The National Center for State Courts, a non-governmental organization supporting the justice sector both in the United States and internationally is interested in recruiting specialists to assist with a forthcoming international development activity to strengthen women's justice and criminal justice programs in South Africa.

GLOBAL OPPORTUNITY FOR WOMEN is a campaign that ignites the collective power of individuals, businesses, governments, and nonprofits to end global poverty by investing in the world's women. By focusing the resources of these important actors on women, we can achieve the goal of cutting extreme poverty in half by 2015.

The U.N. World Food Program reports that it is cutting food rations to Darfur by 50% due to a lack of funding. MADRE and Zenab are responding to this crisis in El Sieref and other refugee camps. Conditions are horrific: Women face a systematic campaign of gang rape; children fear for their lives; families lack even the most basic necessities, like enclosed toilets; and now they will have even less food than before.

This paper reviews the evidence on the effects of policies in the education sector and outside it on household schooling investments in girls and boys, distinguishing between policies that are gender neutral and those that explicitly target girls.

In the aftermath of the acquittal of former South African deputy president Jacob Zuma on charges of rape, it seems that everyone has had an opinion on the judgment – and an opinion on everyone else’s opinion. Last week, Pambazuka News carried a series of articles on the trial and this week reactions have continued to be sent in. Here, Kristin Palitza voices her views.

South Africa’s former deputy president Jacob Zuma has been found not guilty. This was judge Willem van der Merwe’s verdict based on the evidence presented to him. But the truth, and nothing but the truth, will only be known by two people – the complainant and the accused.

What will remain – as a legacy to all South Africans – are the implications of the trial with regards to women’s rights and violence against women.

The judge concluded that consensual sex took place between Zuma and the 31-year-old HIV-positive AIDS activist dubbed Kwezi. He gathered this by firstly deciding that she was not a lesbian, as she claimed herself, but bisexual with lesbian tendencies. In other words, it was possible that she would willingly engage in sex with a man.

What was also used against Kwezi was her statement that although HIV-positive persons should practice safe sex it was ultimately the decision of each individual to do so. According to van der Merwe, this assertion showed that Kwezi might have used her discretion when having sexual intercourse with Zuma, and he therefore turned down the argument that HIV-positive Kwezi would not have agreed to unprotected sex. But isn’t there an alternative interpretation? Kwezi’s statement could very well be read as a personal commitment to safe sex, while refusing to deny the right of other HIV-positive persons to make their own decisions.

Without forensic evidence available to him, van der Merwe based his verdict on who – complainant or accused – seemed to be the more credible person. He found that in this ‘unique case with unique features’ as he liked to call it, it was ‘relevant’ to take the complainant’s sexual history into account. And after he publicly paraded Kwezi’s sexual history in great detail, he decided that it was Jacob Zuma’s version of the incident that was the most reliable.

As all South Africans believe by now, Kwezi is a serial rape accuser. Although it is true that her past does not particularly work in her favour, we cannot conclude with certainty that she lied in this case. Apart from that, who is to say that all the men she allegedly accused of rape in the past tell the truth when not even half of the ‘cases’ have actually come to court and some are purely based on hearsay?

For unknown reasons, the judge did not apply the common legal rule that bad character evidence does not presume bad acts. Instead, he ruled that Kwezi’s history of what he decided were false rape accusations eroded her credibility in her case against Zuma. He concluded that Kwezi’s credibility was ‘wanting’ because ‘at a young age, she already made allegations of rape when no rape took place’.

Van der Merwe also chose to ignore the fact that many of the alleged rapes took place when Kwezi was under age, and thus any sexual act performed on her as a minor would according to South African law equal molestation and/or statutory rape. He further disregarded the fact that, because the majority of the rape allegations never came to trial, his inquiries about events that took place more than a decade ago became ‘he said, she said’ reports without providing factual evidence.

His argumentation then raised the question of why Kwezi would have chosen to go through the trauma of the trial. And here, again, van der Merwe opted to agree with the statement of male testifiers (who do not have psychological qualifications) that Kwezi was ‘a sick person who needs help’. The judge decided it was likely that – based on her sexual history – Kwezi perceived any sexual behaviour as threatening, and further concluded that Kwezi was pretending to be a meek, submissive person, while she was, in fact ‘a strong person who knows what she wants’. It was therefore unlikely that Kwezi would have not screamed when raped, especially if the accused surprised her when she was already asleep.

What van der Merwe fails to consider or understand is how easily charismatic and influential men can abuse their power, especially when dealing with easily manipulated women with a traumatic past. Yet, the judge concluded that only a ‘foolish, over-confident rapist’ would return to the crime scene to talk to his victim and thereby pre-supposed Zuma’s psychological profile and abilities.

Why did he not find it necessary to have Zuma’s psyche studied to professionally establish what he is or isn’t capable of, rather than making his own assumptions, especially since Zuma is well known to all South Africans as an enigmatic, confident and self-assured public figure?

Van der Merwe clearly did not understand or did not want to understand that it is hard to predict how a woman will react when being violated. He argued that the following points indicated consensual sex: Kwezi didn’t scream, said no twice to the massage but not to the penetration, did not call the police or lock her door, and did not leave Zuma’s house immediately after the incident. Yet, there is simply no way of drawing unanimous conclusions about how people react in certain situation. And why did van der Merwe think it was appropriate to generalise women’s behaviour in this instance, after insisting on the ‘uniqueness’ of the case when deciding upon the relevance of Kwezi’s sexual history?

It is true that one possible interpretation of Kwezi’s actions could be that she was comfortable with their sexual interaction. But it is equally probable that she did not leap into action after the intercourse because she was heavily traumatised, confused, intimidated and extremely frightened of the prospect of taking on one of the most powerful men in the country – not to mention a man whom Kwezi openly supported and idolised.

Curious was also how effortlessly the judge brushed aside the analysis of Kwezi by well-respected State-appointed Dr. Merle Friedman while deciding that the findings of Dr. Louise Olivier, paid by Zuma’s defence team, were the more trustworthy ones. Even if Olivier’s statement that only 10% of women freeze when raped is correct – who is to decide that Kwezi does not belong to this minority?

It is true that Kwezi undermined her own credibility by refusing to be examined by Olivier, but then again, who could blame her? Especially since it is public knowledge that Zuma paid an estimated R1.2 million to R1.8 million for his defence, including Olivier’s fee. Why did the judiciary not make an effort to provide an independent psychologist to analyse the psyche of the complainant?

We must also note that while van der Merwe did not consider Kwezi’s mother a reliable witness because of her emotional bias towards her daughter, he had no qualms taking statements made by Zuma’s daughter Duduzile as the truth. It did not occur to him that Duduzile might be equally biased – towards her dad.

Another important reason for the verdict was that the judge did not accept Kwezi’s claim of having a father-daughter-relationship with Zuma – because a) they had been out of touch for more than ten years before they resumed contact, and b) Duduzile denied that Kwezi was a good family friend. Here, Kwezi’s statement stands directly against Duduzile’s, and the judge decided to believe the latter. Why? Again, because Kwezi was, in his view, not credible because of her sexual history.

Van der Merwe even went further when he concluded that – now that he established that there was no paternal relationship – Kwezi’s cell phone messages to Zuma signed off with ‘love, hugs and kisses’ must have been meant as sexual invitations. The judge described Kwezi as ‘inappropriately dressed’ (again, largely based on a comment by Duduzile) and observed that Kwezi did not object to Zuma coming to her room despite previous sexually charged conversations. In other words, it came down, once again, to the old justification of the woman having acted proactively and in a way to invite and encourage a sexual encounter.

It is a major setback to women’s rights that a woman’s sexual history, clothing and ‘inviting behaviour’ has once again been used to her disadvantage, while the man’s sexual history has not even been discussed.

* Kristin Palitza is the editor of Agenda, a journal on women’s rights and gender.

* Please send comments to or comment online at www.pambazuka.org

In the aftermath of the acquittal of former South African deputy president Jacob Zuma on charges of rape, it seems that everyone has had an opinion on the judgment – and an opinion on everyone else’s opinion. Last week, Pambazuka News carried a series of articles on the trial and this week reactions have continued to be sent in. Here, Liepollo Lebohang Pheko gives her opinion.

The past few weeks have been characterised by heated debate and unfettered anticipation about the verdict of the Zuma rape trial. The matter has polarised the nation not only across gender lines but also across class, ethnic and political lines. Having been in downtown Johannesburg when the verdict was announced, I imagined that the anticipated carnage that would have occurred had the verdict been different might have been physically inescapable. As it was the vuvuzelas, cheers and hooters indicated that to some citizens’ estimations, justice has been served.

In addition to the woefully pedestrian prosecution, “Kwezi’s” case was hampered by several social and political complexities. I hold the theoretical view that race, culture, gender, class, and ethnicity are not “external variables” but rather inherent features in an ongoing process of constructing how we understand and participate in the larger social, cultural, and political discourse. This was best encapsulated by two divergent views expressed in the wake of the trial –one by a lawyer colleague and the other by a teller at my local Pick’n Pay. The former stated that he would certainly be attending the ANC congress next year in order to keep Zuma out of the presidency, adding that he attributes blame for this debacle to Mbeki’s aloof and unapproachable leadership style. The young sister at the till jubilantly told me that she would again vote ANC if Zuma were President adding that she as a Zulu woman is tired of Xhosas. Upon my rejoinder that tribalism is not healthy for any nation she heartily responded - “They started it”.

The clear ethnic divide that this case has opened is like a fine dye in which clothes have been soaked. It will take several washes to examine the extent to which the colour has been set and several more to remove it should it be found not to our liking. This case exacerbates and evokes every moment of tension and hatred experienced during the scourge of “black on black violence” and the blood shed in KZN before the elections of 1994. It is moments such as this that should remind us that the matchstick lit in Rwanda in 1994 could be ignited in any country whether through Western interference or the interests of Multi National Companies. Rwanda, the Darfur region and Angola for example are chilling reminders that no-one may be left to recall “who started it”.

The notion of justice is fragile and often fluid. This case illustrates that the legal process has run its course and that political interests are willing to subvert this process for other ends. Whether this is a slap for President Mbeki, an attempt to divert attention from the upcoming corruption trial, or an endeavour to install a working class president to supposedly ensure “workers right’ even though Jacob Zuma has never stood by workers during his cabinet tenure, the loser here is the credibility of any woman who walks into any police station or courtroom to lay a charge of rape.

The law, police , lawyers and judges in this or any matter are not amorphous beings without bias but people with opinions on various types of sexual behaviour and orientation (witness Judge der Merwe’s chastisement of Zuma), perceptions on correct physical and emotional responses to rape, understanding of culture, on religion, on politics and even dress-code. In all this we could not forget that no matter how close Zuma may have been to Kwezi’s parents, Kwezi herself is not of notable ‘political royalty’ , is not a BEE magnate and has no access to the sort of political and media spin doctoring at Zuma’s disposal.

As the TV media dismissively described the hasty exit of gender activists from the courtroom, many in tears, the ultimate victims of the process were left decimated - the rape of authentic moral regeneration, the rape of any woman’s right to make self determined choices about her social and private life, the rape of male accountability, and the rape of trust. The breach includes trust in positive cultural practises, trust in elders, trust in men who believe consent is implied by accepting a dinner date, trust in other women who cried “burn the bitch”, trust in the legal system and trust even in our own ability to relate to each other as one dignified nation rather than one fragmented by skewed understanding of gender, ethnicity, class and political orientation. When our essence has been torched and all that remains are the carcasses of the nation we could have been and the people we should have been, who indeed will be left to recall what greatness and humanity truly are.

* Liepollo Lebohang Pheko is a Senior Policy Analyst at GENTA

* Please send comments to or comment online at www.pambazuka.org

The speed with which the Protocol on the Rights of Women in Africa was ratified broke all records for the ratification of continental human rights instruments in Africa. By 25th November 2005, the Protocol came into force having received the required 15 ratifications. Irungu Houghton reviews the origins of the Protocol, its ratification process and the path that lies ahead.

This paper outlines the background to the coming into force of the Protocol to the African Charter on the Human and Peoples Rights on the Rights of Women in Africa. It sets out the legal status of the Protocol and the instruments and mechanism for enforcing its provisions. It then frames future challenges for its ratification, domestication and implementation and ends by recommending four priority areas for the Committee to consider alongside the advisory role it has been assigned.

Background to the Protocol on the Rights of Women in Africa

A quick examination of the reality for women and girls lives in 2006 establishes the strategic importance of the Protocol for changing negative power relations, gender inequality and the disempowerment and impoverishment of women in Africa.

Our Political and Economic Reality and Provisions of the Protocol:

- Over 60% of the two million victims of conflict in the 1990s were women and children. 50% of Africa’s six million refugees and 17 million internally displaced peoples are women.

The Protocol makes special provisions for female refugees and also calls for the promotion and maintenance of peace, as well as protection in times of armed conflict. This includes needs arising from shelter, supplies, healthcare and protection from violence.

- 70% of the estimated 1.3 billion poor people in the world are women and girls.

The Protocol specifically recognises the rights of vulnerable groups of women, including widows, elderly women, disabled women and ‘women in distress’, which includes poor women, women from marginalised population groups.

- Problems with safe abortion, pregnancy and childbirth cause the deaths of at least 250,000 women each year in Africa. Against the total population, this is the highest figure in the world.

The Protocol states that women’s sexual and reproductive health is to be both respected and promoted, which is predicated on women's right to control their fertility and by the obligation of states to provide adequate, affordable and accessible health services. It also demands that governments establish and strengthen existing pre-natal, delivery and post-natal services for all African women. The Protocol also calls for the authorisation of medical abortions in cases of sexual assault/rape, incest or unsafe pregnancies.

- 57% of the 23 million adults with HIV/AIDS in sub- Saharan Africa are women. Young women (between the ages of 15 and 24) are three times more likely to be infected.

The Protocol enforces the right to self-protection, and to be informed of one’s health status and that of one’s partner. It also provides for health services to cope with the effects of HIV/AIDS.

- Slight positive increase in the percentage of women parliamentarians in the single or lower house from 7.2% in 1990 to 14.2% and some African countries have enforced a quota for the number of women in parliament such as Rwanda.

The Protocol endorses affirmative action to promote the equal participation of women, including equal representation of women in elected office, and calls for the equal representation of women in the judiciary and law enforcement agencies. Articulating a right to peace, the Protocol recognises the right of women to participate in the promotion and maintenance of peace.

The Protocol provides a critical framework to address other integral issues to realising African women’s rights. (Karoline Kemp’s article in a forthcoming book goes further to popularise this.)

The African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights came into force on 21 October 1986. It includes the right to self-determination and full sovereignty over natural resources, the right to peace and the right to a favourable environment for development. The Charter established the African Commission on Human and Peoples’ Rights, which is responsible for enforcing the rights enshrined in the charter.

Though the African charter recognises the importance of women’s rights, it was widely acknowledged to be inadequate on the areas in which women need protection and gender equality. (The charter recognises the importance of women’s rights through four key articles namely: Article 2, the non-discrimination clause, which provides that the rights and freedoms enshrined in the charter will be enjoyed by all irrespective of their sex; Article 3, which states that every individual will be equal before the law and be entitled to the equal protection of the law, Article 18(3), which is specifically about the protection of the family and promises to ensure the elimination of discrimination against women and protect their rights and Article 60, which states that the African Commission on Human and Peoples’ Rights will draw inspiration from international human rights instruments such as CEDAW (See Rita Anyumba chapter on Instruments on women’s rights in forthcoming book “Breathing Life into the African Union Protocol on Women’s Rights in Africa”)

The Protocol on the Rights of Women in Africa

The Protocol on the Rights of Women in Africa is a protocol to the African Charter on Human and Peoples’ Rights (ACHPR). The Protocol was adopted on 11 July 2003 during the Second Ordinary Heads of States and Governments Summit held in Maputo, Mozambique. This was a long-awaited realisation, as it had taken eight years for the draft text of this critical new human rights instrument for African women to be adopted. Article 26 of the Protocol cites obligations of the state parties. They are expected to implement and monitor the actualisation of the rights provided in the Protocol and, in
particular, provide budgetary and other resources for the full and effective implementation of the rights recognised in the Protocol. They are also expected to report on progress in their periodic reports to the African Commission on Human and Peoples’ Rights.

With only The Comoros having ratified the Protocol one year after its adoption, there was a concern that its ratification and domestication would take the same time or even longer. (Similar instruments have taken a long time to be ratified and enter into force. The ACHPR was adopted in 1981, but only came into force in 1986 – five years later. The Protocol establishing the African Court on Human and Peoples’ Rights came into force in 2004, six years after its adoption in 1998. And the African Charter on the Rights and Welfare of the Child, which was adopted in 1990, came into force nine years later.) Women’s and human rights organisations took stock of the slow progress of ratification in April 2004 and reached out with the African Union Commission to encourage governments to bring the Protocol into force swiftly and ensure its
subsequent domestication.

Legal Status of the Protocol in May 2006

“I write in response to your (SOAWR) letter in which you expressed concern that only 15 African countries had ratified the Protocol … Whilst I take note of your concern that although Botswana has not ratified the Protocol, our country is totally committed to ensuring that women’s rights are observed…” H.E. Festus G. Mogae, President of the Republic of Botswana, 20th December 2005

“I am ..pleased to note the excellent partnership between the AUC Directorate of Women, Gender and development and Solidarity on African Women’s Rights. This Coalition has achieved impressive results in terms of a speedy ratification process. It is indeed a successful partnership with lessons for all at the AUC.” Adv. Bience Gawanas, Commissioner for Social Affairs, close of conference remarks, September 2005

State of Ratifications

From June 2004, the pace of ratification has accelerated with amazing success. On the 25th November 2005, the Protocol came into force having received the required 15 ratifications. The speed of the ratification broke all records for the ratification of continental human rights instruments in Africa. This date was also significant as it also coincided with the start of the international 16 days of activism on ending violence against women.

Mechanisms for accessing Justice under the Protocol

Like the African Charter, the Protocol does not contain clauses, which permit member states to opt out of or derogate from applying its provisions. It is binding on all member-states that have ratified it. Under the African Charter, member states are obliged to undertake to submit to the Commission ‘a report on legislative or other measures taken…to giving effect to the rights and freedoms recognised and guaranteed by the present Charter’ every two years. Following the debate about a state’s report, the Commission prepares a set of final remarks which ordinarily includes information on the positive actions taken by a member state, core concerns and recommendations. They are then sent to the member state which is then required to provide, within two years, information on the measures taken in order to implement the said recommendations.

Although a small but growing number of states do make periodical reports and take it upon themselves to implement the recommendations they are given, the number of states that regularly present periodical reports is still few. This and the poor popularisation of the Protocol at national and regional levels will act to severely undermine its potential. Unless these trends are reversed, women and men will be prevented from claiming the rights accorded in the Protocol. It is critical that public information campaigns be undertaken periodically to increase public awareness and actions to close down the space for human rights violations and impunity.

As Mary Wandia has also noted at the national level, there is a lack of connection between the ministries of justice (closely linked with the African Court on Human and Peoples' Rights), the ministries of foreign affairs (closely linked with the AU) and the ministries of gender/women. The first two ministries do not usually communicate effectively the commitments undertaken at the regional level to the latter. This has led to gaps in implementation and monitoring.

There are also multiple legal systems in place at national level in many African countries. It is the coexistence of statutory, religious and traditional systems that has led to violations of women’s rights in areas of marriage, inheritance and divorce. At the national level, parliaments, judiciary, ministries of gender/foreign affairs/justice/finance and national human rights institutions should be encouraged to support litigation, implementation and reporting mechanisms for the Protocol. These institutions could be more effective by ensuring regular tripartite meetings with CSOs to facilitate reporting on the progress in implementing the Protocol to the African Commission on Human and Peoples' Rights as well as making the newly established Court on Human Rights relevant and accessible for all African peoples.

From Ratification to Implementation: The next frontier

The different status of countries requires a dual track approach. For countries that are yet to ratify they must be encouraged to do so with a sense of urgency.

It is important also that states ratify the Protocol establishing the African Court on Human and Peoples’ Rights. As of 14 December 2005, only 22 of the 53 AU member states have ratified this Protocol. When ratifying, states should enter provisions for the public to access justice under the African Court on Human and Peoples’ Rights. Currently, only Burkina Faso has made the declaration under Article 34(6) of the Protocol, granting individuals and non-governmental organizations direct access to the Court. To not do so, is to betray the vision of the African Union and the commitment of Governments to the promotion and protection of human rights in Africa.

For countries that have ratified, it is important to recognise that it is here that the promise of the Protocol will be either fulfilled or betrayed. As Ugandan activist Sarah Mukasa has noted, there is often a “disconnection between the pronouncements made at regional level and the action taken nationally and locally…domestication and implementation is riddled with challenges that will have to be overcome if the Protocol is to benefit the women it seeks to protect”. She goes on to identify three major obstacles in most countries namely; weak public appreciation of the centrality of constitutionalism and the rule of law, inadequately resourced national gender machinery and lastly, the precedence of entering reservations on progressive clauses. It is critical therefore that states are encouraged to domesticate the Protocol and expedite its implementation.

The review of Beijing plus 10 revealed the dangers of starving progressive visions and commitments. The Protocol requires finances and other resources to be an important tool for the realization of the rights of women. It should be noted, that there are a number of actions that can be taken that have little or no-monetary implications. This includes the removal of all discriminatory laws. States could also identify easy ‘quick wins’ for initial budgetary allocations, which demonstrate real change in the administration of justice. States would go a long way in breathing life to the Protocol by considering its
articles while mainstreaming gender in all budgets and programmes.

Distinguishing a role for the African Union Women’s Committee

With several continental mechanisms working on women’s empowerment, rights and gender equality, it is important to distinguish the role and aspiration of the Committee. There are five priority areas that the committee should consider focusing their energies on. (This is a menu of options, mandate, resources and time does not allow for the Committee to take on all agendas, but three to four objectives with appropriate benchmarks would be sufficient.)

The committee could schedule high-profile missions to capitals to urge the ratification, domestication and implementation of the SDGEA and the AU protocol on the Rights of Women (PRW). Developing key linkages with pan African women’s networks and movements as well as associations of women judges, lawyers and the Pan African Parliament, could strengthen the committee’s voice.

While encouraging universal ratification, it would be important for the committee to monitor, influence and encourage clean reservations to the Protocol. South Africa and The Gambia ratified the Protocol with reservations. In the case of South Africa, one of the reservations is to restrict access to the African Court by forcing citizens to apply for permission to a Parliamentary Committee. In the case of The Gambia, the reservations were fairly far-reaching. Recently, it has been inspiring to learn that these
harmful reservations are on the verge of being formally lifted. It would be important for the Committee members to make a personal commitment to ensuring “clean” ratifications from all countries.

Thirdly, the Committee can undertake high-profile missions or actions in the form of writing open letters either in solidarity against specific violations against women or also to celebrate breakthroughs and victories. This could be done either by advising the Chairperson of the AUC to speak out or by releasing them in the name of the Committee members. This will also breathe life into the concept of non-indifference on gender equality and roll back cultures of impunity.

While Darfur continues to be a scar on the conscience on Africa, the committee must break new frontiers in war-torn areas such as Northern Uganda. (Northern Uganda, at 19 years is Africa’s longest war and has not had the same attention as Darfur, Sudan.) The full committee need not undertake the missions but a few members could be selected on the basis of their knowledge of the issue, its importance and regional expertise.

Lastly, the committee could look outwards to the processes of UN reform and the monitoring of the Millennium Development Goals with a view to using the Solemn Declaration and the Protocol on Women’s Rights as a lens for measuring progress and agreeing on benchmarks and targets. To not do so, would be to run the danger of repeating the experience of the UN Millennium Summit last year where the deadline for the gender parity MDG passed without protest or censure of the 180 leaders present.

The Committee could champion the process of implementation by directly advocating with all African Governments that gender mainstreaming be vested and adequately resourced at the highest level of Government. Without this, the Protocol could die an early death confined to legal statutes and far from the living experiences of women and men on this continent.

* Country Status on the ratification of the Protocol on the Rights of Women in Africa
Country Status on the ratification of the Protocol on th
Not yet Signed

Angola, Botswana, Cameroon, Central Africa Republic, Egypt, Eritrea, Sahrawi Arab Democratic
Republic, Sao Tome & Principe, Sudan, Tunisia

Signed, but not Ratified

Algeria, Burkina Faso, Burundi, Chad, Congo, Cote d’Ivoire, Democratic Rep. Of Congo, Equatorial Guinea, Ethiopia, Gabon, Ghana, Guinea, Guinea-Bissau, Kenya, Liberia, Madagascar, Mauritius, Niger, Sierra Leone, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe, Seychelles, Somalia,

Ratified

Benin, Cape Verde, The Comoros, Djibouti, The Gambia, Lesotho, Libya, Malawi, Mali, Mauritania,
Mozambique, Namibia, Nigeria, Rwanda, Senegal, South Africa, Togo

Sources for this briefing

- African Union Protocol to the African Charter on the Human and Peoples Rights on the Rights of
Women in Africa, Addis

- African Union and SOAWR Breathing life into the African Union Protocol on Women's Rights in Africa, forthcoming July 2006

- SOAWR Not Yet a Force for Freedom, 2004

- PAMBAZUKA NEWS Issue 245 Islam and Women, 2006

- PAMBAZUKA NEWS Issue 231 Protocol comes into force, 2005

* This is the final version of a paper presented by invitation to the inauguration of the African Union Women’s Committee, April 28-29th 2006, Addis Ababa. Irungu Houghton is the Pan Africa Advisor for Oxfam based in Nairobi. He represents Oxfam in the Steering Committee for the Solidarity for African Women’s Rights Coalition, a pan African coalition of 20 development and women’s organisations working to popularise, ratify and implement the Protocol on the Rights of Women in Africa. He acknowledges the analysis of colleagues within the SOAWR coalition that will be published in forthcoming book co-published with the African Union entitled Breathing life into the African Union Protocol on Women's Rights in Africa, July 2006.

* Please send comments to or comment online at http://www.pambazuka.org/

Accessing rights for persons with disabilities in Kenya is a major challenge, and is even more difficult for women with disabilities, as awareness on their human rights is low and slow, argues Monica Mbaru-Mwangi, a disability activist. This article links the personal story of a 10-year-old deaf girl, sexually abused by a neighbour, to concrete legislation and protocols that should, in theory, help her to attain justice.

Rose Mwikal is the mother of 10-year-old Mueni (not their real names), and has spent the past two years fighting for an elusive justice. On 4 April 2004, a well-known neighbour sexually abused Mueni while Rose was away attending to other family needs.

Since birth, Mueni has had a hearing impairment; a condition that has forced her out of school. Rose is a single parent who has tried in vain to have Mueni’s father take parental responsibility and assist in the burden of dealing with her daughter’s disability.

According to the Kenyan Children’s Act, parental responsibility towards a child is determined by the marital status of the child’s parents. Where the parents were married at the time of the child’s birth, or have subsequently married, the mother and the father have joint parental responsibility. Neither the mother nor the father have a superior right or claim against the other in the exercise of this responsibility [1].

However, in cases where the parents were not married at the time of the child’s birth and have subsequently not re-married, the mother has full responsibility whereas the father bears no responsibility at all [2]. The father can acquire parental responsibility but this is optional and more importantly, it is optional to the father; there is nothing the mother nor the child can do to enforce the responsibility on him [3]. The provision in the Children’s Act on parental responsibility is discriminatory, as it makes a child born out of wedlock disadvantaged in comparison to a child born within marriage.

Being alone and with no school nearby that will accept Mueni because of her disability, Rose normally leaves her at home. On the day of the incident, when Rose came back at around 2pm, she found Mueni crying in bed and upon further investigation she noticed her soiled clothes. Upon enquiry, Mueni took her mother’s hand and led her to her neighbour’s house and in sign language indicated to the mother what the neighbour had done. Rose rushed to the nearest police station, but was not issued with the necessary police medical forms because there were none. She was further told, by the reporting officer, that ‘such a case cannot be properly supported in court as the girl is deaf and disabled…she cannot be able to give evidence in court’.

With the help of the local priest, Rose eventually managed to take her daughter to a hospital where she got treatment. Eventually the matter was taken to court. The matter has been listed on several occasions for hearing, but each time has been adjourned, as no sign language interpreter has been available to assist in taking Mueni’s evidence. Rose is unable to provide this service as she is a prosecution witness.

According to the Kenyan Constitution:

“… in criminal cases … every person shall be informed in a language that he understands and in detail, of the nature of offences … shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial…” [4].

It is therefore a constitutional right to use the language that one understands. As Mueni is a prosecution witness, she has the right to have her case facilitated by the state.

Kenya, which also adheres to the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules) [5], passed the People With Disabilities Act (Disability Act or the Act) in 2003. This legislation gives rights, but does not set the necessary structure necessary for those rights to be realised. Similar challenges are faced in the drafting of the proposed human rights instrument on the rights of People with Disabilities (PWDs) at the international level, which is currently ongoing [6].

The Act mandates the Council for Persons with Disabilities [7] to create the structure and mechanisms for accessing the rights enshrined therein. The Council has been in operation for the past two years, but it is still in its formative stages. The Act does not address the specific rights of women with disabilities nor does it deal with gender based violence, which occurs at high rates against persons with disabilities.

Accessing rights for persons with disabilities in Kenya is a major challenge, and is even more difficult for women with disabilities, as awareness on their human rights is low and slow. Violations occur on a daily basis, as there is no government policy on women rights. Gender-based violence is very high and for women with disabilities, they suffer a double violation, as there are no structures in place to give them specific protection.

Women with disabilities have particular needs and they face many obstacles in their struggle for equality. Although both men and women with disabilities are subject to discrimination, women with disabilities are doubly disadvantaged by discrimination based on gender and their disability status [8]. Therefore the case of Mueni is a reflection of how the Kenyan criminal justice system and society at large view the rights of women with disabilities, and is a demonstration of the failure to address serious violations of sexual violence [9]. Like any citizen whose rights are enshrined in the Constitution, Mueni should be given not only protection of the law, but access to a sign-language interpreter, doctor, police officer and a judiciary who are aware of her specific needs in helping her attain justice.

There is wide acceptance that the human rights of people with disabilities must be protected and promoted through general, as well as specially designed laws, policies and programmes [10]. National governments can make this possible through their legislation. In Kenya, this will be possible through the guidance of international standards to inform national legislation.

Of significant importance is the Protocol on the Rights of Women in Africa. On November 25, 2005, the Protocol on the Rights of Women in Africa (the protocol) [11] entered into force, after being ratified by 15 African governments [12]. Two years earlier, in July of 2003, the African Union - the regional body that is charged with promoting unity and solidarity among its 53 member nations - adopted this landmark treaty to supplement the regional human rights charter, the African Charter on Human and Peoples’ Rights (the African Charter). The protocol provides broad protection for women’s human rights, including their sexual and reproductive rights [13].

CEDAW does not contain any provisions that directly relate to discrimination or violence against women with disabilities. However, in its General Recommendation 18, the CEDAW committee recognises that women with disabilities experience particular forms of discrimination and asks state parties to provide information on them and take special measures to ensure disabled women’s access to legal protection [14]. The CEDAW Committee acknowledges that the status of women with disabilities makes them vulnerable to violence, especially sexual violence.

Similarly, the Convention on the Rights of the Child (CRC) [15] does not give specific protection to children with disabilities, but does prohibit discrimination against children on the basis of disability and also recognises their special needs that require special, appropriate assistance and care [16]. These provisions should be at the benefit of Mueni and all other children with disabilities. The CRC, though gender neutral, requires states to:

“…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation [17].”

Kenya has ratified CEDAW, and as we wait for the ratification of the Protocol on the Rights of Women, Mueni can only rely on national legislation to give her protection against her abuser. The Persons with Disabilities Act does give access to these rights, but the mechanisms and structures have not yet been put in place to ensure that these guarantees are enforced. The Kenya National Commission for Human Rights (KNCHR), [18] has begun to take an active interest in disability issues. This is important since the institution helps in providing a bridge between international human rights law and domestic debates. With the Council for Persons with Disabilities in place, it is hoped that the enforcement of rights for persons with disabilities, and especially women’s rights, can be realised.

Monica Mbaru-Mwangi is the Chairperson, Kenya Union of the Blind, and National Treasurer, United Disabled Persons of Kenya.

* Please send comments to or comment online at www.pambazuka.org

References

1. Art 24 (1) Children’s Act
2. Art 24 (3.a) Children’s Act
3. Art 24 (3.b) Children’s Act
4. Section 77 (2) (b) and (f) of the Constitution of Kenya (1992).
5. UNGA Res. 48/96, 20 December 1993. Available at http://www.un.org/esa/socdev/enable/dissre00.htm (accessed 5 April 2005). The predecessor of the Standard Rules on Equalisation of Opportunities for Persons With Disabilities (Standard Rules); World Programme of. Action Concerning Disabled Persons, UNGA Res. 37/52, 3 December 1982, available at http://www.un.org/esa/socdev/enable/diswpa00.htm (accessed 5 April 2005).
6. UN Disability Rights Convention, which has held four sessions and information available at http://www.pwd.org.au/disabilityconvention/ (accessed 5 April 2005).
7. Section 7 of the Persons with Disabilities Act, 2003.
8. Report of the Director General, International Law Conference, Geneva, 1981. available at

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