The Future of the Maputo Protocol: Prospects and Challenges
Opening session of the #MaputoAt20 celebrations: Hon. Commissioner Janet Ramatoulie Sallah-Njie
Photo credit: SOAWR
Editor’s Note: In this last post as part of the ‘Maputo at 20’ series, we speak with Hon. Commissioner Ramatoulie Janet Sallah-Njie, the Special Rapporteur on the Rights of Women in Africa, about the future of the Maputo Protocol, it’s potential for advancing women's rights in Africa, and the challenges that need to be addressed for its full realisation. Special thanks to Dr. Satang Nabaneh for conducting the interview.
Hon. Sallah-Njie is a Gambian lawyer with over 30 years of experience in women’s rights advocacy. She was elected to the African Commission on Human and Peoples’ Rights in October 2021 and sworn into office on November 15, 2021. She is the Special Rapporteur on the Rights of Women in Africa, Chairperson of the Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV, and Vice-Chairperson of the Resolutions Committee.
Why was the Maputo Protocol adopted?
As we commemorate the 20th anniversary of the Maputo Protocol, it is important to reflect on why this Protocol was deemed necessary, despite the existence of global instruments such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and regional human rights instruments, including the African Charter on Human and Peoples' Rights (African Charter). The answer, as provided in the preamble of the Maputo Protocol itself, lies in the persistent discrimination and harmful practices that African women continue to face despite the existence of these instruments.
As you may all be aware, Article 18(3) of the African Charter does not specifically address the protection of women's rights but rather addresses women's rights in the context of the family. Additionally, it fails to define discrimination against women comprehensively and does not adequately address violations resulting from such discrimination, including issues such as early marriage and female genital mutilation, amongst others.
The second reason for the adoption of the Maputo Protocol was the recognition that global human rights instruments, including CEDAW, were not sufficiently equipped to tackle the unique challenges faced by African women in their daily lives. Consequently, the AU took the bold step of introducing this landmark regional instrument, which encompasses progressive and innovative provisions, aimed at addressing the specific needs and challenges faced by African women.
How has the Maputo Protocol changed the landscape of women's rights in Africa over the past two decades?
The marking of two decades is an opportune time to reflect on where we have come from, what we have accomplished, and where we want to go. If the Protocol was a child, all things being equal, it would be well on its way to finishing a university career, so in essence, our Maputo Protocol has come of age. Since its adoption on 11 July 2003, 44 member States of the African Union have accepted the Maputo Protocol. While this is indeed an encouraging number, the more perfect number would be to have all 55 states of the African Union ratify or accede to it. After all, all the women of Africa deserve the protection that it brings.
In this regard, I would like to highlight that through ratification, States can unequivocally demonstrate their unwavering commitment to establishing an inclusive society that fosters full participation and contributions of women unhampered by discrimination. Furthermore, ratifying the Protocol provides a robust framework to confront and dismantle discriminatory structures and practices that impede women’spursuit of justice and their assertion of rights, thereby paving the way for the realisation of gender equality.
What are some of the key achievements and challenges you have seen in implementing the Protocol?
As the African Commission, women’s rights have remained at the center of our work, anchored in the Maputo Protocol. In the last 20 years of the Maputo Protocol, several soft laws have been adopted by the Commission to further elaborate the provisions of the instrument. Two General Comments, specifically No.1 and No.2, provide detailed insights into the responsibilities of states concerning Article 14, focusing on women’s health. This includes safeguarding against HIV/AIDS and other sexually transmitted infections, ensuring the right to manage one’s fertility, and facilitating access to medical abortion under specific circumstances.
There is also General Comment 6 on Article 7(d) on the distribution of marital property upon the dissolution of marriage. To demonstrate the complementarity within the African human rights system for the protection and promotion of the rights of women and girls, the Commission adopted two joint general comments together with the African Committee of Experts on the Rights and Welfare of the Child. One is on the elimination of child marriage and the other is on female genital mutilation (FGM), which was recently adopted. The Commission has also adopted Guidelines to combat sexual violence and its consequences in Africa.
All of these soft laws based on the Maputo Protocol go to the heart of some of the main challenges that African women face and are meant to elaborate those provisions in the Maputo Protocol in order to give states a clearer picture of how they should implement their obligations. It is my hope that states are using them to guide policy reform and policy making in line with the Maputo Protocol. Recently we had a webinar with key actors in government, development partners and civil society organisations, discussing these soft laws and how best they can be incorporated into domestic legal systems.
The Maputo Protocol has also guided several resolutions of the African Commission on various women’s rights issues as a way of exhorting member states to fulfil their obligations, and further provide guidance on how to do so. These resolutions have been on several issues including the protection of women in armed conflict (ACHPR/Res. 492 (LXIX)2021), the protection of women human rights defenders (ACHPR/Res. 409 (LXIII) 2018), and the protection of women from digital violence (ACHPR/Res.522 (LXXII) 2022) among several others. These resolutions tackle new and emerging issues plaguing women on the continent and assist in keeping the Maputo Protocol relevant and making it a living document.
States have an obligation under Article 26 of the Maputo Protocol to submit periodic reports to the African Commission on the progress that they have made in implementing provisions of the protocol. This process, while still plagued with challenges of non-reporting, is slowly gaining momentum with more and more state reporting, using the Guidelines on State Reporting on the Maputo Protocol that were adopted by the Commission.
“It is also noteworthy, that because of the pervasive culture of patriarchy, de facto discrimination continues to be perpetuated, despite the existing legal framework, in some countries.”
The African Union has similarly put in place various measures to breathe life into the Maputo Protocol. For example, in 2004, soon after the adoption of the Protocol, the African Union adopted the Solemn Declaration on Gender Equality (Assembly/AU/Decl.12 (III)), affirming the commitment to gender equality, as provided for in the Maputo Protocol and other international instruments. Additionally, the war on child marriage is being fought from all fronts, with the African Union launching a campaign to End Child Marriage in 2014. To fortify this, the African Union appointed a Goodwill Ambassador for ending child marriage. The African Union is also complementing the state reporting of the Commission through the Gender Scorecard which takes stock of the progress that states are making in realising women’s rights.
In the last 20 years, I want to believe that the Maputo Protocol has had tremendous influence on the domestic laws and policies of member states, thus providing for better protection of women. For example, non-discrimination which is an important feature of the Protocol has become a common characteristic in most Constitutions. Although in most jurisdictions, we still have the clawback clause that allows for the application of customary laws and practices in matters of personal law, which are predominantly discriminatory against women. It is also noteworthy, that because of the pervasive culture of patriarchy, de facto discrimination continues to be perpetuated, despite the existing legal framework, in some countries.
It is also commendable that Article 2(6) of the Kenyan Constitution provides that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”. This provision gives the Maputo Protocol the force of law in Kenya without the need to pass any further implementing legislation. Through Article 144 of the Namibian Constitution, the Maputo Protocol is part of its domestic law. This therefore means that the rights and freedoms provided in the Protocol are enforceable in Namibian judiciary and quasi-judicial bodies.
Furthermore, one of the major women’s rights violations on the continent has been FGM. The Maputo Protocol in Article 5 prohibits FGM and the para-medicalisation of FGM. A number of member states to the Maputo Protocol have enacted laws that prohibit FGM in line with Article 5. These include but are not limited to Burkina Faso, Cameroon, Cote d’Ivoire, The Gambia, DRC, Ghana, Ethiopia, and Kenya.
It is important to note that the ratification of the Maputo Protocol alone does not automatically ensure women's rights unless it is accompanied by domestication and implementation. Regrettably, despite being ratified by 44 States, African women still face discrimination, gender-based violence, and sexual harassment, among others, due to various challenges in the domestic implementation of the Protocol. These challenges include inter alia, lack of political will, judicial reluctance to apply the Protocol, weak national institutions, plural legal systems, and reservations.
In your view, what are some of the most pressing challenges that women face in Africa today?
Despite these significant progresses, numerous emerging challenges persist, hindering the full realisation of women’s rights and the implementation of the Maputo Protocol. Undoubtedly, the continued existence of stereotypical beliefs about gender roles for women and men presents a significant and pressing challenge in safeguarding women's rights throughout the continent.
Despite the existence of comprehensive international and national legal frameworks on women's rights, gender-based violence (GBV) remains a significant issue in many parts of Africa, posing a grave threat to the well-being and human rights of countless women and girls, and indeed undermining national security and stability of the continent.
Women continue to encounter significant challenges in accessing healthcare, particularly, in the realm of reproductive and sexual health, due to enduring difficulties that are further compounded by financial and legal limitations. Across the continent, multiple countries continue to struggle with high rates of maternal and infant mortality, highlighting the urgent need for comprehensive healthcare reforms.
In addition, digital violence against women is an alarming and increasingly prevalent emerging issue that poses significant threats to women's safety, privacy, and well-being. The impact of digital violence extends beyond the virtual realm, leading to psychological distress, reputational damage, and even physical harm for the victims.
The digital gender divide, which refers to the unequal access and use of digital technologies between men and women further hinders women’s access to the internet, information, and the ability to exercise their rights online, thus excluding women from the digital era.
What is the way forward for the Maputo Protocol?
Ratification and implementation of the Maputo Protocol holds immense potential to bring about positive changes in the lives of African women. The pressing need for the universal ratification of the Maputo Protocol becomes evident and significant when we consider the persistent gender inequalities that prevail in many African countries in general and in some of the non-ratified Statewide in particular. It is, therefore, imperative for States to carefully consider the substantial benefits that can be derived from ratifying the Maputo Protocol.
