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/