Human Rights of Women
The Maputo Protocol is a ground-breaking women’s rights legal instrument that expands and reinforces the rights provided in other human rights instruments. The Protocol provides a broad range of economic and social welfare rights for women. Importantly it was produced by Africans and pays attention to the concerns of African women.
AWID interviewed Faiza Jama Mohamed, Director of Equality Now about the Solidarity for African Women's Rights (SOAWR) campaign for the ratification and implementation of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women also known as the Maputo Protocol or the African Women’s Protocol (hereafter referred to as the Protocol).
By Massan d’Almeida
The Maputo Protocol was adopted by the African Union (AU) on July 11, 2003 at its second summit in Maputo, Mozambique. The Protocol entered into force on November 25, 2005 after being ratified by the requisite 15 AU member states. Of the 53 AU member countries, 49 have signed the protocol, 31 of those countries have ratified it; and only four countries[1] have not yet signed the Protocol.
This instrument highlights issues not effectively covered in other instruments but which have particular relevance to African women including HIV and AIDS, trafficking, widow inheritance and property grabbing. The Protocol 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. It explicitly calls for the legal prohibition of female genital mutilation (FGM), and prohibits the abuse of women in advertising and pornography.
AWID: Can you please recount how the Maputo Protocol was developed and how women’s groups mobilized to get it adopted?
Faiza Jama Mohamed (FJM): Following the Vienna World Conference on Human Rights in 1993, a resolution was passed by the Organization of African Unity (OAU)[2] mandating the African Commission on Human and Peoples’ Rights to draft an additional Protocol to the African Charter on Human and Peoples’ Rights (the African Charter) that would elaborate the human rights of African women[3]. Drafting the Protocol became the main task of the Special Rapporteur on the Rights of Women in Africa who enlisted support from various African women’s organizations[4].
In 2002, FEMNET[5] raised concern that the tabled Protocol was weak and that experts had adopted it with the exception of only three provisions they agreed to revisit after country consultations. In addition, the AU was having difficulty getting a quorum to convene the second meeting of experts to conclude the Protocol. After consultations with FEMNET, WiLDAF[6] and the African Centre for Democracy and Human Rights Studies (ACDHRS), Equality Now took the initiative to convene a two-day consultation meeting of women’s organizations in January 2003 in Addis Ababa.
Following that meeting, we generated a mark-up of the draft Protocol showing areas of weaknesses that needed to be improved, also providing stronger language for provisions that the participants found to be of lower standard than CEDAW[7]. This was shared with member states who were urged to convene a stakeholders meeting to discuss the proposed changes and endorse them. Gender ministers adopted the Protocol with most of the recommended changes. The AU presented it to the Executive Council for endorsement and submission to the Heads of State for adoption on July 11, 2003 in Maputo.
AWID: SOAWR was established to achieve universal ratification of the Protocol and ensure its implementation. What have your achievements been and what challenges are you facing?
FJM: SOAWR, a coalition of 39 members, has focused on three goals: ratification, popularization and advocating for domestication and implementation of the Protocol. The Protocol made history by entering into force in the shortest time in the OAU/AU history. To date we have secured 31 ratifications (58.5% of AU member states); and we have, through multiple channels, made the Protocol widely known in the continent.
SOAWR members have convened educational forums, debates, generated materials including an award winning radio drama “Crossroads” that was translated into several local languages and released through community and national radios. Additionally, strong coalitions spearheaded by SOAWR members have emerged at country level, which is very important, as we need a strong and united force pushing for change in country.
More recently SOAWR has reached out to the African youth and offered them a platform to share their views on what the Protocol means to them. It is important to have the youth involved in the campaign and we have been exploring ways to sustain their interest and influence their active participation.[8]
A key challenge is influential religious and traditional leaders who use religion and culture to compromise the human rights of women. For example, Liberia and Mali are obliged under Article 5 of the Protocol to enact laws that criminalize FGM but due to pressure by religious and traditional leaders they have, to-date, failed to honour this obligation. Article 14 on reproductive health rights is another sensitive issue with religious leaders and has resulted in Kenya and Uganda entering reservations against some sub-articles of this Article while some other countries have delayed ratification. Other countries have issue with 18 years being the minimum age of marriage even though all countries have ratified the UN Convention on the Rights of the Child.
AWID: How has the Protocol been domesticated in countries that have ratified it?
FJM: The Protocol requires state parties to review their domestic laws and ensure that they are aligned with its provisions. To the best of my knowledge only Rwanda has completed such a review. We are seeing improvements in some areas and in some countries: maternal health, criminalizing sexual offences, ending discrimination against women and increased numbers of women in decision-making positions. Gambia has passed a women’s Bill as a way of domesticating the Protocol, but failed to embrace it in its entirety; the bill does not address FGM for example, which is a widespread violation in Gambia. A similar bill is in the Nigerian Parliament for potential adoption while other countries have passed laws on specific issues including gender parity (Senegal), domestic violence (Mozambique and Uganda), FGM (Guinea Bissau and Uganda).
But while these efforts are commendable, we are far from realizing the full potential of the Protocol in safeguarding the human rights of African women. We have to continue encouraging member states to redouble their efforts, especially during the African Women’s Decade (2010 – 2020) when they are expected to make good on their commitments.
AWID: Equality Now together with SOAWR, recently published a guide to using the Protocol, what was the purpose of this?
FJM: The “Guide to Using the Protocol on the Rights of Women in Africa for Legal Action” was developed as a tool for lawyers, women rights defenders and public prosecutors. This corresponds with our objectives to domesticate and implement the Protocol. We looked at it from two angles: (1) encouraging member states to take practical steps to domesticate and implement[9] the Protocol and (2) encouraging lawyers and women rights defenders to use the Protocol as a tool to defend women and girls whose human rights have been violated.
The tool offers step-by-step guidance for using the Protocol at local, national and regional levels. It explains what constitutes a violation in the context of the Protocol and how to bring these violations before domestic courts and regional mechanisms like the African Court on Human and Peoples’ Rights. It provides case law that lawyers can reference on key cases related to women’s rights, ruled on by various Human Rights Treaties monitoring bodies including the African Commission.
AWID: How are member States being held accountable for the commitments they have made to women’s human rights in the Protocol?
FJM: Member states are required to report periodically to the African Commission on Human and Peoples’ Rights about progress they are making and the AU Commission annually monitors and reports on progress countries are making in honoring their commitments under the Solemn Declaration on Gender Equality in Africa.
We use these opportunities to add our voices to calling countries to account for their obligations under the Protocol. We support the Commission in developing reporting guidelines on the Protocol and train member states on its application. We also partner with UN Women and the AU Commission to steer countries towards developing tools and action plans to domesticate and implement the Protocol.
AWID: What needs to be done to ensure that the Protocol is implemented effectively so that women in Africa are able to fully realize their rights?
FJM: We are encouraging countries to adopt a multi-sectoral framework that the UN Women developed based on experiences of other multi-sectoral interventions that countries have implemented. This is meant to fast track implementation of human rights instruments especially the Maputo Protocol and CEDAW.
SOAWR and UN Women in partnership with the AU Commission jointly convened two conferences where the framework was introduced to 28 of the 31 countries that have ratified the Protocol. We have mobilized additional support for countries that are willing to pilot the framework. Our plan is to support six countries and document their experiences so that we can learn from their interventions. We are hopeful that the results will prompt other countries to try it out. Countries are also looking for ideas and encouragement as they have committed to implementing their obligations during the African Women’s Decade (2010-2020) so this serves as a great opportunity to amplify our advocacy efforts.
[1] The countries who have not signed the Maputo protocol are: Botswana, Egypt, Eritrea, Tunisia
[2] The Organization of African Unity (OAU) was established on 25 May 1963. It was disbanded on 9 July 2002 by its last chairperson, South African President Thabo Mbeki, and was replaced by the African Union (AU).
[3] Following lobby by the African women’s movement it was noted with concern that the African Charter did not adequately and explicitly address the human rights of women.
[4] These organizations include Women in Law and Development in Africa (WiLDAF) and the African Communications and Development Network (FEMNET).
[5] See note 4
[6] See note 4
[7] UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
[8] Various publications on the campaign are available at the SOAWR website and can enlighten interested readers on various aspects of the campaign and issues of concern to African women.
[9] Through policies and legislation as relevant and of course through practice/enforcement
Comments |
As Faiza said, what makes the Maputo Protocol different from other regional and international conventions is the way it originated: it was born within the African context and from an African-led process because the African Charter on Human and Peoples’ Rights did not sufficiently address the issue of women’s rights, and actually could be interpreted in ways that could be harmful to women. So there was the need to elaborate an African specific instrument on the rights of women. The Protocol is also unique in some of its provisions - which are not even in CEDAW - mainly those related to the rights of some marginalized groups including widows, elderly women, women with disability and those in distress; it addresses harmful cultural practices (marriage issues, FGM, rape, sexual assaults,…) and contains very progressive provisions on reproductive rights.
Some of the provisions preventing some countries from ratifying the Protocol are those on inheritance, equal rights in marriage and reproductive rights. Kenya and Uganda for example have ratified the Protocol with reservations on Article 14 related to reproductive rights, in particular women’s rights to control their fertility and to access safe, medical abortion. It is a challenge when you have a continental document and norms yet there are such reservations from states. This is where the advocacy work of SOAWR came very strongly into play to challenge various misconceptions on the Protocol.
FEMNET’s work on the Protocol within the SOAWR coalition
FEMNET is a pan-African, membership based African women’s rights network founded in 1988 with a unique mandate that involves working with intergovernmental organizations such as the AU and the UN. We have members in 37 countries throughout Africa. FEMNET is one of the founding members of SOAWR and sits within its steering committee. One of the roles FEMNET plays within the Coalition is the advocacy work that we do around the Protocol. In the beginning, in order to get the 15 ratifications needed for the Protocol to enter into force, SOAWR focused on AU Summits and engaging media to show which states had ratified, not ratified and those who had not signed on to the Protocol at all. At the Summits for example we handed out red, green and yellow cards to Member States, in the presence of the Press. At the beginning this strategy was useful because in 2003, only one country has ratified the Protocol, so there was need for very aggressive advocacy at the Summit level. At national levels, we have mobilized our members and other CSOs to put pressure on their governments to ratify the Protocol.
As a communication network, FEMNET has also produced a lot of materials around the Protocol. For example with FAHAMU, SOAWR and others, we produced a radio drama called Crossroads that Faiza has referred to above, and which is available in seven languages and goes through all the issues raised in the Protocol.. It has been a great tool to popularize the Protocol with the masses, to increase the awareness and demands for the ratification of the Protocol. It has been used in several countries including Kenya, Togo, Uganda, and Southern Africa. FEMNET has also been involved in producing several of the Coalition books, including a simplified version of the Protocol in English, French and Swahili.
FEMNET also convenes the annual review and planning workshop for the entire Coalition where members share experiences working on the Protocol both at national and regional levels: , what has worked, the challenges we face; we then plan jointly including strategic planning with specific time bound targets (ratification, raising awareness, targeting various groups, reviewing specific laws, producing materials, etc.). We work in a harmonized way and report back to the SOAWR secretariat (based at Equality Now) on a quarterly basis
To answer your question “How can women’s rights activists use the provisions of the Maputo Protocol in their daily activism?” - As an organization, FEMNET has mainstreamed the Protocol into all our projects. For example over the last 2 years we have been working on sexual and reproductive health in eastern Africa. We worked in partnership with several organizations to get a caravan that went through Kenya, Tanzania, Rwanda and Uganda, talking about the rights to sexual and reproductive health, meeting with policy makers, media, religious groups, citizens, and disseminating a lot of information while collecting voices of those affected by maternal mortality and morbidity. We took these voices to the AU Summit last year in Kampala to make a compelling case for issues related to reproductive and maternal health. Following that we began to lobby parliaments in partnership with some of our national members in these countries to play their oversight role with regard to the commitments their governments have made to implement the rights enshrined within the Protocol.
Currently, there is lot of work happening under the media radar in many countries, on the domestication of the Protocol. Domestication is often a much slower process than ratification, and involves harmonizing national laws with the Protocol. This takes lot of time and often faces fierce opposition from various groups. Yet we persevere as a Coalition because it must be done.
The Coalition is also working on effective strategies to implement the Protocol. Since it is a multi-sectoral instrument its implementation must be multi sectoral in nature too. It should not only be left to the Ministries of gender to implement - the other line ministries need to be involved as well. We are working to bring more countries to the table to use a multi-sectoral approach, including pushing for structures at the national level that take responsibility for implementing the Protocol so that it is not an isolated and under resourced activity, as often happens when it comes to women’s rights.
SOAWR has now moved beyond the AU summit approach, because now we are focusing on implementation, popularization, enforcement and reporting, and this involves a much wider group of stakeholders.
One example is at the margins of the AU summit on maternal and child health, held in July 2010 in Kampala, SOAWR members convened a Rural Women’s Conference whose aim was to popularize the Protocol among rural women activists, so that they can participate effectively in national campaigns for the ratification, domestication and implementation of the Protocol. The 50 Participants at this conference were from 16 countries from all over Africa, and SOAWR supported the action plans they developed around the Protocol.
Finally, I would like to highlight one example of the use of the Protocol mentioned by Equality Now in the “Guide to Using the Protocol on the Rights of Women in Africa for Legal Action” where the Protocol has been cited by the judge in his decision on a case in Zambia where a girl was violated by her teacher. It was a landmark decision where the Zambian government was held accountable for failing to protect the girl. We are looking for more strategic litigation utilizing the Protocol as a way of increasing its implementation around the Continent.