South Africa's reservations and the Protocol

Delphine Serumaga writes that despite the impressive policy framework that state has set in place for the protection of the women's rights, South African women and the girl-child remain marginalized with regards to access to basic human rights such as justice, safety and security, housing and health.

South Africa signed, ratified, and deposited the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the African protocol) by 14th January 2005 The commitment is with reservations on article 4, specifically referring to the protection of pregnant women from execution until their child is born, and a provision that exists in South African law.

This commitment adds to numerous agreements, protocols, and legislation for the protection of human rights in South Africa. The policy framework labyrinth that exists within South Africa can be perceived as laudable.

Looking from the outside, one would assume that with numerous considerations for human rights by the State, the social environment is ideal for the enjoyment of at least one’s fundamental human rights, making South Africa’s response to human rights a model to follow.

In fact, within the SADC region, on occasion, civil society organisations look at the South African framework and advocacy approaches for law reform as possible best practices to adopt.

The general trend of South Africa’s role on the continent is that this nation can play a significant role as an arbitrator or a peace negotiator. Thus implying, to an extent, that the national situation is well cared for and managed.

It is true that South Africa has a good and comprehensive constitution, well-planned legislative framework and impressive record of regional and international commitments.

Since the State participates greatly on a wide scale in human rights discourse and commits to the protection of human rights in various arenas such as the United Nations Security Council and the DRC peace agreements, one must look closer to see if what looks good on paper or on record is a true reflection of the internal state of affairs.

From a women’s rights organisation perspective, it is clear that despite the expansive human rights acknowledgements the State makes, the condition for women’s rights remain wanting. Women and the girl-child remain marginalised with regards to access to basic human rights such as justice, safety and security, housing and health. All social aspects that impact on a woman’s vulnerability to violence, a core matter of the African Protocol

The State’s commitments and engagements in human rights promotion are widely acknowledged therefore, the inevitable questions are, why sign another protocol? What internal value does the protocol bring to the people? Is the State or even civil society taking the full opportunity of the protocol that they have ratified?

The African Protocol has limited popularity as a human rights instrument in South Africa; currently there are only 8 civil society organisations that have observer status in South Africa. Out of the 8 organisations, only 2 actively participate in the deliberations of the African Commission. One could safely deduce that the African Protocol is not widely engaged with at the civil society level and possibly within the judicial system at this juncture.

The articulation and domestication of the African Protocol has not been fully realised as with other regional and international policies due to civil society and the judicial system only working with a 13 year old progressive legislation and judicial framework that has been and is still in development since the birth of the new dispensation.

Reference to the provisions of the African Protocol in court judgements is not common place, advocacy campaigns focusing on benefits of the protocol by both government or civil society are non-existent, rights education does not include reference to the African protocol at this stage.

The irony therefore, would be that government could hold civil society accountable for not engaging with a tool they have provided in order to actively pursue the rights for our target groups

The responsibility of drawing down the relevant aspects of the African Protocol to local levels is twofold. The State should make budgetary considerations for the domestication of the protocol. Equally important, the state should ensure that the judicial framework is aware of the commitments and state responsibilities that exist within the protocol.

The second aspect of promoting the protocol is the responsibility of civil society. Mobilisation through joint ventures of interest groups to campaign and advocate for the accountability of government is an untapped priority.

The current climate civil society is operating under is the provision of community-strengthening initiatives that include rights education based on the South African constitution and legislation responding to the reduction of poverty and vulnerability to violence.

At the continental level, we as civil society should take the responsibility of promoting a collective African human rights response to the violations that are rampant in countries such as Sudan and the DRC as a parallel process to South Africa’s role in the deliberations. This would promote the utilisation of the African Protocol in substantive ways.

South African civil society has to critically challenge itself on the current levels of engagement and lack of mobilisation in the national and regional arenas.

We rightfully sight lack of sufficient funding or human capacity to participate fully. However, the true irony is that South African civil society’s failure to effectively engage with the African Protocol highlights that the State has played it’s role in setting up the arena for the fight for human rights and we can be accused of letting ourselves down in our fight for human rights.

* Delphine Serumaga is the executive director of People Opposing Women Abuse (POWA), South Africa

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