family envisaged by the International Bill of Rights, Banjul does not evince that human rights violations overlap and affect African groups in specific ways according to their gender, race, religion, color, and so on. In Banjul’s narrative, Africans are presented as a monolithic family united against the colonizing West. However, Banjul never envisages the reality of human rights abuse by legitimate African governments. The general prohibition of discrimination against “ethnic groups,” for example, does not lead to any elaboration on how these groups can be more vulnerable to human rights denial and abuse when political allegiance forms along tribal lines. Banjul has no provision against state authorized land grabbing from indigenous groups, for example, or forced relocation arising from development projects agreed on by the state and international donors that deny these groups the exercise of their cultural livelihood.
The Banjul Charter does, however, make an effort to emphasize the rights of women beyond the generic salute to nondiscrimination and equality. States are called on to ensure the elimination of every form of discrimination against women and to ensure the protection of the rights of the woman and the child according to international declarations and conventions. However, this call is made while invoking the family as the natural unit of society and custodian of community morals and traditional values (art. 18[1]). It is a disingenuous protection that places women within a private space governed apparently not by law or state but by the community’s customs and traditions. The family and the community are given free rein over the delineation of women’s freedoms according to their discretion and guided by malleable traditional morals and values. This provision within Banjul gives a nod to traditional practices that violate women’s rights but places such violation beyond the public space that demands state intervention. Whether at the international or regional level, there was a first tier tendency to “protect” women as a reproductive source by placing them within a private space overseen by parents, guardians, and husbands. This tendency affirms Thomas McClendon’s point that while African men and the state had their long-standing conflicts, they agreed that the subordination of African women through control of their mobility from rural to urban areas and reproductive rights maintained patriarchy and other forms of male privilege (2002: 164–79).6
The presumed universality of the Pan-African family makes belonging to the African group the single axis on which rights protections are elaborated. Thus, racism apparently has no linkage to sexism and other bias. Within this human rights law narrative there is no room for human rights protections that respond to gender discrimination experienced by men and women in their homes, in prisons, in the military, in the workforce, in accessing health care, in accessing maternal health care, and so on. Banjul creates a human rights law narrative in which African men, women, and children suffer (colonial) persecution as a universal or monolithic experience.
CERD is one of several thematic human rights instruments expanding on a specific area of discrimination referred to broadly by the International Bill of Rights. It is rooted in the fundamental equality principle of the International Bill of Rights, although it focuses exclusively on the prohibition of discrimination on the grounds of race, color, descent, and national or ethnic origin (CERD, art. 1). Like the Banjul Charter, CERD is located in social and political structures, such as apartheid and segregation, that led to wide-scale racial discrimination. However, as race is taken as the single category axis, no effort is taken to investigate the ways in which racial discrimination combines with such intersecting features as caste, class, gender, and religion. In this way, CERD could fail to effectively protect, for example, Dalit Christians in India, Malaysians with Chinese ancestry, or African American women from discrimination in the workforce or school system. There is a uniformity assumed in groups targeted for racial discrimination but no attempt to disaggregate these groups in order to see how multiple identities might exacerbate or mitigate discrimination.
The Banjul Charter and CERD made substantial advances from their precedent in the first tier of human rights, the International Bill of Rights. They provide clearer definitions of discrimination, and while they do not refute the universality of human rights, they deny any uniformity in the ways in which freedoms are enjoyed and denied. In the case of Banjul, rights are placed in the context of African culture, history, and politics. CERD focuses on specific groups who suffer discrimination on the grounds of race and the political regimes that make widespread racism possible. Banjul and CERD begin the task of disaggregating victims of discrimination; however, like the International Bill of Rights, they fail to expose gender-based discrimination as a pervasive human rights violation.
Second Tier
The advent of the Convention on the Elimination of All Forms of Discrimination Against Women (1978) (CEDAW) represents the evolution from first to second tier instruments marked by the prominent location of women’s rights in human rights law. CEDAW, the central second tier instrument, made several bold moves away from the approach of the International Bill of Rights to eradicating gender inequality and discrimination. It provides an important substantive definition of discrimination against women as follows: “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” (art. 1).
The indivisibility of economic, social, and cultural rights from civil and political rights is affirmed by this definition, and although the term sex rather than gender is used, CEDAW does not underestimate the socially constructed gender roles and expectations that constrain women in their enjoyment of human rights. CEDAW urges states to end prejudices and harmful stereotypes of women based on the idea of their inferiority in all spheres of life, specifically in the field of education (art. 5 and 10[c]). In a revolutionary step revealing its recognition of the unevenness of the playing field between men and women in the enjoyment of their rights, CEDAW provides for temporary special measures such as affirmative action to facilitate women’s attainment of gender equality with men (art. 4).7
Despite its status as the International Women’s Bill of Rights, CEDAW has not escaped criticism for maintaining elements of the formal equality approach to attaining gender equality, particularly with respect to the right to employment and participation in political life and omissions relating to forms of gender-based violence, such as domestic violence. CEDAW calls for women’s equal participation in the workforce and the political realm, areas traditionally dominated by male employers and employees, without addressing hostile hegemonic responses such as sexual harassment. Sexual harassment was not acknowledged as a human rights abuse in CEDAW’s narrative on women and their enjoyment of human rights, despite it being a long-standing barrier for many women to enter, excel, and be retained in the workforce or in political life. And indeed, women who experience harassment from subordinates, peers, and superiors may have no option but to opt out of a hostile work environment. This “free choice” is not far removed from the “voluntary” decision taken by Prosecutor Aimable’s victims to opt out of the justice process in Rwanda. Human rights instruments may grant equal rights to men and women but then leave women ill-equipped to navigate the hostile repercussions from colleagues, family members, governmental authorities, and others that constrain them from fully realizing their rights.
CEDAW provides extensive protection for women as a unitary and universal group. However, it is limited in its efforts to acknowledge that within the universal woman group there are differences that can increase vulnerability to human rights abuse. It restricts this recognition to married women, rural women, prostitutes, and trafficked women (art. 6, 14, and 16). The selection is in its own way a caricature of the different roles that women may play in a society and may even be understood to suggest that a married woman, for example, cannot also be both a prostitute and a rural woman. The complexities of women’s multiple identities are far from encompassed by first and second tier instruments. These groups identified by CEDAW inarguably require special attention; however, their inclusion cannot be justified when migrant women, domestic workers, displaced women, LGBT (lesbian, gay, bisexual, and transgender) women, disabled women, women living
