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Constitutions

Constitutional Exclusion and Gender in Commonwealth Africa

Citation:

Bond, Johanna E. 2007. “Constitutional Exclusion and Gender in Commonwealth Africa.” Fordham International Law Journal 31 (2): 289-342.

Author: Johanna E. Bond

Abstract:

Part I of this article briefly describes customary law and explores the effect of colonialism on legal pluralism and the region’s early post-colonial constitutions. Part II describes the structure and content of constitutional clauses that exclude personal law and customary law from constitutional non-discrimination protection. Part III briefly examines international and regional human rights law and offers a pragmatic conclusion that countries must eliminate exclusionary clauses in order to conform to human rights commitments. Part IV provides a theoretical justification for eliminating exclusionary clauses from these constitutions. This section builds upon feminist theory and dialogic constitutionalism to argue that countries should eliminate constitutional exclusionary clauses in order to dismantle the faulty public/private dichotomy and provide a voice for women in constitutional debates over the normative content of customary law. Finally, Part V assesses alternatives for judicial intervention once the exclusionary clauses have been eliminated through constitutional amendment. This part explores a number of strategies courts might employ in interpreting personal and customary law in light of constitutional equality guarantees, ranging from less interventionist to more interventionist. These intervention strategies include limited in- tervention, in which customary law is largely left to evolve on its own; formalist intervention, in which gender equality rights clearly trump rights to custom or vice versa; and activist intervention, in which courts must balance gender equality rights with rights to custom. This article proposes a rights-balancing approach that values both culture and equality rights. Recent jurisprudence in South Africa illustrates the promise of a type of rights balancing that I call “weighted balancing.” Eliminating exclusionary clauses and encouraging courts to balance relevant rights is the only way to facilitate a constitutional dialogue that will ultimately determine the normative content of constitutional equality guarantees as applied to personal and customary law.

Topics: Coloniality/Post-Coloniality, Feminisms, Gender, Gendered Power Relations, Gender Equality/Inequality, Governance, Constitutions, International Law, International Human Rights, Rights, Human Rights Regions: Africa

Year: 2007

Learning to Love after Learning to Harm: Post-Conflict Reconstruction, Gender Equality and Cultural Values

Citation:

Andrews, Penelope E. 2007. “Learning to Love after Learning to Harm: Post-Conflict Reconstruction, Gender Equality and Cultural Values.” Michigan State Journal of International Law 15 (1): 41–62.

Author: Penelope E. Andrews

Abstract:

The question that the Jacob Zuma rape trial and its aftermath raised was how a country like South Africa, with such a wonderful Constitution and expansive Bill of Rights, could generate such negative and retrogressive attitudes towards women. In line with this inquiry, this article raises three issues: The first focuses on the legacy of apartheid violence and specifically the cultures of masculinity, the underbelly of apartheid violence. Second, the article explores the findings of the Truth and Reconciliation Commission (TRC), a vital part of the post-apartheid  transformation agenda, to examine how the TRC pursued violations of women's human rights. The third part of the analysis is an examination of the last twelve years of constitutional transformation in South Africa, and particularly the pursuit of gender equality and the eradication of violence against women.

Topics: Gender, Women, Masculinity/ies, Gender-Based Violence, Gender Equality/Inequality, Masculinism, Governance, Constitutions, Justice, TRCs, Post-Conflict Reconstruction, Rights, Human Rights, Women's Rights Regions: Africa, Southern Africa Countries: South Africa

Year: 2007

Measuring the Impact of Quotas on Women’s Substantive Representation: Towards a Conceptual Framework

Citation:

Franceschet, Susan, and Mona Lena Krook. 2008. “Measuring the Impact of Quotas on Women’s Substantive Representation: Towards a Conceptual Framework.” Paper presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 28-31.

Authors: Susan Franceschet, Mona Lena Krook

Abstract:

Gender quotas have been adopted in more than one hundred countries around the world in recent years. While they are the subject of a growing literature, most existing work on these measures focuses on explaining their adoption and varied effects on the absolute numbers of women elected. Yet, quotas are often justified with reference to their anticipated effects on the representation of ‘women’s interests’ in the policy-making, as well as on democratic outcomes more generally. In this paper, we present some thoughts as to how scholars might undertake such research, in light of several complex dynamics: on-going debates on how to analyze women’s substantive representation, varied normative arguments with distinct expectations about links between the descriptive and substantive representation of women, and important differences in the design and conditions of adoption of individual quota policies. Based on these possibilities, we offer six sets of hypotheses as an initial step for undertaking individual and comparative case studies on the broader impact of gender quotas.

Topics: Gender, Women, Governance, Constitutions, Quotas

Year: 2008

Gendering Constitutional Design in Post-Conflict Societies

Citation:

Haynes, Dina Francesca. 2011. “Gendering Constitutional Design in Post-Conflict Societies.” William & Mary Journal of Women and the Law 17 (3): 509-44.

Author: Dina Francesca Haynes

Topics: Gender, Governance, Constitutions, Post-conflict Governance, Post-Conflict, Post-Conflict Reconstruction

Year: 2011

The National Implementation of SCR 1325 in Latin America: Key Areas of Concern

Citation:

Luciak, Ilja. 2009. “The National Implementation of SCR 1325 in Latin America: Key Areas of Concern.” Paper presented at the Annual ISA-ABRI Joint International Meeting, Rio de Janeiro, July 22-24.

Author: Ilja Luciak

Abstract:

It is the premise of this paper that sustainable peace and development require the full implementation of Security Council Resolution 1325. The paper calls attention to the importance of implementing SCR 1325 by highlighting key areas of concern with a primary focus on a small sample of Latin American countries, including Colombia, Guatemala, El Salvador, Haiti, and Nicaragua. The paper discusses several recent and current peace processes in the region. It emphasizes that peace negotiations constitute a crucial entry point for considerations of gender justice. Thus it is essential that the process be inclusive. Yet women'€™s participation in formal peace processes continues to be limited and their contributions to informal peace processes are only starting to be recognized. Peace accords and subsequent constitution-building present important opportunities for countries emerging from conflict to transform their political systems toward greater gender equality. Several Latin American countries have advanced in the political reconstruction of their respective societies by instituting constitutional and electoral reforms in the wake of conflict. On the other hand, a discussion of disarmament and demobilization processes in the region and highlights the current lack of attention to gender considerations. Similarly, the gendered needs of refugees and internally displaced populations also require attention. Further, in addition to dealing with violent acts committed during war, governments need to address the security environment that emerges in the wake of conflict. Post-war violence, whether committed in the public or private sphere, plagues many countries in the region.

Topics: Armed Conflict, DDR, Displacement & Migration, IDPs, Refugees, Gender, Women, Gendered Power Relations, Gender Equality/Inequality, Governance, Constitutions, Elections, Post-conflict Governance, Peace Processes, Post-Conflict, Security, UN Security Council Resolutions on WPS, UNSCR 1325, Violence Regions: Americas, Caribbean countries, Central America, North America, South America

Year: 2009

Judges & Gender: The Constitutional Rights of Women in a Post-Apartheid South Africa

Citation:

Sachs, Albie. 1990. “Judges & Gender: The Constitutional Rights of Women in a Post-Apartheid South Africa.” Agenda Empowering Women for Gender Equity, no. 7, 1–11.

Author: Albie Sachs

Topics: Gender, Women, Governance, Constitutions, Post-conflict Governance, Post-Conflict, Post-Conflict Reconstruction, Rights, Women's Rights Regions: Africa, Southern Africa Countries: South Africa

Year: 1990

The Gender of Constitutional Jurisprudence

Citation:

Baines, Beverley, and Ruth Rubio-Marín. 2005. The Gender of Constitutional Jurisprudence. New York: Cambridge University Press.

Authors: Beverley Baines, Ruth Rubio-Marîn

Abstract:

Describing the constitutional rights of women in twelve countries, the contributors to this collection draw on a wide range of legal cases covering issues such as abortion, sexual harassment, employment discrimination, sexual abuse, pornography, family relationships, access to health and social assistance benefits, and electoral rights, among others. Their analysis reveals how essentially male judges decide cases that are mainly about women's equality claims. The volume's comparative perspective provides readers with the basis for independent pursuits of constitutional equality for women.

Keywords: women's rights, State Law, gender equality

Topics: Gender, Women, Gendered Power Relations, Gender Equality/Inequality, Governance, Constitutions, Rights, Women's Rights

Year: 2005

Constitutional Drafting and Fundamental Rights: The Example of Gender Equality

Citation:

Williams, Susan Hoffman. 2005. “Constitutional Drafting and Fundamental Rights: The Example of Gender Equality.” In Designing Federalism in Burma, edited by David C. Williams and Lian H. Sakhong, 237-41. Chiang Mai, Thailand: UNLD Press.

Author: Susan Hoffman Williams

Topics: Gender, Gendered Power Relations, Gender Equality/Inequality, Governance, Constitutions, Rights

Year: 2005

Does Gender Specificity in Constitutions Matter?

Citation:

Lucas, Laura E. 2009. “Does Gender Specificity in Constitutions Matter?” Duke Journal of Comparative & International Law 20 (1): 133–65.

Author: Laura E. Lucas

Topics: Gender, Women, Gendered Power Relations, Gender Equality/Inequality, Governance, Constitutions, Rights, Women's Rights Regions: Americas, North America, South America Countries: Canada, Colombia

Year: 2009

India: Implementing Sex Equality Through Law

Citation:

Nussbaum, Martha C. 2001. “India: Implementing Sex Equality Through Law.” Chicago Journal of International Law 2 (1): 35–58.

Author: Martha C. Nussbaum

Keywords: gender inequality, discrimination, social inequality

Topics: Gender, Gendered Power Relations, Gender Equality/Inequality, Governance, Constitutions, Rights, Human Rights Regions: Asia, South Asia Countries: India

Year: 2001

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