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close this bookBringing Equality Home - Implementing the Convention on the Elimination of all Forms of Discrimination against Women (UNIFEM, 1998, 45 p.)
close this folderI. CONSTITUTIONS
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Colombia

The Colombian Government ratified CEDAW in 1981, and women's NGOs quickly began exploring ways to use it in their advocacy work. By the mid-1980s, CEDAW had become a central part of campaigns for women's human rights in Colombia.

At the same time, demands were building in Colombia for constitutional reform. It was hoped a new constitution would help move the nation past the period of violent instability it had been experiencing. The President of Colombia invited all sectors of Colombian society - including "feminists and women's organisations" - to bring their reform proposals to the working groups that were developing the new constitution. In response to this call, women's NGOs made a series of proposals about women's human rights, the main proposal being that CEDAW principles should be written into the constitution.

The legislative assembly began drafting the new constitution out of the collected reform proposals in 1991. Women's groups were determined that their concerns would not be overlooked. NGOs from across the country decided to unite in a single umbrella organisation, for the first time ever, to frame a strategy that would keep women's human rights high on the constitutional agenda. In April 1991, 34 women's groups issued a statement that appeared in one of the country's leading newspapers. It reminded the assembly that a truly democratic constitution must respect women's rights and needs. It also listed their demands, starting with the incorporation of CEDAW principles. The following month, the Women and the Constituent Assembly National Network (the Network) was officially formed; soon it grew to include more than 70 women's NGOs from across Colombia.


Nuns rally outside the Constituent Assembly in Cambodia ©UN Photo 186175/P. Sudhakaran

MarĂ­a Isabel Plata and Adriana de la Espriella, of PROFAMILIA, explain why CEDAW was so useful for women trying to influence the shape to be taken by the new constitution:

"The strengths of the proposals advanced by the Women and Constitution Network lay not only in their recognised support by the women's organisations, but in the fact that they emphasised that the principles embraced in their proposals were mandates contained in international human rights instruments, such as CEDAW. They won legitimacy by being framed as internationally recognised human rights provisions. In this case, the use of international human rights language proved to be an effective strategy for introducing women's rights into the constitution, taking advantage of the fact that Colombia is a country that is constantly scrutinised by the international community for its compliance with human rights principles". ("CEDAW, Colombia and Reproductive Rights", at page 2)."

The Network's efforts were successful. Not everything they advocated appeared in the final draft, but the Colombian constitution includes some of the most detailed and substantive guarantees of women's human rights in the world.

One of the characteristics of CEDAW which the women's NGOs found especially valuable was its real, concrete, and substantive vision of women's equality. The Convention requires States to take measures to bring about substantive, actual equality between women and men, not just formal, 'paper' equality. For example, CEDAW defines discrimination not just as a legal distinction between women and men, but as any form of treatment that has the effect of "impairing or nullifying the recognition, enjoyment or exercise by women - of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field" (CEDAW, article 1). Equality is measured on the basis of women's actual ability to exercise and enjoy their human rights. For this reason, the Convention also provides that temporary affirmative action measures will often be required, and should not be understood as discriminatory - while they do, on paper, privilege women over men, their ultimate effect is to establish a state of greater equality between the sexes.

The Colombian constitution includes several provisions that reflect CEDAW's substantive vision of equality. For example, article 13 of the Colombian constitution guarantees legal equality between women and men not merely by prohibiting discrimination, but also by obliging the Government to actively promote the conditions needed to make legal equality real and effective. The Government also has an obligation to adopt affirmative action-style measures favouring disadvantaged groups to remove the effects of past discrimination. The same approach is taken in article 40, which deals with political representation. It provides that the State must "guarantee the adequate and effective participation of women in the decision-making levels of Public Administration."

The constitution also incorporates further guarantees of women's equality that parallel the provisions of CEDAW. For example, article 42 states that "family relations are based in the equality of rights and duties of couples and in reciprocal respect among all its members" (CEDAW, article 16), and it provides that the State must punish "any form of violence within the family." Article 42 also guarantees the right of couples to "freely and responsibly decide the number of their children" and guarantees State assistance and support to women during pregnancy and after birth (CEDAW, articles 16 and 12).

Finally, the constitution created an enforcement mechanism that individual women can use. A Constitutional Court was set up to hear petitions brought by citizens about violations of their rights. It has the power to make an "order of protection" if the petitioner shows that her rights are jeopardised by Government action or inaction. This court made a ground-breaking decision in 1992 in response to a petition brought by a female victim of domestic violence. Her husband's actions were not criminal, according to the Colombian penal code, domestic violence was seen as a private matter that did not concern the State. The court found that the absence of legal recourse violated her rights to life, and to integrity and security of the person. Even more important, the court established the principle that the State has a positive obligation to secure protection for women and prevent husbands from continuing to subject them to violence. The police and the Institute of Family Welfare were ordered to take immediate steps to protect the petitioner.

The national women's Network created to reform the constitution has continued to grow since its inception, and other successes have followed, including the introduction of a national policy on women's health and further constitutional court decisions enforcing women's human rights.