Sexual (gender) inequality is a global reality. Women as part of human being are entitled to benefits and protections under the general human rights instruments (both UN and regional) such as the equality and non-discrimination clauses, and other fundamental guarantees. However, the reality has been otherwise. Women have been subjected for long time to discrimination, denial of access to basic rights (education, health, property, employment etc), and victim of a wide range of discriminatory and harmful practices (domestic violence, early marriage, FGM, etc).

Women in the African context are even more exposed to differential treatment and a lot of disadvantages. It is stated that African public and private life have been and are dominated by men. Women’s participation in most walks of life has been undermined.

These are among the limited reasons which lead to the separated treatment of women’s rights and eventual adoption of separate documents. The two basic documents of paramount importance to women’s rights are the UN Convention on the Elimination of All forms of Discrimination against women (CEDAW) and the recently adopted African Protocol to the African Charter on Human and Peoples Rights on the Rights on the Rights of women in Africa (APRW). Thus, the purpose of this subsection is to highlight the importance and innovations of APRW in light of the global and preexisting African instruments (CEDAW).

Women’s Right under the OAU/AU Framework

There has been a repeated criticism that the OAU Charter and the ACHPR gave inadequate attention to women in Africa. The first does not contain any mention of gender, while the later raised women’s rights specifically under a single provision (Article 18). However, OAU Charter’s silence was later remedied by a series of resolutions and decisions addressing the promotion and protection of women’s rights in Africa. The most underlying factors behind such initiatives were said to be: the participation of the OAU in international conferences, the role and contribution of women in the African liberation struggle and to react to conflicts and economic development of the continent.

The central them of the decisions and resolutions of OAU on women’s matters throughout 1990s were on promotion, enhancement and empowerment of women’s participation at all levels of decision-making (international, regional, national and local). It was believed that it is only through the participation of women in every aspect of national and international affairs (Political, economic, social, etc) that a meaningful change can be brought. Of course, this position of the OAU was reflected in the recently adopted women’s Protocol. Moreover, the OAU Charter’s omission has been now remedied under the AU Constitutive Act by providing ‘promotion of gender equality’ as one of its guiding principles (CA, Art. 4(1)). In addition to this, the AU has adopted a ‘Solemn Declaration on Gender Equality in Africa’ on July 2004 which calls for the expansion of the gender parity principle to all AU organs, NEPAD, the RECs, and national parliaments.

African Protocol on the Rights of Women

The need to adopt women’s treaty law was called upon by NGOs working on women’s right which was based on concern about the pervasive abuse of women’s rights. The work was begun by appointing commissioners to coordinate and prepare women’s protocol. The role of African Commission on Human and Peoples Rights and the Gender Unit within the OAU was significant. The later prepared a draft OAU Convention on Harmful Traditional Practices (HTPs). However, the African Commission’s draft protocol and the HTPs draft conventions were later merged and adopted as the Draft Protocol to the African Charter on the Rights of Women in Africa (the Addis Ababa draft).

On “July” 2003, the AU Assembly adopted the protocol to the African Charter on the Rights of women in Africa which entered into force on 25 November 2005.

Women’s protocol, like that of African Children’s Charter, has introduced innovative norms and addressed the realities and problems of African women. Of course, it has also similarity with that of CEDAW provisions.

To assess the normative expansion brought about by the protocol, the pre-existing normative framework (‘the existing law’) has to be reviewed and contrasted with the protocol.

Though Article 18 of the ACHPR characterizes women as one of the groups deserving of protection, the special measures to be directed in protecting women and ensuring the elimination of discrimination against them are not delineated. Even if CEDAW was passed two years prior to the adoption of the African Charter, the fact is that the later was only minimally influenced by CEDAW’s provisions by incorporating only a single provision dealing with women’s rights.

Dear students, read article 18(3) of African Charter. Does it imply that all state parties to the African Charter have become bound to implement all the provisions of CEDAW?

The African Children’s Charter has also some link to women’s protocol as it provides for important rights of girl child, in particular the prohibition in children marrying under the age of 18.

Given the scope of protection under the above treaties, what then is the ‘added normative value’ of the protocol? Compared to CEDAW, the protocol speaks in a clear voice about issues of particular to African women and locates CEDAW in African reality.

The women’s protocol is the first treaty to place domestic violence, polygamy, HIV/AIDS, and medical abortion, in a binding human rights framework (Articles 4(2), 6(c), 14(1) (e), 14(2) k) respectively). It also provides in detail for the protection of women in armed conflict (Art. 11), and reiterates the need to accord women refugees protection under international law (Art. 4(2) (k)). The women’s protocol incorporates clear and expansive definitions of ‘discrimination against women’ (Art. 1(j), e.g. it includes economic harm), ‘harmful practices’ and ‘violence against women’. ‘Harmful practices’ such as female genital mutilation are specifically prohibited (Art.5).

The protocol provides specificity where vagueness prevailed, for example when it clarifies that ‘Positive African Values’ are those based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy (preamble). It also spells out the scope of socio-economic rights in greater detail than CEDAW, which limited some socio-economic rights to rural women (EDDAW, Art. 14), and goes beyond the scope of the rights provided for under the African Charter by spelling out the content of rights and by including the right to food security and adequate housing (Arts. 12,13,14,15 & 16).

A necessary implication of targeting violence against women and ‘unwanted or forced sex’ in the private sphere is that the protocol requires domestic violence legislation and the criminalization of ‘rape in marriage’. The precarious position of groups of women that have been rendered particularly vulnerable due to loss of a spouse, overlap with old age, disability, and poverty which also receive the protocol’s attention. (Arts. 20-24). The protocol once again reiterates the general stipulation of 18 years as the minimum age of marriage (Art. 6(b)).

Adopting a distinctly transformative stance, the protocol emphasizes ‘corrective’ and ‘specific positive’ (or ‘affirmative’) action. While CEDAW contains a generic provision allowing for ‘temporary special measures aimed at accelerating de facto equality between men and women’ (CEDAW, Art. 4(1)), the protocol reiterates the need for ‘positive’ measures by locating them in different contexts.

The protocol requires states to adopt measures that may favor women above men ‘such as electoral quotas for women in order to ensure substantive’ (‘in fact’) equality (Art. 9(11)). Positive action is also specifically required with regard to ‘discrimination in low’ (Art. 2(1) (d)), illiteracy, and education (Art. 12(2)).

Although the women’s protocol significantly advances standard-setting, it suffers from inelegant and unfortunate drafting deficiencies. The disproportionate effect of HIV and AIDS on women in Africa is not adequately reflected in the text. In any event, the right to be informed of one’s own and one’s partner’s HIV status is ambiguous and should not form the basis for the erosion of rights. The feminization of poverty, especially in rural Africa, is also not adequately reflected. As for its drafting, there is some inconsistency in the ‘rights-bearers’  in the protocol, with men sometimes specifically included in the scope of rights, and sometimes not. Similar to the instrument that it supplements, the African Charter, the women’s protocol does not have a provision on reservations. At the beginning of 2007, three states (Namibia, South Africa, and the Gambia) entered reservations upon ratification of the protocol. Thus, the benefits of these treaty provisions may be lost if reservations exclude the application of some of its important provisions. However, there are some hopes that even countries that entered reservations to CEDAW (e.g. Libya and Lesotho) did not enter similar reservations when ratifying the protocol. For lack of clarity, this area is expected to be elaborated by the enforcing organs on the basis of Vienna Convention on the Law of Treaties (1969).