Africa’s first women’s rights legal framework has the potential to benefit millions of women when governments not only ratify but also ensure its domestication in national laws, with accompanying resources for its implementation.
In Africa, women’s rights have been underrated, ignored and trampled upon. The place of the African woman is often regarded as that of being seen but not heard. Too often, culture is used as a justification for the denial of women’s rights. While every community has traditions which it holds dear, some customs have proven to be quite detrimental to women. For instance, female genital mutilation (FGM), wife beating, early marriages, denial of property rights and inheritance, to mention a few.
The mass violation of rights of women in Africa necessitated the creation of a legal framework that would unmistakably spell out their rights and advocate for protection of those rights by African states. The Protocol to the African Charter on Human Rights and Peoples' Rights (ACHPR), better known as the Maputo Protocol, was ‘birthed’ in response to this call. It became the first women’s rights legal framework for the protection of women rights in Africa.
The aim of this paper is to analyze a number of the rights and freedoms within the Maputo Protocol, the extent of implementation of these rights and the challenges encountered so far. The paper will also highlight several shortcomings of the protocol and recommend ways to remedy these.
BACKGROUND TO THE MAPUTO PROTOCOL
The Protocol to the African Charter on Human Rights and Peoples' Rights was adopted on 11 July 2003 by the African Union (AU). Prior to its adoption, the AU’s jurisprudence on women’s rights was almost non-existent. The AU Charter contained only one Article specifically referring to women in its 68 Articles . Furthermore, the Article bundled up the rights of women with the rights of other vulnerable groups such as the disabled, children and elderly. Inserting women’s rights into the context of an article referring to the family and other vulnerable groups proved problematic and inadequate. The detriment herein was the lack of the necessary specificity to enhance effective enjoyment of women’s rights. It is submitted that this inadequacy could be the main reason why no specific complaint dealing with women’s rights was ever forwarded to the AU for consideration, under the individual complaints procedure. There was therefore, a strong reason for having a protocol that specifically dealt with women’s rights and freedoms.
The Maputo Protocol stepped in to salvage this tragic situation. The Protocol aims to confront the continual discrimination, abuse and marginalization of women.
The preamble to the protocol acknowledges that women’s rights have been recognized and guaranteed in all international human rights instruments as inalienable, interdependent and indivisible human rights. State parties are thus obligated to ensure that any practice that hinders or endangers the normal growth and psychological development of women is eliminated, in order that women might fully enjoy all their human rights. As of April 2013, 48 countries had signed the protocol, out of which 36 had ratified. The government of Kenya ratified the Protocol on October 6 2010 and it has captured the fundamental provisions of the Protocol in the Bill of Rights in Chapter Four of its constitution.
SELECTED KEY PROVISIONS OF THE PROTOCOL
a) Elimination of discrimination against women
The Maputo Protocol is premised on the principles of equality between the sexes, the elimination of discrimination and the participation of women in all spheres of life. These fundamental principles run like a thread throughout the protocol. Article 2 of the protocol calls upon state parties to undertake appropriate legislative, institutional and other measures to eliminate all forms of discrimination against women. The states are also required to commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information and communication strategies. This is with a view to achieving the elimination of harmful cultural practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes.
To avoid any doubt as to the stance of the protocol on application of negative customary practices, it stipulates that women enjoy equal rights as men in marriage and in the dissolution of marriage; re- emphasizes the minimum age of marriage as eighteen years and provides for protection of women in polygamous marriages. Concerning rights to property, women enjoy equal rights to an equitable share of property deriving from a marriage. Upon death of the husband, a widow has the right to an equitable share in the inheritance of the property of her husband. Women also have a right to inherit in equitable shares, their parents’ properties. The protocol also spells out political rights of women. These include the right to equal participation in the political life of their countries as well and the right to equal representation in all electoral processes.
b) Violence against women
Explicit mention of violence against women is made in Article 4, which deals with the rights to life, integrity and security of the person. The Maputo Protocol notes a number of violations related to the aforementioned rights including protection of women from trafficking. It stresses that women should be protected from scientific experiments without their informed consent and calls upon state parties to enact and enforce laws to prohibit all forms of violence against women. The states are also required to allocate adequate budgetary resources for the implementation and monitoring interventions geared towards eradicating violence against women.
In comparison with the United Nations (UN) Declaration on the Elimination of Violence against Women, the Maputo Protocol’s version extends the definition of violence against women to conflict situations. History reveals countless instances where women were considered as ‘the spoils of war’. A case in point was during the Rwandan genocide, where women were targeted because of their sex and the violence inflicted upon them was even more atrocious as a result.
c) Elimination of harmful traditional practices
Article 5 of the Maputo Protocol deals exclusively with women’s protection from harmful practices. The section outlaws all forms of FGM, scarification and medicalization of FGM. State parties are required to eradicate elements in traditional and cultural beliefs, stereotypes, practice which exacerbate violence against women and to end all forms of harmful practices which negatively affect the human rights of women.
d) Economic, Social and Cultural Rights
The Maputo Protocol recognizes women’s economic, social and cultural rights noting that these rights, just like other rights, apply differently to women. It further notes that it is the denial of these rights that often leave women vulnerable to further abuse. Vide Article 13, the protocol guarantees women the freedom to choose their occupation, and protects them from exploitation by their employers. The protocol places a responsibility, not just upon the state, but also the private sector, of ensuring that child labor is eliminated and that children are protected. The state is further obligated to adopt progressive policies that support mothers in their work place and create conducive working conditions for them by providing for child care facilities.
e) Sexual and reproductive rights
The Maputo Protocol was the first human rights instrument to explicitly provide for the right to abortion in specific instances, such as rape, incest or in circumstances where the pregnancy endangers the life of the mother. The protocol clearly articulates the reproductive rights of women in Article 14. The section guarantees women the rights to decide on the number and spacing of children, choose any method of contraception, protection against sexually transmitted infections, be informed of one's HIV status and that of one's partner, amongst others. In this regard, state parties are obligated to provide adequate, affordable and accessible health services as well as information to women, especially those in rural areas.
f) Special Protections
A remarkable feature of the Maputo Protocol is its recognition that even among women, there are those who are more vulnerable due to a number of factors and as such, need additional protection. Such women include the elderly, women with disabilities and pregnant women in prison. As such, the protocol calls upon state parties to create an environment suitable for their condition and provide for their special needs.
ACHIEVEMENTS OF THE MAPUTO PROTOCOL
The adoption of the Maputo Protocol was a special moment; historical for the realization of the rights of women in Africa. Today, this instrument constitutes a model and an endless source of inspiration for the women in Africa. Its provisions, with regard to civil and political rights, reproductive health, non-discrimination, and economic emancipation, among others, symbolize African states’ commitments to put an end to gender stereotypes against women.
As previously noted, 36 out of 54 of the member states of the AU have so far ratified the Maputo Protocol. This is in itself a victory for those who over the years have tirelessly mobilized and worked to achieve this goal. The ratification and implementation serves as a key tool of lasting change in our society by inspiring the employment of the standards and obligations of the protocol, by government officials and other actors engaged in governance.
In addition to ratification, most state parties have undertaken legal and institutional measures to actualize the provisions of the protocol. Such measures include the enactment of national laws addressing particular issues captured in the instrument such as laws prosecuting perpetrators of sexual violence (Kenya and Liberia), prohibiting FGM (Uganda, Kenya and Zimbabwe) or establishing mechanisms mandated to promote women’s rights (Cote d’Ivoire and Senegal).
One of the most progressive elements of the protocol is that it provides clarity on the public/ private dichotomy debate. For a long time, this debate has ensued among states and human rights scholars, the question being the extent to which the state should intervene in the ‘private sphere’. Unfortunately, it is in the so- called ‘private sphere’ that numerous violation of women’s rights occur, for example domestic violence, rape and other forms of sexual violence. Feminists have argued for a long time that shielding the ‘private sphere’ from public scrutiny serves to perpetuate male domination in the family. In recognition of this fact, the protocol provides for the protection of women against all forms of violence, whether this violence takes place in public or in private. It places a burden upon states to enact and enforce national laws in order to achieve this goal.
Some countries have enacted laws criminalizing domestic violence, such as Ghana and Mozambique. Kenya is yet to pass the Protection Against Domestic Violence Bill 2012 which has been pending in Parliament for the past three years. In fact, male Members of Parliament in Kenya, have not shown any intention of passing the Bill into law; having dismissed it as ‘vague’, ‘ambiguous’ and not fit for the multi-cultural Kenyan society. They termed the law ‘a waste of parliamentary time’. Such lack of political good will is one of the drawbacks facing the successive implementation of the Protocol.
‘FIRSTS’ IN THE PROTOCOL
The Maputo Protocol contains a number of ‘global firsts’ in relation to women’s human rights. It is the first human rights treaty to explicitly call for the elimination of FGM.
It is also the first human rights instrument that specifically highlights women’s rights in the context of the HIV/ AIDS pandemic. The protocol provides for the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS and the right to be informed of one’s HIV status as well as that of one’s partner.
Last but not least, the protocol presents the first articulation in an international human rights treaty, of a woman’s right to abortion in cases of rape, incest and where the continued pregnancy endangers the life of the mother.
Despite its numerous progressive provisions, the Maputo Protocol still has some inadequacies and may have missed on opportunities to address a number of issues that continue to plague African women.
a) Rights of women living with HIV/AIDS
The Maputo Protocol fails to address HIV/ AIDS from a human rights perspective by omitting to connect it with other women’s human rights such as the freedom from discrimination, right to dignity and bodily integrity. Article 14 on the right to sexual and reproductive health, is limited in its scope to the extent that it only provides for the right to be informed of one’s status and that of one’s partners. It fails to appreciate that women living with HIV/AIDS face serious stigmatization and violations of their reproductive and health rights.
A case in point is the recent case of LM, MI and NH Vs The Government of Namibia (2012), in which the High Court of Namibia held that the Government of Namibia was liable for the sterilization of women living with HIV/AIDS without their consent and provided monetary compensation to the women. The protocol, therefore fails to effectively protect the rights of women as a special interest group who suffer due to their HIV/AIDS status.
b) Acceptance of the death penalty
The Maputo Protocol calls upon states that have the death penalty not to enforce it against pregnant women and nursing mothers. By so doing, it legitimizes the death penalty and misses an opportunity to encourage states to abolish the death penalty in totality.
c) Equal rights in respect to nationality
While the Maputo Protocol is clear on the elimination of discrimination against women, it is silent on the obligation of states to address the issue of the right of women to pass on nationality. Many countries have legislative limitations on the right of women to pass on nationality. For instance, until the Constitution of Kenya 2010, only men were permitted to pass on nationality. Therefore, the protocol in this instance failed to guarantee the equal right of women in respect to nationality, leaving it to the state parties’ discretion.
CHALLENGES FACING IMPLEMENTATION
Despite notable achievements, there are still some obstacles to the full realization of women’s rights on the continent. Eighteen states have still not ratified the protocol. In several of these countries including Sudan and Central African Republic, which are still facing serious political crisis, women continue to be the main targets of violence, discrimination and stigmatization.
In state parties, several of the rights enshrined in the protocol are yet to be fully implemented. In Democratic Republic of Congo, Guinea and Mali, thousands of women who are victims of sexual violence continue to demand justice. In Uganda, women are still waiting for equality within the family to be recognized while in Nigeria, they continue to fight for their right to property to become a reality. Unfortunately, most of the state parties do not adhere to the provisions of Article 26 of the Maputo Protocol which requires them to indicate in their periodic reports, the measures undertaken for the full realization of women’s rights.
It should also be noted that other challenging factors include non- respect of national laws by government officials, widespread corruption that encourages impunity, dysfunctions within the judiciary, and the inefficiency of legal assistance. These factors keep women, especially those from poor backgrounds, in the vicious circle of violence and insecurity. It would therefore be inaccurate to view the protocol as completely eliminating all forms of violence against women.
It is crucial that efforts are stepped up in order for women in the continent to reap the promise of the Maputo Protocol. The paper has discussed recommendations that could ensure this realization.
a) A multi-sectoral and integrated approach to implementation
The implementation of the Maputo Protocol is not the sole responsibility of any ministry or government agency dealing with human rights. The issue of women’s rights is cross- cutting; one that requires the efforts of all stakeholders. In this regard, state and non- state actors should partner to ensure effective implementation of the protocol in all its dimensions.
There are many women’s groups such as the Gender Is My Agenda (GIMAC) organization, as well as other interested civil society organizations such as the State of the African Union (SOTU). Together, such civil societies can complement governments by conducting education programmes to sensitize communities about the rights of women and raising awareness about the Protocol.
Monitoring should be carried out periodically and without complacency. In this regard, governments will have to demonstrate tremendous political good will in order to counter socio- economic constraints and harmful cultural practices.
c) The Role of Donor Agencies and the United Nations
International organizations and donors are encouraged to support the establishment of pools of lawyers through small legal aid fund so as to ensure effective legal representation of victims. It is also imperative that specific budgetary resources are devoted to the compensation and reparation of victims .The donor community can also support the development of capacities for data collection and for managing of the monitoring and reporting on the progress in implementation.
This paper has presented an analysis of The Protocol to the African Charter on Human Rights and Peoples' Rights; its successes, drawbacks and challenges facing its implementation and full realization of its provisions. It is clear that some of the issues raised by the Maputo Protocol have begun to be addressed, but more needs to be done. The protocol has the potential to benefit millions of women when governments not only ratify but also ensure its domestication in national laws, with accompanying resources for its implementation. Otherwise, it remains just a piece of paper.
 African Charter, Article 18(3)
* Mukumu Wairimu Irene is a student of Law at the University of Nairobi.
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