Signs of triumph, trial and tribulation: reflections on the domestication and implementation of article 9 of the Women’s Rights Protocol in Namibia

1 INTRODUCTION

The domestication and implementation of article 9 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Rights Protocol), dealing with women’s participation in political and decision-making processes has been of particular interest to scholars more recently.1 In fact, the last three decades or so have seen the emergence of a vast body of writing about women’s political participation from a variety of perspectives,2 including their integration in international processes and organs.3 Since reaching independence from the 1950s to the early 1990s many African governments have reformed their constitutions and laws in order to address the historical marginalisation of women in mainstream governance structures and decision-making organs. In Namibia, the first of such reforms came about long before the passage of the Women’s Rights Protocol, with the birth of its independence constitution, which amongst others, introduced affirmative action measures in favour of women.4 Since then, incremental progress has been made, and of late more and more women have been able to penetrate political spaces. Despite the growth in numbers of women in these spaces in Namibia, many women still remain subordinate and are excluded in major decision-making processes in State structures involving both domestic and foreign policies. This is so despite the often uneven impact of these policies on women in general. The silence and invisibility of Namibian women also characterize those bodies and processes that determine their political and legal fate.5

While in international circles there has emerged a growing recognition of the important role of women in public political spaces, and despite the cumbersome legal framework aimed at women’s integration in these processes, State compliance with domestic and international normative frameworks remains a major challenge. This is also the case in Namibia. Accordingly, an inquiry of the status of women in political and decision-making structures in Namibia is needed. Firstly, such an evaluation would be crucial in determining what factors either affect the growth or regression of women in political spaces in Namibia. This is because, historically, the growth of women in political spaces has not always been a constant. Instead, it has always varied, with gains made in some years, and regression in others. It may thus be indispensable to question why there has been an uneven tide in the growth of women in these spaces, and what accounts for such trends and practices. Secondly, by questioning and analysing the status of women within these spaces, we question the patriarchal nature of the State and take cognisance of the historical fact that women in Namibia, as in many parts of the global South, still remain politically marginalised and suppressed.

This article discusses the status of women in political and decision-making processes in Namibia with reference to article 9 of the Women’s Rights Protocol. In a sense thus, the paper is a reflection on the gains made, challenges remaining, and prospects for women’s political emancipation in governance structures and processes in Namibia. In my use and understanding of ‘political participation’ in this context, I am guided by the framework suggested by the CEDAW Committee in General Recommendation 23: Political and Public Life adopted in 1997. The CEDAW Committee defines political participation as referring ‘to the exercise of political power, in particular the exercise of legislative, judicial, executive and administrative powers’.6 This is the context within which the concept is appreciated and used throughout this article. It is also important to note that ‘domestication and implementation’, as understood for purposes of this paper, is of a relatively narrow scope, aiming at measuring the general provisions of article 9 of the Women’s Rights Protocol against the proliferation of female representation, particularly at parliamentary level. The paper begins with a brief background on the interpretative context of article 9 of the Protocol, followed by a general discussion of the applicable domestic and international legal framework relating to women’s political participation. In the third part, the paper addresses the status of women within the political and decision-making processes and organs in Namibia by decoding the practical domestication and implementation of article 9 of the Women’s Rights Protocol in the Namibian legal landscape. Fused within this discussion are the overall challenges and opportunities for women within the political landscape. The paper then ends with a brief conclusion.

2 CONTEXT AND CONTOURS OF ARTICLE 9 OF THE WOMEN’S RIGHTS PROTOCOL

While internationally women’s rights protection had taken root primitively since 1945, and more robustly since the late 1970s, the same could not be said of a regional specific women’s rights framework in Africa. The promulgation of the Women’s Rights Protocol in mid-July 2003 gave an end to this regional deficit. The Protocol remains a product of the extensive mobilisation and advocacy efforts of women’s rights movements on the continent.7 Viewed by many as filling the voids and shortcomings left by the pre-existing women’s rights instruments, the Women’s Rights Protocol seeks to address the geographical peculiarities of African women, taking into account context and elements of cultural relativism that have been the hallmark of African society. With far-reaching provisions, previously not covered under established international human rights instruments, the Women’s Rights Protocol details substantive human rights provisions for women, covering civil and political, economic, social and cultural rights, including environmental rights. Sadly, the Protocol falls short of enjoying universal ratification having only gained the support of 40 states.8 Namibia became a party to the Protocol on 11 August 2004, nearly a year after its initial adoption.

As alluded to before, article 9 of the Women’s Rights Protocol provides for women’s right to participate in political and decision-making processes, placing direct positive obligations on state parties to the Protocol in the following terms:

1. States Parties shall take specific positive action to promote participative governance and the equal participation of women in the political life of their countries through affirmative action, enabling national legislation and other measures to ensure that:

(a) women participate without any discrimination in all elections;

(b) women are represented equally at all levels with men in all electoral processes;

(c) women are equal partners with men at all levels of development and implementation of State policies and development programmes.

2. States Parties shall ensure increased and effective representation and participation of women at all levels of decision-making.

A closer reading of this provision discloses one or more of the following. First, that its basis is premised on the principles of equality and non-discrimination. Second, the scope of protection offered is not limited to political participation but all forms of decision-making processes where the exercise of state authority is at play. Third, both qualitative and quantitative representation is envisaged, and the state is accordingly obligated to ensure their fulfilment; and fourthly, affirmative action is specifically identified, or, at the very least, recommended as central to states’ fulfilment of its obligations in terms of this provision.

Clearly, the rights to vote, be elected and to hold public office are to be implied, though not expressly stated in the text of article 9. It is also not clear whether the type of protection offered solely applies to domestic circumstances, excluding States duties to enhance women’s roles in international processes, diplomacy and foreign policy formulation. It seems though that these concerns are inherently part of what the provision envisages, but the certainty of such a position will only become clearer through more elaboration from the African Court on Human and Peoples’ Rights, the body tasked with the duty to interpret the provisions of the Women’s Rights Protocol.9

The inclusion of a provision of the nature of article 9 sparks questions around why states would want to emphasise the emancipation of women in political and decision-making spaces. Put somewhat differently, what is the value of insisting on the need for significant representation of women in political and decision-making processes? The immediate response to this question is that the inclusion of women contests patriarchy, and brings women and their capabilities to the fore. Their exclusion preserves the inherited patriarchal architecture of state and society. We run the risk of ensuring that the State, including its structures and processes remain masculine; its legitimacy masculine; and the perpetuation of masculine immensity. In principle, as aptly held by Hillary Charlesworth, ‘long-term male domination of all bodies wielding political power [sic] means that issues traditionally of concern to men are seen as general human concerns; ‘women’s concerns,’ by contrast, are regarded as a distinct and limited category.’10 Social concerns, such as sexual violence, of which women are generally victims, become side lined and (un)regulated because they hardly affect, or interest, the male who holds public regulatory power. Women’s inclusion is also a matter of human rights and justice.11 Their inclusion is thus evidence of a ‘genuine representative democracy’.

Furthermore, women bring with them a set of values and experiences to the political arena that are relevant for their empowerment and can only be best expressed by them because of their unique, inherent experience. In her overall research on ethics, women’s psychology and girl’s development, American psychologist and feminist, Carol Gilligan, makes this astute point clearer.12 In her 1982 classical study In a different voice: psychological theory and women’s development, Gilligan makes the point that there are gender differences in a person’s moral development and reasoning.13 According to Gilligan’s findings, justice and individual rights are perceived by men as essential elements for policy formulation and general reasoning; whereas to women, questions of care and relationships are quite essential to such reasoning. Although Gilligan’s theory has not escaped serious questioning,14 by highlighting the gendered differences in human psychology, her work shows to a considerable extent, that women can ‘add value’ to the structural processes of society given the ‘care-justice distinct’ between females and males. What one can deduce from Gilligan’s theory is that the inclusion of women automates reasoning and contributions that are social welfare based, economically inclusive and empowering. Clearly, such welfare based contributions to state and society would be of meaningful impact given the socio-economic shortcomings Namibia and many other African governments face.

3 LEGAL FRAMEWORK RELATING TO WOMEN’S POLITICAL EMANCIPATION IN NAMIBIA

The claim for women’s political participation is deeply rooted in their legal recognition and provision, both through domestic and international instruments. These legal instruments place this claim within the ambit of states obligations, which obligations if not fulfilled can be enforced against a state. Namibia, like most of its African counterparts, has bound itself to numerous domestic, subregional, regional and global legal frameworks relating to women.15 In what follows, an analysis will be made of the legal measures relating to women’s political rights and their domestication in the Namibian legal setting. The section reflects on the domestication of article 9 of the Women’s Rights Protocol in the Namibian constitution and various other legislative instruments.

4 STATUS OF WOMEN IN POLITICAL AND DECISION-MAKING PROCESSES IN NAMIBIA

5 CHALLENGES AND OPPORTUNITIES FOR WOMEN’S EMANCIPATION IN POLITICAL SPACES IN NAMIBIA

Unsurprisingly, the central challenge women in Namibia face, in penetrating political avenues can be largely attributed to processes of (gendered) socialisation, especially the artificial dichotomy made between private and public life. In many conventional African settings, including Namibia, participation in governance structures and processes is viewed as a public activity, more commonly reserved for men; whilst domestic affairs, such as the maintenance of the household, agrarian activity, and child rearing, are regarded quintessentially within the private domain; the terrain of the female sex. The CEDAW Committee in General Recommendation 23: Political and Public Life aptly captures this point:71

Public and private spheres of human activity have always been considered distinct, and have been regulated accordingly. Invariably, women have been assigned to the private or domestic sphere, associated with reproduction and the raising of children, and in all societies these activities have been treated as inferior. By contrast, public life, which is respected and honoured, extends to a broad range of activity outside the private and domestic sphere. Men historically have both dominated public life and exercised the power to confine and subordinate women within the private sphere.

Although in principle the public-private dichotomy is meant to draw a distinction between the basic features of private and public spaces and the interaction between the two systems, in practice this distinction displays a gender dimension that disproportionately divides state power. As rightly observed by Sullivan, ‘the demarcation of public and private life within society is an inherently political process that both reflects and reinforces power relations, especially the power relations of gender, race, and class.’72

Generations of feminists have time and again underscored the gendered nature of this private/public divide. 73 Sullivan, for example argued, that ‘economic, social and political power adheres in the public realm, to which women have limited access and over which they have limited control.’74 Put on a balance of scale, the public (the perceived domain of men) outweighs the private (the perceived domain of women), because of the centralisation of state power relations within the former realm. In turn the state becomes masculine, and that masculinity permeates its structures, organs, and processes, including the letter law. The private/public socialisation and engendering of society not only has left women, isolated from authoritative processes of governance, but has also resulted in the use and abuse of the power that the ‘public realm’ enjoys to suppress and control the already terse economic, political, and social powers, if any, of the ‘private realm.’ Charlesworth aptly apprehends this point in her observation, that ‘the assignment of women to the domestic sphere entrenches their inequality with men, for women are regarded as dependent on men for subsistence. Moreover the privacy of domestic life makes women’s concerns invisible and ensures the preservation of the status quo.75

In view of the stereotypical and disproportionate tendencies of the private/public dichotomy, one study has concluded that what is needed is a ‘re-conceptualisation of the public/private divide in a manner that incorporates the experiences of women’,76 but even such a re-conceptualisation project may reinforce the inequalities brought about by the private/public divide, and further marginalise women’s already limited place in public space. What is needed is a total deconstruction of private/public socialization right from the outset.

Secondly, like the public/private socialisation, cultural socialisation too has affected women’s perception of and inclusion in political structures in Namibia. As Rao observed:

...[t]he notion of culture favoured by international actors must be unmasked for what it is: a falsely rigid, ahistorical, selectively chosen set of self-justificatory texts and practices whose patent partiality raises the question of exactly whose interests are being served and who comes out on top. We need to problematize all of culture, not just the perceived ‘bad’ aspects. When we limit our inquiry to egregious violations, we limit our capacity to ameliorate human pain to just that one instance of a ‘bad cultural practice.’ Without questioning the political uses of culture, without placing the very notion of culture in historical context and investigating the status of the interpreter, we cannot fully understand the ease with which women become instrumentalised in larger battles of political, economic, military, and discursive competition in the international arena. 77

The suppression of women in political processes, manually often at the whim of elitist men and structurally by established state processes, has much to do with the social development of persons and their integration and reaction towards this moral development. Thus when women, or, even some men view themselves as less credible for political spaces, their socialisation embedded in their moral development is central to that line of reasoning. The study of moral development is certainly nothing new, and has, for some time, been a focus study in human psychology.78 Different psychological schools tend to explain the social influences of human reasoning. One such theory that has caught the attention of socio-legal academics and anthropologists is the social learning theory. Viewed from the social learning theory, behaviour is acquired by direct learning, modelling and imitation, and is maintained by positive reinforcement.

Another major challenge that has hampered women from penetrating political spaces in Namibia is the fact that historically women have not enjoyed the same level of autonomy that men enjoy. In practice, especially in remote and rural Namibia, including peri-urban areas, a women’s worth is measured largely in relation to the man to whom she is associated.79 This position was deeply entrenched in both customary and common law. For example, until the promulgation of the Married Persons Equality Act in 1996, men legally, on the basis of their sex, acquired marital power and control over the person and property of their wives. Although the positivist common law position has changed, under customary social rooting, many women still do not enjoy autonomy. This remains a global trend in both the North and South. Women are regarded as dependent on men for subsistence. The recent failures of two and success of one prominent political figures makes out an illustrious example of the semi-autonomous perceptions in which many women are viewed: The repetitive reference to the failures of then American President Bill Clinton by presidential hopeful Donald J. Trump, whilst countering the arguments of his rival, Senator Hillary Clinton, demonstrates how women, even the very elite like Clinton, are labelled and suppressed on the basis of their male counterparts. It is almost as if Hillary Clinton’s campaign for presidency was evaluated against the successes and failures of her husband. A similar trend also occurred in the presidential bid of former AU Chairperson, Dr Nkososana Dlamini-Zuma in South Africa’s ruling ANC elective congress in December 2017. Dlamini-Zuma’s loss to political rival, Cyril Ramaphosa, was largely attributed to her association of the then president, Jacob Zuma who had been in disfavour with his ruling ANC party and general public. Dlamini-Zuma had been previously married to Jacob Zuma. In Namibia, the ascent of Netumbo Nandi-Ndaitwah to the vice presidency of SWAPO, the ruling party in Namibia, was viewed by many as dependent on the support of her male counterpart, the incumbent president Hage Geingob, despite her established political career spanning over three decades. The experiences of these three women, illustrates the stereotypes politically ambitious women encounter, and the subordination they undergo, which their male counterparts barely encounter.

The disproportionate impacts of high prevalence of unemployment and extreme poverty in Namibia, as in various parts of Africa, on women also impedes their potential to fully explore political avenues. This reality is aptly articulated in the recently concluded Strategic Framework of the Commission of the AU: 80

[T]he existence of widespread gender inequalities between men and women has manifested itself in the disproportionate burden African women bear of the poverty, illiteracy and disease. While they constitute more than half of Africa’s population (52 per cent), they face challenges in accessing equal opportunities and rights, and are severely underrepresented in decision-making positions while at the same time their welfare is grossly undermined by cultural and traditional practices.

Running for political office requires economic resources, or at the very least collateral and other forms of financial security, which many women (compared to men) do not have. This is more likely the case because, as recently concluded in the (Revised) National Gender Policy (2010-2020), ‘poverty is most pronounced among the 44 per cent of female-headed households in rural areas’.81 According to the same

policy document about 52 per cent of the population in rural areas are female;82 away from the mainstream political processes and spaces in urban and peri-urban Namibia. Even the very limited few who have financial resources to penetrate political avenues often find political spaces and positions of influence relatively intimidating and gender-insensitive.

Given the above outlined challenges, there is room for improvement and opportunities. These opportunities will have to begin with electoral reform at political party level because of the centrality of party politics in the electoral cycle. Clearly, as evidenced from the affirmative action measures taken by SWAPO in Namibia, temporary special measures are a feasible consideration for women’s emancipation and should thus be integrated by all political parties. In fact, reforms within the Electoral Act should require political parties to include temporary special measures in favour of women at party level. Parties can also provide special funds to ease the financial burden associated with running for political office for women, who in any event are more economically strained than men as discussed above.

Another opportunity that can be explored is through law reform aimed at making political life more family-friendly. Women in Namibia, as in most parts of the world, still bear a greater part of family relations whilst at the same time exploring opportunities in the public realm. Women in Namibia who find themselves in political spaces experience difficulties in finding ground between work and other duties. There may therefore be a need to amend the Electoral Act of 2014 and Labour Act of 2007 or, alternatively, the parliamentary rules and procedures, to reflect the experiences of women in electoral, political and parliamentary process by reducing the hours of labour required of female parliamentarians and for their participation even during their possible physical absence in political structures even during maternity periods, by providing for say alternative voting or participation procedures, as the case may be.

6 CONCLUSION

The domestic implementation of article 9 of the Women’s Rights Protocol has come a long way in the legal framework of Namibia. As shown in the paper, the domestication of article 9 of the Women’s Rights Protocol within the Namibian legal framework is a hybrid exercise; somewhat canvassed indirectly within the constitution and more fragmentally within various legislative instruments relating to public entities. As far as its implementation is concerned the voluntary gender quotas introduced by the ruling party and further political commitment from central government contributed immensely to the incremental increase in women’s representation in political processes and decision-making organs such as parliament.

Despite the fact that it had nearly taken over two decades for the Namibian government to meet its obligations in terms of article 9 of the Women’s Rights Protocol, the fact that modest gains have been made marks a new dawn for women. It is therefore not inappropriate to suggest that Namibia is gradually moving towards ensuring that women have a meaningful place within its political and decision-making processes and organs. Given this state of affairs, Namibia can be singled as an illustrious example of both progression and regression as far as women’s political emancipation in concerned. However, there are some shortcomings, which have left women underrepresented in key organs such as the judiciary and traditional authorities. Until these concerns are addressed we cannot ideally speak of full compliance with the provisions of article 9 of the Protocol by Namibia. This may surely be attainable in the immediate future if the prevailing political will and commitment is maintained and women at the grassroots levels are able to reap from the proliferation of women within political and decision-making processes.