**Time to walk the talk on women's rights

Background

That women and men enjoy the same rights and dignity has been confirmed by regional and international conventions and declarations including the United Nation’s (UN) Universal Declaration on Human Rights, the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), and the Beijing Declaration and Platform for Action. The African Union (AU) has, in addition, reiterated its commitment to the same ideals through the African Charter on Human and Peoples’ Rights (The Charter) and recently, in specific terms, in the Protocol to the African Charter on Human and People’s Rights on Rights of Women in Africa (The Protocol). As we mark the “16 Days of Activism against Gender-Based Violence”, November 25-December 10, 2004, it is important to look at how the Protocol, once it comes into force, will address gender-based violence in Africa.

Substantive norms of international law are defined in relation to men’s experience, and stated in terms of discrete violations of rights in the public realm. In addition, inattention to rights of particular interest to women in the international human rights discourse has resulted in neglect, and pervasive denial, of the rights of women in particular in the private sphere. Gender specific abuses of human rights such as gender-based violence have been widely perceived as women’s issues rather than as human rights concerns.

For instance, human rights guarantees in the legally binding United Nations International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) such as those to the right of life, to bodily integrity, and to be free from torture, cruel and degrading treatment, have not been interpreted to include such acts as domestic violence, rape, female genital mutilation, forced sterilization, forced childbirth, and numerous other forms in which violence against women and girls is manifested.

The provisions of the AU’s Charter are not adequate to address the rights of women. For example, while Article 18 prohibits discrimination against women, it does so only in the context of the family. In addition, explicit provisions guaranteeing the right of consent to marriage and equality of spouses during and after marriage are absent. These omissions are compounded by the fact that the Charter places emphasis on traditional African values and traditions without addressing concerns that many customary practices, such as female genital mutilation, violence against women, forced marriage, and wife inheritance, can be harmful or life threatening to women. By ignoring critical issues such as custom and marriage, the Charter inadequately defends women’s human rights. Thus the need for the Protocol to address African women’s concerns on gender-based violence as listed below.

Gender-Based Violence: African Women’s Concerns:
- Lack of understanding of gender-based violence and its root cause - unequal power relations between men and women, with efforts to address the issue very often being reactive, focusing on symptoms and consequences, not causes;
- Lack of legally binding international recognition of reproductive and sexual rights. The efforts have yet to achieve international recognition beyond Declarations, which only constitute ‘soft international law’ and are not legally binding. This is due to strong resistance from conservative states and religious organisations;
- Lack of states’ commitment to the application of national, regional and international instruments and agreements, which guarantee the protection, prevention and promotion of human rights. Most countries in Africa have not brought their domestic laws into conformity with their provisions;
- Lack of qualitative and quantitative research on women’s human rights issues in Africa and documentation of women’s human rights abuses, particularly in the private arena, such as rape, sexual harassment;
- The big gap between the provisions of the law and practice. Laws are not systematically enforced due to lack of gender sensitive enforcement agencies and procedures, making the rights inaccessible to the majority of women;
- Multiplicity of legal systems in Africa, and the conflict between civil, customary and religious laws, constitute a major challenge to the protection of women’s rights. Thus abuses on the rights of women, especially by private individuals remain endemic in spite of the law;
- The private/public dichotomy that is detrimental to women continues to exist. In most African countries, the same constitutional provisions that guarantee gender equality allow exceptions in the so-called “private law” areas of customary law, personal law and family law. Serious violations of women’s human rights such as gender-based violence and provisions that discriminate against them are found in that private sphere;
- Gender-based violence in Africa is on the increase due to poverty and conflict. Forms of violence include femicides, acid attacks, ritual murders, gang rapes, abduction, girl-child slavery, ritual rapes, military sexual slavery, cultism in tertiary institutions, trafficking in women and girls, mistreatment of widows;
- In conflict situations, gender-based abuses are not an accident of war, they constitute a deliberate strategy designed to intimidate or undermine and inflict deep and lasting damage on entire communities;
- Lack of efforts to reduce problems faced by women in refugee camps including lack of physical security and privacy, sexual exploitation, physical and mental illness, including HIV/AIDS;
- Vulnerability of refugee women and girls, particularly those with inadequate documentation or single and unaccompanied, to physical and sexual abuse during flight, on arrival in refugee camps and in the country of ultimate settlement. This gender dimension is not given consideration in humanitarian programmes;
- Women in Africa still remain vulnerable to harmful traditional practices and customs, many of which expose them to HIV/AIDS that has been devastating the continent.

Linking the Protocol to the Elimination of Gender-Based Violence in Africa

At the UN and AU levels, there have been efforts to address gender-based violence as discussed below:
- In 1993, the Declaration and Programme of Action of the World Conference on Human Rights at Vienna emphasized, “The human rights of women and of the girl child are an inalienable, integral and indivisible part of the universal human rights”. It also emphasized that elimination of gender-based violence is a human-rights obligation upon states. This was the first attempt to address the marginalisation of women’s human rights from the work of the mainstream human rights bodies;
- The Declaration on the Elimination of Violence against Women, adopted by the UN General Assembly in December 1993 locates violence against women within the framework of violation of human rights obligations, categorizing it as an issue of inequality and discrimination against women, and sets out strategies that member states and United Nations agencies should employ to eliminate its occurrence;
- The Beijing Declaration and Platform for Action with respect to gender-based violence calls for governments’ condemnation of gender-based violence and due diligence in the prevention, investigation and punishment of acts of gender-based violence, implementation of existing international standards with respect to violence against women, and the support of international mechanisms in that regard;
- Appointment of Special Rapporteurs on violence against women and women rights at the UN and AU respectively;
- The AU in 2003 adopted the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa to address African women’s human rights concerns.

The Protocol primarily complements the Charter and international human rights conventions by focusing on concrete actions and goals to grant women rights. It further domesticates CEDAW and the Beijing Declaration and Platform for Action in the African context. The Protocol integrates legal and policy actions to comprehensively address gender-based violence. It further provides a legal mechanism for redress through the African Court of Human and Peoples’ Rights for violations of rights enshrined within it.

On gender-based violence, Articles 2, 3, 4, 5, 8,10, 11 and 13 of the Protocol are dedicated to concrete actions for State Parties. The Articles focus on: elimination of discrimination against women, right to dignity, the rights to life, integrity and security of the person, right to peace, right to justice and equal protection before the law, protection of women in armed conflict, economic and social welfare rights and elimination of harmful practices. Thus the Protocol offers Member States of the AU a comprehensive mechanism to implement legal and policy actions to eliminate gender-based violence according to regional and international human rights instruments they have already acceded to. Below are some of the legal and policy actions that have been recommended to governments to eliminate gender-based violence and as compared below, the Protocol has integrated all of them. They include to:

- harmonise national laws and constitutions in line with regional and international commitments and standards to avoid inconsistencies. Article 8 (f);
- establishment and support services to respond to the needs of survivors of gender-based violence and girls and assist towards full recovery and reintegration into society, including legal aid, economic support and livelihood assistance. Article 2 (2) (e) and (f). Article 5 (c). Article 8 (b);
- implement national legislation and policies prohibiting harmful customary or traditional practices and all other harmful practices that violate women’s and girls’ human rights. Article 2 (b) Article 5 (b) and d;
- ensure that women are safe at work by supporting measures that promote the creation of a workplace environment free from sexual harassment or other violence and ensure all employers to put in place policies designed to eliminate and deal effectively with harassment of women whenever it occurs in the workplace. Article 13 (c);
- research, document and disseminate information on women’s human rights violations to policy makers and all other stakeholders. The research should focus on root causes including external factors, extent, causes and data and statistics on its economic and social costs its consequences. Article 4 (2) c. Article 5 (a);
- introduce legal literacy programmes to make women aware of their rights and methods of seeking protection under the law. Article 8 (c);
- encourage, support and implement measures aimed at increasing the knowledge and understanding of gender-based violence and other violations of women’s human rights, through gender analysis and gender sensitive training for personnel in the administration of justice, law enforcement agencies, security, social and health care services and ensure their accountability. Article 4 (2) b. Article 8 (c);
- introduce participatory educational programmes on human rights, conflict resolution and gender equality, for women and men of all ages, beginning with boys and girls. Article 8 (c);
- formulate comprehensive and multidisciplinary and co-ordinated national plans, programmes or strategies, which will be widely disseminated, to eliminate violence against women and girls and provide targets for implementation and effective enforcement and monitoring mechanisms. Article 5 (a) Article 2 (2). Article 26, Article 27;
- enact and implement laws against trafficking in persons. They should also develop strong and effective national, regional and international co-operation to prevent and eliminate trafficking in women and girls, particularly for purposes of economic and sexual exploitation including prostitution. Article 2 (2) g;
- introduce public awareness and advocacy strategies seeking to make gender-based violence a critical concern to everyone. Article 2 (2);
- encourage promotion of media portrayals of women and men as cooperative and full partners. The notions that male violence against women is a natural expression of masculinity and that women are helpless and subordinate to men require constant challenge and not reinforcement. Article 13 (m);
- ensure that women particularly those who bear the brunt of conflict, are an integral and meaningful part of every peace process. They should be involved in all conflict prevention, resolution, and management efforts at all levels as provided for in the UN Security Council Resolution 1325. Article 10. Article 11;
- direct special attention to the long-term health needs of women affected by armed conflict. These include the psychological needs arising from trauma and the effects of violations of reproductive rights and HIV/AIDS infection. Article 2 (2) k. Article 10;
- recognize the interconnection of forms of gender-based violence with other forms of discrimination and introduce broad efforts aimed at increasing women's economic and social autonomy Article 2 (c) and (e). Article 13;

Conclusion

Gender-based violence is a crosscutting and complex phenomenon that needs to be tackled on all fronts. The Protocol provides a comprehensive mechanism for addressing gender-based violence in Africa. However, African women cannot access and use it for the full enjoyment, promotion and protection of their human rights, as it has not entered into force. It requires 15 ratifications to enter into force. However, only 4 member states of the AU have ratified it. Therefore, there is need to ensure that we remind all Member States of the AU to ratify it during the 16 Days of Activism Against Gender-Based Violence in accordance with the commitment they made in the AU Solemn Declaration on Gender Equality in Africa, 2004, to ratify it by the end of this year. To end impunity on the violation of African women’s human rights through gender-based violence, it is time for our leaders to walk the talk and ratify the Protocol.

* Mary Wandia is the Advocacy Officer with The African Women’s Development and Communication Network (FEMNET) E-mail: [email][email protected]

* Please send comments to [email protected]

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