Makhethe Makamase
On 11 July 2023, the African Union (AU) Protocol on the African Charter on Human and People's Rights (ACHPR) on the Rights of Women in Africa, also known as the Maputo Protocol, commemorates 20 years since its adoption. While there has been significant progress in women's peace and security (WPS), this critical instrument risks remaining a mere piece of paper until it is effectively implemented. The implementation challenges are particularly evident in the resistance of certain member states, the failure to domesticate the instrument, the lack of transformation at the grassroots level, and, most importantly, the indecisiveness of decision-makers in ensuring its implementation and putting evaluation mechanisms in place.
By providing a background, the Maputo Protocol was adopted to complement the ACHPR of 1981, which recognised the discrimination against women but was not enough to protect their rights. African women and civil society organisations lobbied for approximately eight years for AU heads of state to acknowledge and act on the continuity of violence, inequalities and discriminatory practices entrenched in African cultures and societies. These continued to deny and overlook the rights of women and girls actively. The treaty was adopted on 11 July 2003 by AU member states in Maputo, Mozambique, and came into force in 2005. It is a key instrument in the protection and reinforcement of the rights of women (including girls), crucial in realising sustainable peace on the continent. The protocol is cognizant of the continuity of violence against women and children in various traditional and non-traditional definitions of violence and conflict. It constitutes a fitting response in ensuring women's rights, demands member states' accountability, and evaluates member countries' performance in enforcing the instrument. As of 2023, the treaty has been ratified by forty-four states out of fifty-five member states. Elven countries yet to ratify include Botswana, Burundi, Central African Republic, Chad, Egypt, Eritrea, Madagascar, Morocco, Niger, Somalia, and Sudan.
Despite some significant strides, critical challenges clearly remain. For over twenty years, women's rights and provisions to ensure them still lack solidarity, even at the AU level. The support for women's rights and gender equality remains opposed. This is demonstrated by the eleven member states that have not ratified the Maputo Protocol. This helps us understand that, even on critical issues like women's rights and gender equality, the continent is pulling in divergent directions. Common among these countries, Botswana, Sudan, Egypt, and Eritrea, for instance, are authoritarian tendencies and human rights violations, including unjustified arrests, prosecutions or suppressed freedom of expression. It is, therefore, evident that the progress gained in the last twenty years was against insurmountable odds. Thus, the reluctance of these member states poses a considerable risk to progress.
With regards to domesticating the Maputo protocol, Mozambique, for instance, has, over the last twenty years, developed and adopted policies and legal frameworks aligned to regional and international human rights instruments. These include the Constitution of 2004, the Family Law of 2004 and the Land Law of 2007. These efforts alone have been insufficient, as the country presents alarming gender inequalities and discrimination. This is especially true in peripheral and rural areas where most of the population resides. The rural-urban divide is one of Mozambique's deepest challenges, and policies are not as effectively enforced in rural and periphery areas compared to urban centres. This gap connotes weaknesses in governance, policy formulation and implementation, especially in areas under customary laws. Women in these areas do not have equal rights to men, even in property rights, including land, buildings, vehicles and other assets. These entrenched societal customs exist despite years of civil war where women broke out of patriarchal control and took up male responsibilities when men went to war frontlines and as active agents and combatants in the war. Another challenge excreting pressure on Mozambique is the Cabo Delgado crisis, where violent and non-violent forms of gender-based violence (GBV), including forced marriages, rape, abductions and intimate partner violence, have increased. Therefore, the response and post-conflict recovery have to place women at the centre while the country works towards empowering and protecting women's rights.
In the case of South Sudan, the full ratification of the Maputo Protocol took place in June 2023, after ten years of advocacy by women's movements within and outside South Sudan. Some reservations within South Sudan resulted in the slowed pace of ratification of the protocol. These included concerns over polygamy, the age of marriage for girls, and sexual and reproductive health rights, including abortions. Furthermore, war crimes, including conflict-related sexual violence against women, have remained a challenge since 2013, which is also overlooked by the government. For some, the Hybrid Court led by the AU, as agreed in the 2015/2018 Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), may finally provide an opportunity for action. However, some studies in South Sudan suggest mixed reactions to the court, stating that the Hybrid Court will not aid reconciliation efforts but may reignite conflict.
The lack of transformation at the grassroots level relates to the point of domestication. The case of Mozambique and South Sudan, which is common across the continent, is that the people maintain traditional customs that entrench inequalities. Whether influenced by political or religious ideologies. Issues concerning reproductive rights and marital rape may be clearly criminalised under the law, but institutions meant to guard against this fail to implement laws decisively. This is, in turn, a function of the larger problem, where decision-makers themselves absolve their responsibility.
The Maputo protocol's ability to effect change, particularly at the grassroots level, depends largely on 'the people' being truly committed to social and gender justice. In sum, the signing of treaties, without effective implementation, will remain an exercise in futility. Actionable commitment from decision-makers dwindles over time; this could be mitigated by putting an evaluation mechanism in place to ensure continuous grassroots engagement. The role played by civil society will remain crucial in lobbying and exerting pressure on governments and other actors to accord meaning to this vital instrument.
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