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The
promise of the protocol
Roselynn Musa
Extracted
from Pambazuka News: Issue 259
June 15, 2006
http://www.pambazuka.org/en/category/comment/35187
Recent efforts to document the real situation of women in Africa
have produced some alarming statistics, writes Roselynn Musa, who
proceeds to outline the provisions of the Protocol on the Rights
of Women in Africa that offer some hope for women on the continent.
Equality is the cornerstone of every democratic society which aspires
to social justice and human rights. In virtually all societies and
spheres of activity women are subject to inequalities in law and
in practice. In Africa, while the causes, consequences and manifestations
may vary from sub-region to sub-region, country-to-country, and
even province-to-province, discrimination against women is widespread.
The situation is both caused and exacerbated by the existence of
discrimination in the family, community and workplace and perpetuated
by the survival of stereotypes, cultural and religious practices
and beliefs detrimental to women.
Recent efforts to document the real situation of women in Africa
have produced some alarming statistics on the economic and social
gaps between men and women:
- Out of 1.9
million victims of conflict in Sub- Saharan Africa in the 1990s
63% were women and children
- In the Republic
of Congo 40,000 women have experienced some form of sexual violence
since 1998
- More than
half of Africa’s 6 million refugees and 17 million internally
displaced people are women
- Between 1990-2005
women occupied 14.2% of parliamentary seats in Sub-Saharan Africa,
and 8.5% in Northern Africa
- Literacy
rates in Sub- Saharan Africa for young males is 77% as against
68% for women
- The number
of women in wage earning employment between 1990- 2003 is 35.8
in Sub-Saharan Africa and 21,5 in Northern Africa, yet women are
said to constitute about 70% of the world’s population
- UNAID’s statistics
show that in 2003 out of the 23 million adults with HIV/AIDS in
Sub-Saharan Africa, 57% were women
The United Nations
(UN), since its formation in 1945 has been at the forefront of advocacy
for equal rights and the enjoyment of rights and freedoms, hence
the entrenchment of the principle of equality and non- discrimination
in its international and universal human rights instruments. Equality
of the rights of women is a basic principle of the United Nations.1
The International Bill of Human Rights2
strengthens and extends the emphasis on the equal rights of women.
One of the most significant developments in the field of human rights
was the Universal Declaration of Human Rights (UDHR), adopted by
the General Assembly of the United Nations (UN) in 1948. Based on
the equal right of every human being, the declaration proclaims
the entitlement of everyone to enjoy human rights and fundamental
freedom.3
Despite these Provisions women in Africa and elsewhere in the world
continue to suffer blatant discrimination in the political, social,
economic and cultural spheres. Consequently, the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW),
a landmark convention and in fact a global action towards redressing
the existing inequalities, evolved with very systematic and far
reaching consequences for women’s human rights globally. The convention
sets out, in legally binding form, internationally accepted principles
on the rights of women.
Why a separate Protocol for women?
The African Charter on Human and Peoples’ Rights (ACHPR), also referred
to as the Banjul Charter, was adopted in 1981 by the Organisation
of African Unity, now the African Union (AU). This document affirms
both individual and collective rights and this distinguishes it
from other international human rights treaties. It recognises African
values and cultures and also emphasises both rights and duties.
It provides for special protocols or agreements, if necessary, to
supplement the provisions of the African Charter.4
This serves as a legal basis for creating the Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(The Protocol), which lays down a comprehensive set of rights to
which all African women are entitled.
Why then was it necessary to have a separate instrument for African
women? The ACHPR, just like other international human rights instruments
before it, did not effectively redress the disadvantages and injustices
experienced by African women by reason only of their being women,
nor was it constructed to take into account women’s situations.
Historically, human rights discourses started in the fields of political
and civil rights - rights to life, freedom of association, etc.
In this regard, the fundamental significance placed on human rights
was directed towards the public rather than the private realm. Since
men have largely dominated the public domain, this meant two things:
that human rights came to be defined by men; and that these rights
protected mostly men.
Substantive provisions of the Protocol
Article 2: Elimination of discrimination against women
In many African communities women are denied their basic legal rights,
either implicitly or explicitly, including the right to participate
fully in politics and the right to own property. Such instances
of entrenched discrimination can easily be identified as discrimination.
At the same time, not every differentiation will constitute discrimination.
In most African societies, men have used culture and tradition to
justify discrimination against women. Male dominated ideologies
in Africa have tended to use culture to justify oppressive gender
relations. African governments could use the standards of the Protocol
to remove all negative stereotyped cultures that discriminate against
women and hinder their full advancement.
It is not enough to merely insert anti-discrimination clauses into
the legislation. The Protocol also requires State parties to protect
women’s rights effectively and provide women with opportunities
for recourse and protection against discrimination. They should
incorporate sanctions into legislation that deters discrimination
against women. States party to the Protocol must take steps to eliminate
discrimination in both public and private spheres. It is not enough
to strive for equality for women vis-à-vis public authorities;
states must also work to secure non-discrimination even within the
family.
Article 3: Right to dignity
Every human being has an inherent right to be treated with dignity.
This provision makes it incumbent for states to strive to remove
the social, cultural and traditional patterns, which perpetuate
gender role stereotypes, and to create an overall framework in society
that promotes the realisation of full rights for African women.
The prevalence of gender- role stereotypes is seen most particularly
in the traditional concept of African women’s role in the domestic
sphere.
The family as an agent of socialisation assigns different statuses,
values and roles to boys and girls. In many countries in Africa
discrimination against women starts before birth with parental and
social attitudes that promote a preference for sons over daughters.
Children of both sexes should be accorded equal opportunities to
grow and develop to their full potential as equal partners for sustainable
development and peace.
Many African women are denied an education because their role is
considered primarily as one of caring for the family. This article
therefore seeks to reform social and cultural traditions and practices
and creates a common civil system that upholds the dignity of women
as equal partners with men in society.
Article 4: The Rights to Life, Integrity and Security of the
Person
Despite the efforts of women’s human rights activists, the spate
of both public and private violence against women in Africa has
not abated. Women are subject to violence and to threats of violence
in their daily lives, physically and psychologically. Violence deprives
women of their ability to achieve full equality. It threatens their
freedom, safety and autonomy. Many cases of violence against women
go unreported, particularly when they take place in the home, because
of fear or shame. The psychological, emotional and economic conditions
of women often alter their perception of reality such that they
see themselves as completely helpless and unable to make choices.
In some cases the abused women do not even see themselves as victims.
Although governments across Africa are now more concerned with the
issue than in the past, few have taken legal, constitutional steps
to stop the practice. The Protocol enjoins state parties to 'enact
and enforce laws to prohibit all forms of violence against women
including unwanted or forced sex, whether the violence takes place
in private or public'. Unless this is done African women will not
be able to enjoy fully the rights guaranteed in the Protocol.
This article charges state parties to take appropriate and effective
measures to address issues of peace education, punishment for perpetrators
of violence against women, rehabilitation of victims of such violence,
trafficking in women, unauthorised medical and scientific experiments
on women, opposition to death penalties on pregnant or nursing women,
and to provide adequate budgetary and other resources for the implementation
and monitoring of action aimed at preventing and eradicating violence
against women.
Article 5: Elimination of Harmful Practices
Some cultures in Africa perpetuate traditional practices that are
harmful to the health of women and constitute a direct violation
of their fundamental human rights. Examples of such practices include
Female Genital Mutilation (FGM), maltreatment of widows, male child
preference, domestic violence, early/ forced marriage etc. In this
connection, the Protocol has provisions that aim to improve the
image and role of African women by improving public awareness through
formal and informal education and outreach programmes.
Articles 6 and 7: Marriage, separation, divorce and annulment
of marriage
Women are discriminated against in marriage and family law, sometimes
as wives and sometimes as daughters. In all categories of marriage
in Africa (statutory, customary and religious) the husband is assumed
to be the head of the family and the provider (and hence able to
make decisions and receive benefits for the family). Wife battering
(called ‘chastisement’) is accepted as a norm in some cultures and
there is no minimum age for marriage. Furthermore, wives have lesser
rights in choice of marriage partner, divorce or child custody and
have lesser right to inheritance.
The Protocol provides that women and men should enjoy equal rights
and be regarded as equal partners in marriage. Marriage will take
place only with the full consent of both parties. Cases of forced
and early marriage persist in Africa and the situation of the girl
child remains a matter of concern. The Protocol also requires that
marriages are registered in accordance with national laws in order
to be legally recognised. In cases of separation, divorce or annulment,
women and men should have the right to an equitable share of the
joint property deriving from the marriage.
Article 8: Access to Justice and Equal Protection by the Law
Some forms of discrimination against women stem from the varying
understandings and beliefs about what society or culture prescribes
for women. Since most family issues never go to court for resolution,
it is the often conservative and restrictive everyday beliefs of
husbands, brothers, fathers, cousins, uncles and nephews, which
govern women’s lives. In this regard the Protocol provides that
women and men are equal before the law and shall have the right
to equal protection and benefit of the law. States parties are to
ensure effective women’s access to judicial and legal services,
including legal aid, sensitise everyone to the rights of women and
reform existing discriminatory laws and practices in order to promote
and protect the rights of women.
Article 9: Right to Participation in the Political and Decision-Making
Processes
Women’s equal rights to participate in decision-making are beyond
a question of democracy and good governance; it is also a necessary
condition for the effective recognition of women’s interests, without
which the objectives of sustainable equality and development will
never be achieved. Caution is needed, however, as the participation
of women in government does not necessarily translate into pro-woman
policies. The value of this aspect of the Protocol is therefore
predicated not only on taking part in government, but in doing so
in a way that is consistent with the specific needs of women.
Decision-making involvement is imperative to the Protocol, which
states that women must be able to participate in government and
politics. While women are prominent in grassroots organisations,
they are left out of the vitally important decision-making at policy
level, and so their specific concerns and needs are ignored.
Article 10: Right to peace
Women are rarely included in decision-making on conflict prevention,
resolution and management, or even in peace-building initiatives.
Women’s voices go unheard during formal peace negotiations, disarmament,
demobilisation and reintegration, the creation of new constitutions,
elections, reconstruction, rehabilitation, and the establishment
of judicial systems. This occurs even though the violence perpetuated
against women is exacerbated during times of conflict, and they
make up the majority of all victims. Women and children are the
most vulnerable and at the receiving end of most of the worst excesses
and abuses in situations of conflicts.
The Protocol defends the right of women to a peaceful existence
and the participation of women in the promotion and maintenance
of peace. State parties are to take appropriate measures to ensure
the increased participation of women in the peace process through
the promotion of a peace culture; protection of refugees, asylum
seekers, returnees, and displaced persons; and reduced military
expenditure in favour of spending on social development.
Article 11: Protection of women in armed conflict
Conflict is a critical part of transformation and change, restructuring
the social relationship between peoples and also within their own
groups. Generalised and unnecessary suffering result when latent
conflicts escalate into confrontation. Several African countries
have been, and some still are, embroiled in war, civil strife and
conflict caused by a combination of factors including massive violations
of human rights and ethnic violence. These situations usually impact
heavily on women and children, resulting in violence, involuntary
displacement and flight from their country of origin. Violations
of the fundamental rights of women and girls are widespread during
times of armed conflict. These include torture, rape and murder
and should not be condoned.
Towards this direction state parties are to respect the rules of
international humanitarian law applicable in conflict situations
and protect women affected by conflicts making sure that perpetrators
are brought to justice before a competent criminal jurisdiction.
State parties shall also ensure that no child, especially girls
under eighteen years take part in hostilities.
Article 12: Education and Training
African women face a sombre scene filled with economic and socio-political
problems which hinder their efforts at meeting basic needs. The
lack of education for a considerable number of African women prevents
society as a whole from facing these problems with vigour and determination.
If the situation of women in Africa is to change for the better
the quality of education must not only be improved, but women and
girls should have easy access to education, while overcoming every
hurdle that hinders their active participation in the educational
process.
To this regard the Protocol guarantees an education for women and
girls with the intention of breaking down social and cultural barriers,
which have discouraged and even excluded women and girls from the
benefits of regular educational programmes as well as promoting
equal opportunities for them in all aspects of life.
Article 13: Economic and social welfare rights
Poverty in Africa manifests itself in various forms and has its
origin in a lack of income, the unequal distribution of wealth and
income, economic recession, drought, heavy debt burdens and unfavourable
conditionalities tied to borrowing from international financial
institutions, armed conflict, civil strife, etc. More than a third
of the people of Africa are unable to meet their most basic needs.
The heavy burden of poverty falls disproportionately on women, especially
female-headed households. The feminisation of poverty is an ugly
reality. Although generally speaking women constitute more than
half of the population, they have limited access to and ownership
of land and housing yet they provide the greater percentage of food
supply.
Women in Africa need to be empowered to participate in economic
structures and policy formulation in the production process itself.
Women’s empowerment will enhance their capacity to realistically
alter the direction of change for their own well-being and that
of society as a whole. In this regard, the Protocol recommends promotion
of equality of access to employment and equal remuneration for women
and men, and ensures transparency in the recruitment, promotion
and dismissal of women. It also combats and punishes sexual harassment
in the workplace.
Article 14: Health and reproductive rights
Women’s health and reproductive rights are central to the realisation
of their potential. Their ability to exercise control over their
fertility is a crucial step in enabling them to make the necessary
choices in other areas. Women’s, and particularly adolescent girls’,
sexuality and fertility pose a high health risk. They contribute
significantly to girls’ inability to attain high levels of education
and unsafe abortions lead to maternal mortality and HIV/AIDS.
The subordinate position of women and adolescent girls, with younger
women being the least empowered, and their lack of access to information,
education and communication, health facilities, training, an independent
income, property and legal rights, make them particularly vulnerable
to HIV/AIDS infection. They lack adequate knowledge about the disease
and the measures that have been taken to prevent them from infection.
In this regard the Protocol provides women with the right to control
their fertility, choose any method of contraception and to have
family planning education, while state parties have, among other
things, to protect the reproductive rights of women by authorising
medical abortion in cases of sexual assault, rape and incest and
where continued pregnancy endangers the mental and physical health
of the mother or foetus.
If states are to ensure the equality of women and men in access
to health care services as is expected of them they would have to
remove any legal or social barriers which may operate to prevent
or discourage women from making full use of available health care
services. Concrete steps therefore need to be taken to ensure access
to healthcare services for all women, including those whose access
may be impeded through poverty, illiteracy or physical isolation.
Article 15: Right to food security
The struggle against poverty, the economic empowerment of women
and the promotion of sustainable livelihoods for women is a moral,
political and economic obligation and the responsibility of national
governments and the international community. Women and other people
living in poverty represent an under-utilisation of productive potential.
Women’s deprived rights to development should be recognised. This
requires policies that are gender sensitive, including gender-based
anti-poverty policies. Besides income poverty, other areas of deprivation
for women include social discrimination, exclusion, desertion, physical
disability, vulnerability and deprivation. There is also poverty
associated with wars, famine, displacement and refugees, unbalanced
trade relations and structural adjustment programmes (SAPs).
Some of the measures recommended by the Protocol to combat this
are to provide women with access to clean drinking water, sources
of domestic fuel, land and the means of producing nutritious food
and also adequate systems of supply and storage to ensure food security.
One point that is clear however is that unless states parties guarantee
women financial independence, they will not have true equality with
men because they will not be able to head their own households,
own their own homes, or start their own businesses.
Article 16: Right to adequate housing
Despite the active role of African women in the management and creation
of urban and rural environments, they are discriminated against
in their access to adequate housing and control of land and property.
In some countries, legislation, tradition and harmful religious
practices prevent women from inheriting and having control over
property and so deprive them of their rights to adequate housing.
Considering the challenges faced by women in both rural and urban
areas, governments should consider that households and household
members move from one end of the continuum to the other and it is
necessary to provide infrastructure and services along the continuum
without putting undue emphasis on one at the expense of the other.
Compared to men, women are more burdened with the rural-urban linkages.
They have to move between the extreme ends of the continuum trying
to make ends meet for their households. Supporting women’s efforts
under the circumstances requires making their daily routine activities
such as ensuring availability of water, energy and food easier,
be it in the rural, or urban areas. This assurance makes it possible
not only to engage in long term economic planning but also avails
time for critical thinking and engagement in the socio- economic
and political life of their communities. These measures are required
if the states are to keep the promise of the Protocol to provide
African women equal access to housing and to acceptable living conditions
in a healthy environment.
Article 17: Right to a positive cultural context
African societies are products of historical evolution, enriched
by diverse cultures. Individuals within those societies have their
collective identities as members of families, communities, religious
groups, etc. The delicate balance between the rights of the individual
and society and the groups within society should be respected. Women,
being among the most vulnerable and marginalised, need to be integrated
in order to reconnect them with the community by making all the
institutions of society more accessible to them. This article addresses
discrimination against women in the private sphere, including discrimination
in the area of family law.
In this regard, the Protocol provides that women will have the right
to live in a positive cultural context and to participate at all
levels in the determination of cultural policies. We should not
be oblivious to the fact that this area of discrimination, based
on long- standing cultural and religious practice is one of the
most difficult areas to penetrate and one of the most resistant
to change. Yet the drafters of Protocol realised that change in
this area is essential in order for African women to attain full
equality.
Article 18: Right to a healthy and sustainable environment
Poverty is a major cause and consequence of environmental degradation
and is compounded by scarcity, depletion and the mismanagement of
resources. Environmental degradation has had, and continues to have,
an adverse impact on the population as a whole. Women experience
this impact particularly in the traditional divisions of labour.
This has resulted in an increase in their workload of domestic chores.
Often, women have no choice other than to exploit natural resources
in order to survive even when they know about the importance of
protecting the environment and its sustainability.
As the majority of the world’s poor, women play decisive roles in
managing and preserving biodiversity, water, land and other natural
resources, yet their centrality is often ignored or exploited. This
means that a chance for better management of those resources is
lost, along with opportunities for greater diversity, productivity
for human sustenance and economic development. Moreover, while environmental
degradation has severe consequences for all humans, it particularly
affects women and children.
Towards this end, states shall ensure greater involvement of women
in planning, management and preservation of the environment and
the sustainable use of natural resources at all levels.
Article 19 Right to sustainable development
Recently, African governments have slowly begun to see the political
and socio-economic participation of women as a key factor and catalyst
for the accelerated advancement of women and the society as a whole.
In this respect, some African governments have established national
machineries to be responsible for coordinating the gender perspective
in overall national development activities. However, governments
still have a lot to do to see that women fully enjoy their right
to sustainable development.
For example, in many countries women still do not have the same
property rights as men. Traditional property law often discriminates
against women in that only male children are able to inherit the
family land and husbands have automatic ownership over all of their
wife’s property upon marriage. Similarly, legislation in a number
of countries establishes that the administration of family property
is to be undertaken by the male head of the family – thereby excluding
women.
The Protocol enjoins governments to take tangible steps to ensure
the participation of women at all levels of decision-making, implementation
and evaluation of development policies and programmes, to promote
their access to credit, training and skills development and also
to ensure that the negative effects of globalisation are reduced
to the minimum for women.
Articles 20: Widows’ rights
The need to address the plight of widows cannot be overemphasised.
In many African cultures, widows have suffered from a regressive
heritage that results in their being ostracised from their communities
at worst or being discriminated against at best. It is not uncommon
for a widow to be labelled 'a witch' who is responsible for the
death of her husband. She is consequently dispossessed of all her
family’s assets, denied property rights, and left to grapple alone
with her liabilities.
The Protocol states that widows should not to be subjected to inhuman,
humiliating or degrading treatment, that they should automatically
become the custodian of their children, unless this is contrary
to the children's interests and welfare, and that they should have
the right to marry the person of their choice. It also states that
women and men shall have the right to inherit in equitable shares,
their parent’s properties.
Article 21: Right to inheritance
In adjudicating on inheritance rights for women there is a wide
gap in both law and practice. This is especially so where it allows
for the application of customary law under which a marriage was
enacted which varies from community to community. In most communities,
a woman takes nothing with her upon dissolution of marriage. The
fact remains that the legal system allowing application of customary
law upon divorce puts women in very vulnerable situations because
cultural norms are mostly discriminatory towards women. They therefore
get a raw deal even when it comes to legal redress because the outcome
will be based upon gender- biased cultural practices and the whims
and caprices of gender- blind judges who are themselves products
of a predominantly patriarchal culture.
The protocol senses the dire need for gender responsive policies
to ensure equitable access to and ownership and control of (both
movable and unmovable property) as a step towards achieving the
goal of women’s empowerment. It will also be a critical step towards
ensuring equitable distribution of resources, poverty alleviation
and overall national development.
Article 22 Special protection for elderly women
While women can look forward to a longer life than men, they are
expected to continue suffering from gender discrimination even in
their old age. Widowhood is more prevalent among women because they
live longer and usually marry men older than themselves. Women suffer
from high rates of disability at older ages because of the lack
of good health care, education and nutrition in earlier life.
The rights of elderly women are being violated without them getting
any redress in many African countries. Older women are leaving their
communities in fear of being killed, and, if not killed, rejected
by their own families. It is not uncommon to find elderly women
wandering in town and living as beggars with nobody to care for
their sustenance.
It is relieving to know that the Protocol puts the plight of this
category of women into perspective, recommending state protection
for them and ensuring their right to freedom from violence including
sexual abuse, discrimination based on age and the right to be treated
with dignity.
Article 23: Special protection of women with disabilities
State parties are to take special measures to ensure the protection
of women with disabilities and take specific measures to facilitate
their access to employment, professional and vocational training
as well as their participation in decision- making and also make
sure they are free from violence and discrimination based on their
disability.
Article 24: Protection of special women
These include women in detention, poor women and women heads of
family. State parties are to ensure their protection from marginalisation
and provide an environment suitable to their condition and their
special physical, economic and social needs.
The African Court
The promises in the Protocol cannot be actualised merely by the
enactment of gender- neutral laws alone. Measures have to be put
in place to ensure that African women are able to enjoy the promise
of the Protocol. In article 27 of the Protocol, The African Court
is bestowed with the responsibility of interpretation of matters
arising from the application or implementation of the Protocol.
The African Commission on Human and Peoples’ Rights is to take on
the duties of adjudicating matters of the Protocol pending the establishment
of the African Court.5 The
African Court was constituted in February 2006. However, it is sad
to note that of the nine Judges appointed to the court only two
are women.
Entry into force
The Protocol entered into force in November, 2006, thirty days after
the deposit of the fifteenth Instrument of ratification.6
Nineteen states have presently ratified the protocol, though a few
states did so with reservations. The interdependence and indivisibility
of all rights is a long-accepted and consistently re-affirmed principle.
In practice this means that respect for one proviso cannot be separated
from the enjoyment of another proviso. That means for example that
genuine economic and social development requires political and educational
development to participate in this process. In as much as states
can make reservations to some articles before ratification, universality
is a desirable principle that should guide African states in ratifying
the Protocol. The fact that states could ratify with reservations
is a situation of accepting the better of two evils, while none
of them is desirable, the lesser evil can be tolerated. While historical,
cultural and religious differences must be borne in mind, it is
the duty of every state, regardless of its political economic and
cultural systems, to promote and protect all human rights. I use
this opportunity to call on states that have ratified with reservations
to emulate the good example set by the Gambia and lift their reservations.
Conclusion
The concept of equality means much more than treating all persons
in the same way. Experience has shown that equal treatment of persons
in unequal situations will operate to perpetuate, rather than eradicate
injustice. True equality can only emerge from efforts directed towards
addressing and correcting these situational imbalances. Overall,
therefore, despite regional and individual efforts made by the international
community and local and international NGOs to improve the status
of African women, only modest progress has been made and the Protocol
seems to be the light at the end of the tunnel for African women.
The Protocol promises to be an extremely useful framework for advancing
the rights of women in Africa. Only time will tell if it will actually
fulfil these promises or not. However, we must bear in mind that
in the final analysis it is the responsibility of all of us, not
just the government and its institutions, to ensure an Africa where
women enjoy their full human rights on the basis of equality with
men.
* Musa works with African Women’s Development and Communications
Network, FEMNET, Nairobi, Kenya
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1. United Nations
Charter
2. refers collectively to three instruments: the Universal Declaration
of Human Rights, the International Covenant on Economic, Social
and Cultural Rights, and the International Covenant on Civil and
Political Rights and its two Optional Protocols
3. Article 2
4. Article 66, ACHPR
5. Article 32, The Protocol
6. Article 29, The Protocol
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