State reporting key to implementation of women’s protocol

Five years after the entry into force of the protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol), it is time for the 29 state parties to take stock of their success, or lack thereof, in fulfilling their obligations under the regional treaty. The most effective means through which to undertake such an exercise is by engaging constructively with the African Commission on Human and Peoples’ Rights through the process of state reporting in accordance with article 26 of the Women’s protocol which states:

‘States Parties shall ensure the implementation of this Protocol at national level, and in their periodic reports submitted in accordance with article 62 of the African Charter, indicate the legislative and other measures undertaken for the full realisation of the rights herein recognised.’

In the absence of such an exercise, as is the case with the current status quo, what indication is there that the momentum towards the realisation of women’s rights in Africa did not end with state parties upon ratification? What legislative, administrative, institutional, and other measures have been taken at the national level subsequent to ratifying the protocol that have brought state parties closer to compliance with their respective treaty obligations? What are the challenges confronted by states with respect to implementing the provisions of the protocol? What actions need to be taken? How are states monitoring implementation of the protocol – or are they? How do we know that ratification, on their part, of the women’s rights protocol was truly indicative of a commitment to improve the lives of women in their countries? Without the drafting, submission, and consideration of state reports, the answers to such questions are elusive.

In the absence of more effective ‘enforcement’ mechanisms in the regional human rights system, the state reporting process, is the means through which states account for the women’s rights situation in their countries measured against guarantees enshrined in the protocol. If it is utilised as intended, that is, as a tool for national reflection and ‘stock-taking’ of measures to promote and protect women’s rights at the national level – and as instrument to stimulate dialogue between the State Party, and the African Commission on Human and Peoples’ Rights, from which actions can be identified for advancing women’s rights at the national level – then the mechanism is indeed of great value with respect to the advancement of women’s rights on the continent. However, unfortunately to date, it has been under-prioritised with respect to the African Charter, and overlooked entirely since the protocol entered into force and the initial states parties became due to report.

With the assistance of recently adopted guidelines, it is hoped that this obligation will be taken more seriously by states parties, not only as an indication of commitment to implementing the protocol’s provisions, but as a sincere attempt to promote and protect the rights of women. The guidelines for state reporting under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa were recently adopted by the African Commission. It is envisioned that these guidelines will facilitate –and inspire – compliance with the reporting procedure. The guidelines were developed by a regional working group of experts, including the special rapporteur on the rights of women in Africa, which was initiated and coordinated by the Centre for Human Rights at the University of Pretoria, after an identified need to articulate clear guidance on the content of state reports under the protocol. After a survey of reports submitted under the charter by states parties to the protocol, indicating a failure on the part of states to elaborate measures undertaken towards the realisation of the rights in the protocol, a clear need for explicit guidance for states in this respect was identified.

The guidelines outline specifically, what information should be included in the state party’s initial report and periodic reports thereafter, which are somewhat less cumbersome as they build on the initial report and focus on progress since the last report. The guidelines group the provisions of the protocol into eight themes: Equality and non-discrimination; protection of women from violence; marriage; health and reproductive rights; economic, social and cultural rights; right to peace; protection of women in armed conflict; and rights of specially protected women’s groups. With respect to each theme, states should explain the legislative, administrative, institutional, programmatic, educational, and other measures taken to implement the respective provisions as well as provide information on available remedies. Furthermore, they must indicate the extent to which the rights are accessible to all women. Challenges experienced with respect to implementation should be included in the report and importantly, disaggregated statistics should be provided.

Human rights advocates on the continent are well aware that reporting under the African Charter to date has been less than enthusiastic, whereby despite the requirement to submit a report every two years on the measures taken to realise the rights in the charter, states parties, in general, fail to submit timely reports and several states neglect this obligation altogether. Women’s rights have been addressed generally, and only in relation to article 18(3) of the charter on non-discrimination, and limited to legislative and institutional measures without analysis of their impact towards substantive equality.

While human and financial resources may constrain states from fulfilling their obligation to submit their reports, it is more a problem of political will and a misunderstanding of the nature of the process. State reporting provides an opportunity to reflect on progress and impediments towards guaranteeing human rights under the charter – and more specifically, women’s rights, under the Women’s Protocol, and to engage in a constructive dialogue with regional human rights experts, namely, the African Commission on Human and Peoples’ Rights. However, despite this, it is too often rather perceived as an unnecessary burden. Moreover, the relationship between the commission and the state party is viewed by the latter as adversarial rather than cooperative. The commission however, does not act as a jury during the constructive dialogue, but rather as advisors, who ultimately draft and issue recommendations that if heeded, can bring about positive change at the national level. However, in order for the recommendations to be as concrete and actionable as possible to stimulate such change at the national level, they must be based on sufficient information from the state party report – and NGO shadow reports. In other words, the more that the commission receives, the more advice and guidance it can provide. State reporting is not an end in itself, but rather in integral part of a cycle whereby: 1) a report is submitted; 2) the report (and all supplementary information) is considered by the commission; 3) actions are identified towards strengthened compliance with state obligations and included in the concluding observations of the commission; and 4) the cycle begins again only this time from the starting point of the end of the previous cycle, namely with a focus on measures taken since the last report including actions taken to follow up on the commission’s recommendations.

Evidence of this cyclical process working at the UN level exists. Sierra Leone, for example, enacted three laws in 2007 – the Registration of Customary Marriages and Divorces Act, the Devolution of Estates Act, and the Domestic Violence Act – after the CEDAW Committee, in their concluding observations earlier the same year, noted the absence of such legislation based on information gleaned from Sierra Leone’s report to the committee. They recommended that the country ‘place the highest priority’ on addressing this legislative gap, which stimulated legislative reform at the national level towards the advancement of gender equality. The African Commission is equally mandated and qualified to direct states towards legislative reform and other necessary measures towards the advancement of women’s rights as guaranteed in the women’s protocol.

With respect to civil society advocacy, it is time, five years after the protocol entered into force, and after 29 ratifications, to increase efforts towards strengthening the process of engagement between State Parties and the African Commission on Human and Peoples’ Rights through the reporting process. The guidelines must be disseminated amongst relevant stakeholders and States must be held accountable to fulfilling their reporting obligations. Civil society should use entry points for its own engagement in this important process, such as through the submission of shadow reports, and monitoring follow-up of the commission’s concluding recommendations. The potential of this mechanism is far from tapped on the continent and invigorating it may be the key to moving, slowly, from ratification to implementation of the protocol.

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* Karen Stefiszyn is head of the Gender Unit at the Centre for Human Rights, University of Pretoria.
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