sexual health and human rights in the african region - The ICHRP

[35] The Women’s Convention requires equality between the parties to a marriage
and the elimination of practices that perpetuate gender inequality. The
Committee on the Women’s Convention has said that polygynous marriages
have serious emotional and financial consequences for the women and their
dependants and ‘ought to be discouraged and prohibited’ and that they violate
article 5(a) of the Women’s Convention, especially. 509
[36] The African Charter does not address marriage or polygny directly. The African
Women’s Protocol addresses marriage, including polygyny. Like the Women’s
Convention, it, inter alia, enjoins states to guarantee women equal rights in
marriage. 510 In the specific instance of polygyny, it enjoins the state to take
measures to ensure that ‘monogamy is encouraged as the preferred form of
marriage and that the rights of women in marriage and family, including in
polygamous relationships are promoted and protected’. 511 Drafters of the African
Women’s Protocol originally proposed to proscribe polygny. 512 The proposal was
dropped in the face of opposition by some of the countries in which polygny
under Islamic law is institutionalized. 513
[37] The African Women’s Protocol’s position on polygny is a contradiction in terms.
It is a position that not only contradicts the position taken by the Committee on
the Women’s Convention. 514 It also contradicts the African Women’s Protocol’s
own equality and non-discrimination provisions. The definition of
discrimination in article 1 of the African Women’s Protocol, as suggested in
Chapter 2 of this study, envisages substantive equality in much the same away as
its counterpart under the Women’s Convention. Article 3 of the Convention calls
for the elimination of all forms of discrimination against women including social
and cultural patterns that are based on the notion of subordinating one sex or
gender to the other and a stereotyped role for women. The institutionalization of
polgyny is an instance of patriarchy and the subordination of women. It is a
system that perpetuates of inequality for women in marriage.
4.9 Marriage and Sexual Orientation under Domestic Law
[38] With the exception of South Africa, African domestic laws recognize
heterosexual marriages only. This requirement is expressed in domestic
legislation governing civil marriages which use the formula of describing
marriage as ‘a union between a man and a woman’ or its equivalent.
509 Committee on the Elimination of Discrimination against Women General Recommendation 21: Equality in
Marriage and Family Relations (1994), para 14.
510 Article 6 of African Women’s Protocol.
511 Article 6(c) ibid.
512 Banda Women, Law and Human Rights supra 71-76.
513 Ibid.
514 Committee on the Women’s Convention General Recommendation 21: Equality in Marriage and Family
Relations, para 14.
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