The national strategy should also ensure that the national constitution upholds the rights of women and girls to be free from harmful practices. In most States around the world, the national constitution provides the primary source of rights for the population. As likely the highest legal authority for a country, legislation and government action generally must conform to the norms and standards set forth in it. As such, a constitution should be drafted to:
- Ensure the equality of women and girls;
- Protect the rights of children explicitly;
- Establish supremacy of constitutional protections and other statutory law over customary or religious laws;
- Explicitly prohibit harmful practices, whether specifically named or implicitly understood to be harmful practices within the human rights framework; and
- Provide legal remedies for women and girls who have been subjected to harmful practices.
Constitutions that do not include these provisions should be amended.
“Constitutions should be unambiguous in securing the equality of women and men under the law in all maters, protecting the rights of children and guaranteeing women and children protection against harmful customs.” Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Anika Rahman and Nahid Toubia, p. 60.
Illustrative Examples:
- The Constitutions of Brazil; Ecuador; Dominican Republic and Honduras – provide for the prohibition of all kinds of exploitation of, or violence against, women, and/or children and adolescents. See, United Nations Children’s Fund, Study of legal frameworks supporting adolescent participation in Latin America and the Caribbean, March 2012, p. 18.
-
- Constitución de la República de Ecuador, 20 de octubre de 2008.
- Constitución de la República Dominicana (G.O. No 10561), 26 de enero de 2010.
- Constitución de la República de Honduras (Decreto No. 131 del 11 de enero de 1982).
- Constitución Política de la República Federativa del Brasil, 1º de enero de 1988 –según enmienda constitucional No. 65, del 13 de julio de 2010.
- Ethiopia – Constitution of Ethiopia
While the Ethiopian Constitution does not explicitly refer to FGM, it establishes the supremacy of constitutional provisions and protects women and girls from “harmful customs”, including, by interpretation, FGM.
Article 9 Supremacy of the Constitution
(1) The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect.
(2) All citizens, organs of state, political organizations, other associations as well as their officials have the duty to ensure observance of the Constitution and to obey it.
(3) It is prohibited to assume state power in any manner other than that provided under the Constitution.
(4) All international agreements ratified by Ethiopia are an integral part of the law of the land. (Emphasis added).
(1) Women shall, in the enjoyment of rights and protections provided for by this Constitution, have equal right with men.
(2) Women have equal rights with men in marriage as prescribed by this Constitution.
(3) The historical legacy of inequality and discrimination suffered by women in Ethiopia taken into account, women, in order to remedy this legacy, are entitled to affirmative measures. The purpose of such measures shall be to provide special attention to women so as to enable them to compete and participate on the basis of equality with men in political, social and economic life as well as in public and private institutions.
(4) The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.
(5) (a) Women have the right to maternity leave with full pay. The duration of maternity leave shall be determined by law taking into account the nature of the work, the health of the mother and the well-being of the child and family.
(b) Maternity leave may, in accordance with the provisions of law, include prenatal leave with full pay.
(6) Women have the right to full consultation in the formulation of national development policies, the designing and execution of projects, and particularly in the case of projects affecting the interests of women.
(7) Women have the right to acquire, administer, control, use and transfer property. In particular, they have equal rights with men with respect to use, transfer, administration and control of land. They shall also enjoy equal treatment in the inheritance of property.
(8) Women shall have a right to equality in employment, promotion, pay, and the transfer of pension entitlements.
(9) To prevent harm arising from pregnancy and childbirth and in order to safeguard their health, women have the right of access to family planning education, information and capacity. (Emphasis added.)
- Ghana - Constitution of Ghana
Ghana’s constitution states that “traditional practices” harmful to people’s health and well-being should be eliminated.
Chapter 1, Paragraph 1(2) - The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.
(1) Every person is entitled to enjoy, practise, profess, maintain and promote any culture, language, tradition or religion subject to the provisions of this Constitution.
(2) All customary practices which dehumanise or are injurious to the physical and mental well-being of a person are prohibited.
(1) Subject to clause (2) of this article, the State shall take steps to encourage the integration of appropriate customary values into the fabric of national life through formal and informal education and the conscious introduction of cultural dimensions to relevant aspects of national planning.
(2) The State shall ensure that appropriate customary and cultural values are adapted and developed as an integral part of the growing needs of the society as a whole; and in particular that traditional practices which are injurious to the health and well-being of the person of the person are abolished.
(3) The State shall foster the development of Ghanaian languages and pride in Ghanaian culture.
(4) The State shall endeavour to preserve and protect places of historical interest and artifacts. (Emphasis added.)
- Uganda - The Constitution of Uganda
Uganda’s constitution declares that customs or traditions that are “against the dignity or welfare or interest of women or which undermine their status” are prohibited.
Chapter 1, Article 2. Supremacy of the Constitution.
(1) This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.
(2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.
Chapter 4, Article 29. Protection of freedom of conscience, expression, movement, religion, assembly and association.
(1) Every person shall have the right to—
(a) freedom of speech and expression which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief which shall include academic freedom in institutions of learning;
(c) freedom to practise any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organisation in a manner consistent with this Constitution; (Emphasis added)
(d) freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition; and
(e) freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organisations.
Chapter 4, Article 33. Rights of women.
(1) Women shall be accorded full and equal dignity of the person with men.
(2) The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.
(3) The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society.
(4) Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.
(5) Without prejudice to article 32 of this Constitution, women shall have the right to affirmative action for the purpose of redressing the imbalances created by history, tradition or custom.
(6) Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution. (Emphasis added)
- India – Constitution of India
Female infanticide is a violation of Article 21 of the Indian Constitution, which recognizes that every person has the right to life. (See: No More Excuses, p. 18)
- Benin - Constitution of Benin
Pursuant to the constitution, cultural and religious freedoms may be limited under the law:
Article 23 states that “[e]very person has the right to freedom of thought, of conscience, or religion, of creed, of opinion and of expression with respect for the public order established by law and regulations.” (Emphasis added).
- Burkina Faso – Constitution of Burkina Faso
The constitution guarantees equality and protection of life, safety and physical integrity for women. Article 7 states that cultural and religious practices must conform to constitutional protection of individual rights.
“The freedom of belief, of non-belief, of non-belief, of conscience, of religious, philosophical opinion, of religious exercise, the freedom of assembly, the free practice of custom…shall be guaranteed by the present Constitution subject to respect of the law, of the public order, of good morals and of the human person.” (Emphasis added).