Anniversary of the Maputo Protocol: Crossing the Rubicon Toward Expansion of Rights Assurances of (Invisible) Women Deprived of their Liberty in African Prisons

Marie Claire van Hout; Jakkie Wessels

doi:10.25159/2522-6800/13839

Authors

Marie Claire van Hout Liverpool John Moores University https://orcid.org/0000-0002-0018-4060
Jakkie Wessels Regional Court President of the Limpopo Regional Division in Limpopo https://orcid.org/0000-0003-0843-157X

DOI:

https://doi.org/10.25159/2522-6800/13839

Keywords:

Maputo, prison

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Author Biographies

Marie Claire van Hout, Liverpool John Moores University

Marie Claire Van Hout is Professor of International Public Health Policy and Practice at Liverpool John Moores University, United Kingdom. She is dual qualified to doctoral level in both Public Health and in International Human Rights Law. She has 20 years global health research and project evaluation experience focusing on health inequalities and the human rights of marginalised communities of people who use drugs, sexual minorities and people who live in prisons. She regularly consults for UNODC, UNAIDS and the Council of Europe-Pompidou Group; and works mainly in Europe, the Middle East and North Africa, and in sub-Saharan Africa.

Jakkie Wessels, Regional Court President of the Limpopo Regional Division in Limpopo

Jakkie Wessels is the Regional Court President of the Limpopo Regional Division in Limpopo, South Africa. She has 20 years’ experience as a judicial officer in the Regional Court and has 25 years’ experience in training and development of training material, for justice stakeholders in Southern Africa, including as gender expert for the United Nations Office on Drugs and Crime.

References

Ackerman M, 'Women in Pre-trial D¬¬¬etention in Africa' (Civil Society Prison Reform Initiative (CSPRI), 2014) accessed 13 June 2014.

African Commission on Human and Peoples' Rights (ACoHPR), 'Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa' (The Gambia: African Commission on Human and Peoples’ Rights, 2023) accessed 13 June 2023.

African Commission on Human and Peoples' Rights, 'Resolution on Conducting a Study on Prisons and Conditions of Detention in Africa - ACHPR/Res.557 (LXXV) 2023' (African Commission on Human and Peoples' Rights (ACoHPR) 15 June 2023) <https://achpr.au.int/en/adopted-resolutions/557-resolution-conducting-study-prisons-and-conditions-detention> accessed 18 June 2023.

African Commission on Human and Peoples' Rights, 'Resolution on Prisons and Conditions of Detention in Africa - ACHPR/Res.466(LXVII) 2020' (African Commission on Human and Peoples' Rights (ACoHPR) 29 December 2020) accessed 13 June 2023.

African Commission on Human and Peoples' Rights, 'The Robben Island Guidelines Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa' (The Gambia: African Commission on Human and Peoples' Rights, 2008) accessed 13 June 2023.

African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 'General Comment No. 1 on Article 30 of the ACRWC: Children of Incarcerated and Imprisoned Parents and Primary Caregivers' (ACERWC, 8 November 2013) accessed 13 June 2023.

African Union, 'Maputo Protocol on Women's Rights: A Living Document for Women's Human Rights in Africa. Submitted by the Women, Gender and Development Directorate (WGDD) of the African Union Commission' (African Year of Human Rights with a focus on the Rights of Women, 2016) <31520-doc-maputo_protocol_on_womens_rights_a_living_document_for_womens_human_rights_in_africa_submitted_by_the_women_gender_and_development_directorate_wgdd_of_the_african_union_commission.pdf (au. int)> accessed 13 June 2023.

African Union, 'Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa' (African Union, 11 July 2003) accessed 13 June 2023.

Agomoh U, 'Assessment and Treatment of Female Prisoners in Africa' Resource Material Series No 94 (UNAFEI Fuchu, 2014) www.unafei.or.jp/publications/pdf/RS_No94/No94_VE_Agomoh1.pdf> accessed 13 June 2023.

Amnesty International, 'Punished for Being Poor. Unjustified, Excessive and Prolonged Pre-Trial Detention in Madagascar' (Amnesty International, 2018) accessed 13 June 2023.

Cordua I, 'Woman Wahala na Prison. Causes and Consequences of Women's Imprisonment in Sierra Leone' (The Cyrus R Vance Centre for International Justice and Advocaid, 2020) accessed 13 June 2023.

D'Orsi C, 'Are African States Willing to Ratify and Commit to Human Rights Treaties? The Example of the Maputo Protocol' in Revue Quebecoise de droit international, Hors-serie juin 2021 - State Compliance with International Human Rights Law: State-of-the-art, Improvement and Challenges' (Persee, 2021) accessed 13 June 2023.

European Court of Human Rights, 'Kampala Declaration' (ECHR, 2019) accessed 13 June 2023.

Gadama L, Thakwalakwa C, Mula C, Mhango V, Banda C, Kewley S, Hillis A, Van Hout MC, 'Prison Facilities were not Built with a Woman in Mind: An Exploratory Multi-Stakeholder Study on Women's Situation when Incarcerated in Contemporary Malawi Prisons' (2020) 16 (3) International Journal of Prisoner Health <https://doi.org/10.1108/ijph-12-2019-0069> DOI: https://doi.org/10.1108/IJPH-12-2019-0069

Hitayezu C, 'Rwanda to Release 50 Women Jailed for Having Abortions' (The Guardian, 21 May 2020) accessed 13 June 2023.

Low A, Gummerson E, Schwitters A, Bonifacio R, Teferi M, Mutenda N, Ayton S, Juma J, Ahpoe C, Ginindza C, Patel H, Biraro S, Sachathep K, Hakim AJ, Barradas D, Hassani AS, Kirungi W, Jackson K, Goeke L, Philips N, Mulenga L, Ward J, Hong S, Rutherford G, Findley S, 'Food Insecurity and the Risk of HIV Acquisition: Findings from Population-Based Surveys in Six Sub-Saharan African Countries (2016-2017)' (2022) 12(7):e058704 BMJ Open <https://doi.org/10.1136/bmjopen-2021-058704> DOI: https://doi.org/10.1136/bmjopen-2021-058704

Mahtani S, 'The Invisibles: Women on Death Row in Africa' (African Portal, 2018) accessed 13 June 2023.

Mhlanga-Gunda R, Kewley S, Chivandikwa N, Van Hout MC, 'Prison Conditions and Standards Of Health Care for Women and their Children Incarcerated in Zimbabwean Prisons' (2020) 6(3) International Journal of Prison Health <https://doi.org/10.1108/ijph-11-2019-0063> DOI: https://doi.org/10.1108/IJPH-11-2019-0063

Miamingi A, 'The Applicability of the Best Interests Principle to Children of Imprisoned Mothers in Contemporary Africa: Between Hard and Soft Law' (2020) 20(2) African Human Rights Law Journal <https://dx.doi.org/10.17159/1996-2096/2020/v20n2a16> DOI: https://doi.org/10.17159/1996-2096/2020/v20n2a16

Moodley JK, Parry BR, Van Hout MC, 'Incarceration, menstruation and COVID-19: A Viewpoint of the Exacerbated Inequalities and Health Disparities in South African Correctional Facilities' (2022) International Journal of Prison Health [Epub ahead of print] DOI: https://doi.org/10.1108/IJPH-05-2022-0033

Muntingh L, 'Africa, Prisons and COVID-19' (2020) 12(2) Journal of Human Rights Practice accessed 13 June 2023. DOI: https://doi.org/10.1093/jhuman/huaa031

Organization of African Unity (OAU) (1990) 'African Charter on the Rights and Welfare of the Child' (OAU, 11 July 1990) CAB/LEG/24.9/49. <https://www.refworld.org/docid/3ae6b38c18.html> accessed 13 June 2023.

Organization of African Unity (OAU), 'African Charter on Human and Peoples' Rights (Banjul Charter)' (OAU, 27 June 1981) CAB/LEG/67/3 rev 5, 21 ILM 58 (1982) <https://www.refworld.org/docid/3ae6b3630.html> accessed 4 April 2022.

Penal Reform International, 'Global Prison Trends' (Penal Reform International, 2023). accessed 23 June 2023.

Penal Reform International, 'Bangkok Rules: Zimbabwe. Open Prison for Women Promotes Reintegration (Rule 45, Chapter 7)' (Penal Reform International, 2 June 2021) accessed 17 June 2023.

Republic of South Africa, 'Gender-Responsive Correctional Centre Launched' (SA News, 12 December 2022) accessed 17 June 2023.

Sarkin J, 'Prisons in Africa: An Evaluation from a Human Rights Perspective' (2008) 5 Sur-Revista Internacional de Direitos Humanos <http://socialsciences.scielo.org/scielo.php?script=sci_arttext&pid=S1806-64452008000100002&lng=en&nrm=iso> accessed 13 June 2023.

Sithole I, 'Inside or Outside: The Perpetual Dilemma of what Constitutes the Best Interests of Children with Mothers in Prison' (Pambazuka, 2014) <https://www.pambazuka.org/governance/inside-or-outside> accessed 17 June 2023.

Snyman T and Rudman A, 'Protecting Transgender Women within the African Human Rights System through an inclusive reading of the Maputo Protocol and the proposed South African Development Community Gender-Based Violence Model Law' (2022) 33(1) Stellenbosch Law Review <https://doi.org/10.47348/SLR/2022/i1a3> DOI: https://doi.org/10.47348/SLR/2022/i1a3

Solidarity for African Women Rights, 'Maputo Protocol Watch. The Position as of the 8th of June 2023 (Solidarity for African Women Rights, 2023) accessed 13 June 2023.

Southern African Development Community (SADC), 'SADC Model Law of Gender-Based Violence' (SADC, 2021) accessed 13 June 2023.

Southern African Development Community (SADC), 'Consolidated Text of the Protocol on Gender and Development' (SADC, 2016) accessed 13 June 2023.

Special Rapporteur on Violence Against Women, 'Pathways to, Conditions and Consequences of Incarceration for Women' (2013) UN Doc. A/68/340 accessed 13 June 2023.

Telisinghe L, Charalambous S, Topp SM, Herce ME, Hoffmann CJ, Barron P, Schouten EJ, Jahn A, Zachariah R, Harries AD, Beyer C, Amon JJ, 'HIV and Tuberculosis in Prisons in Sub-Saharan Africa' (2016) 388 Lancet <https://doi.org/10.1016%2FS0140-6736(16)30578-5>

The Joint United Nations Programme on HIV and AIDS, 'Update on HIV in Prisons and Other Closed Settings' (UNAIDS, 2021) accessed 13 June 2023.

United Nations, 'Standard Minimum Rules for the Treatment of Prisoners' (United Nations, 30 August 1955) accessed 13 June 2023.

United Nations Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 'Concluding Observations in the Absence of the Initial Report of Nigeria. Committee against Torture' (Report No CAT/ C/NGA/COAR/1) (UN Digital Library, 21 December 2021) accessed 13 June 2023.

United Nations Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 'Concluding Observations on Guinea in the Absence of Its Initial Report: Committee against Torture' (Report No CAT/C/GIN/CO/1) (52nd sess. 2014 Geneva) (UN, 20 June 2014) accessed 13 June 2023.

United Nations Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 'Concluding Observations of the Committee against Torture. Rwanda' (Report No CAT/C/RWA/CO/1) (UN, 26 June 2012) accessed 13 June 2023.

United Nations Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 'Concluding Observations of the Committee against Torture: Ethiopia' (Report No CAT/C/ETH/CO/1) (45th sess. 2010 Geneva) (UN Digital Library, 20 January 2011) accessed 13 June 2023.

United Nations Committee on the Elimination of All Forms of Discrimination against Women, 'Concluding Observations on the Initial Report of South Sudan: Committee on the Elimination of Discrimination against Women' (Report No CEDAW/C/SSD/CO/ 1) (UN Digital Library, 23 November 2021) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the 6th Periodic Report of Eritrea: Committee on the Elimination of Discrimination against Women' (Report No CEDAW/C/ERI/CO/6) (UN Digital Library, 10 March 2020) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Sixth Periodic Report of the Zimbabwe Committee on Elimination of Discrimination Against Women' (Report No CEDAW/C/ZWE/CO/6) (United Nations Human Rights Office of the Commissioner, 10 March 2020) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the 4th Periodic Report of Botswana: Committee on the Elimination of Discrimination against Women' (Report No CEDAW/C/BWA/CO/4) (72nd sess. 2019 Geneva) (UN Digital Library, 14 March 2019) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the 8th Periodic Report of Ethiopia: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/ETH/CO/8) (United Nations Human Rights Office of the High Commissioner, March 14, 2019) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Combined 3rd to 5th Periodic Report of Mozambique: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/MOZ/CO/3-5) (UN Digital Library, 30 July 2019) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Combined 3rd and 4th Periodic Reports of the Niger: Committee on the Elimination of Discrimination Against Women' (Report CEDAW/C/NER/CO/3-4) (67th sess. 2017 Geneva) (UN Digital Library, 24 July 2017) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the 7th Periodic Report of Burkina Faso: Convention on the Elimination of All Forms of Discrimination against Women' (Report No CEDAW/C/BFA/CO/7) (68th sess. 2017 Geneva) (United Nations Digital Library, 22 November 2017) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Combined 5th and 6th Periodic Reports of Burundi: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/BDI/CO/5-6) (65th sess. 2016 Geneva) (United Nations Human Rights Treaty Bodies, 25 November 2016) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Combined 6th and 7th Periodic Reports of Mali: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/MLI/CO/6-7) (UN, July 2016) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Combined 4th and 5th Periodic Reports of Gambia: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/GMB/CO/4-5) (The African Centre for Democracy and Human Rights Studies, 25 July 2015) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the Combined 3rd to 7th Periodic Reports of Senegal: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/SEN/CO/3-7) (61st sess. 2015 Geneva) (UN Digital Library, 28 July 2014) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations on the 4th Periodic Report of Benin: Committee on the Elimination of Discrimination Against Women' (Report No CEDAW/C/BEN/CO/4) (56th sess. 2013 Geneva) (UN, 28 October 2013) accessed 13 June 2023.

United Nations Committee on the Elimination of Discrimination Against Women, 'Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Zambia' (Report No CEDAW/C/ZMB/CO/5-6) (UN Digital Library, 19 September 2011 accessed 13 June 2023.

United Nations Committee on the Rights of the Child, 'Concluding Observations on the Second Periodic Report of Lesotho. Committee on the Rights of the Child' (Report No CRC/C/LSO/CO/ 2) (UN Digital Library, 28 June 2018) accessed 13 June 2023.

United Nations Committee on the Rights of the Child, 'Concluding Observations on the Second Periodic Report of Zimbabwe. Committee on the Rights of the Child' (Report No CRC/C/ZWE/CO/2) (UN Human Right Office of the High Commissioner, 7 March 2016) accessed 13 June 2023.

United Nations Committee on the Rights of the Child, 'Concluding Observations on the Second Periodic Report of Zimbabwe. Committee on the Rights of the Child' (Report No. CRC/C/ZWE/CO/2) (UN Digital Library, 7 March 2016) accessed 13 June 2023.

United Nations General Assembly, 'Political Declaration on HIV and AIDS: Ending Inequalities and Getting on Track to End AIDS by 2030' A/RES/75/284 (United Nations General Assembly, 2021) <https://www.unaids.org/sites/default/files/media_asset/2021_political-declaration-on-hiv-and-aids_en.pdf> accessed 13 June 2023.

United Nations General Assembly, 'United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): Resolution / Adopted by the General Assembly' A/RES/70/175 (United Nations General Assembly, 8 January 2016) accessed 13 June 2023.

United Nations General Assembly, 'United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)' A/C.3/65/L.50. United Nations General Assembly, 6 October 2021) accessed 13 June 2023.

United Nations General Assembly, 'Basic Principles for the Treatment of Prisoners: Resolution / Adopted by the General Assembly' A/RES/45/111 (United Nations General Assembly, 28 March 1991) accessed 13 June 2023.

United Nations General Assembly, 'United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules): Resolution / adopted by the General Assembly' A/RES/45/110 (United Nations General Assembly, 2 April 1991) accessed 13 June 2023.

United Nations Office on Drugs and Crime (UNODC), 'Data Matters. Data Development and Dissemination Section and the Crime Research Section of the Research and Trend Analysis Branch' (UNODC, 2021) accessed 13 June 2023.

United Nations Office on Drugs and Crime (UNODC), 'United Nations Common Position on Incarceration' (UNODC, 2021) accessed 22 January 2023.

Vales H, Dipla H, Aroki C, Goldberg P, and Parker A, 'Panel 2: Protecting Vulnerable Groups through Detention Visits' (2011) 18(4) Human Rights Brief accessed 13 June 2023.

Van Hout MC, 'Navigating the Complexities of (Trans) Gender Expression, Right to Reasonable Accommodation and Security Tensions in South African Prisons: The Judgement of September v Subramoney' (2022) 3 Forensic Science International Mind and Law 100077. <https://doi.org/10.1016/j.fsiml.2022.100077> DOI: https://doi.org/10.1016/j.fsiml.2022.100077

Van Hout MC and Chimbga D, 'Tackling the Intersectionality of Drug Offences, Gender-Based Violence and Victimisation in the South African Criminal Justice System: Leveraging for Greater Implementation of the Tokyo Rules Within a Sustainable Development Agenda' (2020) 22(3) Journal of Sustainable Development Africa accessed 13 June 2023.

Van Hout MC and Wessels J, 'Human Rights and the Invisible Nature of Incarcerated Women in Post-Apartheid South Africa: Prison System Progress in Adopting the Bangkok Rules' (2021) International Journal of Prisoner Health [Epub ahead of print] DOI: https://doi.org/10.1108/IJPH-05-2021-0045

Van Hout MC and Mhlanga-Gunda R, 'Contemporary Women Prisoners Health Experiences, Unique Prison Health Care Needs and Health Care Outcomes in Sub Saharan Africa: A Scoping Review Of Extant Literature' (2018) 18(1) BMC International Health and Human Rights <https://doi.org/10.1186/s12914-018-0170-6> DOI: https://doi.org/10.1186/s12914-018-0170-6

Van Hout MC, Southalan L, Kinner S, Mhango V, Mhlanga-Gunda R, 'COVID-19, Conflict, Climate Change, and the Human Rights of People Living in African Prisons' (2023) 7(5) Lancet Planetary Health <https://doi.org/10.1016/S2542-5196(23)00080-3> DOI: https://doi.org/10.1016/S2542-5196(23)00080-3

Van Hout MC, Kaima R, Mangwana A, Mhango V, Kewley S, 'HIV Agendas and Upholding the Rights of Transgender People Living in African Prisons' (2023) S0033-3506(23) Public Health <https://doi.org/10.1016/j.puhe.2023.03.003> DOI: https://doi.org/10.1016/j.puhe.2023.03.003

Van Hout MC, Fleißner S, Stöver H, 'Women's Right to Health in Detention: United Nations Committee Observations Since the Adoption of the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)' (2022) Oxford Journal of Human Rights Practice [Epub ahead of print] <https://doi.org/10.1093/jhuman/huac058> DOI: https://doi.org/10.1093/jhuman/huac058

Van Hout MC, Fleißner S, Klankwarth U, Stöver H, 'Children in the Prison Nursery': Global Progress in Adopting the Convention on the Rights of the Child in Alignment with United Nations Minimum Standards of Care in Prisons' (2022) 134 Child Abuse and Neglect <https://doi.org/10.1016/j.chiabu.2022.105829> DOI: https://doi.org/10.1016/j.chiabu.2022.105829

Van Hout MC, Fleißner S, Stöver H, '# Me Too': Global Progress in Tackling Continued Custodial Violence Against Women. The 10 Year Anniversary of the Bangkok Rules' (2021) 24(2) Trauma, Violence & Abuse: A Review Journal <https://doi.org/10.1177%2F15248380211036067> DOI: https://doi.org/10.1177/15248380211036067

Zimbabwean Correctional Services, 'ZPCS establishes Open Prison for Females' (Zimbabwean Correctional Services, 16 July 2021) accessed 17 June 2023.