Women’s Act 2010
The Women’s Act 2010 was signed into law by former President Jammeh on 28 May 2010. It is intended to provide for the protection of women’s rights in addition to the rights guaranteed under Chapter IV of the Constitution. The Long Title of the Act provides that, it is:
An Act to implement the legal provisions of the National Policy for the Advancement of Gambian Women and Girls, and to incorporate and enforce the United Nations Convention on the Elimination of all forms of Discrimination Against Women and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
The Act does not limit or restrict the incorporation and enforcement of any provisions of these two instruments. It will thus serve as an aid in the interpretation of the Act where there is a gap as the presumption that recourse will be on the original text of these two instruments. It recognises and gives legal effect and force to The Gambia’s international legal obligations and commitments made towards the realization of women’s rights.
Generally, the Act is a very innovative piece of legislation which contains provisions on promoting and protecting the rights of women in the Gambia. The Act is divided into different parts.
1. Women’s human rights protection
This part provides for women’s human rights protection relating to the right to dignity, security of the person, protection from violence, justice and equal protection before the law, freedom of expression and protection from discrimination and other relevant provisions. These provisions incorporate the Constitutional provisions under Chapter VI relating to protection of Fundamental Human Rights, while making them more specifically applicable to women. The provision relating to protection from violence is however innovative as it provides for a protection not hitherto provided for in the 1997 Constitution or any other law in The Gambia. Section 6 reads:
(1) Every woman shall be protected against any form of physical, sexual, psychological or economic harm, suffering, or violence whether occurring in public or private life.
(2) Any form of violence against women is hereby prohibited.
(3) All Government Departments, agencies, organs, public or private institutions shall take appropriate measures to promote and protect women’s rights and their legal status from any form of abuse by any person, enterprise, organization or institution.
It is pertinent to observe that the obligation to protect women from violence is imposed on Government and public institutions, organs and agencies and also private enterprises.
2. Temporary special measures in favour of women
Section 15 deals with temporary special measures to be adopted by every organ, body, public institution, authority or private enterprise aimed at accelerating de facto equality between men and women. Under this section a distinction is made between de facto and de jure discrimination. Considering the social and cultural set up of The Gambia, there may be instances where even though the law does not create or cause any impediment for women, the social and cultural environment may not be conducive for the achievement of equality. Here, government and all private institutions are called upon to take positive steps to achieve genuine de facto equality.
There has been a lot of progress in terms of appointment of women as Cabinet ministers. Despite the increase in the appointment of women as ministers, the technical and administrative decisions remain with men who serve as their permanent secretaries, and who may not see gender equality as a priority. The high number of women in very high-ranking positions may not necessarily be indicative of gender mainstreaming taking place, although they serve as positive role models.
The Gambia has not introduced the quota system in meeting the 30 per cent target for women’s political participation and representation in the National Assembly and public positions respectively (AU Solemn Declaration). This becomes more relevant in the political arena and decision-making at all levels, where women are not legally barred from participating effectively on an equal footing with men, but may not be able to do so due to cultural bias in favour of men, and stereotypical perception of the role of women. As noted in the 2012 study Women’s Political Participation and Representation in The Gambia: One step forward or two back? commissioned by TANGO (Nabaneh, 2013):
While the law does not explicitly set barriers for women to participate in politics, r the existing law is grossly inadequate given the socio-cultural barriers that are already well entrenched in society against women. Hence a non-sensitive law to this reality tantamount to legal barriers since the law gives no opportunities to enable women overcome the socio-cultural barriers. The law as it exists is ineffective (therefore a barrier) as to enable women to participate in politics.
3. Protection against discrimination
Section 14 of the Act deals with government’s obligation to eliminate all forms of discrimination against women. The provision is quite comprehensive and calls on Government Departments and other public institutions to implement measures, policies and strategies to eliminate discrimination, including periodic training of personnel on gender and human rights, and mainstreaming gender perspective in planning and programming of all activities and initiatives.
The Act also deals specifically with discrimination in various sectors, including:
Prohibition of discrimination in the field of employment
The sections 16-24 of the Act prohibits discrimination of women in employment. It ensures that women are accorded equal opportunity and equal rights in the field of employment. It also ensures that adequate support services and facilities are put in place for women to continue to take part in nation building during the crucial period of pregnancy, lactation, child bearing and upbringing in general. The provision recognises the contribution of women during the period of maternity and makes mandatory adequate compensation during this period.
Prohibition of discrimination in the field of education
Sections 26-28 of the Act guarantees the right to basic education in line with the Constitution. It also imposes an obligation on Government to ensure that the right curriculum is taught in schools, and that such curriculum would be geared towards the elimination of stereotyping of women and girls and ensure their total integration in nation building at all levels.
4. Right to health
Right to health and health care
Section 29 of the Women’s Act recognises the right of every woman to enjoy the highest level of physical, mental and social well-being, health care and health care services including family planning. Section29(3) further gives women the right to determine processes concerning reproduction in her body with international best practices.
However, the provision is broadly framed and contains little guidance on the specific nature of state obligations contained therein, or how these are meant to better protect women.
Elimination of discrimination in reproduction health rights and services
Section 30 of the Women’s Act protects women against discrimination in reproductive health rights and services and provides for the right to medical abortion where the pregnancy endangers the life of the mother or the foetus. This is limited in scope contrary to article 14(2)(c) of the Protocol which provides for medical abortion in cases of assault, rape and incest. This provision has a direct relation with the effects of GBV on victims particularly women.
Government’s obligation to respect and promote right to health
The Act under section 31 complies with the Maputo Protocol in ensuring that the reproductive and sexual rights of women in the context of sexually transmitted infections (STIs) including HIV/AIDS. It is important to recognise that to do so the rights to adequate, affordable, and accessible health services are necessary to support and prevent the spread of STIs.
Section 32 of the Women’s Act on measures to be undertaken by government includes information and communication programmes to women, especially those in rural areas. In this regard, government is required to recognise the importance of providing information in the public sphere. This information should be provided in an accessible manner but must also be relevant and contextualised in a fashion that makes it understandable by women, who may not have access to higher education. It is therefore important for government to ensure that information on the sexual reproductive health and rights of women is publicised in a way that deconstructs the inherent stigmas, taboos and misconceptions that tend to perpetuate harmful stereotypes of women’s roles in society to place women and men on a more equal footing
The provision also obligates government to provide training for health workers and educators on the importance of these rights, and which sensitises them to the specific needs of women. This necessarily includes training on counselling services that must be provided when information regarding sexual reproductive health is sought. These services should be provided in a manner that integrates women-centred prevention methods with other services, including family planning, reproductive health, primary health care services, HIV and STI testing, antiretroviral treatment programmes and antenatal care.
5. Marriage and the family
Section 35 of the Women’s Act states that ‘no marriage shall take place without the free and full consent of both parties to the marriage’. This means that no person should be forced into marriage and where such a marriage is contracted the marriage will be voidable. This creates some safeguards to ensure that both parties actually do consent to the marriage. Factors that may preclude consent include: threats of harm to victim; deception; threat of excommunication; financial abuse; and where the victim does not know her rights and believes she has no autonomy to refuse the marriage. Early or child marriages are, by definition, forced marriages. The legal minority status of the child precludes her/his ability to formulate legal consent.
Section 36 of the Act provides for the registration of marriage. The section only obliges the Government to encourage parties to record their marriage in writing. This does not meet the standards of article 16(2) of CEDAW and article 6 (d) of the African Women’s Protocol respectively to make registration of marriages compulsory.
The Women’s Act under section 43 protects the rights of the woman in cases of separation, divorce or annulment of marriage and other related rights but subjects it to personal law. Section 44 dealing with Widow’s Rights and right to Inheritance are subject to personal law.
These sections provide as follows:
Section 43: ‘Enjoyment of equitable rights as men in case of separation, divorce or annulment of marriage, subject to personal law.’
Section 44 (1) provides that:
A widow shall-
(a) Have the right to remarry, and in that event, to marry the person of her choice, subject to personal law.
Section 45: ‘Right to inherit in equitable shares, subject to personal law.’
These provisions have the effect of maintaining the status quo and reflecting the position of the law prior to the enactment of the Women’s Act. The Act further fails to provide for maintenance or support of a former spouse after divorce based on need, assets and earning capacity.
6. Additional Rights
The Act provides for special rights and protection for women. These include right to peace, food security, adequate housing, health and sustainable environment and positive cultural context. It also provides special protection to elderly women, women with disabilities and women in distress.
Women with disabilities
Section 53 of the Women’s Act provides special protection to women with disabilities. Recently The Gambia ratified the Convention on the Rights of Persons with Disabilities (CRPD) on 1 July 2012. Additionally, a resolution of the 2008 General Assembly on ‘Realizing the Millennium Development Goals for Persons with Disabilities(PWDs)’ called for states to pay special attention to the gender specific needs of persons with disabilities, including by taking measures to ensure their full and effective enjoyment of all human rights and fundamental freedoms.
In line with international human rights obligations, section 53 is not comprehensive enough to address the specific needs of women with disabilities who are vulnerable to having their rights violated and often face violence. There is need to enact laws and create policy documents that tackle the social, cultural and economic problems faced by PWDs, as well as the violence and discrimination against women with disabilities.
Currently, there is no specific law in compliance with article 23 of both CEDAW and the Protocol. Government must enact a disability-gender sensitive law and affirmative action policy aimed at addressing the discrimination faced based on a disability. There is also a need for special budgetary allocation for PWDs particularly women for livelihood and skills development; and creation of a disability friendly environment particularly with regards accessibility of both public and private buildings by PWDs.
7. Enforcement of the rights under the Act and remedies
The rights entailed in the Women’s Act as enforceable in the same manner as set out in section 37 of the Constitution in which where an infringement happens, the victim can seek redress in the High Court. section 12(1) of the Act provides that a man or woman acting in his or her own interest, on behalf of another person; as a member of an interest group; acting in the public interest or an association have standing before the competent court. The flexible rule of locus standi can serve as an opportunity for the right of recourse when there is a violation of their rights. As stated by Chaskalson P in Ferreira v Levin No (1996 (1) SA 609 (E)) broader approach to standing ensures “constitutional rights enjoy full measure of protection to which they are entitled to.” Such a broad and wide scope of standing will allow individuals and other groups to access the courts. It should however, be noted that the mere relaxing of the rules governing standing may not lead to the building of a women rights litigation culture.
Section 74 of the Act provides that where a person contravenes any of the provisions, he or she commits and offence and is liable, to a fine not exceeding fifty thousand dalasis or imprisonment for a term not exceeding six months or to both fine and imprisonment. Corporate bodies can also be found guilty of an offence under the Act according to section 75.
In addition, the Bureau has the legal standing to institute action in the name of the Council to enforce any of the provisions of the Act on behalf of any woman or a group of women. Due to institutional capacity, the Bureau has not done this since the coming into force of the Women’s Act.
In December 2015, Women’s (Amendment) Bill 2015 was by the National Assembly to prohibit female circumcision. The amendment addresses one of the key deficiencies of the Women’s Act 2010 which was the absence of a provision on eliminating harmful traditional practices. The Amendment Act added sections 32A and 32B in the Women’s Act.
The Act uses the term ‘circumcision’ instead of ‘mutilation’. However, in defining circumcision, it lists female genital mutilation. Section 32A makes it an offence for any person to engage in female circumcision and whoever contravenes it is liable on conviction to an imprisonment for a term of three years or a fine of fifty thousand dalasis (approximately $1250) or both. The Act also stipulates a life sentence in prison when the circumcision results in death.
The Act also addresses those who commission the procedure in section 32B(1). It states that ‘a person who requests, incites or promotes female circumcision by providing tools or by any other means commits an offence and is liable on conviction to imprisonment for a term of three years or a fine of fifty thousand Dalasis or both.’ In addition, a fine of ten thousand dalasis (approximately $250) as provided in section 32B(2) of the Act is levied against anyone knowing about the practice and failing to report.