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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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