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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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