Today marks 18 years since 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 popularly known as the Maputo Protocol to safeguard and uphold the rights of women and girls across the continent.
To date, 42 out of the 55 African countries have ratified the Protocol and 13 countries are yet to join the treaty. While the majority of countries have ratified or acceded to the Protocol, its implementation and application are still far from becoming a reality.
Reservations at a country level are impeding the Protocol’s application
Some countries have ratified the Protocol but have placed reservations on it, which continue to impede its full application. Reservations limit the full domestication and implementation of the Protocol, thereby denying women and girls the full enjoyment of the rights.
However, these reservations are not meant to remain in place in perpetuity. Member States are obligated to take necessary steps to address the issues of concern and eventually lift the reservations. The continent can draw lessons from Rwanda which has set precedent by lifting the reservation it had on Article 14 (2) of the Protocol, reforming national laws, and sensitizing law enforcement officers and healthcare providers on the change in the law. Here are some examples of Member States’ reservations:
Kenya does not consider itself bound by the provisions of Article 10 (3) which requires Member States to reduce military expenditure in favor of social development and the promotion of women.
It has further placed reservations on Article 14 (2) (c) which provides access to health and reproductive rights including medical abortion in cases of sexual assault, rape, incest, and where pregnancy endangers the mental and physical health of the mother or the life of the mother or fetus.
In Cameroon, the government declared that its accession to the Protocol can in no way be interpreted as endorsement or promotion of homosexuality, abortion (except therapeutic abortion), genital mutilation, prostitution, or any other practice which is not consistent with universal or African ethical and moral values.
Namibia has a reservation on Article 6 (d) of the Protocol until legislation regarding recording and registration of customary marriages is enacted. The Article requires that every marriage be recorded in writing and registered in accordance with national laws in order to be legally recognized.
South Africa has placed reservations on several Articles. It does not consider itself bound by Article 6 (d) which requires that marriage should be recorded in writing and registered in accordance with national laws in order to be legally recognized.
South Africa has further placed a reservation on Article 6 (h) which guarantees equal rights between men and women with respect to the nationality of their children except where it’s contrary to national legislation or national security. It may remove inherent rights of citizenships and nationality from children.
Uganda has placed reservations on Article 14 (1) (a) and 14(2) (c) which mandates Member States to ensure that women’s right to sexual and reproductive health is respected and promoted. These Articles have been interpreted to mean that women entirely have the right to control their fertility regardless of marital status and with regards to access to abortion, the State is not bound unless permitted by domestic legislation which expressly provides for abortion.
In Mauritius, no legislative measures shall be taken under Article 6 (b) where these measures would be incompatible with provisions of the laws in force in Mauritius and Article 6 (c) which states that monogamy is the preferred form of marriage and provides that the rights of women in marriage and family including in polygamous marital relationships are protected.
With regards to Article 9, Mauritius shall use its best endeavors to ensure the equal participation of women in political life, in accordance with its Constitution.
Additionally, no measures will be taken under Articles 4 (2) (k),10 (2) (d), and 11(3) of the Protocol which makes reference to women seeking refuge and asylum and the establishment of structures protecting women in armed conflicts which are not relevant Mauritius.
Mauritius is also not bound by Article 14(2) c of the Protocol which speaks to access to medical abortion in cases of sexual assault, rape and incest. This right is not provided when the matter has not been reported to the police or where the pregnancy has exceeded its fourteenth week.
Although South Sudan has not officially ratified the Protocol, it has passed the parliamentary motion for ratification, and through its parliamentary committee for Gender, Child and Social Welfare and Religious Affairs has indicated reservations on several Articles including one which discourages polygamous marriages, women’s right to control their sexuality and to decide whether to have children as well as the right to choose contraceptives.
It has also indicated reservations on Article 14 (2) (c ) on the right to health and reproductive rights which provides for the right to procure an abortion in cases of sexual assault, rape, incest, and when the pregnancy endangers the mental and physical health of the mother. Abortion is permitted only in cases where pregnancy gravely endangers the life of a mother and should be approved by a gynecologist. Any abortion not approved by such an expert is criminalized.
Universal Ratification of the Maputo Protocol
The AU’s aspirations for universal ratification of the Maputo Protocol by all 55 Member States by the end of 2020 were not realized. But we, together with our fellow members of the SOAWR Coalition, remain committed to protecting and promoting the rights of women and girls across Africa. We’re raising our voices to call on Botswana, Burundi, Central African Republic, Chad, Egypt, Eritrea, Madagascar, Morocco, Niger, Sahrawi Arab Democratic Republic, Somalia, South Sudan, and Sudan to urgently ratify the Protocol. We further urge Member States who have ratified the Protocol to ensure that ratification translates into meaningful enjoyment of every right by women and girls in Africa. Until all states have ratified the Protocol without reservation, women’s and girls’ rights across Africa will remain at risk.