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CHALLENGES OF
DOMESTICATION:
THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN
AND PEOPLE’S RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA
Sarah Mukasa (Sept. 2005)
Once 15 African countries have ratified The Protocol To The African Charter On
Human and Peoples' Rights On The Rights of Women in Africa, its provisions
will have to be included in country-level legislation. This is the next
challenge facing the Solidarity for African Women’s Rights Campaign, says
Sarah Mukasa, who assesses some of the potential stumbling blocks inherent in
the domestication process. “It is imperative that strategies adopted for
this campaign take into account
these factors and prepare for the resistances that will surely come,” she
warns.
To date, 13 member states of the African Union have ratified The Protocol To
The African Charter On Human and Peoples' Rights On The Rights of Women in
Africa. This is in spite of the undertaking made by the Heads of State in the
African Union Solemn Declaration on Gender Equality in Africa, July 2004.
Commitment was made to sign and ratify the protocol by the end of 2004. This
is indicative of the measure of political will there is to address
substantively the rights of women on the continent. The disconnect between
pronouncements made at regional level, and the action taken at national and
local levels, demonstrates that the road to domestication and implementation
is riddled with challenges that will have to be overcome if the protocol is to
be of benefit to the women it seeks to protect. Activists must be at the
forefront of the efforts to domesticate this protocol. This brief article will
attempt to contribute to this process by assessing a number of possible
challenges that will come with the campaign for domestication. It will do this
by presenting a synoptic view of the response to women’s empowerment
initiatives in the past, at government and community levels.
The main challenge is at the level of the patriarchal state. Engaging the
state on women’s rights has been an extremely difficult struggle with
varying degrees of success. Historically, the state has been at worst hostile
and at best extremely slow to respond to advancing the rights of women. It has
entrenched this practice with a regime of discriminatory laws and policies.
Even in those countries that have managed to enshrine the principles of
equality and non-discrimination in the supreme law, the Constitution, the
process of domestication, that is of aligning and framing national laws to
reflect these principles, has been wanting. For example, in Uganda, in spite
of an extremely progressive constitution, efforts to effect a law that
protects the rights of women in marriage, separation and divorce, has for over
40 years yielded no results. Similarly, given our governments’ past record
for on the whole failing to honour internationally agreed standards, there is
little reason to believe that the protocol will be regarded any differently.
The protocol, which seeks to commit states to protect the rights of women in
Africa on the political, social, cultural and economic fronts, is the only
regionally generated standard to address the specificity of women’s
oppression. It is thus critical that African governments apply this standard
at national and local levels. In addition, given that it addresses many of the
context specific violations, its application throughout the continent would go
a long way to ensure that women are able to exercise their rights. However, it
is because the protocol seeks to redress the power equation in gender
relations, and to significantly alter the status quo that resistance to it on
all levels is to be expected.
There is no doubt that advancements have been made on the continent for
African women, the most significant of which has been increasing access for
women and girls into the public space, especially local and national politics,
education, the business sector and so on. Similarly there has been much
initiative at policy level to take into account the interests of women and
other marginalised groups. However, this investment has not translated into a
fundamental change for the better for the vast
majority of African women. Moreover, these gains come against a backdrop of
other developments that stand to put these gains and all future work to
domesticate the protocol in jeopardy. These include:
a) Weak institutional mechanisms for implementation. This in particular
refers to government gender machinery. Most governments have established
machinery, either in the form of ministries or departments, to oversee
government initiatives for the empowerment of women. However, at the recent
review in Addis Ababa in October 2004 of the Beijing Declaration and Platform
for Action, 10 years after it was agreed, there was considerable concern
raised about these machineries’ performance. In
particular, it was noted that their capacities to spearhead the women’s
rights agenda are extremely limited due to severe (and in many cases
disproportionate) cuts in budget allocation and human resources. Given that it
is this machinery that will be largely responsible for monitoring the process
of domestication and also implementation of the protocol, it is of major
concern that it will not be in a position to do so effectively.
b) The slow process of change. This is particularly at legislative and
policy levels. Different countries have different legal regimes. As a general
rule, those countries that have inherited the French legal
system have some advantage. For under these systems, ratification of the
protocol automatically qualifies it as national law. However those of the
British system have to undergo a process in which national parliaments effect
a law that meets the agreed standard. If the past example of CEDAW is anything
to go by, many of the countries that have ratified CEDAW have so far failed to
incorporate these standards in national law. This is further complicated by
the existence of dual legal systems in much of Africa. In most African
countries, the existence of customary and religious law on the one hand and
statutory law on the other often means that women’s rights are compromised.
When drawing up laws on matters relating to women’s rights, often customary
and religious law is given precedence. The protocol which seeks to challenge
discriminatory cultural practice is likely to meet with highly organised
resistance therefore, and actually be undermined as a result of this duality
of legal systems.
c) The failure to promote the culture of Constitutionalism and respect
for the rule of law has serious implications for the domestication of the
protocol. Recent developments in a number of countries such as Uganda,
Ethiopia, Togo, Zimbabwe and Chad indicate a direct correlation between the
failure of governments to respect the rule of law and to protect the human
rights of citizens. As governments subvert Constitutions and compromise the
rule of law in order to entrench their power bases, so too do cases of
increased arbitrary detentions, curtailing media freedoms, harassment of
political opponents and so on. The state apparatus is used to clamp down on
rights and also to silence the voices of dissent. In these instances, the
priority will not be to implement laws and regulations that promote rights,
particularly those of women.
d) As with CEDAW, the political agency of the protocol is likely to be
undermined through the practice of ratifying it with reservations. Where a
government enters reservations on a particular provision, it is in effect
absolving itself of the responsibility to implement the provision. A number of
the countries that have hitherto ratified the protocol have done so with
reservations. It is feared that in particular those articles dealing with
reproductive and sexual rights, will be compromised in this way.
Other environmental factors that will have an impact on this campaign include:
e) The increase in insecurity and conflict in much of Africa and its
effect on women and girls. Whilst the protocol seeks to protect women in
conflict, the citizenry’s ability to effect change of this kind is
severely weakened in the context of conflict and insecurity. The collapse of
law and order systems, the break down and dispersal of communities and support
networks, and the struggle just to survive makes it virtually impossible to
implement these or any other kinds of measures.
f) The growing marginalisation of Africa as a result of globalisation
fuelled by market led growth strategies. Africa’s size in global market
share is shrinking. The inequitable competition for market share (since
government subsidies in northern economies are still firmly intact), means
that Africa will continue its downward slide in gaining access to western
markets. Together with the reduction of the role of the state in welfare
provision, the plight of poor women in particular will continue to be a major
challenge. With regards to the protocol, weak state structures, with reduced
revenues, especially in the law and order sector (police and other law
enforcement agencies), are less able to address these needs. Given that
considerable investments in terms of finance are required for the effective
application of the protocol, this development should be a cause for major
concern.
g) Current global policy. The terrorist attacks of September 11th 2001
in New York marked a period of drastic change in global policy. This incident
marked a paradigmatic shift from safeguarding and promoting human rights to
fighting terrorism. Global politics has become highly militarised, and the
subtext to this shift is that respect for basic human rights principles can
and will be compromised in the interest of fighting terrorism. This has had a
knock on effect, with the growing intolerance for progressive thinking, ideas
and development programmes. Women’s empowerment initiatives, particularly
those aimed at strategic levels, such as the campaign for the domestication of
the protocol, are especially endangered. Resources and support allocated to
these kinds of programmes has been on the decline.
At the level of the community, there are number of challenges that are to be
expected. These include:
h) A lack of awareness, especially at local levels, of the protocol and
what it seeks to address. This suggests a general apathy and ambivalence by
much of society for initiatives of this kind. Since one of the most effective
ways to effect change is to have a critical mass of public support, this
aspect of the campaign for the domestication of the protocol cannot be ignored.
Since the protocol seeks to protect in particular those women especially
vulnerable to violations, it is imperative that efforts to engage them in the
process are strengthened.
i) The significant increase in religious fundamentalism and
conservatism will seriously threaten the campaign for the domestication of the
protocol. There is an increasing resistance to progressive measures to protect
the rights of women. The protocol aims to promote a number of measures which
for some time have been resisted in a number of national and local contexts.
In particular those aspects prohibiting harmful traditional and cultural
practices, that seek to promote sexual and reproductive rights and property
ownership rights, are likely to be contentious. As part of the campaigning
process, our nets should be cast wider to make strategic alliances with some
of the more progressive but influential cultural and religious authorities, in
order to circumnavigate this resistance.
Discussed above has been the challenges that are likely to impact on the
campaign for the domestication of the protocol. It is imperative that
strategies adopted for this campaign take into account these factors and
prepare for the resistances that will surely come. It is critical that our
networking, support and information sharing capacities are enhanced in order
that collectively we can address the resistance. A multi pronged approach is
required in which community mobilisation strategies are strengthened with, for
example the use of non-traditional methods such as the arts and popular
culture. In addition, we must strategically incorporate documentation and
research initiatives which highlight the economic and social dividends accrued
from the domestication of the protocol. The significant advantage that the
protocol has is that is an instrument that was generated in Africa by Africans.
It came out of the lived experiences of women in Africa. It should be
highlighted that our
governments actually formulated this instrument, working hand in hand with
civil society in order to improve the quality of life of half of the
continent’s population.
Sarah Mukasa is Programmes Manager
for the East and Horn of Africa at
Akina Mama wa Afrika
Please send comments to editor@pambazuka.org
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