RECONSTRUCTING WOMEN’S RIGHTS IN AFRICA USING THE AFRICAN REGIONAL HUMAN RIGHTS REGIME: PROBLEMS AND POSSIBILITIES by MOSOPE DORIS FAGBONGBE A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (LAW) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) May 2010 © Mosope Doris Fagbongbe, 2010 ii ABSTRACT The struggle for women’s rights has gained momentum in the last three decades with recognition in an assortment of international, regional and national institutions and instruments. The African human rights regime constitutes one such framework for addressing women’s rights. Activating the mechanisms of the regime for the benefit of African women, however, poses an ongoing challenge. Available data indicates African women’s continuing vulnerability to human rights violations, with their already precarious situation exacerbated by factors such as the high prevalence of HIV/AIDS in some parts of Africa. This dissertation assesses the African regional human rights regime in the context of the challenges African women confront in their attempts to access it. It acknowledges that the regional initiatives created to protect rights constitute a potentially valuable framework for addressing violations of women’s rights, highlighting some successes but also exposing the limitations. The dissertation uses the case of the right to health recognised within the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa to study the question of rights at the regional level. It applies a feminist Third World Approaches to International Law (TWAIL) perspective to highlight the inclusions and omissions of this instrument in an attempt to construct a holistic, contextual and interdependent understanding of women’s rights in Africa. This dissertation argues that such a re- reading of rights is imperative in order to accelerate women’s ability to effectively mobilise for their rights using regional human rights mechanisms. It recognises the importance of the activities and influences of diverse actors to the implementation of rights. Building on the progress made by the regime, this dissertation identifies international and particularly regional and local actors, such as the African Union and its institutions, State Parties to the African Union, governmental and non- governmental organisations and entities whose activities, directly or indirectly, have implications for women’s rights. It analyses their actions and influences and offers fresh perspectives to enable these stakeholders to further the transformation of women’s situations using the regional human rights regime. iii TABLE OF CONTENTS ABSTRACT ........................................................................................................................................... ii TABLE OF CONTENTS..................................................................................................................... iii ABBREVIATIONS .............................................................................................................................. vi ACKNOWLEDGEMENTS ................................................................................................................ vii DEDICATION .................................................................................................................................... viii CHAPTER ONE: CONCERNS, CONCEPTS AND METHODOLOGY ........................................1 I. Introduction ........................................................................................................................................1 II. Conceptual Clarifications .................................................................................................................6 1. The Face of Africa ...............................................................................................................................6 2. Re-visioning International Law’s Assumptions: Women in the African Context ...............................7 III. Beyond Rescue? Africa and African Initiatives ..........................................................................10 1. Post-Colonial Approaches ..................................................................................................................11 2. Feminist Approaches ..........................................................................................................................13 3. Third World Approaches to International Law (TWAIL) .................................................................16 4. Contextualising a Feminist TWAIL Approach ..................................................................................19 IV. Methodological Framework and Outline of the Thesis ..............................................................21 CHAPTER TWO: BACKGROUND TO THE AFRICAN REGIONAL HUMAN RIGHTS REGIME AND WOMEN’S RIGHTS ................................................................................................28 I. Introduction ......................................................................................................................................28 II. Human Rights in Africa: The OAU/AU ........................................................................................30 1. Success in Contradiction: OAU and Human Rights ..........................................................................31 2. Recognising Human Rights: The UN and the OAU ..........................................................................35 3. Institutionalising Regional Human Rights in Africa ..........................................................................37 a) The African Charter, Human Rights and the OAU ...................................................................39 b) Human Rights and Transition to the AU ...................................................................................41 III. International Protection and Institutionalising African Women’s Rights ...............................42 1. The UN System for Women’s Rights ................................................................................................43 2. The European Regional System for Women’s Rights .......................................................................47 3. The Inter-American System for Women’s Rights .............................................................................51 4. The African System for Women’s Rights ..........................................................................................52 a) The OAU Women’s Rights Agenda or Non-Agenda? ..............................................................54 iv b) Women’s Rights and the AU .....................................................................................................57 IV. Moving Forward ............................................................................................................................58 CHAPTER THREE: CRITICAL REVIEW OF WOMEN’S RIGHTS IN AFRICA ...................60 I. Introduction ......................................................................................................................................60 II. Conventional Assumptions about African Human Rights Initiatives ........................................65 1. Historical and Contemporary Discourse on Africa and African Initiatives .......................................66 2. Assessing African Regional Human Rights Institutions in Legal Literature .....................................70 3. Re-Imagining African Human Rights Initiatives ...............................................................................74 III. Revisiting Dominant Critiques of African Women ....................................................................80 1. Economic Perception .........................................................................................................................80 2. Socio-Political Perception ..................................................................................................................85 3. Cultural Perceptions ...........................................................................................................................89 IV. Re-visioning Representations of Women in African Human Rights Literature .....................93 V. Reconciling Textual Sources ..........................................................................................................99 CHAPTER FOUR: GENDER INTERPRETATIONS, THE WOMEN’S PROTOCOL AND PRACTICES OF THE AFRICAN SYSTEM ..................................................................................105 I. Introduction ....................................................................................................................................105 II. A Critical Feminist TWAIL Analysis of the Women’s Protocol ...............................................107 1. Background ......................................................................................................................................107 2. Content of the Women’s Protocol ....................................................................................................109 3. Economic, Social and Cultural Rights .............................................................................................112 4. The Women’s Protocol: Re-reading the Right to Health .................................................................114 a) Related and Dependent Health Rights .....................................................................................119 b) Health Freedoms ......................................................................................................................122 c) Health Entitlements ..................................................................................................................126 d) Socially Related Concerns .......................................................................................................129 e) A Feminist TWAIL Evaluation of the Right to Health ............................................................135 III. Implementing Rights under the Women’s Protocol ..................................................................137 1. State Reporting .................................................................................................................................138 2. Complaints Mechanism ....................................................................................................................143 3. A Supra-National Court for Africa ..................................................................................................146 IV. Practical Progression in the Advancement of Women’s Rights ..............................................150 1. Working Group on Gender ..............................................................................................................150 2. Directorate for Women, Gender and Development .........................................................................152 3. Equal Gender Representation ...........................................................................................................154 4. Special Rapporteur on the Rights of Women in Africa ...................................................................155 v V. Summary ........................................................................................................................................157 CHAPTER FIVE: GENDER TRANSFORMATION: RECONCILING REGIONAL MECHANISMS WITH NATIONAL HUMAN RIGHTS OBLIGATIONS AND ACTIONS ...159 I. Introduction ....................................................................................................................................159 1. Foreign Involvement ........................................................................................................................160 2. Reflection on African Regional Entities’ Obligations .....................................................................165 3. Domestic Involvement .....................................................................................................................168 II. Individual Member States: Actions and Influences ...................................................................170 1. Government: Actions, Interactions and Influences ..........................................................................171 2. National Human Rights Institutions .................................................................................................177 III. Non-State Actors: NGOs and the African Human Rights Regime .........................................182 1. The African Women’s Movement ...................................................................................................183 2. Overview of the Relevance and Influence of National Human Rights NGOs .................................186 3. Women’s NGOs in Africa: Trans-National and National ................................................................191 a) Trans-National Regional Women’s NGO Network and Coalition ..........................................193 b) Domestic Women’s NGOs ......................................................................................................197 c) Women’s NGOs: Vehicles for Transformation or Stagnation? ...............................................199 IV. Summary ......................................................................................................................................204 CHAPTER SIX: SUMMARY AND CONCLUSION .....................................................................207 BIBLIOGRAPHY ..............................................................................................................................219 APPENDIX A .....................................................................................................................................242 APPENDIX B .....................................................................................................................................243 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ...................................................................................................................................................243 APPENDIX C .....................................................................................................................................257 The African Charter on Human and Peoples’ Rights ....................................................................257 vi ABBREVIATIONS AEC African Economic Community AU African Union ACJHR African Court of Justice and Human Rights CEDAW Committee on the Elimination of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights CIDA Canadian International Development Agency CSO Civil Society Organisation DANIDA Danish International Development Agency ECOSOC Economic and Social Council of the UN ECOSOCC Economic, Social and Cultural Council of the African Union ESCR Economic Social and Cultural Rights FAO Food and Agricultural Organisation FEMNET African Women’s Development and Communitarian Network FIDA International Federation of Women Lawyers ICCPR International Covenant on Civil and Political Rights ICESR International Covenant on Economic Social and Cultural Rights ICJ International Commission of Jurists IFI International Financial Institution ILM International Legal Materials ILO International Labour Organisation IMF International Monetary Fund INGO International Non Governmental Organisation Interights International Center for Legal Protection of Human Rights NEPAD New Partnership for Africa’s Development NGO Non Governmental Organisation NHRI National Human Rights Institution OAU Organisation of African Unity PAP Pan-African Parliament SAP Structural Adjustment Programme SDGEA Solemn Declaration on Gender Equality in Africa SIDA Swedish International Development Agency SOAWR Solidarity for African Women’s Rights SRRWA Special Rapporteur on the Rights of Women in Africa TAC Treatment Action Campaign TNC Transnational Corporation TRIPS Trade-Related Aspects of Intellectual Property Rights TWAIL Third World Approaches to International Law UDHR Universal Declaration on Human Rights UN United Nations Organisation USAID United States Agency for International Development UNDP United Nations Development Program UNTS United Nations Treaty Series WHO World Health Organisation WiLDAF/FeDDAF Women in Law and Development in Africa/Femmes Droit et Developpment en Afrique WTO World Trade Organisation vii ACKNOWLEDGEMENTS The University of British Columbia graduate law program in part provided financial support. The Nigerian Institute of Advanced Legal Studies granted me study leave to pursue doctoral studies. Many thanks to the immediate past Director General, Professor D. A. Guobadia, the current Director General, Professor Epiphany Azinge and other colleagues who have been supportive during my leave from the Institute. Without the support, intellectual guidance and commitment of my research supervisor, Professor Karin Mickelson, it is uncertain that I could have completed this research. Other members of my amazing supervising committee, Professors Susan Boyd and Sunera Thobani also provided insightful criticisms, intellectual support and mentorship. Professor Jennifer Chan (Educational Studies, UBC) and Ian Townsend-Gault (Law) served as University Examiners and Professor Paul Ocheje (Windsor) was the external examiner. Thank you all. Many thanks to UBC Law Faculty members and staff, Professors Ruth Buchanan (Osgoode Hall), Margot Young, Catherine Dauvergne, Wes Pue, Emma Cunliffe, Fiona Kelly, and Doug Harris, the Associate Dean Graduate Studies and Research at UBC Law, who in different ways facilitated my intellectual growth. I also express my gratitude to Sandra Wilkins, the Law Librarian, and staff of the Law Library, particularly Greg Elliot and George Tsiako, who provided exceptional research support. Special thanks to Joanne Chung, the Graduate advisor at UBC Law, for her dedication to the graduate program, sensitivity and support throughout my program. I also express my sincere gratitude to the following: Professors DeLloyd Guth and Lorna Turnbull (Manitoba) for their mentorship, Professor Obiora Okafor (Osgoode Hall) for his invaluable support when it mattered most and Dr. Ige Bolodeoku (University of Lagos) for suggesting that I consider further studies in Canada. Without my family, none of this would have materialised. Opefoluwa, my dear husband and my lovely children, Simisola and Tomilola, thank you for bearing with my eccentricities. Special thanks to my amazing siblings, Oluseyi Disu-Sule, Morounranti Popoola, Olusegun Esan and Olumide Esan and their families. I also remember with gratitude my late aunt, Professor Jadesola Olayinka Akande, who taught me that nothing is impossible. To all my friends and colleagues, who stood by me through the highs, lows and frustrations of the program, Dr. Ronke Odumosu-Ayanu, Bisi Ayanu, Dr. Chike Igwe, Toun Ilumoka, Jalia Kangave, Shiva Olyaei, Pooja Parma, Mrs. Anita Odunuga, Mrs. Abiola Anyankwo, Nora Timmerman, Point Grey Community Church, Pastor Greg Laing, Donna and Roy, and Julie and Isaac Kwakwe, thank you very much. I thank my awesome Father in heaven, the Almighty, All-Powerful Omnipotent GOD. Thank you all! viii DEDICATION To the loving memory of my Mother: Mrs. Margaret Titilola Adesola Esan, my inspiration and to my Father: Chief Olubunmi Olabamiji Esan 1 CHAPTER ONE: CONCERNS, CONCEPTS AND METHODOLOGY I. Introduction As of June 2005, statistics show that at least twenty-seven million people from thirty-three countries were at risk of hunger in Africa; the majority were women and children. Of the estimated 22.5 million people living with HIV/AIDS on the continent, women constitute almost sixty-one percent.1 In Cote d’Ivoire, for example, HIV prevalence among females (6.4%) was more than twice as high as among males (2.9%) and this is the pattern in most parts of Africa.2 African women also bear the main burden of HIV/AIDS as care-givers. They have an average life expectancy of forty-six years and a maternal mortality rate of 940 per 100,000 births, the highest in the world. Forty-six percent of these women live on less than one dollar a day.3 This depressing state of affairs is exacerbated by both global and local factors. Inequities in the international economic order combined with liberalisation of economies, corruption and other social ills result in adverse impacts on welfare and poverty alleviation programmes, among other state-run programmes. Women as the poorest of the poor bear a disproportionate burden. For instance, women facing economic and social disempowerment find it difficult to access privatised healthcare services and often suffer the most from the removal of subsidies in informal sectors and in agriculture.4 1 UNAIDS (Joint UN Programme on HIV/AIDS) and the World Health Organisation, 2007. AIDS Epidemic Update December 2007 Online: <http://data.unaids.org/pub/EPISlides/2007/2007_epiupdate_en.pdf>, (accessed 07 January 2008); The State of the World’s Children 2007, Women and Children: The Double Dividend of Gender Equality. (UNICEF, 2007). Online: <www.unicef.org/sowc07/docs/sowc07.pdf>. The increasing vulnerability of African women is well 2 UNAIDS, AIDS Epidemic Update: November 2009 at 21-22. Online: <http://data.unaids.org/pub/Report/2009/2009_epidemic_update_en.pdf>. 3 The State of the World’s Children. supra note 1. 4 Gale Summerfield and Nahid Aslanbeigui, “The Impact of Structural Adjustment Programmes and Economic Reforms on Women” and Maria Mies, “World Economy, Patriarchy, and Accumulation” in Nelly P. Stromquist (ed.), Women in Third World: An Encyclopedia of Contemporary Issues (New York: Garland Publishing, 1998). 2 documented by some international governmental organisations.5 Several international, regional and domestic forums also articulate concerns of and for African women.6 As elsewhere, gender discrimination and the low status of women remain widespread in many parts of Africa. The search for solutions for this and other concerns by African states and other stakeholders is ongoing. In line with this, the Assembly of Heads of State and Government of the African Union recently declared 2010-2020 as the African Women’s Decade in recognition of the continuing weakness in the mechanisms for integrating gender equality and the need for women’s empowerment on the continent. This is in addition to the regime created by the Organisation of African Unity (OAU)/African Union (AU) for the protection of human rights, which constitutes one vehicle through which African states may be held accountable for the protection of women’s rights.7 5 UNAIDS; The State of the World’s Children 2007, supra note 1. However, whether this regime has been deployed optimally to 6 For example, African Platform of Action: A Common Position for the Advancement of Women adopted at the Fifth Regional Conference on Women, Dakar, Senegal, 16-23 November, 1994, highlights twelve critical areas of concern for women. Online: African Centre for gender and Development website, <http://www.uneca.org/fr/acgd/en/1024x768/en_gender/en_tool/en_9411_apa1.htm#addis>, (accessed 22 May 2008). Women and children are often the worst hit victims in internal conflicts, poverty, the HIV/AIDS pandemic as well as other socio-economic problems in Africa. In paragraph 6 of the Preamble to the resolution ACHPR /Res.14 (XVI) 94: Resolution on the Situation of Human Rights in Africa (1994), the African Commission on Human and Peoples’ Rights rightly noted that “the persistent economic crisis in Africa has aggravated the human rights situation of vulnerable groups in African societies, in particular women and children.” The Assembly of the AU declared 2010-2020 as the African Women’s Decade by its Decision 487 (XIV), 2009. 7 The Charter of the Organisation of African Unity of 25 May 1963. 479 U.N.T.S.39, 3 I. L. M. (1964) 1116, entered into force 13 September 1963 (OAU Charter) (Now replaced by the Constitutive Act of the African Union); African (Banjul) Charter on Human and Peoples’ Rights (African Charter) adopted 27 June 1981, OAU Doc.CAB/LEG/67/3 rev.5, 21 I. L. M. 58(1982), entered into force 21 October 1986 (African Charter or Charter). Online: <www.achpr.org>. In this dissertation, regime and system are used interchangeably. While this dissertation makes no attempt to undertake a study of the theory of regimes, the term “regime” refers to the “African regional human rights regime” which encompasses references to the OAU (later the African Union) and the human rights system it initiated as a whole. The African human rights system (or the African system) refers to the instruments, institutions and processes established for the promotion and protection of human rights. For a study of the African human rights regime and the African human rights system see, Obiora C. Okafor, The African Human Rights System: Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007); C. H. Heyns, “A ‘Struggle Approach’ to Human Rights “ in C. Heyns and K. Stefiszyn (eds.), Human Rights, Peace and Justice in Africa: A Reader (Pretoria: PULP, 2006); Christof Heyns and Magus Killander, “The African Regional Human Rights System” in F. Gomez and K. de Feyter (eds.), International Protection of Human Rights: Achievements and Challenges (Bilbao: University of Deusto, 2005); Frans Viljeon and Lirrette Louw, “State Compliance with the Recommendation of the African Commission on Human and Peoples’ Rights 1994-2004” (2007) 101 Am. J. Int’l L 1; T. Murithi, The African Union: Pan-Africanism, Peacebuilding and Development 3 address women’s rights issues is a question requiring further inquiry. This dissertation analyses women’s rights within the context of the regional human rights regime in an attempt to determine whether it may serve as a vehicle of social transformation for African women. The OAU’s (now AU) regime created for promoting and protecting human rights consists of both institutional and normative structures to link international with national human rights protection. As will be shown, this regime has come a long way in over twenty-one years of its existence despite being dogged by enormous problems that challenge its very existence. These challenges have significant effects on the implementation of women’s rights. This dissertation identifies challenges confronting the African regional human rights regime and their implications for women. One such challenge is a simplifying reductionist representation of “things African” that disparages, exaggerates or mis/represents the inadequacies and limitations of African regional human rights initiatives to overshadow its accomplishments. Such representations in legal discourses hinder the institutional and material growth of regional structures as well as the general influence of the initiatives at the domestic level.8 Why do such challenges persist and what are their consequences for women’s ability to engage the mechanisms of the regime for the development and implementation of their rights? This dissertation considers the changes that have occurred within the regime over time and how such shifts have facilitated or may facilitate greater progress and increase the influence of this regional system for promoting a culture of human rights and thereby women’s rights at the (Ashgate Pub, 2005); Mbata B. Mangu, “The Changing Human Rights Landscape in Africa: Organisation of African Unity, African Union, New Partnership for Africa’s Development and the African Court” (2005) 23 (3) Netherlands Quarterly of Human Rights 379; Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007). 8 Rachel Murray, “International Human Rights: Neglect of Perspectives from African Institutions” (2006) 55 ICLQ 193 at 203, decries the neglect of African human rights institutions in international human rights discourse. She argues that neglect and derision of African mechanisms undermine the validity of a universal system of human rights and deprives it of the respect necessary for enforcement of its human rights decisions. 4 domestic level. It not only maps achievements but also identifies current and future challenges and prospects for the regional regime’s development of human rights and women’s rights in Africa. It inquires into why the mechanisms available through the regional regime have yet to be effectively mobilised by women. Questions that readily come to mind include: should African regional human rights institutions matter, especially given the growing critique of the neo-liberal, state-centrist nature of human rights?9 Why should regional institutions made up of a collective of nation States matter especially with the State being a major culprit in violating rights? Whereas the relevance of regional institutions will become clearer in the course of this study, other questions remain. What does the African regional human rights regime offer women, especially when these women have yet to adequately engage with local institutions, such as courts, to protect their rights? What role should states, that is, governments and governmental bodies, and non-state parties, such as civil society groups, and more importantly non-governmental organisations (NGOs), play in mobilising the mechanisms of the regime? NGOs, for example, may obtain observer or consultative status within regional institutions, but cannot by themselves implement major changes; they often require a governmental forum to do so.10 The African regional regime provides one such forum. The African human rights regime matters to the extent that it provides a valuable rallying point and forum to voice struggles for change in an increasingly global community; a forum for interstate and other regional institutional cooperation among big, small and less powerful 9 The focus of traditional international law on relations between states finds expression in international human rights law’s focus on how states treat their citizens. 10 Andrew Williams, “The United Nations and Human Rights” in Paul Taylor & A.J.R. Groom (eds.), International Institutions at Work (London: Pinter Publishers, 1988) at 127, makes this assertion in the context of the United Nations. 5 African nations alike. In the long run, cooperation among all interested groups and individuals may stimulate much needed changes to human rights institutions and processes in order to positively impact the more vulnerable groups within the community. In this study, I identify women as a vulnerable group within most African societies. Therefore, any advantages derived from an examination of the impacts and influences of the regional regime on women may be potentially applicable to other vulnerable groups. Meanwhile, the neo-liberal policies of African governments have considerable significance for the African human rights regime. The reliance on the market to guide economic priorities, the minimization of the social role of government and the encouragement of maximum privatisation of economic life has had its impact on the protection of human rights in the region.11 As with other liberal systems, civil and political rights take priority over economic, social and cultural rights, which have particular significance for African women. This neo-liberal framework of the regional regime no doubt has its implications which will feature in subsequent discussions. The remainder of this introductory chapter addresses some ideological and doctrinal structures common to knowledge about Africa as well as clarifies common concerns regarding women. It identifies the main concepts applied, outlines theories engaged and methods applied in this dissertation as well as the progression of topics. 11 Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (London: Routledge, 2000) at 47. In relation to this, a human rights expert interviewed with several years of experience involving the African Commission observed that a challenge to human rights in Africa relates to the fact that the people do not see the state as existing for them or for their benefit, but that they exist in spite of the state. Therefore, given the lack of confidence in the state, the African regional regime established by states shares this lack of confidence. 6 II. Conceptual Clarifications One of the main challenges in relation to knowledge produced about Africa is the conception of “things” African popularised by some scholars, the media and other commentators alike as dysfunctional, inadequate and generally negative.12 For the most part, this assessment is over- generalised, exaggerated and overstated. In order to avoid basic misconceptions usual in knowledge production regarding Africa and African initiatives, this section clarifies the main concepts applied throughout this dissertation. 1. The Face of Africa Africa is arguably the most misrepresented continent in the world, even though it accounts for almost one billion people, almost 14 percent of the world’s population, as the second largest and second most populous continent.13 It covers about 30,330,000 square kilometres, about 22 percent of the world’s total land area. Africa is a rich mix of peoples, cultures, economies and histories that defies homogenisation.14 Due to the diversity within African societies, it is usual for academic and other writers to focus on Sub-Saharan Africa15 or other parts of Africa in an attempt to avoid over-generalisation. While recognising essential differences in history, culture, religion and economies within the continent, for the purpose of this dissertation, Africa will figure as a whole continent. The regional regime’s institutional membership encompasses all fifty-three member states of the 12 See for example, Obiora C. Okafor, supra note 7 at 63. 13 By 2010 the UN estimates the total population of Africa to be 1,006,905,000. Online: <http://unstats.un.org/pop/dVariables/DRetrieval.aspx>, (accessed 10 July 2008). 14 Africa is home to a rich mix of peoples, cultures, economies and histories that defies homogenization. 15 This refers to the area south of the Sahara Desert. 7 Organisation of African Unity (OAU).16 It also avoids an academic balkanisation of Africa that encourages divisiveness and the alienation of parts of Africa, promoting a preconceived picture that emphasizes, for example, a Sub-Saharan Africa that is infinitely less developed, more impoverished and less able to hold its own in a fast-paced global world. Rather, this dissertation examines the African continent as a whole, acknowledging the need for unity and solidarity, but also recognising Africa’s diversity, with the aim of strengthening the links and ties among Africans of all regions and institutions. 2. Re-visioning International Law’s Assumptions: Women in the African Context Decades of international treaty-making for the protection of women, as well as women’s participation in activism, advocacy and lobbying, have yet to realise equality between women and men anywhere in the world. The subordination of and discrimination against women in almost all spheres of human endeavour generally intensifies the appeal of universal solutions emphasising commonalities and solutions with universal appeal. In addition, frequently, scholars conceive of a representative singular homogenous “African woman.” Even though the term “woman” is sometimes employed for strategic reasons to achieve particular goals,17 16 The exception is Morocco that renounced its membership and therefore is not part of the fifty-three members of the OAU/AU. the application of a single common vocabulary may produce an implicit bias towards some women while effectively marginalising others. Feminism, an ideological and theoretical framework, generally challenges universalising themes and concepts. Some feminist scholars caution against a blanket attempt to capture the “essence” of “woman” that ignores differences and diversities 17 Gayatri C. Spivak, Outside in the Teaching Machine (New York: Routledge, 1993) at 5, advocates for a “strategic use of essentialism” as “an acknowledgment of the dangerousness of something one cannot not use.” 8 arising from differential political, socio-economic, and cultural settings.18 Universal solutions to the problems confronting the “monolithic African woman” would not only exclude a majority of women, but also impose a limit to the scope of possible solutions. Legal rules and principles are often conceived in these types of universals. As such, the structure and administration of law generate and legitimise the subordination of women resulting in the neglect of systematic and other forms of discrimination against women. Even though feminism has been criticised as a western discourse carrying the baggage of “white, middle-class, Western women’s values, worldviews and agenda,”19 the ability to adapt different strands of feminism in order to address the concerns of a diversity of women provide useful tools for analysing law and legal principles in relation to women. For instance, some feminist commentators have shown that many areas of law are fundamentally structured around men’s perspectives and experiences, often subordinating or excluding women; others reveal the disproportionate impact of the international economic order on women.20 18 For discussions on “trends” in feminism see, Brenda Cossman, “Turning the Gaze Back and the Postcolonial Project” (1997) Utah L. Rev. 525; Oyeronke Oyewumi, “Visualizing the Body: Western Theories and Africa subjects” in Oyeronke Oyewumi, The Invention of Women: Making an African Sense of Western Gender Discourses (Minneapolis University of Minnesota Press, 1997); Chandra Talpade Mohanty, “Cartographies of Struggle: Third World Women and the Politics of Feminism” in Chandra Talpade Mohanty, Ann Russo and Lourdes Torres (eds.), Third World Women and the Politics of Feminism (Bloomington: Indiana University Press, 1991); Doris E. Buss, “Going Global: Feminist Theory, International Law, and the Public/Private Divide” in Susan Boyd (ed.), Challenging the Public /Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997). 19 Pamela Sparr (ed.), Mortgaging Women’s Lives: Feminist Critiques of Structural Adjustment (London: Zed Books Ltd, 1994) at ix. 20 These are examples of the growing strands of feminism. Catharine A. MacKinnon, Feminist Unmodified: Discourses on Life and Law (Cambridge; Mass.: Harvard University Press, 1987) and Catharine A. MacKinnon, Towards a Feminist Theory of State (Cambridge; Mass.: Harvard University Press, 1989). Other strands of feminism include Third World, Marxist, Socialist, liberal, African and Black feminisms among others. 9 In addition, the public/private paradigm conceived both as a space of activity as well as an ideological marker can present a continuing challenge to women.21 A gendered meaning of work in labour law ensures that economic value is not attached to domestic work in the home. This has prompted Lucinda Finley to observe that “law will be present through direct regulation, through non intervention when intervention is needed and through helping to keep something invisible when visibility and validation is needed.”22 Feminists argue that unless more women’s experiences, perspectives, and voices are incorporated into law, in order to empower and legitimate their experiences, male-dominated law will continue to reflect and shape prevailing social and individual understandings of its role, resulting in the silencing and discrediting of women. Little wonder that the African women occupy a secondary position in popular and legal literature despite differences and diversity among African women.23 21 Susan Boyd, “Challenging the Public and Private Divide: An Overview” in Susan Boyd (ed.), supra note 18 at 3, argues that the public/ private divide as an ideological division of life informs dominant western ways of knowing. African women suffer compound or complex discrimination as a result of their gender, race, class, ethnicity, and religion, among other components of their identities. Other than the image of the wife and mother, the most common portrayal of African women is that of victim. The identification of African women as subordinate victims, devoid of any form of agency to resist or challenge oppression, has roots in historical, economic, social, cultural and political structures. Even though it is impossible to envision a homogenous African woman due to their diversity of 22 L. M. Finley, “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning” (1989) 64 Notre Dame Law Rev. 886, cited in M. D. A. Freeman, Lloyds Introduction to Jurisprudence (London: Sweet Maxwell, 1996) at 44. 23 For feminist discourse on women and the politics of difference, see Elizabeth Spelman, Inessential Women: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988) at 14, S. Gunew, “Feminism and the Politics of Irreducible Difference: Multiculturalism/Ethnicity/Race” in S. Gunew and Anna Yeatman (eds), Feminism and the Politics of Difference (Sydney: Allen and Unwin, 1993); Chandra Talpade Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” in Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Durham & London: Duke University Press, 2003) (“Under Western Eyes”). 10 histories, cultures and social circumstances, shared experiences among African women, whether urban or rural, educated or illiterate, young or old, enable this dissertation to consider women as a group taking cognisance of differences, when necessary. For this reason the identities ascribed to women will be discussed in detail in Chapter Three. Other assumptions trail the study of Africa and women respectively. This writer takes cognisance of the challenges and limitations of undertaking a general approach to the study of women and will attempt to address this as they arise. The next section draws on theoretical perspectives from post-colonial, feminist, Third World (predominantly TWAIL) as well as human rights scholarship to unearth the complexities arising regarding Africa and African women. The remainder of this chapter sets out the method adopted and outlines the chapters to come. III. Beyond Rescue? Africa and African Initiatives Several critical theoretical perspectives have emerged in an attempt to understand the intricacies and complexities apparent in the legal and other aspects of the lived experiences of Africans and other Third World peoples.24 This section examines such approaches, rooted in history, that criticise and disrupt mainstream assumptions about the Third World, in this case, Africa and women. 24 James Thuo Gathii, “Imperialism, Colonialism, and International Law” (2007) 54 Buffalo L. Rev. 1013 at 1015. Gathii observes that “[c]lassical theories of imperialism, especially those of European theorists of the nineteenth and early twentieth centuries, were never really centrally concerned with the question of colonialism, except as a necessary but peripheral appendage of imperial expansion.” 11 1. Post-Colonial Approaches Post-colonial scholars undertake critical inquiries into the histories of colonised peoples to draw attention to distortions regarding their past and present, arising from the legacy of colonialism and imperialism.25 They seek to reclaim identities lost or buried by re-writing history from the point of view of the colonised rather than the coloniser.26 These theorists observe, for example, that distorted assumptions about Africa derive from the desire of the colonisers to alter the history of the colonised people so as to conform to the colonial mission and advance its agenda.27 Consequently, the colonisers resorted to creative modification or outright fabrication of the “customary,” and the resultant “custom” became substantially different from what existed prior to colonialism.28 For instance, customary law ideally emerges out of a peoples’ cultural history, and refers to the aggregate of practices, usages, mores and norms which are accepted as binding by members of a community. Ordinarily, an essential characteristic of customary law is its generic flexibility, that is, its ability to change to reflect changing social and economic conditions over time within the applicable community. This flexibility was largely lost due to colonial intervention. Application of customary law became dependent on its compatibility with certain validity tests: the repugnancy test – that customary law must not be repugnant to natural justice, equity and good 25 Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 1963) at 210; Mahmood Mamdani, The Making of Citizen and Subject in Contemporary Africa (Princeton; NJ: Princeton University Press: 1996); Francis Snyder, “Colonialism and Legal Form: The Creation of “Customary Law” in Senegal” (1981) 19 J. Legal Pluralism & Unofficial L. 49 at 112. 26 For postcolonial scholarly work see, Frantz Fanon, ibid.; Frantz Fanon, Black Skin, White Mask (New York: Grove Press, 1967); Eve Darian-Smith and Peter Fitzpatrick (eds.), Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999); Dipresh Chakrabarty, Provincialising Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2000). 27Mahmood Mamdani, Citizen and Subject: Contemporary Africa and Legacy of Late Colonialism (Princeton, New Jersey: Princeton University Press, 1996) at 117, identifies the difficulty in establishing the authoritative source of customary law, given that, to the British, law must safeguard the exigencies of power. 28 Ibid. Mamdani gives the example of the creation of chiefs where none existed or the grant of powers and authority previously not commanded by the Chief in some African societies. 12 conscience; the incompatibility test that customary law must not be contrary to “any law for the time being in force”; and the public policy test that customary law must not be contrary to public policy as identified by the colonisers.29 In spite of these changes, a large proportion of the African population retains customary law as their personal law. On the death of a person intestate, matters of inheritance and succession often fall under customary law. The largely inflexible application of customary law now exacerbates discrimination against women. Without attempting to romanticise its pre-colonial history, the point is that history or facts about Africa commonly accepted are not always accurate. Post-colonial scholars also criticise the limitations imposed on Africa by the obsession to catch up with Europe or the North in general, by imitating European and American cultures and institutions. This obsession derives largely from both the external and internal components of the assumptions to be discussed. Critical of this obsession but writing in another context, Ngugi Wa Thiong’o observes that: How we view ourselves, our environment even, is very much dependent on where we stand in relationship to imperialism in its colonial and neo-colonial stages; that if we are to do anything about our individual and collective being today, then we have to coldly and consciously look at what imperialism has been doing to us and to our view of ourselves in the universe.30 This call to Africans to look within themselves to invent and make new discoveries, as well as to work out new concepts relevant to them, rings true even today, especially in light of the centralisation of colonial Northern culture in ‘globalisation’.31 29 These are applicable in former British Colonies of Africa, such as Nigeria and Ghana. It is important in this regard to 30Ngugi Wa Thiong’o, Decolonizing the Mind: The Politics of Language in African Literature (London: Heinemann, 1986); Anthony Farley, “Perfecting Slavery” (2004-05) 36 Loy. U. Chi. L. J. 225 In another context, Farley identifies the role of education as motivating critical thinking. Rather than accepting everything we learn uncritically he proposes questioning the fundamental basis of things so as to begin to see the underlying circumstances. 31 Fanon, supra note 25 at 316. Globalisation promotes neo-liberal economic policies rooted in the “free market” approach whereby the dominant approach to “development” includes the pursuit of free trade, privatisation, massive reductions in social supports, and other related economic policies. 13 begin to disrupt the idea that presumably whatever originates from the North defines the norms and is natural, neutral and positive when compared to things that originate in the non-North. Notwithstanding the challenges this poses for international human rights discourse, reconceptualising African initiatives by several African and other Third World scholars emancipates and empowers the potential in human rights, especially for the most vulnerable and the oppressed.32 This should animate further investigations into the underlying assumptions regarding African human rights institutions. 2. Feminist Approaches A commentator who combines both post-colonial and feminist approaches recognises the need to ‘unlearn’ the dominant epistemological system that privileges European historiographies and suppresses any other contributions.33 Like post-colonial scholars, feminist scholars challenge mainstream approaches or values that deem certain bodies and subjects in specific spaces as undeserving of full personhood.34 32 The end of the Second World War, the establishment of the United Nations Organisation in 1945 and the adoption of the Universal Declaration of Human Rights (UDHR) G A Res. 217A(III) of 10 December 1948 provided the impetus for the development of human rights. See Shadrack B. O. Gutto, Human and Peoples’ Rights for the Oppressed: Critical Essays on Theory and Practice from Sociology of Law Perspectives (Lund: Lund University Press, 1993) at 31. Gutto, a prominent scholar of the African regional regime, defines the oppressed to mean: It is worth noting that feminism defies a single definition. a social group or groups who finds themselves, or may be objectively determined to be, disadvantaged or accorded unequal, differential treatment, either because of deliberate policies or structural arrangements in (a) the family, community, country, region or the world they live in and/or (b) the position they occupy in the prevailing relations of production or arrangements and, as a consequence, become specifically exposed to human rights denials or abuses. The advantage or enequal (sic) treatment could be past, present or prospective and could be legally-sanctioned or not. He however cautions that there is no constant group of oppressors or oppressed because oppression may be found within and outside any group. 33 Dianne Otto, “Disconcerting ‘Masculinities’: Reinventing the Gendered Subject(s) of International Human Rights Law” in Doris Buss and Ambreena Manji (eds.), International Law: Modern Feminist Approaches (Oxford: Hart Publishing, 2005). 34 Sherene Razack, “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George” in Sherene Razack (ed.), Race, Space and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002). 14 There is no consensus among scholars as regards the meaning of the term “feminism.” It takes on different meanings in different contexts, whether as politics, an ideology or a philosophy.35 Broadly speaking, however, feminism describes an ideological, social and political movement that re-examines gender relations from women’s perspectives. It involves social and political activism that strives to end the oppression of women. Some strands of feminism seek to equalise women’s position with men,36 others argue that the alleged neutrality and objectivity of the most commonly accepted perspective is in reality just one perspective: male.37 Still others challenge values associated with a patriarchal organisation of society. Patriarchy refers to the economic, social and political organisation of society that legitimises male domination and subordination between men and women.38 Despite the multiple strands of feminism that have emerged over the last three decades,39 35 Chandra Talpade Mohanty, “Under Western Eyes” supra note 23. Mohanty argues that feminist scholarship is directly political and a discursive practice in that it is purposeful and ideological. what unifies feminists remains their attempt to represent the commonality of fundamental feminist values aimed at eliminating the oppression of women 36 M. D. A. Freeman, supra note 22 at 1027. Freeman observes that feminist theorists share the view that much of women’s experiences have been omitted in standard legal scholarly and popular descriptions of the world. 37 Isabelle R. Gunning, “Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries” (1991-1992) 23 Colum. Hum. Rts. L. Rev. 189 at 190. See generally Catharine A. MacKinnon, supra note 20. MacKinnon identifies this perspective as largely that of white heterosexual middle to upper class males. 38 See Association of African Women in Research and Development (AAWORD/AFARD), 1977-1999: Deconstructing Research and Development for Gender Equality. Report on AAWORD’s Institutional Evolution (AAWORD, 1999). 39 The different strands of feminism (legal) include, the liberal, radical, Marxist and socialists feminists, post- modern, pragmatic, critical race, African and Third World feminisms to mention just a few. For readings in the different strands of feminisms see Susan Boyd, “Challenging the Public and Private Divide: An Overview” in Susan Boyd, (ed.), supra note 18; Patricia Hill Collins, Black Feminist Thought: Knowledge Consciousness and the Politics of Empowerment. Vol. 2 (New York: Routledge, 1991); Chandra Talpade Mohanty, “Cartographies of Struggle: Third World Women and the Politics of Feminism” supra note 18; A. Armstrong, “Rethinking Customary Law in Southern Africa: What Relevance for Action,” WLSA Newsletter, Vol. 7, No. 1; Ayo V. Atsenuwa, Feminist Jurisprudence: An Introduction (Florence and Lambard (Nig) Ltd, 2001); Deborah L. Rhode, Feminist Critical Theories (1990) 42 Stanford Law Review 617; Paula C. Johnson and Leslye Amede Obiora, “Human Rights Symposium: Panel Discussion How Does the Universal Declaration of Human Rights Protect Africa Women?” (Spring, 1999) 26 Syracuse J. Int'l L. & Com. 195; Brenda Cossman and Judy Fudge (eds.), Privatization, Law and the Challenge of Feminism (Toronto: University of Toronto Press, 2002); Dawn H. Currie, “Feminist Encounters with Postmodernism: Exploring the Impasse of Debates on Patriarchy and Law” (1992) 5 C J W L 63; Marlee Kline, “Race, Racism and Feminist Legal Theory” (1989) 12 Harv. Women’s Law J. 115. 15 without misrepresenting the plurality of women’s experiences arising from their diverse social, political and cultural outlooks.40 Feminist theoretical approaches not only challenge vested interests, but uproot perspectives that are familiar and comfortable.41 Feminists challenge hegemonic knowledges that lay claim to universal, rational and value-free truths.42 Beyond a gender framework, some feminists question the role of colonialism, imperialism, racism and capital monopoly in contemporary struggles, recognising the divergence of histories and social locations.43 African feminism would of necessity fall within this approach. Even though there is no monolithic African feminism due to the “different cultural imperatives, historical forces, and localized realities conditioning women’s activism/movement in Africa,”44 for convenience and in recognition of common features and shared beliefs that undergird African feminists work, this dissertation uses the singular term – African feminism.45 In this regard, African feminism “encompasses freedom from the complex configurations created by multiple oppressions.”46 African feminism combines racial, sexual, class, and cultural dimensions of oppression to produce a more inclusive brand of feminism through which women are viewed first and foremost as human, rather than sexual, beings. It can be defined as that ideology which encompasses freedom from oppression based on the political, economic, social, and cultural manifestations of racial, cultural, sexual, and class biases. It is more inclusive than other forms of According to Steady, 40 Patricia Smith (ed.), Feminist Jurisprudence (New York: Oxford University Press, 1993) at 5. 41 Freeman, supra note 22 at 1124; also Susan Boyd, supra note 18. 42 Feminists have consistently questioned and challenged the epistemological foundations of Western thought which they argue is patriarchal. This position has been posited by Sandra Harding, Feminism and Methodology: Social Science Issues (Bloomington: Indiana University Press, 1987). 43 Chandra Talpade Mohanty, supra note 18 at 46. Mohanty’s study focuses on Third World women. 44 Obioma Nnaemeka, “Mapping African Feminisms, adapted version of ‘Introduction: Reading the Rainbow’ from Sisterhood, Feminisms & Power: From Africa to the Diaspora” in Andrea Cornwall (ed.), Readings in Gender in Africa (Indianapolis: Indiana University Press, 2005) at 32. 45 Ibid. 46 Filomina Chioma Steady, “African Feminism: A Worldwide Perspective” in Rosalyn Terborg-Penn, Sharon Harley, Andrea Benton Rushing (eds.), Women in African and the Diaspora (Washington; D.C.: Howard University Press, 1987) at 4. 16 feminist ideologies and is largely a product of polarizations and conflicts that represent some of the worst and chronic forms of human suffering.47 African feminist scholars have therefore begun to rewrite the history of African society to reflect the role women have played and can play in African societies.48 In light of this, feminism provides an invaluable foundation for challenging male mainstream and the status quo, whether within or outside feminist discourses, and it offers a valuable tool for analysing women’s rights in Africa. 3. Third World Approaches to International Law (TWAIL) Several international law scholars are paying greater attention to history with a shared determination to challenge existing paradigms, in order to identify and address obstacles to the development of the Third World.49 Third World Approaches to International Law (TWAIL) represents “an attempt to understand the history, structure and process of international law from the perspective of third world states.”50 In part, it seeks to identify the continuum in the political, economic and social experiences of the past and present, emphasising the need for a transformation of the future that breaks this continuum.51 47 Ibid. TWAIL scholars criticise the 48 Tiyambe Paul Zeleza, Manufacturing African Studies and Crises (Dakar: CODESRIA Book Series, 1997) at Chapters 9 and 10; and Chioma Steady, Women and Collective Action in Africa: Development, Democratization, and Empowerment, with Special Focus on Sierra Leone (New York: Palgrave Macmillan, 2006). 49 Some such scholars refer to their theoretical framework as the Third World Approaches to International Law (TWAIL). For discussions on TWAIL perspectives, see Makau Mutua, “What is TWAIL?” (2000) 94 American Society of International Law Proceedings 31; James Thuo Gathii, “Rejoinder: TWAILing International Law” (2000) 98 Michigan Law Review 2066; Karin Michelson, “Rhetoric and Rage: Third World Voices in International Law” (1998) 16 Wisconsin International Law Journal 353; Obiora Chinedu Okafor, “Newness, Imperialism and International Legal Reform in Our Time: A TWAIL Perspective” (2005) 43 Osgoode Hall Law Journal 171; Antony Anghie & Bhupinder S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2 Chinese Journal of International Law 77. 50 Bhupinder S. Chimni, “The Past, Present and Future of International Law: A Critical Third World Approach” (2007) 8 Melbourne Journal of International Law 499. 51 U. U. Ewelukwa, “Centuries of Globalization, Centuries of Exclusion: African Women, Human Rights, and the “New” International Trade Regime” (2005) 20 Berkeley J. Gender L. & Just. 75. 17 construction of international law as universally applicable to all states equally.52 It challenges the artificial neutrality of international law and the role of mainstream international law scholarship in legitimising “global processes of marginalization and domination.”53 TWAIL scholars aim to democratise and localise international legal scholarship, not only in terms of participants but also its content.54 Through “responding to international law as an imperialist project,” TWAIL scholars seek the “international transformation of conditions in the Third World.”55 The contested nature of international human rights law, particularly in Africa and other Third World regions, provides a springboard for discussing representations regarding the African human rights regime. International human rights law, like the broader discipline of international law of which it forms a part, is inclined towards universalisation, with women’s rights sharing this attribute.56 In light of the Westphalian foundation of international law, and by extension, international human rights law, one cannot assume that a current regional human rights regime based on Northern liberal ideas will automatically benefit Africans. Consequently, African human rights law scholars question the origin – whether Northern, European or white – of the universality, the prioritisation and the hierarchical conception of rights.57 52 Makau Mutua, “What is TWAIL?” supra note 49. Shadrack Gutto, for example, criticises the arrogant and ahistorical insistence by some Northerners, especially white Europeans and North Americans, that human rights are their creation, insisting rather that 53 Karin Mickelson, “Taking Stock of TWAIL Histories” (2008) ICLR 355 at 358. For more on the TWAIL approaches, see, Makau Mutua, ibid; Karin Mickelson, “Rhetoric and Rage” supra note 49; Obiora C. Okafor, “Newness, Imperialism and International Legal Reform in Our Time,” supra note 49. 54 Karin Mickelson, “Taking Stock,”ibid. 55 Makau Mutua, supra note 49. 56Rosa Ehrenreich Brooks, “Feminist Justice, at Home and Abroad: Feminism and International Law: An Opportunity for Transformation” (2002) 14 Yale J. L. &Feminism 345. 57 Prominent third world and other scholars have engaged in these debates over time. They include Shadrack Gutto, supra note 32; Makau Mutua, Human Rights. A Political and Cultural Critique (Philadelphia: University of Pennsylvania, 2002); and Abdullahi Ahmed An-Na’im & Francis M. Deng (eds.), Human Rights in Africa: Cross- Cultural Perspectives (Washington; D. C.: The Brookings Institution, 1990), among others. 18 “[s]pecific aspects of human and peoples’ rights may not be exactly the same for all people all the time, but the aspiration, values and interests represented in human and peoples’ rights are independently present in practically all societies.”58 In opposition to “mainstream” international law discourse, TWAIL scholars,59 like other Third World scholars, argue that the focus on the universality of human rights largely reflects the interests of the developed countries of the North.60 Attempts to advance an alternative conception of human rights, that other societies recognise human rights even if not regarded as such,61 have historically met with cynicism and an accusation of self-justification.62 International human rights discourse now increasingly acknowledges norms that resonate with Third World, including African, experiences.63 As well, shared experiences as human beings in societies, and the undeniable differences in norms of interaction and institutions in different parts of the world,64 58 Gutto, supra note 32 at 45 [Emphasis as in text]. See also Makau Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights” (2001) Harvard International Law Journal 201. lead several Third World scholars to concede that international human rights law is both universal and relative. Yet, the dominant ideology of human rights prioritises civil and political rights above economic, social and cultural rights. The reconsideration of 59 See the work of scholars of the Third World Approaches to International Law such as Anthony Anghie and B. S. Chimni, supra note 49; Makau Mutua, “What is TWAIL?,” supra note 49. 60 By “mainstream” I mean scholars who argue for the universality of rights as set out in the UDHR. The universalism / cultural relativism debate has now receded but questions relating to the relevance of the dominant conception of human rights discourse to the Third World remain current. For the debate over cultural relativism see, Abdullahi Ahmed An-Na’im, “Toward Cross-Cultural Approach to Defining International Standards of Human Rights,” in Abdullahi Ahmed An-Na’im & Francis M. Deng (eds.), supra note 57; Jack Donnelly, “Cultural Relativism and Universal Human Rights” (1984) 6. Hum. Rts. Q. 400; Rhoda Howard, “Cultural Relativism and the Nostalgia of Community” (1993) 15 Hum. Rts. Q. 315 (argues that traditionalists employ the concept of cultural relativism in the form of cultural absolutism). For a descriptive analysis of the dominant discourse on human rights, see, Issa G. Shivji, The Concept of Human Rights in Africa (London: CODESRIA Book Series, 1989). 61 Such are the attempts that propose and promote Asian values and an African conception of human rights. 62 Rhoda Howard, Human Rights in Commonwealth Africa (New Jersey: Rowman & Littlefield, 1986) at 23, argues that there is no specifically African conception of human rights, only a philosophical confusion between human dignity and human rights. 63 See, for example, the Declaration on the Right to Development G. A. res. 41/128 (1986). 64 Shadrack B. O. Gutto, supra note 32 at 44. 19 rights in a more holistic manner remains a critical component of the human rights agenda of Africa and the focus of Third World human rights scholars.65 4. Contextualising a Feminist TWAIL Approach This dissertation aligns with theoretical perspectives insistent on critical, nuanced and alternative understandings of human rights and especially women’s rights. It draws on the post- colonial, feminist and TWAIL approaches, where appropriate, in order to disrupt dominant colonial assumptions regarding Africa, and in an attempt to stimulate a reversal of the colonial scripts. This dissertation develops what I regard as a feminist TWAIL analysis. I attempt to elaborate what I consider as a feminist TWAIL approach by drawing from TWAIL scholars whose works centre on women or gender issues in the Third World.66 As the terminology implies, feminist TWAIL analyses necessarily borrow attributes from different theoretical perspectives. It integrates perspectives from feminism (particularly Third World feminism), post-colonialism and TWAIL to centre primarily on women in the Third World. Feminist TWAIL analyses demonstrate keen awareness of continuing marginalisation and economic inequities experienced by the Third World and its disproportionate impact on Third World women. They criticise the eurocentricism of international human rights law and its concurrent presentation as universals even in the context of women’s rights. 67 65 J. Oloka-Onyango, “Beyond Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa” (1995) 26 (1) Int’l L. J. 1. Feminist TWAIL 66 For legal analysis that may be categorized as a feminist TWAIL approach, see Vasuki Nesiah, “The Ground Beneath Her Feet” (2003) 4(3) Journal of International Women’s Studies 30 and Celestine Nyamu, “How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?” (2000) 41 (2) Harvard International Law Journal 381. 67 Ibid. 20 scholars remain “wary of glib universality narratives,”68 that ignore the complexities of Third World women’s lives shaped by historical, economic, social, cultural, religious and other experiences. A feminist TWAIL analysis acknowledges the tensions regarding universalism and cultural relativism in rights discourse, emphasizing the need to locate rights in their proper context. This involves recognising and writing race, class, gender and other social and economic indicators of individual identity into analyses of international legal concepts, such as rights.69 Feminist TWAIL analyses of rights thus underscore the limitations imposed on rights discourse arising from its fundamental construction and the structure of women’s rights debates. It recognises limitations imposed by the state-centric model of international law for the development of women’s rights, whether to unmask violations committed by non-state parties or to expose the analytical constraint imposed by a rigid public/private dichotomy in the context of Third World women. It also recognises the interdependency of rights as imperative to promoting women’s dignity.70 Feminist TWAIL analyses recognise the intersectionality of gender, class, ethnicity, race and other components of identity in the marginalisation and oppression of women, while seeking fuller participation of women in the development of international human rights law.71 68 Obiora Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?” (2008) 10(4) ICLR 371 at 376 [Okafor, “Critical TWAIL”). 69 Antony Anghie, “What is TWAIL: Comment” (2000) 94 Am. Soc’y Int’l L. Proc. 39, considers the disappearance of race in international law and observes that international law concepts often “embody power relations which are simply reproduced by their transference to the non- European world.” 70 An earlier version of Feminist TWAIL analysis was originally published in Mosope Fagbongbe, “The Future of Women’s Rights from a TWAIL Perspective” (2008) 10(4) ICLR 401. 71 Ibid. 21 In addition, feminist TWAIL scholars join other TWAIL scholars to query why “apparently liberatory projects do not always meet with the success they promise,”72 especially with regards to women’s rights. This analysis draws from Third World feminisms and particularly Vasuki Nesiah’s observation that calls “for a re-orienting of our critical energies from merely taking sides in a debate, to questioning the material and ideological lens that interpolates the debate, i.e., the habitus from which we make our stand.”73 A feminist TWAIL approach challenges ideological lens through which rights are perceived. In line with this approach, this dissertation seeks to develop proposals and theoretical perspectives that complicate and disrupt the naturalness, familiarity, and generalisations apparent in human rights discourse regarding Africa and African women. As will be seen subsequently, the right to health provision in the Women’s Protocol provides a constructive example for applying a feminist TWAIL analysis. The next part highlights the methodology adopted to achieve this task. IV. Methodological Framework and Outline of the Thesis Most contemporary international legal knowledge about Africa derives from texts. These are primary international law texts such as international treaties and secondary texts in scholarly books and journals. These sources of knowledge inspire the application of textual analysis to expose the strangeness of familiar assumptions, and to identify shifting discourses regarding women’s rights in Africa. This dissertation analyses regional treaties and secondary texts pertaining to women’s rights under the African human rights regime. Textual analysis as conducted in this dissertation draws on aspects of institutional ethnography as developed and applied by Dorothy Smith, along with other anthropologists and sociologists. 72 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 1994) at 39. 73 Vasuki Nesiah, supra note 66. 22 As a form of discourse theory model, institutional ethnography, in part, seeks to unpack the generalising and abstracting mechanisms that happen through the literal texts generated within the institution.74 Such generalising refers to abstraction of particular experience into the standardised vocabulary that is recognisable by the institution.75 Applying this understanding, I attempt to unveil the ideological nature of some of the concepts used and ideas perpetuated in texts, institutional and academic, to sustain or to exclude certain suppositions regarding the African regional rights regime and women. This dissertation also incorporates the outcomes of interviews conducted with experts in the field of human rights. A few interviews, five in total, were conducted between December 2009 and February 2010 with experts, both male and female, working with institutions that cut across governmental and non-governmental lines, especially experts with experience working with the mechanisms of the African human rights regime and its domestic application presently or in the recent past. Experts interviewed have gathered experience across the continent as well as abroad. The interviews were conducted through prepared questions via electronic mail and telephone conversations, where necessary. They provide avenues to clarify gray areas in the workings of the mechanisms of the African regime and its domestic application. These interviews provide a bridge between activist and academic worlds, which is necessary for 74 Traditional ethnography relates to the study of the exotic other in faraway places mostly tied to the colonialist agenda of European territorial expansion and domination of “savage” people based on the “presumption of a discrete bounded community, spatially isolated from others, unchanging through time and willing to disclose intimate cultural secrets to the neutrally positioned observing Western.” Decolonisation, globalisation and the “participation of native peoples in the construction of academic knowledge… a growing force among non-Western scholars to actively resist being the object of Eurocentric observation” Eve Darian Smith (ed.), Ethnography and Law (Aldershot: Ashgate, 2007) at xiii-xiv; Institutional ethnography exemplifies one of the shifts in traditional ethnography. Lauren E. Eastwood, “Making the Institution Ethnographically Accessible: UN Document Production and the Transformation of Experience” in Dorothy Smith (ed.), Institutional Ethnography as Practice (Oxford: Rowman & Littlefield: 2006) at 182. 75 Dorothy Smith refers to this as an investigation “to reach beyond the locally observable and discoverable into the translocal social relations and organization that permeate and control the local.” Dorothy E. Smith, “Introduction” in Dorothy E. Smith (ed.), Ibid. at 65. 23 formulating concrete recommendation on how to move women’s rights forward on the continent. These interviews have thus been integrated throughout this dissertation, concealing the identity of the interviewees at their request. This dissertation is organised into six chapters. Chapter Two commences with a political and legal background to the African regional human rights regime. It highlights the contributions of the African regional institutional body, formerly the Organisation of African Unity (OAU), now the African Union (AU), to the institutionalisation of rights in Africa. The chapter also undertakes an overview of the international and regional systems for the protection of women’s rights in order to identify dominant ideological structures underlying African human rights initiatives. It examines the relevance of the regional regime for African women in order to place women’s rights in Africa in proper context. Chapter Three undertakes a review of relevant scholarly texts in order to identify the dominant conceptions concerning Africa and African initiatives. It critically analyses academic suppositions and shifts in such suppositions regarding the African regional human rights regime. The chapter relies on the texts written by prominent theorists of post-colonial, feminist and Third World Approaches to International Law (TWAIL) to undertake a historical analysis of assumptions underlying the study of Africa and African initiatives. The conventional assumptions about the regime discovered through texts of human rights scholarship facilitate better understanding the African human rights regime. The chapter also revisits the dominant critiques of the African human rights regime in order to assess the accuracy and/or adequacy of such critiques. 24 The subordinate status of women in most African societies places them at a great disadvantage. Chapter Three recognises the diversity among women in terms of race, class, ethnicity and other factors, but suggests some commonality among African women. Thus, this chapter examines critically the representations of African women and the consequences of such representations. It juxtaposes these assumptions with references to African women in scholarly texts on the human rights regime in order to determine how these assumptions are reflected in literature. It argues that the combination of external negative assumptions about the African human rights regime and negative perception about women have had crippling consequences for applying mechanisms of the African regime for the benefit of women. Following this, Chapter Four analyses the textual and practical manoeuvres undertaken by the regional human rights regime. The chapter examines the “official” texts of the regional regime, particularly the provisions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol).76 As the most recent and the most comprehensive instrument adopted at the regional level for the protection of women, this chapter uses health to explore the adequacy of the provisions of the Women’s Protocol to take due consideration of the particular circumstances of African women. As Smith has shown, the technology of textuality is central to the mechanisms by which certain perspectives are excluded from the realm of law’s institutional concern.77 76 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, OAU Doc. CAB/LEG/66.6 Rev. 1, adopted 11 July 2003, entered into force 25 November 2005. As of February 2009, there are twenty-seven ratifications and forty-five signatures. Online: <http://www.africa- union.org/root/au/Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf>. The reproducibility, stability and hierarchical organisation of texts reveal the process by which ideologies are 77 Dorothy E. Smith, supra note 75. See also Emma Cunliffe and Angela Cameron, “Writing the Circle: Judicially Convened Sentencing Circles and the Textual Organization of Criminal Justice” (2007) 19 (1) C. J. W. L. 1. 25 constituted and perpetuated within legal institutions.78 Chapter Four attempts to understand concerns that are textually privileged, as well as the institutional realities constructed by the African human rights regime, identifying assumptions that influence, for example, the African Commission’s decisions.79 Using the right to health as an example, this analysis seeks to determine whether or not the textually constructed institutional realities of African human rights institutions exclude the experiences of women from the realm of its institutional concerns. Given the difficulty inherent in any attempt to garner the rationale behind a document from its face, especially due to the abstraction of experience through text,80 decisions of the African Commission and other documents of the regime are also subjected to scrutiny. Although as of 2006 the African Commission had not had the opportunity to make a pronouncement on any direct communication involving the interpretation of women’s rights, some past decisions of the Commission indirectly shed more light on the ways in which the Commission promotes or inhibits women’s rights. The chapter also identifies the practical progress made in the context of women’s rights at the regional level. Chapters Five develops a nuanced understanding of how diverse stakeholders influence the implementation of women’s rights either directly or indirectly as well as the implications of their activities at the domestic level. This chapter introduces both external and internal involvement with the African regime. It undertakes a brief summary of external involvement by international entities and how they perceive the regional human rights regime. Thereafter, the chapter undertakes a more extensive examination of the ways in which national institutions, 78 Emma Cunliffe and Angela Cameron, ibid., at 6. 79 The African Commission on Human and Peoples’ Rights is the body created to “promote human and peoples’ rights and to ensure their protection in Africa” in accordance with Article 30 of the African Charter. 80 Dorothy E. Smith, supra note 75. 26 women activists and other forces influence domestic implementation of rights using the mechanisms available through the regional regime. It examines how these entities may usefully deploy these mechanisms to the benefit of African women. Drawing from Okafor, the contribution of the African regional system to the development of human rights or, in this case women’s rights, cannot be accurately measured using a state-centric or compliance-centric optic. Okafor urges us to look beyond, without abandoning either optic, to other significant effects the African system can have, or has had, in the domestic sphere.81 This fresh perspective leads one to ask: how do activist forces – that is, human rights NGOs, individual activists and other interested parties – interpret the instruments and mechanisms of the regional regime? How have they mobilised or how can they mobilise the creative spaces made available by the regional human rights regime, within domestic arenas for the benefit of the people? This chapter examines the roles and actions of state and non-state actors to achieve gender transformation through the mechanisms of the African regional human rights regime at the domestic level. Chapter Six concludes the dissertation. It suggests the way forward to building a more engaged and responsive African regional human rights regime that will take women’s rights beyond their present position. This dissertation thus engages texts both as an authoritative site for contestation and as a site of resistance to the “oppressiveness” (in ideological terms) of an institution. I intend to “read against the grain”82 81 Obiora Chinedu Okafor, Activist Forces, supra note 7 at 34. According to Okafor, through this approach norms and mechanisms of the African system may produce a correspondence in the self-understandings and behaviours of states that remain outside the purview of state compliance. of dominant understanding to unveil the silences in the texts and existing scholarship relating to women and the African regional human rights regime. To this end, I propose an alternative narrative to reconstruct that perpetuated as a result of dominant assumptions concerning African human rights institutions. Such a reading 82 Chandra Talpade Mohanty, “Cartographies of Struggle,” supra note 18 at 46. 27 will be beneficial not only to women and other vulnerable members of African society, but will facilitate a clearer understanding of that regional regime. 28 CHAPTER TWO: BACKGROUND TO THE AFRICAN REGIONAL HUMAN RIGHTS REGIME AND WOMEN’S RIGHTS I. Introduction International human rights law remains a contested terrain.1 Debates surround the hierarchical categorisation of rights into civil and political, economic, social and cultural, as well as solidarity or collective rights.2 Also contested are questions relating to whether rights are universal or relative to particular societies and cultures.3 These debates are continuing and despite the relative consensus about the relevance of rights, their application requires sensitivity to specific societal circumstances. Cross-cultural engagements with human rights have disrupted mainstream approaches in order to encourage more expansive human rights regimes that take seriously the plights of less-powerful, oppressed and marginalised peoples of the world.4 1 Issa Shivji, “Constructing A New Rights Regime: Promises, Problems and Prospects” (1999) 8(2) Social and Legal Studies 253 at 254. The emergence of regional institutions for the protection of rights to complement the United Nations 2 For debates on the hierarchy of rights see, for example, R. Devlin, “Solidarity or Solipsistic Tunnel Vision? Reminiscences of a Renegade Rapporteur” in Kathleen E. Mahoney and Paul Mahoney (eds.), Human Rights in the Twenty-First Century: A Global Challenge (Dordrecht: Martinus Nijhoff Publishers, 1993) 991 at 993; U. Baxi, “Law, Democracy and Human Rights” in S. Kothari & H. Kothari (eds.), Rethinking Human Rights: Challenges for Theory and Action (Delhi, Lokayan, 1989) at 116-117. 3 Human rights scholars have taken up debates on whether rights are universal or relative. The origin of the debates may be traced to the American Anthropology Associations’ (AAA) statement relating to the Universal Declaration of Human Rights (UDHR). The statement written by Melville Herskovitz rejects the universality of international human rights norms contained in the UDHR as having a western and Judeo-Christian bias. They claim that western countries colonised two-thirds of the world, committing atrocities in the name of civilising missions, drafted and signed the UDHR, therefore hypocritically supporting the claim for human rights. For further debate on universalism and relativism, see for example, A. A. An-na’im, “Introduction” in A. An-na’im (ed.), Human Rights in Cross-Cultural Perspective: A Quest for Consensus (Philadelphia: University of Pennsylvania, 1992); Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca, NY: Cornell University Press, 2003); L. Henkins, The Age of Rights (New York: Columbia University Press, 1990); B.O. Okere, “The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems” (1984) 6 Hum. Rts. Q. 141; Louis Sohn, “The New International Law: Protection of the Rights of Individuals Rather than States,” (1982) 32 Am. U. L. Rev. 60 at 82; and Rhoda Howard, Human Rights in Commonwealth Africa (New Jersey: Rowman & Littlefield, 1986) at 23. 4 Scholars of the Third World Approaches to International Law (TWAIL) “aspire towards the creation of an international law which truly reflects the needs and interests of peoples rather than states.” See, Anthony Anghie, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2 Chinese J. Int’l L 77 at 92. TWAIL scholars seek alternative approaches to all areas of international law whether international economic law, international environmental law or international human rights law. See also, Karin Mickelson, “Rhetoric and Rage: Third World Voices in International Law” (1998) 16 Wisconsin International Law Journal 353; Makau Mutua, “What is TWAIL?” (2000) 94 American Society of International Law Proceedings 31; James Thuo Gathii, “International Law and Eurocentricity (1998) 9 Euro. J. Int’l L. 184. 29 system, may be viewed as part of attempts to widen the scope of application of rights as well as to strengthen their implementation. The African regional human rights regime is largely ignored or minimally studied, with a focus, for the most part, on its inadequacies.5 At the fringes of engaged scholarship, however, lies a growing interest in re-reading, re-articulating and re-directing attention to the possibilities and potentials that this regional regime holds for addressing the needs and demands of Africans. This inspires the underlying rationale of this dissertation, to assess women’s rights in the context of the African regional human rights regime. This chapter undertakes an historical overview of the emergence of the Organisation of African Unity (OAU),6 the regional umbrella institutional body under which the system for the protection of rights is established;7 its transition into the African Union (AU);8 5 Henry J. Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context, Law, Politics and Morals (Oxford: Oxford University Press, 2008); Obiora Okafor, The African Human Rights System: Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007) at 8-9. According to Okafor, almost without exception, the African System is not only portrayed as the weakest and most ineffectual, it is also the most under-studied of its regional counterparts. and its institutionalisation of human rights in Africa, past and present. Given that women constitute the 6 The Charter of the Organisation of African Unity (OAU Charter) adopted on 25 May 1963 abrogated and replaced by the Constitutive Act of the African Union. 7 For a history and analysis of the Organisation of African Unity (OAU), see, Taslim O. Elias, “The Charter of the Organisation of African Unity” (1965) AJIL 243-267; A. Chanda, “The Organisation of African Unity: An Appraisal” (1989-92) Zambia L. J. 1-29; C. Nwankwo, “The Organisation of African Unity and Human Rights” (1993) 4 Journal of Democracy 50; Gino Naldi, The Organisation of African Unity: An Analysis of Its Role (London: Mansell Pub. Limited, 1989); Amnesty International, The Organisation of African Unity: Making Human Rights a Reality for Africans (London: Amnesty International, August 1998) AI Index 63/01/98. The OAU Charter was dissolved and replaced by the Constitutive Act in 2001. The only indirect reference to human rights in the OAU Charter was limited to the preamble which affirmed the principles contained in the Charter of the United Nations and the Universal Declaration of Human Rights as foundations for peaceful and positive cooperation among states. 8 The Constitutive Act of the African Union (Constitutive Act), adopted by the Assembly of Heads of State and Government (AHSG) of the OAU in Lome, Togo in 2001. EAHG/Dec.1 (V) Reproduced in (2005) 13 RADIC 24; entered into force on 26 May 2001. As at 26/05/2007 the fifty-three members of the African Union (AU) had ratified the Constitutive Act. Online: <http://www.africa-union.org/About_AU/AbConstitutive_Act.htm>, (accessed 24 July 2007). See also Protocol on Amendments to the Constitutive Act of the African Union, Adopted by the 1st Extraordinary Session of the Assembly of the Union in Addis Ababa, 3 February 2003 and by the 2nd Ordinary Session of the Assembly of the Union in Maputo on 11 July 2003, reproduced in (2005) 13 RADIC 24. 30 primary concern in this dissertation, this chapter also gives a brief background to the protection of women’s rights internationally and regionally. It pays specific attention to women’s rights under the OAU/AU and implications of the transition into the AU for women’s human rights. The chapter analyses the setbacks as well as gains regarding women’s engagement with the OAU/AU human rights regime as a background to understanding women’s rights at the regional level. II. Human Rights in Africa: The OAU/AU Institutions are generally described as frameworks within which transactions may be facilitated, coordinated and stimulated.9 In this sense, human rights institutions provide a framework for facilitating, coordinating and stimulating human rights transactions, as part of the activities of several international institutions, such as with the United Nations and regional institutions, as with the AU, or selective institutions, such as the British Commonwealth. The OAU/AU qualifies as a regional institution based on its geographical configuration comprised of all African States, in the sense that its state-based membership, its financing and its field of operations encompass three or more countries.10 The OAU emerged as a regional institution shortly after African nations began to attain political independence from colonial rule. The newly independent African states became convinced that unity was imperative to their survival.11 9 Paul Taylor and A. J. R. Groom (eds.), International Institutions at Work (London: Pinter Publishers, 1988) at 4. Initially there was no consensus among the States as to the form or structure African unity should take. Some favoured a political union, others 10 Ibid. at 9. 11 Felix Chuks Okoye, International Law and the New African States (London: Sweet & Maxwell, 1972) at 123. The search for unity took the form of organised conferences, preceded by regional formations, such as the “Brazzavile group”, a meeting of twelve French-speaking African States and the “Casablanca group” made up of more radical newly independent States suspicious of the Brazzaville group’s continued attachment to Metropolitan France. Both groups adopted separate charters on economic and social goals but the Casablanca groups also included the formation of a joint African High Command to safeguard the independence of African States. 31 preferred collaboration on economic and social matters.12 Ultimately, the fear of foreign domination and the conviction that solidarity was a prerequisite for the progress of African peoples resulted in the 25 May 1963 founding of the OAU, as a regional organisation of all sovereign African states.13 This section examines the idea behind the establishment of the OAU, its accomplishments, especially with regards to human rights, the events that resulted in its transformation into the African Union in 2001, and the implications of this transformation for human rights and particularly women’s rights in Africa. 1. Success in Contradiction: OAU and Human Rights According to Okoye, the OAU was the first practical expression of continental unity and was created in response of governments to the elemental problems of security, peace, national economy, liberty and to the determination to find African solutions to African problems.14 The founders of the OAU recognised the need for inter-dependence among African States as well as for a unified approach to common problems.15 They favoured establishment of machinery for cooperation in economic, cultural, social, scientific and technical fields over a political union.16 12 Egypt, Ghana, Mali and Morocco and Libya formed the Casablanca bloc which was insistent on a rapid progress towards the political union of Africa. Liberia, Nigeria and Togo – the Monrovia bloc – were more conservative and doubtful of rapid action toward unity, preferring an economic rather a political union. The Brazzaville group consisted French colonies still under French influence and largely paid lip service to African unity. For a brief history of the adoption of the OAU Charter see, T. O. Elias, Africa and the Development of International Law, 2nd Rev. Ed. by Richard Akinjide (Dordrecht; Boston: Martinus Nijhoff Publishers, 1988) at 121-124. 13 Ibid; See also, His Excellency, Mr Radha Krishna Ramphul, “The Role of International and Regional Organisations in the Peaceful Settlement of Internal Disputes (With Special Emphasis on the Organisation of African Unity)” 13 Georgetown J. of Int’l and Comp. Law 371. 14 Ibid, at 126. 15 T. O. Elias, supra note 12 at 122-3. According to Elias, 22 African heads of state and government who attended the founding conference of the OAU were unanimous that “a loose form of association of independent African States based upon the principles of economic, cultural, scientific and technological cooperation among its members was the ideal at which to aim.” 16 Ibid, at 122. 32 The primary objectives for founding the OAU were to “promote the unity and solidarity of the African states”, “to co-ordinate and intensify their co-operation and effort to achieve a better life for the peoples of Africa”, “to defend their sovereignty” and “independence,” “eradicate all forms of colonialism from Africa” and to “promote international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.”17 Given these goals, it was therefore not surprising that during its early years the OAU members were preoccupied with issues of self-determination, de-colonisation and independence.18 The OAU zealously sought to guard the newly attained independence of Member States from colonial rule. In particular, Article III of the OAU Charter declared Member States’ adherence to the sovereignty of states and the principle of non-interference in internal affairs as basic principles guiding the OAU’s activities.19 During its formative years, the OAU contended with competing issues of border disputes arising from boundaries created by colonial powers, the continuation of colonial rule in some parts of Southern Africa, and economic development, among other issues. Even though the OAU was able to mobilise the authority and influence of some African leaders in attempts to resolve some of these issues, it lacked military and financial powers to back this up. Likewise, the OAU confronted problems of inadequate resources and staffing as well as the constant post- independence political upheavals in different parts of Africa, intensified in some cases by foreign interventions. These challenges circumscribed the successes recorded by the OAU. 17 See generally the preamble and Article II of the OAU Charter. 18 Curtis F. J. Doebbler, “A Complex Ambiguity: The Relationship between the African Commission on Human and Peoples’ Rights and Other African Union Initiatives Affecting Respect for Human Rights” (2003) 13 Transnat’l L. & Contemp. Probs. 7 at 10. 19 This provision is similar to the Article 2(7) of the UN Charter. This political principle is recognised in customary international law. 33 The OAU’s concern for human rights was symbolised by the adoption of the African Charter on Human and Peoples’ Rights.20 The initial concern of the OAU was predominantly in relation to self-determination and decolonisation. Rights were largely deployed selectively by African leaders.21 On the one hand, the struggles for self-determination from colonialism recorded substantial success, yet on the other human rights violations of citizen’s rights by African leaders increased. Indeed, the OAU’s reaction to human rights violations within member states oscillated between total inaction, indifference, hypocrisy and concern. Events between the late 1960s and the mid-1990s revealed pervasive human rights violations by some African leaders.22 For instance, the domestic jurisdiction clause was employed as a justification for the OAU’s failure to intervene in the Nigerian civil war (1966-1967), for its inaction in the face of Idi Amin’s governmental actions against Ugandan Asians (1972) as well as for initial indifference to the Rwandan genocide (1994). Moreover, the OAU largely justified its reaction to gross violations of human rights of citizens under dictatorial, often military regimes on the principle of non-interference despite reference to the UN Charter and the UDHR in its own Charter.23 20 African (Banjul) Charter on Human and Peoples’ Rights (African Charter or Charter) adopted 27 June 1981, OAU Doc.CAB/LEG/67/3 rev.5, 21 I. L. M. 58(1982), entered into force 21 October 1986 (African Charter or Charter). Online: <www.achpr.org>. The OAU’s struggle against apartheid in South Africa was thus complicated, with concern entwined to some extent with hypocrisy in the sense of its indifference to internal violation of rights within other African states. The complexity of the situation is beyond the purview of this study. 21 For a detailed study of the historical deployment of human rights in Africa see, Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (Albany: State University of New York Press, 2007) 22 Available literature chronicle Idi Amin of Uganda and General Sanni Abacha as examples of African leaders with records of blatant disregard for human rights. See, N. J. Udombana, “Can a Leopard Change its Spots? The African Union Treaty and Human Rights,” (2002) 17 Am. U. Int’l Rev. 1117; J. Oloka-Onyango, “Beyond Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa” (1995) 26 (1) Int’l L. J. 1. 23A common example of the non-interference policy was the era of Idi Amin of Uganda when he emerged as the Chairman of the OAU at the 1975 Summit held in Kampala, Uganda. A few African States boycotted the meeting. They were Botswana, Mozambique, Tanzania and Zambia. See, Chris Maina Peter, Human Rights in Africa. A Comparative Study of the African Human and Peoples’ Rights Charter and the New Tanzanian Bill of Rights (New York: Greenwood Press, 1990). 34 Given these mixed signals, it is not surprising that the accomplishments of the OAU, especially in the field of human rights, are largely understated. Only a few commentators recognised the OAU as “an effective framework for African co-operation,” as “a valuable forum for discussion and negotiation” and “a significant international body.”24 The OAU was more successful in the area of dispute resolution between African states, managing to preserve African unity through successful dispute settlements.25 It served as the first international forum for settling disputes among African states. The OAU developed its own approaches to dispute resolution that emphasised political negotiation through the use of authority to initiate and sustain negotiation between parties, as well as to encourage consensus building rather than binding, formal legal procedures.26 The OAU survived threats to its existence, such as the challenge posed by the case involving membership of the Western Sahara in the OAU.27 In addition, the OAU largely succeeded in its de-colonisation mandate. It played a prominent role in ending apartheid in South Africa; and it assisted some states, such as Guinea Bissau/Cape Verde, Angola, Mozambique, Zimbabwe and Namibia, to secure political freedom. 28 Perhaps the single most important achievement of the OAU for Africa was its actual founding. Okoye highlights this fact by observing that African States were able to: 24 Felix Chuks Okoye, supra note 11 at 174; Naldi “Peace-keeping Attempts by the Organisation of African Unity” (1985) 34 The International and Comparative Law Quarterly 593. 25 Anthony G. Pazzanita, “Legal Aspects of Membership of the Organisation of African Unity: The Case of Western Sahara” (1985) 17 Case Western Reserve Journal of International Law 123; G. J. Naldi, “The Organisation of Africa Unity and the Saharan Arab Democratic Republic” (1982) 26 J. Afr. L. 152; P.M. Munya, “The Organisation of African Unity and its Role in Regional Conflict Resolution and Dispute Settlement: A Critical Evaluation” (1999) 19 (2) Boston College Third World Law Journal 537; and Radha Krishna Ramphul, supra note 13. Some of the successful disputes settlements include Algeria and Morocco 1963-1968 and Guinea and Ivory Coast 1967. The OAU was mostly successful in settling truly local disputes but less successful at resolving disputes involving foreign influences in some form such as the case of Congo and Nigeria-Biafra civil war. 26 Art. III (4) and XIX of the OAU Charter. Ramphul, supra note 13 at 377-8, for example, in boundary disputes the working rule that emerged was that colonial boundaries should be respected. 27 G. J. Naldi, supra note 25 at 158 According to Naldi, the effort of the OAU to reach a compromise between disputing parties were commendable. 28 Article II (1) (e) of the OAU Charter. All African states had become independent before the replacement of the OAU. 35 sink their differences in a new continental organisation… apart from the understandable emotional commitment to unity seem to be the African States’ awareness of the political bankruptcy at the international level of their actions as small independent States, the economic and social advantages of unity, the trend towards a political and economic integration in Europe, and indeed a clear recognition by African States that regionalism far from being tempered by the United Nations, had become a major instrument of international co- operation.29 Thus, despite its shortcomings, the OAU deserves recognition for its establishment, its contributions to the human right to self-determination, among other rights innovations, and its continued survival in the face of numerous challenges, until its eventual replacement. 2. Recognising Human Rights: The UN and the OAU The handling of human rights violations committed by Member States ranked high among the criticisms levelled against the OAU. This subsection gives a brief background to the OAU’s engagement with contemporary international human rights protections. Direction for contemporary international human rights is found in Article 1 of the United Nations Charter to promote “universal respect for, and observance of human rights and fundamental freedoms.”30 In 1948 the UN produced and adopted the Universal Declaration of Human Rights (UDHR),31 to set universal principles and norms for securing rights for all.32 29 Felix C. Okoye, supra note 11 at 172. In 1966, the International Covenants on Economic, Social and Cultural Rights, and Civil and 30 The Charter of United Nations signed at San Francisco on 26 June 1945 entered into force 24 October 1945. Online: <http://www.unhchr.ch/html/menu3/b/ch-cont.htm>. 31 Proclaimed by the United Nations General Assembly, General Assembly resolution 217A (III) 10 December 1948. 32 These principles are now embodied in many constitutions around the world. Many French-speaking African countries borrowed from the Napoleonic Code and Thomas Paine’s Right of Man. See, T. O. Elias, New Horizons in International Law (The Netherlands: Sijthoff & Noodhoff International Publishers, 1979) at 160. 36 Political Rights were adopted to elaborate the rights recognised by the UDHR.33 The Committee on Economic, Social and Cultural Rights and the Human Rights Committee respectively became monitoring bodies for implementing the two Covenants.34 The UDHR, ICESCR and the ICCPR, together regarded as the international bill of rights, are the foundational documents of contemporary human rights protection. The eminent scholar Dr. T.O. Elias, highlighting the importance of the UN system for the protection of human rights, observes that: Without the enlargement of the community of States into the society of States within the framework of the United Nations which only decolonisation had made possible so relatively quickly since the founding of the Organisation, mankind might have continued to stagnate as it did in preceding centuries, with human rights, such as they were, still limited only to a fraction of the human race. The UN itself recognised that despite its efforts the benefits of the system were still limited. Indeed, commentators document the challenges confronted by the UN in attempts to expand the human rights horizon, especially during the initial stages of its existence.35 33 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic Social and Cultural Rights (ICESCR) General Assembly resolution 2200A (XXI) of 16 December 1966; the former entered into force 23 March 1976 and the latter, 3 January 1976. There was consensus regarding the desirability of encouraging regional organisations to deal with matters relating to maintenance of international peace, security and other activities consistent with the UN’s 34 While the Human Rights Committee was established immediately upon entry into force of the ICCPR, the ESCR Committee was established later in 1985, Economic and Social Council Resolution 1985/17, online: <http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/663/73/IMG/NR066373.pdf?OpenElement>. The UN has adopted other specialised human rights treaties, such as the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 660 UNTS 195 (GA Res 2106A (1965) adopted 21 December 1965 and the International Convention on the Elimination of all Forms of Discrimination against Women (Women’s Convention), UN Doc A/34/146, adopted 18 December 1979, entered into force 3 September 1981. It has also adopted alternative procedures. For example, the Resolution 1503 by the Economic and Social Council instituted a working group, of the Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities, to screen all petitions or communications submitted to the UN. 35 The problems include the lack of support for the idea of introducing an International Court of Human Rights or even that of instituting a UN High Commissioner for Human Rights. See Elias, supra note 12 at 163-4. 37 purposes and principles.36 Such regional organisations include the Organisation of American States (OAS) and, to a lesser extent, the OAU. As an inter-African organisation, the OAU fell within the UN category of regional organisations. Thus, the Heads of State and Government of the OAU recognised the UN in the Preamble to the OAU Charter by their reaffirmation to adhere to “the Charter of the United Nations and the Universal Declaration of Human Rights”, its principles, and to “provide a solid foundation for peaceful and positive co-operation among states.” Similarly, Article II(1)(e) states that promoting “international co-operation, having due regard to the United Nations Charter and the Universal Declaration of Human Rights” is a purpose of the OAU. The Preamble to the OAU Charter recognised freedom, equality, justice and dignity as objectives essential to achieving the aspirations of African peoples37 and affirmed adherence to several international human rights instruments.38 These assertions arguably constituted the primary scope of the OAU commitment to the human rights agenda of the UN until adoption of the African Charter in 1981.39 3. Institutionalising Regional Human Rights in Africa The adoption of the African Charter signalled the institutionalisation of regional protection of human rights initiated under the aegis of the OAU. Regional human rights institutions, such as 36 See Art. 52, UN Charter. As early as 1969, the UN Division of Human Rights, in cooperation with the Government of the United Arab Republic, organised a seminar to study the possibility of establishing regional commissions on human rights, especially in Africa: Seminar on the Regional Commission on Human Rights with Special Reference to Africa, held in Cairo, 2-15 September 1969, U. N. Doc. ST/TAO/HR/39 (1969). In 1979, the Monrovia Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa held in Monrovia, 10-21 September 1979 was also organised under the auspices of the UN: U.N. Doc. ST/HR/SER.A/4 (1979). 37 Preamble to the OAU Charter. 38 Ibid. 39 Prior to 1981, the OAU adopted the Convention Governing the Specific Aspects of Refugee Problems in Africa to address growing refugee problems which had human rights implications. 38 the institutions established by the OAU, recognise rights comparable with international standards. The “home grown” character of such regional structures endow them with added legitimacy among member countries.40 Initial activities to institutionalise regional human rights protection in Africa can be traced to the International Commission of Jurists’ first All African Conference of Jurists on the Rule of Law held in Lagos in 1961. The Conference, attended by 194 judges, practicing lawyers and teachers of law from twenty-three African countries, as well as nine other countries, adopted a resolution calling on African governments to adopt an African Convention of Human Rights, among other recommendations.41 These recommendations, however, were not taken up for some time to come. A series of other events, processes, and activities, including calls by the UN42 for Africa to create regional mechanisms, resulted in eventual adoption of the African Charter. It serves as the basic document among an assortment of treaties, norms, institutions, practices and procedures that make up the African human rights system.43 40 Other regional mechanisms include the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) adopted by the Council of Europe to constitute the normative basis for establishing a system for human rights protection in Europe. As well, the adoption Charter of the Organisation of American States and the American Convention on Human Rights (Inter-American Convention) marked the founding of an Inter-American human rights system. 41 International Commission of Jurists (ICJ), African Conference on the Rule of Law, Lagos Nigeria, 3-7 January 1961. The Conference adopted a general resolution on the Rule of Law entitled “The Law of Lagos.” Available online: <http://www.chr.up.ac.za/hr_docs/african/docs/other/other22.doc>. 42 Due to problems associated with limited access to local political processes, limited material and financial resources, and the difficulty of enforcing global human rights treaties, the UN General Assembly called on states to “consider agreements with a view to the establishment within their respective regions of suitable regional machinery for the promotion and protection of human rights.” See G. A. Res. 32/27. 32 U. N. GAOR, 105th plen.mtg., U. N. Doc. A/32/458 (1977), reprinted in 31 U.N.Y.B.740 (1977). The UN also took a variety of initiatives to achieve its objective. This included organizing seminars in Dakar, UN Doc. St/TAO/HR/25, 1966, in Cairo, see, “Seminar Series on the Creation of Regional Commissions on Human Rights wit regard to Africa” UN Doc. ST/TAO/HR/38, 1970, and in Dar-es-Salaam, among others, see, “A Study of New Ways and Means of Promoting Human Rights with Special Attention to the Problems and Needs of Africa” UN. Doc. ST/TAO/HR/48, 1973. See also generally, Burns H. Weston, Robin A. Lukes and Kelly M. Hnatt, “Regional Human Rights Regimes: A Comparison and Appraisal” (1987) 20 Vand. J. Transnat’l L. 585. 43 For more detailed studies of the African human rights system, see, Evelyn A. Ankumah, The African Commission on Human and Peoples’ Rights (The Hague: Martinus Nihjoff, 1996); Malcolm Evans & Rachel Murray, (eds.), The African Charter on Human and Peoples’ Rights. The System in Practice 1986-2000 (Cambridge: Cambridge University Press, 2002); G. Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African 39 a) The African Charter, Human Rights and the OAU The African Charter laid the foundation for institutionalised regional human rights promotion and protection in Africa.44 It provides a normative framework for implementing and promoting not only individual civil and political rights, economic, social and cultural rights, but also collective or peoples’ rights as well as individual duties to the state.45 These latter provisions distinguish the African Charter from other international human rights treaties46 and arguably earned it the status as the most criticised human rights instrument.47 The African Charter asserts universality of rights by affirming several rights elaborated in other international human rights treaties. At the same time, it reflects the cultural context within which it seeks to protect all African peoples, men, women and children.48 Regional Human Rights System (Ardsley: Transnational Publishers, Inc., 2003); Rachel Murray, Human Rights in Africa: From the OAU to the African Union (Cambridge: Cambridge University Press, 2004); F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nihjoff, 2003); U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague: Martinus Nihjoff, 1997); Wolfgang Benedek, “The African Charter and Commission on Human and Peoples’ Rights: How to Make it More Effective” (1993) 11 NQHR 25; Curtis F. J . Doebbler, “A Complex Ambiguity: The Relationship between the African Commission on Human and Peoples’ Rights and Other African Union Initiatives Affecting Respect for Human Rights” (2003) 13 Transnat’l L. & Contemp. Probs. 7. For studies on regionalism and regional integration in Africa, see, A. Lavergne (ed.), Regional Integration and Cooperation in West Africa: A Multidimensional Perspective (IDRC: Africa World Press, 1997); Deji Olowu, “Regional Integration, Development, and the African Union Agenda: Challenges, Gaps and Opportunities” (2003) 13 (1) Transnational Law & Contemporary Problems 211-53; S. K. B. Asante, The Political Economy of Regionalism in Africa: A Decade of Community of West African States (ECOWAS) (United States: Praeger Pubs. 1986). Article 17(3) of the Charter, for example, provides that “the promotion and the protection of morals and traditional values recognised by the community shall be the duty of the state.” The African Charter also recognises the inchoate 44 For an analysis of the African Charter and the system it establishes, see, ibid, U.O. Umozurike; ibid, Evans & Murray (eds); ibid., W. Benedek; Ibid., E. A. Ankhumah; F. Ouguergouz, ibid., and Christof Heyns, “The African Regional Human Rights System: The African Charter” (2004) 108 (3) Penn State Law Review 679. 45 The African Charter distinguishes itself as the first international human rights treaty upholding the interdependence and indivisibility of rights along with individual duties and collective rights. For example, Article 27 (1) states that “Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community.” 46 Christof Heyn, supra note 44 at 686. 47 “The Banjul (African) Charter met with a largely hostile reception from academic circles.” Gino J. Naldi, “The African Union and the Regional Human Rights System” in Malcolm Evans and Rachel Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice 1986-2006 (2nd Ed.), (Cambridge: Cambridge University Press, 2008) at 25. 48 This is lauded as emphasising the indivisibility of human rights and the importance of developmental issues to African nations. Christof Heyn, supra note 44 at 690 40 third generation rights, such as the right to development49 and environmental rights.50 Even though its provisions generated immense controversies among human rights scholars,51 the African Charter remains the core regional instrument for human rights protection in Africa. It has been complemented by several other human rights treaties by virtue of the provision that allows the OAU to adopt supplementary special protocols or agreements.52 The African Commission on Human and Peoples’ Rights53 was established in 1987, pursuant to Article 30 of the African Charter, to monitor its implementation. It discharges this mandate through its reporting and communication procedures, an on-site investigation mechanism, and the thematic mandates of special rapporteurs as well as working groups dealing with specific issues. The African Commission has been criticised for ineffectiveness, especially compared with its European and Inter-American counterparts.54 Notwithstanding obstacles to its full effectiveness, it has contributed and continues to contribute to standard-setting, jurisprudence and institutional development of human rights.55 49 Article 22 of the African Charter. For instance, the African Commission has 50 Ibid., Article 24. 51 See for example, H. Onoria, “Introduction to the African System of Protection of Human Rights and the Draft Protocol” in W. Benedek, E. M. Kisaakye and G. Oberleitner (eds.), The Human Rights of Women: International Instruments and African Experiences (London: Zeb Books Ltd, 2002) Onoria argues that differences, such as the communitarian focus and the emphasis on traditions and values borne out of African civilisation, are a major weakness of the African Charter. 52 Prior to adoption of the African Charter, the OAU adopted the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, on 10 September 1969, entered into force on 20 June 1974. It was however after the African Charter that several human rights treaties followed. These include the African Charter on the Rights and Welfare of the Child, adopted in July 1990, entered into force on 29 November 1999 CAB/LEG/24.9/49 (1990) and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights adopted in Addis Ababa in June 1998 CAB/LEG/66.5. Online: <http://www.african- union.org>. 53 As a treaty body, the Commission retains its existence after the transformation into the AU. 54 B. O. Okere, supra note 3; B. H. Weston, “Regional Human Rights Regimes: A Comparison and Appraisal” (1987) 20 (4) Vanderbilt Journal of Transnational Law 585 at 613. 55 C. A. Odinkalu, “Human Rights Mechanisms in Africa: Recent Developments in their Norms, Institutions and Jurisprudence” (2003) 3 Human Rights Law Review 105; Mashood A. Baderin, “Recent Developments in the African Regional Human Rights System” (2005) (5)(1) Human Rights Law Review 117. 41 affirmed the indivisibility as well as the justiciability of economic, social and cultural rights in recent decisions.56 As well, the establishment of the African Court on Human and Peoples’ Rights is a significant institutional development for the region57 since the transformation of the OAU to the AU. b) Human Rights and Transition to the AU The formal transformation of the OAU into the AU in 2002 during the OAU Summit in Durban preceded the adoption of the Constitutive Act of the African Union.58 Part of the mandate of the AU, as the replacement umbrella body of the fifty-three member states, is the regional protection of rights. The Constitutive Act elaborates objectives and principles that indicate a resolve to promote, protect and respect human and peoples’ rights in accordance with the African Charter and other relevant human rights instruments.59 Unlike the OAU Charter, the Constitutive Act emphasises the importance of human rights to the political, economic and social stability and development of Africa. It expresses determination to strengthen African institutions (human rights institutions inclusive) by providing them with the necessary power and resources to enable them to discharge their mandate efficiently.60 56 See for example, The Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v. Nigeria African Commission on Human and Peoples’ Rights Comm. No. 155/96 (2001); Purohit and Moore v. The Gambia, African Commission on Human and Peoples’ Rights Comm. No. 241/2001 (2003). In addition to institutions 57 Protocol to the African Court on Human and People’s Right on the Establishment of an African Court on Human and People’s Rights, OAU/LEG/AFCHPR/PROT(iii) adopted by the Assembly of Heads of State and Government, Thirty- Fourth Session, Burkina Faso, 8-10 June 1998, entered into force on 25 January 2004 (hereinafter African Court Protocol or Court Protocol). 58 The AU became operational with the adoption of the Durban Declaration in Tribute to the Organisation of the OAU on the Occasion of the Launching of the African Union by the Assembly of the African Union. ASS/AU/Decl.2 (1) 10-12 July 2002 Durban, South Africa. AU website, online: <http://www.africa- union.org/Official_documents/Decisions_Declarations/durban%202002/Durban-Ass-AU-decl2.pdf>. Accessed 31 July 2007. 59 See Articles 3 and 4 of the Constitutive Act, supra note 8. 60 Ibid., generally the Preamble. 42 external to the AU (such as the African Commission), several AU organs have specific human rights mandates.61 Hence, the transformation of the AU, at the very least, indicates a symbolic shift away from the traditionally inconsistent approach of the OAU towards human rights protection. This symbolic shift is apparent in its normative or standard setting activities, as identified in the Constitutive Act and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, as well as the institutional addition of an African Court.62 Given the focus of this dissertation, the next part undertakes a background of international and other regional protection of women’s rights before examining the institutionalisation of women’s rights at the African regional level. III. International Protection and Institutionalising African Women’s Rights The existing treaties, mechanisms and processes available for protecting women’s rights are generally impressive. Internationally, regionally and nationally, attention to women’s rights has increased over the last three decades. Even though women-specific human rights instruments are found in almost all parts of the world,63 61 These include the Assembly of the African Union; the Pan-African Parliament; Commission of the African Union specifically through its Women, Gender and Development Directorate; and the Economic, Social, and Cultural Council which has mandates specifically relevant to human rights and women’s rights in particular. See generally Articles 6, 9, 17, 20 and 22 of the Constitutive Act. See Mosope Fagbongbe, “Regional Protection of Women’s Economic Social and Cultural Rights in Africa: The Women’s Protocol and the African Union” (2007) 15 African Yearbook of International Law 163. The role of the African Commission will be discussed subsequently. nowhere can women claim to have achieved equality 62 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol or Protocol ) OAU Doc. CAB/LEG/66.6 Rev. 1, adopted by the Assembly of African Heads of State and Government in Maputo, Mozambique, 11 July 2003, entered into force 25 November 2005. Twenty-one states had ratified the Women’s Protocol as of 26 May 2007. Online: <http://www.africa- union.org/root/au/Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf>, accessed 31 July 2007. 63 For example, the Council of Europe has several declarations and recommendations addressing women’s rights, such as the Declaration on the Equality of Women and Men, adopted by the Committee of Ministers on 16 November 1988. Other regional instruments on women’s rights include the Cairo Declaration for the Elimination 43 with men or freedom from discrimination on the basis of gender.64 This section undertakes a cursory examination of the UN system for the protection of women as well as other regional systems. It argues that none of the systems can claim to have attained the optimum level of protection of women’s rights. 1. The UN System for Women’s Rights The Charter of the United Nations Organisation reaffirms “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations, large and small….”65 This represents the first contemporary formal recognition of equality between the sexes. Subsequently, the Commission on the Status of Women (CSW) established within the UN system became the first contemporary international women-specific human rights mechanism.66 Initially a sub-commission of the Commission on Human Rights, the CSW became a full commission in 1947 with the mandate to elaborate policies and strategies aimed at achieving gender equality in all parts of the world, as well as to consider and make recommendations on communications relating to the status of women.67 of FGM adopted by Arab countries in 2003; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women adopted on 9 June 1994 by the General Assembly of the Organisation of American States at its 24th Session, entry into force 5 March 1995; and the Women’s Protocol. 64 Susan Boyd (ed.), Challenging the Public /Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997) at 6. Boyd observes that despite law reform in family law and employment law and the coming into force of Section 15 of the Canadian Charter of Rights and Freedoms in 1985, the inequality of women compared to men persists in various spheres of Canadian society. 65 See Paragraph 2 of the Preamble to the Charter of the United Nations Organisation [Emphasis added]. See also Article 1(3) of the UN Charter. Following this were several international human rights treaties containing the principle of non-discrimination. 66 UN Resolution 11(II) of 21 June 1946. 67 The original mandate of the CSW was amended by the Economic and Social Council of the UN, which is entrusted with the responsibility for human rights (along with the General Assembly), several times to meet emerging exigencies. See Christine Ainetter Brautigam, “International Human Rights Law: The Relevance of Gender” in Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner (eds.), supra note 51 at 5. 44 The CSW employed several strategies that moved women’s rights to the front burner of the international human rights law discourse. These included contributions to drafting general human rights treaties, such as the UDHR;68 convening high-visibility events and activities, such as the Fourth World Conference on Women, also known as the Beijing Conference;69 and the drafting of women-specific international human rights treaties and declarations.70 The most significant women-specific treaty drafted under the auspices of the UN remains the Convention on the Elimination of all Forms of Discrimination against Women (Women’s Convention) that creates a binding (upon State Parties or States that ratify) international treaty, comprehensive in scope and global in nature.71 68 The CSW participated in the drafting of different UN documents including the Universal Declaration of Human Rights as well as the Declaration on the Elimination of Discrimination against Women, U.N.Doc. A/6716 (1967); the Women’s Convention supra note 34. There are 186 States Parties to the Women’s Convention as at 5 December 2009. For the contribution of the CSW and the women’s movement generally to the drafting of the UDHR, see J. Morsink, “Women’s Rights in the Universal Declaration” (1991) 13 Human Rights Quarterly 233. The Women’s Convention establishes clear obligations and duties of states towards elimination of gender discrimination and the achievement of equality between 69 Other conferences include the Teheran World Conference on Human Rights 1968, the First World Conference on Women held in Mexico city in 1975, the second World Conference on Women held in Copenhagen in 1980; the third held in Nairobi in 1985; and the declaration of the U.N Decade for Women 1975-1986. Other U.N. conferences that recognised the rights of women include the Vienna Conference at which the international community made a firm commitment to make women’s rights one of the priorities of the international human rights agenda. Article 18 of the Vienna Declaration and Program of Action states: “The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.” See, World Conference on Human Rights, Vienna, 14-25 June, 1993, A/CONF.157/23 12 July 1993. 70 Treaties drafted by the CSW are the Convention on the Political Rights of Women 193 UNTS 135 adopted in 20 December 1952, entered into force 7 July 1954, the Convention on the Nationality of Married Women, 309 UNTS 65 adopted in 20 February 1957, entered into force 11 August 1958, the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 521 UNTS 231, adopted 10 December 1962, entered into force 9 December 1964. See, Christine Ainetter Brautigam, supra note 67 at 9. 71 The Declaration on the Elimination of Discrimination against Women was the first attempt at a comprehensive document to address the needs of women. The Declaration was adopted by the General Assembly in 1967; its non- binding status necessitated the adoption of the Women’s Convention, supra note 34. The International Labour Organisation also boosts international standards for the protection of women in labour, maternity and family. As of September 2008, 185 ratification accessions and successions had been made to the Women’s Convention. For a list of ratifications see, online: <http://www.un.org/womenwatch/daw/cedaw/states.htm>, (accessed 26 September 2008). 45 women and men.72 It mandates the Committee on the Elimination of Discrimination against Women (CEDAW) to monitor the implementation of rights enumerated.73 An Optional Protocol was subsequently adopted to supplement the inadequate enforcement mechanisms of the Women’s Convention.74 Article 1 and 2 of the Optional Protocol create a communications procedure whereby individuals and groups who allege violation of their rights can lodge complaints or bring communications before the CEDAW for redress under the Women’s Convention.75 Article 8 of the Optional Protocol introduces an inquiry procedure that allows the CEDAW to investigate allegations of grave or systemic violations of women’s rights within State Parties. The Optional Protocol reaffirms existing remedies under other international human rights instruments and improves the monitoring of the Women’s Convention. Other initiatives for promoting women’s rights at the UN are the Declaration on the Elimination of Violence against Women76 and the appointment of a Special Rapporteur on Violence against Women, including its Causes and its Consequences, by the Commission on Human Rights.77 72 Christine Ainetter Brautigam, supra note 67 at 11-12. 73 State Parties to the Women’s Convention report on compliance to the Committee on the Elimination of Discrimination against Women (hereinafter “CEDAW”) every four years. 74 This focus on human rights enforcement is addressed subsequently in this dissertation. 75 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women adopted 1999, 38 I.L.M. 763, 43rd Sess., Agenda Item 6, U.N. Doc. E/CN/.6/1999/WG/L.2 (1999), entered into force 22 December 2000 for countries that have ratified it. As of 27 November 2007, 90 countries have ratified the Optional Protocol. Online: <http://www.un.org/womenwatch/daw/cedaw/protocol/sigop.htm>. Article 18 provides for enforcement of the Women’s Convention and creates obligations for state reporting. Article 29 provides a framework to resolve conflicting views concerning interpretation and application of the Convention to State Parties. 76 UN Doc. A/RES/48/104 of 20 December 1993. 77 UN Commission on Human Rights Resolution 1994/45, adopted on 4 March 1994. The mandate of the Special Rapporteur was extended at the Commission’s 59th session, Resolution 2003/45. Since 2006, the Special Rapporteur reports to the Human Rights Council per Human Rights Council’s decision 1/102. The Special Rapporteur transmits urgent appeals and communications to State regarding alleged cases of violence against women, undertakes fact-finding country visits and to submit annual thematic reports to the Human Rights Council in the discharge of her mandate. The current Special Rapporteur on Violence against Women is Dr. Yakin Erturk. See also online: <http://www2.ohchr.org/english/issues/women/rapporteur/>, (accessed 21 November 2008). 46 Even though the Declaration is not binding, it encourages states to condemn all forms of violence against women. Commentators however identify several shortcomings with the UN system for the protection of women, prominent among which are States’ reservations to the Women’s Convention limiting its application.78 Apart from attracting the highest number of objections, declarations, and reservations compared with other international human rights treaties,79 the Women’s Convention and its implementation mechanisms attract other criticisms.80 The “opt out”81 clause in the Optional Protocol allows state parties, upon ratification or accession, to opt out of the inquiry procedure. Bangladesh, Belize, Columbia and Cuba have made opting out declarations to the Optional Protocol.82 Also criticised are delays experienced in examining state reports by the CEDAW as an obstacle to the international system for the protection of women’s rights.83 These, among other challenges confronting the international institutional protection of rights, resulted in requests for complementary regional human rights instruments for the protection of women’s rights. While the UN system espouses minimum standards for protection of women’s rights, the regional and national initiatives complement and elaborate upon such standards. In line with this, Christof Heyn and Magnus Killander’s observation regarding human rights 78 As at 2006 over 50 countries made declaration and reservations to the Women’s Convention with only 3 withdrawals of reservations to particular provisions between 2004 and 2006. 79 185 countries, over ninety percent of the members of the UN are party to the Women’s Convention, although over fifty countries 50 countries retain their declaration or reservations while over 10 countries have withdrawn their reservations. Online: < http://www.un.org/womenwatch/daw/cedaw/states.htm>. 80 The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter Optional Protocol), 6 October 1999. U. N.T.S, Vol. 2131 at 83. As at 11 November 2009, there are ninety-nine State Parties. 81 See Article 10 of the Optional Protocol. 82 UN Treaty Collection, online: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8- b&chapter=4&lang=en>. Accessed 11 November 2009. 83 Delays are due to a backlog of overdue reports and the shortness of the period designated for the CEDAW committee meeting. To address this problem, the General Assembly of the UN by Res 60/230 authorised the CEDAW committee to hold three annual session of three weeks each with a one-week pre-sessional working group for each session, effective from January 2006 as a temporary measure for addressing the back log of reports.. 47 similarly apply to women’s rights.84 According to their reasoning, attention to women’s rights at the regional level provides the continent with an entry point to international human rights of women and the other way round. Not only will such a regional system allow African women to make a stronger contribution towards the development of international human rights law generally, it will also allow for greater acceptance of these norms by African states and citizens to the extent that African experience is integrated into these rights.85 Women’s roles are particularly critical in setting standards at the regional level so that such norms, their application, implementation and enforcement specifically recognise and address the particularities of the experiences of African women. Complementary women-specific attention to human rights at the regional level encompasses the European, Inter-American and the African regional human rights systems. Each of these is considered below. 2. The European Regional System for Women’s Rights The European regional human rights system emerged under the auspices of the Council of Europe.86 84 Christof Heyns and Magnus Killander, “Africa in International Human Rights Textbooks” at 4. Online: <http://www.up.ac.za/dspace/bitstream/2263/5509/1/Heyns_Africa(2007).pdf>. The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), its additional protocols and the European Social Charter with its 85 Ibid at 4. 86 The Council of Europe which consisted of only 15 Western European member states at inception in 1949 now has 47 member states: Statute of the Council of Europe. The European Convention on Human Rights (as it is popularly known) was signed on 4 November 1959 and entered into force in 1953. Other organisations with strong human rights components include the Organisation for Security and Cooperation in European (OSCE) as well as the European Economic Community (now European Union) 48 amendments, constitute the main normative human rights elements of this system,87 supplemented by a number of declarations and recommendations. The European Convention does not include a general principle of equality and non discrimination, but Article 14 prohibits any “distinction” based on the rights and liberties guaranteed under the Convention. Article 8 protects private and family life and Article 12 guarantees the right of men and women to marry and to found a family. These provisions are to be read in conjunction with Article 5 of the 7th Additional Protocol to the European Convention of 1984.88 In 2000, the Committee of Ministers of the Council of Europe adopted Protocol 12 to the European Convention which has the effect of extending the non-discrimination guarantee in Article 14.89 The mechanisms for implementing these rights was restructured in 1998 when the Council of Europe replaced the European Commission on Human Rights and the European Court of Human Rights with a single body, the permanent European Court on Human Rights. European standards for equality and non-discrimination have been developed and clarified through a number of cases.90 87 For a discussion of the documents see Wolfgang Benedek, “The European System of Protection of Human Rights and Human Rights of Women” in Wolfgang Benedek et al, Human Rights of Women, supra note 51 at 211 -214. 88 Council of Europe, Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 22 November 1984. ETS 117 Online UNHCR Refworld, online: <http://www.unhcr.org/refworld/docid/3ae6b3654.html>, (accessed 21 March 2009). Article 5 provides that “[s]pouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 89 Council of Europe, Protocol 12 to the European Convention on Human Rights and Fundamental Freedoms on the Prohibition of Discrimination, ETS 177, 4 November 2000, entered into force 1 April 2005. UNHCR Refworld, Online: <http://www.unhcr.org/refworld/docid/3ddd0cb44.html> Accessed 21 March 2009. 90 Oddny Mjoll Arnardottir, Equality and Non-Discrimination under the European Convention on Human Rights (Martinus Nihjof Publishers, 2003). See for example, Airey v Ireland, Application No: 6289/73, 9 October 1979 and X and Y v. The Netherlands Application No: 8978/80, 26 March 1985. See also, Rebecca J. Cook, “Essay: International Human Rights Law Concerning Women: Case Notes and Comments” (1990) 23 Vand. J. Transnat’l L. 779. 49 Also relevant to the European system is the European Social Charter.91 The Charter and its Additional Protocol protect economic and social rights. The former guarantees the right to equal remuneration of male and female workers while the later enables parties to the Charter to grant inter alia, “equal opportunities and equal treatment in matters of employment and occupation without discrimination on grounds of sex.”92 A committee of independent experts elected by the Council of Europe’s Committee of Ministers implements this provision of the European Social Charter through the review of state reports.93 In addition, the Council of Europe set up a committee of experts to promote equality on the basis of an action plan for the promotion of equality between men and women in 1988.94 The Steering Committee for Equality between Women and Men (CDEG) seeks to promote European co-operation between member States with a view to achieving real equality between women and men as a sine qua non of genuine democracy, among other things.95 Other European organisations with a human rights remit include the Organisation for Security and Cooperation in Europe (OSCE) and the European Union (EU). Although principally a security organisation, the OSCE holds regular conferences to monitor the human rights 91 The European Social Charter was adopted in 1961 and revised in 1996 ETS 163 3 V. 1996. As of 1 September 2008, 39 countries are members of the Charter, 24 of which ratified the revised Charter. See, for example, Articles 3, 8, 20 and 27 of the revised Charter. 92 Article 1 of the Additional Protocol to the European Social Charter, ETS No. 128 V.5.1988 entered into force 4 September 1992. 13 member states have ratified the protocol as of 26 September 2008. Online: <http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=128&CM=7&DF=26/10/2008&CL=ENG>. 93 Additional Protocol to the European Social Charter Providing for a System of Collective Complaint, ETS 158. See also Wolfgang Benedek, “The European System of Protection of Human Rights and Human Rights of Women” in W. Benedek et al, supra note 51 at 213. The Committee of Ministers supervises the implementation of recommendations which it addresses to member states. 94 The Committee of Ministers of the Council of Europe also adopted the Declaration on Equality of Women and Men and the Declaration on Policies for Combating Violence against Women in a Democratic Europe adopted in 1988 and 1993 respectively. 95 The terms of reference of the Committee were to examine the situation as regards equality between women and men in European society and consider its progress. See Directorate General of Human Rights, Council of Europe. Online: <http://www.humanrights.coe.int/Equality/Eng/EqualityCommittee/EqualityCommittee.htm#ToP>. The Committee also seeks to promote taking into account of gender dimensions in activities undertaken by the other Steering Committees; to undertake specific actions contributing to the implementation of a genuinely equal democracy between women and men; to address all forms of violence against women; and to promote the right to free choice in matters of reproduction and lifestyles among other rights. 50 performance of member states. The Office of Democratic Institutions and Human Rights (ODIHR) of the OSCE Council provides practical support for democratic institutions and human rights, and has included gender issues in its programmes.96 The EU through its political and other organs, the European Parliament, the European Commission, the European Court of Justice and the European Council (not the Council of Europe) have each developed a human rights policy as the basis for adopting several declarations and provisions on human rights. By virtue of the Treaty of Amsterdam (a revision of the Treaty on the European Union), equal treatment and gender mainstreaming were introduced into the main treaty.97 The European Court of Justice has also determined several cases concerned with equality.98 The European system largely developed its human rights promotional aspects after 1989 when it had to absorb a number of Eastern European states. Although significant progress has been made, the European system lacks a comprehensive women’s rights instrument (the planned additional protocol on equality has yet to materialise). Hence, the European system largely takes an ad hoc approach towards promoting the equal status of women. 96 To increase gender awareness, a “Focal Point on Gender Issues” and a “Gender Mainstreaming and Human Rights of Women Advisor” were created in the ODIHR. It also organises research projects and workshops to promote women’s participation in politics, in conflict resolution and post-conflict rehabilitation among its other activities. 97 The Treaty of Amsterdam entered into force in 1999. Article 2 provides for equal treatment of men and women while Article 3 (2) provides that in all its activities the Community will work towards the elimination of inequalities and the promotion of equality of men and women. 98 For example in Abdoulaye and Others v Regie Nationale Des Usinees Renault SA Case No: C 218/98 16 September 1999, the Court held that the principle of equality laid down in Article 119 (now 141) of the EC treaty did not preclude the making of a lump-sum payment exclusively to female employees who took maternity leave. Robyn Emerton, Kristine Adams, Andrew Byrnes and Jane Connors (eds.), International Women’s Rights Cases (London: Cavendish Publishing Ltd, 2005) at 446-447. The debates regarding the possibilities of overlapping and conflicting decisions of the European Court of Human Rights and the European Court of Justice is beyond the purview of this work. See, Clemens Rieder, “Protecting Human Rights within the European Union: Who is Better Qualified to do the Job – The European Court of Justice or the European Court of Hunan Rights” (2005) 20 Tulane European and Civil Law Forum 73. 51 3. The Inter-American System for Women’s Rights The need to deal with social polarisation on economic and ideological grounds, characteristic of the cold war era, determined the limited attention to human rights and women’s rights, in particular, within the Inter-American system. The end of the cold war and the emergence of democracy brought about changes to the benefit of women, to the extent that more open and pluralistic societies created spaces for public debate and organising, previously unimaginable under authoritarian governments.99 The changes became apparent in activities of the Inter- American Commission and Court, both supervisory organs of the two basic human rights documents of the Inter-American system, the American Convention on Human Rights and the American Declaration on the Rights and Duties of Men.100 The Inter-American Commission on Women (the Women’s Commission) is the specialised arm of the Organisation of American States (OAS) with the mandate to advance women’s rights and gender equality at the regional level.101 The Women’s Commission has facilitated organising meetings and adopting treaties, declarations and resolutions relating to women. In 1990, the Commission held the Inter-American Consultation on Women and Violence to address violence against women, followed by sessions of the intergovernmental meeting of experts that resulted in the draft Inter-American Convention on Women and Violence. At its Twenty-fourth regular General Assembly, the OAS adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para).102 99 Claudio Grossman, “The Inter-American System: Opportunities for Women’s Rights” (1994-1995) 44 Am. U. L. Rev. 1305 at 1306. Further, an Additional Protocol to the American Convention on Human Rights in the Area of 100 Ibid. 101 The Inter-American Commission on Women traces its history to 1923 when it began a hemispheric struggle for women’s suffrage in OAS member states. 102 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, also known as the Convention of Belem do Para, opened for signature 9 June 1994, 1438 U.N.T.S. 63. 52 Economic, Social and Cultural Rights was adopted,103 inter alia, to extend the right to social security for women’s paid leave before and after birth.104 Initially, the Inter-American Commission and Court erred on the side of caution in cases regarding women. In the Loayaza-Tamayo case,105 relating to sexual violence against women, the Inter-American Court applied a different (stricter) evidentiary standard in the case of rape than required for other forms of mistreatment and torture to decide the case on gender-neutral grounds. However, in Miguel Castro-Castro Prison v Peru,106 for the first time, the Court addressed violations of human rights of women directly by incorporating the Convention of Belem do Para into its analysis to give full recognition of the human rights of women in the Inter-American context.107 Along with both human rights instruments protecting women and the decisions of the Inter-American Commission and Court, this system appears to operate a more systematic model for the protection of women’s rights than the European system. 4. The African System for Women’s Rights The OAU did not entirely ignore women even though the principal institutions or organs of the OAU left little or no room for women’s participation108 103 The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), 17 November 1988. OAS Treaty Series No 69, 1988. in decision-making positions until the 1990s. There were no female Heads of State and Government who could participate in the 104 Ibid., Article 9(2). 105The Inter-American Court had decided matters relating to women in earlier cases such as, Loayza-Tamayo v Peru (Merits), Inter-Am. Ct. H. R. (ser. C) No. 33 (September 17 1997) and the Case of Plan de Sanchez Massacre v. Guatemala (Merits) Inter-Am. Ct. H. R. (ser. C) No. 105 (29 April 2004), but it was not until November 2006 that the Inter-American Court directly addressed the violation of human rights of women. 106 Miguel Castro-Castro Prison v Peru (Castro-Castro Prison Case) Inter-Amer. Ct. H. R. (ser. C.) No. 160 (25 November 2006). 107 Karla I. Quintana Osuna, “Recent Developments: Recognition of Women’s Rights before the Inter-American Court of Human Rights” (2008) 21 Harvard Human Rights Journal 301 at 302. 108 These institutions were (1) the Assembly of Heads of State and Government; (2) the Council of Ministers; (3) the General Secretariat; and (4) the Commission on Mediation, Conciliation and Arbitration. 53 Assembly of Heads of State and Government.109 Few women were appointed to ministerial positions in the Council of Ministers (now Executive Council).110 Similarly, at the OAU secretariat, before the mid-1990s the bulk of women were found in clerical and administrative positions, with only a handful holding key decision-making positions.111 Recent occurrences have paved the way for women’s active participation at the regional level. The single most significant event is the adoption of the Women’s Protocol by the AU following its transformation.112 Others relate to the content of the Constitutive Act of the African Union, as well as recent establishment of the African Court on Human and Peoples’ Rights and the appointment of judges to that Court.113 109 A similar situation existed in the European region whereby as at 2000 two females served in the European Council. President Tarja Halonen of Finland and President Mary McAleese of Ireland, other heads of states of Denmark, the Netherlands and the United Kingdom were not elected but legitimised by birth. The relevance of these normative and institutional developments to women cannot be ignored. This section examines these changes and its implications for African women. The next subsection therefore examines the OAU’s and the AU’s commitment to the promotion of women’s rights. 110 Although historically there are female leaders in some parts of Africa, such as the Queen-regents of Swaziland, Dzeliwe Shonwe and Ntombe Thwala 1982-83 and 1983-86 respectively, and Elizabeth Domitien, Prime Minister of the Central African Republic 1975-76, it was not until the 1990s that women leaders became visible. The first African female non-monarchical head of government, Ms. Ruth Perry, became the Liberian interim leader in August 1996 during the transition government set up under a peace agreement between rival Liberian armed factions. Similarly only two ministerial appointees were counted at a Ministerial meeting held in the mid-1990s. See, Aili Mari Tripp, “New Trends in Women’s Political Participation in Africa,” online: <http://democracy.stanford.edu/Seminar/AiliTripp.pdf>, accessed 28 May 2008. In 1997, Joyce Mende-Cole, the Senior Regional Gender Advisor for the United Nations Development Programme (UNDP), noted that "The OAU Secretariat is a male bastion. Women are nowhere (in the Addis Ababa-based Secretariat's leadership),” revealing the dearth of women’s participation at the OAU: Patricia A. Made, “What’s she doing there?” Online: <http://www.hartford-hwp.com/archives/30/061.html>, accessed 26 May 2008. 111 For example in 1997 the Secretary General and his five Assistant Secretary-Generals were men. The only woman who served as a head of division was the Women’s Affairs Officer in the OAU Women’s Unit: Ibid. 112 The reason for the immediate adoption of the Women’s Protocol by the AU is not clear. R. Murray, “Women’s Rights and the Organization of African Unity and African Union: The Protocol on the Rights of Women in Africa” in Doris Buss and A. Manji (eds), International Law: Modern Feminist Approaches (Oxford: Hart Publication, 2005). 113 For the list of judges, see, the 2006 Activity Report of the Court, Assembly/AU/8 (VIII). Online: <http://www. africancourtcoalition.org/content_files/files/AfricanHRCourtreportJan2007.doc>. 54 a) The OAU Women’s Rights Agenda or Non-Agenda? As noted in preceding sections, the OAU was largely preoccupied with de-colonisation and protecting the sovereignty of member states. It was not until the adoption of the African Charter and mechanisms established thereof, such as the African Commission and its Special Rapporteur on the Rights of Women in Africa (SRRWA), that protecting women’s rights at the regional level took a more coordinated turn.114 However, the OAU did, in part, acknowledge the importance of women’s empowerment. In 1991, the Heads of State and Government of the OAU signed the African Economic Community (AEC) Treaty115 that laid a framework for economic integration of the continent to be carried out over a thirty-four year period.116 The objectives of the AEC Treaty are to promote economic, social and cultural development; integrate African economies leading to increased self-reliance; harness and develop Africa’s human and material resources; promote co-operation so as to raise the standard of living and enhance economic stability; foster peaceful relations among member states; and contribute to the progress, development, and economic integration of the continent.117 By virtue of Article 75 of the AEC Treaty, OAU Member States committed themselves to work together for the “full development of the African woman through the improvement of her economic, social and cultural conditions” by taking “all measures necessary to ensure greater integration of women in development activities within the Community.” 114 Article 18 (3) of the African Charter; For appointment of the Special Rapporteur on the Rights of Women in Africa (hereinafter SRRWA), see, the Final Communiqué of the 23rd Ordinary Session of the African Commission on Human and Peoples' Rights, 1998 Para. 11. Online: <http://www.achpr.org/english/_info/index_women_en.html>, accessed 21 July 2007. The SRRWA has been the most visible mechanism paying attention to women’s rights beyond the African Commission. 115 Treaty Establishing the African Economic Community 30 I.L.M 1241 [hereinafter AEC Treaty], reprinted in Gino J. Naldi (ed.) Documents of the Organisation of African Unity (1992) 203, known as the Abuja Treaty, entered into force 1993. See also Gino J. Naldi and Konstantinos D. Magliveras, “The African Economic Community: Emancipation for African States or Yet another Glorious Failure?” (1999) 24 N.C.J. Int’l & Com. Reg. 601. 116 Article 3(1) of the AEC Treaty. 117 Ibid., Article 4 (1). 55 In line with this provision the OAU made efforts to strengthen its Women’s Unit as an important organ to “play a more catalytic role in the promotion of gender issues and implementation of collective strategies aimed at enhancing the role and status of women in Africa.”118 The Women’s Unit sought to “integrate women’s issues and concerns into OAU programmes and policies through coordination and intervention.”119 The main programs of the Women’s Unit were drawn from the AEC Treaty as well as “the African Platform for Action: Africa’s Common Position for the Advancement of Women.”120 This Platform of Action called for immediate consideration of all critical areas of concern identified to include women’s poverty, insufficient food security and lack of economic empowerment as well as women’s legal and human rights.121 The Platform was adopted “as a renewed commitment” by African governments, a “synthesis of regional perspectives and priorities and a framework for action for the formulation of policies and implementation of concrete and sustainable programmes for the advancement of women.”122 The OAU has also showed interest in women’s involvement in peace and development.123 118 Organisation of African Unity, “OAU Gives Priority to the Enhancement of the Role and Status of Women.” Population Newsletter Vol. 1 No. 2 April 1994. Online: <http://www.un.org/popin/oau/popnews/popnwv12.htm>. (accessed 29 May 2008). Through its Council of Ministers, the OAU reaffirmed commitment to “take special measures to promote the participation of women in political decision-making, particularly in governments, 119 Ibid. 120 Adopted at the Fifth African Regional Conference on Women, Dakar Senegal, 16-23 November 1994. See also Addis Ababa Declaration on the Dakar African Platform for Action on Women AHG/Dec.2 (XXXI) adopted at the Thrity-first Ordinary Session of the Assembly of Heads of State and Government 26-28 June 1995. Online: <http://www.africa-union.org/root/au/Documents/Decisions/hog/5HoGAssembly1995.pdf> at 15. 121 See para 3 of the Platform of Action. 122 Ibid, see para. 6, mission statement. The conference reviewed the Nairobi Forward-Looking Strategies for the Advancement of Women in order to arrive at the Dakar African Platform of Action. 123 OAU Plan of Action on Enhancing the Participation of Refugee, Returnee and Internally Displaced Women and Children in Rehabilitation, Reintegration, Reconstruction and Peace-Building. 56 Inter-African organisations, in national delegations participating in African meetings including meetings relating to peace and development process.”124 The African Charter guarantees inter alia rights to equality, non-discrimination,125 and the elimination of all forms of discrimination against women “as stipulated in international declarations and conventions.”126 Despite the controversial nature of the protection afforded women in the African Charter, it remains the document central to the protection of women, complemented by the recently adopted Women’s Protocol.127 Additionally, the Special Rapporteur on the Rights of Women in Africa (SRRWA) was appointed in 1998 to: carry out studies on the situation of women’s rights in Africa; carry out activities to enhance monitoring of implementation of the African Charter by the African Commission; work in collaboration with NGOs and other organisations to harmonise initiatives on women’s rights; work towards the drafting and ratification by all member states of the protocol on women’s rights; and report to the African Commission, including making recommendations geared towards improving the situation of women.128 The SRRWA has been particularly instrumental in drafting, publicising and encouraging member states to ratify the Women’s Protocol.129 124 CM/Dec.469 (LXX) Decision on the Progress Report of the Secretary-General on the Efforts Deployed Towards Mainstreaming African Women’s Concerns into Peace and Sustainable Development Processes Doc. CM/2117 (LXX) adopted at the 70th OAU Council of Ministers Meeting Algiers, 8-10 July 1999. 125 Articles 2 and 3 of the African Charter. 126 Ibid., Article 18 (3). 127 The controversy surrounding these provision centers on the presumed generalisation in Article 18(3). While some scholars argue that the provision is adequate, others insist that without specifically adopting domestic legislation by the state parties, the provision would be ineffectual. See generally, U.O. Umozurike, supra note 43; Malcolm Evans & Rachel Murray (eds.), supra note 43; W. Benedek, supra note 51; Evelyn A. Ankhumah, supra note 43; and F. Ouguergouz, supra note 43. 128 “The legal basis for creation of a post of the Special Rapporteur on the Rights of Women in Africa is stipulated under Article 45 (b) and 66 of the African Charter and in Chapter VI of the Rules of Procedure of the Commission, which governs establishment of subsidiary bodies of the Commission.” Mandate and Resolution of the Special Rapporteur on Women’s Rights. Online: <http://www.acphpr.org/english/-infor/index_women_en.html>, accessed 19 May 2005. 129 See intercession activity reports of the SRWA 39th, 40th and 41st Ordinary Sessions of the African Commission. 57 Clearly, the OAU was not oblivious to the plight of women neither did it totally neglect women in its rhetoric. However, it was not until its transformation into the AU that actions to address the concerns of women intensified at the regional level. b) Women’s Rights and the AU The transition to the AU created the opportunity for institutional change toward greater commitment to protect women’s rights. Unlike the OAU Charter, the Constitutive Act specifies that the AU shall function in accordance with promoting the principle of gender equality.130 Moreover, in July 2003, the AU adopted the Women’s Protocol which institutionalises, affirms and guarantees rights that address specific human rights violations of African women, together with other rights. For example, Article 5 dealing with female genital surgery (commonly known as female genital mutilation or FGM) is the first binding international human rights provision to specifically call for elimination of the practice. Facilitated by intense advocacy and lobbying especially by women’s rights groups, the Women’s Protocol entered into force in November 2005 making it one of the quickest entries into force ever in the history of the region.131 Prior to this, in 2004, the Assembly of the AU reaffirmed its commitment to gender equality by adopting the Solemn Declaration on Gender Equality in Africa.132 130 Ibid., Article 4(l). See also the Protocol on Amendments to the Constitutive Act of the African Union, online: http://www.africa- union.org/root/au/Documents/Treaties/Text/Protocol%20on%20Amendments%20to%20the%20Constitutive%20A ct.pdf. The amendment renders the Constitutive Act more gender sensitive, among other changes. As at 09/08/07, 41 member states had signed the Protocol and 18 countries had ratified it. Article 13 of the Protocol provides for its entry into force 30 days after deposit of the instrument of ratification by two-thirds majority of member states of the AU. Online: <http://www.africa- union.org/root/au/Documents/Treaties/Text/Protocol%20on%20Amendments%20to%20the%20Constitutive%20A ct.pdf>. 131 Resolution on the Status of Women in Africa and the Entry into Force of the Women’s Protocol, adopted at the 38th Ordinary Session of the African Commission, the Gambia 21 November – 5 December 2005. The Protocol entered into force approximately twenty-eight months after its adoption. 132 Solemn Declaration on Gender Equality in Africa (SDGEA), Assembly/AU/ Decl.12 (III), Assembly of the African Union Third Ordinary Session 6-8 July 2004 Addis Ababa, Ethiopia. 58 Other mechanisms of the AU that pay some attention to women and gender equality include the New Partnership for Africa’s Development document (NEPAD)133 adopted by African leaders to address economic and social developments of the continent and to prevent marginalisation of Africa in globalisation.134 Benchmarks adopted under NEPAD indicate certain key objectives for democracy and political governance which member states would seek to achieve. These are constitutional democracy, promotion of economic, social, cultural, civil and political rights, separation of power and protection of the rights of women, children, the vulnerable and refugees.135 The African Peer Review Mechanism is a self-monitoring mechanism established to give effect to the NEPAD document and to deal with human rights practices of member states became operative during this period.136 Also relevant is the recently constituted African Court of Human and Peoples’ Rights.137 IV. Moving Forward This Chapter makes no attempt to cover the whole gamut of mechanisms available within any of the systems under consideration but merely highlights salient developments regarding women’s rights protection in the different systems. Indeed, women’s engagement with the African regional regime will be examined in fuller detail subsequently in this dissertation. The 133 The New Partnership for Africa’s Development (NEPAD) October 2001 provides a framework for Africa’s development. Online: <http://www.nepad.org/2005/files//documents/inbrief.pdf>, accessed 31 July 2007. 134 Adopted at the 37th Summit of the OAU in July 2001, OAU NEPAD Doc. (2001). Online: <http://www.nepad.org>. 135 Ibid. 136 African Peer Review Mechanism (APRM) Adopted at the 38th Ordinary session of the Assembly of Heads of State and Government, 8 June 2002 in Durban, South Africa. AHG/235 ( XXXIII) Annex II See Objectives, Standards, Criteria and Indicators for the African Peer Review Mechanism (APRM), NEPAD/HSGIC-03- 2003/APRM/Guideline/OSCI, 9 March 2003. Online: <http://www.au2002.gov.za/docs/summit_council/aprm.htm>, accessed 31 July 2007. As of June 2008, four countries, Ghana, Rwanda, Kenya, and South Africa, had been reviewed under this process, Benin, Nigeria, Burkina Faso, Algeria, and Uganda are in the process and twenty-nine countries have acceded to the APRM. See also Rachel Murray (ed.), Human Rights in Africa, supra note 43 at 40-41. 137 The judges of the African Court were sworn into office on 2 July 2006. As of 2 May 2007, the African Court had held three sessions. See the Activity Report of the Court for 2006, Assembly/AU/8 (VIII). Online: <http://www.africancourtcoalition.org/content_files/files/AfricanHRCourtreportJan2007.doc>, accessed 29 November 2007. 59 difference in historical experiences and tradition, as well as the need to respond to the political, economic and cultural environment in which these systems developed, largely dictates the approaches taken toward achieving individual regional objectives.138 In sum, the international regime and all three regional systems examined have progressively strengthened their capacity and capability to protect, promote, monitor and enforce women’s rights in the last few decades. Even though the OAU did not inspire confidence among the people because it lacked credibility due to the human rights violations committed by African leaders before, during and after the establishing the regional human rights system, the African system cannot be ignored. The mechanisms available to women in all the systems are not only increasing but also improving. This is not to suggest that any of the systems have attained their full potential. Many women around the world remain unaware of these regimes and the implications of the protections offered. As well, each system has its own distinctive challenges to contend with. 138 Wolfgang Benedek, supra note 51 at 223. 60 CHAPTER THREE: CRITICAL REVIEW OF WOMEN’S RIGHTS IN AFRICA I. Introduction There has been an explosion of literature relating to Africa’s regional regime for the protection of human rights in recent years.1 This may be attributed principally to recent developments identified in the previous chapter, such as the adoption of the Constitutive Act of the AU along with the transformation of the OAU into the AU in 2002. Other notable events are the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the establishment of the African Court geared toward strengthening protection and implementation of rights.2 Certain identifiable assumptions, however, underlie the literature, leading one international human rights commentator to observe that, although international human rights law advocates tolerance, inclusiveness and the promotion of equality among peoples, nations and individuals across the world, there seems to be a hierarchy of regional human rights systems, the European, Inter-American and African.3 This hierarchy is frequently marked by ideological preconceptions about their effectiveness, with the African regional human rights regime at the bottom. 1 Christof Heyns and Magus Killander, “The African Regional Human Rights System” in F. Gomez and K. de Feyter (eds.), International Protection of Human Rights: Achievements and Challenges (Bilbao: University of Deusto, 2005); Frans Viljeon and Lirrette Louw, “State Compliance with the Recommendation of the African Commission on Human and Peoples’ Rights 1994-2004” (2007) 101 Am. J. Int’l L 1; T. Murithi, The African Union: Pan-Africanism, Peace-building and Development (Ashgate Pub, 2005); Mbata B. Mangu, “The Changing Human Rights Landscape in Africa: Organisation of African Unity, African Union, New Partnership for Africa’s Development and the African Court” (2005) 23(3) Netherlands Quarterly of Human Rights 379; Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007). 2 These events include the entry into force of the Protocol to the African Court on Human and People’s Right on the Establishment of an African Court on Human and People’s Rights, OAU/LEG/AFCHPR/PROT.1 rev.2(1997) Online: <http://www.achpr.org/english/_info/court_en.html>, adopted 10 June 1998, entry into force 25 January 2005. The transition of the African Union in 2002 and the provision for an African Court of Justice of the African Union in the Constitutive Act of the African Union and the Protocol and Statute of the African Court of Justice and Human Rights that merges the African Court and the African Court of Justice. 3 Rachel Murray, “International Human Rights: Neglect of Perspectives from African Institutions” (2006) 55 International Community Law Quarterly 193. 61 As with the colonial experience, contemporary global and local (economic) dynamics, among sundry other factors, dictate current events and situations in most African societies. Preconceived ideas, whether conscious or subconscious, determine dominant assumptions about Africa. These ideas about Africa, largely negative, have the likely consequence of obliterating rational attempts to identify intrinsic African concepts that can positively stimulate growth and progress.4 Without playing down the seriousness of the challenges many African states face, unsavoury assumptions overwhelm potentially positive aspirations on the continent, in addition to obscuring actual progress by existing mechanisms and institutions. Yet, the legal and other implications of these assumptions for Africa, its institutions and Africans generally, have yet to be fully interrogated. Such assumptions (that condemn Africa to an inability to contribute anything significant) encourage the continued neglect of Africa in the world literature on human rights, and where considered, the information and analysis are often inaccurate.5 4 Most views of Africa are influenced by adventure films, sensational media reporting, and racial stereotypes which are usually pejorative in content and presentation. Contemporary commentators as well as writers of African history recognize that the picture of Africa in such materials sometimes verge on the exotic or the mundane: Robert O. Collins and James M. Burn, A History of Sub-Saharan Africa (Cambridge: Cambridge University Press, 2007) at 1. Not much attention has been paid to exploring the consequences of these problems, especially as they relate to women and other vulnerable groups in African societies. For African women, the stereotypical assumptions of their subordinate role as well as other challenges exacerbate these problems and also limit their ability to positively engage with the regime. This dissertation attempts to unearth these assumptions about the African regime as well as women. It underscores the consequences of such assumptions and the need to move away from them in order to proffer ways to make the system more beneficial for women and, thus, for Africans generally. 5 Rachel Murray, supra note 3; Christof Heyns and Magnus Killander, “Africa in International Human Rights Textbooks” Online: <http://www.up.ac.za/dspace/bitstream/2263/5509/1/Heyns_Africa(2007).pdf>. These authors specifically recognise the neglect of the African human rights regime in world human rights literature. 62 Given the centrality of African women’s engagement with rights at the regional level to this dissertation, it is pertinent to note that in over three decades that the OAU/AU has undertaken the task of developing a system for protecting, promoting, enforcing and monitoring human rights, no comprehensive study of women’s engagement with the regime has been undertaken.6 Even though the subject of women’s rights in the African context as a whole has begun to gain wider academic interest in the last decade, more is required. Recent scholarly interest in African women’s rights derives from increasing visibility of African women activists and academics, African women’s movements, groups and social networks at international and other forums, such as the United Nations international conferences on women, the changing socio-political configuration of many African states from militarism and dictatorships to more democratic institutions, as well as increasing interest in the research and practice of women’s rights in Africa. The above events and activities have resulted in the rapid growth of the literature on African women’s rights including their rights at the regional level. Yet, African women remain largely invisible or misrepresented in mainstream Western human rights literature.7 Limited space is still allotted to the roles and involvement of African women at the continental level in the growing number of textbooks.8 6 This is not to say there has been no study of women’s rights at the regional level. The available studies often focus on a particular aspect of women’s rights, such as the Women’s Protocol or the African Charter or specific issues covered in these treaties. One may attribute this trend to several reasons, such as the fact 7 Tiyambe Zeleza, for example, locates the political impetus of the women’s movement largely in the west and to a crisis of conventional developmental theory and practice, as well as to the consequent rise of women in development projects. Tiyambe Zeleza, “Gender Biases in African Historiography” in M. Imam, Amina Mama,and Fatou Sow (eds.), Engendering African Social Sciences (Dakar: CODESRIA Book Series, 1997) at 81. This invisibility and misrepresentation is gradually being addressed in the rapidly growing academic journal articles publications as will be shown subsequently. 8 For example, Malcolm Evans and Rachel Murray, (eds.), The African Charter on Human and Peoples’ Rights. The System in Practice 1986-2000 (Cambridge: Cambridge University Press, 2002); G. Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System (Ardsley; New York: Transnational Publishers, Inc., 2003); Rachel Murray, Human Rights in Africa: From the OAU to the African Union (Cambridge: Cambridge University Press, 2004); F. Ouguergouz, The African Charter on Human and Peoples’ 63 that challenges to the relevance of rights and law for African women do not encourage inquiries into women’s rights.9 Scholars adopting this approach query the benefit in a human rights law approach, cautioning its application as a tool for achieving justice for African women. Disinterest, or even societal hostility towards any assertion of rights by women, may also prevent interest in promoting their rights. Additionally, questions of awareness, accessibility and participation may also inhibit a broad exploration of the value of using mechanisms of the African regional regime to promote and protect women’s rights. Apart from the relatively high levels of illiteracy among many African women,10 Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nihjoff, 2003); U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague: Martinus Nihjoff, 1997). Of these texts, Human Rights in Africa: From the OAU to the African Union provides the most extensive analyses of women’s rights. Chapter Five analyses the role of the African system in the protection of women’s rights, the progress made and the problems faced. Given the limit of the space, the chapter does not cover the whole gamut of women’s rights under the regime. The other texts provide random analysis of women’s rights under the African system. inadequate publicity constrains access to knowledge relating to the regime at the domestic level. Where knowledge of the regime may be established, accessibility and participation present another challenge to any detailed inquiry. Given the difficulties in accessing domestic remedies, such as disinterest in litigation, the likelihood of using the regional mechanisms is even more remote. This is particularly so because of the requirement of exhaustion of domestic remedies before recourse to the African system (for both the African Commission and the Court). The ability of African women to actively participate at the regional level is also exacerbated by inequalities of resources and power among women. 9 Feminists assert that male dominance in international human rights law is characteristic of traditional Western thought and its historic neglect of the needs of women. This makes the human rights venture questionable in relation to women. See Hilary Charlesworth, “Human Rights: Men’s Rights” in J. Peters and A. Wolper (eds.), Women’s Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995) at 103. Added to this, African and other third world scholars criticize the Eurocentric character of human rights: M. Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania, 2002). For discussions on the relevance of human rights to African women, see Farenda Banda, Women Law and Human Rights (Oxford: Hart Publishing, 2005) at 298. 10 According to UNESCO, one in five adult are still not literate and two-thirds of them are women. <http://www.unesco.org/en/literacy/>. 64 Thus, this chapter undertakes an excursion into the literature on the African regional human rights regime in order to identify assumptions about its institutions. It argues that these assumptions flow from mis-representations, exaggerations and inaccurate analysis of African regional institutions. The chapter identifies underlying conventional or dominant assumptions concerning these institutions, including their origins and the factors that sustain and perpetuate them. It attempts to unveil alternatives through a critical re-reading of literature regarding the African regional human rights regime. In so doing, it not only touches on the legitimacy of such institutions, but also on the development, growth and need to strengthen such institutions within the context of the increasing trend towards a “global State.”11 The chapter also suggests that the assumptions about African women in conjunction with assumptions about the African regional regime pose severe and double challenges to women, their rights, and their access to, participation in and engagement with the regional regime. It recognises the need to identify and reassess basic presumptions about African women, their causes and how they are sustained, as well as the linkages with assumptions regarding Africa and its initiatives. The chapter also examines the challenges and consequences that such assumptions pose to women’s engagement with the regional regime and implementation of their rights. It attempts to redefine and reconstruct the conventional paradigm regarding African women and their role in the regional regime, so as to devise new ways of understanding their roles and engagement. Given the shifts taking place with regards to knowledge about African human rights initiatives it is argued that more creative space is now open for women’s involvement. 11 B. S. Chimni, “A Just World under Law: A View from the South” (2007) 22 Am. U. Int’l L. Rev. 199 at 204. 65 II. Conventional Assumptions about African Human Rights Initiatives Earlier analyses of human rights in Africa focussed on discourses relating to development and refugee problems or on exposing human rights violations by African leaders.12 The subsequent direct involvement of scholars and activists with the drafting of the African Charter and the establishment of the African Commission on Human and Peoples’ Rights (African Commission) invigorated more extensive analyses of human rights.13 Nevertheless, negative assumptions permeated much of the literature in different guises, with few exceptions until more recently. The conventional assessment of African regional institutions has been largely unfavourable. Such assessment, often marked by assumptions endorsed by scholars of both Northern and non- Northern origins, serves to entrench a negative understanding about the regime on the consciousness of readers as well as the Africans that the regime seeks to protect. Arguably, negative assumptions of the regional regime may work at cross-purposes with the emancipatory potential of human rights, resulting in a defeatist attitude that may hinder any attempt to promote human rights, especially by using the mechanisms of the regime. Conversely, constructive representations of its potential may invigorate interest in the regime, resulting in beneficial outcomes to all concerned. Thus, a critical evaluation of the scholarly literature relating to the regime, its institutions and processes is necessary to determine what constitutes these negative assessments, how they have been sustained and whether a shift away from them is in view. 12 The regional institutionalisation of human rights commenced with the adoption of the African Charter. The focus, prior to this, was mostly on the human rights suppression and violations by some African leaders such as Macias Nguema of Equatorial Guinea and Idi Amin of Uganda, mostly by activists, scholars and writers from the West concerned with questions in Africa: Issa Shivji, The Concept of Human Rights in Africa (London: CODESRIA Book Series, 1989) 9-10. 13 For instance, see Isaac Nguema, “Human Rights Perspectives in Africa: The Roots of a Constant Challenge” (1990) 11 (3-4) Human Rights Law Journal 261. Isaac Nguema was a member and former President of the African Commission on Human and Peoples’ Rights. 66 1. Historical and Contemporary Discourse on Africa and African Initiatives Certain problematic assumptions in academic literature, traceable to the history of Africa written during the colonial and early post-colonial periods can also be found in legal and human rights discourses. Such assumptions often have consequences for the development of African initiatives, such as the regional human rights regime. This section undertakes a broad analysis of such assumptions and how they have been advanced over time from the pre-colonial period through to the post-colonial period. Any accurate account of Africa’s contemporary history must be located within its history of colonialism and imperialism. Prior to its colonial period, transmission of African history relied primarily on oral tradition (spoken history) passed from one generation to the next.14 The first written accounts on Africa comprise records of European explorers, often “shrouded in myth, distorted by legends of ferocious people with bizarre physical features.”15 With the advent of colonialism, written accounts about Africa took on a different outlook, whereby the central ideology of domination produced ideological constructs aimed at strengthening the colonial enterprise. Historical events like the Atlantic slave trade took on the perspectives of the colonisers, largely neglecting or otherwise not representing the perspectives of the colonised.16 One commentator observed that “[v]alue-laden statements about the inhabitants of colonised countries were presented as ‘facts’ against which there was little possibility of argument.”17 14 J. F. Ade Ajayi and Michael Crowder (eds.), History of West Africa (London: Longman, 1987). The dynamics of struggles and resistance by Africans to the colonial encounter were largely 15 Robert O. Collins and James M. Burn, supra note 4 at 175. 16 Ibid, at 227. Some authors try to justify or absolve the West of the violence and pain inflicted on Africans during the Atlantic slave trade by arguing that the number of African transported across the Atlantic during the trade was fewer than portrayed by historians, implying that more Africans were enslaved in Africa by Africans. While it is difficult to prove the accuracy of such a claim, the point is that notwithstanding the number of Africans shipped off for slavery, the harm caused as a result of the trade remained indisputable. 17 Sara Mills, Discourse (London: Routledge, 2004) at 97. 67 excluded from this literature.18 The impression conveyed to the average reader of African history consisted of impersonal, mechanistic, and predetermined forces that permitted Africans little, if any, control over their own destinies.19 This one-sided narrative permeated modern literary interpretations and accounts of Africa even until the scholarly explosion of African history in the 1960s decade of independence.20 Such conventional assumptions about Africa consist of both external and internal components. The external component largely propounded by scholars from the North identifies Africans as genetically backward, with African culture as barbaric and its religion, as well as customs, as superstitious. This component, traceable to a paternalistic mentality and a feeling of superiority, assumes that African peoples lack any substantive history worth reiterating except as one of tribal battles and internecine wars.21 Africa carries in the popular mind an infamous reputation as a theatre of never-ending inter-ethnic rivalries and conflicts culminating in the most atrocious human rights violations. In his rejection of this position, Ndahinda captures this commonly propagated sentiment as follow: 22 This external component gains acceptance in classical international law with its Westphalian foundation. Originally, international law sought to regulate the balance of power between relatively powerful states, giving them privileges and rights often contrary to the interest of non- 18 Issa G. Shivji, supra note 12 at 2. According to Shivji, the intellectual domination of Africa was not a conspiracy but a reflection of the continent’s domination by imperialism. 19 Collins and Burn, supra note 4 at 2. 20 Adu A. Boahen, African Perspective of Colonialism (Baltimore: John Hopkins University Press, 1987) at 94-114. Unlike many historians, Professor Boahen undertakes a balanced examination of the colonial system in Africa. He observes both the positive and negative political, economic and social legacies of colonialism. While he acknowledges the positive, he observes that the debit side of colonialism far outweighs the credit side. 21 This is the common portrayal of non- western culture in foreign literature. Edward Said, Orientalism (New York: Vintage Books, 1979); and Felix Mukwiza Ndahinda, “Human Rights in African Political Institutions: Between Rhetoric, Practice and the Struggle for International Visibility” (2007) Leiden Journal of International Law 699 at 700. 22 Ibid; see also, Issa G. Shivji, supra note 12 at 1. 68 European colonised people, regarded as “objects rather than subjects of the law.”23 This demarcation into subjects and objects is further explained in Antony Anghie’s examination of the relationship between international law and colonialism.24 According to him, colonialism was central to the construction of international law, while the question of cultural difference animated its civilising mission.25 The imperial idea that fundamental cultural differences divided the European and the non-European worlds was profoundly important to the civilizing mission in a number of ways: for example, the characterization of non- European societies as backward and primitive legitimized the European conquest of these societies and justified the measures colonial powers used to control and transform them. Anghie argues that: 26 The internal component somewhat linked with the external component converges in human rights discourses regarding Africa. Mamdani, for example, traces the origin of the internal component, often perpetuated by educated (elite) Africans, to the differentiated rules, practices and policies instituted by the colonising ruling class over the colonised.27 The colonised people and Africans in particular were categorised as the “Other.”28 Observers suggest that “the subject populations internalised their classification as other,”29 23 Felix Chuks Okoye, International Law and the New African States (London: Sweet & Maxwell, 1972) at 176. generating a deep feeling of inferiority as well as a loss of dignity. According to Adu Boehen, this internalisation embodied in the notion of a “colonial mentality,” resulted in resignation and submission to the colonisers’ ideas, 24 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 1994) 25 Ibid., at 3. 26 Ibid., at 3-4. 27 Mahmood Mamdani, Citizen and Subject: Contemporary Africa and Legacy of Late Colonialism (Princeton, New Jersey: Princeton University Press, 1996). 28 Achille Mbembe, On the Postcolony (Berkeley: University of California Press, 2001) at 2-3. Mbembe observes that it is in relation to Africa that “absolute otherness” is taken the farthest. He observes that Africa stands out as the supreme receptacle of the West’s obsession with the facts of “absence”, “lack” and “non-being”, of “identity and difference, of negativeness – in short, nothingness.” 29 The apparatus of domination employed by European powers transcends the technological, economic and ideological: Crawford Young, The African Colonial State in Comparative Perspective (New Haven: Yale University Press, 1994) at 44. 69 which has yet to disappear after decades of independence.30 It is common not only for Africans to subscribe uncritically to colonial perceptions of what is true,31 but also for many African intellectuals to parrot Africanist and other foreign authors, often without acknowledging history or context. The conventional belief that traditional African States never knew nor recognised the existence of human rights belongs to the current of thought which even today negates the very existence of rights in these societies.32 This belief is rooted in the vision of Africa as a land of pagans, fetish practices, irrational and ignorant inhabitants and has produced consequences diametrically opposed to any attempt to develop or promote human rights to the disadvantage of Africans.33 Africans, to a large extent, internalise this external component of self-perception in a variety of ways, crystallising in “Africa’s collective consciousness.”34 Both the internal and external components of these assumptions are sometimes reproduced within academic legal literature drawn from international law and international human rights law in particular. Affirming this view, Odinkalu states: The perception of the African regional human rights systems generally has to some degree been shaped by and filtered through a pessimism about Africa that often consigns the continent to a fate worse than making peace with both mediocrity and despondency.35 30 Adu A. Boahen, supra note 20; other historians also recognise this mentality, prescribing ways for Africans to regain consciousness of themselves. See Steve Biko, I Write What I Like selected and edited by Aelred Stubbs CR, Introduced by N. Barney Pityana (London: Penguin Books, 1978) (Steve Biko’s Black Consciousness against South African Apartheid sought to redirect the African mind to regain consciousness of herself as a person in her own right and not an appendage to the white person. See also, Kwame Nkrumah, “Consciencism” in Emmanuel C. Eze (ed.), African Philosophy: An Anthology (Oxford: Blackwell Publishers, 1998) at 93; Isaac Nguema, supra note 13 at 264. 31 Ngugi Wa Thiong’o, Decolonizing the Mind: The Politics of Language in African Literature (London: Heinemann, 1986). 32 Isaac Nguema, supra note 13 at 264. 33 Ibid. 34 Connie Ngondi-Houghton, “Donors and Human Rights NGOs in East Africa: Challenges and Opportunities” in Mutua Makau (ed), Human Rights NGOs in East Africa: Political and Normative Tension (Philadelphia: University of Pennsylvania, 2008) at 166. This refers to the acceptance of the negative assumptions about Africa and African initiatives. See, Ngondi-Houghton’s summary of the negative depiction of Africa. 35 Chidi Anselm Odinkalu, “Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights” in Malcolm D. Evans and Rachael Murray (eds.), The African Charter on Human and Peoples’ Rights. The System in Practice 1986-2000 (Cambridge: Cambridge University Press, 2002) at 178. 70 Given these assumptions it is reasonable to question whether African institutions and scholars have broken or can break this hold of paternalistic colonial mentalities and collective consciousness, especially in the literature relating to regional human rights institutions. 2. Assessing African Regional Human Rights Institutions in Legal Literature Confirming the existence of the above assumptions in international legal discourse and literature, Adrien Katherine Wing, et al., observes that: In the Western hemisphere, Africa is frequently viewed as a basket case and ‘welfare continent’ rather than a market place and exporter of values and norms. This is particularly the case in scholarly and policy-making circles in the U.S. Nowhere is there more ignorance and misunderstanding about Africa than among American legal academics and the U.S. foreign policy establishment.36 These assumptions are more the norm than the exception. Thus, this subsection analyses scholarly assumptions about the regional human rights framework and their relevance or impact on development of the regional regime. Gradual interest in human rights in Africa among international lawyers coincided with the establishment of the OAU. Its preoccupation with decolonisation, clamour for self- determination, struggles to end apartheid in South Africa as well as attempts to deal with the problem of refugees arising from the conflicts in parts of Africa, all had human rights implications that aroused scholarly interest.37 36 Adrien Katherine Wing, Jeremy Levitt and Craig Jackson, “An Introduction to the Symposium: The African Union and the New Pan-Africanism: Rushing to Organize or Timely Shift?” (2003) Transnat’l L. & Contemp. Probs. 1. Also, the inclusion of human rights as part of the ideological tool in the West’s Cold War armoury stimulated interest in the subject along with 37 Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007) at 164-5. 71 other developments on the international scene.38 Foreign Africanist and African scholars, and activists as well as activist institutions such as Amnesty International and Human Rights Watch, also commenced studies on human rights in Africa. Despite the difficulty inherent in making categorical distinctions within the literature generated, the latter group produced reports centred on exposing human rights violations in African countries.39 Others produce literature with a mix of analytical and expository content, often posited as neutral but sometimes revealing conceptual biases.40 Two recent articles highlight the biases and particularly the neglect apparent in discourses on human rights in Africa. These are “International Human Rights: Neglect of Perspectives from African Institutions” by Rachel Murray and “Africa in International Human Rights Textbooks” written by Christof Heyns and Magnus Killander.41 Murray criticises the international neglect of perspectives from African institutions, opting rather to focus on significant developments and contributions of African institutions to international human rights law.42 Accordingly, Murray decries the negative comments and limited prospects ascribed to the African system by many Northern scholars, as well as the “one-way traffic” flow in Western [Northern] scholarly perceptions of African institutions, with their failure to imagine that they can learn anything from Africa.43 38 Ibid., at 166-7. Some of the developments include the call by the UN for the establishment of a regional mechanism, the adoption of the Covenants on Civil and Political as well as the Economic, Social and Cultural Rights, as well as the policies of the United States of America that emphasise human rights. She identifies the example of the 2000 edition of the textbook, International 39 Issa Shivji, supra note 12 at 9. As recently as 2003, Amnesty International painted a gloomy picture of the human rights situation for the continent: Africa Regional Overview 2003, Amnesty International, online: <www.amnesty.org/report>, (accessed 20 July 2008). 40 Issa Shivji, ibid. 41 Rachel Murray, supra note 3 and Christof Heyns and Magnus Killander, supra note 5. 42 Rachel Murray, ibid., at 203. 43 Ibid., See also Obiora C. Okafor and S. C. Agbakwa, “Re-imagining International Human Rights Education in our Time: Beyond Three Constitutive Orthodoxies” (2001) 14 Leiden Journal of International Law 563 at 576. 72 Human Rights: Law Politics, and Morals.44 According to Steiner, et al., the African human rights regime is “[t]he newest, the least developed or effective (in relation to the European and Inter-American regimes), the most distinctive and the most controversial of the three established regional human rights regimes….”45 Further, the authors maintain that “the basic structure and the tasks of the Commission and the Court do not introduce novel themes … (to the) examination of the architecture of intergovernmental human rights institutions.”46 To Murray these statements imagine African institutions as “third generation organs of less value than European or Western institutions.”47 She bemoans the characterisation of these institutions as inexperienced, ineffective and irrelevant, despite their relative youthfulness when compared with older and more experienced European and Inter-American counterparts.48 Murray locates the rationale for this position in the assumption that the earlier systems are transplantable and applicable, with a high probability of being replicated in the African context.49 The neglect of any evolutionary analyses, as well as the practice of allocating limited space to presenting and analysing the African human rights regime, exposes the derision with which some Northern scholars perceive the regime.50 Murray submits that these scholars’ “too ready dismissal of African institution has been due to neglect by international human rights discourse of views outside the ‘ruling’ or ‘dominant’ Western and European States.”51 44 A cursory examination of its latest (2008) edition also neglects to disclose any change in observations about the implementation of the African Charter. Henry J. Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context, Law, Politics and Morals (Oxford: Oxford University Press, 2008). Although the European, Inter-American and the African human rights systems have comparable basic 45 Ibid., at 1063. 46 Ibid. 47 Rachel Murray, supra note 3 at 193. Murray cites the example of Geoffrey Robertson’s statement that the African Commission is “pathetic,” among other unsavory descriptions: Geoffrey Robertson, Crimes Against Humanity. The Struggle for Global Justice (London: Penguin, 2000) at 60. 48 Murray, ibid., at 195. 49 Ibid. 50 Ibid. 51 Ibid., at 196. 73 structures, save for progressive modifications to improve their effectiveness, the above underscores the idea of a system devoid of anything significant to offer. Also, the statement that the African system fails to introduce anything new in terms of structure and tasks impliedly negates any actual or potential contribution of its system to the mainstream. Also, through an analysis of a selection of six recent international human rights textbooks, Christof Heyn and Magnus Killander express concern about the continued neglect of Africa in the world literature on human rights.52 While they welcome the increased consideration of the African human rights system in some human rights textbooks, the authors express concern about the frequency or quantity as well as quality of references to the African system.53 They observe, for example, that some of the texts fail to mention recent developments within the African system that have positive human rights implications, such as the increasing interest in human rights at the regional level arising from the adoption of the AU Constitutive Act and the human rights mandate of the African Peer Review Mechanism (APRM) established in 2002.54 The authors also highlight discrepancies between the presentation of the African system and its actual operation, such as an analysis that the African system considers gross violations of human rights only and not individual complaints.55 52 Christof Heyns and Magnus Killander, supra note 5. The textbooks examined in the article are: T. Buergenthal, D Shelton, and D. P. Stewart, International Human Rights in a Nutshell (3rd ed.) (St. Paul, Minn: West Group, 2002); Jack Donnelly, Universal Human Rights in Theory and Practice (2nd ed.), (Ithaca: Cornell University Press, 2003); Manfred Nowak, Introduction to the International Human Rights Regime (Leiden: Martinus Nijhoff, 2003); Rhona. K. M. Smith, Textbook on International Human Rights (2ne ed.) (Oxford: Oxford University Press, 2005); Javaid Rehman, International Human Rights Law – A Practical Approach (London: Longman, 2002); and Christian Tomuschat, Human Rights – Between Idealism and Realism (Oxford: Oxford University Press, 2003). Heyns and Killander suggest that the increased focus on human rights standards in Africa may ensure that these standards are taken more 53 Ibid. at 4. 54 Ibid., at 5. 55 Nowak and Buergenthal, supra note 52, offer this analysis by comparing the individual complaint mechanism of the African system with the ECOSOC 1503 procedure. Heyns and Killander observe that the literal reading of Article 58 of the African Charter may account for this interpretation but the African Commission’s practice considers this as a special procedure. See also Jawara v The Gambia (2000) AHRLR 107 paras. 41 and 42. The Commission restated its power to hear individual complaints. 74 seriously by those in Africa and abroad. The authors also observe that increased accessibility of the decisions of the African Commission may foster greater accuracy in the portrayal of the African system.56 The analyses in these articles point to the seriousness with which scholars are beginning to consider African regional human rights institutions. It also reveals the imperative for further examination. As noted in the previous chapter’s analysis on regional protection of women’s rights, none of the regional systems have attained perfection. There are continuing restructuring and developments aimed at improving the implementation of rights within these systems. Therefore, relegating African human rights institutions to the margins of international human rights discourse and the exclusion of its contributions to the development of rights serves no useful purpose. Rather, it underscores the continuing questioning of the legitimacy of the universality of rights. While increasing scholarly contributions, both non-Northern and Northern, to the regional human rights discourse have resulted in more inclusive and accurate exposition of the regime’s practices and processes, more is still required in this area. 3. Re-Imagining African Human Rights Initiatives This subsection argues that the assumption that the regime cannot contribute anything significant to the development of human rights underlying critiques of African initiatives is no longer supportable. Importantly, while critical analyses of African institutions are crucial for framing problems, suggesting faults and responsibilities, and possibly making recommendations for resolution or reform, the inevitability of negative critiques wherever African institutions 56 Christof Heyns and Magnus Killander, supra note 5. Ibid., at 13. 75 neglect(ed) to follow the dominant Northern-style liberal democratic institutional apparatus becomes problematic. A critical examination of the regime, conducted with a thorough understanding of the socio-economic, political and other events surrounding its activities, indicates actual progress made by the African regime in the field of human rights. Despite the relatively underdeveloped public information and scholarly literature, the ineffectiveness, failures and deplorable human rights record of the OAU have been a predominant focus, with few exceptions until recently.57 For example, it is not unusual for some scholars to assert that apartheid in South Africa was the sole uniting factor of the OAU, especially in light of the internal divisions, intra-African conflict and despicable actions of some African leaders.58 While this section does not engage a debate about the accuracy of such a position, the simple observation that the OAU outlived the apartheid regime is telling. Others refer vaguely to limited successes of the OAU in the field of conflict prevention, management and resolution, concluding that it was not well positioned as a political organisation to protect the human rights of individuals.59 Further, notwithstanding the symbolic institutional departure from its alleged egregious human rights inclination that the transition of the OAU into the AU signifies, some commentators identify nothing but a bleak future for human rights in the region. Underlying this reasoning is an assumption that, not only does the AU, though relatively new, retain some of the inadequacies and problems of the defunct OAU, but it also has to contend with new ones, such 57 Corrine A. A. Packer & Donald Rukare, “The New African Union and Its Constitutive Act” (2002) 96 (2) Am. J. Int’l L. 365 at 366. 58 Zednek Cervenka & Collin Legum, “The Organization of African Unity in 1978: The Challenge of Foreign Intervention (1978-79) 11 Afr. Contemp. Rec. Ann. Surv. & Docs. A25. 59 Gino J. Naldi, “Future Trends in Human Rights in Africa: The Increased Role of the OAU? in Malcolm D. Evans and Rachel Murray (eds.), supra note 35 at 5. 76 as globalisation and increasing poverty in many parts of Africa.60 The remarkable speed with which the Constitutive Act of the AU was adopted and ratified, its content and the general lack of popular participation in the transformation process, all drew criticisms from commentators. The negative and sometimes contradictory positions expressed by scholars point to the need for a re-contextualization and re-examination of certain assertions about the regional human rights regime. Indeed, there appears to be a gradual shift from the negative and contradictions to recent expressions of the positive potential of African human rights initiatives. Such writings recognise that the concept and practice of human rights at the regional level was conditional upon the history as well as the political concerns of African leaders at the time. This genre of analyses locates the creation of the human rights regime within its historical pan-African setting and struggles against the remaining vestiges of colonial domination, accounting for the selective interest of African leaders in human rights. It does not ignore the simultaneous deployment of human rights rhetoric – self-determination, for example, – in struggles against colonialism, as well as apartheid in South Africa, by these same leaders.61 Commentators, in this regard, suggest that considering the state-centric character of contemporary international human rights law, apparent in the UN Charter, it was not surprising that the OAU Charter centralised state interest rather than the interests of peoples.62 60 Nsongurua J. Udombana, “Can the Leopard Change its Spots? The African Union Treaty and Human Rights” (2002) 17 Am. U. Int’l L. Rev. 1177. Thus, literature in this genre largely emphasises the OAU successes within the limits of its mandate without overlooking its shortcomings. Adopting this approach, Naldi concludes that, though a latecomer to the field of human rights, 61 P. Mweti Munya, “The Organization of African Unity and Its Role in Regional Conflict Resolution and Dispute Settlement: A Critical Evaluation” (1999) 19 B.C. Third World L. J. 537 at 542; O. Ojo, “Understanding Human Rights in Africa” in J. Berting, Human Rights in A Pluralist World: Individuals and Collectivities (Netherlands: Nationale UNESCO, 1990) at 15. 62 The preamble and Article II with the exception of (1) (b) is indicative of this position. See Munya, ibid. 77 the OAU has made important contributions, such as the inclusion of the rights to self- determination, to the development of international human rights law, at least at a theoretical level.63 Likewise, despite its imperfections, the African Commission has adopted procedures and practices that attempt to strengthen implementation of human rights. Its rules of procedure empower the African Commission to accept individual complaints unspecified in the African Charter.64 Analysing the individual complaint procedure of the African Commission, for example, Odinkalu observes that “[a]ny temptation to dismiss [the African Commission] as a worthless institution today must be regarded as premature, ill-informed, or both.”65 … the perception of the African regional system that is often conveyed in much of the available literature as something of a juridical misfit with a treaty basis that is dangerously inadequate and an institutional mechanism [African Commission] liable, ironically to be stated as errant when it pushes the envelop of interpretation positively. He thus condemns: 66 Similarly, Doebbler observes that, “the commission has extended human rights protections to areas where no other international human rights body has dared to tread.”67 63 G. Naldi, supra note 59 at 35. He suggests that, not only has the African Commission been dealing with the problems with which it is confronted; it has been more creative in dealing with the promotion and protection of human rights than any 64 Apart from communications from states (Art. 47), the African Charter merely provides for “other communications” (Art. 55). 65 Chidi Anselm Odinkalu, “The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment” (1998) 8 Transnat’l L. & Contemp. Probs. 359 at 365. 66 Chidi Anselm Odinkalu, “Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights” in Malcolm Evans and Rachel Murray (eds.), supra note 35 at 179. 67 Curtis F. J. Doebbler (Dr.), “A Complex Ambiguity: The Relationship between the African Commission on Human and Peoples’ Rights and Other African Union Initiatives Affecting Respect for Human Rights” (2003) 13 Transnat’l L. & Contemp. Probs. 7 at 14. 78 other international human rights body.68 Recent institutional, legal and other developments also affirm the relevance of the African Commission and the African system generally.69 Examples are the more extensive deployments of thematic procedures of the African Commission than before, such as the thematic mechanisms of the Special Rapporteurs,70 the processes set in motion to enhance its capacity,71 and the significant decisions arising from its individual complaint procedures.72 Due to the quasi-judicial status of the African Commission, rather than view its findings as merely persuasive authority, some scholars point to the textual provisions of the African Charter and the binding nature of the AU’s decisions in support of an argument that such findings have binding legal force, both internationally and nationally.73 These scholars argue that the Commission is competent to issue remedies as a quasi-judicial body resembling a judicial body.74 68 Ibid at 25. Doebbler observes that in the communications 48/90, 50/91, 52/91, and 89/93 Amnesty International, Comite Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan, the African Commission precludes governments found to have committed serious and massive violation of rights from relying on the exhaustion of domestic remedies. See Doebbler, ibid. at 25. 69 For literature on recent development in the African system, see for example Frans Viljoen and Lirrette Louw, “State Compliance with the Recommendation of the African Commission on Human and Peoples’ Rights 1994- 2004” (2007) 101 Am. J. Int’l L 1; D. M. Hollywood, “It Takes a Village…Or at Least A Region: Rethinking Peace Operations in the Twenty-First Century, the Hope and Promise of African Regional Institutions” (2007) 19(1) Florida Journal of International Law 75; Frans Viljoen, “Promising Profiles: An Interview with the Four New Members of the African Commission on Human and Peoples’ Rights” (2006) 6 African Human Rights Law Journal 237; George Mukundi Wachira, “Twenty Years of Elusive Enforcement of the Recommendations of the African Commission on Human and Peoples’ Rights: A Possible Remedy” (2006) 6 African Human Rights Law Journal 465. 70 The African Commission adopted resolutions of the human rights situations in Zimbabwe, Sudan, Uganda and Ethiopia using its thematic procedures. See 18th, 20th and 21st Activity reports of the African Commission on Human and Peoples’ Rights EX.CL/199 (VIII) 28 July 2005, EX.CL/279 (IX) 25-29 June 2006, and EX. CL/322 (X) 25-26 January 2007 respectively. Other special procedures of the Commission such as the Special Rapporteurs and the Working Groups are also increasingly more productive. See also Chaloka Beyani, “Recent Developments in the African Human Rights System 2004-2006 (2007) 7(3) human Rights Law Review 582. 71 Report of the Brainstorming Meeting on the African Commission, 20th Activity Report Annex II. 72 See for example Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria. 73 Frans Viljoen and Lirette Louv, “The Status of the Finding of the African Commission: From Moral Persuasion to Legal Obligation” (2004) 48 Journal of African Law 1 at 18. 74 Ibid. 79 The issue of legal force of decisions made at the regional level is now resolved with the establishment of the African Court of Human and Peoples’ Rights.75 Although yet to make its mark, a few commentators are resolute concerning the African Court’s potential to contribute to strengthening human rights and the regional system. Such literature maintains that, given the existence of competent African jurists, the African human rights regime will gain greater legitimacy, for example, if the African Court gives sound advisory opinions.76 It is impossible to identify particular scholars holding particular perceptions about the regional human rights regime because of the frequency of the shifts in scholarly positions. However, the goal of this chapter is to identify the negative assumptions largely derived from the idea that nothing innovative or substantial can be learned from Africa or African initiatives. It engages with critical analysis of the regime in order to purge it and the literature on the African human rights regime of the vestiges of such assumptions by recognising its contributions as well as by reconceptualising and restructuring not only the institutions but the emerging literature. The purpose is to ensure that the regime is not disregarded but strengthened to better impact the people which it seeks to benefit. Critics must beware of underlying assumptions, whether subtle or obvious, that may discourage the creative development or use of the regime. As noted earlier, whereas critiques are generally meant to point to problems and challenges with the result of stimulating action to address them, the literature on the regional regime requires more balanced inquiries. The overall contribution of the African regional human rights regime to norm-making and institutionalising human rights in Africa should not be understated; neither can its potential for the future be ignored. 75 In July 2008, the Protocol to the Statute of the African Court on Justice and Human Rights was adopted by the Assembly of Heads of State and Government of the AU. This Protocol merges the Protocol on the African Court on Human and Peoples Rights with the African Court of Justice, an organ of the AU. The Protocol shall enter into force one month after the ratification of fifteen (15) member states. 76 Doebbler, supra note 67 at 27. 80 III. Revisiting Dominant Critiques of African Women It is critical to have a balanced analysis infused into the understanding and the research regarding African women with the aim of enabling them to improve their status without paralysing them with predominantly negative assumptions. For this purpose, it is necessary to examine the African human rights literature regarding women in order to reconstruct and reconceptualise our understanding of the existing literature from an African feminist approach that incorporates the Third World perspective.77 Before such a reconstruction, it is necessary to understand the dominant popular perception of African women as well as to examine the ways in which women have been represented in the literature on the African human rights regime and the challenges posed by these representations. This section considers more closely the social, economic, political and cultural assumptions that underpin the understandings of the African women in socio-legal literature by historicising and contextualising them, where necessary. Bearing in mind the challenges confronting Africa and African institutions articulated above, this section reviews the dominant attitudes, stereotypes and perceptions about African women. It deconstructs these assumptions in order to better understand their lived experiences and contexts. 1. Economic Perception It is impossible to exclude African women from the forces of global and local socio-economic experiences that impact their everyday life. Neo-liberalism, the guiding paradigm of economic or corporate globalisation and its trade liberalisation, privatisation and deregulation significantly impact the economies of African societies, which in turn have significant impacts on their 77 For a brief introduction of these approaches see Chapter One of this dissertation. 81 peoples, including women.78 The rhetoric of a neo-liberal market economy and free trade, as bases for releasing the creative potential of private capital, as the engine of economic growth, with its attendant privatisation of public enterprises and services, has yet to translate into material prosperity inside African societies. Women are severely affected by neo-liberal economic policies that have the effect of depriving them of resources, such as land, capital and technology, as well as of adequate food, water and health care services. The majority of women in Africa continue to live under conditions of economic underdevelopment and social marginalisation. 79 Despite worldwide condemnation of violence against women, economic policies and programmes with devastating impacts, especially on African women, adopted by African governments were not recognised as a form of violence inflicted on women until recently.80 Structural Adjustment Programmes (SAPs) imposed upon African governments by the International Monetary Fund and World Bank, supposedly designed to alleviate economic problems of states, have aggravated the already disadvantaged economic position of women.81 African governments adopt policies that enable them to abdicate basic social obligations to provide vital welfare and health services, as well as agricultural and industrial support, disproportionately affect women. 78 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000) at 7. 79 Bisi Adeleye-Fayemi, “Creating a New World with New Visions: African Feminism and Trends in the Global Women’s Movement” in Joanna Kerr, Ellen Sprenger and Alison Symington (eds.), The Future of Women’s Rights: Global Visions and Strategies (London: Zeb Books, 2004) at 39. 80 Abiola Akiyode Afolabi, “Neo-Liberalism: A Tool for Economic Violence: Making a Case for the Oppressed Women in Nigeria” in Gender and Neoliberal Policies (AWORD, 2006) at 243. 81 Such policies have continued in the form of the so-called “economic reform strategies” which retain emphasis on privatisation and deregulation. For studies of SAP in Africa see, A. Adedeji, Structural Adjustment for Socio- Economic Recovery and Transformation: the African Alternative (Addis Ababa: UN Economic Commission for Africa, 1990). 82 The majority of women occupy the lower rungs of the employment ladder, due to low levels of education. In the formal sector, women employed in modern manufacturing, commercial, agricultural and public or private services operate under adverse conditions and are often the first to be retrenched and down-sized. Women are increasingly hired in peripheral, insecure, less-valued jobs including home-based, casual or temporary work characterised by very low pay, irregular income, little or no job or income security.82 In addition, women occupy a large percentage of the informal sector in most African societies, with trade and agriculture comprising the dominant component.83 Problems of access to productive resources, lack of regulation and legal or social protection, as well as an inability to compete with multinational producers, intensify the economic subordination of women working in this sector. Other traditional processes exacerbate the economic situation of many women in African societies. In some areas, certain norms bar women from work outside the home and in other instances, conflict with household responsibilities prevents some women from undertaking regular employee working hours.84 Women are also at a disadvantage as a result of discriminatory application of customary land tenure systems.85 Several African societies still practice customs that exclude a woman’s right of inheritance.86 Statutory land law promulgated to address this problem has also proven inadequate to protect women.87 82 International Labour Office, Global Employment Trends for Women 2004, March 2004 at 12. Online: Benefits and gains of <http://kilm.ilo.org/GET2004/DOWNLOAD/trendsw.pdf>. 83 UN, The Millennium Development Goals Report 2005 (New York: UN, 2005) at 16. 84 Global Employment Trends for Women, supra note 82. 85 For instance, customary laws on inheritance are restrictive as regards women’s ownership of property in many parts of Africa. 86 In the Nigerian case of Mojekwu v. Ejikeme  5 NWLR 402 at 434 where a custom was invoked to exclude a woman’s right to inheritance. The Court of Appeal upheld the woman’s right. In Yorubaland in Nigeria also a woman cannot inherit the property of her deceased husband but the courts have interpreted this custom to the advantage of women in the Akinnubi v. Akinnubi, where the wife was able to apply for the letter of administration of the husband’s estate as the next of friend over the estate. 87 Women still have a hard time accessing land and necessary financial resources to acquire land. 83 post-colonial economic development have had minimal positive impact on the status of many African women. Efforts to address existing and emerging economic challenges in Africa and other Third World countries are not in short supply. The Millennium Declaration88 adopted by the 2000 UN Millennium Summit sets out eight Millennium Development Goals (MDGs) to address the main development challenges of member states. The MDGs, to be achieved by 2015, embody commitments and quantifiable targets for reducing poverty, educating all children, improving the status of women, improving maternal health, reducing child mortality, combating HIV/AIDS, malaria and other diseases, ensuring sustainability, and establishing an effective partnership between rich countries and developing countries. Although these goals single out women, among other vulnerable groups that require particular attention, efforts to achieve them are yet to make significant differences in the lives of African women. Diversity within African societies, however, dictates caution in generalising about the economic situation of African women. Inequality between the sexes varies according to ethnic composition, geographical setting, social class and historical epochs.89 For example, even though it is common to focus on the more precarious position of rural women, emerging trends contradict an exclusive focus on an a priori conception of a poor, backward and illiterate rural woman.90 88 The Millennium Assembly of the United Nations, online: <http://www.un.org/millennium/>, (accessed 24 September 2008). Without denying that rural women face innumerable challenges accessing resources, such as health care and education, more recent poverty indicators reveal a decreasing gap between the rural and urban poor, pointing to an emerging urban crisis in many African 89 Abiola Akiyode Afolabi, supra note 80 at 244. 90 Olufemi Taiwo, “Feminism and Africa: Reflections on the Poverty of Theory” in Oyeronke Oyewumi, African women and Feminism: Reflecting on the Politics of Sisterhood (Trenton, NJ: Africa World Press, 2003) at 61. 84 countries.91 Those living in both rural and urban areas face similar but different levels of difficulties. Consider, for example, health care services: rural women face problems of accessibility to resources in terms of location (too far) and availability (not enough); urban women, on the other hand, face problems of cost (too expensive) as a determinant of access. Moreover, drawing on time-budget analysis from the Participatory Poverty Assessment in Nigeria, Afolabi observes that both rural and urban women work 17-18 hours a day, with some flexibility for rural women due to crop seasonality.92 Similarly, contrary to the United Nations sources, the poverty gap between the male-headed household and the female-headed household is also closing. Women, as well as men, urban or rural, face numerous economic challenges; but women, by virtue of their long history of subordination, remain at a greater disadvantage. The point is that the policies and programmes adopted by African states, based on neo-liberal policies, along with other economic disadvantages suffered by African women, intensify the conventional perception that locates the identity of the African woman at the bottom of the socio-economic ladder. It contributes to maintaining the status quo regarding the majority of African women. Yet, it is important to contextualise any discourse regarding African women in order to understand the complexity of the situation at hand. Assumptions proceed out of ideologies that take the form of “eternal truth;” and it is essential to acknowledge that there is no such truth regarding the situation of African women, thus the need to continually interrogate and reconstruct dominant perceptions. 91 Commentators observe that the scale of urban poverty is often underestimated because in recent times, increasing urbanisation leads the rural poor to move to urban areas: David Satterthwaite, “Rural and Urban Poverty: Understanding the Differences” Online: < http://usinfo.state.gov/journals/ites/0901/ijee/satterthwaite.htm>. 92 A. Afolabi, supra note 80 at 247. 85 2. Socio-Political Perception Historically, motherhood was considered women’s predominant role during colonialism, especially by the colonisers as pointed out below: Let our young women have an education; … Our females must be qualified, because they are to be the mothers of our children. As mothers are the first nurses and instructors of children; from them children consequently get their first impressions, which being always the most lasting should be the most correct.93 Any advantage gained by a woman was ultimately not for her individual benefit but based on her pre-conceived social responsibility. This practice has been sustained, such that the prioritisation of this role ensures that any engagement in professional activities should not encroach on responsibilities of African women as mothers. As with most societies, a woman is expected to stay home to raise children and care for her family. Any activity that may impinge on her reproductive function evokes societal disapproval. Thus, the woman who chooses employment must reconcile this with family obligations; for example, accept part-time employment, if necessary, so that her job may not have negative effects on the child’s schooling.94 These attitudes, often rooted in history, deprive many women of the opportunity to pursue their own goals. While the importance of the role of mothers cannot be overemphasised, a negative meaning and understanding ascribed to motherhood is problematic and also perpetuates the low status for women. 93 Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (London: Verso, 1993) at 26 citing Delany on the relationship between the sexes. 94 Jadesola Akande et al., “The Perception of African Men and Women on the Equality between Men and Women – The Nigerian Case Study” in The Perception and Representations of African Men and Women of Equality between Men and Women (Association of African Women in Research and Development AAWORD, 2007) at 492-493. For the finding in Tunisia’s report. 86 Second to her role as mother, the dominant perception of African women is that of wife under the absolute authority of her husband. The husband is the “supreme commander” of his home;95 failure to submit in this role may incur violence. Little wonder that a dominant subject of inquiry regarding African women is violence against women in the private sphere (home) and in the public. Studies and commissioned reports focus on acts of violence, such as arbitrary deprivation of liberty, battering, dowry-related violence and rape. Social tolerance and justification for domestic violence are found in law in some cases, such as when wife battering is justified as reasonable chastisement of an erring wife.96 An unmarried woman commands less respect than a married woman in most African societies. Colonial laws similarly consolidated the status of African women as minors, not for the purpose of protecting but for restraining them. The positive aspects of the minor status of the child were not applicable to women. For instance, at common law, the status of the minor is temporary and precludes parental rights to a minor’s income and the alienation of immovables administered by a guardian.97 Unlike the child, a woman retained the minority status in a permanent negative sense, with no independent power to either inherit or bequeath.98 95 Ibid., at 277; see also, E. Ankumah, The African Commission on Human and Peoples’ Rights: Practices and Procedures (The Hague: Martinus Nihjoff, 1996) at 153-4. 96 For example, the Nigerian Penal Code Cap 89 Laws of Northern Nigeria 1963, applicable to the Northern part of Nigeria. 97 Ada Okoye, “Citizenship and Customary Law from Colonial to Commonwealth” Online: <www.gwsafrica.rig/knowledge/ada.htm>. 98 In Magaya v Magaya  3 LRC 35, the Supreme Court of Zimbabwe equated the status of a woman to that of a “junior male” or minor even though the 1982 Age of Majority Act of Zimbabwe provide that women above the age of 18 could not be treated as minors. See Natal Code of Native Law of 1891, the section on “personal status”, particularly ss. 94 and 143, cited in Mahmood Mamdani, supra note 27 at 117. 87 Related to their status as minors, African women are perceived as victims. Whether as mothers, wives, or minors, African women are perceived as ignorant, helpless and suffering victims.99 They are portrayed as beasts of burden, subsistence farmers, or prostitutes, in dire need of rescue in contemporary social narratives.100 This low status ascribed to African women as well as their perception as victims are perpetuated by post-colonial educational systems and media organisations applying gender stereotypes. In Nigeria, for example, school texts and curriculum materials often portray females as passive in nature, having no interest in science education. The schools apply differentiated curriculum and schedules that encourage stereotypical choice of subjects. Home Economics, for example, is paired with Technical Drawing, Literature with Further Mathematics or Physics, such that the students are forced to select one of the options.101 Such stereotyping, reinforced by academic substantiation and legal fossilization, coalesces to affirm the subjugation and marginalisation of women. In the political sphere, the triumvirate concepts of human rights, democracy and good governance dominate developmental rhetoric as regards Africa and the rest of the Third World.102 99 Sylvia Tamale, “Feminist Legal Activism in the African Context” Online: <http://www.gwsafrica.org/teaching/sylvia's%20paper.html#_ftn4>. Despite calls for caution in their application to Third World societies, these concepts noticeably signify attempts to encourage systems of governance that promote rights and equal 100 Oyeronke Oyewumi, “The White Woman’s Burden: African Women in Western Feminist Discourse” in Oyeronke Oyewumi, African Women and Feminism: Reflecting on the Politics of Sisterhood, supra note 90 at 37. 101 Stella Y. Erinosho, Girls and Science Education in Nigeria (Abeokuta: Ango International Publishing, 1994). 102 Human rights, democracy and good governance or rule of law (by whatever synonym used) have been regarded as “a kind of holy trinity.” See Karin Mickelson, “Afterword: Challenging Legitimacy” in Edward K. Quashigah and Obiora C. Okafor (eds.), Legitimate Governance in Africa: International and Domestic Legal Perspectives (The Hague: Kluwer Law International, 1999) at 561. 88 representation.103 For instance, democracy is regarded as incompatible with unequal gender relations because women constitute half or more of the population in most societies, including African societies. At the same time the electoral system instituted by many African countries systematically excludes women from aspiring to high political offices.104 Women still lack equal access to public offices and positions due to the social, economic, cultural and political factors that combine to create obstacles to women’s participation in political processes. These include some cultural and religious beliefs that locate women in the private sphere, compounded by discriminatory laws and violence. Society’s perception of a “good” woman is one who is not active publicly;105 and the ones who accept assertive, public or leadership roles are perceived as cultural deviants. The location of African women at the bottom of the socio-political ladder is not peculiar to African societies. Northern feminist critics challenge the gendered and male-centred nature of Northern institutions and discourses.106 Although women worldwide now enjoy the right to vote and to run for elective offices within government, only a few occupy decision-making positions.107 103 Ibid. at 560. However, implicit within such critiques are assumptions of “the North” as the primary referent in theory and praxis common to textual modes of knowledge production in academic disciplines. The discipline of law is not excluded from assumptions that place the non- North as the “Other.” At the extreme of this Other-ing lays the “composite and singular” 104 For example, in Nigeria, participation in political party activities may require attending meetings at odd times of the day as well as a high incidence of political thuggery. 105 Akande et al., supra note 94 at 300. 106 For further study on Western feminist discourses, see Susan Boyd, “Challenging the Public and Private Divide: An Overview” in Susan Boyd (ed.), Challenging the Public /Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997); Brenda Cossman and Judy Fudge (eds.), Privatization, Law and the Challenge of Feminism (Toronto: University of Toronto Press, 2002). 107 As of July 2009, women occupy only 18% of parliamentary seats around the world. Source: International Women Democracy Centre, online: <http://www.iwdc.org/resources/fact_sheet.htm> [accessed 17 November 2008]. At the same time, Rwanda ranks first as the country with the most number of women holding parliamentary seats in the world. See online:< http://www.ipu.org/wmn-e/classif.htm>. 89 African and other Third World women who constitute the most oppressed of all universally subordinate women.108 Put succinctly, Oyeronke Oyewumi observes that the white woman’s burden – similar to the imperialist white man’s burden – was to rescue the “exploited, helpless, brutalized, and down-trodden African woman from the savagery of African male and primitive culture symbolized by barbaric customs.”109 Even though time, circumstances and diversity have engineered substantial changes in the lived experiences of many African women, these are often not effectively articulated to indicate the complexity and nuances of most situations or any possible potential for resistance and actual transformations. 3. Cultural Perceptions Culture, consisting of customs and traditions in which the lives of many African women are embedded, is usually a major determinant of the rights and status of most African women.110 Even though it defies a single all-encompassing definition, commentators agree that culture is a dynamic concept that fluctuates depending on time, space, history and socio-legal circumstances. Mutua points out succinctly that culture “represents the accumulation of a people’s wisdom and thus their identity, it is real and without it a people is without a name, rudderless, and torn from its moorings.”111 108 For a Third World critique of feminism, see C. T. Mohanty, Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Durham & London: Duke University Press, 2003); Oyeronke Oyewumi, “The White Woman’s Burden: African Women in Western Feminist Discourse” in Oyeronke Oyewumi (ed.), supra note 90 at 28. Another commentator describes culture as the totality of a people’s way of life, their values, moral principles and religious and social 109 Ibid. 110 N. B. Pityana, “The Challenge of Culture for Human Rights in Africa: the African Charter in a Comparative Context” in M. D. Evans and R. Murray (eds.), supra note 35; E. M. Kisaakye, “Women, Culture and Human Rights: Female Genital Mutilation, Polygamy and Bride Price” in Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner (eds.), The Human Rights of Women: International Instruments and African Experiences (London: Zeb Books, 2002) at 59. 111 Makau Mutua, Human Rights: A Political and Cultural Critique, supra note 9 at 21. 90 practices, which can be a force for liberation or oppression.112 Going by the above exposition, any attempt to depict culture in static terms will lead to contradictions that neglect the inevitability of changes that drive the concept. Culture is infused with change owing to contacts and interactions, such as those that occurred during the colonial era and the ongoing fusion of cultures in today’s global world. An enduring discourse in African human rights literature relates to the tension between culture and women’s rights, that is, an extension of the universality and cultural relativism debate. This debate centres on discriminatory practices against women, commonly termed “cultural” and/or “traditional” practices, particularly female genital cutting. Others include inheritance rights, widowhood practices and early marriage or child marriage, which undermine the right of the girl child to good health, education, freedom of speech and association, among other rights. Third World feminist scholars criticise the inherently problematic nature of defining these practices as “cultural” and “traditional,” arguing that this conceals the power relations.113 Other references to the tensions regarding the application of women’s rights relate to religious practices that discriminate against women. The resurgence of Islamic fundamentalism in several African societies has prompted the introduction of the Sharia in parts of Africa. For example, in Nigeria, proponents justify the introduction of Sharia legal system in the late 1990s and early 2000s as a means for addressing the feeling of socio-economic deprivation, cultural and political 112 Roselynn Musa, “Provisions of the Protocol” in Roselynn Musa, Faiza Juma Mohammed, and Firoze Manji (eds.), Breathing Life on Women’s Rights in Africa (Solidarity for African Women’s Rights and African Union, 2006) at 19. Online: <http://www.fahamu.org/downloads/soawr_download.pdf>. 113 Uma Narayan, Dislocating Cultures: Identities, Traditions and Third-World Feminism (New York: Routledge, 1997) at 57, 87. (Narayan observes the tendency to proffer cultural explanations for problems within communities of colour compared with mainstream Western communities. This practice is also seen as part of colonial vocabulary to mark the other.) See also Chandra Talpade Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” in Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Durham & London: Duke University Press, 2003) 91 disillusionment within the society.114 However, rather than providing a panacea, the introduction of the Sharia imposes greater hardship and has disproportionate negative consequences for poor people, especially poor women and girls as exemplified in cases in which women have been sentenced to death by stoning in Nigeria and Somalia.115 The 2002 case of Amina Lawal, a Nigerian woman convicted of adultery and sentenced to death by stoning under Sharia law is instructive. Amina was sentenced to death by stoning on allegations of being pregnant out of wedlock. Not only was the adjudicatory process that led to her sentence questionable, the sentence itself was incompatible with a woman’s rights to her body. The overall consequences of the above challenges encourage violence and aggression towards women; discourage women’s participation in the public domain and decision-making; condition women into being less ambitious, motivated and involved in their own advancement; as well as enable the ineffective and inconsequential integration of women in the development process.116 The focus on cultural practices as the primary and most important challenge confronting African women denies class, ethnic and national cleavages in African societies, as well as the agency and complexities of women’s realities.117 114 Hauwa Mustapha, “Islamic Legal System, Women’s Rights and Development in Northern Nigeria” in Sharia & Women’s Human Rights in Nigeria: Strategies for Action, Proceedings of a 2-day strategic conference on Islamic legal system and Women’s Rights in Northern Nigeria organised by WARD C and WACOL, Nigeria. 27- 30 October 2002. Locating women in a subordinate victim position in 115 Baobab for Women’s Human Rights, Sharia Implementation in Nigeria, The Journey So Far (2003), online: <http://www.baobabwomen.org/Sharia%20&%20BAOBAB%20publication.pdf> at 4-5. For instance, in Somalia, Aisha Ibrahim Duhulow, a thirteen year old girl, was placed in police custody after reporting her rape by three armed men. She was later convicted for adultery by an Islamic Court in Kismayo and stoned to death in October 2008. See “Stoning Victim ‘Begged for Mercy’ BBC News, 4 November 2008; UN News Service, “Stoning Death of Teenager Sparks Outrage From UN Advocates”, 7 November 2008. Online: <http://allafrica.com/stories/200811100753.html>. The Commissioner Soyata Maiga, the Special Rapporteur on the Rights of Women in Africa sent a Note Verbale to the President of The Republic of Somalia, H.E. Abdullahi Yusuf Ahmed, regarding the stoning expressing her profound concern about this incident. 26th Activity Report of the African Commission, June 2009. 116 Biola Udegbe, “Portrayal of Women in Nigeria Media and the Psychological Implication” in Abiola Odejide (ed.), Women and the Media in Nigeria (Ibadan: Women’s Research and Documentation Centre) at 131-136. 117 Olufemi Taiwo, supra note 90 at 51-52; Molara Ogundipe-Leslie, Recreating Ourselves: African Women and Critical Transformations (Trenton: Africa World Press, 1994). 92 popular culture and especially human rights literature provokes extensive scholarly analyses on the effects, consequences and actions to eliminate such cultural practices often at the expense of other prevailing forms of violence against women. Despite the absence of a unitary or homogenous African culture, African women are characterised as a powerless, perpetual victims: victims of culture reinforced by stereotypical and racist representation of culture.118 This point is that the use of “culture” promotes an essentialist and a racialised understanding of things African. It posits a “good” culture against a “bad” culture to sustain a racialised discourse. This dissertation makes no attempt to justify harmful practices but argues that the focus on African “culture” or “traditional” practices is not only problematic because it conceals power relations and how they operate in the garb of “culture,” but also because it ignores practices that may further human rights goals. For example, in most African societies the practice of the extended family system serves as a safety net for economically marginalised women. Also, commentators regard the focus on African culture as a form of ideological domination that misrepresents the realities of African women.119 The flexible nature of culture is indicative of the imperative to decolonise the subordinate assumptions that dominate the ideological construction of African women, whether as mothers, wives, politically and economically disempowered, or as minors or victims, whether in the public or the private sphere. The construction of women as victims of culture is consistent with the problematic ideological and racialised discourses of culture. In sum, the uncritical application of terms, such as culture and motherhood to represent practices that violate the rights of women is problematic neglecting other applications that may be more beneficial in promoting rights. 118 African culture(s) is as diverse as there are ethnic groups. This perception also holds true for muslim women especially with regards to discussions relating to the Sharia. 119 Olufemi Taiwo, supra note 90 at 56. 93 Next, I examine available literature relating to women in order to determine how these popular perceptions play out in academic literature. The period since the adoption of the African Charter and the establishment of the African Commission through to the entry into force of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol) is the focus of this inquiry. Prior to this, not much had been written regarding women’s involvement with the regime.120 IV. Re-visioning Representations of Women in African Human Rights Literature Prior to the 1990’s, texts on women’s rights within the scope of regional institutions were few and far between.121 The seminal 1993 article, “Human Rights and African Women: A Comparison of Protection under Two Major Treaties” by Claude Welch,122 120 For earlier works relating to the international human rights of women in Africa, see Rhoda E. Howard, Human Rights in Commonwealth Africa (Totowa, NJ: Rowman Littlefield, 1986); J. Oloka-Onyango, “The Plight of the Larger Half: Human Rights , Gender Violence and the Legal Status of Refugees and Internally Displaced Women in Africa” (1996) 24 Denv. J. Int’l L. & Pol’y 349; and Wolfgang Benedek & Wolfgang Heinz (ed.), Regional Systems of Human Rights Protection in Africa, America and Europe: Contributions to the Programme (Brussels: Friedrich Naumann Foundation, 1992). provided one of the foremost analyses of women’s rights within the African human rights system. The article compares international agreements, the African Charter and the Convention on the Elimination of All Forms of Discrimination against Women, in order to determine whether they have made a difference to the status of women in Africa. Welch recognised that the African Commission, 121 Claude Welch & Ronald Meltzer (eds.), Human Rights and Development in Africa (Albany: State University of New York Press, 1984); Rhoda E. Howard, Human Rights in Commonwealth Africa (New Jersey: Rowman & Littlefield Publishers, 1986). Most other materials paid limited attention to women. See for example; Philip Kunig, Wolfgang Benedek and Costa R. Mahalu (eds.), Regional Protection of Human Rights by International Law: The Emerging African System (Ubersee: Verfassung und Recht 1985). Subsequent academic materials include U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague: Martinus Nihjoff, 1997); Evelyn Ankumah, The African Commission on Human and People’s Rights: Practice and Procedure, (The Hague/London: Martinus Nijhoff Publishers, 1996); Vincent O. Nmehielle, The African Human Rights System, Its Laws, Practices and Institutions (The Hague: Kluwer, 2001); R. Murray, The African Commission on Human and Peoples’ Rights and international law (Oxford; Portland; Or: Hart Publishing, 2000); M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice 1986-2000, supra note 35. 122 (1993) 15 Human Rights Quarterly 549-574. 94 like the Committee on the Elimination of Discrimination against Women, had yet to significantly ameliorate women’s subordinate status. While he recognised the shortcomings of international human rights instruments generally, he cautioned against overlooking the significant potential of international regimes as one of the many means of diminishing inequalities characterising Africa as with the rest of the world.123 Welch’s analysis was in response to the criticisms of the African human rights system and the idea of a wholesale abandonment of the system in the protection of women’s rights. As observed in previous chapters, the African Charter is arguably one of the most criticised treaties. Article 18(3) which provides specific protection for women states that “[t]he State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.” Not only is this provision criticised for being too broad by its incorporation of international declarations and conventions, the underlying assumption of women as the mother is obvious in this provision as well as in scholarly literature. In the African Charter, inclusion of the protection of women and children within the same provision is telling. Another criticism of the African Charter relates to the provision protecting African traditional values and culture. The main contention is its location within the section protecting the family, considered as “most repressive of rights of women (and girl children) in African societies.”124 123 Ibid at 550. Article 17(3) states that “[t]he promotion and protection of morals and traditional values recognised by the community shall be the duty of the State.” The conventional argument regarding relations between traditional values and women’s rights suggests that protecting 124 Henry Onoria, “Introduction to the African System of Protection of Human Rights and the Draft Protocol” in Wolfgang Benedek et al (eds.), The Human Rights of Women, supra note 110 at 234. 95 traditional values will ultimately impose limitations on the possibility of the African Charter to protect the rights of women.125 The decontextualised racialised discourses relating to tradition and culture when applied imply that women are victims of their own culture. The victim role occupied by African women is central to literature about women’s human rights in Africa. Such literature focuses on the particularly low status of women in Africa (especially rural women) resulting from “cultural” barriers interacting with low levels of economic development and poverty.126 To buttress this point, Claude Welch observes that “[i]f human rights begin with breakfast, a great majority of Africa’s residents go very hungry indeed. And, within this group, women and children suffer the most.”127 Other commentators emphasise and elaborate upon this assertion. Wing and Smith observe that the discrimination experienced by African women is exacerbated by the effects of discrimination arising from internal problems of poverty, unemployment and related challenges as well as external forces of globalisation and underdevelopment.128 They emphasise the victim role of the African women arising from violations of rights which include, inter alia, practices, such as lobolo and polygamy; religious law; domestic violence, female genital surgery and HIV/AIDS.129 The inclusion of the last part of the provision in Article 18(3), “as stipulated in international declaration and convention,” as well as Articles 60 and 61, has been used by scholars to mitigate 125 Chaloka Beyani, Toward a More Effective Guarantee of Women’s Rights in the African Human Rights System” in Rebecca J. Cook (ed.), Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvannia, 1994) at 292. 126 Claude Welch, supra note 121 at 550. 127 Ibid at 551. 128 Adrien Katherine Wing & Tyler Murray Smith, “The New African Union and Women’s Rights” (2003) 13 Transnat’l L. & Contemp. Probs. 33 at 37. 129 Ibid. at 38-53. 96 the supposed negative import of traditional values.130 Beyani, for example, draws on domestic cases to illustrate that retrogressive customs and tradition will no longer be tolerated, because the culture in question must be interpreted in line with international declarations and conventions.131 According to Benedek, Article 18(3) has far-reaching potential which allows the African Commission to interpret rights of women under the African Charter on the basis of the Women’s Convention, and other international instruments based on Article 60 of the African Charter.132 Onoria regards the difference in the conceptualisation and enforcement mechanisms of the African Charter as its major weakness; but he emphasises that it “forms the basis for having states account for the status of women and protection of their rights within their national legal orders.”133 Additionally, Onoria perceives Article 18(3) of the African Charter as the starting point for holding states accountable for the protection of women’s rights.134 Despite criticisms and commendations of the provisions of the African Charter, several scholars point to the fact that African women have put the potential of Article 18(3) and related provisions to little use, since there have been hardly any cases brought before the African Commission.135 130 Article 60 of the African Charter states that the “Commission shall draw inspiration from international law on Human and Peoples’ Rights, particularly from the provision of various African instruments on Human and Peoples’ Rights, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the present Charter are members.” Article 61 states that the “Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by member states of the Organisation of African Unity, African practices consistent with international norms of Human and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African states as well as legal precedents and doctrines.” 131 Chaloka Beyani, supra note 125. Welch implies this position in his quote of Stratton. Claude Welch, “Human Rights and African Women: A Comparison of Protection under Two Major Treaties” supra note 122 at 574; that domestic cases may be a resource available to the African Commission for improving the status of women. 132 Wolfgang Benedek, “The European System of Protection of Human Rights and Human Rights of Women” in Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner (eds.) supra note 110 at 225. 133 Ibid. at 233 [Emphasis by the author]. 134 Ibid. at 233. 135 Ibid. also Rachel Murray, “Women’s Rights and the Organisation of African Unity and the African Union: The Protocol on the Rights of Women in Africa” in Doris Buss and Ambreena Manji (eds.), International Law: Modern Feminist Approaches (Oxford: Hart Publishing, 2005) at 259. 97 This lack of use of the provisions for protecting women, as well as the conventional interpretation of Article 18(3), prompted several scholarly proposals for adoption of a separate treaty to exclusively guarantee women’s rights. Kibwana, summing up the criticisms, observes that the African Charter is not a comprehensive bill of rights for women; it is cast in masculine language with choice places for tradition and custom; it lacks resources for women and provides limited sanctions for erring states, and proposed adopting “a protocol, agreement, or Charter that amplifies women’s rights for securing their rights.”136 Unlike the African Charter, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol) thereby adopted is seen as “perhaps the most promising vehicle at the AU’s disposal for promoting and protecting African women’s rights.”137 Others regard the Women’s Protocol as “an ambitious and yet radical reform in women’s rights protection in Africa.”138 In its present state, the Protocol wavers between being an interpretation of the ACHPR [African Charter] for women on the one hand, and a collection (not a comprehensive one) of some existing international standards on the other. It ends up falling short of both these objectives. Conversely, not all reviews of the Women’s Protocol are positive. In an assessment of the Women’s Protocol, Rachel Murray observes that: 139 Murray also points out that the Protocol does not go further than existing standards to offer greater protection for all women in Africa.140 136 K. Kibwana, “Empowering the African Woman: A Study of the Protection of Women’s Rights Under the African Charter on Human and Peoples’ Rights and a Proposal Regarding the Development of a Charter on the Rights of the African Woman” (1995) 5 Review of the African Commission on Human and Peoples’ Rights 1 at 7. Despite the accolades and criticism, the Women’s 137 Adrien Wing & Tyler Murray Smith, supra note 128 at 78. 138 Deji Olowu, “A Critique of the Rhetoric, Ambivalence, and Promise in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.” (2006) 8 (1) Human Rights Review 78 at 80. 139 Rachel Murray, “Women’s Rights and the Organisation of African Unity and the African Union: The Protocol on the Rights of Women in Africa” supra note 135 at 264. 140 Ibid. at 268. 98 Protocol differs from the African Charter to the extent that it provides a list of gender-specific and context-specific rights for women. It is also worthy to note that a common practice among scholars of women’s rights at the regional level is to compare the Women’s Protocol with the Women’s Convention. While this practice is useful, it becomes necessary to question the underlying assumption upon which an evaluation is made when differences identified between the two treaties consistently receive negative assessment with regards to the Women’s Protocol. According to Olowu, the “African Women’s Protocol” makes a “curious omission;” whereas the CEDAW [Women’s Convention] creates an extensive list of obligations for States Parties in addressing the particular problem faced by rural women, the African Women’s Protocol completely avoids the use of the word “rural” and makes no specific reference to the plight of rural African women.141 Likewise, Murray observes that in some cases the Women’s Protocol falls below existing standards, as “its failure to include express reference to the right of women to vote or to participate in private life as well as at the international level despite the latter being in CEDAW [Women’s Convention].”142 The underlying assumption upon which these comparisons are made relates to first, the subordinate economic, socio-political and cultural assumptions regarding African women and second, the negative assumptions regarding African initiatives. The former is discussed in this section while the latter relates to assumptions discussed earlier.143 141 Ibid. at 84. For example, the assertion that the Women’s Protocol avoids the word “rural” cannot be substantiated because even though 142 R. Murray, supra note 135 at 268. 143 See Part II of this Chapter. 99 the subject of rural women does not occupy a separate article, it is not altogether neglected.144 Article 14(2)(a), for example, directs States Parties to take all appropriate measures to “provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas.” In article 19(d), States Parties are to take all appropriate measures to: “promote women’s access to credit, training, skills development and extension services at rural and urban levels in order to provide women with a higher quality of life and reduce the level of poverty among women.” An undue emphasis on rural women would support the problematic assumption that rural African women confront more intense discrimination compared to other African women and are thus in need of greater protection.145 As discussed earlier, present realities indicate the need for a holistic treatment of African women. The idea that items covered by the Women’s Convention must also appear in the Women’s Protocol may amount to mere duplication of norms. While there is no absolutely perfect initiative, the Women’s Protocol attempts to address contemporary challenges facing African women. Needless to say, it also complements the African Charter, which otherwise addressing some of its omissions. The Women’s Protocol is examined in greater detail in the next chapter. V. Reconciling Textual Sources The general apathy toward the state and its institutions among some African human rights scholars and the seeming powerlessness of the majority of African population is beginning to recede. The negative consciousness regarding African institutions that dominated intellectual work, thereby restricting the character of knowledge produced at the regional level is beginning to record a gradual shift. Like the European and Inter-American systems for human rights 144 See, articles 14(2)(a) and 19 (d) of the Women’s Protocol. 145 Dejo Olowu, supra note 138 at 90 100 protection, the cautionary but continuous progress towards strengthening their institutional processes is also evident in recent developments regarding human rights in the African region. The perception of the African regional regime, among commentators and scholars alike, as a lost cause, incompetent and lacking the ability to make significant contributions to human rights on the continent or internationally, no longer holds true. The ingrained and invidious divisions of knowledge central to the ways that knowledge about Africa is perpetuated require greater critical consideration. The practice of perpetuating this knowledge production which emanates from and is perpetuated by the North (Anglo-American), but also commonly propagated by some African intellectuals, is rooted in a sort of intellectual domination which remains a reflection of the continent’s domination by imperialism.146 The need to engage in scholarship beyond reform cannot be overemphasised for the institutional progress of the African human rights regime. Murray’s observation that there needs to be a move away from seeing the contribution of African institutions, which may differ from interpretations by European or northern bodies, as a threat to human rights, towards a more constructive way of rethinking and enhancing rights, remains pertinent.147 Recent academic materials generally reveal an increasing shift in perception not only of African human rights institutions but women’s engagement with it. Several recent publications are instructive in this regard. The 2007 publication, International Human Rights in Africa by Frans Viljoen,148 146 Issa Shivji, supra note 12 at 2. inter alia examines instruments within the normative framework of the African 147 R. Murray, “Institutions,” supra note 3 at 197. 148 Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007). Viljoen’s study of international human rights encompasses not only Africa but also human rights at the global, sub-regional and national levels. The book centres on the African regional human rights system to supplement earlier books on the subject. It indicates the author’s experience as a scholar and activist within the system with its well developed 101 human rights system that pays specific attention to the protection available to women, refugees, indigenous peoples and children. Apart from general references to women, International Human Rights in Africa provides a brief analysis of women at the regional system.149 Vijoen recognises the contribution of the Women’s Protocol to the normative expansion of the system in relation to pre-existing norms comprising the African Charter and the Women’s Convention, and the ways in which the Women’s Protocol has taken women’s rights forward, as well as the limitations of its provisions. Viljoen’s book demonstrates a changing attitude towards human rights in Africa. It recognises the progress made towards protecting human rights in Africa while at the same time identifying shortcomings in order to propose solutions. However, as noted, women, their rights and participation, are not fully covered in the book. Women, Law and Human Rights by Fareda Banda is one of the growing number of texts on women’s rights in Africa. It focuses on the position of African women and the role law can play in their empowerment efforts.150 and balanced narratives of the processes and practices of human rights at the regional level. It conducts an in-depth study of the role of various organs of the AU in the realisation of human rights, highlights the problems of integration, cooperation and coordination among AU human rights mechanisms and asserts the need for global and other alliances. Its central concern is an exploration of linkages between constitutional and international law, human rights norms and local personal law. Banda highlights the strengths and challenges of human rights in Africa from a feminist international law perspective. The author challenges the inadequacies of regional commitment to the protection of women’s rights under the African Charter as well as the AU’s commitment to gender through an examination of the impact of the Women’s Convention on Africa, the process of drafting the Women’s Protocol and a comparison of both instruments. Women, Law and 149 Ibid., at 266-277. 150 Fareda Banda, Women, Law and Human Rights: An African Perspective, (Oxford: Hart Publishing, 2005). 102 Human Rights praises the newfound gender consciousness exhibited by the regional regime and advocates the use of the Women’s Protocol to press for change.151 A number of international academic journals also feature articles that undertake analyses on women’s rights in the African human rights system.152 A noticeable increase in scholarship in this area may again be attributed to the transformation of the AU as well as the adoption of the Women’s Protocol. Prior to the adoption of the Women’s Protocol, the deficiencies of the African Charter in relation to women’s rights dominated, while the proposed solution was to welcome the idea of a separate human rights treaty for women.153 With the adoption of the Women’s Protocol, scholarly publications on women’s rights at the regional level issued mixed signals. While some scholars commend its adoption,154 others emphasise the inadequacies of the Women’s Protocol with suggestions of ways to overcome same. Rachael Rebouche,155 for example, observes what she refers to as the definitional and conceptual shortcomings of the Women’s Protocol in relation to labour and the use of land as a resource. She argues that these concerns may be addressed only through interpretation of the Women’s Protocol for it to have any serious impact on the current human rights obligation and provide new reasons for enforcing obligations that exist in these areas.156 151 Ibid at 83. 152 A notable journal of this genre is the African Human Rights Law Journal published by the Centre for Human Rights of the University of Pretoria. See for example, Martin Semalulu Nsibirwa, “A Brief Analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women” (2001) 1(1) African Human Rights Law Journal 40. Other recent articles include Adrien Katherine Wing and Tyler Murray Smith, “The New African Union and Women’s Rights” (2003) Transnat’l L. & Contemp. Probs. 33. 153 Kivutha Kibwana, “Empowering the African Woman: A Study of the Protection of Women’s Rights under the African Charter on Human and Peoples’ Rights and a Proposal Regarding the Development of a Charter on the Rights of the African Woman” (1995) 5 Review of the African Commission on Human and Peoples’ Rights 1. 154 Fareda Banda, “Blazing the Trail: The African Protocol on Women’s Rights Comes into Force” (2006) 50(1) Journal of African Law 72. 155 Rachel Rebouche, “Labor, Land, and Women’s Rights in Africa: Challenges for the New Protocol on the Rights of Women” (2006) 19 Harv. Hum. Rts. J. 235. 156 Ibid., at 237. 103 A number of electronic books, handbooks and other materials also provide valuable information about women and the African human rights regime.157 The point here is that the previous void or blurred vision of the African regime, as well as women’s roles and engagement with the practices and processes of the Africa regime has given way to greater visibility in recent texts and documents, even though the assessment of the capacity of the regime to improve the status of women remains uncertain. It is still easy to conclude that little progress has been made in the area of women’s rights, but criticisms are beginning to be replaced by more positive analyses. The above analysis also affirms that notwithstanding the deficiencies, inadequacies and negative assumptions about the African human rights regime and of African women in available texts, one thing is clear: there is increasing interest in the study of the processes and practices of women’s rights within the African regional human rights regime. The regional regime is not only attaining increasing relevance to women, but also its human rights system has increasing potential to impact women beneficially. There is a gradual shift away from the disdain with which some human rights scholars have viewed the regional regime.158 157 For example, Roselynn Musa, Faiza Juma Mohammed, and Firoze Manji (eds.), Breathing Life on Women’s Rights in Africa (Solidarity for African Women’s Rights and African Union, 2006) at 19. Online: <http://www.fahamu.org/downloads/soawr_download.pdf>; and Roselyn Karugonjo-Segawa, The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (Denmark: Danish Institute for Human Rights, 2005) The African regime can no longer be regarded as a fruitless endeavour, unable to contribute anything significant to the continent or to international human rights in general. This chapter, through engaging with the assumptions and the critiques of the African human rights regime and women’s rights, supports corroborations, coalitions and critiques that reflect alternative readings of the regime aimed at gaining a better understanding 158 E. Bondzie-Simpson, “A Critique of the African Charter on Human and Peoples’ Rights” (1988) 31 Howard Law Journal 643-65. 104 of the African regional human rights regime in order to make them more accessible and beneficial to the African peoples for whom they are established. As will be shown, the recent increase in the level of women’s participation in the regime’s processes, especially in decision-making positions, is encouraging.159 As well, the increasing involvement of women’s groups and organisations with women’s rights at both national and continental levels attest to an acknowledgment of the relevance of the regime.160 In sum, the reinvigoration of interest in women’s rights by the regime, the increasing participation of women and the practical application of a gender equality principle within the organs of the AU as well as within the African Commission, have encouraged writings on the subject. This analysis also shows that increased academic research and critical analyses have the potential to further deepen understanding of the subject. Space for viable suggestions for improvement is also yet to be exhausted. Without doubt, there is ample room for progress as there remain gaps in the available texts, opening spaces for further analyses of women’s rights at the African human rights regime. Given this preliminary evaluation, subsequent chapters provide greater detail of the normative and other textual provisions and their (possible) interpretations regarding women’s rights as well as the practical progress made at the regional level. The next chapter undertakes a critical feminist TWAIL analysis of the regime’s normative protection of women through a study of a combination of treaties and other documents of the regime. It also highlights the practical moves undertaken by the regime. 159 Infra Chapter Four. 160 The participation of women’s groups at the region became evident in the drafting, adoption and ratification processes of the Women’s Protocol. 105 CHAPTER FOUR: GENDER INTERPRETATIONS, THE WOMEN’S PROTOCOL AND PRACTICES OF THE AFRICAN SYSTEM I. Introduction This chapter undertakes a feminist TWAIL analysis of the textual and practical manoeuvres undertaken within the African human rights regime. Drawing from TWAIL’s “shared ethical commitment to the intellectual and practical struggles to expose, reform, or even retrench those features of the intellectual legal system that help create or maintain the generally unequal, unfair or unjust global order,”1 feminist TWAIL analysis constitutes a part of the diverse interests and frameworks in TWAIL scholarship.2 This analysis engages international human rights law in its determination to give voice to the marginalised women within the Third World, and particularly Africa.3 The chapter analyses women’s rights in the context of the African regional regime with a view to identifying approaches to human rights discourse that restrict or channel women’s rights into narrow areas. It exposes flaws in the content of the regional instruments arising from the failure to recognise the context within which these women operate. At the same time, strengths of the provisions are not ignored. The primary document under consideration in this chapter is the Women’s Protocol. It thus asks: do the texts, especially of the Women’s Protocol, speak to lived experiences of African women? What rights have been concealed or displaced by the texts? The chapter attempts to deconstruct conventional paradigms about the human rights of African women, as well as to develop an alternative story of women’s human rights in the region 1 The Third World Approaches to International Law (TWAIL) was introduced in Chapter One of this dissertation. Obiora Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?” (2008) 10(4) ICLR 371 at 376 [Okafor, “Critical TWAIL”). 2 Vasuki Nesiah, “The Ground Beneath Her Feet” (2003) 4(3) Journal of International Women’s Studies 30 and Celestine Nyamu, “How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?” (2000) 41 (2) Harvard International Law Journal 381. 3 Karin Mickelson, “Taking Stock of TWAIL Histories” (2008) ICLR 355 at 358 [K. Mickelson, “Taking Stock”]. 106 through analyses of both the textual and the practical manoeuvres of the system. It examines the system holistically by re-assessing rights protected, those excluded and the challenges to the implementation of the rights recognised. The second section undertakes a feminist TWAIL analysis of the Women’s Protocol. Given the wide-ranging rights as well as the overlapping nature of rights guaranteed in this instrument, I shall be unavoidably selective in my analysis. This section therefore focuses primarily on economic, social and cultural rights, and particularly on the right to health under the Women’s Protocol as a case through which to study rights generally. As will be shown subsequently, the choice of the right to health is inspired by the importance of health and the continuing violation of this right by many African states, as well as by its inherent connection with other human rights. Using a feminist TWAIL lens, this chapter argues that an interdependent, interrelated, and intersectional approach to rights that takes cognisance of the historical and socio-economic context and other concerns specific to African women and their societies is imperative to achieving progress in women’s rights through the African human rights system. Following this, the third section analyses the mechanisms available to implement rights identified and their adequacy regarding the protection of women’s rights. In line with the reconstructive tradition of TWAIL scholarship, the chapter offers feasible suggestions on how to strengthen rights and rights mechanisms for the protection of women at the regional level as well as proposals for future of women’s engagement with the regime. Section four provides a summary of the main arguments of the chapter. 107 II. A Critical Feminist TWAIL Analysis of the Women’s Protocol This section undertakes a feminist TWAIL analysis of the Women’s Protocol and of women’s rights protection under the African human rights regime generally in order to determine the ideological context in which the instrument is embedded and to examine whether or not it meets the needs of those it seeks to protect. It also investigates the mechanisms for implementing the Women’s Protocol in order to determine how states may be held accountable for their international obligations to protect women. A brief background study of the Women’s Protocol foregrounds this section. 1. Background The Women’s Protocol is the first binding, women-specific treaty adopted at the African regional level. Its history may be traced to a seminar organised by the African Commission in collaboration with Women in Law and Development in Africa (WiLDAF/ FeDDAF) and the International Commission of Jurists (ICJ) in March 1995.4 4 The Seminar held in Lome, Togo was titled: “The African Charter on Human and Peoples’ Rights and the Human Rights of Women.” See the 8th Annual Activity report of the African Commission on Human and Peoples’ Rights 1994 -1995. Adopted on 22 March 1995, ACHPR/COM.FIN/XVII/Rev. in R. Murray and M. Evans, Documents of the African Commission on Human and Peoples’ Rights (Oxford: Hart Publishing, 2001) at 418 ([hereinafter Documents]. See also the Final Communiqué of the 17th Ordinary Session of the African Commission on Human and Peoples' Rights (Final Communiqué 17). Online: http://www.achpr.org/english/communiques/communique17_en.html. For studies on the Women’s Protocol, see R. Murray, “Women’s Rights and the Organization of African Unity and African Union: The Protocol on the Rights of Women in Africa” in Doris Buss and A. Manji, International Law: Modern Feminist Approaches (Oxford: Hart Publication, 2005); Adrien Katherine Wing and Tyler Murray Smith, “The New African Union and Women’s Rights” (2003) 13 Transnat’l L. & Contemp. Probs. 33; Melinda Adams and Alice Kang, “Regional Advocacy Networks and the Protocol on the Rights of Women in Africa” (2007) 3 Politics & Gender 451; Ebenezer Durojaye, “Addressing Human Rights Concerns Raised by Mandatory HIV Testing of Pregnant Women through the Protocol to the African charter on the Rights of Women” (2008 52 (1) Journal of African Law 43; Karen Stefiszyn, “The African Union: Challenges and Opportunities for Women” (2005) 5 African Human Rights Law Journal 358; Danwood Mzikenge Chirwa, “Reclaiming (Wo)manity: the Merits and Demerits of the African Protocol on Women’s Rights (2006) 53 Netherlands International Law Review 63; and Fareda Banda, “Blazing the Trail: The African Protocol on Women’s Rights Comes into Force” (2006) 50 (1) Journal of African Law 72. The seminar recommended, inter 108 alia, the drafting of an additional protocol on women’s rights and the nomination of a Special Rapporteur responsible for the protection of women’s rights.5 In line with these recommendations, the African Commission entrusted two of its members, Dr Duarte Martins and Professor Dankwa, to initiate work on an additional protocol on women’s rights. 6 Subsequently, the African Commission decided to appoint a Special Rapporteur on the rights of African women.7 During the process of drafting the additional protocol, the Inter- African Committee on Traditional Practices Affecting the Health of Women and Girls (IAC), in collaboration with the Women’s Unit of the OAU, submitted a draft convention on traditional practices affecting women and girls to the OAU secretariat.8 The OAU secretariat requested the African Commission to incorporate these two drafts along with other contributions into one document: “The Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.”9 5 The recommendations were presented by Commissioner Vera Valentina B. S Duarte Martins at the 17th Ordinary Session of the African Commission, Lome, Togo, March 1995: Para. 28 of the Final Communiqué 17. Commissioner Julienne Ondziel Gnelenga was appointed as the first Special Rapporteur on the Rights of Women in Africa at the 25th Ordinary Session of the African Commission held in Burundi in 1999 pursuant to the recommendations. ACHPR/ Res.38 (XXV) 99. For the mandate of the SRRWA, see online: <http://www.achpr.org/english/_info/women_mand.htm>. The mandate was subsequently renewed in 2003 with the appointment of Commissioners Angela Melo and Soyata Maiga in 2007 as the Special Rapporteurs on the Rights of Women in Africa, ACHPR/ Res.63 (XXXIV)03 and ACHPR/ Res.112 (XXXXII) 07: Resolution on the Renewal of the Mandate of the Special Rapporteur on the Rights of Women in Africa, respectively. Online: <http://hrlibrary.ngo.ru/africa/resolutions/rec68.html>, <http://www.achpr.org/english/resolutions/resolution112_en.htm. After more work on the draft, delays and extensive lobbying by civil society groups, mostly women’s groups, the Women’s Protocol was adopted by the 6 Final Communiqué 17, supra note 4 para. 30. 7 Ninth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1995-1996. Adopted on 3April 1996 AHG/207 (XXXII) in R. Murray and M. Evans, Documents supra note 4 at 424. 8 Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1999 – 2000. AHG/222 (XXXVI) at 7 para. 30. 9 Ibid at para. 32. See also DOC/OS/34c(XXIII). Briefing document to the parliamentary portfolio Committee by Ambassador J. Duarte: 24 August 2004. Online: <http://www.pmg.org.za/docs/2004/appendices/040824charter1.htm>. For a detailed history of the Women’s Protocol, see Fareda Banda, “Protocol to the African Charter on the Rights of Women in Africa” in Malcolm Evans and Rachel Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice 1986-2006 (Cambridge: Cambridge University Press, 2008) at 441-474; Mosope Fagbongbe, “Towards an African System for the Protection of Women’s Rights: The Protocol to the African Charter on Human and Peoples” Rights on the Rights of Women in Africa” (LL.M Thesis, University of Manitoba, 2005). 109 Assembly of Heads of State and Government of the AU in 2003.10 It entered into force in 2005. As of February 2010, twenty-seven member states of the AU had ratified the instrument.11 2. Content of the Women’s Protocol The Women’s Protocol is a separate and distinct instrument adopted to supplement provisions of earlier human rights instruments, particularly the Women’s Convention and the African Charter. It was adopted out of concern that: despite the ratification of the African Charter on Human and Peoples’ Rights and other international human rights instruments by the majority of States Parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices against women, women in Africa still continue to be victims of discrimination and harmful practices.12 Discriminatory and harmful practices against women identified within many African societies include female genital cutting (popularly known as Female Genital Mutilation or FGM), early and forced marriage, female infanticide, dowry price, various taboos or practices that prevent women from controlling their fertility, widowhood rites and widow inheritance. 13 The Women’s Protocol addresses context-specific concerns and other women’s rights violations through legal and policy-oriented approaches. It obligates State Parties to combat all forms of discrimination against women through appropriate legislative, institutional and other measures. 14 10 Melinda Adams and Alice Kang, supra note 4 at 461. The Women’s Protocol is innovative in the sense of recognising rights not previously included in any binding international instruments. For example, it affirms a woman’s right to medical abortion in cases of sexual assault, rape or incest and when continuation of the 11For a list of ratification, see, online: <http://www.africa- union.org/root/au/Documents/Treaties/List/Protocol%20on%20the%20Rights%20of%20Women.pdf>. 12 Women’s Protocol, the Preamble. 13 See for example Fact Sheet No. 23, Harmful Traditional Practices Affecting the Health of Women and Children. Online: < http://www.ohchr.org/Documents/Publications/FactSheet23en.pdf>. 14 Women’s Protocol, art.1 (1). 110 pregnancy endangers the health and life of the mother.15 It calls for prohibition of female genital cutting.16 The Women’s Protocol specifically recognises the rights of the most vulnerable women within African societies, such as women with disabilities and widows.17 The adoption of the 32-articled Women’s Protocol is an essential stage in the recognition of women’s rights and as a legal framework for ensuring respect for these rights.18 The Women’s Protocol defines women as “persons of the female gender, including girls,” 19 …any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life. and discrimination against women to mean: 20 This expansive definition of discrimination inspires the guarantee of the range of rights within the Women’s Protocol. 21 The Women’s Protocol specifically recognises rights to dignity These rights encompass civil, political, economic, social, and cultural as well as collective rights. 22; life, integrity and security of person and prohibition of all forms of exploitation, cruel, inhuman or degrading punishment and treatment23; elimination of harmful traditional practices such as “female genital mutilation”24; protection of women in marriage, separation, divorce and annulment of marriage25 15 Ibid., art 14(2)(c). ; equality 16 Ibid., art. 5 (b). 17 Ibid., arts. 23 and 20 respectively. 18 Non-binding international mechanisms for the protection of women’s rights include the Beijing Declaration and Programme of Action; the African Union’s Solemn Declaration on Gender Equity in Africa. 19 Women’s Protocol, Article 1. 20 Ibid. 21 For a brief historical overview of the Women’s Protocol, see, Fareda Banda, “Blazing a Trail” supra note 4. 22 Women’s Protocol, art. 3. 23 Ibid., art. 4 24 Ibid., art. 5 25 Ibid., arts. 6 &7 111 before the law and equal protection and benefit of the law26; equal participation of women in the political life and decision-making process.27 Others are the right to education and training;28 economic and social welfare rights, such as the right to equal access to employment and recognition of the economic value of the work of women in the home;29 the right to health including sexual and reproductive health;30 the right to nutritious and adequate food;31 and the right to adequate housing.32 The Women’s Protocol recognises communally or collectively held rights, namely the promotion and maintenance of peace; 33 the right to live in a positive cultural context;34 the right to a healthy and sustainable environment;35 and the right to sustainable development.36 It also affords special protection to women who face further discrimination due to circumstances often beyond their control, namely women in armed conflict situations;37 widows and elderly women;38 women with disabilities;39 and women in distress, such as poor women or pregnant or nursing women in detention.40 In view of the wide-ranging rights recognised by the Women’s Protocol, feminist TWAIL analysis in this section cuts across many rights, although it focuses primarily on rights commonly categorised as economic, social and cultural (ESC). Bearing in mind the interdependence and indivisibility of rights, I adopt this approach in order to narrow the scope 26 Ibid., art. 8 27 Ibid., art. 9 28 Ibid., art.12 29 Ibid., art. 13. 30 Ibid., art. 14. 31 Ibid., art. 15. 32 Ibid., art. 16. 33 Ibid., art. 10 34 Ibid., art. 17 35 Ibid., art. 18 36 Ibid., art. 19 37 Ibid., art. 11 38 Ibid., arts. 20, 21 and 22. 39 Ibid., art. 23. 40 Ibid., art. 24. 112 of this analysis and to emphasise the inextricable interconnectedness of rights, dignity and welfare of African women as well as the imperative to strengthen their protection. I analyse the Women’s Protocol and the structures created for its implementation and enforcement in order to assess their potential and future effectiveness. As will become evident, several feminist TWAIL considerations run through the analyses in this chapter. These include the interdependence and interconnectedness of rights, the relevance of context and the need to reconstruct rights for the benefit of African women. 3. Economic, Social and Cultural Rights Even though the indivisibility, interdependence and interrelatedness of rights, including women’s rights, have been internationally acknowledged,41 Such an expansive approach to rights is not new. For example, the text of the African Charter recognises three generations of rights – civil and political; economic, social and cultural; as well the difficulty of bridging the gap between theory and practice for rights implementation and enforcement remains a challenge everywhere. It is increasingly clear that the underlying liberal approach to rights prioritises a narrow definition of rights that marginalises economic, social and cultural rights, excludes rights violations in (presumed) private spheres, neglects to hold non-state actors accountable for human rights violations and largely ignores women’s perspectives on rights. This approach to rights is detrimental to women. It is worth reiterating that, although this section focuses primarily on economic, social and cultural rights essential to the dignity of African women, the rights addressed overlap with other recognised categories of rights, thus necessitating an expansive understanding of women’s rights. 41 Paras. 5 and 18, Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14- 25 June 1993 (A/CONF.157/1993/24). 113 as collective rights. Nonetheless, in practice, as with dominant liberal traditions, civil and political rights have taken precedence in the interpretation of the African Charter by the African Commission. In instances where economic and social rights are at issue, the African Commission’s interpretation has been uninspiring until recently.42 Purohit and Another v. The Gambia and Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria were exceptional cases that raised or engaged economic and social conditions before the African Commission.43 Any attempt to individualise or compartmentalise women’s rights is likely to have a detrimental effect on African women. For instance, the right to food is related to the right to health and the right to education. A woman who is unable to provide adequate nutrition is more likely to be unhealthy and illiterate. Indeed, the African Commission has yet to engage with women’s rights through its communication procedure to any serious extent. It is therefore useful to ask: To what extent may the obligations created in the texts of the Women’s Protocol facilitate the realisation of rights recognised? How far can the Women’s Protocol go in its protection of such rights? 44 42 This work recognises that the African Commission is limited to interpret the African Charter based on communications brought before it: African Commission on Human and Peoples’ Rights, Comm. No. 269/2003 (2005) Online: <http://www1.umn.edu/humanrts/africa/comcases/269-2003.html>. In Interights (On behalf of Pan African Movement and Citizens for Peace in Eritrea) v. Ethiopia, African Commission Communication No. 233/99 (2003), the African Commission did not avert itself to undertaking a gendered interpretation of the African Charter in communications that raised the issue of rape of women and young girls. Similarly, there is greater likelihood that an illiterate woman will lack access to a balanced diet (both for herself and her family), or access to adequate health care services or health care information. An expansive approach to human rights remains imperative despite the ideological foundation of “universal” human rights in liberal laissez faire 43 Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria Communication No. 155/96 (2001); Purohit and Moore v. The Gambia, African Commission on Human and Peoples’ Rights, Communication No. 241/2001, Sixteenth Activity Report 2002-2003, Annex VII, para. 49. 44 The Millennium Development Goals (MGDs), Goal 1 seeks to eradicate poverty and hunger. The United Nations Millennium Declaration was adopted in 2000 to form a new global partnership to reduce extreme poverty setting out time bound targets known as the MGDs. Online: <http://un.org/millenniumgoals/bkgd.shtml>. 114 philosophy, which privileges and prioritises state-centric, civil and political rights violations in the public sphere.45 The African Commission has declared that a State has the duty to respect, protect, promote and fulfil civil and political rights as well as social and economic rights. A study of the right to health recognised by the Women’s Protocol provides a framework for undertaking this feminist TWAIL analysis. 46 Several decisions of the African Commission espouse this expansive reading of the right to health. In Union Interafricaine des Droits de l’Homme v. Zaire,47 the communication alleged the failure of the Government to provide basic services, such as safe drinking water, electricity and essential medicines. The African Commission held this to constitute a violation of Article 16 of the African Charter. This analysis draws on this expanded approach to the right to health as variously conceptualised and applied, in part by the African Commission as well as other human rights institutions, particularly the United Nations Committee on Economic Social and Cultural Rights (CESCR). 4. The Women’s Protocol: Re-reading the Right to Health The right to health is inextricably linked with human dignity and well-being. Likewise, as rightly observed by Rebecca Cook, the “[p]romotion of women’s health depends upon the 45 Several authors have questioned the construction of rights as a non-political, non-ideological and impartial discourse: Makau wa Mutua, “The Ideology of Human Rights” (1996) 36 Virginia Journal of International Law 589. Others have gone further to illustrate the different ways various groups tap into the rights discourse for their own purposes. See for example Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (New York: State University of New York Press, 2007). 46 SERAC v. Nigeria, supra note 43 at para. 44. 47 Communication 100/93 (1995), the Ninth Activity Report of the African Commission on Human and Peoples’ Rights 1995-1996, adopted on 3 April 1996, Malcolm Evans and Rachel Murray (eds.), Documents supra note 4 at 448. 115 interaction of most if not all human rights.”48 The World Health Organisation (WHO) embodies this by defining the right to health to mean “a state of complete physical, mental and social well- being and not merely the absence of disease or infirmity.”49 The right to health is thus conceived as a “fundamental human right indispensable for the exercise of other human rights.” 50 The freedoms include the right to control one’s health and body, including sexual and reproductive freedoms and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest standard of health. The interaction of the right to health with other rights forms the basis of the analysis in this chapter. The right to health is related to and dependent on other human rights, such as those listed in Article 25 of the UDHR, namely rights to an adequate standard of living, including “food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood.” Likewise, the Committee on Economic, Social and Cultural Rights (CESCR) divides the right to health into freedoms and entitlements. According to the CESCR: 51 Also included in the right to health, according to the CESCR, are socially-related concerns, such as violence and armed conflicts. 52 48 Rebecca Cook, “Gender, Health, and Human Rights” in Jonathan M. Mann, Sofia Gruskin, Michael A. Grodin and George J. Annas (eds.), Health and Human Rights: A Reader (London: Routledge, 1998) at 260. This presumably recognises both private or domestic violence as well as public violence arising in armed conflict situations to draw attention (or lack thereof) to resources and the gender dimensions of ESCR. 49 Preamble to the Constitution of the World Health Organisation (WHO) as adopted by the International Health Conference, New York, 19-22 June, 1946, entered into force 7 April 1948. 50 The Right to the Highest Attainable Standard of Health, General Comment No. 14 (2000), E/C.12/2000/4 Committee on Economic, Social and Cultural Rights, Twenty-second session Geneva, 25 April – 12 May 2000. Online: <http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En>. 51 Ibid, para. 8. 52 Ibid. para 10. 116 In summary, even though this chapter cannot provide an exhaustive analysis of ESCR or the right to health, it applies a feminist TWAIL analysis to the right to health to encompass first, related and dependent rights including, but not limited to, the right to an adequate standard of living (that is rights that improve one’s standard of living, such as a right to food); second, health freedoms, such as sexual and reproductive freedoms; third, health entitlements, such as the right to a system of health protection based on equality of opportunity; and lastly socially- related concerns, such as violence.53 These components of the right to health underscore protection available in various international human rights instruments and declarations. For instance, the African Charter incorporates components of related and dependent health rights. In Article 16, every individual shall “have the right to enjoy the best attainable state of physical and mental health.” One cannot enjoy this right without the right to food and other such rights. Health entitlements mean that State Parties are to “take the necessary measures to protect the health of the people and to ensure that they receive medical attention when they are sick.”54 Article 18(3), in part, incorporates socially-related concerns by urging states to “ensure the elimination of every discrimination against women.”55 Thus regional instruments, like related international ones, selectively draw on components of the right to health. What are the rights protected and what about those omitted? Does the Women’s Protocol provide for the whole spectrum of the right to health? What are the gaps or omissions and how do we bridge them? Can the right to health recognised in the Women’s Protocol adequately guarantee safeguards to African women? 53 See also UN Office of the High Commissioner for Human Rights, Fact Sheet No 31, The Right to Health, June 2008. No 31. UNHCR Refworld Online: <http://www.unhcr.org/refworld/category,REFERENCE,OHCHR,,,48625a742,0.html>. 54 African Charter, Article 16. 55 Ibid, Article 18(3). 117 The components of the right to health identified above can be found in several provisions of the Women’s Protocol but Article 14 constitutes the principal provision, providing that: 1. States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes: a) the right to control their fertility b) the right to decide whether to have children, the number of children and the spacing of children; c) the right to choose any method of contraception; d) the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS; e) the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognised standards and best practices; f) the right to have family planning education. 2. States Parties shall take all appropriate measures to: g) provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas; h) establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast- feeding; i) protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus. Even though this provision is innovative in several respects, it does not adequately cover all components of the right to health. Article 14 urges State Parties to ensure women’s sexual and reproductive health, namely to recognise women’s rights to control their fertility, and to decide the number and spacing of children and choice of contraception. It takes cognisance of the pandemic proportion of HIV/AIDS and its disproportionate impact on Africa and African women. In addition, while recognising the need for State Parties to provide adequate, affordable and accessible health service to all women, it reiterates the additional vulnerability of rural 118 women.56 Conversely, Article 14 focuses primarily on sexual and reproductive rights almost to the exclusion of other health rights. This is not surprising because such health rights encompass women’s practical needs which are “usually a response to an immediate perceived necessity,” unlike their strategic needs g
UBC Theses and Dissertations
Reconstructing women’s rights in Africa using the African regional human rights regime : problems and… Fagbongbe, Mosope Doris 2010
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