Introduction
Third World Approaches to International Law ( TWAIL) aims to be the voice of a historically voiceless global south on the international law scene. It seeks to “ re-tell and rewrite” international law from third-world perspectives, while critically assessing “international law doctrines, operative logics, and normative commitments and assumptions”.[1]
Yet, cultural and religious discourses profoundly shape social and intimate life across Africa.[2] Re-telling and rewriting women’s human rights from an African perspective should thus entail taking into account the plural normative landscapes the continent embodies.
This piece argues that a context-sensitive approach to women’s human rights should not automatically condemn religious and/or culturally-based approaches to gender relations within marriage. Instead, it necessitates a recognition of the social legitimacy of diverse moral frameworks while ensuring that women’s dignity, agency and safety are safeguarded.
Life at the intersection
As a Congolese woman born and raised in Belgium, I have lived my life at the intersection of two worlds.[3] A lot could be said about life at that specific intersection, with gender playing a notable role in my experiences. For now, suffices to say that I am increasingly comfortable navigating the troubled yet beautiful no-man’s land belonging to the insider-outsider. I have also learnt to enjoy the colourful, multi-dimensional view available from my vantage point.
In my experience, that intersectional realm overflows with intangible wealth, some of which spoils of war: while it is a favourable terrain for soul-stretching introspections and enriching intercultural dialogue, it can also be an ethical and intellectual war zone, where conflicting definitions of normalcy co-exist and rival visions of how life ought to be lived contend for legitimacy. I have found this to be especially true concerning the way women’s lives should be lived.
I have embarked on a PHD journey requiring me to interview women regarding the gendered dynamics in their heterosexual marriages and cohabitations. Yet, decades before a PHD project was ever formed, my mother’s marriage was the first object of unconscious study.
I have vivid childhood memories of my father’s homecomings after a long day at work. Every time without fail, his entrance would mark the beginning of a dance-like ritual between himself and my mother. As soon as the familiar rattling of keys was heard, she would lovingly greet him and start running to and fro in an attempt to serve dinner in a timely and visually appealing fashion. Meanwhile, he would find his way to his favourite sofa, seemingly seeking respite from the outside world. She would safeguard the sacredness of that space by keeping my overly energetic brothers away as he watched the news.
For each of us, my mother created a home in countless other ways, so much so that she herself became home. The safe place. The nurturer. The healer and educator. The provider of true wealth, the one money cannot buy. In recent conversations, she yet again told me how much joy she experienced being of service to her family: “It has always been natural to me”, she says.
I believe the role she occupied within our family felt natural because ingrained from a tender age. In Kaime’s words: “ To be human is to have been enculturated to some specific culture whose characteristics have been internalised”.[4] While various definitions exist, culture can be understood as a collection of “fundamental ideas, practices and experiences of a group of people that are symbolically transmitted generation to generation through a learning process”.[5] Culture has also been described as “ the software of the mind”. It “can be thought of as a mental set of windows through which all of life is viewed. These windows vary a bit from individual to individual in a society, but they share important, useful characteristics…”[6]
According to Espérance Bayedila, the gendered division of home territory and the roles allocated within the domestic space remain a form of communication through which those aspects of Congolese culture are passed down from one generation to the next. [7]
Yet, the critical stance adopted by the Congolese anthropologist vis-à-vis those gendered dynamics in the private sphere is a reminder not to reify culture, thereby eliminating the dissent around those cultural dynamics that exists in society.[8] Culture is neither homogenous nor static but rather “a dynamic process and specific practice without discrete boundaries”.[9]
Cultural values packages
It has also been defined as a people’s “values orientation”.[10] The idea that culture can be understood as a people’s moral compass is echoed in Levitt and Merry’s research on women’s human rights. That research defines women’s rights as ideas, perspectives and messages about what the rights, status and responsibilities of women ought to be. On that basis, Levitt and Merry view women’s rights as values packages that are inherently cultural. They therefore refer to the generation of global ideologies and norms on women’s rights as “global cultural production”.[11] The scholars posit that, when such global ideas and practices are successfully propagated, it is due to the fact that they are “sanctioned and promoted by the magic and financial influence of the West”.[12] Consequently, the global human rights discourse can be the object of (national) resistance and dismissal.[13]
Mutua argues that the human rights movement as currently constructed is bound to fail due to being a foreign philosophy in non-Western states, “except among hypocritical elites steeped in Western ideas”. Its ultimate success, he argues, is dependent on being founded on the cultures of all peoples.[14]
While praiseworthy, a genuinely multicultural human rights movement is a lofty ambition. International law is a regime of global governance historically rooted in European culture, history, thought and experience.[15] The human rights law regime is no exception to this.[16] Having said that, as brilliantly noted by Adébísí, “decolonizing… knowledge and thought does not ask us to rewrite history, but should allow us Africans the academic freedom to finally write ours, as equal intellectual members of the human race”.[17]
As a women’s human rights scholar, I posit that the African intellectual contribution remains incomplete if it cannot accommodate the voices of women who, like my mother and countless others across the continent, joyfully embrace cultural and religious understandings of gender relations within marriage that fall outside mainstream interpretations of the human rights paradigm.
In my view, an African perspective on women’s human rights law should not automatically condemn such conceptions of gender relations. Instead, it should acknowledge the social legitimacy of cultural and religious frameworks while ensuring the safety, dignity, and agency of the women who embrace them.
[1] James Thuo Gathii, ‘The Agenda of Third World Approaches to International Law (TWAIL)’ in Jeffrey L Dunoff and Mark A Pollack (eds), International Legal Theory (1st edn, Cambridge University Press 2019) 154.
[2] Julie Ada Tchoukou, ‘Regulating Gender Violence in Postcolonial Societies: Is Legal Pluralism a Problem for Human Rights?’ (2025) 17 Journal of Human Rights Practice 22, 28-29,32.
[3] Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ (1991) 43 Stanford Law Review 1241-1299.
[4] Thoko Kaime, ‘“Legitimacy, Public International Law and Intractable Problems”’ (2023) 83 ZaöRV / HJIL 399, 402.
[5] Hou Rong, ‘Proverbs Reveal Culture Diversity’ (2013) 9 Cross-Cultural Communication 31, 31.
[6] ibid 31–32.
[7] Espérance Bayedila B.Tshimungu, La reproduction du statut de la femme en République démocratique du Congo (l’Harmattan 2014) 239–240.
[8] Marie-Bénédicte Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge Univiversity Press 2006) 163.
[9] Thoko Kaime, The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective (Pretoria University Law Press (PULP) 2009) 32–33.
[10] Madeline Fernández, ‘Cultural Beliefs and Domestic Violence’ (2006) 1087 Annals of the New York Academy of Sciences 250, 251.
[11] Peggy Levitt and Sally Merry, ‘Vernacularization on the Ground : Local Uses of Global Women’s Rights in Peru, China, India and the United States’ 9 Global Networks 441, 443.
[12] ibid 447.
[13] ibid 442–443.
[14] Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201, 208.
[15] Makau Mutua, ‘What Is TWAIL?’ (2000) 94 Proc annu meet- Am Soc Int Law 31, 34.
[16] Wouter Vandenhole, ‘Decolonising Children’s Rights: Of Vernacularisation and Interdisciplinarity.’ in Rebecca Budde and Urszula Markowska-Manista (eds), Childhood and Children’s Rights between Research and Activism (Springer VS 2020) 187.
[17] Folúkẹ́ Adébísí, ‘Decolonising Education in Africa: Implementing the Right to Education by Re-Appropriating Culture and Indigeneity’ (2016) 67 NILQ 433, 451
