Jun 17, 2020 | Feature articles, News
While reports suggest a decrease in crime during lockdown due to restricted movement, violence against women, including gender-based violence (GBV), continues unabated, and has likely worsened throughout Africa, replicating global trends in this regard.
Africa has a serious GBV crisis, which domestic legislative frameworks and accountability mechanisms have failed to fully address.
Various factors contribute to the increasing incidence of GBV in Africa. These factors are facilitated by the failure of States to adequately discharge their obligations to protect persons from gender based violence, through legal reform and administrative actions.
The issues manifest in gender insensitive actors and institutions that administer justice, impunity for abuses, and limited capacity of justice actors to properly handle cases due to lack of training and resources.
There are also challenges in issuance of restraining and protection orders. All these problems are reinforced by a widespread lack of willingness to recognize, understand and engage with women’s rights by State actors.
In Africa, more than one in three women (36.6%) report having experienced physical, and/or sexual partner violence or sexual violence by a non-partner. Studies have also found that the highest prevalence of child sexual abuse is in Africa.
This GBV crisis in Africa has been worsened by the coronavirus pandemic, which has contributed to a surge in GBV. The pattern of rape, sexual violence, and killing of women continues to spread across the continent, even during this health crisis.
On 27 May, the news of the rape and killing of a 22-year-old student while she studied in an empty church in Nigeria sparked outrage and protests in many parts of the country.
In South Africa, the body of 28-year-old woman Tshegofatso Pule was found on 8 June. She had been stabbed and hanging from a tree; she was eight-months pregnant at the time.
There have been several reports of femicide since some COVID-19 restrictions were lifted in South Africa. In Zimbabwe, increasingly there have been reports of rape and other sexual violence being used as political weapons to suppress political opposition in Zimbabwe.
Recently, there have been reports that three leaders of the MDC-A party were abducted and subjected to torture which included sexual violence after staging a flash demonstration against failure of the government to address livelihood issues during the Covid-19 lockdown.
While the demonstrations were led by both men and women, allegations focused on sexual violence against women by State agents have been made on numerous occasion especially following protests against the government. In both instances the response by the State authorities has been to challenge the allegations before conducting a thorough investigation.
In the recent case of the MDC-A leaders, officials have not only refuted the allegations but also charged the victims for breaching Covid-19 regulations and recently arrested them for allegedly ‘faking abduction’ and lying about torture..
Global Standards
All States must protect against gender based violence, whether by State or private actors, pursuant to their obligations under the International Covenant on Civil and Political Rights, the UN Convention Against Torture, the Convention on the Prevention of all forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child. Most African countries are parties to these international treaties.
In addition, States of the African Union are bound to respect a range of international law and standards which prohibit gender based discrimination and sexual violence, most notable are the African Charter, and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women (the Maputo Protocol) and the African Charter on the Rights and Welfare of the Child.
Article 4 of the Maputo Protocol provides that “every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.
States parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women, including unwanted or forced sex whether the violence takes place in private or in public.” Article 16 of the African Charter on the Rights and Welfare of the Child includes sexual abuse of children as a form of torture, cruel, inhumane and degrading treatment.
As explained by the CEDAW Committee, all States, including African States, have a due diligence obligation to prevent, investigate, prosecute and punish rape and other GBV.
It is noteworthy that, 17 years into its existence, not all African countries have ratified or signed the Maputo Protocol, with only 42 out of 55 AU member states having ratified the convention. Of the few countries which have comprehensive domestic legal frameworks to eliminate all forms of violence against women, they too often face challenges in implementation.
States have the primary responsibility to take effective measures to eradicate GBV. States have an obligation to take the necessary action at all levels to ensure the elimination of harmful gender norms and stereotypes, as well as to ensure the elimination of GBV.
African countries need to urgently respond to the scourge of GBV in the region. The ICJ intends to publish a series of legal briefs on the “State of Rape Law” as provided in various jurisdictions in Africa, in order to highlight the challenges in criminal justice systems in relation to addressing the crime of rape and to provide concrete recommendations for reform.
Jun 2, 2020 | Advocacy, News
At a webinar hosted on 26 May, the ICJ heard from women human rights defenders (WHRDs) from Asia, Africa, and the Middle East discussed the adverse impact on women of lockdowns and other measures imposed by governments around the world as a response to the COVID-19 pandemic.
Reports from around the world indicate a rise in the number of cases of domestic violence and new challenges faced by women victims in accessing justice.
“Support or assistance for women experiencing domestic violence was not classified as an essential service that may continue when the country went on lockdown,” said Nonhlanhla Dlamini who is the Director of Swaziland Action Group Against Abuse (SWAGAA) in Eswatini. Still, SWAGAA and other NGOs in Eswatini persisted in their work to lobby the government to classify their work as an essential service. The government later provided authorization to allow SWAGAA’s staff to move more freely in order to assist women experiencing gender-based violence during the lockdown.
Theresia Iswarini, Commissioner of Indonesia’s National Commission on Violence Against Women (KOMNAS Perempuan), observed that because of the limited movement during the lockdown, NGOs are having a hard time reaching women experiencing domestic violence who do not have phones or any devices to access the internet.
NGOs also face the challenge of placing these women in safehouses because they need to first present a certificate that they are COVID-free before they are accepted in the safehouse and such certificates are almost impossible to secure during the pandemic.
The WHRDs assisting women experiencing gender-based violence often also need psychosocial support, as “they also have to deal with the additional burdens of overseeing the homeschooling of their children and caring for family members who may have also fallen ill.”
In Sri Lanka, Mariam Dawood who is the Legal Adviser from Women in Need (WIN), noted that “women in Sri Lanka have always faced this problem and [of being] ignored when they report gender-based violence to police authorities.”
She also shared that while courts had started to operate on a limited basis in the country, women in maintenance cases risk being exposed to infection because they have to appear in court at least every month to get an order from the judge to compel their spouses to pay alimony or child support.
These orders were not automatically renewable and must be obtained by women every month from the court.
ICJ Commissioner and Member of the UN Committee on the Elimination of Discrimination against Women Nahla Haidar asked participants to think about how civil society could mobilize other stakeholders in pandemics to give an ethical call on how behaviors can change at home.
“Who is responsible? We have been trying to speak to faith leaders, especially women faith leaders [in the MENA region]. I am wondering how these channels can be used, as well as within traditional leadership channels in Africa,” Haidar said.
ICJ Senior Legal Adviser, Emerlynne Gil, noted that many of the issues raised showed that even during the pandemic, governments reproduced patriarchal approaches to public polices which effectively saw women as subordinate to men.
“This inequality underlines many of the actions taken by governments around the world to curb the pandemic,” said Emerlynne Gil. She added: “This means that it is all the more important for groups like the ICJ to continue its work eliminating gender stereotypes and discriminatory practices in the work of justice actors around the world.”
During the webinar, the ICJ launched an animation calling on States to adopt gender-sensitive responses to the COVID-19 pandemic. Watch the animation here:
The webinar was live streamed on ICJ Asia’s facebook. Watch the livestream here:
Apr 28, 2020 | News
The ICJ today urged Taiwan to decriminalize adultery as soon as possible.
Echoing the UN Human Rights Committee, the UN the Committee on the Elimination of Discrimination against Women and the UN Working Group on discrimination against women in law and practice, the ICJ stated that the criminalization of people who are not married to each other for engaging in consensual sexual relations is a violation of the right to be free from discrimination; the right to equality before the law and equal protection of the law without discrimination; and the right to privacy, among other rights. The criminalization of adultery also often leads to discrimination and violence against women.
The Constitutional Court of Taiwan is currently deliberating on the constitutionality of Article 239 of the Criminal Code, which provides that, “a married person who commits adultery with another shall be sentenced to imprisonment for not more than one year; the other party to the adultery shall be subject to the same punishment.” On 31 March 2020, Taiwan’s Constitutional Court heard oral arguments on the constitutionality of Article 239 after several judges requested an interpretation of the law. The Court is expected to release its opinion on the matter at the end of May.
“In many ways, the ongoing criminalization of adultery leads to dire consequences for women’s human rights in Taiwan,” said Emerlynne Gil, Senior International Legal Adviser of the International Commission of Jurists.
“The enforcement of criminal adultery provisions often leads to discrimination and violence against women. In Taiwan, for example, women are disproportionately the target of adultery lawsuits. While male adultery enjoys greater tolerance in Taiwan, women are being targeted because of harmful gender stereotypes and rigid constructions of femininity.”
The ICJ notes that women are twenty percent more likely to be convicted than men in adultery cases in Taiwan. Furthermore, to secure a conviction on adultery charges in Taiwan, given the criminal law standard of proof, there has been a resort to photographic evidence of the two accused individuals engaging in sexual acts in some cases. As a result, an entire industry of private investigators, often engaging in illegal behaviour, has developed in response to “market” demand for “evidence” capable of making criminal adultery charges stick.
Taiwan is not a Member State of the UN, but in 2009 it introduced legislation aimed at incorporating the International Covenant on Civil and Political Rights (ICCPR) as a matter of domestic law. In 2013, an International Review Committee composed of independent human rights experts working in their personal capacities recommended that Taiwan should take steps to abolish the adultery provision in its Criminal Code as it was not in conformity with Article 17 of the ICCPR.
“Continuing to criminalize adultery goes against the image that Taiwan wants to portray of itself, that it is a beacon of democracy and human rights in Asia,” Emerlynne Gil said. The ICJ urges Taiwan to decriminalize adultery as soon as possible by removing the above mentioned provision from its Criminal Code.
Additional Information
There have been several challenges in the past to the constitutionality of Article 239 of Taiwan’s Criminal Code. In 2002, in one of such challenges, the Constitutional Court issued Interpretation 554, holding that the freedom of sexual behavior was inseparably related to the personality of individuals, and every person was free to decide whether or not and with whom to have sexual affairs. However, the Court went on to say that such freedom was legally protected only if it was not detrimental to “the social order or public interest”, as provided in Article 22 of the Constitution and, therefore, “the freedom of sexual behavior” was subject to the restriction that marriage and the institution of the family imposed on it.
Download the statement in Mandarin Chinese here.
Contact
Boram Jang, ICJ Legal Adviser – Access to Justice for Women, Asia & the Pacific Programme, e: boram.jang(a)icj.org
Apr 7, 2020 | News
As South Africa enters into its second week of a 21-day lockdown, the ICJ calls on national, provincial and local government authorities to urgently implement measures to prevent sexual and gender-based violence (SGBV) and protect women and children from it.
The country has been under lockdown since 26 March, with the population remaining at home, physically isolated in an attempt to ‘flatten the curve’ of transmission of the Covid-19 virus.
However, the lockdown means that some are trapped in their homes with their oppressors.
“A lockdown impacts women differently. For some women, being forced into lockdown with an already abusive partner heightens the risk of abuse and violence. It also means less support and fewer chances to seek help,” ICJ Senior Legal Adviser Emerlynne Gil said.
On 3 April, Police Minister Bheki Cele said that the South African Police Services had received 87,000 SGBV complaints violence during the first week of the national Covid lockdown.
Among the complainants was the wife of a police officer who reported that her husband had raped her. The officer has since been arrested.
The South African authorities have taken some steps to enhance women’s access to protection from SGBV during this lockdown, including by ensuring that women have access to courts for urgent civil matters, such as protection orders, as well as ensuring that there is an SMS line through which they can seek help.
Social services and shelters have also been made available. However, the authorities can and should go further in ensuring that these services are widely publicized, and that women have effective access them during the lockdown.
“Under international human rights law, States are legally obliged to take measures to prevent, address and eliminate SGBV,” ICJ Legal Associate Khanyo Farisè said.
“The South African authorities should do more, in particular, by raising awareness about GBV and providing comprehensive multi-sectoral responses to victims.”
Under international human rights law binding on South Africa, such as the Convention on the Elimination of All Forms of Discrimination against Women, States are obligated to take all appropriate measures to eliminate violence against women of any kind occurring within the family, at the work place or in any other area of social life.
In a previous statement, the ICJ also called on States to ensure that measures to tackle Covid-19 are gender responsive.
The ICJ calls on South African authorities to:
- Widely publicize health and legal services, safe houses and social services and police services available to victims of SGBV, including the hotline 0800-428-428 or *120*786#
- Effectively respond to reported cases of SGBV and provide protection to victims through a multi-sectoral approach involving all relevant stakeholders.
- Investigate the causes of SGBV, including the surge of this scourge in the South African context during the COVID19 pandemic, and identify further measures to protect women against SGBV that are specifically required during pandemics.
- Implement “pop-up” counseling centres in mobile clinics or in pharmacies to support women who experience SGBV.
- Include the work of domestic violence professionals as an essential service and provide emergency resources for anti-domestic abuse organizations to help them respond to increased demand for services.
Contact
Khanyo Farisè, ICJ Legal Associate, e: nokukhanya.Farise(a)icj.org
Shaazia Ebrahim, ICJ Media Officer, e: shaazia.ebrahim(a)icj.org
Apr 6, 2020 | Feature articles, News
A Feature Article by the Access to Justice for Women Team of the ICJ.
As the COVID-19 pandemic spreads across the globe, many governments are introducing a spectrum of measures to curb the spread of the novel coronavirus, including travel bans, lockdowns, curfews, and school, workplace and border closures.
While it is important that States act decisively in discharge of their obligations to protect the rights to life and health of all people during this pandemic, it is equal that they do so in a human rights compliant manner, so as not to compound the harms brought directly by the virus.
This entails, among other things, acting in a manner that provides equal protection and is non-discriminatory. Complying with these principles requires taking into account gender impacts and providing for gender-specific responses.
However, a number of measures presently being taken by governments around the world to attempt to curb the spread of the virus can be expected to exacerbate pre-existing gender inequalities and therefore disproportionately affect women’s enjoyment of social and economic rights.
Many women who are disabled, refugees, migrants, detainees, living in poverty and or belonging to ethnic, racial, religious or sexual minority groups are experiencing or are likely to experience intersecting forms of discrimination during this time of crisis.
What Does #StayHome Mean to Women?
Lockdowns, quarantines, and school closures to control the pandemic in many countries have a differential effect on women.
Women and girls are most expected to perform caregiving role within families, which means less economic and work opportunities for them and thus denying their basic rights to development.
This condition is worsened if they are being quarantined with an abusive partner as they are exposed to greater risks of intimate partner violence during the outbreak.
Unfortunately, in many places there is a significant lack of guidelines or information on how to contact police, access medical treatment, psychological support, or access to shelters when domestic violence occurs during the pandemic.
In the UK, for example, while 25 organizations helping domestic violence victims have reported an increase in their cases since the surge of the COVID-19 epidemic, one quarter said they could not effectively support victims because of technical issues, inability to meet victims, and staff sickness.
Additionally, with resources already stretched in fighting the spread of the virus, many State authorities may not see as a priority access to comprehensive sexual and reproductive health services for women, which are already restricted by prohibitive laws and customs in many contexts.
This results in significant limitations on women’s rights to menstrual health, maternal health, and safe abortion.
Women at Work
According to the International Labour Organization (ILO), women are over-represented in more affected sectors (such as services) or in occupations that are at the frontline of dealing with the pandemic.
The ILO estimates that 58.6 percent of employed women work in the services sector around the world. Women also have less access to social protection and will bear a disproportionate burden in the care economy, in the case of closure of schools or care systems.
Women migrant workers are also vulnerable to the impact of the COVID-19 crisis, as extensive travel restrictions constrain both their ability to access their places of work in destination countries and return to their families.
Women at the Border: Refugees & Asylum seekers
There is a severe lack of secure, safe and accessible infrastructure and services in most refugee camps and temporary settlements.
Asylum seekers face right now a long wait if the courts are closed due to the pandemic, or worse, being returned to their home country without having a chance to pursue their claims, sometimes in violation of the principle of non refoulement.
As the virus hits overcrowded displacement sites, the consequences can expected be catastrophic. Moreover, in this setting, studies found that women and girls are often exposed to sexual violence and exploitation when they are forced to openly defecate or walk to shared sanitation facilities.
All State Measures to COVID-19 Must Be Gender Responsive
Under the International Covenant on Economic, Social and Cultural Rights (ICESCR), States have duty to achieve the full realization of the right to everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also provides of the obligation of States to take all appropriate measure to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
Furthermore, failure to recognize the gender dynamics of outbreaks limits the effectiveness of response efforts and consequently impedes women’s rights.
In order for the response to disease outbreaks such as COVID-19 to be effective and not reproduce or perpetuate gender and health inequities, it is important that gender norms and roles are identified and incorporated in all socio- economic measures established to counter the pandemic.
Further, the emergency preparedness and response plan must address gender roles, responsibilities, social norms and specific needs of women.
States should also provide new strategies for women victims of domestic violence to be protected during the lockdown.
Governments should include the work of domestic violence professionals an essential service and provide emergency resources for anti-domestic abuse organizations to help them respond to increased demand for services.
They should also consider, alternative means, such as through “pop-up” counseling centers, reporting in pharmacies, to encourage women to report domestic violence.
Governments must ensure all measures to combat the outbreak are gender responsive while being in strict accordance with human rights standards.
While states may limit or derogate from certain rights to meet a public health crisis, such restrictions are always subject to the principles of legality, necessity proportionality and nondiscrimination.
Given that women are often to be found in the more vulnerable categories of informal work, for instance, as domestic workers or self-employed home-based workers, authorities should enhance universal access to collectively-financed health services for all, including uninsured workers and their families.
States must also expand access to collectively-financed paid sick leave, sickness benefits, and parental or care leave to ensure income security for those who are sick, quarantined or caring for children, elderly or other family members.
Moreover, governments should ensure that women asylum seekers, internally displaced persons, and refugees are included in national COVID-19 surveillance, preparedness, and response plans, and ensure that menstrual hygiene, reproductive, and other primary health care commodities are well-stocked and available.
Lastly, perspectives, experiences, and voices of diverse women, including LBTI persons (as enshrined in the Yogyakarta Principles), should be included in decision-making process around the COVID-19 outbreak measures because effective global responses, to public health emergencies must be in line with the rights and needs of affected women.
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Download the Op-Ed in other languages:
Nepali (PDF)
Tamil (PDF)
Sinhala (PDF)
Indonesian (PDF)
