Examining Women’s Rights Through The Lens Of Cultural Relativism

Abstract:

Acknowledging the diverse nature of human rights is highly essential to appreciate the potential difference in applicability and acceptance of certain human right laws in various jurisdictions in the world. Before the advent of specific Women’s Rights laws internationally, regionally, and even domestically such as Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Maputo Protocol, and the Women’s Act 2015 in The Gambia, the general laws of the Universal Declaration of Human Rights (UDHR), the Africa Charter, and the domestic constitution all contained a provision prohibiting discrimination in any form. This provision had for long been the strongest basis for the advocacy of women’s rights and gender equality. The establishment of detailed laws on the rights of women represented a major breakthrough in the field of human rights, welcomed, but not without challenges. Depending on the area or region, these laws were received in distinct ways, mostly influenced by the cultural values, societal norms, and traditional practices. This article aims to shed light on the cultural differences across the globe that have impeded the uniform applicability and accommodation of the rights of women, using The Gambia as a case study, while also arguing for a more liberal approach in advocating and implementing women’s rights laws.

Introduction:

An issue affecting women that has long been a practice but vigorously condemned by Women’s rights activists, spurred lately through awareness and advocacy, is Female Genital Mutilation (FGM). Despite the fact that FGM is a threat both to the health and rights of women and girls, it is so grounded in cultures, traditions and patriarchal system that it has proven arduous to divorce. This is one of those instances that make conspicuous the nuance between religious and cultural freedoms, and the rights of individuals to bodily integrity, freedom from inhuman and degrading treatment such as FGM. However, in as much women’s rights is a universal issue, regard must be given to the cultural values of certain societies. This is where the idea of cultural relativism comes to light. To a considerable extent, rights and values need to be interpreted within a cultural context to understand the point of view of the seemingly anti- women’s rights, for instance, FGM, and not judged according to the standards of a different culture. Culture can also demonstrate the way a group thinks, their practices, or behavioral patterns, or their views of the world.

Cultural Relativism asserts the equal validity of all points of view and the relative nature of truth, which is determined by an individual or their culture. In religions like Islam, there is no such thing as gender equality. Moreso, women and girls do not inherit same shares as their male counterparts, and there have been arguments supporting FGM in Islam although the authenticity of the authorities are not verified. Culturally, FGM, is justified in that it has long been practiced as a norm and deeply rooted in tradition, and mainly for the purpose of preserving the fidelity and virginity of young girls and women, and women are not entitled to own certain properties like land. The questions that therefore beg for answers are: can women’s rights be protected without erasing culture? Can cultural relativism and universality coexist? In the subsequent paragraphs, the conceptual framework, the tension between tradition and gender equality, the legal framework, and finally, a reconciliation between tradition and equality, will be dived into before arriving at a succinct conclusion.

Research Methodology:

The approaches employed in this article are primarily comparative, with the use of case study, and analytical. Case laws, statutes, and secondary sources like scholarly work, reports, and remarks from interviews are immensely relied on as sources for this article, centered on the examination of women’s rights in relation to the cultural relativism within the African context. The legal frameworks include: Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Charter on Human and Peoples’ Rights, and the Maputo Protocol. These choices of sources are highly relevant.

This article seeks to strike a balance between the universality of women’s rights, but with respect for cultural identity. Hence the setback of women’s rights remains prevalent in Africa, specific examples will be drawn from The Gambia as a case study.

Conceptual Framework:

This article is built on two central concepts: women’s rights, and cultural relativism. Women’s rights are recognized by Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Charter on Human and Peoples’ Rights (ACHPR), the Maputo Protocol, and the 1997 Constitution of The Gambia, all emphasizing equality, dignity, and freedom from harmful practices.

On the other hand, cultural relativism is grounded in the notion that, “morality is relative to culture” or that “right and wrong vary with cultural norms.”ⁱ Cultural relativists uphold that cultures differ fundamentally from one another, and so do the moral frameworks that structure relations within different societies. In international relations, cultural relativists determine whether an action is ‘right’ or ‘wrong’ by evaluating it according to the ethical standards of the society within which the action occurs.ⁱⁱ

The conceptual framework of this article views women’s rights and cultural relativism as two intersecting yet conflicting paradigms. The analysis will revolve around whether cultural practices can coexist with international women’s rights standards, and whether women’s rights law should cut across all cultures.

 Legal Framework:

Women’s rights are recognized and protected internationally, regionally, and domestically in The Gambia. At the international level the Universal Declaration of Human Rights (UDHR) 1948 was the first to set the foundation, affirming the equality of all persons, and the right to dignity without distinction even on the basis of sex by virtue of Articles 1 & 2. It set the universal foundation for equality and dignity, later used against cultural discrimination.
 The International Covenant on Civil and Political Rights (ICCPR), developed on the UDHR and also guarantees equality before the law, protection from discrimination, and freedom from cruel, inhuman, or degrading treatment as per Articles 2(1), 3, and , 26 of this covenant. These provisions are particularly relevant when addressing harmful traditional practices. Then came the “Bill of Women’s Rights”, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), with particular focus on Articles 2, & 5(a), imploring states to eliminate discrimination against women in laws, customs, and practices,
 and to modify cultural and social patterns that perpetuate gender stereotypes or harmful practices respectively. This appears to be the strongest treaty against using culture/customs to justify discrimination.

In the region of West Africa, the African Charter on Human and Peoples’ Rights (ACHPR) 1981 enshrines rights to equality, dignity, and protection from discrimination in accordance with Article 2 & 18(3). However, it was only when the Maputo Protocol (2003) was established that women’s rights in Africa were explicitly addressed, levying the responsibility on states under Article 5 to prohibit and condemn all harmful practices that affect the human rights of women and girls. Articles 2(1)(b), 4(2)(a), and 21 to mention but a few, protect women and girls from discrimination, violence, and right to inheritance. This instrument in question stands as Africa’s strongest condemnation of harmful traditions in the name of cultural relativism.

Domestically, The Gambia has incorporated many of these international and regional obligations into its Women’s Act 2010, now Women’s (Amendment) Act 2015, which has explicitly prohibited FGM for intsance, and contains robust provisions protecting and promoting the rights of women and girls. This reflects The Gambia’s compliance with its international commitments. However, cultural resistance remains aggressively strong. Before the establishment of Women’s Act 2010, the 1997 Constitution of The Gambia under Section 28 provided for the respect for women’s dignity, and equal treatment including socio-politico and economic activities as accorded to men. Notwithstanding, these provisions did not suffice, thus the Women’s Act 2010, now Women’s (Amendment) Act 2015 to supplement it.

It is therefore apparent that there have been consistent efforts to fight discrimination against women, promote gender equality, and reject harmful practices. However, the persistent influence of cultural relativism continues to pose challenges to the full realization of these rights.

Case Law & Judicial Interpretation

In the landmark Gambian case of IGP vs Yassin Fatty, Nano Jawla, & Kadijatou Jallowⁱ the court found the three respondents guilty as charged for performing FGM on eight adolescent girls because they all pleaded guilty to the offence. Attempt was made by the respondents to mitigate the court’s sentence on the basis that they had no knowledge that FGM/C has been criminalized in The Gambia. However, the court rejected this plea.

Analytically, the case above proves the effort made to criminalize and implement the criminalization of FGM, which is a violation of the reproductive health of women in human rights perspective. However, many invoke traditional or cultural justification, which has been that the practice of FGM/FC have long been a norm and deeply rooted in traditionⁱⁱ and mainly for the purpose of preserving the fidelity and virginity of young girls and women. The aim is to control a woman’s sexuality and channel it into her marriageⁱⁱⁱ to protect the cultural and linguistic characteristics of the group’s ethnic identity.^iv In societies where FGM/C is widespread, genital cutting is a prerequisite for marriage, preparing her for adulthood and marriage, and it is what proves a girl’s membership of a family or society.^v They view international opposition as cultural imperialism. It is for this reason that there have been resistance towards the abolition of FGM. The ignorance claimed by the respondents in the instant case is most likely as a result of deeply rooted cultural practice that is so strongly guarded, and lack of awareness.

The African Commission arrived at a remarkable decision in the case of Equality Now v Ethiopia^vi. The facts of this case involved a 13-year-old Ethiopian girl who was abducted by an older man who attempted to force her into marriage after raping her. At the time, Ethiopian law allowed an abductor to escape prosecution provided he married the victim. The African Commission held that Ethiopia’s law violated the African Charter on Human and Peoples’ Rights and the Maputo Protocol, especially rights to dignity, equality, security, and freedom from discrimination and violence of women. Including:

1. Abduction and forced marriage constitute a violation of women’s dignity and equality.
2. The exemption of perpetrators from prosecution upon marriage with victims was discriminatory and encouraged impunity for sexual violence.
3. Such practices are harmful cultural traditions that violate international human rights standards.

The Commission therefore urged Ethiopia to reform its laws and protect women and girls from harmful practices rooted in custom.

Critical Analysis;

The Tension Between Culture/Tradition & Women’s Rights:

In as much as every human being is born with inherent rights and freedom, there needs to be a check put in place to avoid one right overshadowing another, which will be contrary to the principle of indivisibility of rights, which advocates that rights cannot be placed in a hierarchical order as they are inseparable and are of equal importance.^vii Breach of one will inevitably lead to violation of another. Therefore, they cannot be ranked or separated from one another.^viii As this article demands, below are a few examples of cultural practices in The Gambia that conflict with women’s rights:

• Female Genital Mutilation (FGM):   this prevalent issue has been discussed above including the argument of the defenders that, such practice is deeply entrenched in culture and tradition which forms a significant part of a woman’s  However, human rights view of this practice is that FGM causes irreversible harm, is not   medically necessary, often involves coercion  of minors,  perpetuates gender inequality and violates a host of international human rights standards.^ix It is a threat to the enjoyment of right to life and health, leading  to the nuance between the right to freely practice one’s religion and culture and the  freedom of the individual not to be subjected to harm or inhuman  degrading treatment.   FGM, which is mostly performed on minors or under social pressure,  violates the rights to health, bodily autonomy, and dignity. Courts and human rights bodies have thus recognized it as inhuman and degrading treatment.
• Child/forced  marriages: Human right advocates believe that child marriage is rooted in inequality and violates girls’ right to education, health, and economic ^x   Child   Marriage is considered forced marriage, therefore, persecution.   Women have been in practice used as commodities and collateral during the resolution of tribal conflicts, for example through  forced marriage.^xi  The cultural justification includes the belief that girls and women are inferior to boys and men. Poverty also exacerbates this issue.^xii In many places, girls who have relationships or become pregnant outside of marriage are shamed for bringing dishonour on their family, or even stopped from going to school. In such circumstances, parents  may see early marriage as a way to protect their daughters and their families. Girls may agree, and wish to gain status as a wife and mother    This is because, in   some contexts, a girl becomes a woman when she starts to menstruate. Marriage may be the next step towards her gaining status as a wife and mother.^xiii          
• Inheritance  & property rights under customary law: In Africa, the issue of women’s inheritance goes beyond the major challenge of establishing the necessary legal framework for women to be able to own and inherit land. The fact that women cannot lease, rent, own or inherit land and housing  is due to discriminating customary laws. In   rural areas it is hard for women to participate in public discussions on sensitive topics such as rural land tenure, as they  are not landowners.  ^xiv  Whereas  the law guarantees the right of women to inherit property,    patriarchal traditions continue to deny women from inheriting  ^xvHuman rights defenders  consider right to property as important as the right to life, freedom of religion, and freedom of speech. The right to private property is understood as a direct consequence of the human person’s need and ability to provide for his or her subsistence and entertainment through manifold activities. The respect for a person’s property is thus related to the respect of  the integrity of the body and the human person as a free and active being.^xvi
  

Way   Forward;

Reconciling Tradition and Women’s rights:

The question that now begs for an answer is; how then can tradition be reconciled with women’s rights, specifically, equality?

To reconcile the two, there is a requisite of acknowledging the harmful effect certain customs create, as well as recognize the importance of cultural heritage and community participation to drive positive change in the society. My humble recommendations would therefore be as follows:

1. Increased Awareness: the expansion of awareness across regions and remote areas, men and women, in The Gambia for instance, is very pertinent as it will empower more women by imparting the knowledge of the national, regional, and international women’s rights, and the nature of certain customs to them. This can be done through moot court competitions, online and on-site seminars, and community outreach to mention but few. A great deal of worry and concern might be saved for this reason, as my next recommendation will suggest.
2. Litigation: this tension can be resolved in practice by women plaintiffs themselves, litigating at the domestic level. Women in the region can use their domestic legal systems to identify the cultural practices and traditions that discriminate against them, and to challenge these practices and traditions.^xvii This ensures that women are empowered to protect their lives.
3. Judicial Activism: proactive judges are necessary to play active role in shaping the already established laws by interpreting in a feminist yet culturally tolerant manner. This would help strike a balance between the two conflicting ideals. Judicial responses need to be fair, just and equitable.
4. Cultural Reinterpretation: This approach demands working within communities to challenge harmful customs, while preserving their cultural significance. For instance, instead of outrightly banning a practice like FGM, community leaders could work with activists to find ways to refine the practice as a celebration of womanhood that does not involve physical harm. Such an approach would not only protect women’s rights, but also respect the culture community.^xviii

Conclusion

To conclude this article, it is imperative to mention that in spite of the modern developments inhuman rights which include women’s rights, cultural norms and practices cannot be eroded or eradicated in entirety, despite the harm they might potentially pose. This is because culture is a lifestyle, and people have the right to choose the lifestyle they desire to live. The truth remains as argued by some thinkers that human rights have their roots in western philosophy. Thus the reason rights like women’s rights and that of the LGBTQ group are easily applicable and accepted in the western part of the world than the African continent. How much peace would the world then enjoy, if women’s rights were promoted, with due consideration and respect for culture/tradition.

i  IGP   vs Yassin Fatty, Nano Jawla, & Kadijatou Jallow [2024]  KTR/CS/09/23

ii   https://www.female-genital-cutting.ch/female-genital-cutting/justifications   accessed on 18^th  May, 2025.

Iii iris.who.int accessed on 18^th May, 2025.

Iv Ibid

V https://www.female-genital-cutting.ch/female-genital-cutting/justifications accessed on 18^th  May, 2025.

vi  Equality Now and Ethiopian Women Lawyers Association (EWLA) v  Federal Republic of Ethiopia (Communication 341/2007) [2021] ACHPR 523 (14 October 2021)           

viiwww.humanrights-drugpolicy.org accessed on 18^th  May, 2025. viiiacademic.oup.com accessed on 18^th May, 2025.  

ix         www.who.int accessed on 17^th  May, 2025.

X https://www.girlsnotbrides.org/learning-resources/child-marriage-gender             accessed on 26^th         August, 2025.

Xi https://euaa.europa.eu/country-guidance-iraq-2024/3113-forced-and-child-marriage       accessed on 26^th             August, 2025.

Xii https://www.girlsnotbrides.org/about-child-marriage/why-child-marriage-happens/       accessed on 26^th             August, 2025.

Xiii Ibid

xiv  https://www.citego.org/bdf_fiche-document-1388_en.html accessed on 26^th August, 2025.

xv  Cedonia Victor Legge, Women’s right of inheritance of property,    Perspectives of a female lawyer. from South Sudan (August 24,2025, 12:05 PM),   https://africlaw.com/2023/04/18/womens-right-of-inheritance-of-property-perspectives-of-a-female-lawyer-from-south-sudan                               

xvi  Francis Cheneval, Property Rights as Human Rights, (August 25,2025, 12:05 PM)  https://www.philosophie.uzh.ch/static/SHRB/PDFs/Kap_1.pdf,   

xvii  VEDNA JIVAN AND CHRISTINE FORSTER, WHAT WOULD GANDHI SAY? RECONCILING UNIVERSALISM, CULTURAL RELATIVISM AND FEMINISM THROUGH            WOMEN’S USE OF CEDAW, (August      26,2025, 13:09 PM),   http://www.asianlii.org/sg/journals/SGYrBkIntLaw/2005/9.pdf                   

xviii     The      Clash Between Tradition and Modernity, Resurgence of Customs in Contemporary Society (February 24, 2024),  https://gender.study/gender-based-violence/tradition-vs-modernity-customs-resurgence/#google_vignette            

iJOHN  J. TILLEY, Cultural Relativism, Human Rights Quarterly (August 24,2025, 12:05 PM), https://philpapers.org/archive/tilcr.pdf.

iiCultural  relativism,      https://www.carnegiecouncil.org/explore-engage/key-terms/cultural-relativism,   accessed on August 24,2025.