The next frontier: Legal action and the AU women’s protocol

The coming into force of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the protocol) on 25 November 2005 marked a great turning point for women and girls in Africa. It was the day that a bill of rights for women came alive, promising to address violations against women and girls and which called states to take measures to ensure that women live free from discrimination and violence. The anniversary of the protocol is a time to reflect on the continuous struggle for a just and equitable society where women are seen as equal to men and are recognised for their role in the development of their society. The protocol is the first human rights instrument to specifically call for the elimination of female genital mutilation and explicitly provides for sexual and reproductive rights. It prohibits all forms of violence against women, whether perpetuated in private or public. It also provides for the right to a healthy sustainable environment, the right to sustainable development, the right to property and inheritance, equal rights in marriage and divorce and the rights of elderly and disabled women, among other rights. As we commemorate five years of the coming into force of the protocol, women’s organizations must start to fiercely push for its implementation to ensure that women benefit from the rights provided. One way of accelerating its implementation is to use it as a tool to defend the rights of women within existing judicial mechanisms.

This paper shall address itself to using the protocol as a tool for litigating on behalf of women while contributing to the development of positive jurisprudence on women’s rights in Africa. The paper will discuss opportunities available in domestic, regional and sub-regional courts and end with a call to action for women’s rights organisations to breathe life into the protocol.

DOMESTICATION OF THE PROTOCOL AS A NEXT STEP

In most common law countries, once an international instrument is ratified it must be domesticated through enactment of a national law for it to apply at the domestic level. There are several ways to do this: one is the complete importation of the provisions of the protocol into an act of parliament. Alternatively, women’s organisations can piggy-back onto ongoing legal reform processes and inject provisions of the protocol into laws. For example, in Gambia, women’s groups took the opportunity to inject provisions of the protocol during the drafting of the Women’s Act to ensure that most provisions of the protocol were domesticated. In Mozambique, organisations who had been championing for the enactment of the Domestic Violence Act adopted some provisions of the protocol within the act, ensuring partial domestication of the protocol.

In those countries that have clauses in their constitutions which automatically incorporate international treaties into national law, women’s organisations can use the protocol to litigate on behalf of women’s rights in order to build jurisprudence on women’s rights. This is particularly important for common law countries that rely on precedents from other common law jurisdictions to influence decisions in their own national courts. For example, the new Kenyan constitution states in Article 2(6) that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.’[i] This has created a great opportunity as Kenya also recently ratified the protocol on 13 October 2010 and is therefore ripe for litigation. With the right public interest case, this clause can be used to incorporate the protocol into Kenyan law and expand on the rights protected within the constitution.

USING THE PROTOCOL IN NATIONAL COURTS

Women’s rights organisations have already begun to think through strategies for litigating on behalf of women using the protocol. One such example is Equality Now’s Adolescent Girls Legal Defence Fund (AGLDF), which seeks to rectify the unique and devastating human rights abuses suffered by adolescent girls in Africa through strategic litigation that utilises the protocol and establishes legal precedents. Under this fund, Equality Now supported a lawyer to litigate on behalf of a 13-year-old girl who was raped by her teacher in Zambia.[ii] The failure by the state to prosecute the teacher led to her lawyer instituting a civil case against the teacher, the school, the attorney general and the Ministry of Education for failing to protect the girl from sexual violence while she was in the school’s custody. The lawyer cited the protocol in his legal arguments and this prompted the judge, in his decision, to reference the lawyer’s use of the protocol and quoted Article 4, which states, inter alia, that state parties should ‘enact and enforce laws that prohibit all forms of violence against women … whether the violence takes place in private or public’.[iii] The honourable Judge Musonda[iv] found in favour of the girl and held the government vicariously liable for her abuse. The judge called for the Ministry of Education to put into place guidelines to protect girls from sexual abuse in schools, and urged the director of public prosecution to arrest and prosecute the perpetrator, stating that the failure to prosecute the teacher was a ‘dereliction of the duty by the police’. He also awarded damages to the girl for the abuse, noting that the healing process after such abuse is ‘long and lonely and the emotional scars may never heal’.

The case was important as it gave the Zambian courts a chance to move the government to strengthen its school policies to protect girls from sexual abuse. This decision is a key example of how the protocol can be used in women’s rights litigation to push the government to follow its obligations under the protocol. In Zambia, there is now legal precedent referencing the protocol, even though Zambia has not domesticated the protocol. The weakness in this case is that the judge merely referenced the protocol but did not rely on it in making his decision, though his recommendations are in line with the provisions of the protocol. In addition, this landmark judgment brought together women’s rights organisations to form a coalition called the Tisunge Athu Ana Akazi coalition – which in English means ‘let’s protect our girl child’ – to end violence against adolescent girls in Zambia. The coalition is utilising this judgment as a tool to lobby the government to put the guidelines in place while enhancing legal, health and counselling services to survivors of sexual abuse.

OPPORTUNITIES AT THE REGIONAL LEVEL

Where national laws and mechanisms fail to offer redress for the violation of women’s rights, organisations may turn to the African Commission. The commission was the first regional mechanism created to hear cases of human rights violations, as provided within the African Charter on Human and Peoples’ Rights.[v] Interestingly in its 30 years, the African Commission has barely heard any cases addressing the rights of women, despite the massive violations on the continent. The African Commission was established to promote human and peoples’ rights; ensure their protection; and interpret the provisions of the African Charter. In addition, the commission is empowered to consider inter-state and individual complaints where it is established that the complainant has exhausted all available local remedies.[vi] The commission can issue recommendations and/or findings, although these are non-binding on states. Individuals and NGOs (non-governmental organisations) can lodge complaints with the African Commission for the violation of the rights enshrined in the African Charter and the protocol as a supplement to the African Charter.[vii]

The African Court on Human and Peoples’ Rights was created through the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of the African Court on Human and Peoples’ Rights (Protocol on the African Court). The court was established in 2004 when the protocol establishing the court came into force and started operations in 2006. The court was created to address the weakness of the African Commission, in particular its inability to pass binding decisions against states. The African court jurisdiction extends to all cases and disputes concerning interpretation of the African Charter and the Protocol on the Rights of Women.[viii] Unlike the African Commission, the African court does not give direct access to individuals and NGOs. Instead it provides that states can make a declaration allowing individuals and NGOs to bring a case before the court.[ix] This creates a barrier for individuals and women’s rights organisations to access the court. One strategy women’s organisations can take is to lobby their governments to make this declaration while still utilising the African Commission to hold states accountable for human rights violations. The harmonised rules of procedure of the African court and the African Commission are being finalised. These will guide litigants in pursuing cases either at the African Commission or the African court. Currently only four African states have signed a declaration allowing individuals and NGOs access to the African court. These are Burkina Faso, Mali, Malawi and Tanzania.

OPPORTUNITIES AT THE SUB-REGIONAL LEVEL

There exist other opportunities to litigate on behalf of women at the sub-regional level. There are three sub-regional courts that are open to adjudicating human rights issues: the East African Community Court of Justice (EACJ); the Economic Community of West African States Community Court of Justice (ECCJ); and the Southern African Development Community Tribunal (SADC Tribunal).[x] These three courts have adjudicated human rights cases, though none applying the protocol. Sub-regional courts tend to move faster than the African Commission and can be more accessible for individuals and NGOs, unlike the African court. Individuals can take cases straight to the ECCJ and EACJ, without having to exhaust local remedies, which is a requirement for the African Commission and the SADC Tribunal. Sub-regional courts may also be physically closer than the African Commission, which is based in Banjul, Gambia, and which is costly to travel to; this is especially true for countries in east, central and southern Africa. One disadvantage to using the sub-regional courts as human rights courts can be potential political backlash. These courts, while having the capacity to hear human rights cases, were established to litigate regional economic disputes and facilitate commerce between the participating states.[xi] Therefore, there is resistance to these sub-regional courts being used as human rights courts. This was evidenced at the SADC Tribunal in Mike Campbell (PVT) Limited and Another v. the Republic of Zimbabwe. The SADC Tribunal was suspended for six months after ruling against the government of Zimbabwe on 18 August 2010 for its racially implemented land reclamation programme. This was clearly a political response to the tribunal’s decision as the Zimbabwe government ‘fiercely objected to the presence of a regional tribunal and its ability to review their domestic human rights record’.[xii] Moving forward, human rights organisations must be careful to avoid politicised decisions when using these sub-regional courts as human rights courts. Women’s organisation should therefore be strategic in selecting a forum to hold states accountable.

EAST AFRICAN COURT OF JUSTICE

The EACJ is yet to be fully developed as a human rights court, even though the East Africa Community is founded on the principle of protecting human rights.[xiii] Under article 7(2) of the East African Treaty, ‘The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.’[xiv] Further, article 27(2) gives authority to the East African Council to expand the jurisdiction of the EACJ to include human rights. Yet the council has not developed guidelines to expand the jurisdiction of the EACJ, and as a result the EACJ has been very reluctant to hear human rights cases.[xv]

Once the court has this jurisdiction, it could be a very effective mechanism for advancing women’s rights through the protocol because of the EAC’s adherence to regional human rights instruments. Article 6(d) of the treaty states that ‘the fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include … promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.’ The EACJ could therefore hold states accountable to the protocol as a supplement to the African Charter. In addition, last year the East African Legislative Assembly, which is the legislative organ of the EAC, adopted a resolution which applauded the states that ratified the protocol and shamed those states that had not, demonstrating the importance of the protocol to the EAC.[xvi]

The EACJ is also a very accessible court as individuals and NGOs from East Africa can bring a case directly to it under article 30 of the treaty.[xvii] Therefore, women’s rights organisations should put pressure on the council to expand the jurisdiction of the court to include human rights as it would be an effective method of advancing the protocol.

ECONOMIC COMMUNITY OF WEST AFRICAN STATES COMMUNITY COURT OF JUSTICE (ECCJ)

The ECCJ is the sub-regional judicial mechanism that has most openly embraced adjudicating human rights. In the ECOWAS Treaty, state parties ‘affirm and declare their adherence to … [the] recognition, promotion and protection of human and peoples' rights in accordance with the provisions of the African Charter on Human and Peoples' Rights.’[xviii] ECOWAS state parties further agree to ‘co-operate for the purpose of realizing the objectives’ of the African Charter in article 56(2).[xix] This language, which was non-existent in the original ECOWAS treaty, ‘mainstreamed human rights in the agenda of ECOWAS’.[xx] However, the strength of the ECCJ’s mandate comes from a supplementary protocol that empowers the ECCJ to receive and determine human rights cases adopted by the ECOWAS authority heads of state and government.[xxi] The ECCJ has decided several human rights cases and has openly interpreted provisions of the African Charter through its expanded mandate.[xxii]

There are other advantages to the ECCJ apart from its express mandate to adjudicate human rights cases. In Hadijatou Mani Koraou v. the Republic of Niger the ECCJ, relying on article 10(d) (ii) of the supplementary protocol determined that individuals are able to directly access the court. The ECCJ further decided that exhaustion of local remedies was not required before it could adjudicate a case.[xxiii] The court went so far as to say that pursuant to article 4(g) of the ECOWAS Treaty, it could adjudicate on the African charter without following the procedures of the African Commission.[xxiv] The court in this case and in subsequent cases referred to multiple international human rights treaties along with the African Charter.[xxv] Again, as the protocol is a supplement to the charter, a case could be taken to ECOWAS which challenges the court to adjudicate on the protocol. The court is the best situated of the sub-regional mechanisms to hear and try a human rights case while referring to the protocol.

SOUTH AFRICAN DEVELOPMENT COMMUNITY TRIBUNAL (SADC TRIBUNAL)

The SADC Tribunal has adjudicated several human rights cases even though its competence to hear these cases is not linked to the African charter or other international human rights instruments in the SADC Treaty.[xxvi] Instead, the Treaty states in article 4(c) that member states ‘shall act in accordance with … human rights, democracy and the rule of law’.[xxvii] SADC also has several of its own human rights instruments, including a Protocol on Gender and Development. This has not prevented the tribunal from referencing the African charter and other human rights instruments when making its decisions. However, the tribunal does not interpret these instruments, but uses them as guidance in determining whether there has been a human rights abuse in violation of article 4(c) of the SADC Treaty.[xxviii]

The SADC Tribunal is also very limited in the cases that are able to come before it. While individuals can bring cases before the tribunal, the tribunal determined that NGOs cannot take cases to the tribunal on behalf of individuals. Instead, aggrieved parties themselves must be a party to the case.[xxix] Parties must also exhaust local remedies before coming to the tribunal,[xxx] although the tribunal has found a case admissible where domestic judicial remedies were unavailable.[xxxi] As discussed supra, the tribunal may be suspended from hearing human rights cases as a result of the Mike Campbell (PVT) Limited and Another v. the Republic of Zimbabwe decision. If not, women’s rights organisations should attempt to utilise the tribunal. Even if the tribunal will not directly interpret the protocol, it is probably likely that it will reference it in a decision. At the very least, it is a step in the right direction.

CONCLUSION

Under international law, once a state ratifies the protocol it is legally bound to respect, protect and to fulfil human rights enshrined within the protocol. As we venture into using litigation to accelerate the implementation of the protocol, let us never forget that state parties to the protocol have the primary responsibility to ensure that it is implemented. Women’s organisations are called to be vigilant and take up opportunities to hold governments accountable for failure to protect the rights of women in Africa. Fortunately there are multiple avenues to do so; they only need to be strategic in selecting the most effective judicial mechanism (whether national, sub-regional or regional courts) for protecting their rights. African women also have the opportunity to shape the international discourse on women’s rights by invoking the progressive provisions in courts to contribute to the global human rights jurisprudence. In the next five years, let us flood the courts with claims on behalf of women and contribute to creating an environment free from violence and discrimination.

‘Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments.’ (Vienna Declaration and Programme for Action, 1993)

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* Corey Calabrese is a 2010 graduate of Fordham Law School and is currently working for Equality Now as a James E. Tolan human rights fellow.
* Caroline Muthoni Muriithi is a human rights lawyer from Kenya, currently working as a programme officer at Equality Now, Africa Regional Office.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES

[i] Constitution, Art. 2 (2010) (Kenya).
[ii] See R.M. v. Edward Hakasenke, Attorney General (2006) HP 0327 (Zambia).
[iii] See Article 4 (2) (a) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of women
[iv] Judge of the High Court of Zambia
[v] Article 45 of African Charter on Human and Peoples’ Rights states the mandate of the African Commission, Article 46 provides the rules for state communication and article 55 provides for NGO’s and individual to bring a communications to the African Commission
[vi] See Article 56 (5) of the African Charter
[vii] Article 66 provides that special protocols or agreements may if necessary supplement the provisions of the African Charter therefore the Protocol can be used to supplement the provisions within the protocol to demonstrate violations against women and girls
[viii] See article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights read together with Article 27 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
[ix] See Article 34 (6) of the Protocol establishing the African Court on Human and Peoples’ Rights
[x] See Solomon T. Ebobrah, Human rights developments in African sub-regional economic communities during 2009, 10 Afr. Hum. Rts. L.J. 233, 233-34 (2010).
[xi] See Solomon T. Ebobrah, Human rights developments in African sub-regional economic communities during 2008, 9 Afr. Hum. Rts. L.J. 312, 312-13 (2009).
[xii] Frederick Cowell, The suspension of the South African Development Community Tribunal: A threat to human rights, Consultancy Africa Intelligence, Oct. 17, 2010, http://www.consultancyafrica.com/index.php?option=com_content&view=article&id=583:the-suspension-of-the-southern-african-development-community-tribunal-a-threat-to-human-rights&catid=91:rights-in-focus&Itemid=296
[xiii] The EACJ has decided a few cases that implicate human rights, but these human rights were specifically outlined in the East African Treaty. In East African Law Society and 3 Others v Attorney-General of Kenya and 3 Others, Reference 3 of 2007, the EACJ adjudicated a case that invoked the right to popular participation in amendments to the East African Community Treaty.
[xiv] Treaty for the Establishment of the East African Community art. 7(2) (amended Dec. 14, 2006 and Aug. 20, 2007), Nov. 30, 1999.
[xv] See Ebobrah, Human rights developments in African sub-regional economic communities during 2009, supra note 10 at 240.
[xvi] See id. at 236. The resolution is entitled ‘Resolution of the Assembly urging the East African Community and partner states to take urgent and concerted action to end violence against women in the EAC region and particularly in the partner states.’
[xvii] See Treaty for the Establishment of the East African Community, supra note 14, art. 30.
[xviii] Economic Community of West African States Revised Treaty art. 4(g), Jul. 24, 1993.
[xix] Id. at art. 56(2).
[xx] See Ebobrah, Human rights developments in African sub-regional economic communities during 2008, supra note 11 at 318.
[xxi] See Economic Community of West African States, Supplementary Protocol A/SP 1/01/05 Amending Protocol A/P 1/7/91 relating to the Community Court of Justice adopted in 2005, art. 9(4).
[xxii] See Ebobrah, Human rights developments in African sub-regional economic communities during 2008, supra note 11 at 318.
[xxiii] See Hadijatou Mani Koraou v. Republic of Niger, Judgment No. ECW/CCJ/JUD/06/08 (2008), para. 49.
[xxiv] See id. at para. 42.
[xxv] See Ebobrah, Human rights developments in African sub-regional economic communities during 2009, supra note 10 at 252-58.
[xxvi] See id. at 259.
[xxvii] The Treaty of the Southern African Development Community art. 4(c), Aug. 17, 1992 (amended 2001).
[xxviii] See Mike Campbell (PVT) Limited and Another v The Republic of Zimbabwe, SADC (T) Case No. 2/2007, 30-33 & 41.
[xxix] See Zimbabwe Human Rights NGO Forum v Zimbabwe (NGO Forum case), SADC (T) 05/2008.
[xxx] See Treaty of the Southern African Development Community, Protocol on Tribunal and Rules of Procedure Thereof art. 15 (2).
[xxxi] See Mike Campbell (PVT) Limited and Another v The Republic of Zimbabwe, supra note 28 at 19-22.