The impact of islam on Women Right in Senegal Law Research Paper

Title: The impact of Islam on Women Right in Senegal
Table of Contents TOC \o "1-3" \h \z \u Abstract PAGEREF _Toc41742921 \h 4Introduction PAGEREF _Toc41742922 \h 4International Law PAGEREF _Toc41742923 \h 5Women Right in international law PAGEREF _Toc41742924 \h 5Marriage and Family law PAGEREF _Toc41742925 \h 7State responsibility PAGEREF _Toc41742926 \h 9The right as protected under the law in Senegal PAGEREF _Toc41742927 \h 9Statistics on Senegal and law in general PAGEREF _Toc41742928 \h 9Muslim Law for women PAGEREF _Toc41742929 \h 12Family law PAGEREF _Toc41742930 \h 13The de facto implementation of the right in Senegal PAGEREF _Toc41742931 \h 15Assessment of the current situation PAGEREF _Toc41742932 \h 15NGO report on Senegal PAGEREF _Toc41742933 \h 16Conclusion and recommendations PAGEREF _Toc41742934 \h 16Bibliography PAGEREF _Toc41742935 \h 18
Abstract
This paper basically explores the impact of Islam religion on the women status in the republic of Senegal. The discussion tends to identify the extent to which religious beliefs determine the role as well as status of women within the predominant Muslim society. Senegal is believed to have approximately 85 to 90% of its population inclining to Islam despite the country not officially an Islamic state. However, the country’s societal fabrics are mostly dominated by Islam despite the country being considered as a secular state. Islam has been used as the underlying ideology in Senegal that has cemented the extent of political obedience as well as loyalty of the population to the various groups of Muslim leaders. This makes Senegal ideal for the study on the influence of Islam on women in the entire society. This paper covers the concept of women right and how it is protected under the Convention on the Elimination of All Forms of Discrimination against Women and some statistics on Senegal. Then analysis of the legal framework in Senegal that discusses the relationship between women’s rights and Islam in the Senegalese legislation and finally the state responsibility as well as the current situation based on NGO report.
Introduction
As Michelle Obama said « No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half of the citizens”. Reminding us that women must be taken into consideration however at the time when the Convention on the Elimination of All Forms of Discrimination against Women has registered 40 years of existence, discrimination against women still persists in several countries around the world. Unfortunately, much remains to be done to achieve full equality of rights and opportunities between men and women, thus pushing us to seek to understand the underbelly of non-compliance with international conventions. This paper analyses women’s rights in Senegal specifically, what is the impact of Islam on their rights. The focus will be on marriage and family law. The first part of the paper introduces the concept of women right and how it is protected under the Convention on the Elimination of All Forms of Discrimination against Women and some statistics on Senegal. Then the second part of the paper will analyse the legal framework in Senegal, we will see the relationship between women’s rights and Islam in the Senegalese legislation.The last part will focus on the state responsibility and the current situation in Morocco based on NGO report.[Michelle Obama’s remarks at the Mandela Washington Fellowship for Young African Leaders] [CEDAW]
International Law
Women Right in international law
At first, human rights movements focused only on men. Gradually, the issue of women’s rights will take place on the international stage. Moreover, thanks to the pressure of feminist organizations, the governments followed by the international community give in and introduce the debate on equality between women and men.« The existence of bodies specifically responsible for this is indispensable so that what is now known as mainstreaming can be carried out». Despite great progress in women’s right in international law, women and girls are still discriminate worldwide. Women’s rights are rights, both theoretical and real, for women and girls in many societies around the world and form the basis of the women’s rights movement.[Sandra Fredman. ‘Beyond the Dichotomy of Formal and Substantive Equality. Towards New Definitions of Equal Rights’ in I. Boerefi jn et al . (eds.), Temporary Special Measures. Accelerating De Facto Equality of Women Under Article 4(1) UN Convention on the Elimination of All Forms of Discrimination Against Women (Antwerp/Oxford/New York : Intersentia , 2003 ) 111–18]
The protection of women’s rights is essential to ensuring women’s contribution to development, peace and security. The United Nations (UN) has recognized this premise since its inception and has made it one of its objectives. The Convention on the Elimination of All Forms of Discrimination against Women is a treaty adopted by the United Nations General Assembly in 1979 and in force since 1981. The United Nations (UN) Convention on the Elimination of Discrimination against Women (CEDAW) is the treaty with the broadest scope since it brings together 189 countries under a set of standards to protect women and enable their self-fulfilment. Like all international treaties, the preamble is there to explain why the treaty in question was established, that is to say, the raison d'être. In our case the CEDAW hold two main purposes. To begin with, it’s repeated multiple times throughout the preamble that other international treaties of the United Nations recognizes equality of right between men and women.[The documents that are produced by the CEDAW Committee may be found at www. un.org/womenwatch/daw/cedaw/sessions.htm (up to the 41st Session) and at www2. ohchr.org/english/bodies/cedaw/ (from 42nd Session onwards) (last accessed 8 February 2013). General Recommendations, Concluding Observations from the 1st to the 44th session, and Decisions under the Optional Protocol. The main objective was to reveal how the Committee interprets the States Parties’ obligations under the Convention, most specifically under Articles 2f, 5a and 5b and 10c, which all cover the issue of (parental) gender roles and gender stereotyping.] [CEDAW Para1-4]
Afterwards, it insists on the elimination of all distinction based on sex . Therefore, State Parties to this Convention should use the preamble to interpret any provisions of the CEDAW in order to ensure that the values of the treaty are respected. In an effort to avoid any confusion the term “discrimination against women” is defined at first, article 1 of the CEDAW state the following:[CEDAW Para15] [UN Convention on the Elimination of All Forms of Discrimination Against Women]
“ any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
Among the States Parties that have ratified the CEDAW some have express reservation and those reservations go against provisions that regulate matters related to marriage and family law. According to International Justice Resource Center (IJRC):[IJRC]
“States have made numerous reservations to CEDAW, purporting to limit the treaty’s domestic application. Most of the reservations are designed to preserve the authority of national or religious law that may contradict CEDAW “[Ibid]
This observation leads us to an in-depth reflection on the subject, why do they want to limit the application of the treaty with regard to the private sphere in particular the family
Marriage and Family law
Thus, with regard to the provisions of the CEDAW in relation to the rights of women in marriage and in the family, article 16 affirm that:[Ibid]
“1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.”
This article of the CEDAW aim to protect women in the marriage because their rights are usually the most violated in family relation when entering marriage. Among all the articles of the convention, article 16 is one of the longest. It is clearly express and takes care to list any practice that may go against the object and purpose of the Convention. In the face of persistent discrimination after the implementation of CEDAW, the committee provided clarifications regarding the application of the provisions of article 16 through two general recommendations, One from 1994 and the other more recent from 2013. It reiterates the importance of equality within the family and the interdependence of rights as it affects women’s economic well-being as well especially in case of separation it is the woman who suffers the most consequences. The provisions set in the CEDAW remind the right of women to enter into a marriage or start a family freely and shall not be discriminate if they decide not to neither to have their right change based on their marital or family status. The committee observes with regret that the role of women is often considered inferior. It means that families with a woman at their head are often the poorest. Even if the CEDAW recognizes the effect of culture and tradition in restrictions on women. The committee reaffirm that “there can be no justification for applying different and discriminatory laws or customs to them”. It should also be stressed that whatever the legal system or the customs of the country the treatment of women in the private sphere must be in accordance with article 2 of the Convention on equality for all people. Also, because of the number of countries allowing polygamous marriage in their legislation, the committee remind that polygamous marriage violates women’s rights and their dignity, and this can have physical and mental consequences.[CEDAW] [Ibid] [Ibid] [Bai, Guimei. Women’s Rights are Human Rights. The Limits of Human Rights 223.] [G c 28] [CEDAW 1994] [Ibid]
State responsibility
In regard to article 16, the committee express it concerns regarding the measures taken by the state to prevent and punish acts of discrimination against women. It is the state responsibility to ensure compliance with the Convention and establish equality between partners, a minimum age for marriage, prohibition of bigamy and polygamy and the protection of the rights of children. Although in the text of the convention it recommends that the state establish a minimum age for marriage it does not specify what this age should be, but the committee takes the opportunity of the general recommendation to recall that it should be 18 years for both man and woman.[Ibid] [Ibid]
States Parties should enact and enforce legislation in order to prevent “the discriminatory effects of marriage under customary practices and religious laws”. It has been observed that legal system in which different personal status laws apply to family law, women’s place in the family has deteriorated. Therefore, States Parties “should introduce measures directed at encouraging full compliance with the principles of the Convention, particularly where religious or private law or custom conflict with those principles”. Also, States Parties are responsible to make the necessary efforts to examine the de facto situation relating to the issues. For example, we shall see in the case of Senegal that despite the laws in force in the country women are still discriminated in society.[CEDAW 2013] [Ibid]
The right as protected under the law in Senegal
Statistics on Senegal and law in general
Constitution
The Republic of Senegal commonly known as Senegal is a country in West Africa that covers nearly 197000 square kilometers with a population estimated at 16 million. Senegal has a predominantly urban population concentrated on the major cities including Dakar which is the economic and political capital. This population is mostly female with more than 50% being women. In Senegal, the Gender Inequality Index (GHI) is estimated at 0.52% in 2014. It is established by the United Nations Development Programme (UNDP). The higher the GHI value, the greater the disparities between women and men.Senegal shares common borders with five countries (Mauritania, Mali, Guinea, Guinea-Bissau, and Gambia) and has 14 regions and 45 departments.[2016 commentaires]
The statistics by the National Statistics and Demographics Agency (ANSD) estimates that the average population density is approximately 66 inhabitants per square kilometer. The population of Senegal is unequally distributed with the majority concentration within the Dakar region within the central province of the country. The central regions comprise of Fatick, Kaffrine as well as Kaolack regions with the Eastern region having a sparse population experiencing significant migration inflows. The total population of Senegal according to census reports is approximately 15.9 million with the average annual growth rate being estimated at 27% between the years 1997 and 2000. The women comprised approximately 52% of the total population in 1995 with approximately 42% of the population living in urban areas. This shows that there are more women than men with a high percentage of the population being youthful. However, the population is ethnically diverse punctuated with astonishing cultural vitality that ensures the existence of national cohesion. From the administrative perspective, the country comprises of 14 regions divided into 45 departments, 121 districts, and approximately 20,000 villages.[ANSD (quarterly national accounts). Available from http///] [Rose, Maruru "Demographic Data for Development Senegal." Extrait de: http://www. hewlett. org/uploads/files/Seneg...