18 years ago, the Member States of the African Union adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) to advance and safeguard the rights of women and girls across the continent. To date, 42 countries have signed and ratified the Maputo Protocol. Only 13 countries are yet to ratify for the Protocol to achieve universal ratification. But how do international and regional human rights frameworks actually impact the everyday lives of women and girls?
Across the continent, different countries have enforced the Maputo Protocol either directly through state administrative and policy action or through decisions of courts both at the national and regional level demanding accountability for the rights therein. Indeed national and regional courts have relied on and made reference to the Maputo Protocol in the adjudication of cases ensuring that the women’s rights enshrined in the Protocol become a reality for women and girls in Africa.
On 17th March 2021, a three-judge bench of the Constitutional Court in Kenya, upheld the constitutionality and legality of the Prohibition of Female Genital Mutilation (FGM) Act, which the Petitioner, a medical doctor, had sought to be invalidated on allegations that the Act contravened and violated the rights of women who consented to FGM. The petitioner, had erroneously averred that the Act discriminated against women to practice their culture, by outlawing FGM. The court in dismissing the Petition, also found that the Act needs to be strengthened in order to prohibit type 4 FGM, to ensure total protection of women and girls from all forms of FGM.
We’ve rounded up a few other landmark cases both at the national and regional level that have changed the lives of women and girls across Africa.
1. HOLDING KENYA ACCOUNTABLE FOR FAILING TO INVESTIGATE AND PROSECUTE SEXUAL AND GENDER-BASED VIOLENCE FOLLOWING THE 2007 ELECTIONS
In December 2020, the High Court of Kenya issued a historic decision that found the Government of Kenya liable for failure to investigate and prosecute cases of sexual and gender-based violence that happened during the post-election violence of 2007. The case was filed by eight survivors with support from non-governmental organizations who were seeking accountability and redress for these violations.
The Court found the government to be in violation of several human rights instruments including the Maputo Protocol and ordered the government to pay compensation to four of the survivors amounting to KSH 4 million (approximately 40,000 USD) per survivor.
2. LETTING GIRLS LEARN IN SIERRA LEONE
In December 2019, The ECOWAS Court of Justice in a landmark ruling declared that the ban which prohibited pregnant schoolgirls from going to school in Sierra Leone was discriminatory and in violation of girls’ right to education. The government was found to be in breach of Articles 2 and 12 of the Maputo Protocol which calls on State Parties to eliminate discrimination against women and girls and to guarantee equal opportunities and access to education.
Following the court’s ruling, the Government of Sierra Leone lifted the ban in March 2020 resulting in girls being granted access to education. The court’s decision set a precedent for West African Countries.
3. ACCESS TO JUSTICE FOR A SURVIVOR OF SEXUAL VIOLENCE AND FORCED MARRIAGE IN ETHIOPIA
In 2001, a 13-year-old girl was abducted and raped in Ethiopia. She was rescued and the perpetrator arrested. Upon his release on bail, the perpetrator abducted her again and held her for more than a month, and forcefully married her. He was later arrested and sentenced to prison for 10 years. However, after an appeal, the High Court quashed the decision, and the perpetrator and his accomplices were released. Equality Now in collaboration with the Ethiopian Women Lawyers Association filed the case on her behalf before the African Commission on Human and Peoples’ Rights and urged the government to repeal the ‘marry your rapist’ law to include severe penalties for perpetrators.
The Commission in 2018 found that Ethiopia had failed to protect her and that there was a violation of her rights to liberty, the right to life and security of person, and to dignity under the Maputo Protocol. The government was compelled to pay a compensation of USD 150,000. However, the Ethiopian government requested the African Commission to review this decision.
4. ENSURING THE MINIMUM AGE OF MARRIAGE IS 18 IN TANZANIA FOR BOTH BOYS AND GIRLS
Following a ruling by the High Court in 2016, the Tanzania Court of Appeal upheld a landmark ruling against child marriage in 2019. The case challenged the constitutionality of sections 13 and 17 of the Marriage Act which set the minimum age of marriage for girls at 15 years and 18 years for boys.
The High Court had ruled that marriage under the age of 18 was illegal and directed the Government of Tanzania to raise the minimum age of marriage to 18 for both boys and girls within one year. The Court made reference to Article 6 of the Maputo Protocol which sets the minimum age of marriage at 18.
5. PROTECTING WOMEN AND GIRLS FROM FEMALE GENITAL MUTILATION IN UGANDA
Law and Advocacy for Women in Uganda filed a case asking the Constitutional Court of Uganda to declare Female Genital Mutilation (FGM) a violation of girls’ and women’s rights under the Constitution of Uganda. The Court ruled that while the constitution guarantees the right to culture, the same culture should not subject anyone to any form of torture or degrading treatment. The Court ruled that FGM violates the provisions of the Constitution of Uganda as well as other treaties, conventions, and protocols that Uganda is a party to.
The ruling was in line with Article 5 of the Maputo Protocol which calls State Parties to prohibit all forms of harmful practices and requires them to put in place necessary measures to eliminate them.
6. PROTECTING WOMEN’S AND GIRLS’ RIGHTS IN MALI
In 2011, the Government of Mali passed the Family Code which had provisions that were inconsistent with provisions of human rights instruments including the Maputo Protocol. The Family Code had set the minimum age of marriage at 16 for girls and 18 for boys. The provisions also did not require religious ministers to obtain proof of parties’ consent to marriage. It also gave precedence to religious and customary laws when handling inheritance issues.
The African Court found the government of Mali to be in violation of Articles 6(a) and (b) and 21 of the Maputo Protocol on the minimum age of marriage, consent to marriage, and right to inheritance.
7. HOLDING NIGERIA ACCOUNTABLE FOR UNLAWFUL DETENTION OF WOMEN
Dorothy Chioma Njemanze and three others filed a case at the ECOWAS Court of Justice against the Federal Republic of Nigeria for verbal, physical, and sexual assault, threats, and unlawful detention. Dorothy and the three others had been abducted at different times between 2011 and 2013, in the hands of the Abuja Environmental Protection Board (AEPB, a government agency) and other government agencies such as the police and the military. They were accused of prostitution and child labor simply because they were walking the streets at night. They were unlawfully detained in inhumane conditions and physically and sexually assaulted.
The Court ruled that the state of Nigeria was in violation of the Maputo Protocol, African Charter, CEDAW, and other international human rights instruments. The Court ordered a compensation of six million Naira (Approximately 15,600 USD) to the first, third, and fourth applicants.
8. HOLDING EGYPT ACCOUNTABLE FOR NOT INVESTIGATING VIOLENCE AGAINST WOMEN DURING A DEMONSTRATION
Four women were physically and sexually assaulted in 2005 during a demonstration organized by the Egyptian Movement of Change to challenge the Egyptian Constitution to allow for multiple candidates during presidential elections. The women reported the case to the Public Prosecution Office but the investigators refused to take statements from eye witnesses.
The African Commission, in finding Egypt to be in violation of the rights enshrined in the African Charter, referred to the definition of violence against women under Article 1 of the Maputo Protocol and also urged the Egyptian government to ratify the Maputo Protocol.
9. SETTING A PRECEDENT FOR EQUALITY IN INHERITANCE RIGHTS IN SOUTH AFRICA
In South Africa, a sister to a deceased was denied access to the deceased’s estate. The deceased had no children or wife, and did not have living parents and grandparents.
The Constitutional Court in South Africa ruled that section 23 of the Black Administration Act was discriminatory. The Court ruled that exclusion of women from inheritance is a violation of equality and non-discrimination under the South African Constitution and the petitioner was declared the sole heir in her deceased brother’s estate.
The Maputo Protocol is vital to ensuring the rights of every woman and girl in Africa are protected and promoted. Since its inception in 2004, the Solidarity for African Women’s Rights Coalition (SOAWR) has advocated for the adoption, ratification and domestication of the Maputo Protocol. As a proud SOAWR member, Equality Now calls on those remaining states to sign and ratify the Protocol, and for all states to ensure full application of Protocol so that the values of the Protocol become a lived reality for women and girls in Africa.