A/HRC/4/34
page 22
own power at minimal administrative cost. It is therefore ironic that the continued validity of
gender discriminatory aspects of customary law is today often defended in the name of
anti-colonialism, anti-imperialism and restoration of the “original” culture.
59.
Indirect rule allowed male elders in a position of authority to manipulate customary law
and improve their position at the expense of women and youth as it shifted authority structures
and accountability patterns. In much of pre-colonial Africa, for instance, there were several
layers of authorities based on age group, clans, women’s groups, religious groups, etc. and each
defined custom in its own domain. However, the colonial authorities sanctified only one type of
authority - chiefs - as a native authority under indirect-rule colonialism and thereby placed them
in a privileged position to shape customary law and its codifications in accordance with their
interests.41 Moreover, prior to the colonial conquest, the authority of traditional leaders had
depended on support from the various groups within their own communities, whose diverse
interests they had therefore to take into account. Yet, within indirect rule structures, traditional
leaders now derived their authority largely from the colonial Power, which allowed them to
advance and legally entrench their own interests without having to consider disenfranchised
groups within the communities, including women.
60.
Another common myth is that culture is homogenous and monolithic. Frequently a
dominant, discriminatory paradigm is presented as the only legitimate interpretation, whereas the
diverse voices existing within each culture are silenced, particularly if they are those of women or
other already marginalized groups. The Cairo Declaration on Human Rights in Islam is a case in
point (see paragraph 39 above). The Declaration pretends that there is one homogeneous Muslim
view of Islamic values based on very intransigent human interpretations of the Koran. This
monolithic representation of Islamic culture has been contested by many others including local
human rights activists living in Islamic countries or in exile, reformist clerics and self-proclaimed
Islamic feminists and women’s rights activists.42
61.
Unfortunately, outsiders also buy into the myth of monolithic cultures. State authorities
and donors, for instance, have a tendency to seek out so-called “gatekeepers” - the presumed
authorities within a presumed monolithic community - when they try to enlist individual
community members’ support for human rights initiatives or other purposes such as national
security interests. Contrary to the original intention, this may further undermine the position of
marginalized groups, specifically of women, because self-proclaimed leaders that represent
radical views are empowered. In the Canadian province of Ontario, for example, a minority of
religious leaders campaigned with considerable success on a cultural diversity platform for
“their” communities’ rights to use Sharia law in civil arbitrations if both parties consent. The
Ontario Arbitration Act in force at the time would have arguably allowed for such arbitrations.
41
M. Mamdani, “Political Identity, Citizenship and Ethnicity in Post-Colonial Africa” (2005).
Available at: http://siteresources.worldbank.org/intranetsocialdevelopment/
Resources/revisedMamdani.pdf.
42
Cf. the report of my mission to the Islamic Republic of Iran (E/CN.4/2006/61/Add. 2).
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