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ABSTRACT
We examine gender provisions in national constitutions and their significance for women’s rights advocacy in Latin America and southern Africa. There is considerable debate about whether constitutional rights are merely “parchment barriers” or if they have the potential to further social change. Those who argue that law does matter generally assert that its effect is mediated by social and political actors. What is less understood is how constitutional provisions aid rights advocates’ efforts. What do constitutions enable them to do? We seek to shed light on this question by focusing on the strategies and behavior of women’s rights advocates given a particular set of constitutional provisions. Using archival research and interviews with women’s rights advocates, we examine how gender has been constitutionalized and how constitutional provisions have informed their efforts. Where constitutional provisions for gender equality are substantive, as they are in South Africa and Argentina, these provisions are central to the activities of civil society actors both for policy change advocacy and legal mobilization. In Botswana and Chile, on the other hand, the absence of egalitarian provisions has encouraged advocates to reach around the national constitution and rely on international law as a means to legitimate their claims and fight for favorable policies and court decisions.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See for example: Krook (Citation2009), Freidenvall and Krook (Citation2011) and Franceschet and Piscopo (Citation2008) on quotas; Gouws (Citation2004), Outshoorn and Kantola (Citation2007), Squires (Citation2007), and McBride and Manzur (Citation2010) on the effectiveness of women’s policy agencies; and Vickers (Citation2011), Franceschet (Citation2011) and Smulovitz (Citation2015) on federalism.
2 There is a rich literature on gender policy. For example, see: Htun and Weldon (Citation2010), Blofield and Haas (Citation2005), Blofield (Citation2006), Waylen (Citation2007b), Franceschet (Citation2005, Citation2010, Citation2011), Alexander (Citation2005), Banda (Citation2005), and Verloo (Citation2007).
3 Anagnostou and Millns (Citation2013) illustrate how these same actions are at play in their exploration of legal mobilization in pursuit of gender equality reforms in the European context.
4 Semi-structured interviews were conducted in 2011 and 2012 with a variety of women’s rights advocates in each of the four countries (roughly 15–20 individuals in each country). The interviews asked substantively similar questions in each national context. They are coded to reflect the type of position and perspective of interviewees. References used in the text carry a country initial (B for Botswana for example) and a letter for type.
G: Government official. Acting or former official in a specific ministry such as labor or justice.
L: Lawyer associated with a legal advocacy or litigation focused organization.
M: Member of parliament, current or former member of parliament or congress.
P: Press. Reporter working on gender issues nationally.
S: Scholar. Academic researcher or practitioner in a national research institute.
W: Women’s movement member. Prominent leader within the national women’s movement.
5 As part of her electoral campaign, current president Bachelet promised to completely overhaul the constitution—a draft was due late in 2017.
6 Chile ratified CEDAW in 1989, but the Constitution did not establish the principle of equality of men and women until 1999.
7 See, for example, Fombad (Citation2004, 144): the government argued that “the omission of sex in the nondiscrimination clause was intentional and was made in order to permit legislation in Botswana which was discriminatory on grounds of sex.”
8 Customary law governs family law matters: marriage and divorce, rights within marriage, division of shared property, inheritance, and child custody. The Botswana Constitution specifically exempts customary law from the equality and nondiscrimination provisions.
9 The Filiation Act states that all children are equal whether born in or out of wedlock.
10 Feminists have sometimes resorted to the discourse of family to further their goals but often at the cost of a much watered-down version of the legislation (Haas Citation2010).
11 This is consistent with Blofield and Haas (Citation2005) finding that gender-specific bills that emphasized women’s role within the family (rather than gender equality) were more likely to be passed into law in Chile.
12 Article 19 of the Constitution states that “the law protects the life of those about to be born.”
13 In the arena of children’s rights in Chile, a similar dynamic played out. Fuentes (Citation2010) study of children’s rights found that NGOs and activists used international treaties to push for reforms in legislation and legal rights for children after democratization. Grugel and Peruzzotti (Citation2012) agree that Chilean activists used the Children’s Rights Convention to get some positive changes but “legal adaptation to the convention has been slow” (190).
14 For example, Waylen (Citation2007a, 537) contends that the reproductive rights clause in the constitution was critical to getting more pro-choice legislation.
15 O’Sullivan and Murray (Citation2005, 2) note that a “plethora of legislation and policy introduced between 1996 and 2001 implements many of the rights in the Constitution and South Africa’s obligations under international law.”
16 Similarly, advocates have used constitutional rights to litigate against discriminatory laws, to “defend the gains of progressive legislation,” and to claim “damage from the state in cases where it has failed in its duty to ensure women are free from violence … ” (O’Sullivan and Murray Citation2005).
17 O’Sullivan and Murray (Citation2005) agree that constitutions matter for legitimacy: “The clear commitment to gender equality in the Constitution has transformed the framework within which women’s rights are claimed and given the demands of women a legitimacy that they did not have before” (40). Tripp et al. (Citation2009) and Banda (Citation2005) make a similar point.
18 Similarly, Grugel and Peruzzotti (Citation2007) find that the Children’s Rights Convention, which was ratified in 1990 and achieved constitutional status in 1994, was a catalyst for civil society groups to form stronger networks in order to monitor implementation and push for legislative and judicial reforms.