Challenges of Domestication: The Protocol To The African Charter on Human and People’s Rights on The Rights of Women in Africa

Once 15 African countries have ratified The Protocol To The African Charter On Human and Peoples' Rights On The Rights of Women in Africa, its provisions will have to be included in country-level legislation. This is the next challenge facing the Solidarity for African Women’s Rights Campaign, says Sarah Mukasa, who assesses some of the potential stumbling blocks inherent in the domestication process. “It is imperative that strategies adopted for this campaign take into account these factors and prepare for the resistances that will surely come,” she warns.

To date, 13 member states of the African Union have ratified The Protocol To The African Charter On Human and Peoples' Rights On The Rights of Women in Africa. This is in spite of the undertaking made by the Heads of State in the African Union Solemn Declaration on Gender Equality in Africa, July 2004. Commitment was made to sign and ratify the protocol by the end of 2004. This is indicative of the measure of political will there is to address substantively the rights of women on the continent. The disconnect between pronouncements made at regional level, and the action taken at national and local levels, demonstrates that the road to domestication and implementation is riddled with challenges that will have to be overcome if the protocol is to be of benefit to the women it seeks to protect. Activists must be at the forefront of the efforts to domesticate this protocol. This brief article will attempt to contribute to this process by assessing a number of possible challenges that will come with the campaign for domestication. It will do this by presenting a synoptic view of the response to women’s empowerment initiatives in the past, at government and community levels.

The main challenge is at the level of the patriarchal state. Engaging the state on women’s rights has been an extremely difficult struggle with varying degrees of success. Historically, the state has been at worst hostile and at best extremely slow to respond to advancing the rights of women. It has entrenched this practice with a regime of discriminatory laws and policies. Even in those countries that have managed to enshrine the principles of equality and non-discrimination in the supreme law, the Constitution, the process of domestication, that is of aligning and framing national laws to reflect these principles, has been wanting. For example, in Uganda, in spite of an extremely progressive constitution, efforts to effect a law that protects the rights of women in marriage, separation and divorce, has for over 40 years yielded no results. Similarly, given our governments’ past record for on the whole failing to honour internationally agreed standards, there is little reason to believe that the protocol will be regarded any differently.

The protocol, which seeks to commit states to protect the rights of women in Africa on the political, social, cultural and economic fronts, is the only regionally generated standard to address the specificity of women’s oppression. It is thus critical that African governments apply this standard at national and local levels. In addition, given that it addresses many of the context specific violations, its application throughout the continent would go a long way to ensure that women are able to exercise their rights. However, it is because the protocol seeks to redress the power equation in gender relations, and to significantly alter the status quo that resistance to it on all levels is to be expected.

There is no doubt that advancements have been made on the continent for African women, the most significant of which has been increasing access for women and girls into the public space, especially local and national politics, education, the business sector and so on. Similarly there has been much initiative at policy level to take into account the interests of women and other marginalised groups. However, this investment has not translated into a fundamental change for the better for the vast majority of African women. Moreover, these gains come against a backdrop of other developments that stand to put these gains and all future work to domesticate the protocol in jeopardy. These include:

a) Weak institutional mechanisms for implementation. This in particular refers to government gender machinery. Most governments have established machinery, either in the form of ministries or departments, to oversee government initiatives for the empowerment of women. However, at the recent review in Addis Ababa in October 2004 of the Beijing Declaration and Platform for Action, 10 years after it was agreed, there was considerable concern raised about these machineries’ performance. In particular, it was noted that their capacities to spearhead the women’s rights agenda are extremely limited due to severe (and in many cases disproportionate) cuts in budget allocation and human resources. Given that it is this machinery that will be largely responsible for monitoring the process of domestication and also implementation of the protocol, it is of major concern that it will not be in a position to do so effectively.

b) The slow process of change. This is particularly at legislative and policy levels. Different countries have different legal regimes. As a general rule, those countries that have inherited the French legal system have some advantage. For under these systems, ratification of the protocol automatically qualifies it as national law. However those of the British system have to undergo a process in which national parliaments effect a law that meets the agreed standard. If the past example of CEDAW is anything to go by, many of the countries that have ratified CEDAW have so far failed to incorporate these standards in national law. This is further complicated by the existence of dual legal systems in much of Africa. In most African countries, the existence of customary and religious law on the one hand and statutory law on the other often means that women’s rights are compromised. When drawing up laws on matters relating to women’s rights, often customary and religious law is given precedence. The protocol which seeks to challenge discriminatory cultural practice is likely to meet with highly organised resistance therefore, and actually be undermined as a result of this duality of legal systems.

c) The failure to promote the culture of Constitutionalism and respect for the rule of law has serious implications for the domestication of the protocol. Recent developments in a number of countries such as Uganda, Ethiopia, Togo, Zimbabwe and Chad indicate a direct correlation between the failure of governments to respect the rule of law and to protect the human rights of citizens. As governments subvert Constitutions and compromise the rule of law in order to entrench their power bases, so too do cases of increased arbitrary detentions, curtailing media freedoms, harassment of political opponents and so on. The state apparatus is used to clamp down on rights and also to silence the voices of dissent. In these instances, the priority will not be to implement laws and regulations that promote rights, particularly those of women.

d) As with CEDAW, the political agency of the protocol is likely to be undermined through the practice of ratifying it with reservations. Where a government enters reservations on a particular provision, it is in effect absolving itself of the responsibility to implement the provision. A number of the countries that have hitherto ratified the protocol have done so with reservations. It is feared that in particular those articles dealing with reproductive and sexual rights, will be compromised in this way.

Other environmental factors that will have an impact on this campaign include:

e) The increase in insecurity and conflict in much of Africa and its effect on women and girls. Whilst the protocol seeks to protect women in conflict, the citizenry’s ability to effect change of this kind is severely weakened in the context of conflict and insecurity. The collapse of law and order systems, the break down and dispersal of communities and support networks, and the struggle just to survive makes it virtually impossible to implement these or any other kinds of measures.

f) The growing marginalisation of Africa as a result of globalisation fuelled by market led growth strategies. Africa’s size in global market share is shrinking. The inequitable competition for market share (since government subsidies in northern economies are still firmly intact), means that Africa will continue its downward slide in gaining access to western markets. Together with the reduction of the role of the state in welfare provision, the plight of poor women in particular will continue to be a major challenge. With regards to the protocol, weak state structures, with reduced revenues, especially in the law and order sector (police and other law enforcement agencies), are less able to address these needs. Given that considerable investments in terms of finance are required for the effective application of the protocol, this development should be a cause for major concern.

g) Current global policy. The terrorist attacks of September 11th 2001 in New York marked a period of drastic change in global policy. This incident marked a paradigmatic shift from safeguarding and promoting human rights to fighting terrorism. Global politics has become highly militarised, and the subtext to this shift is that respect for basic human rights principles can and will be compromised in the interest of fighting terrorism. This has had a knock on effect, with the growing intolerance for progressive thinking, ideas and development programmes. Women’s empowerment initiatives, particularly those aimed at strategic levels, such as the campaign for the domestication of the protocol, are especially endangered. Resources and support allocated to these kinds of programmes has been on the decline.

At the level of the community, there are number of challenges that are to be expected. These include:

h) A lack of awareness, especially at local levels, of the protocol and what it seeks to address. This suggests a general apathy and ambivalence by much of society for initiatives of this kind. Since one of the most effective ways to effect change is to have a critical mass of public support, this aspect of the campaign for the domestication of the protocol cannot be ignored. Since the protocol seeks to protect in particular those women especially vulnerable to violations, it is imperative that efforts to engage them in the process are strengthened.

i) The significant increase in religious fundamentalism and conservatism will seriously threaten the campaign for the domestication of the protocol. There is an increasing resistance to progressive measures to protect the rights of women. The protocol aims to promote a number of measures which for some time have been resisted in a number of national and local contexts. In particular those aspects prohibiting harmful traditional and cultural practices, that seek to promote sexual and reproductive rights and property ownership rights, are likely to be contentious. As part of the campaigning process, our nets should be cast wider to make strategic alliances with some of the more progressive but influential cultural and religious authorities, in order to circumnavigate this resistance.

Discussed above has been the challenges that are likely to impact on the campaign for the domestication of the protocol. It is imperative that strategies adopted for this campaign take into account these factors and prepare for the resistances that will surely come. It is critical that our networking, support and information sharing capacities are enhanced in order that collectively we can address the resistance. A multi pronged approach is required in which community mobilisation strategies are strengthened with, for example the use of non-traditional methods such as the arts and popular culture. In addition, we must strategically incorporate documentation and research initiatives which highlight the economic and social dividends accrued from the domestication of the protocol. The significant advantage that the protocol has is that is an instrument that was generated in Africa by Africans. It came out of the lived experiences of women in Africa. It should be highlighted that our governments actually formulated this instrument, working hand in hand with civil society in order to improve the quality of life of half of the continent’s population.

* Sarah Mukasa is Programmes Manager for the East and Horn of Africa at Akina Mama wa Afrika

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