By Natalie Czarnota

“The Year of the Refugees”

The theme of the African Union (AU) for 2019 is “The Year of the Refugees.” This theme is appropriate considering the vast amounts of refugees in Africa. Sub-Saharan Africa itself has one-third of the world’s forcibly displaced people, at 6.3 million refugees.

Refugees, under the definition of the Refugee Convention, are persons who have fled their countries due to a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group. As such, refugees face many hardships in their place of origin, on their journey to a place of asylum and even once they arrive in the place of asylum. 

However, certain groups of refugees face more hardships than others. There is one such group that the AU should focus its efforts on in bettering their protection, as this group makes up roughly 50% of the refugee population: women and girls.

Being a refugee creates problems on its own, but being a female makes one even more vulnerable. This is in part due to the high threat of sexual and gender-based violence (SGBV) that refugee women and girls face as a daily reality.

So, in honor of the African Union’s theme of this year, this post will discuss and analyze the ways in which the AU protects refugee women and girls from SGBV.

Protection of refugee females under regional law: The African Union

The SGBV problem faced by refugee women and girls is undeniable, so in what ways does the AU protect against this problem? Several documents exist protecting refugee women and girls specifically, including the African Charter of Human and Peoples’ Rights (ACHPR), the Maputo Protocol and the Kampala Convention. While the State should ensure that the rights of refugee women are upheld, these treaties could be used as an alternative solution if the State Parties fail to do so.

The African Charter of Human and Peoples’ Rights (ACHPR)

The ACHPR, though not explicitly mentioning the protection of refugee women against SGBV, instills the obligation to protect rights that would be compromised by the lack of protection of refugees against SGBV: namely, the right to freedom from discrimination (Art. 2), the right to life (Art. 4), the prohibition of torture and cruel, inhuman and degrading treatment (Art. 5) and the freedom of movement (Art. 12). Under these articles, a refugee woman or girl who faces the lack of action by a State Party in the protection against SGBV could theoretically submit a case to the African Court of Human and People’s Rights.

However, in practice, no refugee woman has ever used this provision before the Court. There are many reasons for this. The African Court has only heard a few cases since its conception. Moreover, the process of bringing a case before the court can take years, and refugees don’t have the luxury of time, as they are often constantly on the move.

The problem also lies in the fact that, in general, there are inconsistencies in translating the high levels of standards set by international law into lower-level enforcement when it comes to protecting the rights of refugee women in Africa at the national level by the African States.

The Maputo Protocol

The Maputo Protocol specifically outlines the rights of women in Africa. Unlike the ACHPR, the Maputo Protocol explicitly highlights the need to provide refugee women with international legal protection under Article 11(3).

The Maputo Protocol has been impactful in many African states, but the effects of this instrument vary greatly between States. The implementation by most States is problematic in that it is often a slow process and not consistent.

This suggests that the Maputo Protocol, though a necessary document, is not as effective as it should be in protecting women in reality, especially refugee women who cannot know where they will be protected, if at all. With many of the international frameworks discussed here, the challenge of implementing legislation is the main problem when protecting refugees from SGBV.

There is also the issue that not all States in the AU have signed and ratified the Maputo Protocol. Even in cases where the States signed the Protocol, many have not ratified or submitted state reports to the Commission. For example, Libya, which has an extremely large refugee population, has not submitted a state report the Commission since 1993.

The Kampala Convention

The Kampala Convention is an AU treaty regarding the protection and assistance of internally displaced persons in Africa. It explicitly gives States instructions regarding victims of SGBV in Article 9(1d); protecting against and preventing SGBV in all forms; and 9(2d), to take special measures to protect and provide for reproductive and sexual health and psycho-social support for victims of sexual abuse.

Unfortunately, there are problems with enforcing the obligations of the Kampala Convention as with the ACHPR and the Maputo Protocol. The reason is a political one, in that states, fail to commit to the obligations and to set up systems to do so. There are also technical difficulties in translating the laws into practice.

Proposals for protection

At first glance, the protection of refugee women under the African human rights system is well established. However, it is not enough that the laws protecting refugee women and girls exist. 

Fortunately, there are options available that have been proven to successfully protect refugee women and girls from SGBV. The problem is not the lack of laws, but the lack of laws that are effectively implemented by states in protecting refugee women and girls. The African Union must, therefore, ensure that States are upholding their obligations under documents such as the African Charter and the Maputo Protocol, and States must ratify and implement those obligations.

Furthermore, research shows that the most successful way to implement protection for refugee women and girls is to involve the communities, as States do not have the power to enforce international legal obligations in a community that rejects those laws.

It is crucial to involve the community and religious leaders in the discussions of protection from SGBV, as scientifically these are the figures of authority that are most capable of ending harmful practices such as SGBV. The entire community must also be involved in the process of eradicating SGBV for real, sustainable change to be made.

In order to achieve this, it may be beneficial for AU frameworks that are more specific in outlining the obligations of State Parties in protecting refugee women (and all women) from SGBV. The specificity lies in the obligation of AU States Parties not to simply ratify laws meaninglessly, but to implement those laws in ways that are proven to work through. In other words, African States should be obligated to help launch and fund programs that will work with refugee communities to end SGBV against refugee women and girls. In the AU’s “Year of the Refugees,” why not achieve better protection for refugee women and girls from SGBV this year?