Decolonizing the narrative around constitutions, personal laws, and women’s rights
Many constitutions contain what are known as “clawback clauses,” which exempt personal law from their guarantees of nondiscrimination.
A group of women walking on a roadside in Maun, Botswana in 2008. Credit: Stefano Barzellotti / iStock
It is widely acknowledged that discriminatory personal, customary, or traditional laws have a negative impact on women’s human rights and have very tangible and often quite harmful consequences for women and girls’ well-being.
How issues of marriage, divorce, inheritance, and other family and personal matters are decided directly affects women and girls’ economic prospects, for example, their ownership of land and property, and their actual ability to participate in political and social life, including freedom from forced marriage and gender-based violence. Discriminatory personal law regimes have a profound and far-reaching effect on women’s lives.
Constitutional nondiscrimination provisions have posed a major obstacle to reform in this area. Many constitutions contain what are known as “clawback clauses,” which exempt personal law from their guarantees of nondiscrimination. These clauses effectively transform constitutional protections against discrimination into open invitations to discriminate—they place customary or personal laws outside of constitutional review and protection.
In countries such as Kenya and Zimbabwe, advocates have been successful in constitutional reform efforts to promote women’s equal rights in personal matters. In other countries, such as Botswana, women’s rights advocates continue to pursue litigation and reforms to undo the exemption of customary and other personal law norms from anti-discrimination protections.
However, women’s rights advocates around the world still face multiple challenges to overcoming this discrimination. Part of the difficulty is a narrative that frames advocates as opposing their own national traditions and cultures, and that these traditions are static and unique to specific cultures. Moreover, part of this narrative is that advocacy for women’s rights is seen as an imposition from “the West.”
In the recent constitutional reform efforts in The Gambia, for example, women’s advocates avoided challenging the current provision of the constitution, which exempts personal laws from nondiscrimination protection, focusing instead on parliamentary quotas. This reflects what a minefield it is for advocates to attempt to tackle the existing provisions and that the current narrative undermines advocacy efforts.
The harmful narrative facing women’s rights advocates is also historically inaccurate. Using the UN Women’s public database of constitutional provisions relating to women’s human rights, a worldwide pattern of colonial imposition can be discerned. Remarkably similar nondiscrimination provisions appear in the constitutions of The Bahamas, Barbados, Belize, Botswana, Dominica, Fiji, The Gambia, Ghana, Kiribati, Malaysia, Sierra Leone, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Singapore, the Solomon Islands, Turks and Caicos, and Zambia. Not only do the provisions all have very similar legal structures, but identical terms and phrases appear—such as “no law shall make any provision that is discriminatory either of itself or in its effect” except for “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.”
At first glance, this uniformity across different regions of the world makes no sense. But a common thread connects these disparate countries in the history of British colonialism. The provisions first appeared in the new constitutions that were adopted when these countries were establishing their independence from British rule or control. As Charles Parkinson has documented in Bills of Rights and Decolonization (2007), the British Colonial Office was closely engaged in the negotiations and drafting processes for the constitutions of countries exiting their empire and advocated strongly for rights inclusion. In 1962, the Colonial Office adopted an official policy to promote the inclusion of bills of rights based on the model that had been incorporated into the Nigerian constitution.
The unavoidable conclusion is that the British introduced the idea of, and lobbied for, the clawing back of nondiscrimination protections in the new constitutions. While the Colonial Office may not have intended to enable the oppression of women by promoting clawbacks, women’s rights were clearly not considered more important than the advancement of other interests. What those interests were, and what sort of trade-offs were made during constitutional negotiations requires further research—both into national constitutional histories and the extensive collection of Colonial Office records that is stored in the UK National Archives.
While future research might reveal more insight, the larger point is that these rights denials were driven by a colonial power in pursuit of its own agenda. With this history in view, it appears that the real imposition from “the West” is not women’s human rights, it’s rather the colonial suspension of women’s rights.
A decolonization approach—which attends to the history and impact of the exercise of colonial power—is an important tool for women’s rights advocates. It can help upend the difficult dynamic that local groups currently face by creating the opportunity for constitutional reform advocacy to critique these clawback provisions as foreign vestiges of racism and colonialism. In countries of sub-Saharan Africa, for example, this approach undermines the stereotype that the problem is essentially African.
Furthermore, where constitutional reform efforts have succeeded, they’ve opened up the legal space to bring equality principles and customary norms into conversation with each other, and in some cases have allowed a balancing that recognizes positive dimensions of custom that do not diminish women’s equality rights.
Surfacing the history of colonial involvement in constitution-making can also be helpful in legal cases involving the clawback provisions, and in broader policy advocacy and public awareness-raising about the need to reconsider and revise personal status law regimes.
The approach could also significantly transform the discourse around the United Kingdom’s development aid disbursements to women’s rights organizations. Financial support that may once have been simply at the donor’s discretion now seems to involve the more serious issue of reparations.
The value of a decolonization approach lies in support for local groups and scholars to unearth hidden histories; establish dialogue spaces that recognize distortions of Indigenous conceptions of community practices and decision-making; create context-specific advocacy; and curate new understandings of gender equality principles, law, and perceptions of traditional practices.
Ultimately, reframing the debate on personal laws and colonial legacies can have broader benefits by promoting more inclusive and democratic decision-making processes, which can have positive spillover effects for other marginalized groups and for overall governance.
Satang Nabaneh is the director of programs of the Human Rights Center and research professor at the University of Dayton. Twitter: @drsatangnabaneh
Shelley Inglis is the former executive director of the Human Rights Center, research professor at the University of Dayton, and a UN policy advisor.
Lee Waldorf is the former Human Rights and Rule of Law Advisor at UN Women, currently working as a consultant with UN agencies.