TABOOS: COULD THEY BE A VIOLATION OF ECONOMIC, CULTURAL AND SOCIAL RIGHTS?
BY JOHN BURKE, WiLDAF, 2008
Taboos are anything bad and prohibited usually by custom and practice of any particular group of people. As I sat in the office that dreary Monday morning this magic word kept popping up in my mind’s dictionary. I wondered for a moment if I had done all that I had to do. I checked my itinerary and then suddenly realized why taboos kept bugging me – I was supposed to be in court that morning. At least five persons were waiting for their cases to be heard and I could run the risk of their cases being struck out for want of prosecution. I grabbed my files, mumbling in a low tone as if to chastise myself as well as complaining about how disorganized I was. This was a taboo – a legal taboo – to disappoint your clients and most importantly perpetuate an act which was clearly against the Legal Professions Act. Perhaps I was too hard on myself, I pondered, as I drove to the Circuit Court. After all the whole justice system was fraught with some disappointments too! There had been occasions when judges would not appear in court or for some reason clients files got missing in the registry. The catch word of some prosecutors had always been that the docket was at the Attorney General’s Department and that caused an unusual delay anyway.
I brought the car to a halt and then walked confidently to the court, all the time wondering what arguments I was going to proffer for one particular client. I could clearly remember how I had nearly referred her to the offices of the Ghana Legal Aid Board because she could not pay for my legal consultancy. Again that was a taboo which I honestly felt remorse for. I represented an NGO which basically protected the rights of women and to turn her away made me feel like a dishonest person. Besides, the Ghana Legal Aid Board was ill- staffed and this case was only going to add to the large volume of cases that already existed- Justice delayed was justice denied. This particular case had travelled all the way from Nzema East District, in a little village along the coast by name Kadadwen. I questioned her as to why she did not contact any Lawyer within her jurisdiction and her reply was that no one would listen to her and so in her desperation she had come to WiLDAF as a last resort. I realized that she had unusual features for a woman. She had strong muscled arms and also grew a beard. When she begun to talk I noticed she had a deep muscular voice and the brown stains on her teeth looked like that of heavy smoker. “Lawyer, she begun, I have been thrown out of my home, my matrimonial home. My husband died only one month ago and according to tradition I am supposed to have my hair shaved completely.” As she spoke, she removed her head wrap and there was the glaring evidence of what we call “sakora”. She looked all the more like a man and I would have declared her as such if I had not spotted the holes in her ears and the slight bulge in her chest.
“Lawyer, I complied with the shaving because I did not want to get into trouble with my husband’s relations but no sooner had I done this than they begun to ask for more. I was called into the room by the younger brother of my deceased husband who asked to have an affair with me all the while I could see his manhood jutting out of his pants. He reeked of alcohol. He suddenly pounced on me. When I refused to oblige to his promptings he grabbed me from behind but I also grabbed his manhood, determined not to let him have his way but suddenly all I felt was some warm juicy stuff all over my ‘slit and kaba’. As part of the customary practice I am supposed to sleep with the corpse for at least a day until it is interred and I am also supposed to stay in my room until after 40 days of mourning, not working all the while. Lawyer, all the belongings of my husband has been seized by the relatives and as I speak to you I do not have anywhere to lay my head. I am thinking of the children, they are staying with one of my sisters. …Please do something to help me.”
As she spoke, tears rolled uncontrollably down her cheeks. She knelt down the typical Ghanaian way asking for help.
Several things crossed my mind as she spoke and one of them was taboos. I realized how deeply these belief systems had been imbibed and how sacred they were to these people. Another thing I thought of was the violation of the economic, social and cultural rights of this woman. She was determined to access justice but it was gradually becoming an illusion. High legal fees charged by lawyers, no court premises within her jurisdiction, expensive transportation, too many adjournments in court, frustration from court officials only to name a few, made people unwilling to take matters to court.
Suddenly all the international conventions came plunging into my mind. Convention on the Elimination of All Forms of Discrimination Against Women, Declaration of Violence against Women etc. “Court Rise,” It was the court clerk announcing the presence of His Honor. I have been particularly confused over this term as to whether it was ‘’all rise’ or “court rise” anyway. I stood up and bowed traditionally to the one who had the law in his bosom and took my seat, determined to make my client access justice despite all the setbacks.
Case number 112/05 Nyuwaa versus Ogyam. It was my case. As the court practice taboos demanded, I quickly announced to the court that there were some senior lawyers present whose cases had to be heard before mine. Unanimously, they gave me the permission to go on with my case. I announced myself as representing the plaintiff. WiLDAF had filed the case on behalf of the Nyuwaa with our own funds.
I was going to quote some of the international conventions which of course Ghana had signed and ratified knowing very well that it was not the usual practice for any lawyer to make reference to these international agreements in their arguments before court, for the simple reason that these treaties had only persuasive effect unlike specific national laws which were seriously considered by a court of law in arriving at its decision.
“Your Honor, the UN General Assembly will this month discuss the importance of states taking steps to secure access to justice for everyone. UN Member States convening in New York at the General Assembly session will consider the adoption of an international instrument – the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Once in force, this instrument will provide access to justice for victims of violations of economic, social and cultural rights who cannot access justice. With all due respect your Honor this is by way of informing the court that Ghana will be a signatory to this pact.” There was laughter by the other lawyers.
‘Alright, Mr. Burke please go straight to the point.’ The Judge was becoming impatient. “Very well Your Honor. After the adoption of the Universal Declaration of Human Rights (UDHR), in which the international community recognized that everyone, everywhere has civil, cultural, economic, political and social rights, we still have taboos such as this one persisting in our communities and your honor these taboos are perpetuated against women. In view of the fact all human rights are universal, indivisible, interdependent and interrelated, Ghanaians must be made to treat human rights issues in a fair and equal manner, placing women on the same footing as men.”
Emphasizing Ghana’s constitutional requirement that people should not be discriminated against on the basis of color, gender, race etc I eased myself slowly into the provisions of the Intestate Succession Law (PNDC Law 111). I dared the court to rely on the human rights argument to address the discrimination against my client and indeed many poor women who are being made to undergo practices that violate their rights. In my final submission, I urged the court to consider sanctioning the brother of the deceased person.
The judge had written all that I said with a bic pen. He had called for more sheets of paper and I had had to stop intermittently to allow him time to capture everything I said. I wondered why in this modern age of computer and automation we could be so backward in some of our courts with Judges writing with pens.
All the while Nyuwaa stood in the dock sleepy eyed. She did not understand a word of what had transpired. The judge nudged the interpreter on to clarify issues to her. The Judge looked so passive in court that morning but He had listened to every word I had said. Nyuwaa nodded in agreement when the judge asked if she had taken letters of administration following the death of her husband. She responded in the affirmative pointing to me as the one who took it for her.
All attention now turned to Ogyam, the brother in-law. He was a bearded, ill -clothed man. He did not look like the perpetrator of that offence. He had a fatherly attitude and a smooth skin that equaled an 18- year old. ‘Do you want to take your brother’s place? The judge asked straight faced. “My lord,” He begun “It is a taboo for a woman whose husband is dead to sleep alone the day before her husband is buried. It is against our tradition; the spirit of the dead will never rest in his grave if she does not comply with this practice.” Pointing his finger at Nyuwaa, he continued “this woman knows about Nwrambaa whose stomach would not cease to grow because she refused to marry the brother of her deceased husband. I fear the same fate will befall her if I don’t seal the doorway.”
The court was thrown into a paroxysm of laughter.
“My brother did not leave a will but it is one man who kills an elephant for a whole community to feed on and this woman has already had her share in his property. We looked on whiles she cooked the choice foods for herself and husband, now it is our turn.”
I stood up objecting to the way the arguments were going but the judge obviously enjoying this encounter asked him to define what he thought a taboo was, all the while writing with his bic pen.
He continued, “my Lord a taboo is a wrong – an ‘echiwaadi’. The gods will descend on our entire community if those acts or wrongs are perpetuated. We have been told by our ancestors not to let a woman in her menses cook otherwise the man who would eat her food would become a ‘baarle’. He spoke with such unequalled conviction and at this point I wondered whether it could be true. Whiles still a boy, I had heard my grandfather mention that the Tano River hated yams and goats and that anyone who crossed that river with these items risked getting drowned. I had heard stories of men who had been made zombis as a result of eating food prepared by a woman in her menses. I was in deep doubt as to whether or not all these stories were true. How about the food that we all ate at restaurants? We never really saw the faces of those that cooked; we ate their food anyway and never grew breasts.
I objected again, this time praying the court to set a definite date for judgment but the judge already had his written judgment. He ordered Ogyam to vacate the premises of the deceased brother and to restore the property to the widow.
I saw a smile beam across my client’s face as the interpreter finished speaking.
The judge commended WiLDAF for taking up the case and also fighting the cause of women. I had one objective and that was to champion the rights of women using the rights based approach and also to be a friend of the court on such matters involving economic, social and cultural rights.