AU Watch

The AU & Women’s Rights

“The question isn’t who is going to let me; it’s who is going to stop me. ” 

Ayn Rand

OVERVIEW

Women are entitled to enjoy the same human rights and fundamental freedoms as other individuals. International human rights treaties require State parties to take proactive steps to ensure that women’s human rights are respected by law and to eliminate discrimination, inequalities, and practices that negatively affect women’s rights. Under international human rights law, women may also be entitled to specific additional rights such as those concerning reproductive healthcare.

As a particularly vulnerable group, women have special status and protection within the United Nations and regional human rights systems. International human rights treaties prohibit discrimination on the basis of gender and also require States to ensure the protection and realization of women’s rights in all areas – from property ownership and freedom from violence, to equal access to education and participation in government.

CEDAW

The United Nations (UN) Convention on the Elimination of Discrimination against Women (CEDAW) is the most comprehensive treaty on the rights of women. It condemns any form of discrimination against women and reaffirms the importance of guaranteeing equal political, economic, social, cultural and civil rights to women and men. See Convention on the Elimination of all Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981), 1249 UNTS 13. As of May 2014, 188 States are party to CEDAW, out of 193 UN Member States.

CEDAW provides that there should be equal political, economic, social, cultural and civil rights for women regardless of their marital status and requires States to enact national legislation banning discrimination (articles 1, 2 and 3). It permits States to take temporary special measures to accelerate the achievement of equality in practice between men and women (Article 4), and to take actions to modify social and cultural patterns that perpetuate discrimination (Article 5). States parties agree that contracts and other private instruments that restrict the legal capacity of women “shall be deemed null and void” (Article 15). The Convention also addresses the need for equal access to education (Article 10).

Regional Treaties

Some regional human rights treaties also focus specifically on women’s rights. In Africa, the Protocol to the African Charter on the Rights of Women in Africa, known as the “Maputo Protocol,” addresses issues of particular importance in Africa, such as genital mutilation. Protocol to the African Charter on the Rights of Women in Africa (“Maputo Protocol”) (adopted 11 July 2003, entered into force 25 November 2005), CAB/LEG/66.6 (15 September 2000); reprinted in 1 Afr. Hum. Rts. L.J. 40, art. 5. It also specifies that women have the right to dignity (Article 3), the right to equality in marriage (Article 6), and the right to decide whether to have children (Article 14). The protocol also addresses the problem of trafficking in women (Article 4).

In the Americas, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, known as the “Convention of Belém do Pará,” recognizes the rights of women to be free from violence in both the public and private spheres. Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (adopted 6 September, entered into force 3 May 1995), 33 I.L.M. 1534 (“Convention of Belém do Pará,”) art. 3. The Convention also reaffirms the right of all women to enjoy and exercise the rights protected by other regional and international human rights instruments (Article 4). The State parties recognize that violence prevents a woman from “the free and full exercise of her civil, political, economic, social and cultural rights” (Article 5). The Convention also imposes duties on States to take affirmative steps to prevent, punish, and eradicate violence against women and to progressively undertake measures to address the social and cultural factors contributing to violence or discrimination against women (Article 7).

Gender Discrimination

Gender discrimination negatively impacts women’s enjoyment of human rights around the world. See, e.g., Human Rights Watch, This Old Man Can Feed Us, Will You Marry Him: Child and Forced Marriage in South Sudan (2013); Human Rights Watch, Those Who Take US Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (2013). International human rights law prohibits discrimination on the basis of gender.

Gender Equality

Gender equality is a principal objective and foundational concept in the struggle to achieve women’s human rights. Gender equality means “equal rights, responsibilities and opportunities of women and men and girls and boys.” Office of the Special Advisor on Gender Issues and Advancement of Women, Gender Mainstreaming: Strategy for Promoting Gender Equality (2001), p. 1. Men and women must have equal opportunity to enjoy the full spectrum of human rights in all spheres of life. See, e.g., CEDAW, preamble; Human Rights Committee, General Comment No. 28, Article 3 (The equality of rights between men and women), UN Doc. HRI/GEN/1/Rev.9 (Vol. I), 29 March 2000.

Although many key human rights instruments contain prohibitions on gender discrimination and progress has been made toward the achievement of gender equality, critical objectives for the empowerment and equality of women have not yet been reached. See generally UN Women, Annual Report 2012-2013 (2013).

For example, in many countries women remain underrepresented in government and corporate leadership positions, earn lower wages, and are less likely than their male counterparts to obtain a primary education. See United Nations Statistics Division, Statistics and indicators on women and men.

KEY WOMEN’S RIGHTS ISSUES

Despite States’ obligations under international law, women around the world continue to experience violations and abuses of their human rights. Some of the most harmful and prevalent abuses occur in the following areas: violence against women, reproductive health, participation in society and government, marriage and family, labor and employment, and property rights. In addition, the international community has recognized the particular challenges faced by women who are human rights defender

Violence against Women

Violence against women has been defined to include “any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” UN G.A. Res. 48/104, Declaration on the Elimination of Violence against Women, A/RES/48/104, 20 December 1993, art. 1.

Freedom from violence and fear of violence is essential to the full enjoyment of all human rights. Under international human rights law, States have an obligation to refrain from committing acts of violence against women (for example, the State is responsible for ensuring that soldiers do not commit rape) and to put in place laws and policies to prevent others from doing the same (such as by criminalizing domestic violence). See, e.g., Convention of Belém Do Pará, art. 7.

In fulfilling the latter duty, the State cannot be expected to prevent all violence between individuals; however, the State must implement effective mechanisms to reduce the frequency of the violence, prosecute perpetrators, and assist victims. See, e.g., ECtHR, Eremia v. Republic of Moldova, no. 3564/11, Judgment of 28 May 2013, paras. 48-52, 56; I/A Court H.R., Rosendo Cantú et al. v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2010. Series C No. 216; IACHR, Report No. 80/11, Case 12.626, Jessica Lenahan (Gonzales) et al. (United States), 21 July 2011.

Sexual Violence

Sexual violence includes rape, enforced prostitution, and other forms of sexual assault. As with other forms of violence, as described above, States have an obligation to prevent State actors from committing sexual violence against women, as well as a duty to adopt laws and policies to prevent such abuses by private persons and to ensure the effective investigation and prosecution of those responsible. See, e.g.Convention of Belém Do Pará, art. 7; ECtHRAydin v. Turkey, ECtHR, no. 23178/94, Rep. 1997-IV, Judgment of 25 September 1997. For example, the European Court of Human Rights has interpreted the European Convention on Human Rights to require States “to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.” ECtHR, M.C. v. Bulgaria, no. 39272/98, ECHR 2003-XII, Judgment of 4 December 2003.

Sexual Violence in Conflict Zones

Sexual violence against women is especially prevalent in conflict zones. Militaries and rebel groups have used rape and other forms of sexual violence as a military tactic against civilian populations. In 2013, the UN Security Council adopted Resolution 2106, which recognized the need for collective action by States, civil society and international actors to implement preventative measures, protect civilians during conflict, and punish perpetrators. UN S.C. Res. 2106, S/RES/2106, 24 June 2013.

The African Commission on Human and Peoples’ Rights has condemned armed forces’ use of sexual violence as a military tactic against civilian populations. See, ACommHPR, D.R. Congo v. Burundi, Rwanda, and Uganda, Communication No. 313/05, 33rd Ordinary Session, May 2003. In the case of D.R. Congo, armed forces of Burundi, Rwanda, and Uganda raped and killed women in the Democratic Republic of Congo, among other violations. Id. at paras. 4-5. The Democratic Republic of Congo also alleged that the Rwandan and Ugandan forces specifically attempted to decimate local populations by spreading AIDS through the rape of Congolese women and girls. Id. at para. 5. The African Commission found violations of the First Protocol Additional to the Geneva Conventions and the Convention on the Elimination of All Forms of Discrimination against Women, and the African Charter on Human and Peoples’ Rights. Id. at para. 86.

Female Genital Mutilation

As described by the World Health Organization (WHO), the practice of female genital mutilation (FGM) includes “procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons.” There are no health benefits to FGM and many young women die or suffer from serious health problems as a result. World Health Organization, Factsheet No. 241, Female Genital Mutilation (2014)The UN Committee on Economic, Social and Cultural Rights (CECSR) has interpreted Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to require States parties to the ICESCR to protect women from being coerced to participate in this harmful cultural practice. See CESCR, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 May 2000, paras. 22 and 35.

In order to protect the right to health, the CEDAW Committee recommends that all States enact and enforce laws to prevent the practice of FGM. CEDAW Committee, General Recommendation No. 24, Women and Health, UN Doc. A/54/38/Rev.1 (I), 1999; CEDAW Committee, General Recommendation No. 14: Female Circumcision, UN Doc. A/45/38(SUPP) p. 438, 1990. The UN General Assembly, the Commission on the Status of Women, and other UN bodies have called upon the international community to take active measures to prevent the practice of FGM. See, e.g., UN G.A. Res. 67/146, Intensifying global efforts for the elimination of female genital mutilation, UN Doc. A/RES/67/146, 20 December 2012; Commission on the Status of Women, Ending female genital mutilation, UN Doc. E/CN.6/2008/L.2/Rev.1, 2008.

Sexual & Reproductive Rights and Health

Sexual and reproductive health are critical to a woman’s overall health and well-being. See, e.g., Human Rights Committee, Concluding Observations on Poland, Report of the Human Rights Committee to the General Assembly, 66th Session, UN Doc. CCPR/C/79/Add.110 (1999), paras. 10-11. Under international human rights law, States have an obligation to ensure that all women have access to comprehensive reproductive health services. See, e.g., CEDAW Committee, General Recommendation No. 24, Women and Health, UN Doc. A/54/38/Rev.1 (I), 1999; CESCR, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 May 2000, paras. 14, 20-21. Reproductive health services should include sexual health information and education, family planning, maternal healthcare, and STI/HIV testing and treatment. See CRR & UNFPABriefing Paper: The Right to Contraceptive Information and Services for Women and Adolescents (2010). States should utilize a gender-based approach to healthcare policies and management, so that barriers do not unduly restrict women’s access to sexual and reproductive health services. CESCR, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 20. Barriers preventing equal access to healthcare include “high fees for health care services, the requirement for preliminary authorization by spouse, parent or hospital authorities, distance from health facilities and absence of convenient and affordable public transport.” CEDAW Committee, General Recommendation No. 24, Women and Health, UN Doc. A/54/38/Rev.1 (I), 1999, para. 21.

Marriage & Family

All persons of legal age have the right to marriage and a family. See, e.g.CEDAW, art. 16; International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966, entered into force on 3 January 1976), 993 UNTS 3 (ICESCR) art. 10; Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 221 (European Convention on Human Rights, as amended) (ECHR) arts 9, 12. Women, therefore, have the right to enter into a marriage or start a family, but cannot be compelled to do either. Choosing to exercise either of these rights should not have a detrimental effect on women’s exercise of other human rights, such as is the case when national laws restrict women’s political participation or property ownership based on their marital or family status.

Marriage

Under international human rights law, a woman has the right to choose whether, when and whom to marry. See, e.g.CEDAW, art. 16. Marriage may only be undertaken with the woman’s consent or it constitutes a violation of her human rights. Although not prohibited by international human rights law, arranged marriages and other traditional practices should not interfere with a woman’s ability to legally enforce her right to choose. CEDAW Committee, General Recommendation No. 21, Equality in Marriage and Family Relations, UN Doc. A/49/38, 1994, paras. 15 and 16.

Family & Parental Rights

The Universal Declaration of Human Rights, in Article 16, describes the family as a “natural and fundamental group unit of society [that] is entitled to protection by society and the State.” International human rights law protects the equal rights of women within a family as well as women’s right to choose whether or not to have family. Should a woman elect to have a family, she is entitled to choose both the number and the spacing of children. CEDAW, art. 16(1)(e). See also Maputo Protocol, art. 14. Therefore, women’s access to family planning and reproductive health services (discussed above) are closely connected to the right to family.

Today, the term family is understood broadly to include unmarried couples with children, married couples with children, and single parents. See Human Rights Committee, General Comment No. 28, Equality of Rights between Men and Women, UN. Doc. CCPR/C/21/Rev.1/Add.10, 29 March 2000, para. 27. Regardless of the form that a family takes, international human rights law requires that “the treatment of women in the family both at law and in private must accord with the principles of equality and justice for all people.” CEDAW Committee, General Comment No. 21, Equality in marriage and family relations, UN Doc No. A/49/38(SUPP), 1994, para. 13. CEDAW requires States parties to ensure that women and men have the same rights and responsibilities in the family as parents, “with regard to guardianship, wardship, trusteeship and adoption of children,” in choosing a family name and profession, and in owning and administering property. CEDAW, art. 16.

Human Trafficking

Human trafficking is a global problem that disproportionately affects women and girls. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“Trafficking Protocol”) provides an international framework for the prevention of trafficking, punishment of traffickers and protection of victims.

Victims of human trafficking often suffer from sexual violence and other severe violations of their human rights. In its Recommended Principles and Guidelines on Human Rights and Human Trafficking (“Recommended Principles”), the UN Office of the Human Rights High Commissioner emphasizes the primacy of human rights in the fight to end human trafficking. Both the Trafficking Protocol and the Recommended Principles emphasize State responsibility for preventing and punishing human trafficking.

Additionally, the European Court of Human Rights has held States responsible for their failure protect victims of trafficking and conduct sufficient investigations. See ECtHR, Rantsev v. Cyrus and Russia, no. 25965/04, ECHR 2010 (extracts), Judgment of 7 January 2010.

Labor & Employment

Under international human rights law, women have the right to fair wages, adequate working conditions, and employment without discrimination. CEDAW requires States parties to take “all appropriate measures to eliminate discrimination against women in the field of employment.” CEDAW, art. 11. According to the specific protections set forth in CEDAW, both men and women are equally entitled to:

WorkSocial security and paid leave
Employment opportunitiesProtection of health and safety
Choice of ProfessionJob security, promotions and benefits
Equal salary and wages

Additionally, the ICESCR recognizes the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” ICESCR, art. 6. Article 7 specifically protects the right to fair and equal wages sufficient to provide a decent living for workers and their families. Regional human rights treaties also include special protections for pregnant employees, workers with family responsibilities, and new mothers. See European Social Charter (revised) (adopted 3 May 1996, entered into force 1 July 1999) ETS 163, arts. 8, 27; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) (adopted on 17 November 1988, entered into force 16 November 1999) OAS Treaty Series No. 69, art. 6(2), 9(2); Maputo Protocol, art. 13.

The International Labour Organization also regulates the treatment of women in the workplace through several conventions that specifically address the fair treatment of women. For additional information, see the section below on International Labor & Employment Law.

Women Human Rights Defenders

Protection and promotion of all political and civil rights is especially important to the work of women human rights defenders. Acknowledging this special relationship, the United Nations General Assembly’s Social, Humanitarian and Cultural Committee has called upon States to protect women human rights defenders from abuses and guard against impunity for offenders. UN G.A. Res. 68/181 [on the report of the Third Committee (A/68/456/Add.2)], Promotion of the Declaration on the Right and Responsibility of Individuals, Groups, Organs, of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms: protecting women human rights defenders, UN Doc. A/C.3/68/L.64, 30 January 2014.

THE AU GENDER POLICY

Background The AU’s approach to the advancement of women’s rights and gender equality has been informed by UN frameworks and specific needs of the African Continent, in particular, the 1948 United Nations Charter and the Universal Declaration on Human Rights. Additionally there are also UN instruments such as the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), the Vienna Declaration on Human Rights, the Nairobi Forward Looking Strategies, Beijing Platform for Action, the outcome of the International Conference on Population and Development (ICPD), Palermo Protocol on Trafficking in Humans, and the Millennium Declaration and Millennium Development Goals (MDGs).

The commitment of the African Union (AU) to gender equality is rooted in the African Charter on Human and Peoples Rights. This commitment is reinforced by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the Solemn Declaration on Gender Equality in Africa (SDGEA) and the Post Conflict Reconstruction and Development adopted by the Heads of State and Government in 2006.

 

The Gender Policy takes into account the AU Policy on Migration, the AU Nutrition Strategy, the African Position on the Family, the African Social Policy Framework, the Maputo Plan of Action on Sexual and Reproductive Health, the African Youth Charter, the outcome of the African Development Forum on Gender Empowerment and Ending Violence Against Women, the Comprehensive Africa Agricultural Programme (CAADP) and other key AU Decisions, Declarations and instruments having a bearing on the advancement of women and gender equality.

 

Purpose

The main purpose of the Policy is to establish a clear vision and make commitments to guide the process of gender mainstreaming and women empowerment to influence policies, procedures and practices which will accelerate the achievement of gender equality, gender justice, non discrimination and fundamental human rights in Africa.

 

Vision

 The vision is to achieve an African society founded on democracy, gender equality, human rights and dignity and recognizes the equal status of women and men, girls and boys, with both sexes thriving together harmoniously, in a peaceful and secure environment characterized by equal partnership in decision-making in the development of the Continent.

 

Goal

The main goal is to adopt a rights’-based approach to development through evidencebased decision–making and the use of gender-disaggregated data and performance indicators for the achievement of gender equality and women’s empowerment in Africa. It seeks to promote a gender responsive environment and practices and undertake commitments linked to the realisation of gender equality and women’s empowerment in Member States, and at the international, continental, regional and national levels.

 

Objectives

  1. To advocate for the promotion of a gender responsive environment and practices
  2. To initiate and accelerate gender mainstreaming in institutions, legal frameworks, policies and programmes
  3. To promote the development of guidelines and enforcement of standards against sexual and gender-based violence
  4. To develop a Gender Management System (GMS) within the AU
  5. To address gender-based barriers to the free movement of persons and goods across borders throughout the Continent;
  6. To promote equitable access for both women and men to and control over resources
  7. To facilitate the implementation of remedial measures to address existing inequalities in access to and control over factors of production including land.

Mandate

The mandate for this gender equality and women empowerment Policy derives from three main factors:

a) The strong AU commitment to gender equality
b) The aspirations and achievements of the African women’s
c) The necessity to consolidate the positive experiences that have taken place.

Policy Values and Principles

The Gender Policy will be guided by the following values and principles:

  1. Promotion of good governance and the rule of law,
  2. Adherence to the principle of gender equality between men and women,
  3. Observance and adherence to the principle of gender equality,
  4. Guaranteed fairness and equal treatment for all;
  5. Adherence to the Parity Principle as enshrined in the Constitutive Act of the AU
  6. Promotion of the principle of shared responsibility, accountability and ownership of the commitments made by the AU;
  7. Promotion of regional integration as a vehicle for the advancement of the African Continent and its peoples;
  8. Application of the principle of subsidiarity to ensure the efficient and effective implementation of the Policy at all levels.

Rationale

Both women and men have worked for the liberation of the continent, and for the economic emancipation, solidarity and cohesion necessary for its integration and unity. Therefore, they should participate and benefit equally in development processes. Thus, the quest for gender equality and women’s empowerment should be mainstreamed into all the institutional arrangements at policy and programming levels in all AU Organs, Regional Economic Communities (REC) and Member States.

Commitments

The Policy commitments are overarching and anchored on the pillars of the AU Organs, RECs and Member States’ institutional policy statements, strategic plans, roadmaps and action plans for achieving gender equality and women empowerment targets in:

 

  1. Creating an enabling and stable political environment
  2. Legislation and legal protection actions against discrimination, for ensuring gender equality
  3. Mobilising stakeholders for implementing the AU Gender Policy
  4. Rationalisation and harmonisation of RECs’ gender policies and programmes
  5. Mobilising resources for implementing the AU Gender Policy
  6. Capacity building for gender mainstreaming
  7. Implement gender mainstreaming in all sectors.
  8. Maintaining peace, security, settlement of conflicts, reconstruction and promote the effective participation of women in peacekeeping and security including efforts aimed at reconciliation in post conflict reconstruction and development.

Targets

  1. Parity Targets: Put in place policy, institutional mechanisms and processes by 2010 and strive to achieve parity in AU Organs, Member States and RECs by the year 2015.
  1. Protocol on the Rights of Women in Africa Targets: Endeavour to achieve full ratification & enforcement of the Protocol to the African Charter on the Human and Peoples’ Rights on the Rights of Women in Africa by 2015 & domestication by 2020.
  1. SDGEA Targets: Achieve the targets in the various commitments set out in the Solemn Declaration on Gender Equality in Africa.

Institutional Framework for Implementation

Gender Mainstreaming is accomplished through the establishment of a Gender Management System (GMS) that puts in place structures, mechanisms and processes. The GMS is intended to advance gender equality through political will, forging partnerships with stakeholders, and building capacity and sharing good practices. The GMS will be established with these enabling structures:

 

  1. The Executive Management Level (Political will)
  2. Gender Management Team (GMT)
  3. Gender Directorate/Division (the Lead Agency)
  4. Departmental/Sector Focal Points
  5. Satellite Gender Focal Points in partner institutions, centres of higher learning, Universities, public and private sector institutions
  6. Gender-Commission/Expert-committees/Technical-working-groups/Gendertaskforces
  7. Media

MANDATE OF THE SPECIAL RAPPORTEUR ON RIGHTS OF WOMEN

The Special Rapporteur on the Rights of Women in Africa is one of the special mechanisms of the African Commission on Human and Peoples’ Rights. Established in 1998, the Special Rapporteur is selected from one of the Commission’s members to serve a two-year term (with the possibility of renewal) as the focal point for the promotion and protection of the rights of women in Africa. Regional human rights instruments related to women form the normative framework for the Special Rapporteur. In particular:

Guided by these instruments, the Special Rapporteur is responsible for (ACHPR/res. 38 (XXV) 99):

  1. Assisting African governments in the development and implementation of their policies of promotion and protection of the rights of women in Africa, particularly in line with the domestication of the newly entered into force Protocol to the African Charter on Human and Peoples’ rights, relative to the Rights of Women in Africa and the general harmonization of national legislation to the rights guaranteed in the Protocol
  2. Undertaking promotional and fact finding missions in African countries Members of the African Union, in order to disseminate the human rights instruments of the African Union and to investigate on the situation of women’s rights in the countries visited
  3. Following up on the implementation of the African Charter on Human and Peoples’ Rights and its Protocol relative to the Rights of Women in Africa by state parties, notably by preparing reports on the situation of women rights in Africa and propose recommendations to be adopted by the Commission
  4. When appropriate, drafting Resolutions on the situation of women in the various African countries and propose them to the Members of the Commission for adoption
  5. Carrying a comparative study on the situation of the rights of women in various countries of Africa
  6. Defining guidelines for state reporting in order to bring member states to address adequately women’s rights issues in their periodic and/or initial reports submitted to the African Commission
  7. Collaborating with relevant actors responsible for the promotion and protection of the rights of women internationally, regionally and nationally, such as:
    • National governmental departments responsible for gender issues is each African Union Member State
    • Intergovernmental organizations acting at regional and national levels in Africa;
    • Non governmental organizations (NGOs) and National Human Rights Institutions;
    • Other Special Rapporteurs from the United Nations and from other regional human rights systems.

How does it help tackle violence against women?

“Indeed, an empowered woman is a nation empowered. However, empowering a woman without guaranteeing the right to equality may be quite challenging, if not impossible. We have opportunities to this effect: One of the guiding principles of the AU Constitutive Act is Gender equality; The establishment of the Special Mechanism that deals with the rights of women in Africa by the Commission also signifies the importance that the Commission attaches to issues that concern and affect women in Africa; Additionally, we have the African Charter on Human and Peoples’ Rights (the African Charter), which contains progressive provisions on the right to equality and respect for women’s rights; and last, but not least, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) which embodies all issues regarding women in the African context. As a matter of fact, the Maputo Protocol states that every woman has the right “to the recognition and protection of her human and legal rights.”

As the AU’s focal point for women’s rights, the Special Rapporteur may bring the Commission’s attention to the various VAW-related issues that occur throughout the region. She also serves as a resource person for and disseminates information on the Protocol to the African Charter on the Rights of Women in Africa (the “Maputo Protocol”) – which contains provisions that require states to eliminate violence against women.

Within the region, the Special Rapporteur may undertake country missions on the rights of women. During these missions, she meets with government officials, NGOs and other civil society actors to gain first-hand information on the status of women’s rights within the state. The mission may also include visits to specific sites of interest, such as detention centres. These missions provide an opportunity for civil society to communicate information to the Special Rapporteur on violence against women. This information may then be used to inform the final report of the mission and recommendations to the state. For example, in 2002 at the end of her country mission to Angola, the Special Rapporteur included in her recommendations: “Implement specific strategies accompanied by legislative and other measures to combat violence against Women.”

The Special Rapporteur has also taken part in various projects organised by other international and national organisations. At the national level, the Special Rapporteur can work with governments to ensure national legislation complies with the provisions of the Maputo Protocol and has taken part in conferences held by NGOs. Internationally, she has collaborated with the UN Special Rapporteur on violence against women, its causes and consequences and other regional experts to call on states to eliminate discrimination and violence against women.

COMPOSITION AND WORKING METHODS

The Commission appoints Special Rapporteurs either by a consensus or by a vote. See ACommHPR, Rules of Procedure of the African Commission on Human and Peoples’ Rights, 2010, Rule 23(2). The mandate of the Special Rapporteur on Rights of Women has been renewed by the Commission several times, typically every two years. See, e.g., ACommHPR, Resolution 245, Resolution on the Renewal of the Mandate of the Special Rapporteur on the Rights of Women in Africa, 5 November 2013. As of October 2014, each individual appointed as Special Rapporteur has been a Commissioner, simultaneously serving on the African Commission.

The Special Rapporteur undertakes a number of duties, including providing guidance on alleged violations, analyzing States’ domestic laws and their compliance with international standards, conducting visits to Member States, and studying relevant human rights conditions or situations.

Guidance on Alleged Violations
The Special Rapporteur provides the Commission with guidance in responding to communications that concern women’s rights. The mandate holder may lend expertise or insight during the Commission’s considering of complaints related to his or her mandate.

The mandate holder has also sent notes verbale to State officials requesting that specific measures be taken to address violations of women’s human rights. See, e.g., Soyata Maiga, Intersession Report by Me Soyata Maiga Commissioner/Special Rapporteur on the Rights of Women in Africa, Intersession Activity Report, 45th Ordinary Session (2009).

Analysis of National Practices and Policies
The Special Rapporteurship evaluates Member States’ laws and makes recommendations, encouraging the States to better align their policies with their obligations under the African Charter on Human and Peoples’ Rights, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and other international standards.

The mandate holder has also sent notes verbale, or diplomatic letters, to State officials encouraging their ratification of the Protocol. See, e.g., id.

The Special Rapporteur also defines guidelines for State reporting, so that Member States adequately address what measures they have taken to protect and promote women’s rights in their periodic and initial reports to the African Commission.

Country Visits
The Special Rapporteur undertakes country visits to Member States, with their consent. During these visits, which are also known as missions, the Special Rapporteur engages with many actors, including women, government officials, and civil society organizations, among others. The Special Rapporteurship investigates the treatment of women’s human rights, and provides the State with recommendations for improvement.

According to Rule 60 of the Commission’s Rules of Procedure, after the completion of a mission, the Special Rapporteur has a duty to publish a Mission Report, which may be found on its website. These reports contain general recommendations to the State, and often include specific recommendations to the international community, African Commission, or civil society, among others.

RECEIVING INFORMATION

The Special Rapporteur is responsible for seeking and receiving information from individuals, governmental and non-governmental organizations and institutions, and other stakeholders concerning cases or situations that involve women’s human rights.

Along with information gathered from such actors and during missions, the Special Rapporteur disseminates and obtains information through promotional activities, such as workshops, conferences, and consultative seminars. The Special Rapporteur often coordinates these activities with other relevant Special Rapporteurs and Working Groups of the Commission or the United Nations.

On the basis of information received, the Special Rapporteur may propose that the Commission take a certain action or decision, or he or she may raise awareness of an issue in his or her reports, press releases or other activities. For example, the Special Rapporteurship drafts Resolutions concerning the protection of women’s rights and proposes them to the Commission for adoption.

ACTIVITY REPORTS

The Special Rapporteur submits Intersession Activity Reports to the Commission each year, which outline the activities the Special Rapporteurship has undertaken. The Commission also prepares an annual Activity Report that it submits to the African Union Assembly, which includes information gathered from the Special Rapporteur, summarizing positive developments and areas of concern regarding human rights in Africa.

Reproduced By Kind Permission of IJRC.

African Human Rights System Fact Sheet

Overview

The African human rights system is composed of several human rights treaties—or agreements between the African
Union member states—and the mechanisms that monitor compliance with these treaties.

African Regional Human Rights Treaties

African Regional Human Rights Treaties
African Charter on Human and Peoples’ Rights (Banjul Charter)

  • The Banjul Charter protects both civil and political rights and economic, social, and cultural rights.
  • It also recognizes people’s rights, such as the right to development and self-determination.
  • The Banjul Charter guarantees that all individuals are entitled to the protected rights and freedoms on an equal
    basis and without discrimination, including on the basis of sex or “other status,” which has been interpreted to
    include disability (Art. 2).1
  • The Banjul Charter also provides special protection to both women and persons with disabilities (Art. 18).

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)

  • The Maputo Protocol complements the African Charter by providing an explicit definition of discrimination
    against women and addressing traditional values and practices that can impede gender equality, including
    forced marriage and female genital mutilation.
  • The Maputo Protocol was the first human rights agreement to explicitly protect a right to sexual and
    reproductive health (Art. 14).
  • Besides general provisions that apply to all women and girls, the Maputo Protocol addresses special
    protection of women with disabilities, requiring state parties to facilitate their access to employment,
    vocational training, and participation and to ensure that women with disabilities are free from violence,
    sexual abuse and discrimination (Art. 23).

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons
with Disabilities in Africa (Disability Protocol)

  • The Disability Protocol, the newest human rights treaty in the African system, is still awaiting enough
    ratifications to enter into force. Once 15 states ratify this protocol, it will be binding on those states that have
    ratified it.
  • The Disability Protocol was developed in line with the U.N. Convention on the Rights of Persons with
    Disabilities. It prohibits discrimination against persons with disabilities on all grounds (Art. 5), including
    denial of reasonable accommodations (Art. 1), and recognizes their full legal capacity (Art. 7).
  • The Disability Protocol addresses harmful practices such as witchcraft, abandonment, concealment, ritual
    killings or the association of disability with omens, that infringe on the rights of persons with disabilities (Art. 11).
  • The Disability Protocol also recognizes intersectional forms of discrimination and includes separate articles
    specifically addressing rights of women (Art. 27), children (Art. 28), youth (Art. 29) and older persons with
    disabilities (Art. 30). It provides that women with disabilities should be ensured full participation in society,
    “protected” from sexual and gender-based violence, and guaranteed sexual and reproductive rights. It also
    requires integration of gender perspectives into all policies, legislation and programs.

African Charter on the Rights and Welfare of the Child (ACRWC)

  • The ACRWC requires state parties to ensure children’s rights to survival and development (Art. 5), education
    (Art. 11), health (Art. 14), family protection (Art. 18), among others, and to fulfill obligations to protect children
    from abuse (Art. 16), exploitation (Art. 27), armed conflicts (Art. 22) as well as harmful social and cultural
    practices (e.g. child marriage) (Art. 21).
  • The ACRWC also calls on states to ensure “special measures of protection” of children with disabilities in terms
    of physical accessibility and access to training and recreation (Art. 13).

African Regional Human Rights Mechanisms

African Union
African Union (AU, formerly the Organisation of African Unity (OAU)) is a union of African countries that promotes integration and development of the countries and people across the continent. One of the AU’s
objectives is to promote and protect human and peoples’ rights.

The AU currently has 55 member states. The Assembly of Heads of States and Governments adopts human
rights treaties and protocols. For each document to be legally binding in a member state, the state needs to sign and ratify it, according to its domestic legal procedures for entering into an international agreement.

The African Commission on Human and Peoples’ Rights
The African Commission on Human and People’s Rights (African Commission) ensures compliance with and
effective implementation of the Banjul Charter and the supplementary protocols, including the Maputo Protocol
and, when it goes into effect, the Disability Protocol. The African Commission is composed of eleven members
serving in their personal and independent capacity and not as representatives of their countries or governments. The African Commission holds two ordinary sessions each year and holds extraordinary sessions as necessary. The main functions of the African Commission include:

  • Interpret the provisions of the Banjul Charter and the supplementary protocols through issuing General Comments, Thematic Resolutions, Guidelines or Principles. All General Comments adopted so far to the Charter and the Maputo Protocol have made special reference to women and people with disabilities.

Example of General Comments
General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

53. It is crucial to ensure availability, accessibility, acceptability and good quality reproductive health care, including family planning / contraception and safe abortion for women. State parties should ensure services that are comprehensive, integrated, rights-based, sensitive to the reality of women in all contexts, and adapted to women living with disabilities and the youth, free from any coercion, discrimination and violence. 

54. They should integrate and/or link family planning/contraception and safe abortion services funded by public resources to other services relating to reproductive health, primary health care, HIV and other sexually transmitted infections.

  • Review State Reports to monitor compliance with states’ human rights obligations and issue Concluding
    Observations. States are required to submit a report to the African Commission every two years on the
    measures they have taken to implement the Banjul Charter and any additional protocols the state has
    ratified. The African Commission will review the report and adopt concluding observations that
    acknowledge the progress made, express concern about possible human rights violations, and offer
    recommendations to improve compliance.
  • Hear Individual Complaints (or Communications). NGOs and individuals can file individual complaints
    alleging violations of the rights protected in the Banjul Charter, as well as the Maputo Protocol, and when
    it comes into effect, the Disability Protocol. The African Commission will examine the facts and review
    arguments of parties to determine whether there has been a violation and, if so, will recommend what the
    state must do to remedy the victim.
    In the context of individual complaints, the African Commission can:
    1. facilitate friendly settlements (negotiations between the victim and the state to reach an agreement);
    2. call on the state to take Provisional Measures, while the case is pending before the African
      Commission, to prevent irreparable harm to the victim or victims of the alleged violation; and
    3. make a determination to treat the complaint as an Emergency, where there is evidence of serious
      or massive violations of human and peoples’ rights or of a situation that presents the danger of
      irreparable harm. In such cases, the Commission may issue Urgent Appeals to communicate
      time-sensitive information requesting state authorities to take urgent interventions

Example of Concluding Observations
Concluding Observations and Recommendations on the Initial and Combined Periodic Report of the Republic
of Malawi on the Implementation of the African Charter on Human and Peoples’ Rights (1995 – 2013)
IV. Areas of Concern
69. The existence of customary discriminatory practices such as patriarchal attitudes and deep-rooted
stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life, as well
as traditional beliefs resulting in acts of torture and violence against elderly women on account of suspicion
of practicing witchcraft;
V. Recommendations to the Government of the Republic of Malawi
102. Adopt a comprehensive strategy to modify or eliminate negative cultural practices and stereotypes which
are harmful to and discriminate against women, and to promote women’s full enjoyment of their human
rights[.]

  • Conduct missions in African Union (AU) member states to investigate and disseminate information. The
    African Commission conducts two types of missions:
    -Protective missions, which typically include on-site visits, for example to investigate specific facts
    relating to a pending individual complaint or allegations of massive and serious human rights
    violations; and
    -Promotional missions, undertaken by the African Commission or its Special Mechanisms to sensitize
    States about the role of the Banjul Charter, encourage states to ratify the Banjul Charter or other
    human rights instruments, or to persuade non-reporting states to comply with their reporting
    obligations.

Special Mechanisms

Subsidiary special mechanisms, including Special Rapporteurs, Committees, and Working Groups, are
mandated by the African Commission to:

  • collect information and research on specific human rights issues;
  • investigate human rights violations through fact-finding missions; and
  • develop recommendations and strategies, engage in dialogues with states and raise awareness of human
    rights.

The Special Rapporteurs and Committees focus on monitoring and awareness-raising, while the Working Groups
are tasked to develop principles, guidelines or strategies on certain issues. These mechanisms report to the
African Commission during its sessions.

African Committee of Experts on the Rights and Welfare of the Child (ACERWC)
The ACERWC promotes and protects the rights of children by monitoring implementation of the ACRWC. It is
currently the only regional treaty body worldwide focused on children’s rights. The primary functions include:

  • collecting information on the situation of children and making recommendations to states where
    necessary;
  • establishing principles for protecting the rights of African children; and
  • interpreting and monitoring compliance with the ACRWC.

Similar to but independent from the African Commission, the ACERWC performs several functions to achieve its
mandate, including holding regular sessions, monitoring State Reports, and hearing Individual
Communications.

The African Court on Human and Peoples’ Rights (African Court)
The African Court is a continental court established by African countries to ensure the protection of human and
peoples’ rights in Africa. The African Court may:

  • Hear cases and disputes concerning the interpretation and application of the Banjul Charter, the ACRWC,
    and any other human rights instruments ratified by the state concerned. After deciding a case on the
    merits, the African Court will make appropriate orders to remedy the violation, including the payment of
    fair compensation or reparation.
  • Facilitate friendly (or amicable) settlements between parties and can adopt provisional measures in
    cases of emergency, like the African Commission.
  • Issue advisory opinions on legal matters relating to the treaties that it monitors, upon request by the AU or
    its organs, member states of the AU, and any African organization recognized by the AU (a special status
    granted by the AU).

Civil Society Engagement with the African Human Rights System

NGOs with Observer Status
Some engagement opportunities are only reserved for NGOs with observer status, including:

  • proposing agenda items to and speaking in African Commission/ACERWC’s public sessions,
  • attending closed meetings during the sessions of the African Commission and the ACERWC, and
  • bringing individual cases directly to the African Court, where a state has recognized the Court’s authority
    to do so (for NGOs with observer status with the African Commission).
    NGOs can apply for observer status before the African Commission and/or the ACERWC to better advocate for
    the rights of women and girls with disabilities.

Observer status is granted separately for each mechanism.

Civil society plays an important role in the African human rights system by providing essential information to the
regional human rights mechanisms discussed above to ensure that the system is responsive to the human rights
situation on the ground, including for women and girls with disabilities.
The African system is complex and offers multiple forums and opportunities for civil society to engage with. While
the process to engage with different bodies can be similar, it is important to check with those bodies separately
regarding their requirements for civil society engagement. Advocates can also use these instruments and
mechanisms in complementary ways to strengthen the efficacy of their advocacy strategies.

Participation in African Commission/ACERWC Sessions
Civil society can participate in the African Commission and the ACERWC sessions by proposing agenda items,
attending sessions and making statements (where NGOs have Observer Status), advocating and networking at
the NGO Forum/CSO forum held before the sessions, and organizing side events. 

Participating in the State Reporting Process
Any person or group may submit a Shadow Report to the African Commission (called a Complimentary Report
when submitted to the ACERWC) to provide alternative perspectives on the human rights situation in a given
country. 

Engaging with Special Mechanisms and African Commission Missions
Civil society can actively communicate with the Special Mechanisms and the Commissioners of the African
Commission by providing independent information in person or in writing on specific human rights topics, as well
as encouraging recommendations and reports on the situation of women and girls with disabilities regarding the
rights of women and girls with disabilities. 

Requesting an Advisory Opinion from the African Court
NGOs with observer status before the African Commission can request advisory opinions from the African Court.
Since advisory opinions are interpretations of international law, rather than judgments on an individual case,
they apply equally to all states that have ratified the relevant treaty. As a result, advisory opinions can be a
powerful tool for clarifying what states must do to protect the rights of women and girls with disabilities.

Bringing Individual Complaints to African Regional Human Rights Bodies

Civil society can bring individual complaints before the African Commission, the ACERWC and the African Court.
Each body has its own criteria and procedures for accepting and hearing a complaint. For example:

  • Any individual or NGO can bring a complaint before the African Commission.
  • The ACERWC can only hear complaints initiated by individuals (including children) or NGOs legally
    recognized in AU member states.
  • Only NGOs or individuals with observer status before the African Commission can initiate cases directly
    with the African Court, and even then, only if the state in question has recognized the jurisdiction of the
    Court to accept cases from individuals and NGOs.

When it appears from a complaint that there exist serious or massive violations of human or peoples’ rights, or
a situation that presents the danger of irreparable harm, the person or organization that brought the complaint
can ask for Provisional Measures to prevent irreparable harm to the victim or victims of the alleged violation.

When a communication is under consideration, NGOs can submit amicus curiae briefs. Amicus curiae briefs are
written submissions by an individual or organization who is not a party to a case but who would like to offer
additional information or legal analysis to help inform the body considering a case.

Deciding on an Advocacy Strategy
Several questions can help advocates identify what advocacy opportunities are available to them and which
forums and actions would be most strategic:

  • What human rights documents has the country in question ratified?
  • Does the country recognize the competency of any of the African human rights bodies to hear individual
    complaints?
  • Which mechanism(s) can best address the issue you are working on, given the benefits and challenges for
    different mechanisms? The African Court has the broadest jurisdiction to hear complaints about all human
    rights instruments, but only a few AU member states allow the Court to accept cases directly from NGOs
    with observer status. Any individuals and NGOs can submit complaints to the African Commission.
  • Are there any upcoming opportunities for engagement, such as sessions or a country review? It is helpful to
    examine the calendars of different mechanisms to prepare in advance. With this information in mind, NGOs
    can engage multi-level and multi-forum advocacy as opportunities arise, on their own or in partnership or
    coalition with other organizations.
  • Are there other groups or organizations with whom you can work? Working in coalition can bring together
    various areas of expertise and skill sets. In addition, joint submission and other collective advocacy can
    amplify the voices of an organization and increase the quality and credibility of the information provided.
    However, on the other hand, space constraints may limit the opportunity to focus on the most important
    issues for you or your organization when working in coalition.
  • Do you have a media strategy in place to help raise public awareness of the issue on which you are working?
    Effective media engagement can put pressure on or mobilize key decision-makers around an issue.