Advancing Women’s Rights Through Strategic Litigation and Other Tools

 

On Wednesday 28 November, Lawyers Against Poverty hosted a discussion on the tools we can use most effectively to advance and assert women’s rights.

We heard firstly from Naomi Passman, one of the members of our women’s rights working group. As an introduction, she shared with us a series of facts which made eminently clear the inequality and injustice suffered by women in the world today. By way of example, one in three women will suffer some form of domestic violence in their lifetime (and in some countries this may be as high as one in two). Gender equality, said Naomi, is more than a moral consideration; creating the conditions that enable women to thrive is necessary for sustainable development. By way of example, if every girl worldwide received 12 years of free, safe and quality education, on an equal footing with boys, lifetime earnings for women could increase by $15-30 trillion. Girls who complete secondary education become healthier and more prosperous adults, with smaller families and children who are less at risk of illness and death and are more able to contribute fully in their families, communities and societies as earners, informed mothers and agents of change. Naomi considered what we as lawyers can do as opposed to other advocates in civil society and concluded that strategic litigation can inform public opinion and create the necessary consensus for social change.

We then heard from Emily Blower, another member of our women’s rights working group, who introduced our audience to an important case supported with funding from Lawyers Against Poverty. The case was initiated against Nigeria by the Institute for Human Rights and Development in Africa (the IHRDA) and the Women Advocates Research and Documentation Centre before the Court of Justice of the Economic Community of West African States (the ECOWAS Court) on behalf of a woman called Mary Sunday, who suffered severe injuries and burns after an attack by her fiancé. They argued that the failure of state authorities effectively, impartially and independently to investigate the allegations and prosecute the perpetrator, a serving police officer, constituted a violation of the victim’s rights under the African Charter and the Maputo Protocol. In May 2018, the ECOWAS Court found a violation of the right to an effective remedy under Article 7 of the African Charter and ordered compensation for Mary in the amount of 15 million Naira.

Gaye Sowe, Executive Director of the IHRDA and counsel on record in the case, was unable to attend on the night but made a video for us in which he noted that although the court awarded compensation, it remained silent on many of the arguments submitted and on the structural remedies sought, including an order for psychosocial support for Mary and other victims of domestic violence. Across other cases on which he worked, Gaye found this to be a trend: the ECOWAS Court would order reparations to compensate an individual victim but remain mute on structural remedies and the wider issues at stake in women’s rights cases. This was a significant omission, said Gaye, as the issue of violence against women cannot be resolved without addressing the structural disadvantage of women in all areas of life. Despite the challenges of mounting strategic litigation, Gaye concluded that it is an extremely important tool for securing change in the law, in policy and in social practice. It establishes valuable jurisprudence at the regional level on issues such as the connection between sexual violence and discrimination. And a judgment against a single country in a case involving an individual claimant can advance the rights of millions of women across the region.

We heard next from Meghan Campbell, Deputy Director of the Oxford Human Rights Hub and Lecturer at Birmingham University Law School, who considered the value of the inquiry procedure under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women as a means of identifying severe and widespread violations of women’s rights and remedying structural discrimination. Thus far, the Committee has carried out five inquiries, including into murdered and missing women in Mexico, murdered and missing indigenous women in Canada and the contraception ban in the Philippines, and issued significant findings. In its report on Mexico, the Committee was concerted in its efforts to emphasise the intersectional reasons for the killings in Ciudad Juárez. Poor women became ready targets as they walked to work very early in the morning, without access to any transport and entirely in the dark. These women were more vulnerable to violent crimes as a consequence of poverty and the absence of affordable public services.

According to Meghan, the inquiry procedure has several advantages in comparison with strategic litigation and other legal tools. It does not require an individual victim to initiate an action and suffer the costs (social as well as financial as violence against women is stigmatised in many societies across the world). It is not bound by time limits or rules of evidence that often make crimes against women such as assault and rape difficult to litigate. And it is focused on addressing the wider and underlying causes of structural discrimination as opposed to assessing a set of facts in one case. Due to the unenforceability of remedies recommended by the Committee, Meghan made clear that it is necessary to use the inquiry procedure strategically and alongside other forms of activism.

Finally, we heard from Laura Gyte, Campaigns Legal Adviser at Oxfam GB, who considered CEDAW in the context of poverty, economic inequality and tax avoidance. Economic inequality endangers progress on poverty: unless the poor benefit more from growth between now and 2030, the World Bank forecasts that the first Sustainable Development Goal to eliminate extreme poverty will be missed. Meanwhile UNCTAD estimates that developing countries are losing around $100bn annually as a result of multi-national corporations channelling investments through tax havens. The ramifications of tax avoidance for gender justice are substantial as the realisation of women’s rights requires funding and expenditure on public services such as education, water, electricity and transportation and health. For several years, said Laura, the CEDAW Committee has insisted that the UK is responsible for ensuring that its own transnational tax laws and those of its Crown Dependencies and Overseas Territories must not detract from or impair women’s rights and gender equality. The UK, therefore, can and should choose to reconfigure its policy in order to make more significant progress on women’s rights at home and around the world.

Thank you to all our members and others who came along on Wednesday; it was wonderful to share thoughts on striving for change and equality for women.

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