The Maputo Protocol: Its potential for a revolution in women’s rights

“The speed with which the Protocol came into force on 25 November 2005 sets a new record for the ratification of pan African rights standards for the continent. A key lesson is that the challenges of working with countries across the continent can be overcome by collaboration between governments, the AU Commission and national and regional women’s associations.” H.E. Alpha Konare, Founding Chairperson of the AU Commission (2000-2008), 2006, Addis Ababa, Ethiopia

Gender plays a significant part in defining and determining the access that women have and the role that they play in governance, economic development, and in society as a whole. Traditional gender roles have confined women to the private sphere. Lobbying from women’s rights activists andmounting evidence of the correlation between gender equality and positive economic development and democratic reform has led to efforts at global, continental, regional and national levels to mainstream gender equality; the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the African Women’s Protocol) is a manifestation of these efforts.

Grounded in the belief that instruments, protocols, laws and policies are powerless to change the lives of African women in the absence of an organised public demand for their implementation and enforcement; Oxfam’s Pan Africa Programme through its Gender Justice Pillar works with partners including the Solidarity for African Women’s Rights Coalition to build and mobilize a critical mass of active citizens to advocate for effective for realisation of women’s rights contained in the African Women’s Protocol. Oxfam Pan Africa Programme also supports accelerated ratification, domestication and implementation of the African Women’s Protocol through the State of Union a coalition of civil society organisations that tracks the compliance of AU State Parties on 14 key policies and frameworks adopted by the African Union one of which is the African Women’s Protocol.

Adopted by the African Union in July 2003, the African Women’s Protocol is revolutionary legal instrument on Women’s Rights and is the first international instrument to speak to specifically to the rights of women in the African context. Countries that ratify the Protocol agree not only to eliminate all forms of discrimination against women but to end all forms of violence against women, abolish harmful cultural practices that affect women including child marriage, female genital mutilation, to protect women’s reproductive health rights, including the right to abortion in cases of rape, incest or to protect the life of the mother. The Protocol also binds State Parties to the provision of political and economic rights on an equal footing with men, obligating State Parties to ensure equal participation of women at all levels of decision making, maintenance of peace and security, and provide for affirmative action.

In the 10 years since its adoption 36 of the 54 African States have ratified the African Women’s Protocol and in line with ratification, significant strides have been made at national level to ensure legislative recognition of women’s rights. For instance n 2004, Ethiopia passed the most progressive abortion laws in Africa. At least 22 African countries prohibit discrimination based on sex. Malawi and South Africa prohibit discrimination based on sex and marital status.
In the last decade Africa has seen the election of two female Heads of State (President Joyce Banda and Ellen JohnsonSirleaf); three female Nobel Peace Prize winners (Wangari Maathai, Ellen Johnson Sirleaf, Leymah Gbowee); the first female head of the African Union (Dr. Dlamini-Zuma) and 4 African countries (Rwanda, Senegal, Seychelles, and South Africa) are ranked amongst the top ten in women’s representation in parliament.

Despite encouraging trends and an increasingly enabling women’s rights legislative and policy environment gender gaps still exist in every sector - access to justice, healthcare, education, economic opportunities political participation. Women in most parts of Africa continue to face cultural, social and economic barriers because of disparate access to education, health care political and economic opportunity, accesses. Gender roles continue to influence crucial societal and individual decisions on educating women, women’s political and economic participation, and on fertility.

Creating a consensus on the integration of African Women’s Protocol at that national level has been difficult. Though a majority of the African countries have ratified the Protocol several of these countries have placed reservations on the articles considered controversial i.e. marriage, property rights, sexual and reproductive rights. The decision of State Parties to ratify the African Women’s Protocol with reservations particularly in the areas of early marriage, property rights, and

reproductive directly impacts women’s equality.

Efforts to integrate women’s right and mainstream gender equality through African Women’s Protocol are commendable they are yet to deliver transformation in gender relations, and ensure equal rights for women. This is because gender/women’s rights reforms have been piecemeal and have traditionally involved the “adding on” of gender equality or women’s rights legislation to already existing flawed and patriarchal institutions, structures and laws. In addition a narrow interpretation of gender equality as the simply the addition of women, has led to the application of several gender reform initiatives that do not deal with the root causes of gender inequalities in society and in some instances reinforce them.

In order to ensure gender equality and transformation in gender relations between women and men i.e. a “comprehensive change that radically alters the status quo of the power relations” rather than ad hoc or piecemeal reforms that simply attach the concepts of the gender onto already existing structures is needed. A robust gendered analysis of the continent’s gender equality and women’s rights framework could provide the tool for transformation through:

o Interrogating existing women’s rights/gender equality frameworks and mechanisms at both continental and national levels

o Examining why the existing women’s rights/gender equality frameworks and mechanisms fail to close existing gender gaps

o Challenging the mainstream paradigm that allows implementers to pay lip service to gender equality and women’s rights

o Holding the AU and member states accountable for normative frameworks and policies to which they have assented

The African Women’s Protocol and AU’s gender architecture (Article 4L of the Constitutive Act of the African Union; Rights on the Rights of Women in Africa; the AU Solemn Declaration on Gender Equality; the AU Gender Policy; and the AU Women’s Decades) provides significant opportunities for the creation of the continental standards on gender equality and women’s rights. Mapping of policies and laws that relate to or affect to gender and women at the national level both is critical to ensuring informed policy advocacy that would be targeted at national and continental institutions.

The African Union oversight mechanisms i.e. the African Commission of Human and Peoples Rights provide an avenue to monitor implementation as well as create standards on implementation of the Protocol through the eliciting general comments from the African Commission. Capacity development for targeting oversight institutions at the national level i.e. national assemblies, judiciaries, relevant ministries and law enforcement agencies, is crucial for progressive the domestication and implementation of the protocol.

The progress in gender equality and the efforts of women organisations, feminist activists and academics in the advancements of women’s rights across the continent cannot be discounted. Existing continental, regional and national legislative and policy frameworks on women’s rights are a crucial foundation and provide a starting point as far as setting continental norms on women rights and transformation of gender relations are concerned. In countries in there has been domestication and implementation and practical application of the African Women’s Protocol provides several lessons with regard to the (in) ability of current gender mainstreaming frameworks to deliver on the gender transformation agenda. The African Women’s Protocol provides an essential entry point for CSOs, women’s rights organisation to engage with continental and national policy makers and push for the adoption of a more transformative agenda in national level domestication and implementation of the African Women’s Protocol.

* Maureen Majiwa is legal officer, Gener Justice, Oxfam-GB HECA Office.

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