PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA BACKGROUND: The need for the Protocol The Protocol to the African Charter on Human and peoples’ Rights, relative to the Rights of Women in Africa was adopted in July 2003 and entered into force on 25 November 2005, 30 days after the fifteenth ratification, in concordance with Article 29 of the Protocol. It acknowledges the fact that, despite the widespread ratification by African States of the African Charter on Human and Peoples’ Rights, the Convention on the Elimination of all Forms of Violence Against Women and of the instruments that constitute the International Bill of Rights (Universal Declaration on Human Rights, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights), gender issues barely appeared in political agendas across Africa. The Preamble of the Protocol reflects the general concern that led to its establishment. It states that: “despite the ratification of the African Charter on Human and Peoples’ Rights and other international legal instruments by the majority of States parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices, women in Africa continue to be victims of discrimination and harmful practices” The African Charter is a significant instrument in the protection of Human Rights in Africa. However, it has been criticised for not addressing the specific needs of, or problems encountered by, African women. This position emerged from the Report of the Seminar held in Lomé, Togo, prior to the 17th Ordinary Session of the African Commission. The African Charter’s deals with gender in its preamble and in Articles 2, 3, and 18(3). Article 18(3) addresses specifically the rights of women by making it a duty on States to "eliminate all forms of discrimination against women and ensure adequate protection of women and children’s rights as they are stipulated in international conventions and declarations". However, if Article 18(3) aims at protecting women, it does so only in the context of the family. The Charter therefore needed to be completed by an additional legal instrument because, while it deals with women’s rights to a certain extent; it fails to address particular problems encountered by African women. Moreover, African women still today experience numerous and specific violations of their human rights. Women organisations argued that the place given by the African Charter to traditional values encouraged traditional practices that were harmful to women, such as female genital mutilation and forced marriage. Customary inheritance laws as well as the treatment reserved to widows were also denounced as practices impeding on the enjoyment of women’s human rights by women. The drafting of the Protocol was guided by the identified weaknesses of the Charter to address specific issues pertaining to women and on various international and regional instruments addressing gender issues such as the Vienna Declaration and Programme for Action, the United Nations Declaration on the Elimination of Violence against Women, the Beijing Declaration and Programme for Action, the SADC Declaration on Gender and Development, the United Nations Conference on Environment and Development, the United Nations World Summit for Social Development, and the International Conference on Population and Development.. Download Protocol on the Rights of Women in Africa Status of ratification May 2007, twenty (20) State Parties to the Charter had ratified the Protocol. They are: Benin, Burkina Faso, Cape Verde, the Comoro Islands, Djibouti, The Gambia, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Namibia, Nigeria, Rwanda, South Africa, Senegal, Seychelles, Togo and Zambia. The following countries have signed but not ratified: Algeria, Chad, Côte d’Ivoire, Congo, the Democratic Republic of Congo, Equatorial Guinea, Ethiopia, Gabon, Ghana, Guinea Bissau, Guinea, Kenya, Liberia, Madagascar, Mauritius, Niger, Sahrawi Arab Democratic Republic, Sierra Leone, Somalia, Swaziland, Tanzania, Uganda and Zimbabwe. Seven (7) countries have not yet signed the Protocol. They are: Sudan, Sao Tome and Principe, Eritrea, Egypt, the Central African Republic, Botswana and Angola. A table of signatures and ratifications of the Protocol is available at www.africa-union.org. Reservations entered upon ratification of the Protocol Upon ratification of the Protocol, reservations have been formulated by The Gambia, Mauritius and South Africa. During ratification of the Protocol in September 2005, Gambia formulated reservations in relation to : Article 5 on the elimination of harmful practices; Article 6 on marriage; Article 7 on separation, divorce and the annulment of marriage,; and finally Article 14 on health and reproductive rights. The Government lifted all the reservations in May 2006. South Africa expressed reservations with respect to Article 4 (j) on the death penalty which because it has been abolished in the Country. Another reservation was expressed with regard to Article 6 (d) on the registration of marriages. South Africa indicates that marriage already has been registered in conformity with the national laws in order for it to be recognized. Another reservation was made with regard to Article 6 (h) which confers equality between the man and the wife where the nationality of their children is concerned. South Africa considers that its national laws on citizenship are more advantageous for the children than this provision of the Protocol. South Africa also formulated interpretative declarations. It clarified that the definition of violence against women in Article 1 f) of the Protocol has the same meaning and impact as that which is provided and interpreted by the Constitution of South Africa. Article 31, which explains that the Protocol can in no way violate the national laws which are most favourable for women, was also interpreted in a manner that would preclude the violation by the national laws of the rights guaranteed in the Protocol. Communications under the Protocol The Protocol on the Rights of Women in Africa provides an exhaustive list of rights that can be alleged as violated before African Commission on Human and Peoples Rights. In order to do so, the country in which the alleged violation occurred has to have ratified the Protocol. Moreover, if the country’s legal tradition requires it, another legal instrument must be adopted in order to domesticate the Protocol into national legislation. When this is done, the Protocol becomes fully part of national legislation and can be invoke before national tribunals. When local remedies have failed to guarantee the rights of women, it is possible to ask the African Commission to be seized with a case. To find out about the procedure for the submission of communications before African commission, please consult Information sheet No 2.
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