Violence against women - international law protection

Question 1

Pretend that you are a law clerk for the CEDAW Committee. You are asked to draft a response to Lesotho’s report. Draft a memo for the Committee analyzing Lesotho’s report in light of CEDAW’s provisions and other considerations you deem relevant. Your memo should include recommendations to the Committee regarding next steps in responding to Lesotho.

Introduction

        Lesotho has been a signatory to the Convention to the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) since 1995. Following Lesotho’s combined initial, second, third and fourth periodic reports, the CEDAW Committee (‘the Women's Committee) issued concluding obligations concerning Lesotho’s compliance with CEDAW. The Committee voiced its concern about the persistence of harmful norms, practices and traditions, patriarchal attitudes as well as deep-rooted stereotypes that have an impact on the roles, responsibilities and identities of women and men in all spheres of life. The Women’s Committee also noted the limited efforts provided by Lesotho to remediate the situation and address this discrimination^[1]. Among this harmful practices is polygamy, which is a custom that the Women’s Committee fears might perpetuate discrimination against women and girls.

        The Women’s Committee presented the State of Lesotho with a list of actions that it should take to eliminate discrimination against women. Among these actions, it required the State to prepare a unified family code in accordance with CEDAW that would address the issue of polygamy, to ensure equality between men and women in marriage and family relation and finally to prohibit polygamy in conformity with the Committee’s General Recommendation No. 21^[2]. It then required a follow-up report concerning the implementation of said actions. Lesotho complied and submitted a report in 2015.

        The follow-up report provides the Women’s Committee with the progress that Lesotho as made with regard to the recommendations. Lesotho reveals that there are currently no legislative measures taken to prohibit polygamy and that polygamy is not a widespread issue in the country albeit an acceptable customary practice^[3]. According to the follow-up report, the few men and women who practice polygamy are - as well as children- protected by customary law which safeguard them from potential negative financial and emotional consequences. These customary laws include the consultation of all wives and the designation of separate property for each household. Lastly, the report mentions the existence of public gathering aiming at raising awareness of the proper procedures that must be followed in conducting polygamous marriages so as to safeguard women’s right and especially, their property rights^[4].

        This memo will focus on the implementation of the actions aiming at eliminating polygamy in Lesotho. First of all, it will present key concerns linked to the practice of polygamy, then an analysis of Lesotho’s report in light of the relevant international law provisions and lastly recommendations to the Women’s Committee on the next steps to take in responding to Lesotho.

Key concerns

        Polygamy, which is defined as the status of having several spouses usually refers to polygyny - a man married to several wives as it is the most common form of polygamy. Polygamy can be the result of traditional customs or religious practices.

        This situation, described by the CEDAW as discrimination against women is harmful for several reasons. First of all, polygamy as a form of patriarchy - this practice has an oppressive character in several circumstances as it encourages and reinforces patriarchal conception of family life. It tends to reinforce gender stereotypes as men are often given the power to interrupt unions as they wish and leaves very little power to the wives who merely assume reproductive or service roles^[5]. Moreover, polygamy can weaken marriage bounds through the harms of non-exclusivity - this is most striking when wives have to reside with each other and their common husband, creating one household belonging to everybody. Having to share one’s husband attention with other wives can deprive women from an exclusive connection with their husband^[6]. Stemming from this obligation to share may arise a competitive co-wife relationship although wives can also have a friendly an co-operative relationship^[7]. All these factors have been analysed as leading to more family stress and mental illness among women. Polygamy has also been linked to higher sexual and reproductive health harms : having several partners leads to more risks of contracting sexually transmitted diseases such as HIV/AIDS^[8].

        On an other hand, polygamy has also been linked to several economic harms, women might not benefit from the same support and resources they would have in a monogamous relationship as they have to share their husband’s economical resources with other wives and dependants ^[9].

        Lastly, and beyond harming women, polygamy also impacts on children born from these unions^[10]. Studies have shown that adolescent have lower socio-economic status, academic achievements and self-esteem as children born in monogamous families. This stems from the fact that polygamous families are more prime to conflict and emotional stress, therefore creating a less stable and comfortable environment for a child to grow up in. Moreover, a polygamous household has nearly always more children than a monogamous one, which entails that fathers might be unable to give sufficient attention to all his children. Finally, a large family is often more likely to face economic problems, which can undermine parents’ abilities to provide their children with basic educational needs, this is especially true within the African context^[11].

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