Reporting rights, protecting rights

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa was adopted in 2003, entered into force in 2005, and has to date been ratified by 29 African states.[1] Provided States fulfill their obligations under the protocol, it has the potential to play a key role within the human rights framework designed to address gender inequality and advance women’s rights in Africa.

When working towards the realisation of African women’s rights, the African Commission on Human and Peoples’ Rights (ACHPR) has an important role to play in monitoring state compliance with the protocol through consideration of state reports. When submitting their periodic reports to the ACHPR on implementation of the African Charter on Human and Peoples’ Rights (the African Charter), state parties to the women’s protocol are obliged to include reference to the legislative and other measures undertaken for the full realisation of the rights recognised therein.

THE NEED FOR REPORTING GUIDELINES

Pursuant to article 26 of the women’s protocol, read together with article 62 of the African Charter, each State party to the protocol has agreed to submit every two years, from the day the protocol entered into force, a report on the legislative, judicial, administrative and other measures taken with a view to ensure full realisation of the rights and freedoms contained in the protocol.

However, a recent review of state reports revealed that most state parties that have submitted their reports in compliance with provisions of the African Charter, have failed to provide detailed information on their compliance with the protocol and efforts to realise the rights in that treaty. Such failure may, in part, be attributed to the absence of guidelines on state reporting under the women’s protocol, apart from the existing guidelines on state reporting under the African Charter. Accordingly, the University of Pretoria Centre for Human Rights last year identified the need to support the ACHPR in the development of such guidelines in order to promote strengthened state reporting and facilitate subsequent meaningful engagement between state parties and the ACHPR on issues of women’s rights.

The Centre for Human Rights collaborated with the ACHPR to convene a gender expert meeting in Pretoria from 6-7 August 2009. During the course of this meeting, invited experts and members of the ACHPR drafted reporting guidelines for the women’s protocol.[2] These draft guidelines were subsequently submitted to the ACHPR for its approval and adoption.

The ACHPR adopted the reporting guidelines at its 46th Ordinary Session held in Banjul, the Gambia from 11-25 November 2010.[3]

AN OVERVIEW OF THE REPORTING GUIDELINES[4]

The guidelines provide that a State party to the African Charter and the women’s protocol must submit its report in two parts: Part A, dealing with the rights in the African Charter, and Part B, dealing with the rights in the protocol. The following guidelines are applicable in the preparation of Part B:

INITIAL REPORTS

When reporting for the first time under the protocol, states must provide information regarding the following:

i. Process of preparation:
To what extent was civil society involved in the preparation of the report?

ii. Background information:
A brief description of the state’s overall legal framework as it relates to women’s rights.

- Is the women’s protocol directly applicable before national courts or does it have to be incorporated into domestic law? In practice, have the provisions of the protocol been invoked before national courts and tribunals?

- If a state has entered any reservations to the protocol, it should explain the effect of the reservations (if any) on the enjoyment of the rights protected by the protocol. In addition, such a state should indicate how much time is needed before reservations may be lifted.

- A brief description of state institutions, if any, relevant to the protocol and information on their budgetary allocation.

-General information on gender budgeting, gender mainstreaming and any relevant gender audit of laws or law reform efforts.

iii. Specific provisions of the protocol:
In respect of each of the provisions of the protocol (which have been thematically structured), states should explain the measures of implementation that they have undertaken with regard to the following:

- Legislation (What legislative measures has the state taken to give effect to the particular rights guaranteed in the protocol?)
- Administrative measures (What administrative measures, including budgetary allocations, has the state taken to give effect to the particular rights guaranteed in the protocol?)
- Institutions (What institutional mechanisms are in place to ensure that the particular rights guaranteed in the protocol are given effect?)
- Policies and programmes (What policies and programmes has the state adopted in order to give effect to the rights in question?)
- Public education (What public education and awareness-raising activities has the state undertaken with respect to the rights in question?)
- Any other measures (What other general measures, which are not covered in the points above, has the state adopted to ensure the protection of the particular rights in question?)
- Remedies (What are the available avenues for redress in the event of a breach of the particular rights provided in the protocol? Have any cases been decided in respect to each of the rights; and if so, have these decisions been implemented?)
- Challenges experienced (What are the challenges that the state has faced in the implementation of the particular rights, and what steps have been taken to overcome these challenges?)
- Accessibility (Are the particular rights accessible to all women, especially rural/impoverished women?)
- Disaggregated statistics (Where relevant, the state should provide relevant data and statistics disaggregated by gender in so far as the right in question is concerned.)

iv. With reference to the measures of implementation above, states must report on all the provisions of the protocol, preferably as grouped under the following eight themes:[5]

1. Equality/Non-discrimination
2. Protection of women from violence
3. Rights relating to marriage
4. Health and reproductive rights
5. Economic, social and cultural rights
6. Right to peace
7. Protection of women in armed conflicts
8. Rights of specially protected women’s groups

PERIODIC REPORTS

Subsequent reports should cover the following:

- Measures taken to implement recommendations in the concluding observations of the commission emanating from the examination of the previous report.
- Measures taken to publicise and disseminate the concluding observations adopted after the examination of the previous report.
- Progress made in the implementation of the protocol since the last report.
- The challenges faced in the implementation of the protocol since the last report, and steps taken to address these challenges.
- Future plans in regard to the implementation of the protocol.
- Measures that have been taken to implement recommendations made during country visits by the special mechanism on women’s rights.

STATE REPORTING – BURDEN OR OPPORTUNITY?

States may view reporting obligations as a formality - a necessary, but sometimes unpleasant, burden. This would be particularly true when elements of reporting fatigue set in. Reporting fatigue is likely to arise when states are faced with a multitude of reporting obligations flowing from a wide range of international and regional legal and policy frameworks.[6] States may find that there is too little technical capacity and too few human and financial resources to ensure that adequate attention is devoted to the preparation and submission of each and every report.

OPPORTUNITIES PRESENTED BY STATE REPORTING

Negative perceptions of reporting obligations may change when States recognise the process of satisfying a state’s international reporting obligations as an occasion for achieving a variety of objectives. When regarded as an integral part of an ongoing process designed to promote and enhance respect for human rights rather than an isolated event merely intended to comply with the requirements of an international treaty, valuable opportunities arise.

So, for instance, states may regard this as an opportunity to:
- Reaffirm its commitment to respect the human rights of its own citizens and to reassert that commitment in the domestic political forum;
- Take stock of the current domestic situation, with the assistance of civil society and other stakeholders as appropriate;
- Adopt necessary measures aimed at remedying any shortcomings that may have been identified; and
- Proclaim to the international community its seriousness about human rights standards.[7]

FUNCTIONS OF STATE REPORTING

State reporting serves a variety of functions, among which are the following:

State reporting provides a useful process and forum where governments are required to answer to their responsibilities. Ideally, it presents an avenue for constructive dialogue. Arguably, the main purpose of state reporting is to establish a framework for constructive dialogue between the state concerned and the monitoring body. As such, state reporting should not be construed as a confrontational process between the state and the monitoring body concerned. Rather, it should be viewed as an opportunity for the state and the monitoring body to constructively explore avenues whereby the state can better implement a particular treaty.

In terms of its monitoring function, reporting enables the monitoring of a state’s compliance with its human rights obligations under a specific treaty. Ideally, the preparation of a state report should go beyond a description of the legal formalities in order to properly articulate the situation in practice. Reports should aim at striking a balance between the situation in theory and that in practice.

State reporting strengthens and supports public scrutiny of a state’s performance with regard to its human rights obligations. The preparation of a state report must thus be seen not only as intended for an international forum but also the domestic audience. This is because most human rights instruments seek to promote and enhance both the international and domestic accountability of a state.

As such, reporting may provide a forum whereby groups within countries may monitor the progress of their governments and question this progress. Often opportunities to do so are not readily available through local processes. In this regard, reporting also serves to emphasise the importance of thorough investigation of overt and covert violations of the rights provided for in a particular treaty.

State parties to particular treaties are required to not only report on the progress that they have made, but also problems that they may face. Thus, an opportunity is created for acknowledging concerns and challenges. States should provide a frank assessment of factors that hinder the implementation of rights within their jurisdiction.[8]

CONCLUSION

The adoption of the reporting guidelines heralds an exciting new phase in the life of the women’s protocol. The foundation has been laid and it now remains for states, civil society and the ACHPR to ensure that state reporting in terms of the protocol becomes a framework for ongoing and constructive dialogue.

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* Elize Delport is a South African gender activist, human rights lawyer and member of SOAWR. She is an extraordinary lecturer at the University of Pretoria Centre for Human Rights and teaches the human rights component of the Masters Programme in Women’s Law hosted by the University of Zimbabwe. She is a member of the governing council of the African Centre for Democracy and Human Rights Studies in Banjul, the Gambia.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES:

[1]For a detailed and current list of ratifications, see http://bit.ly/dV2ONO
[2] See, in general, concept note prepared by the Centre for Human Rights for Gender Expert meeting. This concept note may be found at: http://www.chr.up.ac.za/index.php/gender-documents.html
[3] See, in general, http://bit.ly/gTJYwY
[4] The full text of the Reporting Guidelines (in English and French) may be found at http://bit.ly/gSURXC
[5] See the full text of the Guidelines for more details regarding the provisions grouped under these eight themes.
[6] In terms of legislative, policy and political frameworks relevant to women in Africa, most countries would (also) have to prepare reports with regard to the Convention on the Elimination of all forms of Discrimination Against Women, the Beijing Platform for Action and the Solemn Declaration on Gender Equality. Should it enter into force, the SADC Gender and Development has the potential to create yet another reporting obligation.
[7] See, in general, http://www.iwraw-ap.org/committee/reporting.htm
[8] For a general discussion on State reporting, see http://bit.ly/hVAYPI