Alongside CEDAW, the Maputo Protocol ratified in 2005 also serves as a guarantee of gender equality in Senegal. Despite progress, the country still lags behind when it comes to the discrimination of women.
CEDAW is a progressive and thematic text focused on the development and enjoyment of rights of women. The first issue it addresses is discrimination against women. The Convention, in its Preamble, explicitly acknowledges that such discrimination violates the principles of equality of rights and respect for human dignity. When developing the text of the Convention, which coincided with the approach called Women in Development (WID), the State Parties were of the view that the problem of discrimination should be tackled as it prevented women from participating in social, political and economic life by pushing them into the background. The United Nations General Assembly therefore adopted CEDAW in Resolution 34/180 of December 18th 1979.
Since its entry into force, CEDAW has been a leading convention on protection and promotion of rights of women. Several international and regional texts were inspired by CEDAW, such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa or Maputo Protocol. The Maputo Protocol is a regional agreement safeguarding the rights of women, including the right to participate on an equal footing with men in political processes and social life, greater autonomy when making decisions related to health and prohibition of female genital mutilation. As its name suggests, it was adopted by the African Union in the form of a Protocol to the African Charter on Human and Peoples’ Rights in Maputo, Mozambique, on 11 July 2003 and entered into force on 25 November 2005. The treaty imposes constraints on countries which ratified it. In June 2007, according to the African Union, 43 countries signed it and 21 countries ratified it
The Protocol is regarded as the first legislative instrument for the protection of African women against all forms of discrimination. Its 31 Articles form a series of provisions for the protection of specific rights of women and girls in Africa, taking account of the sociocultural environment. Thus, the Protocol condemns and prohibits female genital mutilation, proclaims the right to sexual self-determination and reinforces the rights of married women as it recognizes the equal rights of men and women to possess and acquire property.
Apart from the general problems which women worldwide may encounter, the Maputo Protocol considers the problems African women face which relate to the discriminatory practices violating the universal principle of equality between men and women (levirate marriage, polygamy, legal incapacity in matters of inheritance, etc.); violations in relation to ancient traditions (forced marriage, scarification, genital mutilation, etc.). The fact that the Maputo Protocol is essentially structured around the elimination of all forms of discrimination and violence against women should logically have led to genuine equality between men and women in Africa
Senegal ratified CEDAW in 1985 and the Maputo Protocol in 2005. These international and regional provisions influenced the evolution of legal status of Senegalese woman. Therefore, due consideration should be given to the place of the Protocol under Senegalese law and the its contribution to the protection of the rights of Senegalese women.
1. The connection between CEDAW and the Maputo Protocol
CEDAW is admittedly a leading convention, but it also served as an inspiration for a number of other regional documents complementing one another, such as the Maputo Protocol.
Adopted in 1979, the CEDAW was the main international instrument on the rights of women. Although it recognized several rights, it remained focused on non-discrimination. An increasing interest in human rights at the global level and acceleration of the international agenda on the rights of women strongly influenced by the 1995 Beijing Platform reinforced the legal framework for the rights of women. It is in the context of the improvement of the legal mechanism for the rights of women that the adoption of the Maputo Protocol, took place. Just like CEDAW, the Protocol guarantees several rights, including civil and economic rights contributing to the social well-being of women. It complements the African Charter on Human and Peoples’ Rights adopted in Nairobi in 1981 and constitutes at the same time the main instrument for the protection of human rights of African woman.
The Maputo Protocol requires the signatories to guarantee women fundamental rights, including an extensive catalogue of civil and political rights as well as economic, social and cultural rights (the rights to life, integrity and security of the person, prohibition of discrimination, the right of access to justice, the right to participate in public life, the right to education, the right to social protection, the right to health, right to food security, right to adequate housing, etc.); prohibition of harmful traditional practices (excision, levirate marriage sororate marriage, child marriage, forced marriage, etc.); special protection of women in armed conflicts. The Protocol represents significant progress when it comes to reproductive rights.
These instruments are complementary but differ in scope and approach. While CEDAW is focused more on global issues (poverty, development etc.), the Maputo Protocol approaches issues specific to women in Africa. Both are oriented at ending discrimination against women but the Maputo Protocol also relies on the notion of equity and represents a more guided and precise mechanism. The synchronised use of both instruments guarantees the best chance for overcoming issues and ensuring a better future for African women.
2. The progress made in Senegal
Senegal implemented the Constitution of 22 January 2001, which recognizes and guarantees equality between men and women and specifies domains in which that equality cannot be subject to any derogation whatsoever - notably the right to equal representation, right to property, equal salary treatment, equal access to land, education, etc.
The most recent breakthrough were the June 2013 amendments to the Nationality Code of 1961 allowing women to transfer their nationality to their husbands and children. The provision of the Family Code, which stipulates that domicile of a married woman is at her husband’s place or that established by her husband, which equated woman with minors, has been removed.
The following legislation illustrates positive changes in Senegal:
- Law on the Suppression of Violence against Women (1999),
- Law on Equal Medical Care for Children and Spouses (2006),
- Amendments to the General Tax Code, which provide for equal treatment in taxation;
- The Parity Law enacted in 2010, which relates to the parity in electoral and semi-electoral bodies imposing an equal number of men and women on the electoral lists. In 2019, women won 43% of seats compared to 22% of seats won in 2007.
Women have been appointed to positions of power within the following authorities: Presidency of the Economic, Social and Environmental Council (in 2013, then in 2019), Deputy Chairmanship of the Parliament, General Directorate of the National Police (in 2013), the Governance of a Region (2013) and Presidency of the National Office Combatting Fraud and Corruption.
3. Legal discrimination
Despite the mentioned progress, serious discrimination still remains both in law and practice.
Family Law: According to the 1972 Family Code, the marriageable age for girls is 16 and for boys 18. Women can remarry only following a waiting period ranging from 3 months to 300 days starting from the dissolution of the previous marriage. The practices of dowry, levirate, sororate and polygamy are allowed. The husband establishes a place of residence, has the status as head of the household and has marital and paternal power. The latter means that husband has the rights of custody, responsibility to guide children, sustain them and raise them. A draft law introducing parental authority, instead of paternal power, and allowing an employed woman to take care of her family is currently under development.
Nationality Law: Amendments to the Nationality Code are not sufficient as the new law introduces discrimination against Senegalese women. In particular, a foreign husband of a Senegalese woman must apply for naturalisation and provide evidence that he has lived in Senegal for five years in order to obtain Senegalese nationality, whereas a foreign woman who marries a Senegalese man can become Senegalese national at the moment of the celebration of marriage.
Inheritance Law: The inheritance rules of Muslim law flagrantly discriminate against women. This is the reason why the organisations of civil society seek the removal of any reference to religious law from civil law for being discriminatory against women in many aspects.
Labour Law: When it comes to the matter of employment, the Labour Code prohibits women from pursuing a variety of professions and night work in some workplaces. Women can only perform «appropriate jobs», which means those that «are not beyond their strength». Even though the defenders of women’s rights agree that pregnant women should not perform jobs which could be harmful to their health or the health of their unborn children, and CEDAW allows Member States to take special measures to protect pregnant women, these special measures restricting women’s access to employment should not be imposed on all women.
Abortion: Elective termination of pregnancy is prohibited under the Reproductive Health Law. Such a ban can be lifted only if three doctors state that the life of a woman is in danger and upon authorization of the prosecutor. Pursuant to Article 305 of the Criminal Code, a women undergoing abortion faces up to 2 years’ imprisonment and a fine. The Maputo Protocol, obliges State Parties to allow pregnant women and girls to abort in cases of rape, incest or sexual assault and where the health of a woman is in danger. In 2014, a multidisciplinary committee was established in partnership with the Directorate for Health of Mother and Child of the relevant Ministry. It includes 18 associations which advocate the enactment of a law in Senegal allowing abortion in cases of incest and rape.
Violence: The Amendments to the Criminal Code, which were enacted in January 1999, stipulate sever penalties for violence against women. That act defines and penalizes new offences, such as incest, rape, sexual harassment, female genital mutilation and domestic violence. However, the classification of rape referred to in Article 320 of the Criminal Code as a mere misdemeanour is not sufficient. Rape is one of the most serious infringements and as such should be classified as a crime in the context of an upsurge in rape in Senegal. In May 2019, three cases of rape, two of which followed by murder, were reported in a single week. As a result of an upsurge in violence against women, on June 3rd 2019, President Macky Sall informed the Minister of Justice of his request for a bill criminalizing rape and paedophilia.
Moreover, being aware of legal discrimination, the Senegalese State established a Committee in 2016 to revise all discriminatory laws. The Committee was entrusted with the task of examining the national legislation and proposing revisions in order to harmonise them with international conventions ratified by the Senegalese State. Thus, all the recommendations for modification of the Family Law aimed at eliminating discrimination against women in law and practice, have already been the subject of work of the Technical Committee.
However, although the report of the Committee has been submitted to the State authorities, the expected amendments are taking a long time to come into effect.
4. Discriminatory practices
Violence: Despite the fact that domestic violence has been punishable since 1999, it remains socially acceptable and, moreover, a number of women are not aware of the fact that it is prohibited. Although there is a law prohibiting all forms of female genital mutilation, the practice of FGM is quite widespread. On the national level, 25 percent of women between 15 and 49 years of age are still victims of FGM. This percentage however is not unified across the country and reaches up to 87 percent in some regions – especially in border regions. Forced marriages, the prohibition of which is prescribed by Article 108 of the Family Law, as well as child marriages are still practiced in Senegal.
Obstacles to land ownership: Local customs constitute an obstacle to the application of the provisions of the Constitution and Family Code which enable women and men to have equal access to land ownership. The inheritance rules laid down in the customary provisions prevent women from inheriting land. Two thirds of men say they inherited the land in their possession from their parents. As a result, women do not even hold 2% of the land (IPAR, 2014).
Obstacles to access to education: The law stipulates compulsory and free education of children between 6 and 16 years of age in public institutions but these provisions are not sufficiently complied with. Although the rate of school enrolment of girls is higher than that of boys in primary education, the opposite trend is observed in middle- and secondary schools. Such a low rate of school enrolment of girls may partially be explained by economic reasons and early marriages.
Underrepresentation of women in public and political life: Despite recent progress in this area, important progress still needs to be made. During the last local elections held in June 2014, the law on parity was violated. The compositions of the rural, municipal and departmental councils were not gender balanced. As an example, in a country with 103 municipalities, only 6 women hold the office of mayor.
The assessment of the CEDAW and Maputo Protocol shows mixed results, since discriminations still persist both in law and practice despite the progress made. Senegal ratified a number of international and regional treaties, conventions and protocols, such as the CEDAW and Maputo Protocol, yet a number of rights accorded to women still remain theoretical as a result of a lag in implementation between such instruments and national laws.
Despite the existence of a punitive mechanism in case of some offences committed against women, the prescribed sanctions are not imposed because of a lack of cooperation between judicial and extrajudicial actors, lack of supervisory and reporting bodies and the fact that men and women themselves are not aware of these rights.
 The Women in Development approach (WID), as its name suggests, aims at integrating women into the existing development process without calling into question the development model in which they are supposed to be integrated. That approach is linked to the Anti-Poverty approach which, by recognizing the role of women in production, aims at improving their living conditions through the small-scale income generating projects, in connection with their traditional role.
 Levirate is a type of marriage in which the brother of a deceased man marries his brother’s widow to maintain his line. Children from that remarriage have the same status as the children of the first husband.
 Scarification is the practice of superficial cutting into human skin.
 Sororate marriage is a type of marriage in which a husband engages in marriage or sexual relations with the sister of his wife, usually after the death of his wife or if his wife has proven infertile