From Paper to Lived Reality: Implementing Women's Constitutional Rights

The promulgation of a new constitution is typically greeted with celebration and optimism for the future. However the difficult work of implementation will determine if the aspirations and ideals a constitution embodies, including gender equality, will be realized.

On 26-28 February, International IDEA convened the workshop From paper to lived reality: Implementing women’s constitutional rights, in Kathmandu, Nepal to explore the processes of constitutional implementation from the perspective of achieving substantive equality of women. The objectives were to identify facilitating factors and challenges, identify constitutional design options that facilitate gender-responsive implementation and understand the dynamic roles of institutional actors and civil society in overcoming these challenges.

The workshop brought together elected members of parliament and constituent assemblies, members of constitutional implementation commissions, electoral tribunals, health and reproductive rights activists, NGOs promoting women’s rights and gender equality and academia. Perspectives and experiences from Afghanistan, Costa Rica, France, Kenya, Mexico, Nepal, Tunisia and South Africa helped contrast and compare processes and outcomes in geographically and culturally diverse contexts. 

Photo ©: Nabin KC

Current scholarship suggests that gender equality provisions in constitutions serve the following critical functions: provide a legal basis and legitimacy for women’s rights advocacy, help prevent policy reversals, and may increase the likelihood of favorable decisions in courts.[1] Since the Second World War, almost every constitution has included gender equality and non-discrimination clauses,[2] which provide for formal equality. In the last 20 years, an increasing number of new constitutions also include gender-specific provisions and gender-inclusive drafting styles to promote substantive equality. It is now commonplace for constitutions to include, inter alia, an explicit commitment to gender equality; equality before the law for women and men; gender inclusive language; non-discrimination provisions on the basis of sex and/or gender, pregnancy, and maternity; quotas for the composition of the legislature and decision-making bodies; provision for special measures aimed at accelerating the de facto equality between women and men (such as temporary special measures); and a hierarchy of law placing the rights of women above plural legal practices. Such gender-specific provisions join civil, political, and socio-economic rights to offer a range of constitutional rights and protections to promote women’s equality in the political, economic, and social spheres.

The workshop addressed constitutional implementation from a gender perspective using two framing issues – political participation of women and women’s right to health.

Women’s rights to political participation 

The growing consensus among states at the global level is that ‘parties must respect all measures enacted by the state to ensure gender equality in elections, including provisions regarding gender equality in candidacy and party lists’.[3] However this has proven to be particularly difficult to implement in national level politics, where political parties often avoid implementation of gender-equality principles in candidate selection and nomination processes, and argue for non-interference in political parties’ freedom and autonomy to organize themselves internally.

Participants presented a wide range of lessons on actions to ensure party compliance with constitutional guarantees for gender equality and steps that various states bodies have undertaken to incentivize or compel parties to adhere to constitutional guarantees.

Examples include efforts by Kenya’s Constitutional Implementation Commission to push for the adoption of legislation to implement the constitutional principle that not more than two-thirds of MPs can be of same sex.  The Electoral Tribunal of the Federal Judiciary of Mexico requires political parties to ensure that candidate lists are based on gender parity principle, and the French High Council on Equality works to ensure that electoral formulas and rules for all levels of decision making are adapted to meet the constitutional standard of gender parity in political life.

Sapana Malla, Lawyer and gender equality advocate  Photo ©: Nabin KC

Lessons and recommendations from cases presented coalesced into the following key messages:

• Building a critical mass of women within constitution drafting bodies as well as their leadership capacity and agency to voice their concerns during the constitution drafting process is essential for gender-sensitive constitutional deliberation and outcome;
• Alliances across party lines and coalitions with men to broaden support for constitutional provisions on gender equality goes a long way to support this agenda during the constitutional implementation phase;
• Clear constitutional guarantees of both non-discrimination based on sex and gender and a positive obligation regarding gender equality are determinant of future success;
• Adopting provisions on gender parity and special measures, which clearly allow the use of gender quotas, followed by sound electoral laws that respond to these objectives are defining factors for women’s electoral success;
• Establishing electoral justice institutions, with a clear mandate and efficient procedures to oversee and enforce women’s political rights is a critical step in designing  responsive institutional system for achieving gender equality in politics; and
• More representation does not readily result in equal power sharing between women and men in political institutions. This transformative change in established patterns of political decision-making cannot happen in elected legislatures or political parties only, but should take shape through incremental improvements in women’s status in public and private spheres.

Women’s right to health

The right to health entails a range of positive obligations of the state and can be expressed both generally and in gender-specific terms.  The right to health and/or health care is increasingly included in new constitutions, and globally is found in over 115 constitutions as either a justiciable right or an ‘aspirational guarantee’.[4] There has been an evolution in the understanding of government’s obligation to fulfill the socio-economic right to health and health care and in the recognition of its justiciability, but is most frequently interpreted as a right to be progressively realized.

Several participants spoke about the importance of independent constitutional bodies in monitoring and supporting constitutional implementation of health rights.  Catherine Mumma, former Commissioner of the CIC, shared how Kenya’s constitutional drafters designed the CIC to ensure its independence and how the CIC carried out its mandate to monitor and facilitate the development of laws required for constitutional implementation, which included the decentralization of health services as Kenya implemented its new federal system. Former Commissioner Mumma spoke about the challenge of ensuring that executive ministries understood the rights-based approach of the new constitution and developed draft legislation and policies accordingly, highlighting the need to for the development of the capacity of executive ministries. 

The case of Afghanistan demonstrated the importance of civil society organizations and religious leaders to the implementation of women’s constitutional health rights in that country. The government of Afghanistan has contracted non-governmental organizations to provide health services at the local level throughout the country, a model which has been recognized as a best practice in contexts where demand exceeds government capacity to provide services.  Farhad Jawid of Marie Stopes International shared how engagement with local level religious leaders has been the key to the successful delivery of reproductive health services in Afghanistan, especially in conflict-affected areas that are out of reach of the government.

Enid Muthoni, IDLO Country Director (Kenya) and Teresa Omondi, Deputy Executive Director of FIDA Kenya  Photo ©: Melanie Allen

Some of the other lessons that emerged include:

• It is important to have in place complaints procedures for both public and private health providers in order to for the state to hold service providers accountable and to ensure that women’s health needs are met and their dignity respected;
• Constitutional provisions which state that customary and religious practices must adhere to fundamental rights can be critical to protecting women and girls from harmful practices that impact their right to health, such as FGM and early marriage;
• Public interest litigation can be a powerful tool when the government fails to meet its constitutional obligations, however non-implementation of judicial decisions is problem that can undermine its effectiveness; and
• Independent constitutional rights bodies such as a gender commission or a human rights commission with investigative powers and a broad mandate can be effective monitoring mechanisms as well as support to the government to develop responsive health legislation and policy.  These bodies have the potential to be more accessible to the poor than other branches of government.

Nepal, with the youngest constitution in the world, was chosen as the location of the workshop. After seven years and the election of two Constituent Assemblies, on 16 September 2015 the Constitution Bill was endorsed by more than two-thirds of the Constituent Assembly.  The Constitution was promulgated on 20 September 2015. In the month following the promulgation, the Legislative-Parliament (the Constituent Assembly transformed into the Legislative Parliament following promulgation) elected Bidhya Devi Bhandari as the first president under the new constitution - and the first female president of Nepal. Onsari Gharti Magar was also elected as the first female Speaker.  The workshop provided an opportunity for gender equality advocates in Nepal to have a direct exchange with peers from Africa, Europe, Latin America, North Africa, and Asia to learn about their experiences that have relevance to their context. As a speaker from Nepal astutely observed, ‘The real work for achieving women’s rights and gender equality begins now’.

A paper will be published in 2016 that captures and develops the lessons that emerged from the workshop.