PASSPORT TO DIGNITY
CRITICAL AREA OF CONCERN K: INSTITUTIONAL MECHANISMS FOR THE ADVANCEMENT OF WOMEN
... from the Human Rights instruments
The Platform for Action establishes a set of actions that should lead to fundamental change... Immediate action and accountability are essential if the targets are to be met by the year 2000. Implementation is primarily the responsibility of Governments, but is also dependent on a wide range of institutions in the public, private and nongovernmental sectors at the community, national, subregional/regional and international levels.
(Beijing Platform for Action, Chap. V, para. 286.)
Nongovernmental and grassroots organizations have a specific role to play in creating a social, economic, political and intellectual climate based on equality between women and men. Women should be actively involved in the implementation and monitoring of the Platform for Action.
(Beijing Platform for Action, Chap .V, para. 289.)
To ensure effective implementation of the Platform for Action and to enhance the work for the advancement of women at the national, subregional/regional and international levels, Governments, the United Nations system and all other relevant organizations should promote an active and visible policy of mainstreaming a gender perspective, inter alia, in the monitoring and evaluation of all policies and programmes.
(Beijing Platform for Action, Chap. V, para. 292.)
REFLECTING ON THE INTERNATIONAL INSTRUMENTS
Throughout this chapter, refer to the Resource Packet..
The role of national machineries had been discussed during the preparation of the 1975 the World Conference of the International Women’s Year, held in Mexico City. The conference recommended that all Governments establish a machinery to promote the status of women. Since then, the international community has paid more and more attention to the role and structure of the national machineries. The UN Commission on the Status of Women, CSW, gave the issue priority at its sessions in 1988 and 1991. At that time discussion focused on the concept and role of national machineries in promoting women-specific issues.
The BPFA adds a new focus to the role of national machineries in promoting the status of women: the mandate to support mainstreaming gender in all government policies and programs. The document identifies the mainstreaming of gender issues as the central responsibility of national machineries when it states that: "A national machinery for the advancement of women is the central policy coordinating unit inside government. Its main task is to support government-wide mainstreaming of a gender-equality perspective in all policy areas." (paragraph 201).
Without the active commitment of governments to the implementation of the BPFA could not be achieved. The BPFA made it quite clear that, historically, governmental action has lacked an active commitment or effective institutional arrangements to ensure the human rights of women. In the years between the founding of the Commission on the Status of Women (CSW) and the 1995 Fourth World Conference on Women in Beijing, governmental machinery had been established in many countries, but by 1995, most of it was still ineffective. As the women’s movement became more active and politically powerful, this situation began to change. However, there is still severe lack of institutional and financial resources devoted to the advancement of women.
A Central Policy-coordinating Unit Inside Government.
National machineries for the advancement of women have been established in many countries. They have been set up to execute, monitor, evaluate, advocate and mobilize support for policies that promote the advancement of women in accordance with those international standards and agreements to which their respective governments have acceded.
These mechanisms are often marginalized in governmental structures. They seldom have unclear mandates, inadequate staffing, insufficient data, limited resources, and inconsistent support from national political leadership. Mostly after the Fourth World Conference on Women, countries had started to set up and improve on such machineries. Some specifically created agencies or Ministries to coordinate and oversee the implementation of the BPFA.Ad hoc commissions were established, often located in the Foreign Affairs or Women's ministries or national offices. The Commissions tend to be inter-ministerial and often include representatives of other relevant government bodies such as municipalities, parliamentarians, the Supreme Court. This is the case of several Latin American countries such as Argentina and Chile.
I other cases, Commissions include representatives from women's groups, NGOs and civil society. Some of these national councils identify specific people to be responsible for the many different elements of the Platform, hoping that concrete national initiatives would follow. As an example South Africa has prepared a most impressive national action plan with every department detailing the ways it would take to implement the Platform. The Philippines, Iceland, Canada, and Finland launched plans for women's equality, to mention a few. In Romania, the national machinery for women, which became dormant in 1989, was revived and reconstituted. In Cambodia, the existing secretariat was upgraded into a full Ministry of Women's Affairs.
At the regional and international levels, as well, there are mechanisms and institutions to promote the advancement of women, and make that objective an integral part of mainstream political, economic, social and cultural development. These regional and international agencies also encounter similar problems emanating from a lack of commitment at the highest levels.
(Adapted from Pramila Patten, Institutional Mechanisms for the Advancement of Women, unpublished report , prepared for PDHRE, 1999.)
Mechanisms And Machineries: An Overview
Characteristics, Problems And Prospects
Isis International-Manila prepared an overview of institutional mechanisms and national machineries for distribution to NGOs. It is a beautifully designed six page foldout from which the following excerpts were taken.
Types of National Machineries
Some national machineries are government entities, others are bodies outside the government, such as the office of the ombudsperson, the equality commission, and autonomous research institutions. A 1996 survey of the U.N. Division for the Advancement of Women showed that two thirds of 100 responding national machineries were located within government while a third were either non government organizations or have mixed structures. Over half of 88 national machineries were part of a ministry and a third were located within the office of the Head of State. Majority of those under a ministry were with the ministry of social affairs and about a third were with the ministry of labor.
Some national machineries focus on their role as policy advisers and catalysts for gender mainstreaming, leaving programme implementation to other government agencies. In Sweden, each minister is responsible for gender mainstreaming in his or her field of work. This is based on the rationale that a policy on equality cannot be developed independently from other policy areas. Most national machineries, however, remain focused on specific programmes for the advancement of women. The UNDAW survey adds that the planning and monitoring of programmes recorded the highest ratings when national machineries indicated their own major activities.
According to an expert-group meeting held in April 1999 the establishment of these national machineries was a factor cited for the considerable progress made in the Asia-Pacific Region. Still, when barriers to the full implementation of the BPFA were pinpointed, the following were identified: persistent gender stereotypes among policymakers and decisionmakers; lack of gender expertise within government and among lawmakers, financial institutions, businesses, industries, education and research institutions, labor unions; lack of gender-sensitive statistics and indicators; and prolonged economic crises which affect women differently from men.
Challenges Faced By National Machineries
The U.N. Secretary General’s report before the Commission on the Status of Women (43rd session March 1999) enumerated the problems that have plagued national machineries since 1975:
little influence on the overall policymaking process.
• Machineries have no clear mandate.
• Machineries are not linked up with non governmental groups.
• Machineries are not linked to line ministries in the government structure.
• They lack support on gender mainstreaming from government officials and parliamentarians, with thelatter assuming that gender is not relevant in such areas as the economy, defense and energy policy.
• There are difficulties in combining advisory functions and actual program -implementation.
• Personnel lack of training on gender issues.
• Lack of funds.
A group of experts meeting in 1998 in Santiago, Chile cited some other problem areas.
(National Machineries for Gender Equality, A Report of the Expert Group Meeting, Santiago, Chile, Isis-International 8/ 31-9/ 4, 1998)
In some countries, the national machinery succeeded because it was attached to high positions in government. Uganda established a system of focal points and cross-ministerial planning, making each ministry responsible for designating a high ranking official as a gender focal point. Thereafter, these officials were trained to review progress made in the area of gender equality. In the course of effecting these, national gender policies were formulated to provide other policy makers with guidelines on how to integrate the gender perspective in their work. All budgets and programmes at the national and district levels were made to reflect how women and men were benefiting. Peru’s Promudeh is a Ministerial agency coordinating all activities related to the promotion of Women and Human Rights.
In other countries, however, it was found more effective to have national machineries operate from outside government. In india, for example, there is a consultative body on women’s interests whose purpose is to transform ideas into politics.
Relationship Of National Machineries With Civil Society
Despite the progress made, women still suffer discrimination in the areas of health, education and political decision-making. The Beijing Platform for Action had outlined practical strategies to face these challenges. "... In order to achieve gender equality, it is critical to work in partnership with men.... changing negative attitudes towards women... A national machinery for the advancement of women is the central policy coordinating unit inside the government. Its main task is to support government-wide mainstreaming of a gender-equality perspective in all policy areas."
In 1998 the CSW Expert Group held a meeting to analyze new Trends and proposed concrete actions and policies for strengthening the roll of institutional mechanisms in Implementing the BPFA. The Expert Group identified specific strategies and made specific recommendations for governments and others actors on how to promote gender mainstreaming.
The Expert Group Meeting noted that, although the platform for action has focused on the role of governmental machineries and surveys carried out by the Division of the Advancement of Women, DAW, showed that one third of all national machineries are NGOs or have mixed structure.
Experts agree that governments should take NGOs concerns seriously. Many groups also work as umbrella organizations or bodies which can co-ordinate input to governments, such as the Korean Women’s Development Institute, the German Women's Council, or the Committee on Women's Issues in Slovakia. Concern was expressed, however, over elements in civil society hostile to gender equality. A backlash promoted by such groups may delay the work of the national machinery.
Experts also noted the usefulness of exchanging experiences among national machineries within a region or sub-region. This approach proved rewarding in region after region with specific reports to that effect from South Korea, Chile and Sweden. In the Asia and Pacific region, national machineries have resolved to meet every other year to learn from each other. The Nordic Council of Ministers launched a mainstreaming project to exchange experiences among the Nordic countries. African countries all have reported gains from such an experience.
Many governmental machineries still lack the capacity to act as a catalyst for gender mainstreaming. Experts recognized that national machineries must be embedded in the national culture and be sensitive to local conditions and the respective political system. Many national machineries lack know-how in the area of mainstreaming gender, and need to build on the experiences of other courtiers. However, experiences in one country may not be transferable wholesale to a country with a different culture and political system.
National machineries can also make adaptations to their own cultural context. Both South Africa and the Philippines, for example, have borrowed the idea of a "gender budget" from Australia and have adapted the model to their own national context. Gender budgeting means that all departments and agencies are required to prepare a Budget document which disaggregates outlays in terms of impact on both women and men.
The role of the United Nations and other international bodies has been important in supporting the creation and development of national machineries and in facilitating the exchange of information about successful strategies.
National Machineries and International Instruments
CEDAW and the BPFA can help promote further gender mainstreaming. It was noted that governments are not always aware of the significance of the obligations they have undertaken by ratifying CEDAW, or the commitments they made at the various UN world conferences. The formulation of its mission should be sensitive to prevailing social and cultural norms while at the same time ensuring a continuing transition towards equality between men and women.
The Beijing Platform of Action provides guidance as to the functions of national machineries but says less about the structures of national machineries required to achieve gender mainstreaming. National women's machineries for the advancement of women have been established in almost every Member State, inter alia, to design, promote the implementation of, execute, monitor, evaluate, advocate and mobilize support for the policies that promote the advancement of women and gender mainstreaming. However, these machineries are diverse in form and uneven in their effectiveness, and in some cases marginalized. The Beijing Platform for Action stated that "...[institutional] mechanisms are frequently hampered by unclear mandates, lack of adequate staff training, data and sufficient resources, and insufficient support from (national) political leadership." Despite the progress achieved in creation of national machineries and intensification of advocacy efforts, the overall situation described above does not appear to have changed appreciably.
(Expert Group Meeting --Report 31 August - 4 September 1998 )
When Machineries fail - Two Examples from Eastern Europe
The establishment of national machineries can be problematic. This was demonstrated by a survey conducted in 1998 by KARAT, an NGO coalition of 13 Eastern European countries. What it found was rather distressing:
A Powerless Plenipotentiary
Latin American Institutions to Promote Gender Justice and Equality
Latin America offers many useful examples of the establishment of institutional mechanisms for the advancement of women and the implementation of the Beijing Platform for Action. Many of the Parliamentarians and Congresswomen who went to Beijing returned home highly motivated to use their power on behalf of other women. One of the most innovative actions was taken by women senators from liberal and conservative parties in Colombia: they invited all Ministers of State to a televised public debate in which the Ministers were compelled to describe in writing the initiatives and mechanisms designed for their area to implement and monitor the Beijing plan of action.
The Chilean Parliament held a special session on the issues in the Beijing Platform. In Brazil, women parliamentarians who attended the Conference selected 15 bills among all those before the Congress to push as priorities for women. US representative and other women in Congress are organizing a similar legislative agenda. In Zimbabwe, women Parliamentarians seek to amend the discriminatory inheritance laws. In Peru, a special commission was formed in the Parliament to monitor the Beijing implementation and other UN agreements related to women. In Brazil, "protocols" or contracts based on the Platform were written in five large cities and signed with the Ministries of Education, Work, Justice and Health. Notably, the contract with the Ministry of Health provides for free exams for all women to prevent breast and uterine cancer.
Establishing Ombudswomen’s Offices
The establishment of ‘ombudswomen’ in several Latin American countries was made possible by the struggle of the women’s movement. In the countries that now have these specialized offices for women, there had been a history of setting up ombudsman offices under constitutional law.
For Example, In Peru the Constitution in 1993 included the establishment of such an office. The first Ombudsman, Jorge Santisteban de Noriega, elected in 1996, made a commitment to advance women’s human rights. He accepted a proposal from the women’s movement to within the Ombudsman’s office establish a special office for women. The first Ombudswoman (Rocio Villanueva Flores) was elected in October 1996. Later similar Latin American offices- within -offices were occupied by Aracely Zamora in El Salvador, Ligia Martin Salazar in Costa Rica, Patricia Pinto Quijano in Guatemala, Beatriz Elena Gutierrez Rueda in Colombia, and Laura Salinas Baristain in Mexico.
In Costa Rica, the sequence of was reversed. The Ombudswoman Office was established in 1989. Only in November 1992 was a ‘general purpose’ Ombudsman office created. This development led to a heated debate within the women’s movement whether the Ombudswoman Office should remain within the Executive Offices or should instead be integrated into the Ombudsman office. Eventually, it came to reside with the latter, independent of the Executive Offices, while its areas of competence were strengthened and widened.
Constitution of the City of Buenos Aires
Susanna Chiarotti, an Argentine lawyer, reports on significant innovations in several countries. Thus, the Constitution of the City of Buenos Aires, written from a gender perspective, proclaims the formal recognition of women’s human rights.
The Constitution of the Autonomous City of Buenos Aires capital of the Republic of Argentina was adopted on October 1st, 1996. This Constitution contains a specific chapter devoted to Equality between men and women. The actual text of the relevant articles in italics below may be helpful to those seeking to strengthen women’s human rights provisions in their own localities.
Article 36: The City guarantees in the public sphere and promotes in the private sphere real equality of opportunities and treatment for men and women as regards the access to and enjoyment of all civil, political, economic, social, and cultural rights. The City guarantees that opportunities and treatment shall not be inferior to those existing at the time of the adoption of this Constitution.
Political parties shall adopt [necessary] actions for the effective access [of women] to leading positions and financial management, in all levels and spheres.
The list of candidates for elective posts cannot include more than 70% of persons of the same sex ... Nor can they include three persons of the same sex serving consecutive terms. In the composition of organs formed by three or more members, the Legislature agrees to respect the quota mentioned above.
Article 37: Sexual and reproductive rights, free from coercion and violence, are recognized as basic human rights, especially the right to decide responsibly on procreation, number of children and birth spacing. Equality of men’s and women’s rights and responsibility as parents is guaranteed, and the integral protection of the family is promoted.
Article 38: The City incorporates a gender perspective in the design and execution of its public policies and creates a plan of equality between men and women. It encourages the modification of stereotyped socio-cultural models with the aim of eliminating practices based on prejudice regarding the superiority of either gender; promotes the sharing of family responsibilities; fosters the full integration of women into productive activity, positive actions which guarantee parity of remunerated work, the elimination of segregation and any other form of discrimination based on maternity or marital status; facilitates the access to housing, to jobs, to credit and to systems of social assistance for adolescents, aids them and guarantees their continuation in the educational system; provides for prevention of physical, psychological and sexual violence against women and offers specialized assistance service; promotes the participation of nongovernmental organizations dedicated to women issues in the design of public policies.
Among the most tangible results of this new Constitution is a greater interest in the introduction of legislation concerning women and their problems. As of the end of 1998, approximately 28 such bills, resolutions and declarations had been introduced. For example: a resolution to create a program on sex education in every city school; two bills for the creation of a program on reproductive health; a bill for the prevention of domestic violence; a resolution for the implementation of systematic programs or campaigns for the early detection of breast cancer among others.
(Susana Chiarotti unpublished Report to PDHRE on Institutional Mechanisms in Latin America for inclusion in Passport for Dignity, 1999)
In Colombia the Public Constitution of 1991 created the office of the Ombudsman "to oversee the promotion, exercise and dissemination of human rights." The Office has a delegate for the rights of children, women and old people, whose main action lines are (among others):
• Raising awareness of women’s human rights
• Checking and monitoring the exercise of these rights
• Diagnosing the situation of women
• Providing authorities with comments and recommendations, making social scrutiny possible and identifying legal gaps.
Since 1993 the Office of the Ombudsman has been involved in setting up Family Offices as basic assistance centers for cases of domestic violence. It has developed communications and training strategies for mayors, city councils and representatives so that they might learn about the creation and strengthening of these offices. The Office of Ombudsman, as it participated in the debate on the law regarding regulations for the protection of victims of domestic violence, insisted that measures and procedures devised from a pedagogical perspective on the law. It argued that the elimination of domestic violence implies a change of attitudes and a process of cultural reconstruction, a social learning process.
The new constitution makes provisions for a simple procedure, easy to use with lawyers’ help, by oral or handwritten request for Protective action. Due to its simplicity, it has been widely applied by many women in order to protect their fundamental rights and have them recognized. This tool has enabled the Constitutional Court to reconsider cases, either because it has been asked to or because it has chosen them as test cases It has made progress in areas where the law and the State had little previous involvement Thus, the Court has made explicit certain criteria which mean considerable advances when interpreted and applied to women issues The interpretations constitute a juridical precedence for the treatment judges and courts should provide to the issues. A particularly interesting case is that of a lawyer, under arrest waiting trial in the Center of the Good Shepherd for the Imprisonment of Women, in Bogota. She brought a protective action against the General Direction of Prisons and the Center, denouncing discriminatory treatment, on the grounds that if she wanted to receive conjugal visits, she had to fulfill certain requirements not asked of male prisoners.
She was obliged to attend a course on sexual orientation and to use a method of family planning that prevented her from becoming pregnant, an additional punishment the law did not require. The judge rejected the protective action in the first judgment, based on the fact that the woman did not have freedom to have sexual intercourse nor to conceive, ruled that the plaintiff had to submit herself to the requirements of the prison.
Although the plaintiff did not question the judgment, the Court took it under review and determined that, in fact, it was discrimination, since no such requirements were asked of male convicts. It revoked the first judgment and safeguarded the plaintiff's right. The ruling stated that the requirement that obliged the convicted woman to give evidence of the use of a contraceptive device or authorize in writing its implantation violated both her own right and her husband's right who was not in prison to decide whether they wanted to have a child.
Another case was that of a nine-year-old girl who brought a protective action case after being accused of being a prostitute and having AIDS when her classmates in a religion class claimed that she had a presumptive love affair with another minor. The judge rejected the action arguing that the girl’s rights had been involuntarily violated due to misunderstandings. However, he ordered the teacher to draw her students’ attention to the situation so that they would accept the girl. The Court conceded the protective action arguing in favor of the defense of democracy and sexual education free from prejudices.
(Susana Chiarotti unpublished Report to PDHRE on Institutional Mechanisms in Latin America for inclusion in Passport for Dignity, 1999)
The Office the Advocate for the Woman was established within the Ministry of Justice as early 1989 under the Law for the Promotion of Woman’s Social Equality, publicly acknowledging discrimination against women for the first time.
The fundamental purpose of the Advocate for the Woman is to overcome the gender oppression and discrimination women experience and to guarantee equality of rights between men and women. It also contributes to extending, and promulgating women rights, functions carried out in two major programs: one for defense rights and another of education to promote women’s human rights.
The Office of the Advocate for Women took an active part in legislating against sexual harassment in the workplace and against domestic violence; in the modification of the Labor Code with regard to women rights during pregnancy and lactation; and in the revision of the Penal Code. The Office of the Advocate for Women also dedicates efforts to enforcement of these laws. For example, in the case of the Law against Sexual Harassment in Employment and Teaching, it mounted a national campaign to promulgate the law. It also assisted institutions affected by the law in the formulation of policies to prevent, dissuade, avoid and punish various forms of sexual harassment and in the establishment of concrete procedures to deal with complaints. The Program of Education and Promotion is executed primarily through forums, workshops, round-table meetings and the media, areas in which issues concerning women rights and living conditions are dealt with.
In the 1970’s, women started entering the labor market in Uruguay in large numbers. According to figures provided by the Economic Commission for Latin America and the Caribbean (CEPAL), Uruguay, with an overall total of 43%, has the highest percentage of families in which both spouses are breadwinners. (Brazil is in second place with 35% and Argentina is third with 33%.) This circumstance led to some significant changes in law and the application of law related to women’s rights as workers
Although the Constitution of Uruguay states "all persons are equal before the law, with no other distinction between them but their talents or virtues," women’s associations in Uruguay argue that such equality does not, in fact, exist. For example, of 129 legislators, only 10 are women, and of the 12 ministries, only one headed by a woman. A major step forward was taken in 1997 with the regulation of a 1989 law which "(prohibits) all forms of discrimination that violate the principle of equality of treatment and opportunity for both sexes in work." This law also establishes that the "access to the labor market cannot be limited in any way, nor can conditions of entry or permanence in a job be affected in any way by reason of sex discrimination, and selections and designations of personnel which directly or indirectly impose requirements connected with a certain sex are especially prohibited." The law declares as well that sexual harassment in the workplace is a serious form of discrimination and it empowers the Ministry of Labor and Social Security to admonish, fine or close a company where situations of discrimination described by the law have occurred. The law is now being executed effectively.(Susana Chiarotti unpublished Report to PDHRE on Institutional Mechanisms in Latin America for inclusion in Passport for Dignity, 1999)
using cedaw as a tool for advocacy and constitutional reform
the case of Brazil’s state of Sao Paulo
The Brazilian constitution was redrafted in 1988 and now includes extensive guarantees of women's human rights. The move to rewrite the constitution began in 1985, as part of the process of restoration of democracy in Brazil and the resurgence of public political activism. Between 1985 and 1988 women's NGOs, the National Council of Women's Rights, lawyers, state and municipal councils, and women's deputies in the constituent assembly contributed to a national campaign to ensure that women's rights were given proper constitutional recognition. As part of the drafting process, the National Council of Women's Rights presented over 200 amendments relating to women.
According to Jacqueline Pitanguy, past president of the National Council, CEDAW was a very useful tool for women's advocacy around the constitution. It provided a reference and a framework for articulating specific rights. The Brazilian constitution contains provisions on gender equality, gender-based violence, State responsibility for the prevention of domestic violence, the equality of rights within marriage, family planning, and equality in employment that parallel CEDAW provisions. For example, the constitution revoked the longstanding principle of the husband's leadership ("chefia") of the family unit and established that "the rights and duties relating to the conjugal unit are exercised equally by the man and the woman" (CEDAW article 16).
However, the most important contribution the Women's Convention made, according to Pitanguy, came in the form of increased political legitimacy for demands that the Brazilian women's NGOs had been making for some time: "It put our demands on another level, by providing legitimacy and international wording for proposals we had been fighting for since the 1970s. International instruments such as CEDAW set a recognized standard and improved our bargaining and negotiating power."
Brazil had ratified CEDAW in 1984, with a reservation on laws relating to the family. It was only after the passage of the 1988 amendments to the constitution that it was removed - the reservation was now in violation of the Brazilian constitution's guarantees of gender equality.
More recently, São Paulo's Council of Women and women's NGOs have succeeded in passing their own convention to eliminate discrimination against women at the state level in São Paulo. Women's NGOs entered into negotiations with the São Paulo state and local Governments to gain their agreement to support the Convention's general principles, and to convince them to take legislative action to implement CEDAW. Seminars were held with a range of Government institutions to make clear the disparity between what CEDAW requires and the actual living conditions and legal discrimination faced by women in São Paulo.
The 1992 Paulista Convention on the Elimination of All Forms of Discrimination Against Women has been adopted by the state of São Paulo and many São Paulo municipalities. The Paulista Convention is open to ratification by all municipalities within the state, and within one year of its passage, municipalities representing approximately 45% of the population had become signatories.
The Paulista Convention imposes detailed obligations on the State and local Governments regarding enhancement of women's human rights in the areas of public administration, daycare, education, health care, employment, and the prevention of violence against women. Some of the more important convention requirements are as follows:
•Public administration: The State and cities must clearly define programmes and services for women within their jurisdiction; establish quotas in plans; pass laws regarding budget orientations; collect sex-disaggregated data for all statistical work undertaken; and establish a woman's advisory council to be composed and directed by women's NGO representatives.
•Daycare: The State and cities must provide daycare services through the schools; require training and public examination of day care professionals; make the provision of day care to children between ages 0 and 6 from low income families a priority until complete coverage is achieved; ensure that services are provided to children with disabilities, including those who are HIV-positive; offer incentives to private companies to build day care facilities; and create a special Government fund for the construction and maintenance of day care facilities.
•Education: The State and cities must develop programmes to sensitize the community and contribute to the transformation of discriminatory prejudices and practices; introduce new methods and materials into the school system that aim at the elimination of discriminatory attitudes and the promotion of positive self-image among girls; and develop courses for teachers to enhance their ability to work with the new materials and methods; The State will supply the cities with subsidies, assistance, and technical support to help them achieve these goals.
•Employment: The State and cities must create administrative and legal sanctions to ensure equal access to training and education, the right to equal treatment in employment, and special protection for women workers during pregnancy. They must prohibit reference to gender or marital status in employment advertising, the demand for pregnancy testing as a condition of employment, and the dismissal of women following maternity leave.
•Violence against women: The State and cities must create programmes and
policies to campaign against all forms of violence against women, and the State is to provide subsidies and assistance to the cities for this purpose.(Jacqueline Pitanguy, quoted in Susana Chiarotti unpublished Report to PDHRE on Institutional Mechanisms in Latin America for inclusion in Passport for Dignity, 1999)
CEDAWa Tool for Constitutional Reform: The Case Of South Africa
South Africa made the transition from an apartheid state to democracy in the early 1990s.The creation of a new constitution was a key component of this transformation. A broad coalition - composed of women's NGOs, academics, women politicians, and women's trade union groups - worked to ensure that women's human rights were given proper constitutional recognition and protection.
Women presented their demands in the form of a charter of women's rights, which incorporated the concerns and issues of women across the country. The coalition drew on the Convention's overall conceptualization of women's equality as requiring the integrated guarantee of political, civil, economic, social, and cultural rights. They stated, in the Charter's preamble, "We set out here a program for equality in all spheres of our lives, including the law, the economy, education, development and infrastructure, political and civic life, family life and partnerships, custom, culture and religion, health and the media."
CEDAW also provided a useful framework for specific rights, and a number of the provisions of the Women's Charter parallel the rights set out in the Convention. For example, article 2 of the charter states that "women shall have equal legal status and capacity in civil law, including, amongst others, full contractual rights, the right to acquire and hold rights in property, the right to equal inheritance and the right to secure credit" (CEDAW Articles 13 and 15).
The coalition's advocacy efforts were highly successful. The South African constitution contains a number of significant provisions guaranteeing women's equality. In the section entitled "Founding Provisions," which set out the fundamental values underpinning the new democratic State, non-sexism is listed alongside non-racism. The constitution's Bill of Rights prohibits discrimination on the basis of "race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." The constitution also includes an important provision, which, like CEDAW's article 4, states that temporary special measures may be taken to accelerate equality between men and women, and that such measures will not be considered discriminatory.
Regarding the national machinery, as a result of the concerns expressed by women’s groups and networks and caucusing among them during the transition to democracy, the option of a central agency such as a Women’s Ministry was rejected in favor of a ‘packager’ of gender structures. This includes gender focal points in a range of government departments, an Office on the Status of Women (to be located in the Office of the Deputy President) and a Commission on Gender Equality (much like the Human Rights Commission) to keep an independent eye on national progress on gender equity outside of government but accountable to parliament.
Changing The Constitution: The Example Of Uganda
In Uganda building mechanisms for the improvement of women’s status started relatively early, but was initially hampered by the fact that much of the state-apparatus was destroyed during the country’s prolonged civil war. As in most developing countries, the national machinery has suffered from a chronic lack of resources and depends fully on funding from foreign donors, which may call into question its sustainability and independence. The national machineries also suffer from the consequences of the World Bank’s Structural Adjustment Policy (SAP), as was the case in Uganda.. Restructuring threatened to interrupt the continuity of the machinery, as did changes in political and economic climate.
In all these cases, the main symptom of the problem is the lack of adequately trained personnel to man agencies, unmotivated or ignorant functionaries who have little information about what they are supposed to do, or even if they are really supposed to do it at all. Combining policy and implementation roles may create stresses on national machineries. For example, while Uganda has developed good policy measures such as the National Gender Policy, the national machinery spread itself too thin in an attempt to carry out training in legal literacy, even though the wisdom of including legal literacy as part of the machinery is clearly unquestionable.
Things came to a low in Uganda with public management reforms intended to rationalize and downsize the civil service in line in structural adjustment policies. As a result, the Women in Development Ministry that had been set up in 1988 was dismantled three years later and became one of three sections of a Ministry for Women, Youth and Culture The WID Ministry, set up in 1988, was demoted to one of the three sections of the Ministry of WID, Youth and Culture in 1991 as a result of adjustment-inspired civil service reforms. Another three years, and the Ministry of Women, Youth and Culture was declared a "non-priority" administrative unit and was nearly eliminated altogether through reforms proposed by the World Bank. The threat of extinction was fought off successfully, but there then came a proposal to absorb the Ministry’s Women’s section into the ruling party Directorate of Women’s Affairs. In many ways, this made sense, given the association of the women’s agenda with the ruling party in Uganda, but it was obviously a problematic move. Although it was not followed through, one effect of the pressures on the Ministry has been its total reliance on donor funding. Despite these limitations, when the Ugandan constitution was rewritten in 1995 and consultations were held across the country, the Ministry launched a nationwide consultative process to elicit women’s views on the new Constitution. Another initiative of the Ministry was the setting up of ‘correspondent’ women’s focal points’ in other Ministries.
In the end, the drafting of the constitution was preceded by, not one, but two consultations: the Ministry’s and a massive mobilization of women’s NGOs to initiate their own parallel consultation. They also mobilized to get women elected in the Constituent Assembly in charge of the drafting process. Within the Constituent Assembly, the women established an active women’s caucus to develop a united position on the proposals.
The women took CEDAW as the baseline of their discussions, and it is reflected in important provisions of the Constitution. Right at the beginning, it states that all of the Constitution and implementing programms are to be informed by the need for gender balance and fair representation. The Bill of Rights states that all rights are to be enjoyed without any discrimination by sex.
Guarantees about women's political participation were the direct result of the NGO advocacy efforts. NGOs had relied on CEDAW's statement of the possible need for temporary affirmative action measures to speed to achievement of equality. They argued that because of the history of discrimination against women in Uganda, the only effective way to guarantee equality in political representation would be to reserve a certain portion of elected seats for women candidates. The Constitution requires that each administrative district have at least one-woman representative, and it provides that at least one third of the seats in local Government (city, municipal, and rural district councils) must be filled by women.
(Bringing Equality Home- CEDAW Ilana Lewis Landsberg ed. UNIFEM 1998 http://www.unifem.undp.org/cedaw/cedawen4.htm )
The Tanzania Gender Networking Programme (TGNP), along with
coalition members, started a process to influence the constitutional debate
in a gender sensitive and progressive direction. Ongoing coalition activities
have worked at making the process more participatory. The Government White
Paper relative to the Constitution highlighted 19 aspects of constitutional
change, with space allocated in the 20th aspect for other "general"
TGNP and its net workers used this space to present their primary concern, the inclusion of specific rights for women to be safeguarded throughout the constitution of Tanzania. The inclusion of adequate rights for both women and men equally in the constitution is known as 'engendering' the constitution. Debates and discussions in different constituencies led to the following detailed discussion of the various options for integrating women’s concerns in a Constitution:
Engendering the constitution is necessary to protect the rights of women, and other marginalised sections of the society... Without an explicit protection of women's rights it is harder to fight against the marginalization of women and poor men.
Engendering the constitution can be achieved in two ways: The first way is to include a Women's Charter within the constitution. This is the example provided by South Africa's constitution, The second approach is to integrate all protections of women's rights into different sections of the constitution, as was done in the constitution of Uganda. The Constitution of Malawi used both approaches.
The issues (were to be) included in appropriate places in the new format of the constitution. Thus, fundamental objectives and statements of human rights and responsibilities should all include and incorporate these concerns. However, a Women's Charter (would) emphasize and make obvious the rights of women, thus strengthening women’s ability to make use of these rights. A Women's Charter is an affirmation of the rights of women’s set down in the constitution, ( and demonstrates) the government commitment to upholding gender equality.
Scenario 1: Integration of Women's Rights in the Constitution of Tanzania
Additions to the Constitution ... to be included in appropriate sections. would be
(a) Fundamental Principles
The Constitution should establish ONE law for all Tanzanians, therefore, making the application of other laws gender responsive at the operational level. Having multiple (customary) laws is a huge constraint to women. Bad examples are (marriage. customary rights, inheritance etc.)
e.g. The United Republic of Tanzania is hound by one law (Secular law) the law of this constitution. An individual can subscribe to other laws (i.e. Islamic, Customary. etc.) at the operational level, but they do not supersede the LAW of Tanzania in the eyes of the state.
The government should commit to promoting the welfare and development of women and men through the specific goals of pursuing: e.g. gender equality for women and men, through the implementation of principles of non-discrimination.
The constitution needs to be written in a progressive language. We need to unpack the language used in the Constitution by saying women, men youth and children instead of 'person', to avoid the patriarchal attitude often found in this blanket way of addressing citizens. Currently the language is gender neutral, and in reality one needs to be gender sensitive to ensure fairness and equality of men and women.
The Constitution of Tanzania is to be written using a simple, clear and accessible manner (also necessary in Kiswahili) that is gender sensitive. This constitution is a constitution for the people, and shall remain available and accessible to every citizen.
The constitution needs to have a mechanism that allows it to be reviewed periodically so that it can adapt to changes more readily than it has been.
The Constitution is subject to amendment through procedures and mechanisms that encourage careful scrutiny of changes, but allow changes to occur with reasonable speed.
It should be explicitly stated that discrimination on any grounds including sex specifically is outlawed as follows:
All persons (Women & Men) are equal before the law in (all spheres of political, economic. social and cultural life, and in every other respect.
Thus, All persons, male or female, are equal.
(c) Prohibition of Discrimination
The constitution should further promote the equal status of prohibiting discrimination based on sex explicitly. In other words, women need to explicitly he included in the list of groups to he protected from discrimination, as currently seen in 13(5) of Tanzania's constitution.
Discrimination on the basis of sex, whether it be direct or indirect, is outlawed. Discrimination on the basis of gender, pregnancy, or marital status, whether it be direct or indirect, is outlawed.
All persons are guaranteed equal and effective protection against discrimination on grounds of sex, marital status, [... ethnicity, religion, age. etc.]
Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate practices and customs that discriminate against women. Such practices include: sexual abuse, harassment and violence; discrimination in work and public affairs; deprivation of property, including property obtained by inheritance etc. (adapted from the Constitution of Malawi).
The Constitution needs to recognize different structures of family units in Tanzania, so that, single parents are not discriminated against.
e.g. Different structures of family units are protected against discrimination. A family unit can be comprised of both mother and father, or a single mother, or a single father, and any children in a household.
(d) Affirmative Action
The constitution should establish affirmative action as a process necessary to pursue the realization of equal human rights including women rights.
The government shall take affirmative action in favour of groups marginalized on the basis of gender, age, tribe, etc.] or any other reason created by history, socially exclusive tendencies tradition or custom, in order to redress imbalance which exist against them. (adapted from the Constitution of Uganda). Parliament has the power to make laws relevant to the principle of affirmative action, including laws to) establish regulating organs such as an equal opportunities commission.
The government shall adopt a principle of 50% representation at all levels of decision making, including political parties, committees, courts, judiciary and other government positions at all levels.
In general, Parliamentarians and Cabinet members need to be accountable to civil society, and if they are not accountable there needs to be a mechanism to remove them. This accountability should include gender as one of the major variables. Thus:
The government of Tanzania is bound to providing effective, transparent and accountable governance for the people of Tanzania. If a government official at any level is not performing his or her duties in such a way that is accountable to their constituents then mechanisms and procedures must be used to remove that official from office. Gender is one of the variables of accountability, and so if a government official is not accountable towomen and men equally, then they can be removed through procedures and mechanisms laid down.
Accountability is necessary regarding all seats in Parliament including the 'Special Seats'. It is important that parliamentarians in these special seats do not stagnate and continue on with in the same position indefinitely, since it is designed to give opportunity to women in general, Thus: Any person should be allowed a "Special Seat" in Executive Post for a maximum of two consecutive terms only, eligible to continue in other posts if they so desire. There also should be an age limit to holding a seat in Parliament of 70 years for both men and women.
Scenario 2: Inclusion Of Women's Charter In The Constitution Of Tanzania
Women have the right to full and equal protection by the law, and the right not to be discriminated against. The rights are:
(TGNP magazine-- Gender Platform 1999
Information As A Mechanism for the Implementation of CEDAW
The ICCL Working Conference on Women’s Rights as Human Rights (Dublin, March 1997)
felt that information must be treated as a mechanism in its own right, indispensable to the
effectiveness of lobbying and to the actual involvement of NGOs which is one of principles built into
CEDAW. There are many "pockets of activity" at present around implementing women’s human rights.
It was felt that the language of international documents can be complex and information must be available
in "plain words" so that everyone can understand it and participate in related activities. The Platform for
Action (PfA) or Vienna Declaration are not going to be implemented or taken seriously at the national
level unless there is sustained lobbying from a broad range of women’s groups to do so. However, the
PfA is a lengthy document and needs to be "broken down into achievable tasks." It is important to
highlight that the PfA "is there to serve groups and should be used to lobby on each group’s specific
issue" in the relevant government departments. Therefore, groups do not have to take on the whole PfA
in order to use it in their work. However coordinated lobbying strategies are also a good idea
The Optional Protocol of CEDAW: Spreading Information
In 1999, the UN Commission on the Status of Women (CSW) finally adopted the Optional Protocol
which is a mechanism that offers victims of rights violations the possibility of real remedy in two ways:
through a complaints procedure (Article 2) which allows individual women and women's groups
to file a complaint of violation of their rights directly to the Committee; and, through an inquiry
procedure (Article 8), which enables the Committee to initiate direct inquiries and seek
information to verify complaints of systematic violations of the Convention in a country that is a
State party to the Convention and the Optional Protocol. It also establishes a follow-up
procedure where governments may be required by the Committee to submit a progress report on
remedial efforts taken regarding complaints (Article 9). However, women must show that they
have exhausted their domestic remedies before they can submit a complaint to the Committee.
Mrs. Mary Robinson, the High Commissioner for Human Rights, described the Optional Protocol thus:
..in addition to providing an international remedy for violations of women's rights, the Optional Protocolwill act as an incentive to Governments to take a fresh look a the means of redress that are currentlyavailable to women at the domestic level. This is perhaps the most important contribution of the O.P. It is action at the national level which will create the environment in which women and girls are able to enjoy all their human rights fully, and where their grievances will be addressed with the seriousness and speed they deserve..
At one point, it looked as if governments were on the verge of adopting a text that would actually have
restricted women's access to justice rather than expanding it! Women’s groups lobbied fiercely for a
stronger protocol, both at the national level and at the U.N.,where they vigilantly monitored
development of the draft for presentation to the CSW at its session in March 1999.
Lobbying to influence the Draft Optional Protocol
Following is the outline of lobbying procedure for national and international policy change:
The draft would establish:
1) A procedure authorizingCEDAW to consider specific complaints regarding violations of the convention or the failure to fulfill obligations established in the convention; and
2) A procedure authorizingCEDAW to initiate inquiries into serious or systematic violations of the convention As an optional agreement, it would be applicable only to states which are already states parties to the convention and choose to ratify it. No additional obligations would be imposed upon States Parties to the Convention which might choose not to ratify the protocol.
The draft text is under negotiation by a Working Group open to all U.N. Member States, meeting since 1996 once a year for two-week. A core group of governments opposed to effective international remedies ...At its last session, the Working Group debated a number of proposals by these governments that would seriously determine the effectiveness of the procedures created by the protocol. Their proposals and the compromises offered by other governments would severely limit the accessibility of the procedures and the scope of redress available. ...
Key elements of the text remain unresolved and will be debated when the Working Group continues its deliberations in March 1999, in a two week session parallel to the meeting of the u.n. Commission on the Status of Women in New York.
Among the central issues to be decided are:
The Optional Protocol is an NGO initiative: NGOs put the need for a complaints procedure on theinternational agenda at the world conferences in Vienna and Beijing; sponsored the preparation of a draft protocol by independent experts to serve as a starting point for debate; won CEDAW's endorsement of the elements in the expert draft; and lobbied the Working Group at its 1996-98 sessions
Now The Adoption Of A Strong Protocol Depends Upon Broadened Ngo Advocacy(...)
Lobbying government representatives and informing women's groups are the most urgently needed actions.
Work at the national level is what matters most right now.
There are a number of important steps ngos can take right away. These include:
Identify the individuals in your government responsible for formulating the government's position (... officials from Women's Ministries, Foreign Affairs Departments, or other governmental agencies.)
Ask your government if it plans to send a representative to the Working Group meeting in New York. — and if so who the representative will be: the officials responsible for developing your government's position may be based in your capital city, while the representatives to the Working Group meeting may be members of your country's U.N. mission stationed in New York.
Focus on the most important aspects of the Optional Protocol, get a commitment on these lements before your government's representatives leave for New York (or before instructions are sent to those already in New York). Often representatives feel unprepared for the highly technical discussions that take place at Working Group meetings.
URGE THEM TO ADOPT THE FOLLOWING POSITIONS:
(1) No reservations should be allowed to the Optional Protocol. Since the protocol does not
create any new rights, reservations are unnecessary
(2) A strong inquiry procedure must be included in the Optional Protocol.
The text should not allow governments the option of exempting themselves from the inquiry procedure, since the protocol itself will be optional.
(3) The complaints procedure should be open to a broad range of petitioners.
Urge your government to support the following language regarding the procedure:
"Communications may be submitted by or on behalf of individuals or groups under the jurisdiction of a State Party claiming to be victims of a violation of any of the provisions set forth in the Convention through an act or failure to act by that State Party."
This language is based on the first alternative to the draft text of Article 2 to the protocol.
This language is necessary to ensure that women have the same right to seek remedies that victims of human rights violations have under other human rights procedures. The other alternatives would create barriers for women that do not exist under any other human rights procedure.
If your government is supportive, make sure its representative is authorized to take a strong stance.
If your government is noncommittal, educating the representative could be very helpful at this stage.
And if your government is hostile, learning more about their opposition is essential for those lobbying at the Working Group meeting in March. Demonstrate that the NGO community in your country strongly supports an effective Optional Protocol builds accountability.
By discussing the Optional Protocol with your government, holding meetings, and getting media coverage, you are conveying the message that women's rights advocates are watching the government's actions.
Communicate with NGOs in your country and region, as well as the Women's Caucus for Gender Justice about your lobbying efforts.
Knowledge is power. A prepared NGO community will be far more effective than one that can be surprised by government positions at the Working Group meeting.
(Women's Caucus for Gender Justice)
The provisions sought by the Gender Justice Caucus were not all included, BUT the lobbying
campaign ensured the passage of the protocol.
IDENTIFYING RESOURCES AND PLANNING FOR ACTION
I. Identifying Existing Mechanisms
Latin American countries, South Africa or Japan?
2. Identifying places where Changes is Possible
3. Planning Changes
• Resources/skills/talents in your group
• Resources you will need
• People or agencies that can be approached
• Groups that could form an alliance with your group.
Set yourself successive goals (short- term, mid-tern, and long- term) with matching deadlines
For more information, please contact PDHRE: