In Africa, women’s rights have been underrated, ignored and trampled upon. The place of the African woman is often regarded as that of being seen but not heard. Too often, culture is used as a justification for the denial of women’s rights. While every community has traditions which it holds dear, some customs have proven to be quite detrimental to women. For instance, female genital mutilation (FGM), wife beating, early marriages, denial of property rights and inheritance, to mention a few.
The mass violation of rights of women in Africa necessitated the creation of a legal framework that would unmistakably spell out their rights and advocate for protection of those rights by African states. The Protocol to the African Charter on Human Rights and Peoples’ Rights (ACHPR), better known as the Maputo Protocol, was ‘birthed’ in response to this call. It became the first women’s rights legal framework for the protection of women rights in Africa.
The aim of this paper is to analyze a number of the rights and freedoms within the Maputo Protocol, the extent of implementation of these rights and the challenges encountered so far. The paper will also highlight several shortcomings of the protocol and recommend ways to remedy these.
BACKGROUND TO THE MAPUTO PROTOCOL
The Protocol to the African Charter on Human Rights and Peoples’ Rights was adopted on 11 July 2003 by the African Union (AU). Prior to its adoption, the AU’s jurisprudence on women’s rights was almost non-existent. The AU Charter contained only one Article specifically referring to women in its 68 Articles . Furthermore, the Article bundled up the rights of women with the rights of other vulnerable groups such as the disabled, children and elderly. Inserting women’s rights into the context of an article referring to the family and other vulnerable groups proved problematic and inadequate. The detriment herein was the lack of the necessary specificity to enhance effective enjoyment of women’s rights. It is submitted that this inadequacy could be the main reason why no specific complaint dealing with women’s rights was ever forwarded to the AU for consideration, under the individual complaints procedure. There was therefore, a strong reason for having a protocol that specifically dealt with women’s rights and freedoms.
The Maputo Protocol stepped in to salvage this tragic situation. The Protocol aims to confront the continual discrimination, abuse and marginalization of women.
The preamble to the protocol acknowledges that women’s rights have been recognized and guaranteed in all international human rights instruments as inalienable, interdependent and indivisible human rights. State parties are thus obligated to ensure that any practice that hinders or endangers the normal growth and psychological development of women is eliminated, in order that women might fully enjoy all their human rights. As of April 2013, 48 countries had signed the protocol, out of which 36 had ratified. The government of Kenya ratified the Protocol on October 6 2010 and it has captured the fundamental provisions of the Protocol in the Bill of Rights in Chapter Four of its constitution.