The Kenyan situation as regards the ratification of the Protocol has become something akin to a game of ping pong. So far the position of its ratification remains unclear and efforts by different interested parties to obtain clarity on the position seem to hit a dead end, writes Anna Amadi.

The African Charter on Human and People’s Rights addresses African concerns, traditions and conditions. It provides for the enjoyment of rights and freedoms on the basis of equality and non-discrimination, the elimination of discrimination against women and the protection of the rights of women and children. The protections offered by the Charter are, however, not adequate and in 1995, the Protocol to the African Charter on Human and peoples’ Rights on the Rights of Women in Africa (hereinafter the ‘Protocol’) was adopted in Maputo by the OAU to supplement the Charter.

Kenya is a State party to many human rights treaties and declarations but has not ratified the Protocol. For a long time, the human rights discourse and the implementation of obligations outlined in the various human rights treaties and declarations have not been prioritized by Government. The implication of this has been that the human rights discourse has not been popular within Government ministries and departments. Further the human rights initiatives have not attracted adequate budgetary allocations within the Government. Noteworthy, over the years, the human rights agenda has been a preserve of civil society.

The Solidarity for African Women’s Rights (SOAWR) is a regional coalition of women’s and human rights organizations that came together to work for early ratification of the Protocol on the Rights of Women in Africa. SOAWR was formed in 2004, its members alarmed that one year after adoption, only one country (The Comoros) had ratified the Protocol. The group of organizations formed a coalition that would deliberately encourage governments to take swift action in bringing the Protocol into force and ensuring its subsequent domestication. Indeed it was through the efforts of SOAWR that the Protocol came into force in November 2005, just two years after its adoption. So far 22 countries have adopted the Protocol and sadly, Kenya is not one of them.

The Kenyan situation as regards the ratification of the Protocol has become something akin to a game of ping pong. So far the position of its ratification remains unclear and efforts by different interested parties to obtain clarity on the position seem to hit a dead end. There have been myriad challenges in pushing for the ratification of the Protocol in Kenya. These range from lack of clarity on where and from whom to get information on status of ratification of, not just the Protocol, but other international and regional human rights conventions as well. Communication channels remain unclear and undefined. There is also a general lack of awareness and education on human rights and hence no candid discussions on the implications, advantages and disadvantages of ratification of given human rights instruments. These challenges have hampered appropriate consultations on the Protocol with relevant players.

In May 2007 during the 41st Session of the African Commission on Human and Peoples’ Rights held in Accra, Ghana, the Kenya Government reported that it had ratified the Protocol. The exact words of the Minister for Justice and Constitutional Affairs, Honorable Martha Karua were “I can confidently say that the instrument will be deposited by the end of June.” We are now in mid October and nothing has come of the minister’s pronouncement. There is no evidence that any follow up has been made on the Minister’s declaration and clearly there was no commitment in stating thus- an empty promise, yet again.

The Attorney General’s office indeed confirms that the Protocol was debated and received cabinet approval for its ratification and so the AG’s role has been performed. The approval, however, is said to be subject to reservations particularly regarding the thorny issue of women’s reproductive heath rights. (The Protocol explicitly sets forth the reproductive right of women to medical abortion when pregnancy results from rape or incest or when the continuation of pregnancy endangers the health or life of the mother).

The office of the Secretary of Cabinet and Head of Civil Service also confirms that there was a cabinet approval and that this was communicated the Foreign Affairs Ministry way back in May 2006 and the latter was expected to prepare and deposit the instrument for ratification. It is frustrating that the legal office in the Ministry has been giving contradictory information, with claims that the approval was communicated but got ‘lost’, yet other sources claiming no such approval has been received .The Gender Ministry that should take the lead in the matter appears to be in darkness over the whole issue!

In 2005 the Kenya Government constituted an Advisory/Consultative Committee on International Human Rights Obligations with the function of advising the Government on measures necessary to comply with its international human right obligations. The committee works with stakeholders including relevant Ministries, Government departments, public bodies, civil society among others to coordinate the collection, documentation and updating information relevant to the Government’s obligations in order for it to meet and implement its obligations under the regional and international human rights instruments to which Kenya is a state party. FIDA Kenya which is a member of SOAWR sits on this committee, and this offers an opportunity for SOAWR to keep pushing for the ratification of the protocol. However, the committee only plays an advisory role, and cannot, for example, demand accountability from a government department when it fails to perform its duties.

So far, simply put, we are in a quagmire. Clearly there is need for us to continue seeking of audience with the various personalities charged with the responsibility of following up on ratification within government. It would also be useful to build the capacity of stakeholders on the processes and usefulness of not only ratifying but also domesticating the protocol. Women’s and human rights organizations must use of all opportunities that present themselves in different forums to make the case for early ratification of the Protocol. Regular and sustained strategy meetings amongst coalition partners need to be held to keep the agenda alive, with a vibrant communication strategy that ensures all interested parties are on the same wavelength. Media should be an integral campaign partner so that the activities around advocating for the ratification of the Protocol are were well covered for the attention of the concerned government bodies.

* Mrs Anne Amadi is deputy executive director of FIDA Kenya

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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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