Gladys Mutukwa explains the international and regional mechanisms available for the protection of women’s rights. States cannot show a commitment at one level and act differently at another, she argues. Failure to ratify a critical home-grown instrument like the Protocol on the Rights of Women in Africa calls into question any purported commitments to the rights of women, she concludes.

Introduction

The need for the effective promotion and protection of the rights of women is no longer an issue as it is now widely recognised that without the equal and effective participation of half of the world’s population, the problems of growing poverty, hunger, HIV/AIDS and other development issues confounding our world today will continue to confound us. The Millennium Declaration and the Millennium Development Goals recognise that gender inequalities based on the subordination of women are intricately connected to the development challenges facing the world today.

It is always important to realise that the promotion and protection of the human rights of women is a development goal in its own right, as well as being one of the prerequisites for poverty reduction and sustainable development. The Beijing Platform for Action and the various international, regional and sub regional instruments on the human rights of women provide the framework and the tools for this.

As a result of this realisation, several instruments have been signed over the years at the international, regional and sub regional levels regarding the need to promote and protect the human rights of women. We see this right from the time of the United Nations Charter in 1946 that reaffirmed the equal rights of women and men. We see this principle of equality further elaborated and expanded on in the Universal Declaration on Human Rights adopted in 1948. A number of conventions and covenants followed in subsequent years, like the Covenant on the Rights of Married women, the Covenant on Economic, Social and Cultural Rights, the Covenant on Civil and Political Rights which require states parties to them to ensure the equal enjoyment by both women and men of the rights set therein.

In furtherance of this quest for protecting the human rights of women, the world community went on to adopt a Declaration which was later developed into the Convention on the Elimination of All Forms of Discrimination Against Women, which we all know as CEDAW, and later the Declaration on Violence Against Women. The efforts at this level are on -going.

At the regional level too, the African continent has not been idle. A number of instruments have been adopted with reference to or provisions on the rights of women. Notable among these is the 1981 African Charter on Human and People’s Rights (ACHPR), which essentially gave an African character to the principles on human rights, including equality and non-discrimination, agreed to and adopted at the international level. Issues of refugees, children’s rights, mercenaries, peace and security, corruption etc have been addressed in various instruments. Recently, the Protocol to the ACHPR on Women’s Rights was added to the list.

SADC as a sub regional institution has also developed and adopted a number of instruments including the famous Declaration on Gender and Development adopted in 1997 by the SADC Heads of State and Government. In 1998 an Addendum on the Eradication of Violence Against Women and children was also adopted.

All these efforts and instruments would just hang in the air and be of little help to any women unless they are complimented and completed by adoption of national constitutions and laws that adequately provide for the rights and equal status of women.

The Protocol to the African Charter on Human and People’s Rights on the Rights of Women

The above captioned Protocol (hereinafter referred to as the African Women’s Protocol) was adopted by the African Union Heads of State and Government in Maputo, Mozambique in July 2003. This Protocol is a legal framework for African women to use in the exercise of their rights as well as for states to use in promoting and protecting the rights of women. It was signed by thirty member states, five of them from Southern Africa. It was agreed by the Summit that the Protocol would be ratified and come into force in time for the next summit in 2004. That Summit has come and gone and unless we double our efforts, and move from the current ten ratifications so far, the goal post may be shifted again and again.

This will be a great letdown for the efforts to better promote and protect the human rights of the women of Africa who make up more than half its population and carry an unconscionable burden of poverty, disease and disempowerment.

This Protocol can rightly be called the Bill of Rights for African Women. It may not be perfect but it has the special distinction of addressing specific problems and issues that have been major constraints and hindrances for African women in the past. The Protocol covers fundamental issues like the right to inheritance, widowhood, affirmative action to promote equal access and participation in politics and decision making; rights of particularly vulnerable groups of women i.e. the elderly women, women with disabilities, women under conflict situations, pregnant women and nursing mothers, protection against harmful traditional practices. It also boldly addresses current and emerging issues like HIV and AIDS, refugee women, right to food security and adequate housing etc.

The Protocol, drawn up by Africans, addresses issues specific to Africa that were not covered by other instruments in addition to covering the other general human rights issues.

Sub regional context
Out of the twelve countries in the Southern African sub-region, only three countries have ratified the Protocol. Some of the countries did not even sign the Protocol and others are not treating the follow up steps seriously enough. Yet, this is a critical year for the sub region as at its next summit in August there is to be a report back on how far the Sates have gone in implementing the provisions of the SADC Gender and Development Declaration, especially the provision relating to having at least thirty percent of decision-making positions occupied by women. We are also engaged in assessing whether the Declaration has made a sustainable change to the lives of the millions of women in our sub region.

In order for the campaign to have the Protocol ratified by all the countries succeed, it is important for all of us to fully appreciate the importance of this Protocol, how it relates to other instruments that we are already engaged with like CEDAW, the SADC Gender Declaration an the Beijing Platform for Action. We also need to know why early ratification and domestication are critical to the issue of the rights, role and status of women in our countries.

The Protocol gives a truly African aspect to the issue of human rights for women. It more or less domesticates on the African continent what all our governments and states have committed to by ratifying CEDAW and other such instruments. The Protocol brings a very progressive aspect by addressing issues, in addition to usual ones that are critical to Africa, which are assumed under the other instruments.

History of the instruments on women’s rights

1. International level:

UN charter (1946); Universal declaration on Human Rights (1948); various Covenants on political, economic, social, cultural and others rights, Convention on the Elimination of Discrimination Against Women and optional Protocol, Convention on the rights of the Child

2. Regional Level

Instrument establishing the OAU (1963) African Charter on Human and people’s Rights (ACHPR-1981) Convention on the Rights of the African Child (1990) ; Protocol to the ACHPR establishing the African Court on human and People’s Rights (1998); Constitutive Act of the African union (2000); Protocol to the ACHPR on the Rights of Women (2003)

3. Sub regional level

Instrument establishing the Southern African Development Community; SADC Declaration on Gender and Development (1997) Addendum to the Declaration on the Eradication of Violence Against Women (1998).

Other sub regions are also in the process of developing instruments that bring the internationally agreed principles to talk to real sub regional issues and priorities.

4. National level

Constitutions, laws, traditions and customs.
Domestication

All the instruments require our states to include in their national constitutions and other legislative instruments the fundamental principles of equality of the sexes and non-discrimination and to ensure effective implementation.

The international, regional and sub regional instruments are complimentary and they reinforce each other. They are not contradictory. Neither are they in competition with each other. On the contrary, together they offer women a more comprehensive empowerment framework. But they all call for action at national level. This calls for ratification, domestication, implementation and monitoring and evaluation.

Parliamentarians can contribute in a very tangible way to the sustainable protection of the rights of the millions of women in all the SADC countries by, inter alia;

- Demanding the urgent ratification of the Protocol where this has not been done;
- Moving a motion for the domestication of its provisions, according to the relevant legal system;
- Ensuring that adequate and sustainable budgetary allocations are made for its implementation;
- Asking for the steps necessary for the effective implementation of the Provisions under the national legal system (domestication);
- Putting this item on the agenda for an update on the progress made;
- Ensuring that, as many people in your constituencies know the Protocol and its implications for the daily lives of women at all levels in the country so that they can demand its implementation..

It is important to realise that states cannot show a commitment at one level and act differently at another. Failure to ratify such a critical home- grown instrument calls into question any purported commitments to the rights of women. Furthermore it goes against the Solemn Declaration on Gender Equality adopted by all our Heads of State and Government that also calls for the quick ratification of the African Women’s protocol.

* Gladys Mutukwa is regional coordinator of the Women in Law and Development in Africa and a member of the steering committee of the Solidarity for African Women’s Rights Coalition. The paper was based on a presentation to the SADC regional women’s parliamentary caucus in May.

* Please send comments to [email protected]