Discrimination is any form of differential treatment or classification. It emphasizes the distinction based on race, colour, sexual orientation, language, religion, political or other opinions, national or social origin, property, birth or other status for the purpose of disadvantaging the other individual or group. Conversely, equality means none of the above status or conditions which serve as a ground to discriminate others. The United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) defines discrimination against women as:
“…any distinction, exclusion or restriction made on the basis of sex, race, religion which has the effect or purpose of impending or multiplying the recognition, enjoyment or exercise by women irrespective of their mental status or on equality of men and women of human right and fundamental freedoms in political, economical, social, cultural, civil or any other field”
Sierra Leone like many other African countries and most parts of the Middle East are male dominated societies as such gender discrimination is common practice in all facets of life. A high proportion of women in Sierra Leone especially those at grass root level are faced daily with negative traditional beliefs that put them in disadvantaged position. Furthermore the nature and extent of gender discrimination in Sierra Leone varies considerably from other parts in the world, in that it is legally sanctioned and reinforced by existing practices. Nevertheless, the law can also be the most appropriate means to challenge inequality and ultimately change the situation.
In recent times, advances have been made to eradicate the practice. Chapter 3 of the 1991 Constitution of Sierra Leone, commonly referred to as the ‘Bill of Rights’, states that the Fundamental Human Rights and Freedoms of every individual in Sierra Leone must be recognized and protected. Sec. 15 of the 1991 Constitution provides that regardless of sex, every person in Sierra Leone has right to life, liberty, security of person, the enjoyment of property, the protection of deprivation of property and the protection of the law. Sec. 27 further states that “no law shall make any provision which is discriminatory either in itself or its effect.” All of these provisions are geared towards ensuring that every individual irrespective of race, sex, religion has equal right of opportunities under the law. The Government has taken a step further to produce two policy documents entitled National Policy on the Advancement of Women (NPAW) and the National Policy on Gender Mainstreaming. In addition to that, Sierra Leone has signed and adopted several international instruments which condemn discrimination and protect the right of the minorities. Amongst these are the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The Beijing Rules, and most importantly CEDAW. In line with this, women’s rights campaigners and other civil society and human rights activists have been sensitizing the population about women’s rights.
Notwithstanding all these efforts, there is a lot to be done to eradicate discrimination of women in our society. This article first examines certain provisions in the laws of Sierra Leone that discriminate against women. It discusses the discriminatory practices in the courts and looks at the role the government has played to curb discrimination and concludes by giving recommendations for reform.
Discriminatory provisions in laws of Sierra Leone
The legal system of Sierra Leone is made up of the Constitution, Common Law, statutory law and unwritten Customary Law. Unfortunately in Sierra Leone, the laws proclaiming to prohibit discrimination are now the main anchor used by people to discriminate against women. It gives the rights with one hand and takes it with the other. Each right provision is swamped by too many exceptions. Why these contrasting views, becomes a subject of discussion. For instance Sec. 27(1) of the 1991 Constitution states that “no law shall make any provision that is discriminatory in itself or its effect.” This is weakened by the exceptions in Sec.27 (4) d & e, which states that “it shall not apply to any law that makes provision for adoption, marriage, divorce, burial, devolution of property on death and customary law.” It is not only ironic but equally inexcusable that all the laws which discriminate against women are permitted to do so under the Constitution.
The Citizenship Act is discriminatory in both sex and race. Under the Citizenship Act 1973 , one can be a citizen by birth if his father or grandfather was born in Sierra Leone before 19 April 1961 or who resided in, Sierra Leone on 18 April 1971 and your mother must be a citizen of Sierra Leone and not an alien before her child can become a citizen. Furthermore, Sec.7 states that women who are not Sierra Leonean citizens but who marry a Sierra Leonean man can apply to become Sierra Leonean citizens in the manner prescribed and they will be granted a certificate of naturalization. Why is it that Sierra Leonean women are not accorded similar rights? A foreign husband married to a Sierra Leonean woman cannot, even by application, be accorded similar rights to citizenship as does the foreign wives of Sierra Leonean husbands.
Sec.7 of the Christian Marriage Act (CAP 95), 1960 states that if the party to a marriage is below 18, the consent of the father is to be sought before marriage and only if the father is dead or unable for any reason to give consent, should the mother be consulted. This section does not afford women and men the same level of authority or guardianship over their children . Sec. 9(2) of the Mohammedan Marriage Act (CAP 96) also excludes women from administering estates of the intestate whereas it grants such powers to the son, the eldest brother of the intestate, or the official administrator.
Furthermore, the Second Schedule of the Administration of Estate Act” … states that, if a man dies intestate leaving a widow and children or issue, the widow inherits one third of the estate and the children will get the remaining two-thirds equally. If the woman is childless, she receives one- half of the estate and the remaining goes to close relations of the husband. . If the man dies leaving no widow or children, the father inherits the whole of the estate. It is only when the father is not alive that the mother inherits. On the other hand, if a woman dies intestate leaving a husband all her estate goes to the husband.
Sec.4 of the Matrimonial Causes Act (Cap102) of the Laws of Sierra Leone states that “if the respondent is pregnant at the time of the marriage by another man other than the petitioner, the petitioner can file for divorce”. What happens, in a case where a man impregnates another woman out of wedlock, is that not a basis for the wife to file for a divorce instead of waiting for desertion without cause which is three years minimum?, Three years is an exceptionally long time to wait before one can apply for divorce.Sec. 7 further states that it shall be the duty of the court to inquire on the alleged facts and it shall dismiss a petition for divorce if the petitioner condones the act. One may ask is condoning behavior a just reason for the courts to dismiss a petition for divorce? When it is likely that the wife continues to stay with the husband because she is afraid to leave or she has no other option. This law is gender discriminatory in the sense that it could prevent a woman from divorcing an adulterous, irresponsible and abusive husband. Sec. 20 states that the husband has the right to claim damages from the person that commits adultery with his wife, but the wife is not allowed to seek damages from the person with whom her husband commits adultery. This Section confirms the notion that adultery committed by a man is not as reproachful as that committed by a woman.
Secs. 47 and 48 of the Employers and Employed Ordinance states that no girl or women at any age should be employed in mines or at night”. This provision confirms the stereotype perception that women are less hardworking, fragile and unable to take care of themselves. It denies women employment opportunities available to men. Women should have the right to choose their employment and should not be denied employment available to men on the basis of sex .We can clearly see in our society today, women working as both day and night securities. Isn’t that an instance which shows that women like men are capable of taking care of themselves. Sec 15 of the Criminal Procedure Act (CPA) states that in selecting jurors, a male juror should be over 21 years and a female juror should be above 30 years. Is this distinction not based on sex? Is it not discriminatory? The difference in age also clearly discriminates between the sexes and it makes that law irrational.
The discriminatory practice under customary law is a widespread catastrophe and a recipe of hardship for women. It affects the majority of Sierra Leonean whose personal law happens to be Customary Law. The general law court is less effective in more than half part of the country. Therefore people in the provinces are left to the whims and caprices of the norms and practices of customary law. Sec.170 (2) of the Constitution makes customary law one of the laws of the country. Sec170 (3) defines customary law as “the rules which by custom are applicable to particular communities of Sierra Leone”. This law is unwritten and differs from place to place throughout the country. Under this law there is no fixed age for marriage, once the child reaches puberty she can be given into marriage anytime. The girl and the mother’s consent are subordinate to that of the father’s. A woman is forced to refund her dowry price if she leaves her husband. Women are considered as chattels and therefore in the distribution of property they are said to be part of estate themselves and are to be inherited alongside with that estate. In the Northern part of the country, women are not allowed to contest and vote in paramount chieftaincy elections.
Discrimination in the courts
Court Officials like Judges and Magistrates are skilled and knowledgeable in the law, but can also be products of a discriminatory society by upholding discriminatory laws or by being silent about them. The fact that the Judiciary interprets the law they should be the forerunners to discourage such discriminatory practices in their midst. To be frank, the courts have not done much to guarantee equal opportunities to both sexes. For instance, assault is a criminal act which ought to be punishable under the Offences Against the Persons Act 1861, but the courts have generally given little protection to female victims of domestic violence. Instead it encourages the victims to do an out- of- court settlement. Undue delays in court proceedings is another cause for discrimination, for example child support and alimony cases can drag on for years until the woman decides to settle out of court and ending up accepting a settlement that is less fairer than she deserves.
Sec.76 (6) of the CPA states that both men and women could be sureties but in practice women are always excluded as sureties .Even the female lawyers themselves are discriminated in the courts by litigants who lack confidence in them and think they could easily be bullied by their male counterparts. This tells why more than 90 percent of practicing lawyers in Sierra Leone are male. There are other archaic rules which require women to wear scarves on their head and put on skirts, thus indicating that women unlike men should show more humility in the court room.
The Role of the Government in curbing discrimination
The Government of Sierra Leone has tried to enhance gender equality between the sexes by enacting laws to eliminate discrimination against women. The Government is a party to most of the international instruments that condemn discrimination against women. But unfortunately it has failed to implement these laws. Chapter 2 of the 1991 Constitution outlines fundamental state policies. The principles are exactly the sort of constitutional provisions that women could like to ensure that their right to equal treatment is respected by the Government . Sec. 6(2) states “the state shall…discourage discrimination on the grounds of….sex”.Sec.8 (2) that every citizen of Sierra Leone should have equal rights and opportunities in relation to employment and education. However, it is sad to note that provisions contained in Chapter 2 do not confer legal rights and shall not be enforced in any court of law . Sierra Leone is also a signatory to CEDAW who’s Article 2 provides that “state parties condemn discrimination against women in all it forms and agree to pursue by all appropriate means without delay a policy to eliminate discrimination”. But uptil now Sierra Leone initial second and third reports to CEDAW which were due on the 11 December 1987, 1993 and 1997 respectively have not yet been produced and Sierra Leone is yet to domesticate key provisions in the CEDAW.Sierra Leone was also part of the forth world conference which took place in Beijing in September 1995. The participating nations pledged to take effective actions against violations of rights and freedoms against women. Though this is a mere declaration and not a treaty, yet Sierra Leone as one of the participants has both moral and political commitments to it . Disappointingly the Government has not done much to implement both national and international laws that discriminate against woman.
Recommendations
In making recommendations for law reform Sec. 27(4) d of the 1991 Constitution needs to be amended as it goes against the spirit of the section. If we fail to amend this provision there will not be any effective law reform, as the Constitution is the grundnorm (that is the ultimate law of the land or the source of all other law).This is reaffirmed in Sec.175 (15) which states that any law that is inconsistent or in contravention with any provision of the constitution shall be declared null, void and of no effect. In a summary of the report submitted by the Lawyers Centre for Legal Assistance sponsored by the United Nations Development Programme on Unequal Rights and Discriminatory Laws Against Women in Sierra Leone, it recommended that, Sec. 2 and 7 of the Citizenship Act should also be amended by using gender neutral language such as “parents and grand parents” instead of using “women and men”. The fundamental right to acquiring and passing on citizenship must be given equally to both men and women. The wordings in Sec. 2 and 7 of the Christian Marriage Act which refers to the consent of the father or mother should be amended to read “the consent of either parent” and parents should be accorded the same rights over their children.Sec. 9 of the Mohammedan Marriage Act should also be amended in a manner that female members of the family will have equal rights to administer estates. The Matrimonial Causes Act is too archaic and should be repealed and replaced with a Divorce Act which should strive to create equality between the parties to the divorce. With regards the administration of estate, spouses should be granted the same rights in respect of ownership acquisition, administration and disposition of property.
The Government’s Law Reform Commission in its 2004 Report indicated that it focused mainly on the elimination of discrimination against women in areas of marriage, succession, inheritance and customary law . At the end of it review the commission made key recommendations, namely that Cap 95, 96, 97 of the Laws of Sierra Leone on Christian, Mohammedan and Civil marriages be amended to bring it in line with modern times . In addition to these,it states that rules for distribution contained in the Administration of Estate Act Cap 45, should also be repealed and replaced with a new act to be known as “the Devolution Act”. It further states that gender discrimination in Customary and Islamic Laws of succession and inheritance should be removed. It emphasizes that in the distribution of estates governed by Customary Law,5% of personalty should go to the parents and grand parents of the intestate,5% to dependants,40% to surviving spouse(s), another 40% to the children and the remaining 10% be set aside for the upkeep of the intestates children who are below 18 years. It further stressed that relatives should not be entitled to real estate and “family” should be restricted to “parents and grand parents”, for the purpose of devolution of estates. These mentioned above are some of the key recommended bills sent to parliament by the Commission, for reform. Though the Government has done a lot to reduce discriminatory laws in its Law Reform Commission report, yet it should try to balance various cultures with the protection of the Fundamental Human Rights provisions. The Government should also invest in the judicial system so that it functions effectively with required expertise and speed. The Government should organize gender sensitization trainings for judges, magistrates, prosecutors, court staffs and law enforcement officers. In addition to these women should be allowed to take part in decision making and leadership roles in the country. In other words the Government should try to implement the Truth and Reconciliation Commission Recommendations which admonish the government to legislate for meaningful youth and women representation in politics. The Government should further strive to ensure that there is equality in education, which could form the basis of women’s empowerment in all aspect of life, because if women are educated they will be able to challenge all traditions and beliefs that lay emphasis on inequality between the sexes.
The court house is supposed to be the temple of justice and a model of social equality .Therefore rules and procedures which serve to discriminate against women should be amended in a way that they will no longer treat women unequally.
We cannot fully blame the judiciary for the discriminatory practices in the courts because they are basically interpreting what is given to them in accordance with the letters and spirit of the constitutional provisions. Nonetheless, the Sierra Leone judiciary lacks judicial activism, meaning they fail to progressively interpret constitutional provisions to include rights provisions. The SLCMP strongly recommends that the judiciary in post-conflict Sierra Leone be seen to be proactive because their role is very central for reforms.
In conclusion the Government and the courts have major roles to play to wipe out all gender discriminatory laws which have become a menace in the society. Both institutions should therefore work towards the elimination of all statues, customs, tradition and beliefs that disadvantage people based on their sex.
chauvinistic tendencies and patriarchal attitudes were accepted standards across the world. Therefore to keep pace with the development in the world the government must try by all means to eliminate all Statutes, Customs, traditions and beliefs which are based on the concepts of inferiority or superiority of the sexes.