Negotiation as a strategy for domesticating women's rights instruments

The ratification of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa is simply the first step in the right direction for African countries. Its domestication comes next, and will be a long and laborious task for governments and the many organizations that will assist them in this undertaking. Many strategies have been suggested as potential approaches to the domestication of the Protocol. Anne Atieno Amada advocates for negotiation to be implemented in the process.

As Deputy Executive Director of Kenya’s Federation of Women Lawyers (FIDO), Atieno Amada argues that litigation, perhaps a natural choice for the domestication of the Protocol, is not the best solution. Litigation involves going to court and having the judge or magistrate preside over the particular case in order to make a decision on the dispute. Atieno Amada’s experiences with FIDO have shown that litigation has several limitations. These include the principle of “Stare Decisis,” that commands similar cases must be decided in the same way. Litigation is time consuming and expensive; involves difficulties in implementation, enforcement and compliance; and the public nature of proceedings often diverts attention from the issue. Finally, the dominance of men in the judicial system is a problem, and may be detrimental to domesticating the Protocol should a particular judge not align himself with the views of women’s rights.

Alternative Dispute Resolution (ADR) encompasses a variety of process by which conflict can be resolved without litigation. It presents a number of options that cater to the particular situation or conflict. The implementation of the Protocol can be seen as conflict in that it puts women, as claim holders, on one hand and the government, as bearers of duty, on the other. Conflict can be described as a disagreement or competition of interests, and the women’s movement may indeed be perceived as a threat to African governments in these ways. Conflict may be seen in terms of data disputes, which revolve around information; value disputes, which arise as a result of a clash of ideas; relationship disputes, which include marital and commercial disagreements; behavioral disputes caused by clashes in habits, customs and culture, and; structural disputes that take place in institutions and bureaucracies. In implementing the Protocol, and indeed the realization of any women’s rights, all elements of conflict are present. In responding to, and dealing with conflict there are a number of options available. Avoidance, toleration, mediation, litigation, self-help and negotiation are all methods of dealing with conflict that may be potentially employed.

Negotiation involves a formal discussion between people and groups attempting to reach an agreement. The main goal of such an exercise is to meet certain interests or needs in a manner that is collaborative and peaceful, without being apologetic or giving in. In order to be successful, negotiation must separate people from the problem, focus on interests and not positions, involve a variety of possible solutions, and have a result based on some objective standard or practice.

In her conclusion, Atieno Amada states that the Protocol, which, as she adds, is a right of women to equality, non-discrimination, elimination of harmful practices, access to justice and equal protection under the law, cannot be negotiated away by governments. Negotiation, and the process of negotiation, may indeed be a strategy, not only to implement the protocol, but to remind governments of their duty to protect the rights of all citizens.

* * This is a summarised version of a paper presented at a conference on the Ratification and Domestication of The African Union Protocol to the African Charter on Human and Peoples Rights on Rights of Women in Africa. The conference, held between 27-30 September in Addis Ababa, Ethiopia, was co-convened by the African Union Commission and the Solidarity for African Women’s Rights Coalition (SOAWR). The full length versions of all papers presented at the conference will be released in book form in January 2006.

* Summarized by Karoline Kemp, Commonwealth of Learning Young Professionals Intern, Fahamu.

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