By Gama Hassan Oscas
In the realm of international human rights, the Maputo Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa stands as a beacon of hope and a strong commitment to the elimination of discrimination against women. This crucial protocol, ratified by numerous African nations, including South Sudan, enshrines the principles of gender equality and the eradication of harmful practices that harm women’s well-being. Article 2 of the Maputo Protocol explicitly mandates that state parties take effective legislative and institutional measures to combat discrimination against women.
However, despite these lofty commitments and legal obligations, the government of South Sudan has shown a distressing lack of action in eliminating discrimination against women and upholding the provisions of the Maputo Protocol. This legal opinion will scrutinize the glaring shortcomings of the South Sudanese government’s efforts in combating gender-based discrimination and the continuation of repugnant customs that perpetuate the subjugation of women in the country.
South Sudan’s blatant failure to fulfill its obligations under the Maputo Protocol is not only a breach of international law but also a severe disregard for the rights and well-being of women within its borders. Article 2 of the Protocol is unequivocal in its requirements, urging state parties to adopt legislative, institutional, and other measures to combat discrimination against women. South Sudan has not only fallen short in adopting such measures but has also perpetuated discriminatory practices within its society.
Traditional chiefs in South Sudan continue to wield significant influence in customary courts, where they often enforce repugnant customs and traditions that perpetuate gender-based discrimination. Many of these chiefs lack the necessary understanding of the limits of their jurisdiction and, as a result, render judgments that are fundamentally at odds with international human rights standards.
These repugnant customs include practices such as forced early marriages, female genital mutilation, and the payment of dowries, all of which are in direct violation of the principles of gender equality and the elimination of harmful practices enshrined in the Maputo Protocol. It is imperative to recognize that customs and traditions are not immutable but evolve over time. Just as dowries have seen changes in acceptance and practice, other repugnant customs should also undergo transformation.
South Sudan, as a state party to the Maputo Protocol, is legally bound to enact and effectively implement legislative and regulatory measures aimed at curbing all forms of discrimination against women. The failure to do so constitutes a breach of its international obligations. The Maputo Protocol is not merely a symbolic gesture; it carries the force of international law and is a vital tool for promoting gender equality and protecting women’s rights in the African continent.
The international community, through the United Nations and various international human rights bodies, has consistently emphasized the importance of eliminating discrimination against women. South Sudan’s failure to take effective measures in this regard not only tarnishes its reputation on the global stage but also places it in violation of multiple international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Customary courts and traditional chiefs play a pivotal role in the administration of justice in South Sudan, particularly in rural areas. These courts are meant to serve as channels for resolving disputes and ensuring justice within the framework of customary law. However, the prevalence of discriminatory practices and judgments within these courts highlights the urgent need for reform.
Many traditional chiefs presiding over customary courts lack the necessary legal knowledge to differentiate between customary practices that are acceptable and those that are discriminatory. Their limited understanding of the jurisdictional boundaries of customary law often results in judgments that infringe upon women’s rights.
Furthermore, the concept that customs evolve over time is often overlooked. As societies change and progress, so should their customs and traditions. It is unacceptable for customary courts to enforce customs that are fundamentally incompatible with contemporary human rights norms.
Harmful practices such as forced early marriages and female genital mutilation have severe consequences for women’s health and well-being. These practices violate the fundamental principles of bodily autonomy and personal integrity, enshrined in the Maputo Protocol. South Sudan’s tolerance of such practices not only perpetuates gender-based discrimination but also endangers the lives and physical and mental health of women.
South Sudan must prioritize comprehensive legal reforms to align its domestic legislation with international human rights standards. Enacting and enforcing laws that explicitly prohibit harmful practices and discrimination against women are essential steps towards achieving gender equality and upholding the provisions of the Maputo Protocol.
The international community, as well as human rights organizations, should hold South Sudan accountable for its failure to fulfill its obligations under the Maputo Protocol and other international human rights instruments. Diplomatic pressure, sanctions, and public condemnation are among the means through which the international community can urge South Sudan to take immediate action to eliminate discrimination against women.
In light of the above analysis, it is imperative for South Sudan to take immediate and concrete steps to eliminate discrimination against women and uphold the provisions of the Maputo Protocol. To that end, the following recommendations are made:
South Sudan must enact comprehensive legislation that explicitly prohibits harmful practices and discrimination against women. These laws should be in alignment with international human rights standards, including the Maputo Protocol.
Traditional chiefs and those working within customary courts must undergo education and training programs that provide them with an understanding of international human rights standards and the limits of their jurisdiction.
The government should launch public awareness campaigns to inform citizens about the rights of women, the harm caused by discriminatory practices, and the importance of gender equality.
Customary courts should be reformed to ensure that their practices and judgments are consistent with international human rights standards. This includes creating mechanisms for oversight and accountability.
South Sudan should engage with civil society organizations working on gender equality and women’s rights to develop and implement effective strategies for combating discrimination against women.
The government should actively seek assistance and support from international organizations and development partners to address the issue of discrimination against women comprehensively.
South Sudan should regularly report to international human rights bodies, such as the African Commission on Human and Peoples’ Rights, on the progress made in eliminating discrimination against women. This includes a transparent and accountable process for addressing violations.
In conclusion, South Sudan’s laxity in taking practical steps to eliminate discrimination against women and uphold the provisions of the Maputo Protocol is not only a violation of international law but also a grave injustice to the women within its borders. The government’s failure to enact and enforce comprehensive legislation and the perpetuation of discriminatory practices in customary courts demonstrate a lack of commitment to gender equality and the protection of women’s rights.
It is high time for South Sudan to recognize the urgency of this issue and take immediate action to rectify the situation. The international community, human rights organizations, and concerned individuals must exert pressure and hold South Sudan accountable for its obligations under the Maputo Protocol and other international human rights instruments. The well-being and rights of women in South Sudan depend on these collective efforts to combat discrimination and enforce gender equality.
The author of this opinion piece is an advocate and can be reached by email: at oscarsgama@gmail.com