Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 93
Article 2(a): States must enact and enforce in national
law the paramount principle of gender equality
Article 2(a) of the CEDAW Convention requires States: “To
embody the principle of the equality of men and women in their
national constitutions or other appropriate legislation if not yet
incorporated therein and to ensure, through law and other
appropriate means, the practical realization of this principle;” 230
The CEDAW Committee has indicated that the obligation to
recognize the right to equality in national law means
recognition in the law with an “overriding and enforceable
status”. 231 Frequently, women’s right to equality may be
inappropriately subsumed under religious or customary
personal status laws. This may be particularly problematic for
women who are facing violence in the family, as their ability to
make a new life away from an abusive husband may be limited.
Often they have a choice between staying in an abusive
relationship or walking away from a marriage or other
relationship without any fair division of marital, or de facto
marital, property and thereby live in destitution. They may also
be faced with the prospect of escaping their marriage, but
having to leave their children behind with an abusive husband.
These inequalities often mean that women choose to remain in
violent relationships.
The CEDAW Committee has therefore recommended that
States parties:
”Provide explicit constitutional protection for formal and
substantive equality and non-discrimination in the public
and private spheres, including all matters of personal
230
See also the Protocol to the African Charter on Human and Peoples'
Rights on the Rights of Women in Africa (Maputo Protocol) of 11 July
2003, Article 2(1)(a).
231
CEDAW General Recommendation No 28, above note 229,
paragraph 31.