Rights & Democracy
Chapter 3 – Women’s Rights in the African System: Progress and Challenges
– Valérie Couillard
Women’s Rights in Africa Are Human Rights
Advocating women’s rights in Africa often elicits the following reaction: “Women’s rights! What about men’s rights?” As if women’s rights were a pipe dream … What’s more, it is argued that women and men cannot be considered equal or on the same footing, because in reality the two sexes are different and have different roles that cannot be compared.
This chapter explains the reasons it was deemed necessary in Africa to report the problems women experience and to create genuine legal protection for them. It describes the developments in women’s rights in the African regional system, in particular those pertaining to the advent of a comprehensive and innovative instrument, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa1 (the Protocol). It also highlights the special implementation mechanism for women’s rights created by the African Commission on Human and Peoples’ Rights (the Commission) and its activities with civil society. Lastly, this chapter addresses the question of the implementation of rights guaranteed under the Protocol by presenting the realities of legal pluralism and the lack of knowledge of the African human rights protection system. This text is not an exhaustive exploration of the nature, causes and consequences of violence against women. It does, however, seek to demonstrate the importance of highlighting the remarkable legal progress made thus far and proposes means for addressing existing problems.
Development in Women’s Rights in the African system
The Protocol on Women’s Rights in Africa: An Innovative Instrument
The African Charter on Human and People’s Rights (the African Charter), adopted in 19812 by the member states of the Organization of African Unity (OAU3), commits the states Parties to guarantee all persons—including women—the rights stipulated therein. However, it remains silent on the specific problems experienced by women.4 The almost unanimous ratification in Africa of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW5), as well as the main international human rights protection covenants6 has not been sufficient in providing concrete and adequate protection against violations specifically experienced by women. To bridge this legal gap, the Protocol on the Rights of Women was adopted in 2003, in Maputo, by the Assembly of the Heads of State and Government of the African Union. It came into effect, for the countries that ratified it, on November 25, 2005.7 Developed in response to numerous and persistent violations suffered by women on the continent, it guarantees a range of rights and was an innovative human rights instrument for its time.
In 1994 and 1995, a working group composed primarily of civil society activists was created within the framework of the activities of the African Commission and was mandated to develop a draft Protocol.8 It became one of the major motors for change, pushing also for the creation, in 1998, of a women’s rights protection mechanism within the African Commission.9 Through the concerted actions of civil society with organs of the African Union, women’s rights are taking shape in the Protocol. In fact, several awareness campaigns for the signature and ratification of the Protocol are underway in each of the African countries.10 The presence and vibrancy of women’s civil society in Africa during the process leading up to the adoption of the Protocol are what have made it so detailed and exhaustive.11
The Protocol constitutes an innovative legal instrument. Its most significant legal developments include, first, a definition of violence against women that is modeled on the definition adopted by CEDAW, with the addition of the concept of economic violence.
A second innovation is an explicit description of the commitments of states, providing a guide for governments in terms of the measures that must be taken to ensure the full enjoyment of rights. For instance, the elimination of discrimination against women goes hand-in-hand with procedures for the harmonization of laws, the participation of women and their integration into decision-making positions, public education and the strategic dissemination of information in order to change sociocultural paradigms and models. Furthermore, the Protocol is the first human rights legal instrument to expressly stipulate the right to sexual and reproductive health. This instrument gives women the right to control their fertility, decide the spacing between births, protect themselves against sexually transmitted infections, be informed, and have access to family planning and health services and, in some circumstances, medicalized abortion.12 These aspects of the Protocol make it a normative tool that extends beyond the protection guaranteed to women un-der the other human rights instruments that preceded it.
Moreover, the Protocol serves to offset the overriding importance the African Charter places on the respect of cultural values, since certain customs perpetuate violence against women. While customs and traditions must be promoted, they must be positive, that is, they must not result in human rights violations. The role of culture and its potential conflict with individual rights are played out differently within African and Western human rights protection systems. In Europe, for example, fundamental individual rights supersede cultural rights.13 On the African continent, people have a stronger sense of belonging to groups defined by cultural practices. Individual and group rights are therefore amalgamated.14
From this perspective, the Protocol strikes a balance between the cultural rights of peoples and the rights of African women. The overriding importance of traditional values in the Charter conflicts with the guarantees set out in the Protocol.
Indeed, the Protocol challenges head on the customary practices that overshadow African women’s rights. First, it advocates the elimination of harmful practices and explicitly prohibits female genital mutilation. The Protocol also addresses marriage, separation and inheritance rights. For example, marriages must be registered and women have the right to retain their nationality. Monogamy is encouraged and in the case of polygamist conjugal relations, the rights set out under the Protocol must be applied. In marriage and in the case of separation or divorce, men and women are equal. Furthermore, women have the right to administer their husband’s property in case of death. Girls are also given the same right as boys to their parents’ property.
The Protocol also addresses cultural practices that affect widows. Under its provisions, marriage requires consent and any harmful practices that affect widows are prohibited. These include the practice of levirate, which requires women to marry a relative of her deceased spouse, and sororate, where a widower can marry the sister of his deceased spouse. Widows also have the right to an equal share of the property of the deceased spouse and can remain in the matrimonial house.
The Protocol also addresses women’s economic, social and cultural rights, access to justice, participation in the political process as well as promoting and maintaining peace. It offers special protections to women in armed conflicts, to elderly women, women in distress and women with disabilities. Lastly, the Protocol is an instrument of its time that places women at the heart of current legal concepts such as the right to sustainable development, the right to food security and the right to a healthy environment.
The adoption of the Protocol constitutes a major legal advance and its entry into force testifies to the recognition of women’s rights by African states. In fact, very few states expressed reservations during its ratification.15 In practice, however, several obstacles stand in the way of the full enjoyment of the rights guaranteed under this instrument. It was swiftly ratified by the first 15 or so countries, and then began to lose momentum. Activist groups are currently looking for strategies to accelerate the process in their respective countries.16 Over the last few years, the African Commission has made sweeping efforts, particularly by way of a special mechanism, to ensure the application of the system for the protection of women’s rights.
The African Commission and Its Special Mechanism for Women’s Rights Protection
In the last 15 years or so, the African Commission has produced several documents for the promotion and protection of women’s rights. Over the years, there has been an increase in the number of gender-related decisions. During this growing movement toward the full enjoyment of women’s rights in Africa, the Commission’s activities have been bolstered by civil society players, financial partners and scientists.
Between 1993 and 2007, the African Commission adopted 18 resolutions on gender-related issues. Five of the resolutions adopted between 2004 and 2007 deal specifically and solely with women. They respectively address the situation of women and children in Africa; implementation of the Protocol; sexual violence in the Democratic Republic of Congo; health-related rights and control of reproductive functions; and reparation for victims of sexual violence in conflict situations.17 By the end of 2007, no decisions regarding communications citing provisions of the Protocol had been rendered by the Commission. Complaints currently under review are still based solely on provisions under the Charter, where the responding state has not ratified the Protocol. Nevertheless, urgent appeals have been made by the Special Rapporteur, particularly with regard to sexual violence in the Democratic Republic of Congo.18 Since 1999, the Commission’s mechanism has also completed promotion missions to Liberia, Burundi, Rwanda, Chad, Côte d’Ivoire, Nigeria, Angola, Djibouti, Sudan, São Tome and Principe, and Cape Verde. Lastly, the African Commission has also gradually integrated gender-related issues into its practices during the review of the periodic reports of states which is held during its public sessions; its member states are asked to examine the principles of equality and non-discrimination, political representation and policy regarding the legal framework and de facto situation of women.19
A few key initiatives undertaken between 2005 and 2008 underscore the partnership with civil society in promoting women’s rights. The Special Rapporteur on the Rights of Women in Africa was invited to take part in several events, including an international conference on abortion practised in safe and legalized conditions.20 The Special Rapporteur also promoted reproductive rights during a day-long event organized in conjunction with the 41st Ordinary Session of the Commission, in Accra, Ghana.21 Lastly, civil society players have also encouraged the partnership between regional and international human rights protection mechanisms. In January 2008, the Special Rapporteur on the Rights of Women in Africa of the African Commission joined the UN Special Rapporteur on Violence against Women, its Causes and Consequences, during a roundtable on the issue of sexual violence in the Democratic Republic of Congo.22
Generally, initiatives involving the special mechanism seek to ensure the implementation of women’s human rights by raising public awareness and disseminating information on the African Commission, its instruments and its mechanisms. These actions also reach African governments that benefit from learning more about the human rights protection system within the African Union. In keeping with this, in April 2007, the African Commission held a forum on the rights of Gambian women in Banjul, the headquarters of its Secretariat. This three-day forum led to the education of rural Gambian women’s organizations about the Protocol as well as rights protection mechanisms. The event also created solid ties between the Women’s Bureau responsible for gender-related issues within the Gambian government (Women’s Bureau) and the Commission. Located in the same city as the Commission, the Women’s Bureau in the Republic of Gambia had nevertheless had very few dealings with the Commission prior to this event. The Gambian government’s involvement in the forum’s activities led to significant collaboration with the Commission, particularly in terms of drafting a bill for the domestication23 of the Protocol, ratified in 2005.
Moreover, civil society organizations offer research support to the women’s rights protection mechanism. Some university bodies collaborated with the Special Rapporteur in the context of a comparative study on gender led by the African Commission. Through this research, comparative data was gathered on the application of the Protocol in the countries that ratified it. Research was also conducted on the presence of principles of equality between the sexes and non-discrimination against women in the constitutions of the member countries of the African Union.24 Civil society in collaboration with the Special Rapporteur also conducted a study on applicable laws related to marital rape in conjugal situations.25 Based on the data collected, the Special Rapporteur submitted reports to the Commission and called for action to improve the situation of women’s rights.
The African Commission is thus exploring various strategies for the implementation of women’s rights. At the same time, several other instruments related to women are emerging within the African system. The most important legislative developments include the African Platform for Action and the Dakar Declaration, 1994, on the importance of eliminating gender-based discrimination and violence,26 the 1997 SADC Declaration on Gender and Development and its addendum,27 the Constitutive Act of the African Union which recognizes the full participation of women as equal partners,28 decisions and resolutions of the New Partnership for Africa’s Development (NEPAD),29 the 2004 Solemn Declaration on Gender Equality in Africa,30 the 2006 Maputo Plan of Action on the Operationalization of the Continental Sexual and Reproductive Health and Rights Policy Framework in Africa,31 and the Pact on Security, Stability and Development for the Great Lake Region. 32
It is also important to note some of the remarkable achievements with respect to the situation of women in Africa, such as the political representation of women and their presence in decisionmaking positions. Two good examples are the election in Liberia, in November 2005, of Ellen Johnson-Sirleaf, the first female President of an African country, and parliamentary parity in Rwanda.33 Another achievement worth mentioning is the nomination in 2007 of several women as commissioners to the African Commission on Human and Peoples’ Rights, raising the total to seven women out of eleven commissioners, including the Chairperson and the Vice-Chairperson.
The challenges of legal pluralism and lack of rights awareness
Despite the progress in Africa’s women’s rights protection system in recent years, certain obstacles stand in the way of the full enjoyment of rights set out in the legal instruments for the protection of women’s rights in Africa. To begin with, the proliferation of legal tools in recent years puts the governments of African countries in a complex situation as they face the laborious process of harmonizing laws. Furthermore, too few women are aware of their rights, the African Commission and the African protection system in general.
Pluralism and Harmonization of Laws
When a state ratifies the Protocol, it must fulfil its international obligations under the Vienna Convention on the Law of Treaties which stipulates how this instrument must be effectively implemented.34 This process differs according to the legal tradition that governs the country in question. In a common law country, the Protocol must be domesticated, that is to say, a law must be adopted so that it becomes part of the national legislation and so that its content can be invoked in the courts. In countries that follow civil law, the act of ratifying an international treaty generally incorporates it into national legislation. Notwithstanding the legal tradition of the country that has ratified a regional or international legal instrument, it must harmonize its national legislation with the content of the instrument.35 This is where problems arise. Often, the implementation of the Protocol on the Rights of Women in Africa is thwarted by the coexistence of various national legislative systems.
In several African countries, the law does not emanate exclusively from the state, it is also dictated by religion, customs or other legitimate independent legal structures within particular groups. In West Africa, for example, Muslim religious law sometimes contradicts the state’s codified law which is rooted in the colonial era. Several countries in West Africa have ratified the Protocol and are now in the process of implementing it. However, a widow can still have her inheritance rights interpreted in a radically different way by the various legal entities. Similarly, customary marriage does not enjoy the legal protection provided under the codified national law if it has not been not registered according to the formalities of the state; that is, recorded in a register of civil status. In the case of separation, divorce and sometimes repudiation, a woman who has entered solely into a customary marriage is therefore more likely to find herself in a prejudicial situation. Customary religious law, with its own legal framework, will result in different decisions that may even blatantly contradict the decisions rendered by legal institutions that apply the state’s codified law. In practice, major challenges in harmonizing laws and pluralist legal mechanisms must be overcome in order for women’s rights stipulated under the Protocol to be fully enjoyed.
Knowledge of Rights and Visibility of the African Commission
Since its creation, the Commission has deliberated on very few complaints regarding women’s rights. Despite the fact that it entered into effect in 2005, not a single communication citing a provision in the Protocol has yet been presented before the Commission. Yet, it is a known fact that there are many serious violations of women’s rights across the continent. High illiteracy rates in many countries and the fact that the Commission’s legal instruments are not accessible in African languages explain the inadequate dissemination of information regarding rights. Thus, there is a need to increase the visibility of the African Commission’s activities and to make the fruit of its work accessible.
In Gambia, the headquarters of the Secretariat of the African Commission on Human and Peoples’ Rights since 1987, too few women know their rights. During a forum on the rights of Gambian women, organized by the Commission in 2007, it was apparent that almost none of the women participants were aware of the Protocol or the Commission. Moreover, preparatory work for the forum revealed that the national Women’s Bureau did not know about the Commission. The forum therefore served, on the one hand, to inform rural women’s organizations about the very existence of the Commission, its special mechanism for women’s rights and rights guaranteed them under the Protocol; on the other hand, it allowed the Women’s Bureau within the Gambian government to take advantage of the legal expertise of the Commission’s Secretariat in order to validate the drafting of a bill for the domestication of the Protocol. Due to Gambia’s common law tradition, simple ratification in 2005 did not provide the legal effect needed for its application at the national level. Nevertheless, the progress Gambia has made makes it one of the most advanced countries in implementing the rights of women in Africa.
In this context, where the full enjoyment of human rights in Africa depends largely on knowledge of the African protection system, importance must be given to education and awareness not only of the public, but also of governments within the African Union. The promotion of human rights protection instruments and documents adopted by the Commission are an integral part of this process. However, the results of the Commission’s work are difficult to access. Over the last 20 years, the Commission has issued an impressive number of quasi-legal decisions and background papers on the situation of human rights in Africa. But all too often, the reports adopted fall by the wayside due to inefficient archiving. The documents issued by the Commission are difficult to find and the players involved in ensuring the full enjoyment of rights must refer to a myriad of secondary sources. The actions of African governments, activists and populations are directly hampered by this situation. Knowledge of human rights and the activities of the African human rights protection system depend on proper organization of the documentation produced by the African Commission.
Prospects for the Future
The advent of the Protocol is a major advance for women’s rights in Africa, but efforts to breathe life into its provisions are lagging, primarily under the weight of the process of harmonizing laws and the lack of knowledge of human rights on the continent. With the creation of the African Court, the Commission is currently redefining its identity.36 In fact, it has undertaken a reform of its Rules of Procedure.37 In order to harness the winds of change and transform the architecture of the African system, the Commission must know which sails to deploy. In terms of the three mandates of protection, promotion and interpretation as defined under the Charter, both institutions will work hand-in-hand on protection and interpretation initiatives, while the Commission will intensify its efforts in terms of promotion.
At a crucial time when the African Union has just attributed a sizeable budget to its activities, the Commission must be creative and avant-garde, as it was in its efforts to introduce the Protocol. The Commission must prove its assistance to governments in harmonizing national legislation with regional human rights protection instruments and its public education efforts. In addition, it can take full advantage of new communication technologies, pursue collaborative ties forged with civil society partners, and ensure a sustainable and visible documentation base.
1- The Protocol is available at www.africa-union.org.
2- The African Charter came into effect in 1986 and is available at www.africa-union.org.
3- The Organization of African Unity (OAU) was established by charter in 1963 and later became the African Union (AU) in 2002. The Constitutive Act of the African Union and the Charter of the OAU are available at www.africa-union.org.
4- Women’s rights are not specifically recognized under the Charter. There is a general protection in the Preamble and Articles 2 and 3 that guarantee the equality of all and affirm the principle of non-discrimination on the basis of sex. Only Article 18.3 provides protection for the elimination of all forms of discrimination against women.
5- United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/CEDEF) 1979, 1249 UNTS 13.
6- Universal Declaration of Human Rights 1948, (UDHR) UN GA Res.217 A (III) 1948 Articles 2 and 7; International Covenant on Civil and Political Rights 1966 (ICCPR) 999 UNTS 171 Articles 2.1, 3, and 26; International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) 993 UNTS 3 Articles 2.2 and 3. Also, the Kigali Declaration following the first African Union Ministerial Conference on Human Rights in Africa, adopted on May 8, 2003, stipulates in Paragraph 16 the need to pursue the drafting process of the Protocol on the Rights of Women and calls on member states to take necessary measures towards its adoption, signature and ratification. MIN/CONF/HRA/Decl. 1(I).
7- That is, 30 days following the submission of the instruments of ratification by the fifteenth state party that accedes to the Protocol, in compliance with Article 29 of the Protocol. An update of the signatures and ratifications is available at www.africa-union.org.
8- The major civil society players involved in the drafting process of the Protocol on the Rights of Women include the International Commission of Jurists, Women in Law and Development in Africa (WILDAF/ FEDDAF), and the African Centre for Democracy and Human Rights Studies.
9- Resolution on the appointment of a Special Rapporteur on the Rights of Women in Africa, ACHPR/ Res.38 (XXV) 99. This 1999 resolution was adopted retroactively to 1998, the years during which Julienne Ondziel Gnelenga held this position. She was replaced by Angela Melo in 2001, followed by Soyata Maïga in 2007. The legal basis for creating a mandate of Special Rapporteur by the Commission is contained in Articles 45 and 66 of the African Charter.
10- For example, the ever-growing SOWAR coalition (Solidarity for African Women’s Rights), which included 29 member organizations in January 2008, played a leading role in the campaign for the ratification of the Protocol. One of the coalition’s last initiatives involved fighting violence against women in Kenya. A press release is available at www.preventgbvafrica.org/Downloads.
11- The Protocol contains 32 Articles of which 25 stipulate specific categories of the protected rights.
12- The circumstances listed in Article 14 of the Protocol are sexual assault, rape, incest and where the pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.
13- To illustrate this phenomenon, we can refer to the classification of rights into generations, which inspired the development of the international human rights system, and which was supported, in particular, by jurist Karel Vasak. According to this concept, there is a first generation of civil and political rights, a second generation of economic, social and cultural rights, and a third generation of environmental, cultural and development rights.
14- For a comparative reading of the Western and African human rights protection systems, see, among others: Michel Alliot, La coutume dans les droits originellement africains, available at www. dhdi.free.fr/; Jacques Vanderlinden Les droits africains entre positivisme et pluralisme, in Académie royale des sciences d’outre-mer, 46 (2000) 279-292; Alliot Michel, Le droit et le service public au miroir de l’anthropologie. Texts selected and edited by Camille Kuyu, Paris, Karthala, 2003.
15- Gambia had reservations about female genital mutilation, marriage, separation and divorce, and rights to reproductive health. These reservations were later lifted in May 2006. Mauritius refused to raise the legal age of marriage to 18 and to encourage monogamy in order to avoid conflict with existing laws. This was also the case for the choice of contraception methods, since a legislative reform on contraception was underway in the state of Mauritius at the time of the ratification of the Protocol. South Africa declared, with respect to marriage and the nationality of children, that national legislation already offered more extensive protection.
16- This is the case, particularly in Niger, where a bill for the ratification of the Protocol made its way to Parliament and was ultimately rejected in 2006.
17- A list of the resolutions regarding women’s rights that have been adopted by the Commission is available at www.achpr.org/english/_info/women_C_res.html.
18- An urgent appeal is a practice in which a Special Rapporteur writes to a head of state when faced with a serious human rights situation.
19- The obligation of states to present periodic reports on a biennial basis is stipulated in Article 62 of the Charter and Article 26 of the Protocol.
20- This conference was held in London, England, on October 23 and 24, 2007. Available at www.globalsafeabortion.org. The participation of the Rapporteur was made possible by IPAS Africa.
21- This day of awareness and discussion about reproductive rights and access to land for women living with HIV/AIDS, organized by the African Commission, was made possible with the assistance of the Center for Reproductive Rights (New York), IPAS (Accra) and the Centre on Housing Rights and Eviction (CHORE) (Accra).
22- The main objective of the meeting of the two Special Rapporteurs was to coordinate efforts in the fight against sexual violence in this region. It followed the adoption of the Mission Report of the United Nations Rapporteur for the DRC and the activities were intended to respond to the problem of multiplicity of civil society campaigns on this issue. A website was created at www.rdcviolencesexuelle.org. It provides a list of initiatives and existing campaigns. The participation of the two Rapporteurs was made possible by Rights & Democracy.
23- The domestication of an instrument of international law and its harmonization with national legislation are two different processes that occur according to the legal tradition of the country. The example of the domestication process in Gambia is provided in the second part of this chapter.
24- The studies are on the application of the Protocol in the countries where it has been ratified and on the principles of equality and non-discrimination in African constitutions. They were conducted by students at the University of Pretoria, South Africa, in collaboration with the Centre for Human Rights at the University of Pretoria.
25- This study was conducted by a research group from the University of Alberta, Canada. In some countries, criminal laws offer a defence that can be invoked by a husband accused of raping his wife. According to this legal reasoning, rape is impossible in the context of marriage, which means that even if the wife does not consent to sexual relations, she is deemed to have consented by the simple fact that she is married to her spouse. The Special Rapporteur is calling for an amendment to legislation in states where this provision exists.
26- Adopted by the Fifth African Regional Conference on Women, held in Dakar from November 16 to 23, 1994, available at www.famafrique.org/femmes2000/dkrpfa1.html.
27- Southern African Development Community (SADC) Gender and Development Declaration 1997, (1999) SADC Gender Monitor 1 33; and its addendum on the prevention and eradiation of violence against women and children. (1999) 1 SADC Gender Monitor 37.
28- Constitutive Act of the African Union, Article 4.l, available at www.africa-union.org
29- See the documents adopted at www.nepad.org/2005/fr/progressrepport.php.
30- Adopted at the Conference of the Heads of State and Government of Member States of the African Union in Addis Ababa, Ethiopia, in July 2004, Assembly/AU/Decl.12(III). Available at www.afrimap.org/english/images/treaty/AU_DeclSol_egaliteDec04_FR.pdf
31- Special Session of the African Union Conference of Ministers of Health, in Maputo, Mozambique, from September 18 to 22, 2006, Sp/Min/CAMH/5(I). “Maputo Plan of Action on the Operationalization of the Continental Sexual and Reproductive Health and Rights Policy Framework in Africa 2007-2010.” Available online at www.africa-union.org/; Report of the Special Session of the African Union Ministers of Health, September 18 to 20, 2006, Maputo, Mozambique, Sp/EXP/CAMH/ Rpt(I).
32- See www.internal-displacement.org.
33- In Rwanda, the law requires that 30% of the seats in Parliament be reserved for women. In 2006, 49% of members of parliament were women (the highest percentage in the world), and 36% of government ministers were women.
34- Vienna Convention on the Law of Treaties, Vienna, May 23, 1969. Entered into force on January 27, 1980. United Nations, Treaty Series, vol. 1155, p. 331, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
35- Domestication and harmonization are two distinct concepts: domestication is a process by which a law is adopted following ratification of an instrument so that it can be incorporated into domestic law. In countries with a civil law tradition, ratified international instruments are automatically integrated into domestic law. This is not the case in countries with a common law tradition. Harmonization is another process according to which national laws are reformed in order to comply with ratified international instruments.
36- On this subject, see the chapters by Ndiaga Loum and Sybil Sakle Thompson. 37 The Commission held a fourth Extraordinary Session in Banjul, Gambia, from February 17 to 24, 2008 which it devoted to revising its Rules of Procedures.