Women in Constitution

8/9/2019 Women in Constitution

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CriticalHalfB i - A n n u a l J o u r n a l o f W o m e n f o r W o m e n I n t e r n a t i o n a l

SUMMER 2005 VOLUME 3 - NUMBER 1

Gender and Constitution-Building:From Paper to Practice

By the People and For the People:

Constitution-Building, Gender and DemocratizationJOLYNN SHOEMAKER

Implementing Gender Equality Provisions:Lessons from the Central American Peace Accords

ILJA A. LUCIAK

Not Just Representation:Ensuring Womens Influence in Post-Conflict Bougainville

REBECCA LINDER

The New Afghan Constitution: How WomenSucceeded in Ensuring Certain Rights and What Challenges RemainHORIA MOSADIQ

Engendering Rights in Uganda: Womens Struggle for EqualityCARA DILTS

The Truth Does Not Discriminate:How Post-Apartheid South Africa Constitutionalized Gender Equality

RASHIDA MANJOO

IN THE FIELD: In the Sea of Nation-Building:Anchoring Womens Rights in the Iraqi ConstitutionMANAL OMAR


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BOARD OF EDITORS

Catherine Albertyn, Center for Applied Legal Studies, University of the Witwatersrand, South Africa

Bathsheba Crocker, Center for Strategic and International Studies, United States

Anna Karamanou, Committee on Womens Rights and Equal Opportunities, European Parliament, Greece

Sheila Meintjes, Department of Political Studies, University of the Witwatersrand, South Africa

Tobey Goldfarb, Women for Women International, Managing Editor

Critical Halfis a bi-annual journal of Women for Women Internationaldevoted to the exchange of ideas and insight encountered

as practitioners in the field with women, development and post-conflict societies.

Each issue of Critical Halffocuses on a particular topic within the field of gender and development. Calls for papers for

upcoming issues can be found on our website at www.womenforwomen.org along with additional information including submis-

sion criteria and deadlines.

The contents ofCritical Halfare copyrighted. They may not be reproduced or distributed without written permission.

Commercial use of any material contained in this journal is strictly prohibited. For copy permission, notification of address

changes or to make comments, please e-mail Rebecca Milner at [email protected].

Copyright Women for Women International


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CriticalHalfGENDER AND CONSTITUTION-BUILDING: FROM PAPER TO PRACTICE

Vol. 3 No. 1 Summer 2005

Reflections from the Board of Editors SHEILA MEINTJES .............................................. 5

In this issue ofCritical Half ZAINAB SALBI .................................................................. 6

By the People and For the People: Constitution-Building,Gender and Democratization JOLYNN SHOEMAKER ...................................................... 8

Implementing Gender Equality Provisions: Lessons fromthe Central American Peace Accords ILJA A. LUCIAK.................................................. 14

Not Just Representation: Ensuring Womens Influence in

Post-Conflict BougainvilleREBECCA LINDER..............................................................

20

The New Afghan Constitution: How Women Succeeded in EnsuringCertain Rights and What Challenges Remain HORIA MOSADIQ...................................... 28

Engendering Rights in Uganda: WomensStruggle for Equality CARA DILTS ............................................................................. 34

The Truth Does Not Discriminate: How Post-Apartheid SouthAfrica Constitutionalized Gender Equality RASHIDA MANJOO ...................................... 40

IN THE FIELD: In the Sea of Nation-Building: AnchoringWomens Rights in the Iraqi Constitution MANAL OMAR............................................................................... 46


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CRITICAL HALF 5

Reflections from the Board of Editors

There is a danger, also, that the peace talks andconstitution-building between elites and leadership cad-res simply papers over the fault-lines of division insocieties exhausted but still replete with the pain andbitterness of the aftermath of civil strife. Even Truthand Reconciliation Commissions can silence the ex-perience of women unless there is a concerted effortto understand the differentiated experience of womenand men during war and civil war. In South Africa, theTRC did not confront this reality until a small coali-tion of gender activists lobbied to ensure that thegendered nature of apartheid be brought to the sur-face. The process was in fact inadequate, as the finalTRC report did not integrate womens experience, butinstead merely provided a chapter on human rightsviolations against women. Womens experience is nota discrete chapter, but germane and central to the his-tory of society. Thus, the cautionary lesson from SouthAfrica is that we have to struggle to ensure that womensstories are not marginalized, but are understood as partof the power relations of society that define womenas secondary and keep them subordinate in a multi-tude of different ways.

In South Africa, the coming to power of a social,democratic regime has not been the panacea that

women may have hoped for. While legislation has beenprogressive, the actual implementation has beenstrangled by lack of resources. The realization is thateven progressive states cannot be left to carve outsocietys future without the full integration of anagenda that promotes the transformation of genderrelationsthis requires more than institutional mecha-nisms. Transformation requires that women and mentake on the feminist agenda of promoting a non-sex-ist culture. It requires civil society to play a central rolein driving change. So the final lesson for all of us isthat the feminist struggle for transformation is still at

its beginning as we move into the era of peace. Transi-tions are important moments for women to organize,but after the elections is when the real work, thestruggle for transformation, really begins. We can neverrest on our laurels.

Dr. Sheila MeintjesDepartment of Political Studies,University of the Witwatersrand, South Africa

onstitution-building in post-conflict societiescan be an important part of the transition topeaceful coexistence. While the peace processCoften deals with issues of reconstruction and the mo-

dalities of new governance, it also provides opportuni-ties for truth and reconciliation and the interjectionand recognition of new rights, such as gender equality,disability rights and the special needs and rights of chil-dren and the elderly. It can be a stepping stone towardgreater equity and fairness in societies that have beendivided socially, economically and politically and whereinternal groups have been at war with one another. The

transition creates possibilities to develop a transforma-tional framework for society to move toward justice,equality and democracy and to provide opportunitiesfor the development of those previously excluded fromthe benefits in society. The transition also provides pos-sibilities for women to push open new doors to politi-cal and economic participation and to make constitu-tional gains that can be stored up for more substantivegains in the future.

But transitions are also times when reconstructioncan be a euphemism for reinventing patterns of patri-archal and elite control over society. Both the possibili-ties and the dangers present strategic challenges forfeminist and gender activists. A danger in rights talkis that tradition might trump more democratic ways ofdoing things. This seemed the case in South Africasnegotiations for a democratic Constitution in 1993-1994. The traditional chiefs tried to get the ANC toagree that customary law should not be tampered withby the new democratic Constitution. Customary lawdefined women as minors in law thus the traditionalleaders sought to perpetuate the control of men overwomen. Fortunately, women were well-organized in adiverse range of organizations in South Africa andformed a cross-party coalition that vigilantly monitored

the negotiations and prevented the ANC from com-promising womens equal citizenship claims. TheWomens National Coalition demonstrated and lobbied,held media conferences and appeared on televisionchallenging the negotiators to dare to tamper withwomens rights. The first lesson of transition that welearned in South Africa was the imperative for womento be well-organized and to vigilantly monitor peaceand constitutional processes.


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In this issue ofCritical Half

he period of post-conflict reconstruction pre-

sents a unique opportunity for an entire popu-lation to shape a countrys future. Yet women

statement. The Rwandan Constitution of 2003, how-

ever, offers a good model of leadership commitmentto both the form and substance of gender quality inthat 22 of its main articles reflect an unambiguous com-mitment to this goal.

While the language enshrined in the final docu-ment is critical, it is only a starting point. Constitutionalprovisions espousing gender equality have very little realsignificance until they go from paper to practice. Inorder for this to happen, the majority of the popula-tionthose at the grassrootsmust feel a sense ofownership of the document that is to define their na-tion. Public awareness campaigns must be organized

and mechanisms established so members of the publichave outlets to express their views. Rwanda offers an-other good example here as the government simplifiedthe articles of the Constitution and brought them tothe grassroots through public education campaigns tomake sure that every person understood his or her con-stitutional rights. A study conducted by Women forWomen International in 2004, Women Taking a Lead:Progress Toward Empowerment and Gender Equity in Rwanda,illuminates some of the tangible results of these ef-forts, particularly in terms of womens increased politi-cal participation. Rwandas parliament is now close to

gender parity, with 49 percent of female members, and womens involvement in local government and civilsociety has expanded as well.

The opening article of this journal sets the stagefor the exchange of strategies and lessons learned thatwe hope to spark. In By the People and For the People: Con-stitution-Building, Gender and Democratization, Jolynn Shoe-maker discusses how, in a society recovering from con-flict, the creation of a new constitution can be an im-portant step toward the realization of democracy. Shecites numerous examples of how, over the last severaldecades, countries around the world have created new

constitutions as part of the process of peace buildingand democratic transformationwith significant reper-cussions for gender equality, peace and domestic andinternational stability.

The next article reminds us that womens partici-pation in the earliest stages of a formal peace processis a critical building block for their role in reconstruct-ing a country. In Implementing Gender Equality Provisions:Lessons from the Central American Peace Accords, Ilja A.Luciak uses the Salvadoran and Guatemalan experiences

Tare too frequently left out during this critical moment. Those in power during transitional periods often seewomen as an afterthought and gender equality as a goalto be tackled only after the important business of build-ing a nation is complete. This viewpoint, however, is se-verely limiting. Instead, we must consider gender equal-ity and the full participation of women as instrumentalto the process of nation-building from the very begin-ning.

If women are not seated at the negotiating table from

the start, their rights are often negotiated for them.Womens tangible rights such as those to marriage, di-vorce, child custody or property are often seen as pri-vate sphere concerns and thus are relegated to religiousgroups to define the terms. Yet these rights and others,such as those to economic and political participation andeducation, are all national priorities. In most post-con-flict situations, women are the majority of the popula-tion. When this majority has a voice in the issues thatconcern all aspects of their lives, they become the activecitizens needed to elevate a nation. When women areforced out of the public sphere and constrained to pre-

war traditional roles, they pull the entire society back withthem. Yet if women play active roles in decision-makingat the family, community and national levels, everyonebenefitsstronger women mean stronger nations.

After more than a decade of working with womenin post-conflict situations, Women for Women Interna-tional has come to understand that many of the chal-lenges women face at the grassroots when moving fromcrisis to stability are the products of larger institutionaldilemmas. A womans social, economic and political sta-tus can be traced back to the legal system which governsher country. A countrys constitution provides the frame-

work for this legal system. If women are to have a say inthe critical document that affects their lives and the fu-ture of their countries, they must be involved with theconstitution-building process from its inception. Further,we must pay critical attention to the substance of a con-stitutionwhat the articles actually say. Some govern-ments believe that simply stating in a constitutions pre-amble that women and men are equal will suffice. How-ever, a closer look at the individual articles of severalconstitutions reveals serious discrepancies with this broad


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to demonstrate that peace agreements should be viewed

as important opportunities to promote gender equalityand also provide a useful framework for the process ofdrafting or revising constitutions. Thus he points outthat the best way for women to be involved in the earli-est stages of constitution-building is to have active rolesin the peace process.

The set of articles that follows provides importantinsight into the opportunities and challenges for genderequality presented by the creation or revision of a con-stitution in the aftermath of conflict. InNot Just Repre-sentation: Ensuring Womens Influence in Post-Conflict

Bougainville, Rebecca Linder analyzes the drafting pro-

cess and provisions in the newly-endorsed Constitutionof the South Pacific island province of Bougainville,signed after years of intense conflict. While its provi-sions signal potential for improved gender equality,Bougainvilles lack of governmental capacity, its tradi-tional governance by community norms and customsand lack of public awareness of the Constitution are allobstacles to systemic change.

Afghanistan has drawn the worlds attention as itstruggles to rebuild after decades of war. in The NewAfghan Constitution: How Women Succeeded in Ensuring Cer-tain Rights and What Challenges Remain, Horia Mosadiq

shares important insight about what Afghan women haveachieved in ensuring protection of their rights withinthe Constitution and potential pitfalls that the processhas illuminated. She also offers very useful guiding prin-ciples for promoting equality between men and womenin the drafting and implementation of a constitution.

Next, Cara Dilts highlights a critical issue that isrelevant in numerous countriesthe gap between whatis written in a constitution and customary laws that mayrestrict womens rights and freedoms in practice. En- gendering Rights in Uganda: Womens Struggle for Equalitydiscusses the efforts of womens civil society organiza-

tions to translate rights enshrined in the Constitutioninto workable laws and how a decade after a new con-stitution was created, women still do not enjoy equalstatus to men, particularly in the crucial area of prop-erty rights.

Finally, in The Truth Does Not Discriminate: How Post- Apartheid South Africa Constitutionalized Gender Equality,Rashida Manjoo discusses how South African womenapproached the constitution-building process at the endof the apartheid era in order to ensure gender equality

and prevent marginalization. She also discusses some

of the ways in which the constitutionally-created Truthand Reconciliation Commission was established as amechanism for redressing grievances that occurred dur-ing apartheid, especially for women victims.

Critical Halftraditionally closes with a contributionfrom one of our field offices. In her article, In the Sea ofNation-Building: Anchoring Womens Rights in the Iraqi Con-stitution, Manal Omar, Women for Women InternationalsRegional Coordinator for the Middle East and NorthAfrica, discusses a battle whose outcome is yet uncer-tainprotecting womens rights in the legal frameworkof Iraq. A survey of 1,000 women conducted by Women

for Women International in 2004 revealed that 93.7 per-cent of Iraqi women want to secure legal rights forwomen, and 83.6 percent want the right to vote on thefinal Constitution. As the article illustrates, this mes-sage from women is loud and clear regardless of whetherthe legal framework of the final Constitution is religiousor secular.

It is our hope that the articles in this issue of Criti-cal Halfprovide insight, inspiration and guidance forcountries that are in the midst of or embarking uponthe process of drafting or revising a constitution in theaftermath of conflict. Sharing lessons between coun-

tries is a critical step in this process.I would like to express deep gratitude to Catherine

Albertyn, Bathsheba Crocker, Anna Karamanou andSheila Meintjes of our Board of Editorswomen whoare instrumental players in the struggle for gender equal-ity. I am also grateful to the tireless efforts and talentsof Managing Editor, Tobey Goldfarb; to the ground-work laid by Lyla Bashan; to our dedicated copyeditors,Barbara Bares and Rebecca Trinite, and designer, KristinHager; and to Corey Oser, whose able leadershipbrought this journal to fruition. Finally, I thank Womenfor Women Internationals supporters whose belief in

the capacity of women survivors of war to define theirfutures, makes this publication possible.

Zainab SalbiPresident and CEOWomen for Women International


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BY THE PEOPLE AND FOR THE PEOPLE: CONSTITUTION-BUILDING, GENDER AND DEMOCRATIZATION

IN A SOCIETY RECOVERING FROM VIOLENT CONFLICT or

transitioning to democracy from an authoritarian regime, the cre-

ation of a new constitution is an important step. In the last sev-eral decades, countries around the world have created new con-

stitutions as part of the process of peace building and democratic

transformation. Constitution-buildingthe drafting process, the

constitutional language that is included and its interpretation and

enforcementhave significant repercussions for gender equality,

peace and stability. The international community, individual gov-

ernments, civil society and women themselves each have a re-

sponsibility to ensure that new and emerging democracies create

inclusive constitution-building processes, draft constitutions that

embody international law and womens human rights and institu-

tionalize mechanisms to interpret and protect these rights and

obligations.


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IntroductionMore than half of all written constitutions in the

world have been drafted since 1974.1 A constitutionprovides an overarching legal framework for a country.

It contains the fundamental principles of governmentand enshrines the basic rights of individuals. Constitu-tions vary widely in structure and substance; there isnot a single model for achieving the perfect documentfor a democracy. However, a constitution should em-body democratic valuesincluding fundamental free-doms, human rights and a separation of powers withinthe government. It should also be gender sensitive, re-flecting the rule of law, gender equality and the humandignity of every citizen.2 Womens rights should be cen-tral tenets of constitutional law in countries that aretransitioning to democracy.

Constitution-Building:The Importance of Process

In the past, the process of creating a constitutionwas usually closed to the public. However, public par-ticipation in these processes has been growing in recentyears with an increasing level of involvement by civilsociety in governance. This emerging participatory ap-proach to constitution-building is based on internationallegal instruments and decisions that emphasize the rightof democratic participation. For example, the UniversalDeclaration of Human Rights(UDHR) (Article 21) and theInternational Covenant on Civil and Political Rights(ICCPR)(Article 25) provide for the right of democratic partici-pation. In fact, the UN Commission on Human Rightshas articulated a specific right to participate in constitu-tion-building.3 Increasingly, public participation in con-stitution-building is being accepted as a basic democraticright.

Various mechanisms are used to draft constitutions;some provide more opportunities for broad participa-tion than others. For example, independent commissions

By the People and For the People:Constitution-Building, Gender and

DemocratizationJOLYNN SHOEMAKER

or assemblies, with public input throughout the process,have been used successfully to encourage public partici-pation and to build public support for the new constitu-tion. Such bodies can be appointed and/or elected, and

more than one body may be established to handle eachphase.

The membership of such groups should be repre-sentative of the various social and interest groups withinsociety and include the full participation of women.Women should be represented adequately in bodiesformed for constitution-making and approval. For ex-ample, in East Timor, at least 40 percent of the Consti-tutional Commissioners were women.4

There are three necessary steps in a participatoryconstitution-building process: civic education, publicconsultations and drafting. Each component should

involve women. Civic education should increase publicunderstanding of the process and emphasize the im-portance of a constitution in a democracy. Special ini-tiatives should be implemented to reach out to both ru-ral and urban areas. In Eritrea, this was done throughsongs, poems, stories, radio and local theatre in variouslanguages.5 In Rwanda, a Womens Committee con-ducted training, awareness and sensitivity programs onthe Constitution around the country.6

During public consultations, the drafters shouldmeet with representatives from various civil societygroups, including women, to develop the document. InNicaragua, this was done by distributing drafts, televis-ing debates and holding town hall open forums.7 Con-sultations provide transparency and help ensure thatsuggestions from the population are taken into account.Drafters should meet separately with women and/ordevelop other mechanisms to ensure womens full par-ticipation.

An open constitution-building process gives womenthe opportunity to press for their concerns and for spe-cific language to be included in the final document. In


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Uganda, women spoke out as members of the Consti-tutional Commission and the Constituent Assembly andthrough their involvement with NGOs.8

When women play a significant role in the constitu-tion-building process, the resulting constitutions aremore likely to reflect gender equality. For example, inSouth Africa, womens groups and other civil societygroups had access to the process, and equal rights andnon-discrimination guarantees are included throughoutthe Constitution.9 In East Timor, as a result of womensparticipation in the process, non-discrimination on thegrounds of gender is considered in the Constitution asone of the fundamental objectives of the state.10

Constitutional Language: Incorporating RightsA constitution should guarantee fundamental hu-

man rights and freedoms, and its language should en-

sure equal rights of men and women. Inclusion of thisprinciple throughout the constitution is sometimes re-ferred to as engendering the constitution.11 Civil,political, social and economic rights are embodied ininternational human rights instruments, particularly theUDHR, and international conventions, including theICCPR, the International Covenant on Economic, Social andCultural Rights(ICESCR) and theConvention on theElimi-nation of Discrimination Against Women(CEDAW). Con-stitution drafters should include specific language fromeach of these instruments in the constitution. Some ofthe international human rights that are vital for women,

and the existing international and constitutional languagepertaining to them, are described below.

Equality and Non-Discrimination

Equality and non-discrimination are an essentialbasis for womens rights. Women around the world ex-perience systemic gender discrimination in laws and so-cial practices, which prevent them from enjoying equalrights with men. The rights of equality and non-discrimi-nation are firmly established in international humanrights instruments. The right to non-discrimination isarticulated clearly in the UDHR, Article 2: Everyone is

entitled to all rights and freedoms set forth in this decla-ration, without discrimination of any kind, such as race,colour, sex, language, religion, political or other opin-ion, national or social origin, property, birth or otherstatus. Article 7 of the UDHRprovides for the rightof equal treatment and protection of the law. TheICCPR, Article 26, also guarantees equal protection be-fore the law and prohibits discrimination. Similarly,CEDAWrecognizes these rights and obligates states tocondemn discrimination against women in all its forms,

[and] agree to pursue by all appropriate means and with-out delay a policy of eliminating discrimination against women (Article 2). Furthermore, CEDAW requiresthat states embody the principle of the equality of menand women in their national constitutions or other ap-propriate legislation.

Various constitutions have incorporated these guar-antees into their provisions. The Constitution of Cam-bodia, Article 31, provides that every Khmer citizen isequal before the law. The Constitution of India, Ar-ticle 15, prohibits discrimination on the grounds of re-ligion, race, caste, sex or place of birth. Some constitu-tions have gone even further by including language thatprovides for equal rights and prohibits discriminationagainst women specifically. The Constitution ofBangladesh, in Article 28, provides: Women shall haveequal rights with men in all spheres of the State and of

public life.

Bodily Integrity, Human Dignity and Security

Bodily integrity, human dignity and security of per-son are fundamental rights. Women experience viola-tions of these rights in many situations. For example,these rights are clearly abused when women are sub-jected to rape, human trafficking and other types of gen-der-based violence. International human rights instru-ments establish the basis for these rights and includeprohibitions against actions that violate them. TheUDHR, in Article 3, provides that Everyone has the

right to life, liberty and security of person. The ICCPR,in Articles 7-10, prohibits torture and cruel, inhuman ordegrading treatment or punishment and slavery and de-lineates the rights of liberty, security and dignity. In ad-dition, Article 4 of the ICCPRprohibits slavery, andArticle 5 prohibits torture and cruel, inhuman or de-grading treatment or punishment.

Many constitutions recognize these rights and pro-hibitions. For example, Sections 11-13 of the SouthAfrican Constitution articulate the right to life, freedomand security of person, and prohibit slavery, servitudeand forced labor.

Political ParticipationFor women to achieve equality in society, they must

have opportunities to participate in civic life and in theformulation of public policy. Yet women in many coun-tries are excluded or obstructed from full participationin both civic and political life. The right to participate,on an equal basis, in the public sphere is established ininternational legal instruments. The UDHR, Article 21,articulates the rights of all people to participate in gov-



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ernment, to equal access to public service and to peri-odic and genuine elections. The ICCPR, Article 1, de-lineates the right of self-determination, and Article 25articulates the right to take part in public affairs, to voteand be elected to office and to have equal access to pub-lic services. CEDAW, Article 7, not only recognizes theserights but also requires actions by states to ensure thatwomen have equal rights to vote, to form and imple-ment government policy, to hold public office and toparticipate in non-governmental organizations and otherassociations involved in public life.

Some constitutions specifically recognize womensrights to participate in public life. For example, the Con-stitution of Eritrea states: It is a fundamental principleof the State to guarantee its citizens broad and activeparticipation in all political, economic, social and cul-tural life of the country. Any act that violates the human

rights of women or limits or otherwise thwarts theirrole and participation is prohibited.

Residence, Citizenship and NationalityThe rights of nationality and citizenship are ex-

tremely important because they define which personsmay be considered citizens and entitled to all the ben-efits that accompany citizenship. Women experience dis-crimination in a variety of ways in this area. In somesocieties, citizenship is allowed to flow only throughpaternal lines, women are deprived of their nationalityif they marry foreign nationals or governments refuse

to naturalize foreign spouses of women. Nationalityrights are guaranteed in the UDHR, Article 15.CEDAWincludes broad nationality protections and rights forwomen. CEDAW, Article 9, requires states to grantwomen equal nationality rights with men and to ensurethat neither marriage to an alien nor change of nation-ality by the husband during marriage changes a womansnationality, renders her stateless or forces upon her thenationality of her husband. In addition, CEDAW re-quires that states grant women equal rights with menwith respect to the nationality of their children.

Some constitutions include either nationality or citi-

zenship rights in their provisions. The Constitution ofCambodia, Article 33, protects against deprivation ofnationality. On the other hand, the Constitution of SouthAfrica, Section 3, outlines equal rights to citizenship andits benefits.

Economic, Labor, Social and Cultural RightsEconomic, labor, social and cultural rights are es-

sential for womens livelihood. The fundamental inter-national human rights document that guarantees these

rights is the ICESCR. Article 3 of the ICESCR obli-gates states to ensure the equal right of men and womento the enjoyment of all economic, social and culturalrights set forth in the present Covenant. Additionally,CEDAWaddresses some of these areas, requiring statesto ensure equal rights for women in employment, healthcare and economic and social life.

A few constitutions specifically address womensrights in these areas. The Constitution of Cambodia,Article 45, protects women from losing jobs due to preg-nancy and provides for the right of maternity leave with-out loss of benefits. Article 45 also obligates the gov-ernment and society to create opportunities for womento get employment, medical care, education for childrenand decent living conditions.

Affirmative Action

Affirmative action can be an effective mechanismto rectify past discrimination and to create opportuni-ties for disadvantaged groups, including women, toachieve equality. Although affirmative action is not men-tioned in the UDHR, ICCPRor the ICESCR, CEDAWallows for affirmative action for women. Specifically,Article 4 recognizes that governments may adopt tem-porary special measures aimed at accelerating de factoequality between men and women.

Some constitutions include affirmative action provisions. The Constitution of South Africa, Section 9,provides that legislative and other measures designed

to protect or advance persons, or categories of persons,disadvantaged by unfair discrimination may be taken.The Constitution of Uganda, Article 33, provides thatwomen shall have the right to affirmative action forthe purpose of redressing the imbalances created by his-tory, tradition or custom. The Constitution of India,Article 15, and the Constitution of Bangladesh, Article28, both allow the state to institute affirmative actionfor women.

Reconciling Womens Rights WithCustomary and Religious Laws

Customary and religious practices often have nega-tive repercussions for women. In countries where thereare entrenched customary and religious laws, constitu-tion drafters must determine how to respect these prac-tices while protecting human rights and gender equality.The constitution may reaffirm the importance of cul-tural and religious traditions, but it should also stateclearly that these sources of informal law must conformto international law, especially regarding womens rights,and that the state does not condone practices that dis-


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criminate against women and other groups. This con-cept is supported byCEDAW,which obligates govern-ments to take measures to abolish laws, regulations, cus-toms and practices that discriminate against women (Ar-ticle 2) and to modify social and cultural patterns to elimi-nate practices that are discriminatory (Article 5).

In the recent cases of Iraq and Afghanistan, consti-tution drafters attempted to reconcile Islamic and inter-national law. These constitutions allow for the applica-tion of Islamic law in certain situations but attempt tomake governments accountable to international norms.However, these arrangements have not succeeded inclarifying completely the relationship between religiouslaw and international human rights; there are ambigu-ities in these arrangements that could leave room forinterpretations that are detrimental to womens rights.

Womens rights under international law should be

placed above traditions and beliefs that discriminate onthe basis of gender. As countries grapple with the prob-lem of reconciling various sources of law, the validityand interpretation of customary and religious laws willcontinue to be a source of debate. The internationalcommunity, civil society and women in these countriesshould advocate strongly for constitutions that recog-nize only those customs and religious practices that donot violate womens rights of equality and non-discrimi-nation.

Enforcing Constitutional Rights

It is essential that constitutional rights are enforcedand protected by the state. If constitutional rights areconsistently violated, distorted or ignored, the constitu-tion loses its legitimacy, and democracy is endangered.It is vital that all levels of government respect constitu-tional provisions and apply international human rightsstandards in decisions and policies. The constitutionshould explicitly include this requirement.

In addition, the constitution should set out a pro-cess for determining whether legislative, executive andadministrative acts conform to the constitution. In somecountries, all courts at all levels have the authority to

consider constitutional issues through judicial review. Inother countries, constitutional review resides with onlyone court. Other countries delegate this responsibilityto non-judicial entities. All mechanisms of constitutionalreview should be entirely independent of the executiveand legislative branches of government to ensure unbi-ased decisions.

The constitution may also provide for various com-missions to monitor specific constitutional rights. Someconstitutions create a human rights commission or an

ombudsman for this purpose. For example, the Consti-tution of Fiji established a Public Education Commis-sion to inform the public about the nature and contentof the Bill of Rights and to make recommendations tothe government about compliance with human rightsstandards. The Constitution of South Africa providesfor a Human Rights Commission to promote humanrights, monitor the observance of human rights, inves-tigate cases of human rights violations and take steps tosecure redress for individuals in cases of violations.

All mechanisms for the protection of constitutionalrights should be gender-sensitive. Women should be rep-resented on courts and other bodies that determine con-stitutional questions, and equality provisions shouldbe considered central aspects of constitutional review.In Uganda, for example, the Constitution provides thatthe state shall ensure gender balance and fair represen-

tation of marginalized groups on all constitutional andother bodies (Section VI). Entities that are establishedto review constitutional questions or monitor the imple-mentation of constitutional rights should receive regu-lar and in-depth training in gender issues.

Conclusion and Recommendations

Women have an important role to play in the for-mation of new constitutions and in the protection ofconstitutional rights. Women and men must be able toexercise these rights equally for democratic culture totake root and flourish. The international community,

individual governments, civil society and women them-selves all have a responsibility to ensure that new andemerging democracies create inclusive constitution-building processes, draft constitutions that embody in-ternational law and womens human rights and institu-tionalize mechanisms to enforce these rights and obli-gations. Following are some key recommendations forsocieties beginning or engaged in constitution-building:

1. Women should fully participate in the develop-ment, drafting and ratification of the constitution.

2. The constitution should include internationalhuman rights language and norms, including:

Guarantees of human rights and fundamentalfreedoms

Equality and non-discrimination clauses

A provision allowing for affirmative action

Qualifying language stating that womensrights under international law trump inconsis-tent cultural, social and religious laws andpractices



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3. The constitution should provide for independentbodies, whose members include women and aresubject to gender training, to monitor and protectconstitutional rights. Such enforcement mecha-nisms may include, for example:

Human rights commissions or ombudsmanoffices to evaluate human rights practices,consider individual cases and provide redressfor violations

An independent judiciary

4. The international community, regional organiza-tions, civil society and local media should raiseawareness about the importance of the constitu-tion and womens involvement in constitution-building.

5. Women and their communities, especially in rural

areas, should receive education about constitu-tional rights during the constitution-buildingprocess and after the constitution has beenratified.

JOLYNN SHOEMAKERis a Policy Officer at Women Wag-ing Peace, an initiative of Hunt Alternatives Fund. She held

previous positions with the U.S. Department of Defense and theU.S. Department of State. Shoemaker has written a more ex-tensive discussion of constitution-building that appears in theWomen Waging Peace/International Alert publication called, In-

clusive Security, Sustainable Peace: A Toolkit for Advocacy andAction, available at www.womenwagingpeace.net. She is also the

author of Women and Wars within States: Internal Conflict,Womens Rights and International Security (Civil Wars, Au-tumn 2001) and In War and Peace: Women and Conflict Pre-vention (Civil Wars, Spring 2002). She holds an M.A. in na-tional security studies and a J.D. from Georgetown University.

BIBLIOGRAPHY

Hart, Vivien. Democratic Constitution Making. United States Insti-tute of Peace (USIP), Special Report No. 107 (2003).

Hart, Vivien. Owning the Constitution: A Path to Peace? United StatesInstitute of Peace (USIP), Senior Fellow Project Report(2003).

Matembe, Hon. M.R.K. Constitution of Kenya Review Commission,Women and Constitution Making in Uganda, July 12, 2001.

Opar, Diana, Regional Gender Advisor, UNIFEM. The Inclusion ofPrinciples of Gender Equality and Human Rights for a Gender-Sen-sitive Constitution. http://www.un.org/womenwatch/osagi/fea-tures/postconflict/opar-IPU.pdf.

Juliana, D. Kantengwa. Paper presented at the panel discussion onWomens Participation in Electoral Processes in Post-Conflict Coun-tries: The Case of Rwanda. UN Headquarters, Room 2, New York,March 3, 2004.

Reding, Andrew. By the People: Constitution Making in Nicaragua.

Christianity and Crisis46:18 (December 8, 1986).

United Nations Transitional Administration in East Timor (UNTAET)Press Office, Fact Sheet11 (April 2002).

ENDNOTES1 Hart, Owning the Constitution.

2 Opar, The Inclusion of Principles of Gender Equality, 49.

3 Hart, Democratic Constitution Making, 41.

4 UNTAET Fact Sheet 11.


6 Juliana, Womens Participation in Electoral Processes, 5.

7 Reding, By the People, 434-441.

8 Matembe, Women and Constitution Making in Uganda.


10 UNTAET, see note 4.

11 Opar, see note 2.


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PEACE AGREEMENTS SHOULD BE CONCEIVED AS FRAMEWORKS

for subsequent constitutions. Thus, from the very beginning of a

peace process, we need to focus on how human rights guaranteeswill be implemented. The experiences of both El Salvador and

Guatemala show that formal inclusion of women in peace nego-

tiations and the institutionalization of gender equality in peace

accords and post-war constitutions is not by itself sufficient to

achieve greater gender equality. Substantive implementation of

these accords and constitutions requires coalition-building between

women and men.

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IntroductionStarting a decade ago, womens participation in

armed conflict and peace negotiations, as well as theircentral role in the reconstruction of post-conflict soci-

eties, were starting to gain international recognition. Thisprompted a series of international conferences andmeetings that emphasized the importance of lookingat these issues from a gender perspective, a lens thatpermits greater insight into the roles of women andtheir potential in post-conflict societies.1

Today, gender equality is an accepted normativegoal, yet we have only made limited progress in trans-forming societies toward greater gender justice. In thespecific context of peace accords and subsequent con-stitutions containing gender equality provisions, the keyissue is their substantive implementation. Peace accords

and constitutions share an inherent weakness. They areoften normative documents, agreed to under duress bynegotiating parties with mutually exclusive views ratherthan specific agreements or frameworks that can be ef-fectively executed.2 The Central American experiences,specifically El Salvador and Guatemala, show thatwomens participation in the design of peace agreementsand the explicit recognition of womens rights in theaccords themselves do not guarantee that the struggletoward greater gender equality is won.

Typically, as long as the attention of the world com-munity is focused on a particular crisis, the gender con-tent of peace accords and womens participation in theprocess receive coverage. The rhetoric of officials in-volved in the process and the formal provisions guar-anteeing womens rights that are included in officialdocuments permit the key actors involved to claim suc-cess. Yet the crucial implementation phase most oftenoccurs after the attention of the international commu-nity has moved on to the next crisis. It is this stage,however, that is the key to substantive change and re-quires close scrutiny and enforcement of the documents

Implementing Gender EqualityProvisions: Lessons from the Central

American Peace AccordsILJA A. LUCIAK

guarantees. Thus, the formal participation of womenin peace negotiations and constitution-building and theinclusion of gender provisions in peace agreements isbut a first important step toward gender equality.

Womens Participation in the WarsOn January 16, 1992, the government of El Salva-

dor and the guerrilla forces integrated in the FarabundoMart National Liberation Front (FMLN) signed his-toric peace accords at Chapltepec Castle, Mexico. Thisagreement ended a 12-year conflict that had trauma-tized a whole nation.3

On December 29, 1996, another Central Ameri-can peace accord was completed. The guerrilla forcesintegrated into the Guatemalan National Revolution-ary Unity (URNG) and the Guatemalan government,

headed by President Alvaro Arz, signed an agreementthat ended the conflict that had engulfed Guatemalafor 36 years.4

El Salvador

Women played an important role in the guerrillamovements of El Salvador. At the time of the 1992demobilization of the Salvadoran FMLN, female com-batants represented 29 percent of the fighting force.In addition, women were part of the political person-nel constituting close to 37 percent of the cadres.5 Onlyin exceptional cases did women join the struggle in or-

der to change prevailing gender relations. Instead, theychose to take up arms out of a sense of social justiceor to survive the blanket repression unleashed by thearmy and police forces. The FMLN did not explicitlyaddress womens rights in its early programs and an-nouncements. FMLN commanders, whether male orfemale, did not focus their energy or thoughts onwomens rights, although women did start to organizewithin the FMLN in the last years of the struggle.


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16 SUMMER 2005

Guatemala

In Guatemala, women were also an important partof the guerrilla forces. Women combatants representedabout 15 percent of the 2,940 combatants that officiallydemobilized. When the massive incorporation of womenstarted in the 1980s, traditional gender views continuedto shape the views of the URNG leadership, a realitythat contributed to the lower levels of female participa-tion.

Womens Role in the Peace Accords

El Salvador

Womens issues received scant to no attention inthe peace negotiations in El Salvador, although NidiaDaz, Lorena Pea and Ana Guadalupe Martnez, allhigh-ranking female Commanders, participated in theprocess. At the time, none of these three women would

have considered themselves advocates for womensrights. All three acknowledge that at the time of the peaceaccords they lacked gender consciousness or awarenessas to how gender issues may be relevant in the post-conflict era.

As a result, the FMLN negotiators focused on po-litical and military issues rather than on socio-economicproblems and were unaware of the importance of ad-vocating the inclusion of gender as an organizing prin-ciple. Thus, womens rights and needs were barely ad-dressed in the accords.

GuatemalaIn Guatemala, on the other hand, a vocal womensmovement supported the efforts of a few high-rankingfemale URNG officials to put gender equality on thepeace negotiation agenda.6 Luz Mndez, a member ofthe URNGs commission negotiating the peace accords,had learned from the Salvadoran experience.7 Mndez,and several other officials, vigorously advocated incor-porating a gender perspective into the accords. Theirview was not representative of the URNG in general.Awareness of gender issues was, at best, limited in theguerrilla movement. This made it imperative for the ad-vocates for womens rights to be supported from groupswithin civil society.

The role of civil society in the peace negotiationsin Guatemala was institutionalized with an accord thatestablished the Asamblea de la Sociedad Civil(Assemblyof Civil Society, or ASC). It consisted of 10 diverse or-ganizations representing the main sectors of Guatema-lan society and derived its legitimacy from the January1994 framework agreement, giving it official recogni-tion as an interlocutor by the parties to the peace talks.8

The ASC played an important role in advocating the in-clusion of womens rights into the accords. A highly vis-ible group within the Assembly was the Womens Sectorwhich managed to greatly influence the content of someof the accords. As a result, womens rights were specifi-cally addressed in four of the seven substantive agree-ments that were reached between July 1991 and Sep-tember 1996.

The Guatemalan accords included a number of im-portant passages on womens rights. In the accord es-tablishing procedures for the resettlement of popula-tions uprooted during the war, the parties agreed toemphasize in particular the protection of families headedby women, as well as the widows and orphans who havebeen most affected.9 Further, the Guatemalan govern-ment committed itself to eliminating all forms of dis-crimination, factual or legal, against women, and to make

it easier [to have] access to land, housing, [and] creditand to participate in development projects. A gender per-spective will be incorporated in the policies, programsand activities of the global development strategy.10

In an important agreement on the rights ofGuatemalas indigenous peoples, considered one of thekey achievements of the URNG leadership, indigenouswomen were given special protection. For example, sexualharassment of an indigenous woman was to be sanc-tioned particularly severely under Guatemalan law.11

Womens political rights were also addressed. The ac-cord concerning the strengthening of civil society advo-

cated the introduction of measures of positive discrimi-nation to increase female participation. The agreementrequired the signatory parties to take the correspond-ing measures in order to ensure that organizations ofpolitical and social character adopt specific policies tend-ing to encourage and favor womens participation as partof the process of strengthening civilian power.12

The Guatemalan accords were very advanced in ad-dressing the role of women in society and advocatingchange toward greater gender equality. The accords re-flected a rethinking of womens roles in society. At leastat a formal level, women were acknowledged as key pro-

tagonists in Guatemalas future development.

Yet thechallenge remained to implement the provisions in theaccords in a way that would transform Guatemalan so-ciety.

Womens Role in the Post-Conflict Era

El Salvador

In El Salvador, the lack of a gender perspective inthe accords and in the design of the reintegration pro-

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CRITICAL HALF 17

grams frequently resulted in gender discrimination. Forexample, female combatants initially did not receiveequal treatment in the allocation of crucial resourcessuch as land. The reasons were many, ranging frommachismo at the grassroots level to lack of support fromthe male-dominated leadership of the guerrilla move-ment. Nidia Daz, the FMLN official originally in chargeof the land program, affirmed that although the dis-crimination of female combatants was not officiallysanctioned or designed, the socio-cultural context of-ten made it a reality.13 Lorena Pea concurred: I be-lieve that the principal problem that we have experi-enced is that the reintegration of the female combat-ant into civilian life has taken place under the classicalsexist concepts that have predominated in all politicalforces of the country, including the FMLN.14 Peaclaimed that an estimated 70 to 80 percent of female

combatants initially did not receive the benefits allo-cated to them.

Significantly, in-depth studies of the reintegrationprograms demonstrated that these early instances ofdiscrimination were subsequently rectified.15 The rea-son for this reversal could be found in the mobilizationof the womens movement. Together with femaleFMLN activists, it succeeded in exerting sufficient pres-sure on the government and the FMLN to reverse dis-criminatory practices.

Guatemala

In Guatemala, the challenge of reintegrating theURNG combatants into civilian life was enormous. Of

particular concern were the poverty and ethnic back-

grounds of the ex-combatants. The majority of the

URNGs personnel came from Guatemalas 21 groups

of indigenous peoples and belonged to the most

marginalized sectors of society. Not surprisingly, evalu-

ations of the peace accords impact sounded a pessi-

mistic note. Leaders of the womens movement argued

that the demands of women in respect to the imple-

mentation of the accords lacked tangible results and

that commitments had not been converted into actions.

The government was criticized for failing to have anidea of how to attend to womens historic problems

and for lacking a strategy of action designed to ensure

that the provisions of the accords would not remain

empty words.16 With a government unwilling to follow

through on commitments made in the accords, and a

demobilized guerrilla movement lacking the political

clout necessary to hold the government accountable,

women were left out in the cold.

AnalysisThe current emphasis on the inclusion of gender

equality provisions in peace accords and subsequentconstitutions is only a necessary first step. While it isimportant to fight for formal gender equality, it is theimplementation of these formal agreements that reallymatters. Peace accords and constitutions that institution-alize gender equality can easily remain utopian visionsunless a concerted effort by societal forces transformsthese visions into reality.

El Salvador

In El Salvador, the womens movement evolved intoan effective advocate for gender equality and thus wasable to correct the imbalance created by peace accordsthat failed to address womens issues. The movementsefforts were greatly helped by the strong political party

that emerged out of the former guerrilla movement. TheFMLNs political strength permitted the new party topressure the government to adhere to the provisions ofthe peace accords, which established benefits for the ex-combatants. Female FMLN militants were successful ingaining substantial representation in the FMLNs lead-ership structures and in the partys parliamentary repre-sentation. While formal gender equality was achieved inmost instances during the implementation of the ben-efits programs, the prevailing cultural norms impededprogress toward substantive equality. Nevertheless, theSalvadoran experience teaches us that it is essential that

ex-combatants form strong political parties to ensurethe implementation of any accord.

Guatemala

The Guatemalan peace accords can best be com-pared to the constitutions of many countries that guar-antee extensive rights to the citizens that in the end arerarely enforced. The accords establish normative goalsfor the future of Guatemalan citizens but not an en-forceable code of law. Some commentators have notedthat the Guatemalan agreement contains more wideranging language on social and economic areas, by far,

than the Salvadoran accord, but a great many of theprovisions are stated in sufficiently general terms as tomake them virtually unenforceable, a fact described asthe Achilles heel of the accords.17 There is strong con-sensus that the URNGs weakness at the bargaining tablemade it impossible for the guerrilla leadership to nego-tiate more specific, enforceable agreementsa reality thatimpedes the full realization of the provisions in the ac-cords. The URNG continued to exhibit political weak-ness during the implementation phase, at a time when a


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CRITICAL HALF 19

United Nations Division for the Advancement of Women. Peace Agree-ments as a Means of Promoting Gender Equality and Ensuring Par-ticipation of Women. Report of the Expert Group Meeting, Ot-tawa, Canada, 10-13 November 2003.

United Nations General Assembly. Fourth World Conference on Women, Ac-tion for Equality Development and Peace, Beijing Declaration and Platform of

Action. New York: United Nations, 1995.

United Nations Observer Mission in El Salvador (ONUSAL). Proceso dedesmovilizacon del personal del FMLN. San Salvador: Imprenta ElEstudiante, no date.

UN Security Council Resolution 1325, S/Res/1325 (2000).

ENDNOTES1 A main document that firmly put gender equality on the agenda is

the Platform of Action, from the 1995 Fourth World Conferenceon Women held in Beijing. The Platforms key provisions directedthe member states and the international community to take actionto address the concerns arising from women and armed conflict. Itdemanded that women be included in peace negotiations and post-

conflict decision-making processes and emphasized the peacefulresolution of prevailing conflicts. United Nations Fourth World Con-ference on Women,Action for Equality Development and Peace, BeijingDeclaration and Platform of Action.

Subsequently, Security Council Resolution 1325 on Women, Peaceand Security, adopted in October 2000, highlighted the significanceof bringing gender perspectives to the center of attention in allUnited Nations conflict prevention and resolution, peace-building,peace-keeping, rehabilitation, and reconstruction efforts. It calls forincreased representation of women, particularly at decision-makinglevels. Resolution 1325 was an important call to action, affirmedby subsequent reports and studies that emphasized the need forgender-based analysis and action. UN Security Council Resolution1325.

2 Report, Peace Agreements as a Means of Promoting Gender Equal-ity and Ensuring Participation of Women, 24-26.

3 The war ravaged the country, creating 1.5 million refugees and claim-ing the lives of more than 70,000 people, most of them civilians. Inthe wake of the accords, optimism regarding El Salvadors future

was widespread.

4 The human suffering during this period defies imagination. Accord-ing to the report by the Commission for Historical Clarification,charged under the peace accords with establishing the truth aboutGuatemalas violent past, more than 200,000 Guatemalans were killedor disappeared over the course of the conflict. In addition, hun-dreds of villages were destroyed and 1.5 million people were inter-

nally displaced or sought refuge in Mexico. Guatemala: Memory ofSilence, 72; Spence et al. Promise and Reality: Implementation ofthe Guatemalan Peace Accords, 4.

5 ONUSAL, Proceso de desmovilizacin del personal del FMLN.

6 Aguilar, Un movimiento de mujeres embrionario.

7 Interview with Luz Mndez, Guatemala City, April 4, 1997.

8 Spence et al., Promise and Reality, 12.

9 United Nations, Acuerdo para el reasentamiento de las poblacionesdesarraigadas por el enfrentamiento armado, chapter II, article 2.

10 Ibid., chapter III, article 8.

11 United Nations, Acuerdo sobre identidad y derechos de los pueb-los indgenas. chapter II, article 1.

12 United Nations, Acuerdo sobre fortalecimiento del poder civil yfuncin del ejrcito en una sociedad democrtica, Article 59. Theinternational climate during the peace negotiations played an im-portant role. For example, discussions on the Socioeconomic and

Agrarian Accord coincided with the 1995 Fourth World Confer-ence on Women in Beijing. Having gender issues on the forefrontinternationally made it easier to incorporate provisions favoring

womens rights into this accord. According to Luz Mendez, a keyfemale negotiator, efforts to put gender equality on the agenda werelegitimized and strengthened when women pointed out to their malecolleagues that the international donor community, which supportedthe peace process financially, was strongly in favor of womens rights.

13 Interview with Nidia Daz, San Salvador, March 9, 1994.

14 Interview with Lorena Pea, San Salvador, July 29, 1993.

15 Luciak (2001), chapters 2 and 3.

16 Demandas de las mujeres y acuerdos de paz, 11.

17 Spence et al., Promise and Reality, 14.

18 Report, Peace Agreements as a Means of Promoting Gender Equal-ity and Ensuring Participation of Women, 24-26.


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PROVISIONS IN BOUGAINVILLES RECENTLY ENDORSED CONSTI-

TUTION take into account the role of women in society, including

provisions for protecting customary matrilineal land ownership.

Yet, the drafting process and resulting document do not aggres-

sively advocate for womens political participation. Implementa-

tion through interpretation and enforcement will ultimately be

as important as the document itself. In order for the new consti-

tutional provisions to be effective, implementation will have to

balance diverse interests, sometimes overcome traditional gov-

ernance by community norms and customs and confront other

legal and extra-legal problems facing women.

NOT JUST REPRESENTATION: ENSURING WOMENS INFLUENCE IN POST-CONFLICT BOUGAINVILLE


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Opportunity for ChangePost-conflict societies present an exceptional oppor-

tunity for change, especially as formerly marginalizedgroups are able to assert new roles for themselves. While

the rupture caused by conflict almost always brings un-speakable devastation, it also opens space for new rulesand structures to emerge.1 Women, often marginalizedand victimized during conflict and especially vulnerablein its aftermath, may find themselves empowered by thechanges conflict wreaks.

Indeed, the post-conflict reconstruction phase mayprovide a critical window of opportunity for the eleva-tion of womens standing in virtually every aspect ofsocietysocial, economic, political and legalthat thetransformation following conflict permeates. As the cor-nerstone of the nascent legal framework intended to

drive that transformation, a constitution can help influ-ence the tone and course of change by ensuring thatemerging needs of the people, including gender equal-ity, are incorporated into an updated legal structure.

Some recent literature on post-conflict reconstruc-tion highlights what is sometimes called constitution-building, emphasizing a participatory and inclusive pro-cess for creating a document that respects the rights ofall members of society, the importance of a balance be-tween a progressive reform agenda and societal owner-ship and buy-in of the result.2 Accordingly, the consti-tutional drafting process and the document it produces

can significantly influence the position of women in so-ciety.3

It is also essential to recognize that legal and consti-tutional tools in isolation are inadequate to bring aboutchange. Womens involvement in drafting a constitutionand recognition of women as a constituency in the con-stitution itself are important. However, they are ulti-mately insufficient to guarantee womens rights or pro-tect and enhance their position and status.

Not Just Representation: EnsuringWomens Influence in Post-

Conflict BougainvilleREBECCA LINDER

At the outset, all provisions in the constitution mustbe carefully drafted to ensure that: the interests and sta-tus of women are protected; avenues are created to bringwomen more fully into the political, social and economic

mainstream; and no obstacles are constructed to exist-ing avenues of participation. Moreover, even the mostenlightened constitution will do little to influence thesituation of women if it is disregarded, made irrelevantby traditional customs or not rigorously implementedbecause of a weak legal system. Mere token representa-tion will not lead to real political influence, which is thecrux of empowerment on the road to gender equality.4

Thus, what happens after the final document is rati-fied may be the most crucial indicator of how a newconstitution will affect womens rights. Will womensinvolvement in the drafting process and recognition as a

constituency in the constitution lead to genuine advancesin their legal status in society? Or, will these measuresturn out to be aspirational lip service? Can constitu-tional catalysts allow women to transcend limitationsplaced on them by extra-legal realities? This article ex-amines the possible enhancement of the societal statusof women in the Autonomous Region of Bougainvilleas the island emerges from conflict, discussing the con-stitution-building framework, gender relevant provisionsof the document and other constitutional and relatedissues.

The Conflict and Its Impact on Women The Constitution of the Autonomous Region of

Bougainville was created following a conflict betweenthe government of Papua New Guinea (PNG) and vari-ous factions on the island province of Bougainville.Open conflict broke out in 1988 after years of growingdisaffection among the Bougainville population with thePNG government.5 The dispute soon transformed intofull-fledged hostilities between a rebel movement seek-


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22 SUMMER 2005

ing Bougainvilles independence, the PNG governmentand factions loyal to the PNG government.6

Nine years of raging conflict affected the entireBougainville population profoundly. Prior to the con-flict, Bougainvilles women, traditionally the landown-ers in a largely matrilineal although patriarchal culture,were already experiencing the erosion of their influenceas a collateral consequence of development.7 During theconflict, violence increased and women suffered par-ticularly.8 Many Bougainvillean women fled to the jungleand adapted to life there.9 Many women were victimsof rape, their limited access to healthcare resulted inhigher maternal mortality and there was an increase inthe number of single mothers.10

Despite the impact the conflict had on Bougainvilleswomen, and the varied roles they may have taken on asa result, the islands women came to be instrumental in

the peace process. As early as 1996, 700 Bougainvilleanwomen organized a Womens Forum, which was even-tually transformed into the Bougainville Working Groupthat pressured the Australian government to becomeinvolved in efforts to end the conflict. In 1997, aceasefire, referred to as the Burnham Truce, came intoeffect. During years of negotiations, which produced aseries of peace accords, women continued to help drivethe process and a final peace agreement was signed onAugust 30, 2001.

The influence women and womens groups exertedin halting the conflict, and in continually pressing the

peace process forward,11 provides essential context forthe analysis of their import in the constitution-buildingprocess, their recognition in the Constitution and theirstatus in Bougainville society.12 When confronted withthe effects of violence, Bougainvillean women mobi-lized and effectively sought non-violent means forchange. Historically absent from Bougainvilles politicsdespite womens traditional cultural prominence, thepolitical process in Bougainville was usually reserved formen13women capitalized on an opportunity to becomemore involved.

The Constitution: Development and DocumentThe 2001 Bougainville Peace Agreement grantedautonomy to Bougainville, with an option for a referen-dum on independence that will take place (it may alter-natively be cancelled in accordance with the Constitu-tion) 10 to 15 years after the establishment of the au-tonomous government. The Agreement also laid outguidelines for a constitutional drafting process directingthe establishment of a Constitutional Commission, which, while not required to include women, was to

consult widely with, and be broadly representativeof the people of Bougainville. The Agreement also calledfor the establishment of a representative ConstituentAssembly.14

Consistent with those guidelines, Bougainvilles In-terim Provincial Government and the BougainvillePeoples Congress established a Constitutional Commis-sion of 24 members, which included three women anda Constituent Assembly, which included eight women.15

With the exception of one rebel faction, which contin-ued to occupy a no-go zone in the area where theconflict originated, all rebel groups also eventually joinedthe peace process and the constitution-building process.16

The Constitutional Commission drafted constitu-tional proposals for consideration by the ConstituentAssembly. The Constituent Assembly then debated andamended the drafts before submitting a final draft to

the PNG government, which endorsed it as consistentwith the PNG Constitution. The final Constitution wasapproved on December 22, 2004, and was published inthe PNG National Gazette.17

Bougainvilles approved Constitution uses malegendered language throughout, stating that words im-porting the masculine gender include females, but itdoes contain special provisions for women.18 In addi-tion to those provisions mandating representation andinvolvement of women in the new government, theConstitution lists several Objectives and Directive Prin-ciples, which include fair representation of women and

other marginalized groups and welfare for widows, chil-dren, orphans, the aged and the disabled.19 It also as-serts that the role and welfare of women in traditionaland modern Bougainville society shall be recognized andencouraged and shall be developed to take account ofchanging circumstances.20

The Objectives and Directive Principles are non-justiciable (i.e. they do not confer rights giving rise tojudicial remedy), but are meant to guide the governmentin applying and interpreting the Constitution, in makingand implementing policy decisions and in making laws.The president must report to the House of Representa-

tives on the realization of these principles, and basedon this report, the House may contemplate appropriateaction to make implementation more effective.21

In terms of political participation, the Constitutionstipulates that the House of Representatives must in-clude three female members, representing the North,Central and South regions of Bougainville, to repre-sent the interests of the women of the Region.22 Other women may also be elected to the House. TheBougainville Executive Council is to include one female



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member of the House of Representatives nominatedby the other women members of the House and ap-pointed by the president.23 A Caretaker BougainvilleExecutive Council, which will function as an Executiveuntil appointments to the permanent Executive Coun-cil are made, is also to include a woman member of theHouse of Representatives. A Senior Appointment Com-mittee will have one female representative, whose se-lection will be determined by law. There are no specialprovisions for inclusion of women in the Judicial branch,nor is there language for the creation of a Ministry ofWomens Affairs.

Quotas for Women: Not EnoughThe Bougainville Constitutions guarantees of po-

litical participation by women represent a positivechange; the Constitution of Papua New Guinea, of

which Bougainville remains a part, mentions womenonly once, calling for equal participation by womencitizens in all political, economic, social and religiousactivities.24 The approved Constitution for the Autono-mous Region guarantees women three out of 39 totalseats in the legislature. While a step forward, especiallyconsidering early drafts of the Constitution guaranteedonly one female representative, this is still a small per-centage, and one falling far short of gender equalitythroughout the government.25 Bougainvilles quota alsofalls short of the UN goal of 30 percent participationby women.26

In some instances, quotas for women like those in-cluded in Bougainvilles Constitution are able to pro-mote representation in excess of the minimum required;in others they function more as window dressing thantrue inclusivity. Bougainvilles guarantee of less thaneight percent of women in the legislature is not a veryaggressive quota. To ensure womens influence, bothpolitically and in other realms, and to break down gen-der barriers, more than token representation is needed.Otherwise, quotas risk confining womens participationto representation of only womens issues and limitingtheir political opportunity. For instance, the requisite

three women on the Bougainville Constitutional Com-mission were nominated to represent womens interestsin their three regions; none were chosen to representany other interests, groups or organizations.

Furthermore, representation does not guaranteeinfluence. Leaving aside whether women, in fact, willprove to be the best advocates for womens rights, gen-der awareness for both men and women decision-mak-ers is necessary to advance the position of women. Andthose with such awareness must wield real power.27

It is apparent that Bougainville as a whole can ben-efit if women can move beyond these quotas politicallyand gain influence in all aspects of society. PerhapsBougainvilles flourishing NGO community, of whichwomen are a large part, bodes well for the continuedinvolvement of women in society and may translate intotheir increased involvement in political life.

Land Issues and RightsLand ownership, a traditional source of womens

power, is also integral to womens broader influence inBougainville.28 All of Papua New Guinea, includingBougainville, is undergoing land reforms that impact thecountrys development and traditions. The majority ofPNGs population survives on subsistence farming, cur-tailing the availability of land for other uses. Pressuresfor land to be made available for cultivation or mining

are forcing an ongoing, often disruptive, transition to acash economy, further contributing to land shortages.29

PNGs people are closely tied to and dependent ontheir land, both for livelihood and as a means of pre-serving kinship ties and community structure. Forwomen in Bougainville, land is especially important be-cause of the high concentration of matrilineal tribes inwhich land is passed down from mother to daughter. InPapua New Guinea as a whole, only three percent ofthe land is alienated, while 97 percent remains undercustomary control according to unwritten laws and tra-ditions and the population is generally wary about gov-

ernmental control of customary land.30 Matrilineal in-heritance could diminish with formalization of landownership because formal registration tends to result inmen holding the official land title.31

Bougainvilles Constitution specifically addressesthese contentious issues. It mandates that the new gov-ernment develop a land policy that provide[s] for theprotection of the customary powers of heads of matri-lineal and patrilineal societies and of customary ownersin relation to customary land.32 The government is alsoto recognize traditional systems of government, the rolesand responsibilities of traditional chiefs and other tradi-

tional leaders and of the clan system wherever practi-cable and possible.33 Finally, in managing and prevent-ing damage to natural resources, the government ofBougainville is required to direct the laws and policiestoward the recognition of customary rights.34

These provisions outline what could be an equitableland policy if interpreted and implemented in a way thatis sympathetic to women, but that interpretation will beimpacted by tensions between respect for indigenouspopulations and their customs and traditions and the


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economic pressures of development, sustainability andefficient land use. More specific terminology in the Con-stitution could have ensured protection of customaryland ownership; the way the land policy is phrased re-lies heavily on finding a balance between developmentand respect for local populations.

The Constitutions Role in Society

Interpretation and enforcement of the Constitu-

tion, as well as mechanisms for implementing the ob-

jectives, principles and processes laid out in its provi-

sions, are as important as the document itself, espe-

cially to overcome lingering resistance to bringing

women further into the societal mainstream. To maxi-

mize the Constitutions catalytic impact and adhere to

the promises of its ambitious provisions, Bougainville

will need public support of the Constitution and in-creased governmental capacity, particularly in the judi-

cial sector.35 International support and reconstruction

efforts must take this into account.

To guarantee the Constitutions relevance, strongpublic support and public knowledge are needed. Cur-

rently, despite wide consultations by the Bougainville

Constitutional Commission and the Constituent Assem-bly during the drafting process, public knowledge of

and about the Constitution is limited. This is changing

somewhat: there is now a public awareness program inthe lead-up to the elections scheduled for May and June

of 2005. The Constitution was published in PNGs of-ficial National Gazette following its approval, and cop-ies of the gazetted Constitutions have been printed.

But they are in English, while much of the population

speak indigenous languages or Pidgin. Additionally, dis-tribution remains a problem due in part to the dearth

of reliable communications systems in Bougainville. The

length (over 200 pages) and opacity of the Constitu-tion will likely also hinder the degree to which

Bougainvilleans are informed about its existence or

contents.36 In an area traditionally governed by com-munity norms and customs, lack of knowledge about

the Constitution is likely to limit its acceptance by thepopulation.37

Successful implementation of the Constitution and

its provisions ensuring equal standing for women will

require a functioning independent and impartial justicesystem and a flexible new legal and judicial framework.

A severe lack of capacity in these areas (trained judges,

lawyers and prosecutors) may force reliance on tradi-tional mechanisms for justice enforcement.

LimitationsBecause the Bougainville Constitution was approved

in December 2004, it is too early to analyze its long-term effects, including its impact on the position ofwomen in Bougainvillean society. Conflict does offeropportunities, but violence never entirely wipes the slateclean. Indeed, patterns, including discrimination, whichpreceded or perhaps even led to the conflict, may bereplicated. Similarly, long-held traditions can be prod-ded by institutional reforms, but if individual men andwomen prefer to adhere to their customary ways, realchange will not take place. Bougainvilles patriarchal so-ciety, despite the prominence of matrilineal inheritance, will not be transformed unless a majority of citizensdesire and advocate for that transformation. While it isevident that many educated women now have an in-creased opportunity to participate in public life, this

opportunity must not be limited to the elite and privi-leged. The many women who do not participate in poli-tics still need to have opportunities available to them.

Arguably, some of the most severe problems af-fecting womens lives are beyond the reach of constitu-tional and legal measures. For example, improving theeconomy in Bougainville, re-establishing a vibrant edu-cation system, stopping the spread of HIV/AIDS andminimizing the acceptability of domestic violence areall integral to womens well-being. Transition from sub-sistence living, with separate language groups and tribes,to a more integrated and developed economy is a chal-

lenge even for a society not scarred by almost a decadeof violent conflict.

Citizens in Bougainville have the opportunity toremake their country in a way that exceeds regional, evenglobal, expectations; the Constitutional framework is inplace to capitalize on the entire populations talents andstrengths. With sufficient support from its citizens andthe international community, the Bougainville Consti-tution can become an essential tool for improvementof the lives of all Bougainvilleans. Ideally, a solid Con-stitutional foundation will also promote and ensurewomens standing and influence and prove flexible and

adaptable enough to allow women, thus empowered, topositively impact even some of those problems thatappear beyond the Constitutions reach.

REBECCA LINDERis a researcher for the Post-Conflict Re-construction Project at the Center for Strategic and InternationalStudies, where she has most recently worked on projects measuringreconstruction efforts across the five sectors of security, governance,

social well-being, economic opportunity and justice in Iraq and



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Afghanistan. Her work in these areas has included fieldwork inAfghanistan and co-authorship of two policy briefs assessing thereconstruction effort. Other research areas include Sudan and SriLanka. Ms. Linder holds a degree in philosophy from WilliamsCollege.

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ENDNOTES1 Tonissen, 28.

2 U.S. Institute of Peace Special Report 107; Srensen, Women andPost-Conflict Reconstruction, 12.

3 The report of the

Documents

Women in Constitution