4 Ratification of the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa

The African Charter on Human and Peoples' Rights, hereafter referred to as the Charter, recognizes the importance of women's rights through three main provisions. Article 18(3), covering the protection of the family, promises to ensure the elimination of all discrimination against women and also ensure protection of the rights of women. Article 2, the non-discrimination clause, provides that the rights and freedoms enshrined in the Charter shall be enjoyed by all irrespective of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. And Article 3, the equal protection clause, states that every individual shall be equal before the law and shall be entitled to the equal protection of the law.

However, the above provisions 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, 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.

The World Conference on Human Rights held in Vienna, Austria in 1993 made advances to human rights theory and practice with respect to women's human rights. 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 violence against women 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. Thus the slogan that emerged from Vienna: women's rights are human rights. Following almost directly on from Vienna, it was imperative for the African Commission on Human and People's Rights (ACHPR) to expose the specific inequalities that impact negatively on the lives of women and thereby acknowledge that "women's rights as human rights must be respected and observed".

The Process of Developing the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa. Article 66 of the Charter that provides for the establishment of Protocols and Agreements to supplement its provisions gave impetus for the consideration and subsequent formulation of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, hereinafter referred to as the Protocol. The process started with a meeting organised by Women in Law and Development in Africa (WiLDAF)[i] on the theme "The African Charter on Human and People's Rights and the Human Rights of Women in Africa" in March 1995 in Lome, Togo. The meeting called for the development of a Protocol to the Charter on Women's Rights. The meeting also called on the ACHPR to appoint a Special Rapporteur on Women's Rights in Africa.

The Assembly of Heads of States and Government of the Organisation of Africa Unity (OAU) at its 31st Ordinary Session in June 1995, in Addis Ababa, mandated the ACHPR to elaborate a Protocol on the Rights of Women in Africa[ii] . The first Draft was prepared by the experts group meeting organised by the ACHPR and the International Commission of Jurist (ICJ) in Nouakchott, Mauritania, April 1997. The experts comprising of members of the ACHPR, representatives of African NGOs and international observers prepared the first Draft Protocol that was submitted to the ACHPR during its 22nd Session held in October 1997 for consideration and comments. The draft was also circulated to NGOs for comments.

The 12th ICJ workshop on "Participation in the African Commission on Human and People's Rights", October 30 to November 1, 1997, in The Gambia, provided the opportunity for NGOs to make input into the Draft Protocol and pass a resolution calling upon the ACHPR to ensure the completion of the Draft Protocol in time for presentation to the next session of the ACHPR.

The First Meeting of the Working Group on Women's Rights that brought together members of the ACHPR, the ICJ, WiLDAF and the African Centre for Democracy and Human Rights Studies (ACDHRS) was held in Banjul, The Gambia from 26-28 January 1998. The meeting amended the Draft Protocol and developed the terms of reference for the appointment of a Special Rapporteur on the Rights of Women in Africa. During its 23rd Session held in April 1998, the ACHPR endorsed the appointment of the first Special Rapporteur on Women Rights in Africa with a mandate that included working towards the adoption of the Draft Protocol on Women's Rights. The ACHPR forwarded the Draft Protocol to the OAU Secretariat in 1999. The Inter Africa Committee (IAC) and ACHPR met to merge the Draft Convention on Traditional Practices with the Draft Protocol in 2000, in Addis Ababa, Ethiopia.

The first OAU Government Experts Meeting on The Draft Protocol was held in November 2001, in Addis Ababa, Ethiopia. The experts amended the Draft Protocol developed by the ACHPR and called on the OAU to schedule a second AU experts meeting in 2002 to consider the draft again before the hosting of an OAU ministerial meeting on the same issue. African women's organisations participated in the meeting as observers. The OAU scheduled the second experts meeting and ministerial meeting two times in 2002 but had to postpone them due to lack of quorum. Thus the Draft was not presented for adoption by the inaugural Summit of the African Union (AU) held in Durban, South Africa in July 2002 and it seemed that there was little political will among African governments to move this process forward.

In January 2003, African women's organisations from across the continent met in Addis Ababa, Ethiopia at a meeting convened by Equality Now, FEMNET and the Ethiopian Women Lawyers Association (EWLA) to come up with strategies to lobby the AU and individual governments to schedule and attend the expert and ministerial meetings on the Draft Protocol. Represented at the meeting were ACDHR, Akina Mama Wa Africa, the Association of Malian Women Lawyers (AJM), the Association of Senegalese lawyers (AJS), Equality Now, EWLA, Femmes Afrique Solidarite (FAS), FEMNET, WiLDAF, and WRAPA. These organisations pooled comments in a collective mark-up to strengthen the document and bring it into line with international standards. Following the meeting they met with officials of the AU, including the then Acting Commissioner for Peace and Security, who was in charge of the Protocol, and urged him to call for the second experts and ministerial meetings on the Protocol in March 2003 in an effort to ensure that the Draft Protocol was adopted by the AU Summit in July 2003. The organisations further lobbied ministries of Justice and Gender at national level through their networks to confirm their participation to ensure the AU obtained the required quorum.

The Second AU Experts Meeting followed by the Ministerial Meeting on the Draft Protocol was held in March 2003, in Addis Ababa, Ethiopia. The meetings amended and adopted the Draft Protocol and recommended it for adoption by the Executive Council and Assembly of the AU. But this was only after African women's organisations attended the meetings as observers and lobbied the experts and ministers to strengthen the Draft Protocol to the level of regional and international human rights agreements on women. The Second Ordinary Summit of the AU adopted the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa on July 11 2003 in Maputo Mozambique[iii] . The Assembly appealed to all member states to sign and ratify the Protocol in order to ensure its speedy entry into force. The Protocol will enter into force thirty days after the deposit of the fifteenth instrument of ratification. The Protocol will complement the African Charter in ensuring the promotion and protection of the human rights of women in Africa.

Content and meaning for women in Africa
Mainstream international human rights standards are defined in relation to men's experience, and stated in terms of discrete violations of rights in the public realm whereas most violations of women's human rights occur in private. 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 violence against women and provisions that discriminate against them are found in that private sphere.

Human rights guarantees in the legally binding human rights conventions 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 sterilisation, forced childbirth, and numerous other forms in which violence against women and girls is manifested in Africa.

Provisions on women's human rights in the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and the Beijing Declaration and Platform for Action have not involved a conceptual shift or effected structural changes needed to implement their resolutions. The Protocol[iv] primarily complements the African 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 is divided into three sections. The first section covers the rationale behind its elaboration, making reference to both regional and international commitments regarding women's human rights. The second section outlines the rights to be upheld by the Protocol. And the third and final section covers implementation by addressing the manner in which it is to be adopted and monitored, as well as the process through which it may be amended. The Protocol affirms four broad categories of rights: civil and political rights; economic, social and cultural rights; the rights to development and peace; and reproductive and sexual rights.

Status of Ratification
Almost a year after its adoption, only four member states of the AU, The Comoros, Rwanda, Libya and Namibia have signed and ratified it. Thirty-one member states have signed but are yet to ratify it as of July 19, 2004[v] . 12 more countries must ratify it in order for the Protocol to come into force. Its entry into force is critical because it will commit governments to:
- Submit periodic reports to the ACHPR on legislative and other measures they have undertaken to ensure the full realisation of rights recognised under the Protocol;
- Integrate a gender perspective in their policy decisions, legislation, development plans and activities and ensure the overall well-being of women;
- Include in their national constitutions and other legislative instruments fundamental principles of the Protocol and ensure their effective implementation;
- Eliminate all forms of violence and discrimination against women in Africa and promote equality between men and women;

Advocacy Needs and Initiatives
Given the time and effort necessary to persuade governments to adopt this Protocol compared with the desperate urgency to promote, protect and safeguard women's human rights in Africa, African civil society organisations have to campaign and lobby governments to sign and ratify the Protocol as soon as possible and in any event, as a gesture of commitment, before the end of 2004.

Oxfam GB, Equality Now, FEMNET, CREDO for Freedom of Expression and Associated Rights and FAHAMU have started a campaign targeting countries that have already signed with the aim of lobbying them to ratify. They have drafted a petition to be presented to the AU. Kindly sign up at:

To supplement their efforts you could as an individual or organisation:
- Contact relevant government officials in ministries of foreign affairs, women's affairs, and justice and urge them to ratify the Protocol;
- Urge governments to be fully involved in the full realisation of the human rights of women, if they have not done so;
- Encourage government officials to include the issue of the Protocol in contacts with other governments and to state their positions publicly in the media or other events;
- Inform and increase public awareness about the Protocol by putting women's issues on the human rights agenda at various fora;
- Mobilise national and local support for the Protocol among academicians, parliamentarians, and the media;
- Work on creating a better and common understanding of issues as provided for in the Protocol;
- Support the organisation of local focal points on the Protocol to lobby and monitor government positions. The focal points will later be effective in the monitoring of implementation of the Protocol by governments;

Conclusion
The Protocol, once it enters into force, will usher in a new and significant era in the promotion and protection of the rights of women in Africa and end impunity for all forms of violations of the human rights of women in Africa. As Dr Angela Melo, Special Rapporteur on the Rights of Women, ACHPR notes:

"The women of Africa who have suffered for long, their efforts at building our beloved continent have gone on for long without acknowledgement, and the men of Africa should be equally committed to the task. The urgent need to work towards the ratification and effective implementation of the Protocol urgently is a great challenge, yet a duty we all owe to posterity and to Africa."[vi]

*Mary Wandia is the Advocacy Officer with The African Women's Development and Communication Network (FEMNET) E-mail: [email][email protected]
* This article was originally published in Pambazuka News Issue 159 in June 2003.

NOTES
i. www.africa-union.org/home/Welcome.htm
v. See full list of countries that have signed/ratified at www.africa-union.org/home/Welcome.htm
vi. Dr Angela Melo, Special Rapporteur on Women's Rights in Africa, ACHPR in a paper presented during FEMNET's Regional Strategy Meeting on Gender Mainstreaming in the African Union on the theme "From OAU to African Union and NEPAD: Strategies for African Women" October 27-31, Nairobi, Kenya.