The Maputo Protocol and Violence against Women in Africa

"Rashida Manjoo 2014" by Inter-American Commission on Human Rights is licensed under CC BY 3.0.

Recent calls for an African regional treaty to end violence against women (VAW) have gained momentum.

Manjoo, the former United Nations (UN) Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, is one of the foremost proponents of this idea. She has mainly argued that an African regional treaty will be consistent with other regional treaties on the subject and will draw the much-needed response that the violence experienced by African women deserves.

The idea for a stand-alone treaty makes sense given VAW's record as one of the most universally widespread human rights infringements and the well-documented evidence of the continued rise of incidences of VAW globally and especially in Africa. For instance, at least one-third of African women experience some form of violence from cradle to death. These VAW statistics were further exacerbated by the emergence of the global Coronavirus (COVID-19) pandemic in 2019. The emergence of the COVID-19 pandemic and its resulting negative implications that disproportionately affect African women and girls have reversed projected declines in distinct forms of VAW. Specifically, to illustrate the increased incidence rates during COVID-19, VAW was dubbed the 'shadow pandemic.'

Indeed, in response to these calls, the African Union (AU) has begun significant efforts to develop a proposed treaty known as the African Treaty on Violence Against Women and Girls (Draft Treaty) specifically designed to tackle VAW in Africa.

These efforts are ongoing even though two decades earlier, on 11 July 2003, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) was adopted and enforced two years later on 25 November 2005. The Maputo Protocol guarantees women's human rights with 43 ratified member states (42 as per the AU). These member-states commit to ending discrimination and VAW.

The Maputo Protocol's explicit prohibition of VAW continues to be lauded in scholarship, however, the persistence of violence has been a rationale for drafting the new Draft Treaty. Against this background and considering that 2023 marks the Maputo Protocol's twenty-year milestone adoption, it is critical to reflect on the innovation of the Maputo Protocol's explicit VAW prohibition. This reflection is crucial considering that VAW elimination is arguably integral to achieving the Maputo Protocol's objectives to 'promote, realise and protect' African women's rights.

It is in tackling VAW that the Protocol shows its innovation. For instance, ending VAW is a central theme throughout the Maputo Protocol's text. This attention is significant given its absence in the topmost global Bill of Rights for Women. The UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) omits VAW in its text. In CEDAW's text, women are only protected from violence in the context of trafficking and exploitation of prostitution. Despite its afterthought clarification in General Recommendations, this VAW oversight in CEDAW has been extensively criticised and documented.

The Protocol corrects this oversight by explicitly banning VAW, thus earning accolades in scholarship. Similar to the CEDAW, special attention is given to preventing and condemning trafficking in women. Concerning the latter, member states are expected to prosecute perpetrators while protecting women vulnerable to these violent acts. However, the Maputo Protocol goes further than the CEDAW by drawing attention to often unacknowledged and distinct forms of violent acts such as verbal violence, economic and psychological harm, pornography and marital rape.

Ending VAW in Africa is addressed comprehensively under Article 4 of the Maputo Protocol. This article upholds and protects women's entitlement and right to life, integrity, and security of person responding to the widely established reality that VAW threatens women's lives in Africa. Where it concerns VAW, Article 4 outlines three fundamental state obligations.

First, promulgation and enforcement of laws; while states must enact and enforce laws prohibiting VAW, member-states are urged not to rely on laws alone but take other administrative, social, and economic steps critical to prevent, punish perpetrators, and ultimately end VAW.

Second, prevention; it is not enough to promulgate laws that are reactionary, member states must anticipate, prevent, and abolish these violent acts. Thus, prevention involves identifying the causes and consequences of violence, which could inform the right preventive steps.; adopting an active response using education and communication strategies.

Third, punishment of perpetrators and rehabilitation of survivors: this involves establishing prosecution mechanisms and ensuring accessible services for effective information, rehabilitation, and reparation for survivors. Beyond these three obligations, there is an emphasis on allocating and providing sufficient budgetary and other resources recognising their importance for fulfilling, monitoring and enforcing them.

Asides from Article 4, the need to end VAW is evident and scattered throughout the treaty. For instance, under Article 1, an explicit definition of VAW is provided. This significant definition leaves little room for doubt on what constitutes violent actions or threats targeted at African women. The definition expands VAW to include violent acts and threats; it encompasses everyday physical or sexual acts of violence but also emphasises the often subtler psychological and economic harm.

Globally, VAW has been recognised as a form of discrimination. This acknowledgement of VAW as discriminatory explains its interconnection with Article 2 of the Maputo Protocol. By identifying VAW as discriminatory, member states must take "positive and corrective" actions to eliminate VAW and all its forms.

Similarly, the Maputo Protocol protects from violence in the context of the right to dignity, recognising that women are prone to losing 'dignity' in violent situations. Further, by offering women protection from harmful practices, the treaty recognises the violence and harm inherent in these practices.

“…commemorating the Maputo Protocol's twenty-year milestone adoption raises the question of why efforts cannot be targeted at strengthening the existing Maputo Protocol's VAW response.”

By upholding women's control over their fertility and authorising medical abortion in violent situations such as sexual assault, rape and incest, the treaty confirms the violence African women often experience with respect to their sexual and reproductive health.

This includes mandating the prohibition of all non-consensual and forced medical or scientific experiments on women and ensuring that the death penalty is not extended to pregnant or nursing women. Besides, by upholding women's right to live in a positive cultural context, there is an implicit acknowledgement that a negative cultural context perpetuates violent acts and harm against women.

Moreover, by outlawing violence that occurs in private, the Maputo Protocol recognises distinct forms of violence that can be perpetuated, for instance, by private actors, such as marital rape and verbal violence. The prohibition of sexual harassment in educational and workplace settings, is an acknowledgment of public and community-based violence; and the protection of women in armed conflicts arises from the recognition that violence can also be state-sanctioned.

Notably, the novelty that underlies the Maputo Protocol's VAW explicit ban is evident in multiple ways. For instance, by expressly forbidding VAW both in private and the public, especially "forced violence that occurs in private" interpreted to include marital rape, the Maputo Protocol criminalises this act often undetected as a crime because it is still almost unbelievable that a husband can rape his wife in most African countries.

Furthermore, criminalising marital rape removes the false distinction between the private and public domains and brings to the forefront VAW and its distinct forms that have historically been exempted in human rights architecture.

As argued previously, the treaty draws attention to unacknowledged violent acts, including verbal violence and psychological and economic harm. However, it has been criticised for not going beyond the mere mention of these harms in its VAW definition. The need for economic and psychological VAW specificity to avoid undue bias toward physical and sexual violence is stressed.

Although the Maputo Protocol text makes no explicit reference to 'due diligence', the obligation placed on member states to prevent and investigate all acts of VAW; prosecute and punish perpetrators, rehabilitate, and offer reparations to survivors; implies the due diligence obligation with respect to VAW and thus can be invoked. Similarly, intersectionality is also not explicitly mentioned.

Nonetheless, the Maputo Protocol recognises VAW as an intersectional reality. For instance, by explaining that 'women' as used in the treaty includes girls, the treaty arguably recognises how the violence experience is significantly impacted when gender intersects with age.

Additionally, by protecting women with disabilities, older women, and women in distress from violent acts, the treaty recognises how women with multiple and intersecting identities are increasingly susceptible to distinct and increased forms of violence. The severity of the violence occurs not only because they are women but also because, following Crenshaw's reasoning, their gender intersects and is mutually constitutive with other identity categories that African women embody.

Likewise, protecting women in armed conflicts, asylum-seeking women, refugees,  and internally displaced women against all forms of violence makes it possible to speculate the treaty's acknowledgement of the intersectional complexities of VAW that could occur in conflict contexts or because of unrecognised migration status.

The Maputo Protocol's explicit VAW prohibition has inspired and fuelled the enactment of progressive laws focused on ending VAW in African countries. Moreover, the Economic Community of West African States (ECOWAS) Court of Justice's Dorothy Njemanze case, arguably the first regional body and case to which the Maputo Protocol was first applied, coupled with the Kenyan case of Kamau, are a testament to the progressive judicial pronouncements that have held governments accountable for acts of VAW. Also, the treaty's explicit VAW prohibition has inspired legal advocacy and judicial training that strengthen women's rights on the continent.

Despite the significance of the Maputo Protocol's VAW explicit prohibition discussed above, the treaty's shortcomings have informed calls for a new Draft Treaty. For instance, VAW remains widespread in Africa despite the Maputo Protocol's comprehensive and explicit prohibition of VAW. The increased VAW incidences are linked to the treaty's lack of exclusivity in focusing on VAW and the absence of an independent monitoring mechanism to oversee violent acts against African women.

However, while the arguments for a new Draft Treaty are reasonable, and its necessity is no longer debatable, commemorating the Maputo Protocol's twenty-year milestone adoption raises the question of why efforts cannot be targeted at strengthening the existing Maputo Protocol's VAW response.

Is developing the new Draft Treaty impossible while simultaneously reinforcing the existing Maputo Protocol? After all, the former Special Rapporteur and leading proponent of this new Draft Treaty had also accepted establishing a Maputo Protocol's monitoring mechanism as a welcome alternative. This question is valid, mainly if developing a plethora of weak human rights treaties that pay lip service to outlaw VAW but remain paper tigers are to be avoided.

Conclusively, with less than a decade left to the 2030 Sustainable Development Goals,  strengthening the Maputo Protocol's VAW response by adopting a robust and coordinated monitoring mechanism is vital if there is a genuine commitment to eliminate VAW in Africa and meet deadlines set under the SDG’s Goal 5 mandate.