Providing Pambazuka News readers with a clear linkage between women’s rights and Islamic law, Dr. Muhammad Tawfiq Ladan argues that a significant relationship exists between what the Protocol on the Rights of Women in Africa and Sharia have to offer to Muslim communities in Africa. Detailing the basis for women’s equality as provided for within the Quran and Islamic law, this article argues that Islam recognises that while men and women are not the same, they are certainly not unequal. The article concludes with a number of important recommendations for advocates working in African Muslim countries to ensure the rights of women.

This paper argues that the Protocol on the Rights of Women in Africa provides a strategic platform for advocates seeking to bring women’s human rights to the attention of citizens, organizations, governments and policymakers throughout Africa. It further argues that there is a significant relationship between the Protocol and the Sharia in terms of the objective, nature and scope of women’s rights.

Hence this paper seeks to realize the following objectives:

1. To provide an overview of the Protocol with special emphasis on the key survival, development, protection and participation rights of women in Africa;
2. To establish a significant relationship between the Protocol’s core provisions and the Islamic perspective on gender equality.
3. To conclude with some viable options for effective strategies in promoting and protecting women’s rights in Africa.

The Protocol on the Rights of Women in Africa

This part of the paper seeks to highlight the significance and potential of, and the rationale behind the Protocol and to examine the key provisions of the protocol relating to women’s rights in Africa.

Significance and Potential of the Protocol

The African Union adopted on July 11, 2003 in Maputo, Mozambique, a landmark treaty known as the Protocol on the Rights of Women in Africa (the protocol) to supplement the regional human rights charter, the African Charter on Human and People’s Rights (the African Charter). The protocol, which entered into force on 25 November 2005 after securing 15 ratifications by African governments, provides broad protection for women’s human rights, including gender equality and justice.

The significance and potential of the protocol go well beyond Africa. The treaty contains a number of global firsts. For example, it represents the first time that an international human rights instrument has explicitly articulated a women’s right to abortion when pregnancy results from sexual assault, rape, or incest; when continuation of the pregnancy endangers the life or health of the pregnant woman; and in cases of grave fetal defects that are incompatible with life. Another first is the protocol’s call for the prohibition of harmful practices such as female circumcision/female genital mutilation (FC/FGM), which have ravaged the lives of countless young women in Africa.

The protocol can help advocates pressure governments to address the underlying social, economic, political, and health-care issues that contribute to the dismal states of women’s conditions throughout Africa, and through the reliance on the Quranically dictated values on gender equality, links to the protocol can be established in order to strengthen the rights of Muslim women throughout the continent.

Gender Equality and Justice under the Sharia

The Sharia, technically referred to as a ‘believer’s law’ in Islam, has two components. The divine component is founded on the provisions of the Holy Quran and the Sunnah of the Prophet of Islam. The human component of the Sharia is largely rooted in the exercise of ijtihad, technically referred to as the human initiatives to embark on research, provide judicial interpretations of the provisions of the divine component of the Sharia, resort to legal opinions or fatwa, juristic analysis, discourse or interpretations, as well as analogical deductions of rule by qualified mujtahids or scholars from the letter and spirit of the Holy Quran. Hence while the divine component is immutable, the human aspect of the Sharia is liable to err.

It is generally thought that the Sharia treats women unfairly and gender equality and justice are not possible within the Islamic legal system. This assertion is partly true and partly untrue.

Partly true as far as the resort to the process of ijtihad, the outcome and application of this process is not reflective of the changing needs and circumstances of the Muslim Ummah and not consistent with the values that the Quran repeatedly asserts in four words: ‘adl (Justice), ihsan (Benevolence), rahmah (Compassion) and hikmah (Wisdom). These Quranic values are very close to, and in fact, are the essence of human rights. One cannot think of human rights of any individual or group in the modern world without these values. Justice is as fundamental to human rights as benevolence, compassion and wisdom are. One cannot have a humane society without it being a just society.

The notion is partly untrue as far as the concept and respect for human rights are quite integral to the teachings of the Quran and the practice of the Prophet. Both the Quran and the Sunnah have remained for Muslims the framework within which to promote and protect these individual/group human rights. And the Quran has recognized and supported women’s rights in particular to: independent ownership of property, education, inheritance, free consent in marriage, divorce, child custody, voting rights, and to full legal capacity. However, there is the need to improve on women’s access to justice and to practically enhance gender equality in Muslim societies.

Quranic Perspectives on Gender Equality

The expression “Quranic perspective on Gender Equality” was judged to be the most suitable title for it orients us towards discovering those core principles in the Quran itself which form the understanding framework for our societies throughout the Muslim world. It is a society based on Quranic principles which is the goal of all Muslims, even though we may unknowingly deviate from time to time from those principles. It is the conference to a Quran-based society for which we must all work if the Muslim peoples are to enjoy a felicitous future. It is not an Indonesian, Pakistani, Saudi Arabian, Egyptian, Sudanese or Nigerian version of that society that we should regard as the indisputable norm, but one firmly based on the teachings of the Holy Quran. Only therein can we find a proper definition of women’s role in society. Since it is these teachings which are the subject of this sub-heading, the above seemed the most proper title.

By this choice of title one needs to emphasize that Muslims should regard the Holy Quran as our guide in all aspects of our lives. It is not only the prime source of knowledge about religious beliefs, obligations, and practices, it is also the guide, whether specific or implied, for every aspect of Islamic civilization.

As a step in this direction, let us consider what the Quran has to teach us about gender equality in the society towards which we should be striving, and ponder its effect on the position of women. What are the basic characteristics of a Quranic society which particularly affect women?

Five characteristics, which seem basic, crucial and incontrovertible of Quranic society are to be considered. Although they are presented in a series, each one rests upon the others and affects them. The interdependence of these five characteristics makes it difficult to speak of any one of them without mention of the others, and of course they do not and cannot exist in isolation from one another.

The characteristics include the following:

The Quran acknowledges the equal status and worth of the sexes, and the first of these Quranic confirmations of male-female equality are contained in statements pertaining to such religious matters as the origins of humanity, or to religious obligations and rewards.

Secondly, Muslims abide by a dual sex society rather than a unisex society. While maintaining the validity of the equal worth of men and women, the Quran does not judge this equality to mean equivalence or identity of the sexes. The society based on the Quran is, in contrast, a dual-sex society in which both sexes are assigned their special responsibilities. This assures the healthy functioning of the society for the benefit of all its members.

Third, of utmost importance is the interdependence of all members of society. Contrary to the contemporary trend to emphasize the rights of the individual at the expense of society, we find the Quran repeatedly emphasizing the interdependence of the male and female, as well as of all members of society.

Fourth, the value of the extended family is synonymous with Islam, as it serves to improve male-female relations. Thus, family connections reaching far beyond the nuclear unit are evident in strong psychological, social, economic and even political ties.

The fifth basic characteristic of a Quranic society is that of patriarchy. In order to acquire stability and cohesiveness, within Islam, patriarchy dominates, with men assuming responsibility for maintaining society.

The above analysis thus demonstrates that while women and men may be different, they are still equal, and as such, deserve equal treatment. The Quran thus provides the basis from which women are to be seen within Muslim communities, while the protocol offers the legal protection for all African women, including those living within an Islamic context.

Conclusions and Recommendations

It is evident from the above analysis that, both the Protocol on the Rights of Women in Africa and Islamic law recognize the crucial role of women in the preservation of family and societal values and seek to promote and protect women’s rights as human beings, then as citizens of their respective states, and finally as members of a vulnerable group that are largely abused, disadvantaged, marginalized and discriminated against in every human society.

Further, how men and women (especially political and public office holders, religious and community leaders, gender insensitive scholars, policy formulators and implementers) perceive women’s rights and to what extent their decisions and behaviour reflect a concern over such rights, are questions that require: continuing human rights education; aggressive public enlightenment campaigns; multidisciplinary research and a cross-cultural approach to the understanding, articulation and promotion of women’s rights as human rights in the civil, political, social, economic, cultural, environmental and development contexts.

At the same time, because legal and policy reforms and ideas about human rights can only provide a receptive context for changes in behaviour and do not by themselves produce these changes, it is important also to devote our attention to the practical realities that would support or hinder these reforms. These range from the economic and health infrastructure, to patterns of family formation and dissolution, and the diffusion of ideas through education and exchange. In other words, to all those conditions that are prerequisite to the effective protection of women’s human rights and the promotion of gender equality and gender justice.

Viable Options for Advocates

First, advocates in countries that have not yet ratified the protocol should press their governments to ratify.

Second, there is the need to uphold the protocol’s objectives. Any state that ratifies the treaty immediately assumes an obligation to uphold its stated objectives: to ensure the promotion and protection of women’s human rights; to ensure the implementation of the protocol at national level; and to submit periodic reports to the African Human Rights Commission, as well as provide appropriate legal remedies to any woman whose rights are violated. The adoption and repeal of legislations, implementation of policies and programmes, and enforcement by national-level courts and other mechanisms of existing legal standards can fulfill the obligations outlined in the protocol.

Third, advocates can lobby governments to reform national laws and policies that hinder women’s human rights under the protocol. Fourth, advocates need to push national and local policymakers to enact policies and programmes that seek to fulfill women’s human rights: - e.g., violence against women; sexual discrimination against women; a woman’s right to sustainable development and to participate in governance, decision-making process at all levels and in politics. Fifth, advocates can bring cases before national courts to help address violations of women’s sexual and reproductive rights, rights to a healthy and sustainable environment etc. Sixth, treaties help advocates articulate the nature and content of women’s human rights. The language of the protocol, therefore, may be used to educate women and men, policymakers, and advocates on the meaning and significance of legal standards, entitlements, and obligations as they apply to women’ rights in Africa. Seventh, conduct trainings for those who protect, promote and advance women’s rights in Africa on the African Human Rights System and the role of the protocol.

Finally, advocates need to lobby member states of the African Union to ensure that the African Human Rights Enforcement mechanisms are effective.

*This article is comprised of extracts as well as summary from a longer paper presented at a symposium co-convened by the Babiker Badri Scientific Association of Women, Afhad University for Women, which was organised by the Solidarity for African Women’s Rights (SOAWR) Coalition during the 6th African Union Summit in January of 2006 in Sudan.

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