Niger: Democratic principles and the rejection of the Protocol

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

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