EDITORIAL: Issa Shivji on development discourse from colonial to neo-liberal times
COMMENT&ANALYSIS:
- Protocol on the Rights of Women conference builds power for women’s rights
- Using the law to realise women’s rights
- Negotiation as a tool for implementing the rights of women
LETTERS: Discussing forest pirates
BLOGGING AFRICA: Christianity in Nigeria, the aid industry, democracy in Kenya and referendums in Algeria
CONFLICT AND EMERGENCIES: News from DRC, Sudan and Uganda
HUMAN RIGHTS: NGO forum in Zimbabwe releases political violence report
REFUGEES: UNHCR agrees to assume global responsibility for IDP protection
ELECTIONS: Countdown to October 11 poll in Liberia
WOMEN AND GENDER: Perceptions of the Darfur community on the effects of the conflict on women and girls
DEVELOPMENT: Social forums continue to build opposition to neo-liberalism
RACISM AND XENOPHOBIA: Racism in South African schools
ENVIRONMENT: Corporate control over food chain deepens
AND…Links and resources on the Media, Internet, Fundraising, Courses, Jobs and Books.

The ratification of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa is simply the first step in the right direction for African countries. Its domestication comes next, and will be a long and laborious task for governments and the many organizations that will assist them in this undertaking. Many strategies have been suggested as potential approaches to the domestication of the Protocol. Anne Atieno Amada advocates for negotiation to be implemented in the process.

As Deputy Executive Director of Kenya’s Federation of Women Lawyers (FIDO), Atieno Amada argues that litigation, perhaps a natural choice for the domestication of the Protocol, is not the best solution. Litigation involves going to court and having the judge or magistrate preside over the particular case in order to make a decision on the dispute. Atieno Amada’s experiences with FIDO have shown that litigation has several limitations. These include the principle of “Stare Decisis,” that commands similar cases must be decided in the same way. Litigation is time consuming and expensive; involves difficulties in implementation, enforcement and compliance; and the public nature of proceedings often diverts attention from the issue. Finally, the dominance of men in the judicial system is a problem, and may be detrimental to domesticating the Protocol should a particular judge not align himself with the views of women’s rights.

Alternative Dispute Resolution (ADR) encompasses a variety of process by which conflict can be resolved without litigation. It presents a number of options that cater to the particular situation or conflict. The implementation of the Protocol can be seen as conflict in that it puts women, as claim holders, on one hand and the government, as bearers of duty, on the other. Conflict can be described as a disagreement or competition of interests, and the women’s movement may indeed be perceived as a threat to African governments in these ways. Conflict may be seen in terms of data disputes, which revolve around information; value disputes, which arise as a result of a clash of ideas; relationship disputes, which include marital and commercial disagreements; behavioral disputes caused by clashes in habits, customs and culture, and; structural disputes that take place in institutions and bureaucracies. In implementing the Protocol, and indeed the realization of any women’s rights, all elements of conflict are present. In responding to, and dealing with conflict there are a number of options available. Avoidance, toleration, mediation, litigation, self-help and negotiation are all methods of dealing with conflict that may be potentially employed.

Negotiation involves a formal discussion between people and groups attempting to reach an agreement. The main goal of such an exercise is to meet certain interests or needs in a manner that is collaborative and peaceful, without being apologetic or giving in. In order to be successful, negotiation must separate people from the problem, focus on interests and not positions, involve a variety of possible solutions, and have a result based on some objective standard or practice.

In her conclusion, Atieno Amada states that the Protocol, which, as she adds, is a right of women to equality, non-discrimination, elimination of harmful practices, access to justice and equal protection under the law, cannot be negotiated away by governments. Negotiation, and the process of negotiation, may indeed be a strategy, not only to implement the protocol, but to remind governments of their duty to protect the rights of all citizens.

* * This is a summarised version of a paper presented at a conference on the Ratification and Domestication of The African Union Protocol to the African Charter on Human and Peoples Rights on Rights of Women in Africa. The conference, held between 27-30 September in Addis Ababa, Ethiopia, was co-convened by the African Union Commission and the Solidarity for African Women’s Rights Coalition (SOAWR). The full length versions of all papers presented at the conference will be released in book form in January 2006.

* Summarized by Karoline Kemp, Commonwealth of Learning Young Professionals Intern, Fahamu.

* Please send comments to

The effectiveness of the law as a tool for realizing women’s rights has been, by some, called into question. Because of Africa’s complicated history with inequality between men and women, and the feminisation of poverty, using judicial institutions in order to apply rights on paper into realizable rights is contentious. Sibongile Ndashe asks: What can be done differently to make governments accountable in terms of this protocol in a manner that makes a different to women’s lives? She argues that litigation does play a role in the domestication of the Protocol, but that it can be used amongst other tools.

Strategic litigation (also known as test case litigation, public interest litigation, impact litigation or precedent setting litigation) is used to challenge laws that are in violation of human rights standards and norms, and can be useful because in the event that a case is won against a discriminatory law, that law or policy may be declared invalid. This means that at the same time as successfully winning a case, broader law reform can be made. Litigation has not been widely used in the fight for women’s rights, as it marks a radical departure from traditional methods of legal practice and is indeed, a large task for gender activists, as it involves working not only on women’s rights, but on the building of courts.

Currently there are a number of ways that constitutions have permitted laws to act against women: the claw back clause exempts certain laws from being subject to the right to non-discrimination provided for by the constitution; the provision of rights to be equally applicable can sometimes be turned over in the event of a tension, in favor of the strongest right, and finally; some constitutions pre-empt inconsistency and therefore give preference to some rights over others. In addition, in some cases, in what is known as legal dualism, it is impossible to use international instruments if they have not yet been domesticated, but have been ratified, by that particular country. The Bangalore Principles come into use here – if an uncertainty, ambiguity or obscurity arises in a case, a judge may seek guidance in the general principles of international law, or those accepted by the community of nations.

Strategic litigation can be a powerful tool, but key to its use in the case of the Protocol is a women’s rights responsive judiciary – one who understands women’s inequality in all of its complexities. In addition, a strict separation of the governmental powers of judiciary, legislature and executive is important, in order that each area may fulfill their constitutional obligations. It is necessary not only to engage government, including state departments, but in order to be truly successful litigation must also reach out to research institutions, community based organizations and feminist scholars.

In her conclusion, Ndashe argues that the implementation of the Protocol through strategic litigation depends on various parties, not simply lawyers. There is a need to co-ordinate efforts so that the many complex and varied aspects of women’s rights are represented.

* This is a summarised version of a paper presented at a conference on the Ratification and Domestication of The African Union Protocol to the African Charter on Human and Peoples Rights on Rights of Women in Africa. The conference, held between 27-30 September in Addis Ababa, Ethiopia, was co-convened by the African Union Commission and the Solidarity for African Women’s Rights Coalition (SOAWR). The full length versions of all papers presented at the conference will be released in book form in January 2006.

* Summarized by Karoline Kemp, Commonwealth of Learning Young Professionals Intern, Fahamu

* Please send comments to

Over 40 representatives from the African Union Commission, African governments and the African women’s movement gathered in Addis Ababa, Ethiopia from September 27-29, 2005 to discuss strategies for the entry into force of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, its domestication and implementation. The representatives affirmed that the Protocol is indeed the basis for meaningful people driven pan-Africanism and national level constitutional and legal reform in favour of realising African women’s rights.

* Closing Statement from the Conference on Ratification and Domestication of
The African Union Protocol to the African Charter on Human and Peoples Rights on Rights of Women in Africa Co-convened by the African Union Commission and the Solidarity for African Women’s Rights Coalition (SOAWR)

Final version 30th September 2005

The speed with which member states have ratified the Protocol is without precedent in the history of similar instruments. To date, 13 African states have ratified the Protocol. Only two more ratifications are required for the Protocol to enter into force. We are confident that the required number will ratify the Protocol by the end of the year. We shall maintain our focused pressure to ensure that the Protocol is ratified by all 53-member states of the African Union at the earliest opportunity. Below is a summary of the strategies and recommendations in five thematic areas

A. Ratification

Even though the entry into force of the Protocol is imminent, the campaign must continue in order to ensure universal ratification. Following are the strategies identified:-
? Mobilization for country wide advocacy
? Translation of the Protocol into local languages
? Reform national legislation consistent with the Protocol
? Sensitization of all the arms of government
? Forging alliances between the various stakeholders
? Inclusion of the Protocol in the law reform processes
? Use of community based awareness creation initiatives
? Engagement of the AU and its specialised organs to support the campaign

B. The Solemn Declaration on Gender Equality in Africa, July 2004

We note that supplementary accountability mechanisms are found within the Solemn Declaration on Gender in Africa. The Solemn Declaration relates to the Protocol in a manner comparable to the relationship of the Beijing Platform for Action (BPA) to the Convention to Eliminate all forms of Discrimination against Women (CEDAW).

We laud the AU Commission for developing a draft monitoring and evaluation framework as well as a draft reporting framework (with targets and indicators), spelling out the role of the African women’s movement, to be approved by a meeting of Ministers of Gender and Women’s Affairs to take place in Dakar, Senegal from October 12-16, 2005. The proposal is that African states will prepare two kinds of reports: a full narrative report every three years; and a comparative report annually in the form of a matrix responding to the targets and indicators selected. The African women’s movement will know the reporting dates for their respective states and also be able to access and respond to their state’s reports from the AU website as well as to forward general and specific recommendations. The African Women’s movement will also be able to participate through the annual African women’s fora around the AU summits, which are being institutionalised.

We propose the following strategies to enhance accountability under the Solemn Declaration:
? Liaising across the relevant AU commission and relevant organs of the AU
? Engaging with the meeting of Ministers of Gender/Women’s Affairs re: the Solemn Declaration to take place in Dakar, Senegal from October 12-16, 2005
? Reviewing and using the monitoring and evaluation mechanisms developed by the AU’s Directorate on Women, Gender and Development
? Developing the capacity within national gender machineries to monitor implementation (including resourcing for implementation)
? Inform the terms of reference for mandate and appointments to the AU Women’s committee
? Establishing working links between the AUWC and the gender sectoral cluster of the Economic, Social and Cultural Council (ECOSOCC)
? Convening the annual African women’s Consultation at an appropriate point prior to each Summit

C. Domestication of the Protocol

We reiterate the fact that much remains to be done to ensure universal ratification of the Protocol, as well as its domestication in African states that have already ratified it and, ultimately, its relevance and use to assure African women’s rights at the national level. We have examined the different legal systems that exist in Africa and note that African states must take the initiative for domesticating the Protocol although nothing impedes the African women’s movement from doing so either.

Regardless of whether or not domestication has occurred, African states which have ratified the Protocol will be obliged to submit regular reports to the African Commission on Human and Peoples’ Rights every two years on implementation, which then can prepare observations, including recommendations, which African states will report on in another two years.

We have therefore identified the following strategies to advance domestication and accountability:
? Working with national parliaments as well as those of the Regional Economic Communities (RECs) on domestication and harmonisation, especially under African common law systems
? Strategic utilisation of international events to reach the decision making organs of states and governments
? Forming regional networks for exchange of ideas and best practices in the campaign
? Encouraging member states to include the Protocol in their law reform processes and particularly in Constitutional review processes
? Encourage the Addis based Ambassadors to advise national capitals on the necessity for urgent ratification and initiate discussion on the steps required for domestication of the protocol.

D. Popularisation of the Protocol

It is critical to ensure that African women everywhere are aware of the Protocol and its provisions so as to avail themselves of the opportunities provided by it. We suggest a number of strategies for the African Union and African states to assist in this process of conscientisation including:
? Convene high-level events around the Protocol to be covered by the African and international media
? Encourage high-level government officials to speak in favour of the Protocol

For the African women’s movement, we need to:
? Convene regional and national meetings of the African women’s movement around the Protocol
? Create alliances between women parliamentarians and parliamentary groupings—regionally, sub-regionally and nationally.
? Develop clear targets and indicators for the Protocol and conducting/disseminating research showing the gap between these targets and indicators and the reality on the ground
? Conduct and disseminate research around coverage of the Protocol and its provisions in the African media and engaging with the African media on the basis of that research
? Engage with African women’s media organisations, particularly sub-regional ones, including through sharing information on the Protocol and training on how to cover it and its provisions
? Campaign in the African media through both the strategic placement of self-generated content as well as pro-active use of other opportunities (for example, invitations to speak during interviews) and lobbying for those opportunities with the African media
? Ensure coverage by the African media of key meetings (for example, AU summits) through cyber dialogues, press releases, press conferences during these meetings and involvement of appropriate staff from the African media in all meetings (relevant media persons, analysts, commentators, feature writers)
? Ensure engagement with diverse media, particularly community media (for example, community radio) so as to reach the broadest base possible of African women
? Feed into other campaigns (for example, the annual 16 Days of Activism against Gender based Violence, 25th November to December 10th) and engagement with key campaign organisations around the issues covered by the Protocol

E. Mobilizing Resources for the Protocol’s Implementation

It will be particularly important to ensure that adequate resources are available for the Protocol’s implementation at the national level. We thus propose the following strategies around resource mobilization for the Protocol’s implementation:
? Identify non-monetary actions that can be taken by Governments to implement the Protocol including the removal of all discriminatory laws
? All states to support the establishment of a Special Rapporteur on Laws that discriminate against women by the UN Commission of Status of Women (UN Resolution 49/3) by March 2006
? Identify easy ‘quick wins’ for initial budgetary allocations for African states
? Identify core costing obligations arising from the Protocol’s provisions through partnerships with Gender Budget Initiatives at the national level
? Develop facts and arguments for the budgetary demands
? Building alliances among relevant civil society constituencies as well as with appropriate entry points in national executives and parliaments
? Promote public debate on budgetary demands (for example, taxation and expenditure reviews)

F. Litigation and Negotiation around the Protocol

The Protocol is a legal instrument for the protection of African women’s rights. But it is a legal skeleton, requiring court action to give it blood and flesh. For it to become relevant and useful at the national level, participants discussed legal strategies to fast-track its implementation including strategic litigation and alternative dispute resolution (ADR).

Strategic litigation includes constitutional test cases to determine and address legal barriers to the Protocol’s realisation so as to fast-track the law reform process required under domestication and harmonisation. Participants here noted new ways of asserting/pleading constitutional human rights provisions under international human rights law, namely though: the theory of legitimate expectation; the Bangalore principle; and the interpretive principle.

We identified the following strategies:
? Supporting African women’s organisations offering strategic litigation
? Carrying out strategic litigation around the Protocol and sharing jurisprudence continentally
? Supporting any court case impacting on women’s rights including amicus curiae brief preparation
? Using ADR to advance the Protocol where appropriate
? Carrying out judicial training on the Protocol
? Engaging with law schools and bar associations on the Protocol
? Advocating around the appointments to the African Court
? States to sign declaration enabling individuals and civil society to file cases at the African Court
? Partnering with the Coalition on the African Court on the establishment and the appointment of judges to it that are competent in African women’s rights
? Increase the number of nominations to the African Court by November 30, 2005 — of the 14 nominations received only four are from women so far.

Maintaining Momentum on the Protocol

Many challenges clearly persist with respect to realising the Protocol. While the Protocol is not a ‘gift’ but concerns African women’s rights, its realisation will require commitment and creativity. It will require ‘building power’ nationally and regionally which entails expanding constituencies, being well-structured and informing ourselves about the opportunities for its advancement that already exist. It will also require consistent, strategic and sustained pressure on African states for its entry into force, its universal ratification, its domestication and implementation. We hereby promise our continued engagement in these processes and urge the engagement of all else concerned.

* Present during the conference were the following

Women, Gender and Development Directorate, African Union Commission, Commission of Political Affairs, African Union Commission, Office of the Legal Counsel, African Union Commission, African Commission on Human and Peoples Rights, Federal Ministry of Women’s Affairs, Government of Nigeria, Ministere charge de la Promotion de la Femme et des Affaires Sociales, Government of Dijbouti, Government of Malawi, Office of the Vice President and Secretary of State for Women’s Affairs, Government of The Gambia, Embassy of the Republic of Angola, Embassy of the Democratic Republic of The Congo, Embassy of the Republic of Gabon, Ministry of Gender Equality, Government of Namibia, African Centre for Democracy and Human Rights Studies (ACDHRS), Akina Mama wa Afrika (AMwA), Association des Femmes Juristes du Mali, Cellule de coordination sur les practiques traditionelle affectant la sante des femmes et des enfants (CPTAFE)-Guine, Child Rights Advisory, Documentation and Legal centre (CRADLE) – Kenya, Coalition on Violence against Women (COVAW) – Kenya, CREDO for the Freedom of Expression and Associated Rights, Eastern African Sub-regional Support Initiative for the Advancement of Women (EASSI), Equality Now – Africa Regional Office, Reseau Inter-Africain Des Femmes, Medias, Genre et Developpement (FAMDEV)- Regional, Federation of Women Lawyers – Kenya, Federation of Women Lawyers – Uganda, African Women’s Development and Communication Network (FEMNET), Forum Mulher – Mozambique, Inter-African Committee on Traditional Practises (IAC), Media Watch organisation-Mauritius, Open Society Initiative for West Africa (OSIWA), Pro-poor advocacy Group - The Gambia, Sister Namibia,
Tanzania Gender Networking Programme (TGNP), Urgent Action Fund Africa, Voix des Femmes –Burkina Faso, Women in Law and Development in Africa (WiLDAF), Women’s Legal Centre – South Africa, Women’s Rights Advancement and Protection Alternatives (WRAPA) – Nigeria, ActionAid International and Oxfam