General Principles for Drafting Laws on Harmful Practices

last updated June 2010

Harmful practices are entrenched in issues of gender roles, women’s status and women’s own self-identity. While laws are a critical means to eliminating harmful practices, stopping harmful practices involves deeper changes to societal norms, individual beliefs, and deeply rooted issues of gender inequality. Legislation should “acknowledge[s] that all forms of violence against women, including all harmful practices, are a form of discrimination, a manifestation of historically unequal power relations between men and women, and a violation of women’s human rights. (See: Good Practices on Harmful Practices Expert Group Report, p. 11.)
 
As such, Government action and legislation must take multiple forms and engage various groups, including educational, legal, health services, cultural and religious leaders to effect true change and end harmful practices. “While use of legal measures needs to be carefully considered and used in conjunction with other education efforts, laws can be a useful tool for change, giving NGOs and individuals greater leverage in persuading communities to abandon the practice.” (See: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, p. 13.)
States should act immediately to fulfill their obligation to protect girls and young women from violence in general and harmful traditional practices in particular, committed by state agents and private entities or persons, through the adoption of laws and policies. It has to put in place institutions and agencies which are competent and have the capacity to respond to the needs of children who are suffering from the effects of harmful practices as well as to prevent the further occurrence of harmful traditional practices.
See: No More Excuses, p. 28.
Core Elements of Legislation on Harmful Practices
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.
  • 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;
  • 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, as well as allocates 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 eliminate mitigation in sentencing perpetrators of harmful practices;
  • 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 and traditional and religious leaders.
 
As an 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.
Drafting the Legislative Preamble to Laws Addressing Harmful Practices
The legislative preamble sets the stage for the entire piece of legislation. The following elements are important to a strong and inclusive legislative preamble:
  • A definition of discrimination against women and girls as a restriction based upon sex which impairs the rights of women and girls. See: United Nations Handbook for legislation on violence against women, 3.1.1 (hereinafter UN Handbook);
  • A statement that acknowledges that the root cause of violence against women is the subordinate status of women in society. See: General Recommendation 19, Article 11; UN Secretary-General’s In-depth study on violence against women, para. 30; Other Causes and Complicating Factors, StopVAW, The Advocates for Human Rights; and The International Legal Framework, StopVAW, The Advocates for Human Rights;
  • Legislation should “acknowledge[s] that all forms of violence against women, including all harmful practices, are a form of discrimination, a manifestation of historically unequal power relations between men and women, and a violation of women’s human rights.” See: Good Practices on Harmful Practices Expert Group Report, p. 11) (emphasis added);
  • A statement that harmful practices against girl children are forms of child abuse;
  • A statement that the law will protect all women and girls. See: UN Handbook 3.1.3. For example, one of the first articles of the Maria de Penha Law (2006) of Brazil (hereinafter law of Brazil) states:
    All women, regardless of class, race, ethnicity, sexual orientation, income, culture, educational level, age and religion, enjoy the basic rights inherent to the human person, and are ensured the opportunities and facilities to live without violence, preserve their physical and mental health and their moral, intellectual and social improvement.”

    Article 2.
  • Legislation should be directed towards preventing harmful practices in all forms and protecting women and girls from harmful practices committed by all perpetrators, including state agents and public agencies, as well as private entities, including family members and groups of people; 
  • Legislation should explicitly state that harmful practices may not be justified by reference to any custom, tradition or religious consideration, and prohibit customs, practices and social and cultural patterns that discriminate against women and girls and perpetuate harmful practices. See: UN Handbook 3.1.5;
  • A statement that the state has the duty to prevent harmful practices, to investigate and prosecute cases of harmful practices, to investigate cases of imminent harmful practices, to protect potential victims, to punish perpetrators of harmful practices, and to give support to survivors of harmful practices; and
  • Legislation should refer to international and regional human rights conventions for a human rights framework to addressing harmful practices.
Elements to Increase Effectiveness of Draft Legislation on Harmful Practice
Legislation to end harmful practices will be more effective if the following elements are included in the drafting of new laws:
  • Legislation should mandate adoption of a national plan and strategy to eliminate harmful practices.
  • Legislation should ratify international and regional human rights instruments.
  • Legislation should review and ensure constitutional protection provisions.
  • Legislation should include provisions that call for the harmonization of all existing laws, including customary and religious laws, policies and legislation to accord with the new legislation on harmful practices. 
Legislation to Mandate Adoption of National Plan and Strategy to Eliminate Harmful Practices
Legislation to eliminate violence against women, including harmful practices, “is most likely to be implemented effectively when accompanied by a comprehensive policy framework which includes a national action plan or strategy.” UN Handbook 3.2.1.    
  • Where a current national action plan or strategy on harmful practices does not exist, legislation on harmful practices should require that the state draft, adopt and implement a national plan and strategy to eliminate harmful practices.
  • The national plan and strategy should contain measurable benchmarks and indicators of progress made towards eliminating harmful practices and create a framework for a comprehensive and coordinated approach to the implementation of the legislation. 
  • Where a national action plan addressing harmful practices already exists, legislation should reference the national action plan as providing the framework for the comprehensive and coordinated implementation of the legislation.
  • A national plan should include the ratification of international and regional human rights instruments.
  • Legislation should establish the supremacy of the constitution and national law over customary or religious law.
  • A national plan or strategy should emphasize accurate information that will be presented in all applicable local languages and will also be presented to the non-literate. 
  • A national plan should highlight the importance of a coordinated community response to the elimination of harmful practices with communication and collaboration between agencies to set and meet concrete goals. 
  • Legislation should require that child protection services are incorporated into the national plan and strategy. 
  • Legislation should require adequate funding to implement the national plan and strategy.
As an 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. The Plan sets forth the following elements of national action in their plan to eliminate harmful traditional practices affecting the health of women and children:
National Action:

(1) A clear expression of political will and an undertaking to put an end to traditional practices affecting the health of women and girl children, particularly female genital mutilation, are required on the part of the Governments of countries concerned.

(2) International instruments, including those relating to the protection of women and children, should be ratified and effectively implemented.

(3) Legislation prohibiting practices harmful to the health of women and children, particularly female genital mutilation, should be drafted.

(4) Governmental bodies should be created to implement the official policy adopted.

(5) Governmental agencies established to ensure the implementation of the Forward-looking Strategies for the Advancement of Women adopted at Nairobi in 1985 by the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace should be involved in activities undertaken to combat harmful traditional practices affecting the health of women and children.

(6) National committees should be established to combat traditional practices affecting the health of young girls and women, particularly female genital mutilation, and governmental financial assistance provided to those committees.

(7) A survey and review of school curricula and textbooks should be undertaken with a view to eliminating prejudices against women.

(8) Courses on the ill effects of female genital mutilation and other traditional practices should be included in training programmes for medical and paramedical personnel.

(9) Instruction on the harmful effects of such practices should be included in health and sex education programmes.

(10) Topics relating to traditional practices affecting the health of women and children should be introduced into functional literacy campaigns.

(11) Audiovisual programmes (sketches, plays, etc.) should be prepared and articles published in the press on traditional practices adversely affecting the health of young girls and children, particularly female genital mutilation.

(12) Cooperation with religious institutions and their leaders and with traditional authorities is required in order to eliminate traditional practices such as female genital mutilation which are harmful to the health of women and children.

(13) All persons able to contribute directly or indirectly to the elimination of such practices should be mobilized.
Other examples include:
  • Uruguay - The Uruguayan Law for the Prevention, Early Detection, Attention to, and Eradication of Domestic Violence (2002) mandates the design of a national plan against domestic violence.  (See: UN Handbook 3.2.1.)
     
  • Kenya - Article 46 of the Kenyan Sexual Offences Act (2006) requires that the relevant Minister prepare a national policy framework to guide the implementation and administration of the Act, and review the policy framework at least once every five years.
    46. The Minister shall -

    (a) prepare a national policy framework to guide the implementation, and administration of this Act in order to secure acceptable and uniform treatment of all sexual related offences including treatment and care of victims of sexual offences;

    (b) review the policy framework at least once every five years; and

    (c) when required, amend the policy framework.
  • MexicoThe Mexican Law on Access of Women to a Life Free of Violence (2007) prioritizes the inclusion of measures and policies to address violence against women in the National Development Plan and obliges the Government to formulate and implement a national policy to prevent, address, sanction and eradicate violence against women.
     
  • IndiaSection 6 of India’s National Plan of Action for Children 2005 addresses the Rights of the Girl Child. It specifically identifies as goals the end of sex selection, female feticide and infanticide, as well as child marriages. Its objectives include addressing the root causes of harmful practices such as son preference and the elimination of harmful practices that result from son preference such as pre-natal sex selection, female feticide and infanticide. Strategies to reach these goals include advocacy through community and religious leaders as well as government officials, and enforcement of laws that protect the equal rights of the girl child.
    6 - RIGHTS OF THE GIRL CHILD

    6.1 GOALS

    6.1.1 Assurance of equality of status for girl child as an individual and a citizen in her own right through promotion of special opportunities for her growth and development.

    6.1.2 To ensure survival, development and protection of the girl child and to create an environment wherein she lives a life of dignity with full opportunity for choice and development.

    6.1.3 To stop sex selection, female foeticide and infanticide.

    6.1.4 To eliminate child marriages.

    6.1.5 To ensure the girl child’s security and protect her from abuse, exploitation, victimization and all other forms of violence.

    6.1.6 To protect the girl child from deprivation and neglect and to ensure the girl child equal share of care and resources in the home and the community and equal access to services.

    6.1.7 To take measures to protect girl children from any treatment which undermines their self esteem and causes their exclusion from social mainstream and also to break down persistent gender stereotype.

    6.1.8 To eliminate all obstacles that prevent girls from full enjoyment of human rights and fundamental freedom including equal rights in succession and inheritance.

    6.1.9 To ensure equal opportunity for free and compulsory elementary education to all girls.

    6.2 OBJECTIVES

    6.2.1 To remove all social and familial biases and discrimination against the girl child throughout her lifecycle.

    6.2.2 To ensure protection and promotion of rights of the girl child with specific attention to age specific needs.

    6.2.3 To ensure that the girl child receives equal access to learning opportunities at all ages enabling her to develop a positive self-image as a full participant in society.

    6.2.4 To take measures to enable girls to develop their full potential through equal access to education and training, nutrition, physical and mental health care and social opportunities.

    6.2.5 To address the root causes of son preference and resultant discrimination against the girl child.

    6.2.6 To eliminate all forms of discrimination against the girl child which result in harmful and unethical practices, like pre-natal sex selection, female foeticide and infanticide, gender stereotypes, discrimination in care and food allocation, socialization, etc.

    6.2.7 To take steps through law, policy and programmes to eliminate all forms of violence against the girl child; and also to provide legal, medical, social and psychological support services and programmes to assist girls who have been subjected to violence.

    6.2.8 To take measures to ensure that girls with disabilities have full and equal access to all services, including support to meet their special needs.

    6.2.9 To create and sustain a gender sensitive education system to ensure equal education and learning opportunities to girls with the objective of ensuring gender parity at all stages of education.

    6.3. STRATEGIES

    The above objectives will be achieved by the following strategies:

    6.3.1 Advocacy through social, political and religious leaders and through all government programmes to change attitudes and practices discriminatory towards girls.

    6.3.2 Enforce laws that protect the equal rights of the girl child, like Child Marriage Restraint Act, PNDT Act, ITPA, Juvenile Justice (Care and Protection of Child) Act, Child Labour (Prohibition and Regulation) Act etc. by generating social support and through other necessary action.

    6.3.3 Encourage and support non–government organizations and community based organizations to promote positive attitudes and practices towards the girl child.

    6.3.4 Take steps to ensure all girls are enrolled in schools and create an environment for their retention and learning achievement.

    6.3.5 Take affirmative action for removal of gender discrimination against the girl child and inform and sensitize society about the traditional and customary practices which are harmful to the girl child.

    6.3.6. Monitor all clinics and other health centers to prevent sex selection and female foeticide; further, register and monitor all pregnancies to prevent selective abortion.

    6.3.7. Promote gender sensitization among all those in authority, including the judiciary, police and local authorities and members of the general public.

    6.3.8. Develop and promote day care services in order to relieve the girl child from sibling care responsibilities. This will enable her to access opportunities for her own development.

    6.3.9. Take measures to ensure that all girl children receive holistic health care and protection including preventive and curative services covering their health at all ages, including reproductive health information and services.

    6.3.10. Address nutrition discrimination against the girl child through sensitization, awareness and outreach programmes to ensure that she has equal access to food allocation within the home.

    6.3.11. Take preventive, protective and rehabilitative measures to address the greater vulnerability of the girl child to economic and sexual exploitation.
  • Ethiopia – According to the introduction of the Ethiopian National Policy on Women found in Ethiopia’s National Action Plan:
    The Federal Democratic Government of Ethiopia has declared its unequivocal commitment to the development of women with the announcement of the National Policy on Women in 1993 (referred to as the Women's Policy), and the promulgation of the new Constitution in 1994.
    The Policy recognizes harmful practices as a factor in the continued oppression of women and girls: 
    One of the contributing factors for the subordinate position of Ethiopian women is the existence of harmful traditional practices that puts women in subordinate position and militates against there equal growth and development. Thus more awareness and sensitization programs in different issues on gender should be addressed and advocacy at different level both at the policy and grass roots is so important and for this reason using different media and strategy through formal and informal methodology is of paramount importance. Unified effort of concerned groups is believed to make an impact and bring the desired attitudinal change. Already advocacy strategy has been designed to be implemented by both government, NGO's and women groups on issues such as FGM and other HTP's and on violence against women including domestic violence.
    In addition to advocacy, the Policy addresses the need for capacity building, organization, and participation of various governmental and non-governmental sectors to change attitudes, knowledge and practices. The Policy also focuses on specific policy and legislative changes that impact the elimination of harmful practices: 
    The national constitution has been developed to protect the fundamental rights of women and their interest of access and control over resource, about equality among women and men in marriage. It recognizes the history of inequality and discrimination suffered by women in Ethiopia. Ethiopian women are entitled to remedial and affirmative measures to enable them to compete and participate on the basis of equality with men in political, economic and social life. Women have the right to protection by the state from harmful customs and practices that press them or cause bodily or mental harm. They have equal right to employment, promotion, affirmative action is undertaken to improve the employment status of women through the revision of the civil service codes and existing labour laws.
    (Emphasis Added). 
    Women's access to and control over productive resources including access to farm land, water and forest resources, new policies and program have been formulated and adopted with increased gender consideration and equity.
     
    Thus as regard to property and land rights the constitution states that women shall acquire, administer control, use and transfer of property. With respect to use, transfer, administration and control of land women have equal access similar to men. Employment, promotion and transfer of pension are explicitly put in the constitution.
     
    Access to family planning education information and capacity building activities are provided in order to prevent harm during pregnancy and childbirth and safeguard the mother's health.
     
    Concerning maternity leave, the constitution also affirms that maternity leave will be provided with full pay and the duration is determined taking into account the nature of the work, the health of the mother and the wellbeing of the child and family.

Ratify International and Regional Human Rights Instruments
Part of the national plan and strategy to eliminate harmful practices should be a government plan to ratify international and regional human rights treaties that are relevant to harmful practices and call for an end to such customs. 

Ratification of such treaties should be done with limited reservations. Reservations undermine the signing state’s obligation to promote women’s rights or eliminate harmful practices. For example, reservations to the Women’s Convention or the Convention on the Rights of the Child which state that customary law or principles of Islam have precedence over treaty articles that prohibit discrimination against women or other conflicting directives of the Convention, undermine the very intent of the treaty itself.  
 
Clear government commitment to human rights, as evidenced by ratification without reservations of human rights treaties, provides impetus for social movements necessary for social change. 
 
After ratification, existing and future legislation must be amended or written to be consistent with the ratified human rights instruments. Ratification of such treaties will require the drafting, implementation, and monitoring of new laws and policies to protect women and girls from harmful practices. 
States Parties to international human rights treaties and regional agreements should be pressured to adopt laws and policies prohibiting harmful traditional practices in particular and violence against children in general as well as promoting gender equality. 

See: No More Excuses, p. 31.

Ensure Constitutional Protection Provisions
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.

Here are a few examples of constitutions that protect women from harmful traditional practices:

  • EthiopiaWhile 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.)

    Article 35 Rights of Women

    (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.

    (5)(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 - 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.

    Chapter 5, Paragraph 26 

    (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.

    Chapter 6, Paragraph 39

    (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 - 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 – 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 - Pursuant to the Benin 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 – The constitution of Burkina Faso 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).

 

 

 

Sources:

Stormorken, Lalaine Sadiwa, Vincent, Katrine, Vervik, Ann-Kristin, & Santisteban, Ruth. No More Excuses! Ending all Harmful Traditional Practices against Girls and Young Women, Plan Norway and Plan Finland, 2007.
 

United Nations, Good Practices in Legislation on “Harmful Practices” Against Women, Report of Expert Group Meeting, 26-29 May 2009.

Other sources cited within article.