In early June, Niger’s parliament voted against the African Union’s Protocol on the Rights of Women in Africa by 42 votes to 31. Sibongile Ndashe urges the country to rethink it position.

African Union (AU) member states continue to deposit instruments of ratification of the Protocol on the Rights of Women in Africa and these are developments that we continue to note with renewed belief in the AU’s commitment to upholding gender equality. This is why Niger’s stance should not pass without comment.

It is a serious set back for Niger, that the country could have saved and should still save herself from. It is a set back for the women who fought and lobbied to see the Protocol come to fruition. It is a greater set back for women in Niger in particular. In a meeting that was held in Pretoria, in May, that was aimed at accelerating the speed of ratification and domestication of the Protocol, there were women present from Niger. The fact that on 18 January 2005, the Niger executive arm of government had approved the ratification of the Protocol and that the only outstanding issue was the adoption of the motion by the legislature was seen as an exciting development.

It is still not clear what went wrong. Niger is not a country that is fundamentally opposed to women’s human rights. Niger signaled its intentions to take women’s human rights seriously when it acceded to the Convention on the Elimination of Discrimination Against Women (CEDAW) on 08 October 1999. On 30 September 2004 Niger acceded to the CEDAW optional protocol. CEDAW has been referred to as the international bill of rights for women and the Protocol’s unique selling point is that it is seen as a regional bill of rights that aims to ameliorate hardships specifically focusing on the context upon which African women’s human rights violations are located.

Niger was party to the adoption of the AU solemn declaration on Gender Equality in July 2004. The solemn declaration has no legal force. It is a commitment by members of the AU to implement gender-specific measures related to: Economic, social and legal measures on HIV/AIDS; Gender mainstreaming of peace processes; and Systematic prohibition of the abuse of girl children as wives and sex slaves. It relates to systematic prohibition of trafficking in women and girls; Promotion of the gender parity principle; Guarantee of women’s land, property and inheritance rights; Education of girls and increasing the literacy of women, especially in rural areas; and Enforcement of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

It also sets out in great detail the measures that will be adopted in order to give effect to the commitments. States undertook to sign and ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa by the end of 2004 and to support the launching of public campaigns aimed at ensuring its entry into force by 2005.

There is more that has to be said about the Protocol that makes the Niger outcome even more baffling. CEDAW and the African Protocol on women’s rights are not mutually exclusive, if anything they serve to complement each other. The Protocol is not a radical document. There are conflicting opinions on whether the Protocol can even begin to call itself a feminist document. It seeks to negotiate space for women, asking that reasonable accommodation be made for women. It does not seek to dismantle patriarchal institutions, if anything it works around these institutions. Evidence of this compromise can be found on the provisions dealing with polygamy and inheritance rights. It is a compromise document and this is why it is really not clear what Niger law-makers could have found objectionable.

The proper application of democratic principles needs to be understood in its proper context. While it remains undisputed that Niger is a sovereign state and that the decisions made by its legislature have to be given full effect taking into account the powers given to the legislature in the Constitution, the understanding of the strict notions of sovereignty are increasingly showing signs of shifting. State parties, by engaging with the international community, at the very least are asking to be tested against standards that they have agreed to in international forums. Citizens of those countries also have a legitimate expectation that the instruments that its government binds itself to will see fruition at a country level.

The mere fact that the lawmakers voted against the Protocol should not be heralded as the proper application of democracy. It is not just what one votes against. If anything, the Protocol would serve to support democracy. Overemphasis on sovereignty and democratic principles on issues that pose no threat to a country’s sovereignty or democratic principles seems like an easy way out of a difficult situation.

It is hoped that Niger will be open to experiences of how other states have engaged with the Protocol. The Gambia serves as a good example in this regard. Initially the Gambia had ratified the Protocol with reservations but after careful consideration of the reasons behind the reservations by both the Gambian civil society formations and the state the reservations were lifted.

Niger owes it to herself and its citizens to reconsider why it did not pass the Protocol. If after engagement with the document it is still convinced that what is envisioned is not a society that Niger aspires towards then at the very least they could ratify with reservations. But it is unacceptable that the proper application of democratic principles and the rejection of the Protocol could be found next to each other.

* Sibongile Ndashe is an attorney with the Women’s Legal Centre, Cape Town, SA

* Please send comments to or comment online at www.pambazuka.org

My attempt to construct a response to the epic that has become the Zuma trial was interrupted by a phone call. One that I found extremely irritating yet useful in its insistence that I contextualise one of the things I consider problematic in the discourse on gender based violence. Part of my irritation stems from the fact that at the time of the call I was trying to write a difficult piece on the intersect between race, gender, class and why the division of the women’s movement between madams and maids makes it difficult for black women to enter this discourse without first making apologies for the other sector they represent – their ‘womanness’ or their blackness.

The caller wanted to voice his disappointment with a comment I made on a TV programme where I said “…that the Zuma judgment is a set back for women’s rights.” He charged that such a statement meant that women’s rights would have been realised had Zuma been found guilty. And that it suggested that every person accused of rape had to be found guilty, regardless of the evidence before the court.

I could not help but notice how unfortunate this deduction was. It helped that the caller was a lawyer, and I was able to remind him of the distinction between a verdict and a judgment. My caller’s disappointment stemmed also from my perceived failure to endorse or reject the verdict. Why was it my duty to refocus attention on the law, in the three minutes I had? Why did my dissatisfaction with the judgment have to necessarily draw an adverse inference for potential rapists? This distraction is quintessential of the sidetracking that forces black women to engage on fringe issues, whilst attempts are made to silence our voices. I mentioned the treatment meted to K in support of my dissatisfaction. I told him that I did not understand why I needed a password to enter a discussion on gender-based violence, as protection from having to respond to things that I did not say, because not saying them meant I was saying something about Zuma.

The password is often a demand for qualifiers that have become a pre-requisite for debate on gender-based violence. So one needs to say ‘not all men are rapists, and that in the past some people have been falsely accused.’ Had I said that, I would have unlocked my audience. Fact - sexual violence disproportionately affects more women than men, but it does not follow that men do not count amongst survivors of sexual violence. Women lay rape charges, but it does not follow that all of these charges are true. There’s a distinction that I feel needs to be drawn, (one which we are all too eager to draw in other spheres of life), and that is that the norm in rape cases is that most of the complaints are not false, and the fact that some women lie is an exception. Therefore the eagerness to entrench an exception as a norm in rape cases - that women lie about rape - is at the heart of the demand for the concession that this judgment is indeed the correct one.

I have difficulties with Judge Van der Merwe’s judgment, when he finds that an extract from a draft autobiography, regarding K’s ‘experience with a penis’ when she was five, is relevant in determining her sexual history. In this instance there was no accused person, nor a charge of rape. This ‘experience with a penis’, which exists in the autobiography, is made relevant because in it she called it a rape. Acceptance of that evidence, that relates to how a person chooses to name an invasion of her person by a penis at that age, in a private document, not prepared for court, is what I call a set back for women’s rights. Accepting evidence from a gang, who claim to have had consensual sex with a thirteen year old, as relevant in determining whether she had a history of making false rape accusations, constitutes a set back for women’s rights. Disputes about whether there was vaginal penetration or ‘a series of thrusts between the thighs’, an experience that a thirteen year old should rightfully call rape, constitutes a set back for women’s rights.

So, although I think the verdict of an acquittal is a correct one, in law at least, because the state failed to prove its case beyond reasonable doubt, my immediate reaction to the judgment is a NO! and not a statement that extols Van der Merwe’s virtues and legal acumen in acquitting Zuma in a manner that is so inimical to K’s dignity in any civilised society - let alone in a country that lists human dignity, achievement of equality and the advancement of human rights and freedoms as its foundational values.

* Sibongile Ndashe is a woman who works with the law but believes in justice

* 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

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