Implementation of the Maputo Protocol: Progress and Challenges

“International Women’s Day 2014: Equality for Women is Progress for All” by UN Women Gallery is licensed under CC BY-NC-ND 2.0.

To reflect on the implementation of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Protocol) in the past 20 years is to ask the question: “has the situation of women in Africa improved?”

Implementation of the Protocol requires decision-makers at the national level to determine what measures to adopt to implement the Protocol, allocate resources to execute these measures and report to the African Commission on Human and Peoples’ Rights (Commission) on the actions and their impact in attaining gender equality.

Women in leadership and the Commission have been central to the progress in the implementation of the Protocol but there remain challenges. The impact of the interplay between the role of women in leadership and the Commission in ensuring implementation of the Protocol is considered here as indicative of progress in implementing the Protocol while at the same time presenting a challenge for many African states fully and effectively doing so.

Measuring progress

Article 26 of the Protocol is aptly titled “Implementation and Monitoring”. It creates three obligations on states: implement the Protocol within the national jurisdictions; report on the measures they have undertaken towards the realisation of these rights in periodic state reports to the Commission; and adopt all necessary measures and resources, including budgetary, needed for full and effective implementation.

This provision may well present the most direct framework to gauge the progress and challenges in implementation of the Protocol. Still, assessing progress over 20 years, on average, for 44 states, remains an intricate task. Particularly given the following factors that are relevant to a consideration of domestic implementation - yet vary between states:

-          Implementation is subject to the recognition that states have a choice on how, within its legal system, and when, subject to the domestic legislative processes, to adopt the treaty into national law;

-          States can limit the scope of their obligations under the treaty through reservations;

-          Reporting to the Commission on implementation is dependent on the goodwill of a state. This varies depending on the political regime, with no consequences for non-compliance; and

-          National budgetary allocation is not subject to scrutiny for compliance with regional treaty obligations.

These factors merit an assessment of each member state to consider the question of implementation which is beyond the scope of this piece. For this reason, guided by article 26, this contribution considers the role of women decision-makers in the implementation of the Protocol and the role of the Commission in monitoring measures to address social, cultural, and religious barriers as root causes of inequality - as indicative of the progress and challenges to implementation.

“…increasing women in leadership has improved the quantity and quality of gender reforms by states.”

The role of women decision-makers

The executive often determines whether to be a party to a treaty, what reservations to enter, national programmes and policies to implement the rights and allocate a budget for implementation. The legislature ensures legal reform to bring national laws in line with the treaty. The judiciary provides remedies for violations.

The role of women in decision-making processes is key in ensuring that the necessary national adjustments, at various levels, are made to observe the undertakings made in the Protocol in a way that is practical and meaningful in addressing women’s violations. 

However, the exclusion of women in these processes affects the pace and extent of implementation. While there is an increase in the number of women in leadership positions on the continent, there remains institutional cultures that undermines them.

A study conducted interviews with women parliamentarians from 50 African countries. It found that their ability to inform policy formation and implementation to advance gender equality was hindered by structural and institutional challenges that affected their ability to influence policy at the same level as men. Testimonials included:

“My party opposed a law addressing violence against women and girls, but I campaigned for it. This resulted in a smear campaign being waged against me where they sought to tarnish my reputation, demonise me, and accuse me of damaging society by spreading Western thinking.”

“I am the president of the caucus for women parliamentarians. A budget is set aside for the activities of this caucus at parliamentary level, but the parliamentary authorities delay things because they don’t want me to do this or that activity. They sabotage what I want to do.”

The role of the Commission

The Protocol requires states to attain substantive equality by targeting behavioural change, gender bias and stereotypes. It requires states to change social, cultural, and religious perceptions that sustain women’s marginalisation.

Besides indicators of formal equality, the aim of the Protocol will be achieved when states better demonstrate, in their state reports, the measures implemented to attain substantive equality. A current challenge is the call for the avoidance of values that are “un-African” or “Western” in sections of African states.

Proponents challenge the human rights norms articulated in the Protocol as introducing “Western” or “un-African” values into our context. They purport to legitimise challenges to women’s rights because of cultural, religious and social values of a community.

For instance, despite legislative, administrative and judicial measures prohibiting female genital mutilation resistance to elimination remains in practicing communities. Cultural and religious gatekeepers pit the rights in the Protocol against some homogenous notion of “African values”.

It is not by chance that in the first case before the African Court on Human and Peoples’ Rights enforcing the Protocol, the respondent state, Mali, was found to have breached its treaty obligations by inter alia not implementing legal reforms recognising 18 years as the minimum age of marriage in national law.

Mali raised a religion-driven resistance to the proposed reforms as a defence. It described the resistance as a force majeure so great and uncontrollable as to excuse its liability for non-compliance with its treaty obligations.

Through the state reporting process, the Commission can enable dialogue between various stakeholders that are grappling with these types of difficult political questions with the aim of attaining regional solutions in line with the Protocol.  

Conclusion

There is evidence that increasing women in leadership has improved the quantity and quality of gender reforms by states. State reports that evaluate these reforms demonstrate that women’s lives are better for the implementation of the Protocol. However, gender bias that remains at all levels in society impacts implementation. As reforms are being considered within the African Union, the Commission remains a necessary forum to facilitate dialogue among states and other stakeholders to change perceptions and biases that limit the implementation of the Protocol.