The following foundations should be incorporated when drafting any law on harmful practices:
- Legislation should clearly prohibit discrimination and violence against women and protect women and girls from discrimination and violence;
- Legislation should be comprehensive and criminalize all forms of violence against women (See: UN Handbook, 3.1.2);
- Drafters should recognize harmful practices as a form of discrimination and violence against women;
- Drafters should assess the form and extent of harmful practices in an area and draft legislation that prohibits customs, practices and social and cultural patterns that discriminate against women and girls and perpetuate harmful practices;
- Legislation should require governments to collect data on the prevalence and types of harmful practices in their respective countries and ensure that prosecutors, service providers and medical personnel are aware of the various potential harmful practices and trained to identify and effectively respond to victims;
- Legislation should clearly condemn, prohibit, and penalize harmful practices including, among others, female genital mutilation, forced and child marriage, maltreatment of widows, honor crimes and dowry-related violence, female infanticide and female feticide, acid attacks, stove burnings, and breast ironing;
- Legislation should specifically define, prosecute and punish harmful practices. Although harmful practices may be prosecuted under general criminal legislation such as provisions on assault, or constitutional measures such as equality and protection from violence, for the most effective implementation, drafters should create legislation specific to the various harmful practices;
- Legislation should ensure that harmful practices are addressed in “stand-alone” laws on one type of harmful practice, or included in a “comprehensive law” that addresses multiple forms of violence against women;
- Legislation should integrate protections against harmful practices into a domestic violence and child protection framework;
- Legislation should require the exercise of due diligence in preventing, investigating and punishing all matters of violence against women and girls, including those traditionally considered to be within the purview of the family or culture;
- Legislation should be comprehensive in that it not only criminalizes harmful practices but also mandates action to prevent such practices;
- Legislation should allocate funding and training to ensure that legislation is implemented;
- Legislation should ensure accountability for perpetrators of harmful practices and require that the penalty reflect the severity of the harmful practice committed;
- Legislation should prohibit the use of mediation at all stage of the process;
- Legislation should eliminate mitigation in sentencing perpetrators of harmful practices;
- Legislation should prohibit the acceptance of and informal financial settlement or marriage as settlement of claim of harmful practice;
- Legislation should provide for enhanced protection and penalties for aggravating circumstances involving natural disaster situations and civil or political unrest or conflict situations;
- Legislation should provide legal, medical, educational, economic and social support to victims;
- Legislation should provide for a civil order for protection remedy for victims of harmful practices;
- Legislation should require data collection and monitoring of the prevalence of, consequences of, and responses to harmful practices specific to the area covered by the legislation;
- Legislation should establish and mandate funding for public awareness measures aimed at all sectors and trainings for government officials, legal professionals and service providers on harmful practices and women’s human rights; and
- Legislation should provide for collaboration with civil society as well as traditional and religious leaders.
(See: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Art. 5; UN Fact Sheet No. 23, Harmful Traditional Practices Affecting the Health of Women and Children; CEDAW General Recommendation No. 19; and the UN Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children)
Illustrative Example: The United Nations Sub-Commission on the Promotion and Protection of Minorities adopted a Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children with recommendations for specific types of harmful practices including son preference, early marriage, child delivery practices, and violence against women and girl children. The Plan sets forth the following action elements related to violence against women and girl children:
Violence against women and girl children
(43) Violence against women and girl children is a global phenomenon which cuts across geographical, cultural and political boundaries and varies only in its manifestations and severity. Gender violence has existed from time immemorial and continues up to the present day. It takes covert and overt forms including physical and mental abuse. Violence against women, including female genital mutilation, wife-burning, dowry-related violence, rape, incest, wife battering, female foeticide and female infanticide, trafficking and prostitution, is a human rights violation and not only a moral issue. It has serious negative implications on the economic and social development of women and society, and is an expression of the societal gender subordination of women.
(44) Governments should openly condemn all forms of violence against women and children, in particular girls, and commit themselves to confronting and eliminating such violence.
(45) To stop all forms of violence against women, all available media should be mobilized to cultivate a social attitude and climate against such totally unacceptable human behaviour.
(46) Governments should set up monitoring mechanisms to control depiction of any form of violence against women in the media.
(47) Violence being a form of social aberration, Governments should advocate the cultivation of a social attitude so that victims of violence do not suffer any continuing disability, feelings of guilt, or low self-esteem.
(48) Governments should enact and regularly review legislation for effectively combating all forms of violence, including rape, against women and children. In this connection, more severe penalties for acts of rape and trafficking should be introduced and specialized courts should be established to process such cases speedily and to create a climate of deterrence.
(49) Female infanticide and female foeticide should be openly condemned by all Governments as a flagrant violation of the basic right to life of the girl-child.
(50) The hearing of cases of rape should be in camera and the details not publicized, and legal assistance should be provided to the victims.
(51) Traditional practices of dowry and bride price should be condemned by Governments and made illegal. Acts of bride-burning should likewise be condemned and a heavy penalty inflicted on the guilty.
(52) Families, medical personnel and the public should be encouraged to report and have registered all forms of violence.
(53) More and more women should be inducted in law enforcement machinery as police officers, judiciary, medical personnel and counsellors.
(54) Gender sensitization training should be organized for all law enforcement personnel and such training should be incorporated in all induction and refresher courses in police training institutions.
(55) Mechanisms for networking and exchanges of information on violence should be established and strengthened.
(56) Governments should provide shelters, counselling and rehabilitation centres for victims of all forms of violence. They should also provide free legal assistance to victims.
(57) Governments must develop and implement a legal literacy campaign to improve the legal awareness of women, including dissemination of information through all available means, particularly NGO programmes, adult literacy courses and school curricula.
(58) Governments must promote research on violence against women and create and update databases on this subject.
(59) Community-based vigilance should be promoted regarding gender violence, including domestic violence.
(60) At the national level, Governments should promote and set up independent, autonomous and vigilant institutions to monitor and inquire into violations of women's rights, such as national commissions for women consisting of individuals and experts from outside the Governments.
(61) Governments which have not done so are urged to ratify the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, to ensure full gender equality in all spheres of life. The States Parties to these Conventions must comply with their provisions in order to achieve their ultimate objectives, including the eradication of all harmful traditional practices.
(62) NGOs should be active in bringing all available information on systematic and massive violence against women and children, in particular girls, to the attention of all relevant bodies of the United Nations, such as the Centre for Human Rights, the Commission on the Status of Women, and specialized agencies for the necessary intervention. Such information should also be shared with the Governments concerned, womens' commissions and human rights organizations.
(63) Women's organizations should mobilize all efforts, including action research, to eradicate prejudicial and internalized values which project a diminished image of women. They should take action towards raising awareness among women about their potential and self-esteem, the lack of which is one of the factors for perpetuating discrimination.