This article is constructed around an appraisal of the decision of the European Court of Human Rights in A, B and C v. Ireland. It seeks to extrapolate comparative lessons for African Charter organs for the development of regional jurisprudence on abortion. It is argued that the A, B and C decision offers positive as well as negative lessons. The positive lessons lie in the holding of the European Court that at a procedural level, domestic abortion laws must be transparent in the sense of being formulated clearly and providing an administrative mechanism for review so as to enable women seeking abortion to exercise their rights effectively. The negative lessons lie in the continued reluctance of the European Court to resolutely affirm abortion rights as substantive rights.
In February 2006, when a 13 year-old Zambian school girl was raped by her teacher, the Protocol on the Rights of Women in Africa (the Protocol) was one of the tools that facilitated justice. R.M., the brave young girl who was under her aunt’s guardianship, sued the teacher, the school, Ministry of Education, and the Zambian Attorney General, citing Articles 4 and 12 of the Protocol (which Zambia ratified in May 2005) in addition to other international instruments in her submission to the High Court of Zambia. In June 2008, the High Court rendered a ruling in which Honorable Justice Phillip Musonda cited Article 4 of the Protocol, which elaborates “rights to life, integrity and security of the person”. In the judgment, the High Court referred the case to the Director of Public Prosecutions for criminal charges against the perpetrator, directed the Ministry of Education to take measures to protect students, and awarded significant compensation to R.M. This case, a prime example of women’s rights public interest litigation, attests to the potential of the Protocol to remedy violations and change lives. Nevertheless, the case is only one of a few well-known landmark cases using the Protocol at the national level. Currently, 36 of the 54 African Union (AU) Member States have ratified the Protocol and, as members of the Solidarity for African Women’s Rights Coalition (SOAWR) suggested in a 2004 publication, it is yet to fully become “a force for freedom”.
Recent developments in Africa have witnessed the establishment of African Court of Human Rights and African Court of Justice; and the eventual merger of the two Courts as the African Court of Justice and Human Rights. The Courts were established to compliment the protective mandate of African Commission on Human Rights. The establishment of African Human Rights Courts has catapulted scholars into considering whether the option is better for African human rights system or whether it was taken impetuously. The question is imperative in view of the problems that besiege the African Commission. This article considers the foreseeable hurdles that the African Court of Human Rights and the merged Court are likely to face. It points out that the African human rights system was built on a shaky foundation and suggests ways for revamping the system.
Equality Now, in conjunction with Solidarity for African Women’s Rights (SOAWR), is delighted to announce the release of A Guide to Using the Protocol on the Rights of Women in Africa for Legal Action. The release of this manual comes 5 years after the Protocol came into force. “We hope African lawyers and women’s rights advocates find the manual useful and it gives them hands-on guidance on how best to apply the remarkable standards of the Protocol in cases of violations of women’s rights,” said Faiza Jama Mohamed, Nairobi Office Director of Equality Now, which convenes SOAWR, a coalition of 47 civil society organizations working to ensure that the Women’s Protocol is ratified and implemented across the continent.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol’s language will have on its ability to achieve its object and purpose. This Note contends that certain language is too narrow, creating an over-specificity that will deter necessary countries from joining. However, this Note also asserts that certain aspirational provisions of the Protocol are overly broad, creating legal obligations that States Parties will be unable to meet. Ultimately, African countries with questionable women’s rights records will refuse to sign—States Parties will either be unable or unwilling to protect women to the extent required, leaving women in the same position as before. Worse yet, some States Parties may implement extreme measures that could increasingly disadvantage women over time. By relying on Western ideas of women’s rights and without explicitly determining how or if customary law will be considered in implementation, the Protocol faces serious obstacles on the domestic level. This Note concludes by asserting that unless States Parties consider a more grassroots, community-oriented approach to implementing the Protocol, the instrument’s requirements will remain unrealized, and women in Africa will remain marginalized.
The Maputo Protocol was originally adopted by the “Assembly of the African Union” in Maputo, Mozambique on July 11, 2003. The official document is titled “Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.”
The Maputo Protocol is a treaty instrument that is binding on all countries that ratify it. It went into effect in November 2005, after the minimum 15 of the 53 African Union member countries ratified it. As of June 2007, according to the African Union, 43 nations had signed it and 21 had formally ratified it: (Benin, Burkina Faso, Cape Verde, Comoros, Djibouti, Gambia, Libya, Lesotho, Malawi, Mali, Mozambique, Mauritania, Namibia, Nigeria, Rwanda, South Africa, Senegal, Seychelles, Tanzania, Togo and Zambia).
The Protocol to the African Charter on Human and People's Rights (ACHPR) on the Rights of Women in Africa was adopted in Maputo in July 2003, eight years after the commencement of the drafting process in Lomé, Togo in March 1995. This event marked a major achievement. However, before entering into force, the Protocol required ratification in fifteen member countries (Article 29). On 26 October 2005, Togo became the fifteenth country to ratify and deposit the Protocol before the Commission of the African Union. The Protocol entered into force a month later on 25 November 2005.
While celebrating this major achievement, the African women's movement remains vigilant in the pursuit of our next objective: the universal ratification of the instrument and its effective implementation. Only then will the status of African women significantly improve.
In pursuit of this objective, the Women’s International League for Peace and Freedom WiLDAF) sub-regional office for West Africa produced this simplified version of the Protocol, which can be used to educate and raise awareness of women's rights.