By Aynura Akbas

Effective participatory constitution-making has to provide for women’s equal representation in the process and outcome. No process which excludes or marginalizes the majority of the population can be representative. No constitution which has failed to fully ensure the perspectives and concerns of women can be seen as fully legitimate over time.

Mary Robinson, Former United Nations High Commissioner for Human Rights (2010)


Introduction

As the foundational document and a building block of governments and their laws, national constitutions have the power to shape societal values and be catalysts for promoting equality and combating discrimination. However, this potential has not been fully explored regarding the role of gender in constitutions. In fact, women have been historically largely excluded from the official constitution making processes. Despite the progress made by the Beijing Declaration and Platform for Action which helped to advance equal rights for women and girls worldwide, reports show continuing gaps in constitutional protection of women’s and girls’ interests, especially in the field of education, public health services, workplace, and marriage. 

In this article, we examine constitutional protections of women’s and girl’s rights in the Constitution of Bosnia and Herzegovina. We address existing gaps and barriers in existing constitutional provisions and highlight areas which need improvements. By stressing the importance of mainstreaming gender within national legal frameworks, we argue that comprehensive constitutional provisions on gender equality can be an effective tool to combat patriarchal norms and cultural militarism which perpetuate women’s and girls’ restricted access to decision-making processes, and social and economic rights and resources.

We offer an overview of feminist approaches to constitutionalising gender including liberal feminist approach and difference feminist approach. In her study on constitution and gender attributes, McDonagh (2002) looks at gender in terms of difference and equality and how that translates into women’s parliamentary representation. McDonagh found that “those countries that combine social welfare provisions for care-work that would traditionally fall to women (such as child and elder care) with rights based on individual equality have the highest percentage of women in parliament”. Building on her findings, we argue that a combination of constitutional provisions argued by liberal feminists and difference feminists would best serve the advancement of women’s equality.

By looking at the presence or absence of gendered provisions in the constitution of Bosnia and Herzegovina, we propose a specific set of amendments and analyse the potential of implementing such amendments for the wider society of Bosnia and Herzegovina. We particularly emphasise much needed constitutional provisions in the areas of economic and social rights such as education, work, and health care. 

This article builds on the valuable work of local feminist and women’s rights activists whose campaigns are foundational for any discussion on the inclusion of gender to the Constitution. We reaffirm their claims for greater inclusion and equality in the constitution through the following amendments:

  1. Introducing gender-sensitive language and eliminating numerous masculine gender references present in the current Constitution.
  2. Introducing affirmative action measures.
  3. Extending the existing set of rights to include greater equality in health care, social and family protection areas.
  4. Ensuring greater judicial protection and greater protection of human rights and freedoms.

To further clarify the impetus behind each provision, this article concludes by providing insight into the implications of reforms and how they can be utilised by women’s groups and legislators in the future.

Feminist approaches to constitutionalising gender

It is often argued that the liberal notion of individual freedom and equality causes women to have to negotiate their gender attributes – women who adapt to traditionally masculine norms of behaviour do so at the expense of diminishing parts of themselves which are more feminine, while women who decide to assert themselves as women, “their very specificity as women categorises them as deviant from the universalistic formulation of the liberal principle that all individuals are equal, in the sense of being the same.” In her study, McDonagh, one of the very few scholars who studied constitutionalising gender, argues that “women do not face a trade-off between a strategy of difference that rejects universalistic principles of individual equality and a strategy of pushing for equality with men.” Sameness and difference do not need to be mutually exclusive. Instead, she argues that it is not that liberal principles of individual equality “fail” women, it is that individual equality by itself is not enough. As is well-known, principles of individual rights and equality were important for the advancement of female political citizenship, but it did not change systemic issues of unequal power structures. Moreover, it is not enough to only look at the substance of policies and provisions. Rather, we need to examine their ideological intentions and their linguistic presentation in order to understand the discourse which is often central to the formation of any policies. Discourses formulate the way we construct values and conceptualise the world around us. 

Policy discourse refers to “the interactions of individuals, interest groups, social movements, and institutions through which problematic situations are converted to policy problems, agendas are set, decisions are made, and actions are taken.” The power of policy discourse lies in the power of ideas which formulate it. Ideas are central to the process of legitimating or stimulating policies and they hold the power to construct images of particular social groups.

Based on different discourses surrounding values and meanings attached to gender norms, we see different approaches to integrating gender into constitutions. Countries constitutionalise gender in terms of equality between women and men and in terms of their respective differences. For instance, the United States has a gender-neutral constitution whereby the constitution is neutral about gender equality and does not mention it explicitly. In Slovenia, the constitution explicitly mentions gender as part of its antidiscrimination statement, but it contains no additional provisions relating to women’s social and political rights. Germany has a difference egalitarian constitution which recognises gender as a distinct category: “Men and women are equal. The state supports the effective realisation of equality of women and men and the world towards abolishing present disadvantages.” Finally, Ireland’s constitution is an example of difference maternal constitution whereby women’s citizenship is linked to motherhood and the constitution ensures gender-based protection based on women’s maternal roles such as a wife or a mother.  

Case study: Bosnia and Herzegovina

Since 2002, civic society organisations in Bosnia and Herzegovina have been very active in their campaigns for constitutional reforms. However, their proposals often disregarded gender as a relevant category and focused more on eliminating discrimination based on national and ethnic identities. In 2013, the issue of institutionalising gender in Bosnia and Herzegovina was first explicitly addressed by the Initiative Women Citizens for Constitutional Reforms. The Initiative proposed a set of gender-sensitive amendments to the constitution and thanks to their campaign efforts, the topic of gender-sensitive constitutional reforms entered the public dialogue in Bosnia and Herzegovina. 

 

Much like the Slovene constitution, the constitution of Bosnia and Herzegovina includes provisions on the elimination of discrimination based on gender, but it does not go beyond it in terms of integrating provisions which can guarantee gender-specific rights and protections. On April 26, 2021, members of the Initiative met with representatives of the EU Delegation to voice their concerns regarding the current political climate and to further advocate for gender-sensitive constitutional reforms in Bosnia and Herzegovina. The work of the Initiative and other feminist and women’s organisations demonstrate gendered agency and transitional justice performed from below. Their efforts present a grassroots critique of post-war power-structures fuelled by activists, educated women, and students. In the following sections, we outline proposed amendments to the constitution. 

Gender-sensitive language

The current constitution is written in gender-exclusive language and uses only male forms of nouns and pronouns which symbolically exclude women, even if male nous and pronouns are used to denote both genders. Using both male and female forms of nouns and pronouns “indicates a commitment to gender equality by specifically including women and helps undermine stereotypes that political actors are male.” 

 

Because the constitution is available in several languages, distinction should be made between gender neutral languages and grammatical gender languages. In gender neutral languages such as English, linguistic strategy is to use gender-neutral and gender-inclusive terms and to avoid gender specific terms. Generic reference “he” should be replaced with “them” or “he and she”. In grammatical gender languages such as Bosnian, Croatian, and Serbian, linguistic strategy has been the feminisation of grammatically male/masculine nouns by either constructing a feminine term or by using both feminine and masculine terms.  Especially in terms of jobs, occupations, and political posts, feminine equivalent of generic masculine terms should be constructed and utilised. 

 

Namely, in Article 1 (7), the term “citizen” (“državljanin”) should also include feminine term (“državljanka”). The same principle shall be applied to the Articles 9 (1) where generic masculine term “candidate” (“kandidat”) should be replaced with both masculine and feminine terms (“kandidat” and “kandidatkinja”). In Article 9 (3), generic masculine term “officials” (“funkcioneri”), should be replaced with both masculine and feminine terms (“funkcioneri” and “funkcionerke”). All other traditionally masculine terms in the constitution should also be adjusted to reflect gender inclusive language.

Gender-responsive provisions

In Article 2 (3), Enumeration of Rights should be extended to include gender-specific provisions:

Statement b) “The right not to be subjected to torture or to inhuman or degrading treatment or punishment” should also include “the right not to be subjected to any forms of violence, in private or public sphere, because of their sex and gender.” It is important to recognise that women are particularly vulnerable to gender-based violence and that violence against women is often committed in the private spheres such as family. 

Statement e) “The right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings” should include additional provision ensuring that women and men are treated equally before courts and equally protected under the law. 

Statement f) “The right to private and family life, home, and correspondence” should be extended to ensure the right of every individual to full confidentiality of all personal transcripts of correspondence. Moreover, additional provision should be added ensuring that no public authority can interfere with the exercise of this right except such as is in accordance with the law.

Statement g) “Freedom of thought, conscience, and religion” should also include “gender identity and self-expression” to ensure official legal recognition of transgender individuals who have not undergone gender reassignment treatment, who wish to undergo gender reassignment treatment, or who have completed their gender reassignment treatment.

Statement j) “The right to marry and found a family” should be extended to include the right to marry a person of their choosing, and to ensure that no marriage shall be entered into without the full consent of the intending spouses. This provision should also include the right of all women to decide freely and responsibly the timing, number, and spacing of their children.

Statement k) “The right to property” should be extended to ensure that both men and women have the right to ownership of property, distribution of property, and free management of property.

Statement l) “The right to education” should be extended to ensure that the right to education is based on non-discrimination and non-segregation.

 

In Article 2, which outlines human rights and fundamental freedoms of all individuals, additional provision about equality in workplace should be added. This provision should ensure that both women and men have the right to work, pay, and social security. All employees, regardless of gender, should be informed equally about promotion and equally encouraged to pursue training opportunities. Moreover, this provision should be extended to include the right to both maternity and paternity leave and to prohibit all forms of discrimination in employment and workplace against pregnant women.

 

In Article 6 (1), which outlines the composition of the Constitutional Court of Bosnia and Herzegovina, additional provision should be added to ensure equal gender representation and non-discrimination in the process of judicial appointment. Judicial appointment mechanisms should facilitate the appointment of female judges.

 

The Initiative Women Citizens for Constitutional Reforms proposed introduction of affirmative action policies as a necessary step to ensure political rights of women. Although affirmative action policies have been widely contested due to their legal setbacks, research shows that such policies can significantly improve representation and inclusion of women in the workplace and in leadership (Martin, 2006). Bosnia and Herzegovina is a signatory of a number of important international conventions including the Women’s Convention on the Elimination of all Forms of Discrimination against Women (the Women’s Convention) with its own National Action Plan. However, the implementation of international conventions is obstructed by the decentralised character of Bosnian political system. To ensure greater representation of women in all political institutions and processes, electoral system should facilitate election of women through quotas and independent monitoring bodies which should oversee implementation of affirmative action policies. State should also provide financial support to all female political candidates to accelerate their political participation.

Conclusion

Women are central to the post-conflict reconstruction process and their participation has been proven to bring about a more sustainable post-conflict recovery process. It is because of this that gender needs to be “central to the ways in which the ending of violence is conceived, planned, and delivered.” The General Framework Agreement for Peace in Bosnia and Herzegovina and its Annex 4 which constitutes country’s constitution deliberately marginalised women and ignored and overlooked their interest, rights, and freedoms. It is often described as “a dialogue of men” and “a parade of one man after another.” Even though the widespread recognition of conflict-related sexual violence against women has led to the international recognition of rape as a crime against humanity in the international courts of justice, no women were present at the negotiation table. Twenty-six years after the Agreement which ended the 1992-1995 war, its gendered ramifications continue to dominate present-day society in Bosnia and Herzegovina. 

This article builds on the previous work of feminist and women’s rights activists who have proposed a comprehensive set of amendments and recommendations relating to gender and constitution in Bosnia-Herzegovina. To further promote the process of gendered reforms, it is important that women’s rights activists, grassroots organisations and other important stakeholders have a standing in negotiation processes and constitutional cases relating to their interests. As Irving rightly reminds us, the process of gender-sensitive constitutional reforms is “the recognition that women’s politics of the present need to be understood and accommodated in the processes of the constitutional re-shaping.”

In order to bring real societal change that can positively impact people’s lives, constitutions must go beyond the written word and in the process overcome numerous obstacles such as political power imbalances, social and cultural mores, resistance to change, etc. The tensions between the law and customary, cultural, or religious practices need to be resolved either by constructive dialogue or by the courts. Gender-sensitive constitution has the power to foster a positive societal change and be a powerful catalyst for overall progress of the state. 

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