Looking back, looking forward

It is five years since the African Union (AU) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa entered into force on November 25, 2005. To date, over fifty per cent of AU member states (29)[1] have ratified it. That day is significant to women worldwide as it also marks the start of the 16 Days of Activism against Violence against Women. The protocol comprehensively enshrines civil and political rights; economic, social and cultural rights; the rights to development and peace and reproductive and sexual rights. It provides a legal framework for addressing gender inequality and the underlying aspects that perpetuate women’s subordination.

For the first time in international law, it explicitly sets forth the reproductive right of women to safe abortion when pregnancy results from rape or incest or when the continuation of pregnancy endangers the health or life of the mother. In another first, the protocol explicitly calls for the legal prohibition of female genital mutilation. It goes further to outline measures to ensure the protection of the rights of widows, girls, women living with HIV/AIDS, elderly women, women with disabilities, refugee women, displaced women and marginalised and poor women, women in detention and pregnant or nursing women. This paper traces the protocol’s impact on women’s rights and movement building in Africa as well challenges that have hampered the full enjoyment by African women of rights enshrined in the protocol. The paper concludes with strategies to ensure implementation in future.

LOOKING BACK

The development of a protocol on women’s rights in Africa was triggered by the outcome of the World Conference on Human Rights held in Vienna, Austria, in 1993 that emphasised, ‘The human rights of women and of the girl child are an inalienable, integral and indivisible part of the universal human rights’. Thus the slogan that emerged from Vienna: Women's Rights are Human Rights.

Informed by the realisation that the African Charter on Human and Peoples’ Rights adopted by the OAU in 1981 had not addressed women’s human’s rights adequately, the heads of state and government of the then Organisation of African Unity (OAU) in June 1995 mandated the African Commission on Human and Peoples’ Rights (ACHPR) to elaborate a protocol on the rights of women in Africa. The African Commission started the process by releasing a first draft in 1997, which was discussed and amended by states and civil society for seven years before it was adopted in 2003.

It took 18 months to enter into force thereby becoming the fastest human rights instrument to enter into force in the history of the OAU/AU, thanks to consistent advocacy by African women’s civil society groups under the Solidarity for African Women’s Rights Coalition (SOAWR)[2] working closely with AU member states and the African Union Women Gender and Development Directorate.

WHAT DIFFERENCE HAS THE PROTOCOL MADE IN AFRICA IN THE LAST FIVE YEARS?

The protocol addresses omissions relating to women’s rights in the African Charter on Human and Peoples’ Rights (the charter). The charter like other mainstream international human rights instruments defines standards in relation to men's experience and in terms of discrete violations of rights in the public realm whereas most violations of women’s human rights occur in private. Its provisions are not adequate to address the rights of women. For example, Article 18 prohibits discrimination against women only in the context of the family. 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, forced marriage, and wife inheritance, can be harmful or life threatening to women.

The protocol[3] complements the African charter and international human rights conventions by focusing on concrete actions and goals to grant women rights. It further domesticates the United Nations’ Convention on Elimination of All Form of Violence against Women (CEDAW) and the Beijing Declaration and Platform for Action in the African context. For instance, it explicitly calls for the legal prohibition of female genital mutilation. It calls for an end to all forms of violence against women including unwanted or forced sex, whether it takes place in private or in public and outlaws the exploitation and abuse of women in advertising and pornography. It has provided a legal and advocacy framework for African women to demand the promotion and protection of human rights.

The protocol advanced national jurisprudence on women’s rights. In Zambia, a 13 year old girl was raped by her teacher. Through a lawyer, a civil suit was instituted against the teacher, the school, attorney general, and Ministry of Education for failing to protect her from sexual violence while she was in the school. During the trial, the lawyer cited the protocol, given that Zambia is a state party to the protocol. The judge, in his decision, referenced the lawyer’s use of the protocol and quoted Article 4, which states, interalia, that states shall take appropriate and effective measures to enact and enforce laws that prohibit all forms of violence women including unwanted and forced sex whether the violence takes place in private and public (Article 2 (2) (a)).

In addition, the judge ruled in the girl’s favour and awarded her damages. The judge called on the Ministry of Education to institute guidelines in schools to protect students from sexual abuse and on the director of public prosecution to arrest and prosecute the teacher. This is a common law high court judgment that can be used as a precedent in other common law countries when citing instances when the government has been held accountable for the violation of rights provided for in the protocol.

The protocol has expanded the discourse on women’s rights in Africa into areas that were hitherto considered ‘no go zones’, setting new international standards including on sexual, reproductive health and rights, female genital mutilation (FGM) and polygamy. The SOAWR campaign and the protocol’s provisions have provided a framework for collaboration and joint action among organisations at the sub regional level to demand for women’s rights instruments with the Economic Community of West African States (ECOWAS), the Southern African Development Community (SADC) and the East African Community (EAC) adopting declarations on gender equality as a result of the efforts of the women’s organisations.

The process of advocating for its drafting, adoption and entry culminated in the formation of a formidable coalition at the regional level, Solidarity for African Women’s rights (SOAWR). SOAWR is a movement that has consistently engaged AU member states and held them accountable for the ratification and implementation of the protocol since 2004. The advocacy for the ratification and implementation of the protocol has created strong women’s movements at national level. For example, the Women First Coalition in Uganda and the Gender Action Team in the Gambia have strengthened women’s voices in demanding for the national level ratification and implementation of the protocol. Although gender equality and women’s empowerment is yet to be fully achieved in Africa, with women’s movements like SOAWR and emerging national level coalitions, governments cannot escape the pressure to walk their talk on women’s rights.

In national level planning, the protocol has provided standards for governments to integrate in their national development plans and policies on gender equality. Rwanda is a case in point where it has implemented the protocol across all government sectors and The Gambia has adopted a ‘Women’s Bill’ to implement its commitments on women’s rights entered into at the regional and international level including the protocol.

The protocol is a public education tool on women’ rights at the national and grassroots levels. SOAWR members in The Gambia, Tanzania and Liberia have translated the provisions of the protocol into songs. Other SOAWR members have published simplified versions of the protocol and/or translated the protocol into local languages to facilitate access by women and the public at large. A radio programme, Cross Roads Drama, has been developed in English and French. This has encouraged citizens to demand for the implementation of the protocol provisions. For example, the protocol has been a major boost to the campaign against FGM in Tanzania.

In spite of the gains resulting from the protocol in the last five years outlined above, its full potential to emancipate African women from the shackles of patriarchal domination is yet to be realised. Ratifications have increased from 15 countries in 2005 to 29 countries in 2010. However, few countries have implemented the protocol and put in place laws, policies, institutions and services to promote, protect and advance women’s rights at national level.

AU members states have fallen short of their solemn commitment 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 and usher in an era of domesticating and implementing the Protocol as well as other national, regional and international instruments on gender equality by all States Parties’.[4]

Consequently, the violation of African women’s rights continues unabated due to lack of political will to implement commitments on women’s rights. Political will is required to drive the translation of laws and commitments into concrete well-resourced programmes of action to achieve results. National gender machineries continue to shoulder the responsibility for gender equality as well as for the empowerment of women with minimal capacity. Most national machineries suffer from inadequate funding with the largest percentage of their funding coming from external donors.

Lack of national mechanisms to ensure sector and stakeholder wide implementation of women’s rights commitments and for monitoring and reporting remain a major challenge to gender equality. Most reports measuring country performance still do not include gender equality indicators due to the absence of gender disaggregated data thereby undermining accountability. This is not only happening at the national level but also at the regional level where the AU is yet to come up with mechanisms to hold member states to account on commitments made at the AU level.

LOOKING FORWARD

We have learnt a lot from the gains and pains of the last five years. We now need to reflect on our strategies and come up with new ways of ensuring that the protocol is fully implemented. The fifth anniversary of the protocol comes right after the launch of the AU Women’s Decade 2010-2020 in Nairobi, where the chairperson of the AU and President of Malawi Hon Dr Bingu wa Mutharika noted that:

‘Many frameworks and commitments have been made in the past but women have still not yet been fully emancipated. The African Women’s Decade should see real positive change in the lives of women, and women should be involved in all decision-making processes.’

The president of Kenya, Hon Mwai Kibaki emphasised who hosted the launch of the decade emphasised that:

‘The African Women’s Decade should mark the beginning of an effective, focussed and re-energised programme of empowering women.’

Good words indeed but they will remain hollow if they are not matched by actions during the African Women’s Decade. To move from ratification to the full implementation of the protocol, the coalitions that advocated for the adoption and ratification of the protocol must now shift to advocacy for implementation and monitoring. This will require the mobilisation of women at the national and local levels by educating them on governments’ commitments on women’s rights outlined in the protocol. This is critical in creating a groundswell of demand for its implementation by African women that could make it impossible for our leaders to continue governing while impunity on women’s rights violated is tolerated. We have to build political capital using the protocol.

‘The only way to solve the problem of women’s subordination is to change people’s mindset and to plant the new idea of gender equality into every mind.’- Qingrong Ma

In our engagement with AU member states on implementation, we have to demand the transformation of the implementation structures at national level. Gender inequalities disempowering women cut across all sectors, from health, economy, labour, agriculture and food security, to education, security and justice. Promoting the realisation of rights and empowerment by women is a national priority in its own right, and because of its importance for the achievement of other national priorities including economic growth and poverty reduction.

We can no longer depend on gender machineries to have the sole responsibility of implementing women’s rights commitments which in fact cut across all sectors of government. What is required is a multi-sectoral approach where each sector of government is held accountable for the implementation of protocol provisions relevant to its mandate. The same approach should be adopted by the African Union itself towards the implementation of its provisions across departments, regional offices and mechanisms such as the Peace and Security Council, the Pan African Parliament etc.

In countries that have ratified the protocol, we need to form strategic partnerships with associations of lawyers and judges to raise their awareness on the protocol. This will encourage them to reference the protocol in cases and judgements and increase public litigation to improve national legal institutions’ jurisprudence on women’s rights. This should also be expanded to the regional level women’s rights jurisprudence. Presenting of communications to the African Commission on Human and Peoples’ Rights and cases that reveal serious and massive violations of women’s rights to the African Court on Human and Peoples’ Rights should be a priority to enhance implementation. It is imperative to select cases and communications based on their potential value as regional and international precedents.

The African Commission has published guidelines for states on bi-annual reporting on progress made in the implementation of the protocol at national level according to Article 62 of the African Charter. The guidelines should be disseminated widely and used in assessing progress made at national level implementation particularly by states party to the protocol. We also need to identify states reporting in advance and put pressure for inclusion of a section on the protocol. Further, to encourage implementation and reporting on the protocol, a strategic partnership between the special rapporteur on women’s rights of the African Commission and women’s rights organisations is critical. The special rapporteur’s office is a resource for advancing women’s rights that we need to utilise more effectively.

CONCLUSION

The last five years have seen the advancement in the women’s rights legal frameworks and discourse in Africa. However, it has not contributed to substantial changes in the situation of the African women. The protocol offers us a tool for transforming the unequal power relations between men and women that lie at the heart of gender inequality and women’s oppression. We need to focus on its implementation. We do not need to draw up new protocols, policies and declarations on women’s rights. What we need is an agenda to demand commitment by African leaders to the existing commitments in the protocol and other AU instruments and declarations that they have endorsed. This is not to benefit women only but all African citizens – men and women.

Gender inequality, which remains pervasive worldwide, tends to lower the productivity of labour and the efficiency of labour allocation in households and the economy, intensifying the unequal distribution of resources. It also contributes to the non-monetary aspects of poverty – lack of security, opportunity and empowerment – that lower the quality of life for both men and women. While women and girls bear the largest and most direct costs of these inequalities, the costs cut broadly across society, ultimately hindering development and poverty reduction, by Gender and Development Group – World Bank, from the report ‘Gender Equality and the Millennium Development Goals’ (2003).

‘Women’s human rights are essential to democratic, equitable and sustainable development on planet Earth.’ – Ayesha Imam

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Mary Wandia is co-founding member of the Solidarity for African Women’s Rights (SOAWR) Coalition that advocates for the implementation of the AU Protocol on the Rights of Women in Africa. She is a member of the African Feminist Forum Working Group. She appreciates input from Anne Mitaru in developing ideas for this paper.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES

[1] Angola, Benin, Burkina Faso, Cape Verde, Comoros, Djibouti, Democratic Republic of Congo, Gambia, Ghana, Guinea-Bissau, Kenya, Libya, Lesotho, Liberia, Mali, Malawi, Mozambique, Mauritania, Namibia, Nigeria, Rwanda, South Africa, Senegal, Seychelles, Tanzania, Togo, Uganda, Zambia, and Zimbabwe
[2] The Solidarity for African Women’s Rights (SOAWR) is a Pan-African coalition consisting of 36 national, regional and international civil society organisations working towards the promotion and protection of Women’s Human Rights in Africa by advocating for the ratification, domestication and implementation of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
[3] See full text of the protocol at www.africa-union.org/home/Welcome.htm
[4] African Union. Solemn Declaration on Gender Equality in Africa. 20