Blazing a trail: The african protocol on women's rights comes into force

Journal of African Law

Volumn 50, Issue 1, 2006, Pages 72-84

  Banda, Fareda ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

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EID: 84994734139     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855306000076     Document Type: Article

References (157)

1. Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003, available at .
2. WILDAF, “The African Charter on Human and Peoples' Rights and the additional Protocol on Women's Rights”, (1999) WILDAF News 18
3. R. Murray, “A feminist perspective on the reform of the African human rights system”, (2000) 1 African Human Rights Journal 205.
4. Universal Declaration of Human Rights, 1948 (UDHR) UN GA Res. 217A (III) 1948 arts. 2 and 7
5. International Covenant on Civil and Political Rights, 1966 (ICCPR) 999 UNTS 171 arts. 2(1), 3, 26
6. International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) 993 UNTS 3 arts. 2(2), 3.
7. Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) 1249 UNTS 13.
8. African Charter on Human and Peoples' Rights, 1981, OAU Doc. CAB/LEG/67/3 REV. 5.
9. See also Constitutive Act of the African Union, 2000, available at , arts. 3(h) and 4(1).
10. A. Lloyd and R. Murray, “Institutions with responsibility for human rights protection under the African Union”, (2004) 48 J.A.L. 165, 176–177.
11. J.A.L, art. 3.
12. J.A.L, art. 18(3).
13. The position remains unchanged. See F. Banda, “The protection of women's rights in Africa”, (2004) 14 Interights Bulletin 147.
14. Draft Terms of Reference for the Special Rapporteur on the Rights of Women in Africa DOC/0S/34c (XXIII) Annex 11, 1996.
15. See also M. Evans and R. Murray, “The Special Rapporteurs in the African system”, in M. Evans and R. Murray (eds.), The African Charter on Human and Peoples' Rights: The System in Practice, 1986–2000, Cambridge, 2002, 280, 295.
16. Resolution AHG/Res. 240 (XXXI) of the OAU Assembly of Heads of State and Government, adopted at the 31st Ordinary Session, Addis Ababa, July 1995.
17. Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women, DOC/OS/34c (XXIII) Annex.
18. Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women, art. 10(3).
19. Discussed in F. Banda, Women, Law and Human Rights: An African Perspective, Oxford, 2005, 66–83.
20. United Nations World Conference on Human Rights: Vienna Declaration and Programme for Action, reproduced in (1993) 32 International Legal Materials 1661.
21. UN Declaration on the Elimination of Violence against Women, 1993, GA Res. 48/104.
22. Beijing Declaration and Programme for Action (15 September, 1995), reproduced in (1996) 35 International Legal Materials 404.
23. “SADC Gender and Development Declaration on Gender and Development, 1997”, (1999) 1 SADC Gender Monitor 33
24. “The Prevention and Eradication of Violence against Women and Children. An Addendum to the 1997 SADC Declaration on Gender and Development”, (1999) 1 SADC Gender Monitor 37.
25. African Protocol on Women's Rights, 2003, art. 1(f). See also Human Rights Committee General Comment No. 18 on Non-Discrimination (21 November, 1989) CCPR/C/21/Rev. 1. Add. 1
26. Legal Resources Foundation v. Zambia Communication 211/98, Decision of the Af/CmHPR, 29th Ordinary Session, April/May 2001 [2001] IIHRL 1 (May 2001).
27. L. Rehof, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, Dordrecht, 1993.
28. J. Connors, “The women's convention in the Muslim world”, in J. Gardner (ed.), Human Rights as General Norms and a State's Right to Opt Out, London, 1997, 85. For the reservations, see .
29. African Protocol on Women's Rights, 2003, art. 2(1)(d).
30. See also CEDAW General Recommendation No. 25 on Temporary Special Measures, CEDAW/C/2004/WP.1/Rev. 1.
31. Guido Jacobs v. Belgium, Communication No. 943/2000 CCPR/C/81/D/943/2000.
32. African Protocol on Women's Rights art. 9(1).
33. J. Foster, S. Makanya and G. Mutukwa (eds.), Women in Politics and Decision Making in Southern Africa, Harare, 1999.
34. See also CEDAW arts. 7 and 8, General Recommendation No. 23 on Women in Public Life, UN Doc.A/52/38/Rev.1 para. 4(1).
35. African Protocol on Women's Rights art. 2(2).
36. See also R. Holtmaat, Towards Different Law and Public Policy: The Significance of Article 5 (a) CEDAW for the Elimination of Structural Gender Discrimination, The Hague, 2004.
37. But see C. Beyani, “Toward a more effective guarantee of women's rights in the African human rights system”, in R. Cook (ed.), Human Rights of Women: National and International Perspectives, Philadelphia, 1994, 285.
38. African Protocol on Women's Rights art. 3(1).
39. C. Chinkin, “Gender inequality and human rights law”, in A. Hurrell and N. Woods (eds.), Inequality, Globalisation and World Politics, Oxford, 1999, 95 at 105
40. Human Rights Committee General Comment No. 28 on Equality of Rights between Men and Women art. 3 (29 March, 2000) CCPR/C/21/Rev.1 Add.10.
41. Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriage General Assembly Resolution 1763A (XVIII) of 7 November, 1962.
42. ICCPR art. 23
43. Human Rights Committee General Comment No. 19 on Protection of the Family, the Right to Marriage and Equality of the Spouses (art. 23) (39th session, 1990) HRI/GEN/1/Rev.7.
44. African Protocol on Women's Rights art. 6(a).
45. African Protocol on Women's Rights, art. 6(b).
46. See also African Charter on the Rights and Welfare of the Child, 1990, available at art. 21(2).
47. African Charter on the Rights and Welfare of the Child, art. 6(d).
48. See the documentary film on Ethiopia by G. Barnes and L. Paton, The Child Brides [documentary film], London, 1998.
49. See also Forum on Marriage and the Rights of Women and Girls, Early Marriage: Whose Right to Choose? London, 2000.
50. See, e.g., the South African Recognition of Customary Marriages Act, 1998 (Act 120 of 1998) ss. 4(1), 4(9).
51. Aumeeruddy Cziffra v. Mauritius (2000) A.H.R.L.R. 3 (HRC 1981)
52. Rattigan and Others v. Chief Immigration Officer and Others 1994 (2) Z.L.R. 287 (SC)
53. Salem v. Chief Immigration Officer 1994 (2) Z.L.R. 287 (SC)
54. A. Gubbay, “The effect of the deportation of alien husbands upon the constitutionally protected mobility rights of citizen wives in Zimbabwe”, in United Nations, Bringing International Human Rights Law Home, New York, 2002, 116
55. Human Rights Committee General Comment No. 19, above n. 35, at paras. 5 and 7
56. Human Rights Committee General Comment No. 28, above n. 33, at para. 26.
57. African Protocol on Women's Rights art. 6(h).
58. This position echoes the arguments made on behalf of the government of Botswana in Unity Dow v. Attorney General of Botswana [1991] L.R.C. 574.
59. See Vienna Convention on the Law of Treaties, 1969, 1155, UNTS, 331 art. 27.
60. Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (as adopted by the Meeting of Government Experts in Addis Ababa on 16 November, 2001) 22 November, 2001, CAB/LEG/66/6/Rev.1.
61. African Protocol on Women's Rights art. 6(c).
62. A. An Na'im, Islamic Family Law, London, 2003.
63. C. Mackinnon, Towards a Feminist Theory of the State, Cambridge, 1989, 217.
64. African Protocol on Women's Rights art. 7(d).
65. African Protocol on Women's Rights.
66. C. Nyamu-Musembi, “‘Sitting on her husband's back with her hands in his pockets’: commentary on judicial decision making in marital property cases in Kenya”, in A. Bainham (ed.), International Survey of Family Law 2002, Bristol, 2002, 229.
67. African Protocol on Women's Rights art. 13(h).
68. See also CEDAW General Recommendation No. 21 on Equality in Marriage and Family Relations, UN Doc a/49/38 paras. 11 and 12
69. Zimbabwe Matrimonial Causes Act (Cap. 5:13) s. 7(3).
70. African Protocol on Women's Rights art. 21(1).
71. Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (as adopted by the Meeting of Ministers, Addis Ababa, Ethiopia, 28 March, 2003) MIN/WOM/RTS/DRAFT.PROT. (II) Rev.5.
72. Nzekwu v. Nzekwu [1989] 2 N.W.L.R. 373
73. C. Odinkalu, “Customary law and women's inheritance rights in Commonwealth Africa”, (2000) 13 Interights Bulletin 39
74. U. Ewelukwa, “Post-colonialism, gender, customary injustice: widows in African societies”, (2002) 24 H.R.Q. 424
75. Magaya v. Magaya 1999 (1) Z.L.R. 100
76. Bhe v. Magistrate Khayelitsha and Others 2005 (1) B.C.L.R. 1 (CC)
77. discussed by E. Grant, “Human rights, cultural diversity and customary law in South Africa”, (2006) 50 (1) J.A.L. 2.
78. African Protocol on Women's Rights art. 20(a). See also art. 3 on the right to dignity and the definition of harmful practices in art. 1(g).
79. African Protocol on Women's Rights, art. 20(c).
80. African Protocol on Women's Rights, art. 20(b).
81. However, the Committee has tried to make up for this by use of General Recommendations. See General Recommendation No. 12 on Violence against Women, UN Doc A/44/38
82. CEDAW General Recommendation No. 19 on Violence against Women, UN Doc A/47/8.
83. SADC Addendum on Violence, above n. 19.
84. African Protocol on Women's Rights art. 1(j). Cf. CEDAW General Recommendation No. 19, above n. 62, para. 6
85. UN Declaration on the Elimination of Violence against Women, 1993, above n. 17, art. 1.
86. African Protocol on Women's Rights art. 3(4).
87. African Protocol on Women's Rights, art. 4(2)(a).
88. African Protocol on Women's Rights, arts. 4(d)-(f).
89. Velasquez Rodriguez v. Honduras (1989) 28 International Legal Materials 291.
90. CEDAW General Recommendation No. 19, above n. 62, para. 9.
91. African Protocol on Women's Rights arts. 12(1) (c) and 13(c) (d).
92. See also CEDAW General Recommendation No. 19, above n. 62, paras. 17, 18.
93. CEDAW General Recommendation No. 19, art. 12(1)(c).
94. Human Rights Watch, Borderline Slavery: Child Trafficking in Togo, London, 2003.
95. CEDAW General Recommendation No. 19, above n. 62, para. 14.
96. ECOWAS Declaration A/DC/12/12/01 on the Fight against Trafficking in Persons, 25th Ordinary Session of Authority of Heads of State and Government, Dakar, 20–21 December, 2001.
97. African Protocol on Women's Rights art. 4(g).
98. African Protocol on Women's Rights, arts. 22–24.
99. African Protocol on Women's Rights, arts. 22(b) and 23(b).
100. African Protocol on Women's Rights, art. 13(m).
101. See Banda, above n. 15, 207–218.
102. African Protocol on Women's Rights art. 1(g).
103. See also African Charter on the Rights and Welfare of the Child art. 21(1)
104. CEDAW General Recommendation No. 19, above n. 62, paras. 11 and 12
105. CEDAW General Recommendation No. 24 on Health, UN Doc A/54/38/Rev.1. paras. 12(b) and 15(d).
106. African Protocol on Women's Rights arts. 2(1)(b) and 5(b).
107. African Protocol on Women's Rights arts, art. 2(2).
108. African Protocol on Women's Rights arts, art. 5(d).
109. African Protocol on Women's Rights arts, art. 5(c).
110. See also General Assembly Declaration on the Elimination of Violence against Women, above n. 17, art. 4.
111. African Protocol on Women's Rights art. 10(1).
112. Security Council Resolution 1325 on Women, Peace and Security, S/RES/1325 (2000). Adopted by the Security Council at the 4213th Meeting on 31 October, 2000. Reference to SC 1325 is also made in the preamble to the African Protocol on Women's Rights.
113. African Protocol on Women's Rights art. 10(2) (b) (e).
114. African Protocol on Women's Rights arts, art. 10(2) (c) (d). See also art. 4(k).
115. International Conference on Population and Development, Cairo (18 October, 1994), UN Doc. A/CONF. 171/13 (ICPD).
116. International Conference on Population and Development, para. 7:3.
117. African Protocol on Women's Rights art. 14(1) (a).
118. International Conference on Population and Development, art. 14(1) (c). Resource implications mean that women's choices will perforce be constrained by what is available in the national health systems.
119. International Conference on Population and Development, art. 14(1) (d).
120. International Conference on Population and Development, art 14(1) (e).
121. Committee on Economic Social and Cultural Rights General Comment No.14 (2000) on the Right to the Highest Attainable Standard of Health (Art. 12 of the ICESCR) (11 August, 2000) E/C.12/2000/4 para. 12.
122. African Protocol on Women's Rights art. 14(2) (a).
123. See also CEDAW General Recommendation No. 24 on Health, UN Doc A/54/38/Rev.1.
124. The two “extremes” being abortion on demand or an outright ban on abortion. R. Cook and B. Dickens, “Human rights dynamics of abortion law reform”, (2003) 25 H.R.Q. 1.
125. The Constitutional Court of South Africa threw out a challenge brought by a Christian group which argued that the country's liberal abortion laws enacted in the Choice on Termination of Pregnancy Act (Act No. 92 of 1996) violated the constitutional guarantee of a right to life. Christian Lawyers Association of South Africa v. The Minister of Health (1998) 4 S.A. 1113 (CC).
126. African Protocol on Women's Rights arts. 14–21.
127. See also C. Nyamu, “The international human rights regime and rural women in Kenya”, (2000) 6 East African Journal of Peace and Human Rights 1
128. “Montreal Principles on Women's Economic, Social and Cultural Rights”, (2004) H.R.Q. 760
129. Committee on Economic Social and Cultural Rights General Comment No. 16 (2005) art. 3, The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (13 May, 2005) E/C.12/2005/3.
130. African Protocol on Women's Rights art. 15(a).
131. See L. Wanyeki (ed.), Women and Land in Africa, London, 2003
132. Women and Law in Southern Africa Research Trust (WLSA), A Critical Analysis of Women's Access to Land in the WLSA Countries, Harare, 2001
133. CEDAW art. 14(2) (g) CEDAW General Recommendation No. 16 Unpaid Women Workers in Rural and Urban Family Enterprises, UN Doc. A/46/38.
134. D. Elson, “Gender, justice, human rights and neo-liberal economic policies”, in M. Molyneaux and S. Razavi (eds.), Gender, Justice, Development and Rights, Oxford, 2003, 78 at 102–103.
135. Communal Land Rights Act, 2004 (No. 11 of 2004), ss. 22(3), 22(4).
136. Communal Land Rights Act, s. 4(3).
137. See also CEDAW art. 14(2) (g).
138. CEDAW art. 14(2) (a) and 14 (2) f)
139. African Protocol on Women's Rights, preamble and arts. 9(1) (c), 18(2) (a), 19(b) and 19(e).
140. See also World Bank, Engendering Development Through Gender Equality in Rights, Resources and Voice, Washington, D.C., 2001
141. B. Hamm, “A human rights approach to development”, (2001) 23 H.R.Q. 1005, 1018.
142. African Protocol on Women's Rights art. 13(e).
143. African Protocol on Women's Rights art, art. 14(2) (a).
144. See Communication 155/96 The Social and Economic Rights Center and the Center for Economic and Social Rights v. Nigeria, 2001–2002, Annex V
145. G. Bekker, “The Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria”, (2003) 47 J.A.L. 126 at 129–130.
146. African Protocol on Women's Rights art. 16.
147. See also L. Farha, “Is there a woman in the house? Re/conceiving the human right to housing”, (2002) 14 Canadian Journal of Women and Law 118
148. J. Ngwake, “Realizing women's economic, social and cultural rights: challenges and strategies in Nigeria”, (2002) 14 Canadian Journal of Women and Law 142.
149. African Protocol on Women's Rights art. 26(1).
150. African Protocol on Women's Rights art, art. 27.
151. See also African Protocol on Women's Rights art, art. 26 (2).
152. See CEDAW, “Statement on reservations to the Convention on the Elimination of All Forms of Discrimination against Women adopted by the Committee on the Elimination of Discrimination against Women”
153. reproduced in UN, IWRAW, Commonwealth, Assessing the Status of Women: A Guide to Reporting Under the Convention on the Elimination of all Forms of Discrimination against Women, London, 2000, 90.
154. A.N. Kithaka, “Smile, woman of Africa, smile”, (234) Pambazuka News at .
155. H. Charlesworth, C. Chinkin and S. Wright, “Feminist approaches to international law”, (1991) 85 American Journal of International Law 613
156. H. Charlesworth, “Human rights as men's rights”, in J. Peters and A. Wolper (eds.), Women's Rights, Human Rights: International Feminist Perspectives, London, 1995.
157. X. Fellmeth, “Feminism and international law: theory, methodology and substantive reform”, (2000) 22 H.R.Q. 658.