Women, Equality And the African Human Rights System
13 November 2007
Posted to the web 15 November 2007
By Roselynn Musa
Roselynn Musa writes that despite the promises and the mobilisations by women from all over the continent, African women still lack adequate protection of their human rights. She argues that the root of the problem is the persistent lack of political will by governments to implement commitments to gender equality.
The 21st century marks a critical juncture in the promotion and protection of a human rights culture in Africa. As the world becomes more interdependent, regional systems of cooperation are playing an increasingly important role in the promotion and establishment of a positive international human rights order.
African states have committed themselves to various international and regional policy documents. The most significant international gender mechanisms are the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Beijing Platform for Action (BPfA) of 1995, the African Charter on Human and Peoples’ Rights (the charter, hereafter), the International Conference on Population and Development’s Programme of Action (ICPD PoA), the African Union’s Solemn Declaration on Gender Equality in Africa, the New Partnership for Africa’s Development (NEPAD), the Millennium Development Goals (MDGs), and the constitutive act of the African Union. In signing up to the MDGs, 191 governments resolved to promote gender equality as a goal in its own right, but also the empowerment of women in order to combat poverty, hunger and disease and to stimulate sustainable development. NEPAD also stresses equality and enhances women’s rights through its African Peer Review Mechanism (APRM). All these conventions and policy frameworks commit governments to address gender equality, equity and women’s empowerment. They are subject to periodic reviews to measure the extent to which they have been delivered.
Over the past year these reviews have generally shown that Africa has made some progress at all levels. Most countries have developed national gender machineries and policies, but the majority of their strategies have not been implemented. Despite all these promises and first-class commitments, African women are no better off than when they started. The promises have moved a shoe size further on, if at all. The stagnation in some respects and deterioration in others are worrying, particularly given the level of mobilisation of women and advocacy by women’s rights activists from all over the continent. At the root of the problem lies the persistent lack of political will on the part of African governments to implement commitments to gender equality.
This paper explores the relationship between the international and regional policy framework on women’s human rights in Africa and its actual implementation. It discusses the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (from here onwards referred to as the protocol), compares it with other instruments and highlights what makes it unique. It concludes with the challenges encountered in promoting women’s rights and recommends accelerated implementation of gender policy commitments in Africa.
The Protocol on the Rights of Women in Africa
The protocol seeks to address the shortcomings of the international instruments that preceded it in addressing African women’s rights. It has proven to be a much-needed improvement on the way in which the AChHPR addressed the position of women in Africa. It applies CEDAW and BPfA in an African context.
The protocol has three sections. The first sets out its rationale and refers to both regional and international commitments on women’s rights. The second outlines the rights to be upheld by the protocol, and the third covers its implementation and addresses the procedures for adopting, monitoring and amending it.
The protocol is the first instrument to be developed by Africans for women in Africa. It builds on and strengthens other regionally negotiated issues that have been detrimental to women’s human rights. It challenges cultural behaviour and traditions that often violate the fundamental rights of women in Africa. The inclusion of articles concerning widows and inheritance rights is regarded as a breakthrough, for these are issues particular to African women which are normally swept under the carpet. And it gives women a line of defence on which to base their appeals in cases where they have been unsuccessful in challenging national discriminatory laws or practices.
The entry into force of the protocol reflects a growing awareness that women are equal members of society, and that they are participants and not simply beneficiaries in the development process. Prosperity on the African continent requires the promotion and protection of the rights of all African peoples, as well as adherence to the principles of gender equality and non-discrimination.
From the above it can be seen that the African Union has plans and programmes to ensure that its member states are part of the global effort to advance the principle of gender equality in Africa.
At the national level, the procedure for domestication of CEDAW and the protocol is a major challenge. While several countries have acceded to CEDAW, many have not taken the extra step to domesticate it and make it part of their national laws. What this means in effect is that its provisions cannot be directly applied in national courts. States parties do not always have the political will to implement commitments made at the international level.
The challenges faced in implementing CEDAW are a good indication of those the protocol will face, from which important lessons can be drawn. The mandate of the CEDAW Committee is to monitor its implementation by the states parties which have ratified it, and this is done through periodic reports. Unfortunately this is one area that has not been taken very seriously by states parties. Many have two or more reports outstanding, while some have submitted none. This is a major challenge to the committee’s work.
While the process of reporting is thorough, to a great extent it remains in the hands of governments; NGO participation is weak. The examination of states parties’ reports is not intended to be adversarial, but should be done in a manner that promotes constructive dialogue between the states parties and the committee.
The African Court on Human and Peoples’ Rights is an approach of last resort when all other domestic remedies have failed to provide satisfactory results. Pending the full establishment of the African Court, the African Commission on Human and People’s Rights (the commission, hereafter) is seized with matters of interpretation arising from the application and interpretation of the protocol. The commission was established under Article 30 of the charter. Its primary responsibility is to promote and ensure the protection of human rights on the continent. Its four areas of mandate are: promotional activities, protective activities, the examination of state party reports and the interpretation of the African Charter on Human and Peoples’ Rights. It holds regular sessions twice a year in around April and November and can hold extraordinary sessions.
The commission has 11 part-time members. They are independent experts and act in their personal capacity rather than as representatives of their governments. The integration of the protocol into the implementation mechanism of the commission is consistent with the provisions of the charter itself. It will ensure that women whose rights under the protocol have been violated will have final recourse to the African Court to have their rights established and enforced. Furthermore, individuals other than the victims themselves, as well as human rights NGOs, can bring a complaint on behalf of the victims to the court.
One of the challenges facing domestication of the protocol is the multiplicity of legal systems in most African countries. While in a few countries international treaties, once ratified, automatically become part of national law, in most cases they have to be passed by an act of parliament to bring them into effect.
It is encouraging that the constitutive act of the reinvigorated African Union, which replaced the Organisation of African Unity, and the creation of the African Court on Human and Peoples’ Rights has emboldened women’s rights advocates to press for more vigorous enforcement of international and regional commitments.
Unique features of the protocol
The protocol was drawn up after many other treaties and therefore has the advantage of hindsight. It was able to draw on the best parts of earlier documents while also dealing with issues they omitted. The protocol is closely modeled on CEDAW; there are more similarities than differences between the two. The differences are mainly in those areas that concern African women and that CEDAW mentions in the abstract or not at all. The protocol names specific rights and defines violence against women. Its definition of a woman is comprehensive and includes the girl-child. It is culture-specific and therefore very valuable in challenging negative cultural practices. Unlike CEDAW, the protocol places explicit obligations on states to set aside resources to eliminate discrimination against women and to punish people or organisations that practice it.
There was initially stiff resistance to the protocol on the grounds that women in Africa do not need a separate provision, and that a clause on non-discrimination against women in the African Charter on Human and Peoples’ Rights would suffice to take care of the women’s rights issues that were omitted from it. The charter is perhaps distinct from other regional systems of human rights protection in that it has specific provisions that address the rights of women. This is apart from the commonplace provisions on the rights to equality and freedom from discrimination characteristic of most international instruments of this kind. With regard to the rights of women, the charter provides that ‘The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’ (Article 18 (3)).
However, this provision has been regarded as too general, giving no substance to the rights of women, thereby placing these rights in a situation that has been described as a ‘legal coma’. Addressing the rights of women alongside those of children is also criticised. While recognising that both women and children have been victims of enduring violence, it raises the question of why the latter are equated with the former. Nevertheless, the charter is seen as creating the bedrock for the protection of women’s rights in Africa. It provides a basis from which states have to account for the status of women and the protection of their rights within national legal systems. And it enjoins African states to take positive steps to ensure that their national laws and policies seek or result in the attainment of these two primary goals. Since then there have been significant developments towards a more comprehensive legal regime for the protection of women’s rights in Africa, resulting in the drafting of the protocol to the charter.
The protocol can be a tool that forces states to prioritise legislative measures to eliminate harmful traditional practices. It provides a foundation on which human rights acquire legality in the African context, and a basis for assertions that African women’s rights to equality are no longer contested. What is critical at this point is to see greater dynamism from domestic courts, the charter and the African Court on Human and Peoples’ Rights in giving meaning and precedence to the protocol.
The protocol attempts to invigorate the charter’s commitment to women’s equality by adding rights that it omitted and by clarifying governments’ obligations. Only one of the charter’s more than 60 articles makes specific reference to women. These are some of its shortcomings:
• Its failure to define explicitly discrimination against women
• Its lack of guarantees concerning the rights of women to consent to marriage and equality in marriage
• Its emphasis on traditional values and practices that have long impeded the advancement of women’s rights in Africa.
Some of the most serious violations of women’s rights in Africa take place in the private sphere of the family and are reinforced by traditional norms and cultural values. Article 17 (2) and (3) of the African Charter on Human and Peoples’ rights states that every individual ‘may freely take part in the cultural life of his community’, and that ‘the protection and promotion of morals and traditional values recognized by the community shall be the duty of the state’. The only specific reference to women’s rights is contained in a clause concerning the family and the upholding of tradition, thereby reproducing the tension that plagues the realisation of women’s rights in Africa. Indeed, the charter has been interpreted as protecting customary and religious laws that violate women’s rights, such as their rights to equality and non-discrimination, to life, liberty and the security of the person, and to protection from cruel and degrading treatment.
The protocol recognises women as individual human beings rather than members of communities or families. It deals with discrimination in both the public and private realms and targets both direct and indirect discrimination. It also moves equality from an abstract concept to something that states parties are expected to take concrete measures to address.
Most importantly, however, the protocol offers a real remedy for women at the regional level. It gives women victims of human rights violations somewhere to turn, providing them with practical access to bodies which will understand the implications of their experience. But this potential will only be realised if states parties ensure that they protect women’s rights in practice and work to implement the commitments they have made.
The campaign: Solidarity for African Women’s Rights (SOAWR)
While acknowledging the scale of the challenges, I also want to celebrate our achievements by recognising the efforts of Solidarity for African Women’s Rights (SOAWR), a coalition that has been working tirelessly to advance the cause of the protocol.
SOAWR is a regional network of 26 civil society organisations and development partners working towards the promotion and protection of women’s human rights in Africa. Since its inauguration in 2004, SOAWR’s main focus has been to get those countries that have not yet ratified the protocol to do so urgently, while at the same time encouraging those that have ratified it to domesticate and implement it at the national level. SOAWR also works to persuade countries that have ratified the protocol with reservations to remove harmful reservations that would constitute a denial of some of the most important freedoms and rights of women recognised in the protocol.
SOAWR has been using all the instruments at its disposal and has capitalised on every opportunity to move the campaign forward: writing petitions, direct advocacy with national and regional leaders, mobile phone SMS service, publications in different languages, AU pre-summit civil society forums, public forums, press conferences, coloured rating cards, and so on. SOAWR is currently documenting the advocacy strategies it has used in its campaigning. This was an idea which came from a meeting of SOAWR members immediately after the pre-summit activities they organised in Accra, Ghana, in June 2007. They decided to document their efforts to provide a clearer understanding of what was being done to encourage ratification and domestication of the protocol, and to offer inspiration and a means of action to the Africa-wide movement for the endorsement and domestication of the protocol.
I hope that SOAWR will continue to create a platform for debate and dialogue on the disjuncture between international instruments and their national implementation in Africa and to identify strategies that researchers, activists, and government officials can apply to bridge that gap. Gender activists should also join their voices to civil society coalitions such as SOAWR to continue calling for the removal of the structural barriers that face women.
Obstacles and challenges
The domestication and further ratification of the protocol have been slowed by a lack of political will. Even though most countries have established national gender machineries, these are weak and lack adequate authority, capacity, human resources and funding. This is coupled with inadequate skills in gender analysis among planners and implementers, and limited gender awareness within communities.
The African Court on Human and Peoples’ Rights, which is an important tool in interpreting the protocol, is not yet fully functional. Even when it is, access to it by civil society organisations, which have been the main champions of the protocol, will be limited to those countries that have signed a declaration to facilitate such action.
Women’s participation in politics and decision making remains low, and this slows down their influence on governments to carry out their obligations under the protocol. Women’s access to justice is further inhibited by illiteracy and ignorance of their rights and how to access them. Some cultural and traditional practices continue to hold back progress in realising the provisions of the protocol.
Most of the human rights instruments set a ceiling and a floor as frameworks that women can use to combat discrimination in its many forms. However, these tools in themselves are not perfect. For example, the language employed in some of them is either too complicated or too broad or both; this could create problems of interpretation, especially at the national level. They also fail to address the issue of recourse in cases of non-compliance. It has been said that they can only bark because they lack the teeth they need to bite. The consequences of non-compliance and non-enforcement need to be built into them.
Another problem is the strategy of placing reservations on some key provisions. This negates the principle of women’s rights as first and foremost being inalienable, integral and indivisible.
One other obstacle that has been identified at the national level is that few lawyers are aware of the protocol and are therefore unable to cite it in support of their arguments. Not many law students take up courses in gender and the law where these are part of the curriculum, hence their ignorance about the protocol and other women’s rights instruments.
Effective implementation of international human rights standards for women has depended so far on the will of individual states. Cultural and religious practices are often used to undermine the implementation of provisions concerning women’s rights. Reliance on the good will of governments to implement international agreements has not yielded positive results. CEDAW was seen as foreign, but even though the protocol is home-grown, our governments have not treated it differently as far as implementation is concerned.
Women’s empowerment requires a higher level of involvement by women in governance and decision making. Systemic and structural barriers that prevent them from participating in decision making at all levels need to be removed.
The media can play an important role in promoting equality. Women’s press and communications initiatives and the use of technology to promote women’s activities should be supported.
The proliferation of instruments has also been cited as a possible factor hindering compliance because each one requires a different reporting and accounting procedure, thereby placing a huge burden on states. There is also inadequate dissemination of information about these instruments at the local level.
A number of African states have bound themselves to international human rights instruments, but only a few have actually taken steps to make them enforceable within their countries. It seems that our governments ratify such instruments not because of a political commitment to their content, but because of political expediency and in order to maintain a good image. The failure to domesticate these commitments remains a big problem.
The multiplicity of laws in different countries is such that most countries will have to enact new legislation to domesticate the protocol after ratification. A number of countries that have ratified the protocol, such as South Africa and Mauritius, did so with harmful reservations, signifying their unwillingness completely to abandon practices that discriminate against women. The legitimacy of entering reservations on the treaties may be questionable because of the substance of such reservations.
Mainstream international human rights standards are defined in relation to men’s experiences and are stated in terms of discrete violations of rights in the public realm, whereas most violations of women’s rights take place in the private realm. The public/private dichotomy that is so detrimental to women’s rights continues to exist.
The drafters of the protocol were very much influenced by the contents of CEDAW as well as the work of the CEDAW committee. It is therefore obvious that to ensure effective implementation of the protocol, Africa should draw on the experience of the CEDAW committee.
It is evident from the preceding paragraphs that the adoption of the protocol is a significant development that will ensure the full integration of women’s human rights within the overall human rights framework in Africa. The protocol will allow both the African Commission and the African Court on Human and Peoples’ Rights to elaborate how the rights recognised under it should be guaranteed in real-life situations.
The role of international instruments and other initiatives cannot be underestimated. Broad legitimacy beyond the nation state has created some leverage to pursue the gender agenda. However we are faced with growing failure to translate these instruments into reality in the domestic context. The gap between the commitments and their implementation is becoming ever larger, raising the question: what needs to be done? We should consider both individually and collectively what we can do to ensure that implementation takes place.
There is no denying that it is very important to have these commitments on paper as markers of progress. What is more important though is using them to ensure actual change in the lives of women. We have to be careful that the gains won in Beijing are not turned back.
There needs to be a specialist body similar to the CEDAW committee to monitor implementation of the protocol. The African Commission on Human and Peoples’ Rights, in its work to monitor the charter, has not paid enough attention to the protocol. Even though it has appointed a Special Rapporteur on the Rights of Women, this office needs more human and financial resources to carry out its mandate effectively. States parties are bound by Article 26 of the protocol to report on progress in its implementation, but they are not likely to take this seriously if they are not required to report to a particular body specifically set up to monitor the protocol.
The teaching of women’s rights should be incorporated into the curriculum of law faculties as a core discipline, to ensure that lawyers leave school knowing not only national laws but also regional and international instruments that protect women’s rights.
Women’s rights organisations and coalitions such as SOAWR should be supported to monitor implementation of the protocol. They should be assisted financially to participate in commission meetings and to prepare shadow reports when country reports are being considered.
Steps should be taken to institute in full the African Court on Human and Peoples’ Rights without further delay.
Women should be encouraged to participate in political processes at all levels and in portfolios that have significant policy roles. Members of parliament also have an important role to play in passing legislation, initiating private members’ bills and demanding ministerial statements on obligations undertaken.
The media could also contribute by disseminating information on the progress of the protocol and its benefits to citizens so that they can demand implementation.
All the rights in the protocol are interrelated, interdependent and indivisible. Thus the violation of any one of them affects the enjoyment of all the others. Countries should be encouraged to ratify the protocol without registering reservations.
Our leaders and policy makers should resolve to change not only what is outside of them, but also what is inside them as far as attitudes to gender equality are concerned. With a redefined notion of power and equality we will be able to bring about change.
Roselynn Musa is the Advocacy Officer at the African Women’s Development and Communications Network, (FEMNET) in Nairobi, Kenya
1 African Women’s Development and Communication Network (FEMNET), Equality Now-Africa Regional Office, African Centre for Democracy and Human Rights Studies (ACDHRS), Women in Law and Development in Africa, Akina Mama wa Afrika, Inter-African Network for Women, Media Gender and Development (FAMDEV), Fahamu, Oxfam GB, Burkina Faso-Voix de Femmes, Djibouti-UNFD, Guinea Conakry-CPTAFE, Kenya-Coalition on Violence Against Women, FIDA-Kenya, Mali-AJM, Mozambique-Muhler Forum and FDC, Namibia-Sister Namibia, Nigeria-Women’s Rights Awareness and Protection Alternatives (WARPA) and HURILAW, South Africa-Centre for Human Rights, University of Pretoria, Sudan-Strategic Initiative for the Horn of Africa, Education Centre for Women in Development, and the Babikar Badri Scentific Association for Women, Inter-African Committee on Harmful Traditional Practices, Ethiopia.
Arusa, M.K. (1998) Human Rights Protection in the African Regional System. Pretoria
Benedek, W. et al, (2002) Human Rights of Women. New York: Zed Books
Inter-Parliamentary Union (2003) Handbook for Parliamentarians: The Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol. Geneva: UN Publications
UN (1995) ‘Platform for Action and the Beijing Declaration’. UN Department of Public Information, New York
Waldorf, L. (2004) Pathway to Gender Equality: CEDAW, Beijing and the MDGs. UNIFEM/German Federal Ministry for Economic Cooperation and Development
Westhuizen, C. van der (ed) (2005) Gender Instruments in Africa: Critical Perspectives and Future Strategies. South Africa: Institute for Global Dialogue
World Bank Gender and Development Group (2003) ‘Gender Equality and the Millennium Development Goals’. Washington DC: World Bank <http://www.worldbank.org/gender/>