Part 1

In a society of values and in moral vocabulary, respect for human rights is seen as a matter of morality and practice of ethical standards. Rights and justice can be asserted, demanded or stood upon. The obligations in question having been imposed by statutes are expected to be performed and their non-performance occasion feelings of indignation, resentment and disappointment.

Most pertinent in public policy and international human rights legislations, protocols and declarations that includes for instance, Article 1 of the Universal Declaration of Human Rights states that “all human beings are born free and equal.”

The Solemn Declaration on Gender Equality in Africa reaffirms the principle of gender equality as enshrined in Article 4(1) of the Constitutive Act of the African Union. In chapter 7, member states declare “to actively promote the implementation of legislation to guarantee women’s land, property and inheritance rights including the right to housing”.

The African Charter on Human and Peoples Rights (ACHPR) was domesticated in the Gambia in form of the African Charter on Human and Peoples Rights. This Act makes the provisions of the Charter enforceable in any court of law in The Gambia. Article 18 of the ACHPR states that “the State shall ensure the elimination of every discrimination against women and ensure the protection of the rights of women….”

Article 21 of The Protocol to the Charter on Human and Peoples Rights on the Rights of Women in Africa states that “a widow/widower shall have the right to inherit each other’s property in the event of death whatever the matrimonial regime, to continue living in the matrimonial home.” Sub paragraph (2) of the above states that “women and girls shall have same rights as men and boys to inherit in equal shares their parents’ properties.”

Although Article 7 of the Protocol to the Charter on Human and Peoples Rights on the Rights of Women in Africa provides for both parties of a marriage to enjoy equal rights within and after the marriage, in issues of custody and access to an equitable share of the joint property deriving from the marriage, this is not the case in The Gambia.

Three forms of marriages are recognized in The Gambia – Customary, Islamic and Marriage under the Act. The reality of women married under Customary and Islamic law has not yet been affected by the protocol. A woman married under customary law is entitled to be provided with a home by her husband if the marriage subsists. She is also entitled to use her husband’s property but cannot dispose of it as her own. The right to be provided with a house by her husband terminates upon divorce.

Upon divorce, a woman married under customary law has no claim over a house jointly owned by her husband. Her position is not helped by the provisions of the Matrimonial Causes Act in respect of maintenance and settlement of property, which expressly excludes the application of its provisions to marriages under customary and Islamic law.

However, in the case of women married under the Marriage Act, where she can produce documents showing she contributed to the property, she is entitled to the part of the property commensurate to her contribution. Many women are denied custody and access to their children. Among those under Islamic law, child marriage is still prevalent. The occurrence of child marriage is common.

In most parts of The Gambia, female children are still discriminated against on issues of inheritance. Certain traditions and customs permit the son or the brother of a deceased person to inherit his property to the exclusion of his female children as discriminatory, it was expected that discrimination against women and the girl child on the issue of inheritance would end. 

The provisions, protocols, charters and conventions recognizing and guaranteeing women’s human rights in The Gambia promises a beautiful future for women – provided the government fulfils its obligations considering the current realities.

The Gambia government shall redeem its image and show its commitment by domesticating all Protocols, Charters and Conventions relevant to women’s rights; enact laws on violence against women; reviewing laws on women and the girl child’s property rights and all other laws discriminating against women and girl child; provide adequate budgetary allocations to issues that promote women’s rights and bridge gender gaps by integrating women’s right issues and gender education into the school curriculum.

 By Alagi Yorro Jallow