nablus, Palestine) and Zeynep Baser (JGG, Turkey). GENDER EQUALITY AND WOMEN’S EMPOWERMENT: CONSTITUTIONAL JURISPRUDENCE 7 ABBREVIATIONS AFJB Association des Femmes Juristes du Benin BLAST Bangladesh Legal Aid Services and Trust CEDAW Convention on the Elimination of all Forms of Discrimination against Women CONTRALESA Congress of Traditional Leaders of South Africa FGM Female genital mutilation GBV Gender-based violence ICCPR International Covenant on Civil and Political Rights ICECSR International Covenant on Economic, Social and Cultural Rights IDEA International Institute for Democracy and Electoral Assistance JGG Just Governance Group LAC Latin America and the Caribbean MENA Middle East and North Africa NGO Non-governmental organization UDHR Universal Declaration on Human Rights UN United Nations UN Women United Nations Entity for Gender Equality and the Empowerment of Women GENDER EQUALITY AND WOMEN’S EMPOWERMENT: 8 CONSTITUTIONAL JURISPRUDENCE EXECUTIVE SUMMARY This exploratory global study of constitutional jurisprudence on gender equality and women’s empowerment, conducted by the Just Governance Group as part of a project partnership between International IDEA and UN Women, reveals a series of important findings regarding the current state of lived realities for women living under constitutions which purportedly provide
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