Harmful cultural and traditional practices : a roadblock in the implementation of the convention on the elimination of discrimination against women and the Maputo protocol on women's rights in Tanzania.
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Date
2017
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Abstract
The focus of this study was largely on the effect of harmful cultural beliefs and practices regarding women’s rights as enshrined in international, national and regional legal instruments that apply to the Tanzanian legal framework. The study examined and provided an overview of relevant aspects of existing culture and traditions that were found to be in conflict with the provisions of Tanzania’s Constitution and domestic legislation. In light of the findings, there is an urgent need for the reform of various legislations in order to adhere to the resolutions of the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Maputo Protocol. A literature review was conducted to analyse the judicial decisions in Tanzania and other African countries in terms of the domestication of international human rights instruments that protect the rights of women through due process of judicial review. This undertaking was underpinned by the prime purpose of this study which was to analyse the impact of culture and traditions on the implementation of CEDAW and the Maputo Protocol in the Tanzanian context.
The study revealed that some cultural beliefs and traditions in Tanzania continue to subordinate, discriminate against and harm women in the context of family, clan and community life. The values that are entrenched in customary law practices are used to justify the violation of women’s human rights. Many cultural practices that subject women to abuse continue to prevail despite the existence of appropriate domestic legislation that prohibits such practices. This study discovered that several discriminatory laws that negatively impact women’s rights are still enforced in Tanzania and that intentions to amend these laws and to remove discriminatory provisions have been hindered by strong traditional resistance. It was also established that, notwithstanding the provisions of international human rights instruments and the Constitution of the United Republic of Tanzania, which clearly prohibits any form of discrimination through the recognition of the equality of all human beings and guaranteeing equality and protection of all before the law, some judges still do not find it unjust to make decisions based on discriminating legislation. Rather, these judges choose to make decisions based on harmful customary rules without consideration of human rights principles that are enshrined in the country’s Constitution. In these circumstances, they persist in presenting divergent views on the interpretation of the rules.
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Based on the findings of this study, it is argued that, in order for customary practices to make any meaningful impact of the lives of women in Tanzania and in Africa at large, these practices must be EXERCISED within a human rights framework. Furthermore, full domestication of international human rights instruments that protect women is of paramount importance in the implementation of women’s rights to strengthen the hands of law enforcers. However, the application of the law alone is limited in addressing women’s rights, as the stereotyped mind-set of Tanzanian and many other African societies needs to be CHANGED for a better realisation of women’s rights.
Description
Master of Law in Constitutional Litigation. University of KwaZulu-Natal, Durban 2017
Keywords
Women's rights--Tanzania., Sex discrimination against women--Tanzania., Women--Legal status, laws, etc--Tanzania., Freedom of religion--Tanzania., Theses--Law.