Larisse Prinsen
Being a woman in Africa is tough, and as the Sotho idiom goes, 'mosadi o tshwara thipa ka bogaleng' - a woman holds the knife at the sharp end. With the undeniable challenges faced by women on this continent, such as gender-based violence, period poverty, the burden of unpaid care work, forced marriage, and higher levels of unemployment, to name but a few, it is easier to be disheartened than to be hopeful that change and progress could come. But perhaps that is precisely why we need to look not at everything that has gone and is going wrong but at what has gone right, what progress has been made and what victories we as women have won.
This year, 2023, marks the twentieth anniversary of the adoption of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, or then, the Maputo Protocol, the first ever human rights instrument dedicated to protecting African women's rights. Adopting the Protocol itself and its ratification by more than forty of the fifty-five African nations is already a big step forward in improving the lives of African women. Despite progress in the domestication and implementation of the Protocol, many countries have resisted its full integration. Even countries that have incorporated the Protocol into domestic law are lacking in adhering to its requirements, with twenty-four of the ratified State Parties failing to fulfil their reporting duties to the African Commission of Human and Peoples' Rights.
Before the adoption of the Protocol, gender inequality was rampant across Africa, and women often faced discrimination, which included being denied access to education, employment or property rights. Legally, women were left unprotected as many African countries did not provide for protection or even recognition of the right of women to divorce or inheritance and laws surrounding domestic violence favoured men. Many countries followed cultural and traditional practices that contributed to women's subordination, such as genital mutilation and child marriages. Specific geopolitical challenges also existed, such as conflicts, economic disparities and post-colonial struggles ranging from political upheavals, leadership and governance instability and social inequality.
The adoption of the Maputo Protocol created new ground for women's rights within the African regional human rights framework. The Protocol may be distinguished from other existing international women's rights instruments as it explicitly refers to various fundamental rights that have been greatly neglected in protecting and promoting women's rights. For example, the Protocol refers to protecting women from violence, the right to self-protection and protection against sexually transmitted infections, the right to control their fertility and widowhood rights. Some rights also provided for by other women's rights international instruments are elaborated on and given more context, such as eliminating harmful practices and protecting women from armed conflict.
This Protocol further brings hope and benefits African women in that it provides for core human rights of women by addressing discrimination by compelling state parties to take appropriate legislative, institutional or other measures to address gender biases which promote inequality; it recognises and promotes women's rights to dignity and calls on state parties to protect women from violence as well as exploitative or degrading actions; women's rights to life, integrity and security of the person is guaranteed while requiring state parties to prohibit all forms of exploitation, cruel, inhuman or degrading punishment and treatment; the Protocol is instrumental in promoting women's access to justice and equal protection before the law since it requires state parties to take proper measures to ensure effective access to judicial and legal services. The Protocol demands that remedies be available to women whose rights have been infringed.
The Protocol also advocates women's participation in political and decision-making processes by promoting affirmative action and increased representation; it affords the right to a peaceful existence and to the right to participate in the promotion and maintenance of peace; it promotes women's right to protection during armed conflicts and aims to development and uphold the rights of vulnerable groups of women which includes widows, the elderly, disabled women and those in distress.
Despite the promise of improving the lives of African women, the Protocol has not eradicated all forms of suffering women and girls face. Research has shown a rise in instances of femicide in South Africa and the Democratic Republic of Congo. A 2018 World Health Organization survey found that sixty-five per cent of women in Central Africa and forty per cent in West Africa have been victims of violence. Unfortunately, these are best-case statistics and do not truly reflect the magnitude of the problem, as, for example, other studies have found that ninety-nine per cent of rape victims in Niger do not seek justice. According to the United Nations Gender Inequality Index, many sub-Saharan states still show disproportionate male dominance. Studies have shown that female genital mutilation is still rife on the continent, with ninety-seven per cent of women in Guinea, twenty-five per cent of Senegalese women, seventy-three per cent of girls under the age of fourteen, and eighty-nine per cent of women between fifteen and forty-nine in Mali being subjected to this practice. In Sierra Leone and Liberia, these practices have still not been criminalised. In Chad, sixty per cent of girls marry before the age of eighteen.
Internalised gender stereotypes have not improved, with sixty per cent of women in Niger agreeing that it is acceptable for a husband to beat his wife if she does not have sex with him or argues with him, and thirty-five per cent of women agree that a beating is acceptable when a wife burns her husband's food.
Even more, Niger still has high rates of child marriage. Kenya and Malawi still ban pregnant students from public schools. While Tanzania has removed this discriminatory school ban, regulations have been kept in place allowing schools to expel students who have 'entered into wedlock'. This, while the government has not criminalised child marriage. Many similar atrocities exist, but it is not the purpose of this piece to dwell on these failings, but rather to celebrate the instances where the Protocol has made a change for the better.
What may be seen as the reason to have hope is that the Protocol has led to real-life steps forward and victories for African women. It has been instrumental in getting pregnant girls back into school by having a ban to this effect lifted in Sierra Leone in 2019. In 2018, the African Commission on Human and Peoples' Rights used the Protocol to find that Ethiopia had failed to protect a thirteen-year-old girl who had been abducted and raped, rescued, abducted again, and forced into marriage with the perpetrator. In 2016, it was instrumental in setting the age of marriage in Tanzania at eighteen. Before this, in 2011, the Protocol was used to protect women and girls in Mali by establishing a minimum age of marriage, requiring consent to marriage and providing for the right to inheritance. Here in South Africa, the Constitutional Court declared sections of the Black Administration Act discriminatory and set a precedent for equality in inheritance rights, bringing this field of law in line with the Protocol.
Additionally, the Protocol has held Kenya accountable for not investigating and failing to prosecute sexual and gender-based violence, which followed their elections in 2007. It has also protected women from female genital mutilation in Uganda. The Protocol has further aided in holding Egypt accountable for similarly not investigating violence against women during demonstrations in 2005. It is also why Nigeria was held accountable for unlawful detention of women between 2011 and 2013.
Despite all these amazing victories, we still have a long way to go in ensuring women's equality, dignity and safety in Africa. Luckily, we have the right tool to do so, but we need better application and adherence to it. It is imperative that the remaining African nations ratify, accede to, and implement this Protocol. Only then will we be able to eradicate many of the woes faced by African women. Only then can we put down the knives.
Let us all have hope.
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