Zimbabwe Human Rights NGO Forum Special Report
Gender and Constitutional Issues
Introduction
In 1948, the Universal Declaration of Human Rights (UDHR) assumed that all humans had the same
rights. Nearly half a century later, the Vienna Conference reiterated that ‘Human rights are the rights
every human being is entitled to enjoy and to have protected’. 1 It is true that human rights are entitlements
by virtue of each person’s humanity.
However, the language of the UDHR generally reflected the unconscious masculine bias of its time,
despite its conscious and admirable attempts to include women. The UDHR in its Preamble asserted ‘the
equal rights of men and women’ and in Article 26(2) special entitlements to ‘care and assistance’ for
‘motherhood and childhood’. Gender-sensitivity and gender-neutral language had still to emerge, even in
the rhetoric of human rights in ‘advanced economies’. That the human rights of women and children are
not identical to those of adult men was yet to be recognised.
Another quarter-century passed before this recognition began, slowly, to emerge. Its emergence tracked
the position of 1970s ‘second-wave’ feminism, namely that biological differences between the sexes must
be built systematically into gender equality. Bearing and rearing children differentiate women from men.
These biological differences must be taken into account in the creation of social equality between the
sexes. The construction of social equality – and equity of human rights - between men and women must
rest on their different, gendered responsibilities in the reproduction of society.
This position sounds so simple and obvious that it doesn’t need stating. But it is not simple to implement,
and a majority of countries – including Zimbabwe – have not yet guaranteed equal rights for women in
law and/or practice. They have not yet achieved gender equality. Why? Because in many societies men
make policies for everyone. But men do not need to worry about falling pregnant, giving birth, and
bringing up unwanted children. They do not have to live with the consequences of their sexual choices,
even though many voluntarily do so and most want children. For men, fully in control of their own
sexuality, such control is simply not an issue. For women, especially in the era of AIDS, such control is
perhaps the most fundamental human ‘right’ which may affect everything else in their lives. And for
many women, their sexuality is controlled by men.
Rights of women to their own sexuality and fecundity remain deeply problematic in many societies.
Whether rights over personal sexuality and reproduction are classified as civil or social, they are still the
subject of bitter conflict for women worldwide. The rights to control their own sexual behaviour, to
prevent conception without reference to any sexual partner, and to abortion, are not yet secured for the
majority of the world’s women. The quality of poor women’s lives in developing countries is negatively
affected by pro-life, anti-abortion stances in countries such as the United States of America, which
prohibit funding for non-governmental organisations encouraging or permitting abortion as an option.
The reason why men control women’s sexuality relates to male control of society and social reproduction,
though marriage and family relationships. Although as a child of its time the UDHR is silent on the
control of women’s sexuality, it does recognise that where their marriages are ‘arranged’ by others,
women’s right to marry and found a family is restricted by lack of free choice of partner. It therefore
asserts everyone’s right to choose their spouse freely, without addressing the underlying problem that
produces this lack of choice among women – namely, male control of female sexuality.
Demands for human rights by men usually start with political and civil rights, because these are the rights
which affect men most fundamentally. The political right to vote is usually regarded as gender-blind. It is
all too easy to forget how recently Swiss women were enfranchised when we condemn the refusal of the
all-male legislature to enfranchise Kuwaiti women in the year 2000. The point is that, in the initial
instance, getting women the vote has everywhere required male consent. Women can never enfranchise
themselves. Yet people often talk as if women can ‘empower’ themselves with political as well as
economic and other ‘rights’ over which they have an equivalent lack of control.
1
David Jamali, ‘Delivering human rights education: ZimRights’ experience. Supplement to the Financial Gazette
3-9 May 2001.
2