The level of protection of women’s right under the African Charter on human and people’s right.

INTRODUCTION

Recognizing the crucial position of women in the preservation of ‘African Values’ based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy, women’s right have been recognized and guaranteed in all International Conventions on civil and political rights, International Convention on civil and political rights, International Convention on economic, social and cultural rights, the Convention on the elimination of all forms of discrimination against women and its optional protocol, the African charter on the rights and welfare of the child.

Despite the rectification of African Charter on Human and Peoples’ Right and other International Human Rights instruments by the majority of states parties and their solemn commitment to eliminate all forms of discrimination and harmful practice against women, women in Africa still continue to be victims of discrimination and harmful practice, which unreservedly gave an impetus to the additional protocol of the African Charter on Human and Peoples Right and women’s Rights.

DISCRIMINATORY PRACTICES
Article 1, of the Convention on the elimination of all forms of Discrimination against Women asserts:


Discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition; enjoyment or exercise by women irrespective of their marital status on a basis of men and women of human rights and fundamental freedom in the political, economic, social, cultural, civil or any other field”.

Eliminating gender discrimination is not easy since Governments are obliged not to interfere with freedom but on the other hand, are obliged to interfere to reduce inequalities between men and women.

Many women in Africa endure rampant and brutal Human Rights violations in their homes and in the public sphere, perpetuating their inequality and putting them at risk for poverty and disease, including HIV/ AIDS. Governments have done far too little to end abuses such as domestic violence, marital rape, unequal property and inheritance rights, trafficking, labour rights abuses, sexual violence in armed conflict, and discrimination in education and health care systems.

Millions of women throughout the world live in conditions of abject deprivation of and attacks against their fundamental human rights for no other reason other than the fact that they are women. Combatants and their sympathizers in conflicts such as those in Sierra Leone, Kosovo, the Democratic Republic of Congo, Afghanistan and Rwanda have raped women as a weapon of war with near complete impunity. Men in Pakistan, South-Africa, Peru, Russia, and Uzbekistan beat women in the home in outstanding rates, women from Ukraine, Moldova, Nigeria, The Dominican Republic, Burma and Thailand are bought and sold, trafficked to work in forced prostitution, in Guatemala, South Africa and Mexico, women’s ability to enter and remain in the work force is obstructed by private employers who use women’s reproductive status to exclude them from work and by discriminatory enforcement of the law. In the US, students discriminate against and attack girls in school who are lesbian, bi-sexual or transgendered, or do not conform to male standard of female behaviour, women in Morocco, Jordan, Kuwait und Saudi Arabia face government-sponsored discrimination that renders them unequal before the law.

Abuses against women are relentless, systematic and widely tolerated if not explicitly condoned, violence and discrimination against women is a global social epidemic.

The Pregnancy Discrimination Act of (1978) became a Federal Law, recognizing that discrimination on the basis of pregnancy is discrimination on the basis of ” sex”. The PDA guarantees pregnant women who are capable of working, the right to do so. It also forbids work place discrimination against women based on the mere possibility of pregnancy.

We live in a world in which women do not have basic control over what happens to their bodies. millions of women and girls are forced to marry and have sex with men that they do not desire. Women are unable to depend on government to protect them from physical violence in the home with sometimes fatal consequences. Women are punished for having sex outside of marriage or with persons of their choosing.

FOCUS OF AFRICAN CHARTER IN VIEW Of AFOREMENTIONED VIOLENCE/DISCRIMINATION AGAINST WOMEN

African women made history in 2005 as a protocol came into force that specially protects women’s human rights and breaks new ground in International Law. The women’s right protocol was adopted in 2003 but the 15 countries that had ratified the protocol as of January 2006 were Benin, Comoros, Cape-verde, Djibouti, The Gambia, Libya, Lesotho, Mali, Malawi, Mauritania, Mozambique, Namibia, Nigeria, Rwanda, South Africa, Senegal and Togo, with the primary motive to expose and denounce as human rights violations those practices by which women are systematically discriminated against, excluded from political participation and public life, segregated in their daily lives, raped in armed conflict, beaten in their homes, denied equal divorce or inheritance rights, killed for having sex, forced to marry, assaulted for not conforming to gender norms and sold into forced labour.

REGIONAL PROTECTION OF WOMEN’S RIGHT AFRICAN CHARTER AND PROTOCOL AS A CASE STUDY

“A “charter” connotes something done in due form and solemnity and it is therefore accorded great respect and binding force. The African Charter on Human and Peoples’ Rights, adopted by the OAU on 19th Jan. 1981 (it came into force on 21st Oct 1986).

The African charter recognizes the importance of women’s right through three main provisions:
Article 18(3), which concerns the protection of the family, promises to “ensure the elimination of every form of discrimination against women and also ensure protection of rights of women”.

Article 2, the ‘no discrimination clause’, provides that the rights and freedom enshrined in the charter shall be enjoyed by all, irrespective of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Article 3, the ‘equal protection clause’, states that every individual shall be equal before the laws and shall be entitled to equal protection of the laws.

Women groups and other organizations working in the human rights sphere do not regard these provisions as adequate to address the rights of women, i.e. while Article 18 prohibits discrimination against women, it does so only in the context of the family, in addition, explicit provisions that guarantee the right of consent to marriage and equality of spouses during and after marriage are completely absent.

These omissions are compounded by the fact that the Charter places great emphasis on traditional African values and traditions without explicitly addressing concerns that many customary practices such as female genital mutilation, forced marriage and wife inheritance can be harmful or life-threatening to women“.

As a result of this bias, a number of activists and organizations have aimed at transforming African Human Rights discourse to more closely reflect women’s experiences. The first major step towards this goal was taken in April 1997, when the first draft of the additional protocol on women’s right was created. In doing so, the additional protocol explicitly acknowledges what the African charter does not; that women’s rights as human right must be respected and observed.

Article 66 of the African charter on Human and Peoples’ Rights provides for special protocols or agreements if necessary to supplement the provisions of the African Charter and that the OAU Assembly of Heads of State and Government has in June 1995, endorsed the decision of the African Commission on Human and Peoples’ Right to elaborate a draft protocol on the rights of women. We have additional 23 articles with comprehensive provisions enabling the elimination of discrimination against women, amongst all are:

Article 1 – Definition of Discrimination
Article 2 – Respect for Dignity
Article 3 -Women’s Perspective in Policy Development
Article 4 -Discrimination against Women
Article 5 -Right of Physical Security
Article 6 -Specific Protection of Elderly and Disabled women
Article 7 – Marriage

Article 8 -Separation and Termination of Marriage

Article 9 – Widow’s rights

Article 10 – Right to Information and Legal Aid.

Article 11 – Right to Participation in political process

Article 12 – Right to peace

Article 13 – Violence against Women

Article 14 – Right to educational training

Article 15 – Economic and Social Welfare Right

Article 16 – Health and Reproductive Rights

Article 17 – Right to Food Security

Article 18 - Right to Adequate Housing  

Article 19 – Cultural Practices

Article 20 – Environmental Rights

Article 21 – Right to Development

Article 22 – Opening Article for Signature

Article 23 – Opens the Article flexibility from time to time

Bearing in mind related resolutions, declarations, recommendations, decisions, Conventions and other regional and sub-regional instruments aimed at eliminating all forms of discrimination and at promoting equality between women and men, I am firmly convinced that any practice that hinders or endangers the normal growth and affects the physical and psychological development of women and girls should be condemned and eliminated.

CONCLUSION

Africa’s decades of democratization shows little evidence of developmental democracy Prof. Lodge posits:

Poverty and economic inequality in many African countries is getting worse.

Cultural relativism, which argues that there are no universal human rights and that rights are culture specific and culturally determined, is still a formidable and corrosive challenge to women’s rights to equality and dignity in all facets of their lives.

The realization of women’s rights is a global snuggle based on universal human rights and rule of law. It requires all of us to unite in solidarity to end traditional practices and laws that harm women. It is a fight for freedom to be fully and completely human and equal without apology or permission. Ultimately, the struggle for women’s Human Rights must be making women’s lives matter, everywhere and all the time. In practice, this means taking action to stop discrimination and violence against women.

The need has now become obvious to recognize the global trend towards gender purity in all spheres of life. Women have to fight for every inch of space in order to come into noticeable relevance. As Nigeria marks her 47th independence women should be encouraged to be actively involved in the national decision-making process. This way, they will be better equipped to meet the challenges (pg. 17 of the Nations vol. 1 No. 0074).

You can help provide the desperately needed women’s right in African by writing to those governments that have not ratified the protocol and calling them to comply with the protocol by amending their domestic laws and practices.

You can also write to African Governments who have not yet ratified that protocol urging them to make a commitment to women’s rights. In a bid to aid and facilitate this positive step, the African Union’s website provides updated information on ratification. There is an urgent need for a change, let us make it happen!

About the Author

Solagbade Oluwole is the principal Partner at Solagbade Oluwole & Co. He is a seasoned legal Author and researcher.


REFERENCES

Otto Dianne, “Gender Comment” (Why Does the UN Committee on Economic social and cultural rights need a general comment on women? 14, Canadian Journal of women and law, 1-52 (2002).

Tomasevski, Kafarina, European Approaches to Enhancing Reproductive Freedom, 44 American University Law Review, 1037 – 51 (1995).

Wright Shelley, Women and the Global Economic Order, A Feminist Perspective 10 (2) American University Journal of International Law Policy, 861 – 87 (1995).

Gladys M’Sodzi Nhekairo – Muthkwe of Women in Law and Development in Africa (Wildae) explains the protocol and its importance to women in Africa.

Pg 8 of Report of the Conference held 26-27th May, 2003, Johannesburg, South Africa. The Nation Vol. 2 No. 0074 Thursday, October 12, 2006.

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