An Overview of CEDAW and CAT and Sexual Rights

An Overview of CEDAW and CAT and Sexual Rights

An Overview of CEDAW and CAT and Sexual Rights

Convention on the Elimination of All Forms of Discrimination Against Women is an international treaty adopted in 1979 by the United Nations General Assembly. It was instituted on 3 September 1981 and has been ratified by 189 states.

The CEDAW is viewed as ‘the cornerstone of the structure of the UN to help build a structure of internationally agreed strategies, standards, programmes and goals to advance the status of women worldwide’.[1]

The CEDAW is basically a treaty for the protection of women in a male-dominant society from discrimination on the basis of their gender.[2] Most segments of Nigerian societies are riddled with cultural practices and laws that place women on a lesser pedestal than their male counterparts.[3]

The CEDAW holds a huge potential of being invoked to assert the necessity of equal treatment and non-discrimination on the grounds of sex. Obliging state parties to eliminate discrimination, against women, it provides that ‘state parties condemn discrimination against women in all its forms, agree to pursue by all means and without delay a policy of eliminating discrimination against women.[4]

CEDAW calls on states to explicitly affirm the principles of the equality of men and women in their constitutions and other vital legislative documents in the hope that the institutionalisation of gender equality will eventually lead to the elimination of discrimination against women around the world. Interestingly, Nigeria is also a state party to the CEDAW, having ratified the treaty.[5]

Little attention has been given to the rights available to sexual minorities under the CEDAW, probably because of the gender-sensitive nature of the treaty. Lesbianism, an expression of sexuality practised by women, is a component of the LGBT grouping and, by compound extension, sexual minorities.

CEDAW has made anti-discriminatory provisions in article I and identified ‘sex’ as a basis of discrimination, which may extend to discrimination against women on the basis of their sexual orientation as lesbians or bisexuals.[6] It will amount to a violation of article 1 of CEDAW when laws are made to criminalise acts of lesbianism or female bisexuality.

Nigeria, being a state party to the CEDAW, is under a legal and moral obligation to adopt the recommendations of the CEDW in respect to other African countries with similar homophobic legislation against women as Nigeria, as the Committee ‘has given the idea a more practical touch in its concluding observations.

CAT

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

The convention requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured. The convention came into force on 26 June 1987 and as of June 2021; the Convention has 171 state parties and Nigeria ratified the convention on 28 June 2001.

Torture has been described as one of the most atrocious violations against human dignity, which destroys the dignity and impairs the capability of victims to continue their lives and their various activities.[7] The acts of torture are as ancient as human history itself; therefore, it is a crime of antiquity.

The CAT is the product of a sustained campaign to respond to growing instances of torture and violence. CAT defines torture comprehensively to mean any act through which bodily or psychological pain or suffering is inflicted on someone with the ultimate goal of forcing information from the victim.

According to CAT, the individual being tortured may be going through the degrading process not because he or she is directly guilty of any offence but by virtue of his or her connection or association with another person suspected of committing an offence.

For an act to qualify as torture, however, it must not flow from the lawful use of sanction, and a representative or representatives of a public institution or authority must be involved.[8] As is the case with the other UN treaties discussed above, Nigeria is also a state party to the CAT. The CAT does not directly mention sexual orientation and LGBT people in its articles. However, the Committee against torture has expressly listed sexual minorities amongst the minority groups that state parties must strive to protect from torture.[9]

The Committee in its monitoring function in a concluding observation on Kenya requested that Kenya should provide information on the measures taken to address the reported discrimination and ill-treatment, including acts of violence, of lesbians, gay, bisexual and transgender persons…indicate whether the State party has repealed any legal provisions that foresee penalties against such persons.[10]

 

American Perspective on Same-Sex Marriage

[1] A E V King, and A B Johnson, Foreword to the CEDAW and its Optional Protocol: Handbook for parliamentarian. United Nations 2003 para 3

[2] Article 1 of the CEDAW clearly defines discrimination against women as ‘any distinction, exclusions or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their mental status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field

[3] E O Ekhator, ‘Women and the law in Nigeria: A reappraisal’ (2015) 16 Journal of International Womens’ Studies 285

[4] Article 2.

[5] Nigeria ratified the CEDAW on 13 June 1985, see http://www.ohchr.org

[6]United Nations’ Committee on the Elimination of Discrimination against Women, Draft of General Recommendation No 28 on the core obligations of state parties under Article 2 of the CEDAW. CEDAW/C/GC/28. 16 December 2010

[7] Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, UN Doc. A/conf. 157/23 12 (July 1993) para 55 (part II)

[8] Article 1 CAT

[9] United Nations, Committee Against Torture, General Comment No 2, ‘ Application of article 2 by state parties’ CAT/C/GC/2, 24 January 2008, para 20 & 21. More so, reports of the UN Special Rapporteur on torture has indicated that LGBTs are victims of torture in various countries of the world. See Born free and equal: Sexual orientation and gender identity in international human rights law (2012).

[10] CAT/C/KEN/QPR/3 para 33

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