The promise of the women’s rights protocol
What is right with Africa
L. Amede Obiora and Crystal Whalen
2010-11-25, Issue 507
The Protocol to the African Charter on Human and Peoples’ Rights on Women’s Rights in Africa, otherwise known as the Maputo Protocol, is widely celebrated as the most progressive international treaty on women’s rights. The protocol, which exemplifies an Africa-focused and driven framework for comprehensive human rights, clearly demonstrates Africa’s capacity to self-determine, innovate and lead. Deferring to commentators who may prefer to chronicle a litany of shortfalls that thwart the effectiveness of the protocol, we opt to commemorate the fifth anniversary of the instrument’s entry into force as an august opportunity to illuminate how it is emblematic of what is right with Africa. We posit that objective conditions which enabled the emergence and growing embrace of the protocol augur well to steadily, even if slowly, engender the necessary resources, processes and institutions to substantiate the logic, mechanics and impact of deploying African solutions for African problems. Reflecting on the genesis, opportunities and challenges of the protocol, we analyse the generative gains of demonstrating what is right with Africa in the pursuit of gender justice.
2010 marks the jubilee of 1960 – the so-called ‘Decade of Africa’ – the year that 17 African countries attained independence from colonial subjugation. The euphoria that attended independence was soon eclipsed by a deluge of structural and cultural violence that left the continent haemorrhaging for decades and precipitated a development industry beholden to Afro-pessimism. Within this context, Africa was manipulated as the quintessential laboratory for crusading experiments that privilege so-called experts to champion and arbitrarily test prescriptions across the gamut. Increasingly, the steep learning curves of Africa’s harsh realities have proven fertile to incubate the fundamentals to invigorate Africa’s self-renewal. Seasoned observers celebrate this present time as Africa’s moment. Resounding narratives about Africa’s emerging competitiveness in the global economy and commendations of the underlying conditions for the transition temper conventional Afro-pessimistic perspectives and discourses. World-class analysts, including the McKinsey Global Institute and the Boston Consulting Group, spotlight patterns, sources and strong prospects about Africa’s widespread awakening and growth acceleration. After discounting for lagging individual countries, the dominant sentiment is that Africa – with 20 per cent of the world’s land and 15 per cent of its population – recorded at least 4.9 per cent in annual GDP (gross domestic product) growth and continued to outperform global indexes in the recent economic downturn. Objective evidence of deepening economic growth and macroeconomic reforms, improved governance and correlative rule of law, and positive social indicators stimulate productivity and validate many African countries as attractive destinations for global capital.
Consensus on the critical role of women for Africa’s revitalisation is not lacking. Abiding features of the contemporary epoch, which enabled the incubation of innovations such as the protocol, further point to the end of the interregnum and foreground an auspicious environment to systematically orchestrate a renaissance sensitive to gender equity as a catalyst to optimise Africa’s control of the full expanse of its resource potential and augment demographic dividends. For African women, there is no time like the present, especially owing to the proliferation of data and intelligence that continue to underscore their invaluable contributions and vindicate the multiplier intergenerational benefits of gender empowerment as the linchpin to galvanise the growth that counts at the ground-level. Notwithstanding that women have been in the frontline of, and are often the hardest hit by, perennial struggles over resources, they are invariably credited with saving the day by shouldering Herculean burdens to spell the difference in the lives of their families.
Five years after the Maputo Protocol came into force, 29 of the 53 countries in the African Union have ratified it. While this pace is not slow in comparison with ratification precedents and trends across the globe, key stakeholders are anxious to expedite the process to attain universal ratification and implementation. The significance of universal ratification is without question, although modest assessments of footprints attributable to the protocol among member countries demonstrate the limits of universality, independent of actual implementation. The noteworthy lesson is that there is a need to balance campaigning for ratification with a corresponding focus on impactful strategies for domestication and implementation. Ratification is just a stat, albeit an indispensable first step.
In principle, governments are quick to simulate or approximate political will and endorse progressive platforms for gender inclusion. However, the principle is not often matched by meaningful action to transform gender realities on the ground. Sovereign African states imbued with responsibility for implementing, monitoring and evaluating the Maputo Protocol relegate the obligation to national gender machineries, which are notoriously constrained and marginalised in the body politic. In the past few years, several ratifying states have taken significant steps to domesticate the protocol by promulgating laws to substantiate it locally, even though some legislation has engendered considerable controversy as subtexts for regressive agendas. By the same token, considerable effort has been devoted to securing the enshrinement of salient provisions into national constitutions. However, assumptions about the effectiveness of some form of incorporation into the constitution are not necessarily consistent with the experiences of countries where gender equality is a constitutional principle. In the final analysis, the lacklustre impact of supreme constitutional guarantees speaks volumes of the political economy for meaningful transformation.
The protocol’s popular support and home-grown provenance has not inoculated it against ritualised banalities that culminate in the politics of ratification. The profile of non-ratifying states, most of which are embroiled in or transitioning from conflict or upheaval, is telling of some degree of correlation between elected government or relative accountability and political will to guarantee women’s human rights. However, a democracy audit fails to explain the deplorable scores of Mauritius and Botswana, which rank among Africa’s oldest and stable democracies. While Mauritius signed the Maputo Protocol in 2005, it has not ratified it to date. More curiously, Botswana, which is a stable democracy and flourishing economy, neither signed nor ratified the protocol, despite several innovations for which the protocol is celebrated, including its status as the first international human rights treaty to explicitly address and incorporate a tool to fight HIV/AIDS, the incidence of which is disproportionately high in Botswana. Equally striking is the failure of Ethiopia, which is the seat of both the AU and the United Nations Economic Commission for Africa, to ratify the protocol.
Historical resistance to imperialism, which fuelled popular aversions to other-defined agendas, reinforced the appetite for the mystification and cooptation of culture, broadly construed to encompass religion, as a shield against human rights. Nonetheless, the adoption of the protocol right from the start by some states like Libya, with predominantly Muslim populations, suggests that concerns about putative incompatibility with religious tenets is less of an insurmountable problem than the lack of political will which coincides with the inclination to politicise or pander to religious fundamentalism. Indeed, some of the countries that have invoked religious constraints to justify their reluctance to endorse the protocol have ratified both the CEDAW (Convention on Elimination of All Form of Violence against Women) and its Optional Protocol, undeterred by the threat of intrusiveness that inheres in the fact that the Optional Protocol is the first gender-specific international complaints mechanism.
Of the countries that have signed but failed to ratify the Maputo Protocol – Algeria, Burundi, Cameroon, Central Africa Republic, Chad, Cote d’Ivoire, Congo, Equatorial Guinea, Ethiopia, Gabon, Guinea, Madagascar, Mauritius, Niger, Sierra Leone, Sao Tome & Principe, Swaziland, Sahrawi Arab Democratic Republic, Somalia and Sudan – all but the last three have signed and/or ratified the CEDAW and its Optional Protocol. Building up to and shortly after the Fourth World Conference on Women in Beijing, most of the countries that are yet to sign and/or ratify the Maputo Protocol ratified CEDAW without reservation. All of the four countries – namely Botswana, Tunisia, Egypt and Eritrea – that have reneged on either signing or ratifying the Maputo Protocol ratified the CEDAW. With the exception of Egypt, none of the ratifications by the countries in this category were accompanied by any reservation. In fact, Botswana proceeded to ratify the Optional Protocol in February 2007 and Tunisia followed suit as recently as September 2008. Paradoxically, such ambivalence recuperates grounds for a proposition that, all things considered, Africa’s dominant orientation in favour of human rights amounts to an affirmative culture which further signifies what is right with Africa.
A cursory comparison Africa’s ratification history with experiences in so-called advanced economies and mature democracies with highly sophisticated rule of law systems buttresses the perspective to appreciate the premium placed on the human rights regime in Africa. In the United States, for example, it bears reiteration that the Equal Rights Amendment which was first proposed in 1923 has yet to see the light of day and the CEDAW which the US signed as far back as 1980 has stalled in Congress, incessantly awaiting ratification. Apologists for American exceptionalism are quick to extol the wisdom of compliance without ratification as opposed to ratification without compliance. However, such rationalisations neglect the strong empirical correlation between ratification and result. To the extent that much of the traction that accounts for purported ‘compliance without ratification’ in the US largely tends to be a function of social justice activism, it stands to reason that civil society entities would be infinitely more energised to transcend resistance, broker reform and produce effective results if armed with ratifications, instead of agitating for change in an atmosphere more prone to be hostile to ratification.
The scarcity of copious reservations that marks the Maputo Protocol is in stark contrast to the CEDAW, which is presumably the human rights instrument with the highest number of reservations. Notwithstanding Art 28(2) of CEDAW, which prohibits reservations incompatible with the object and purpose the convention, it is impaired by the exceptionally high number of reservations that several state parties opposed as threatening the integrity of the human rights regime in general. Apparently, only two countries, South Africa and Gambia, originally entered reservations qualifying their ratification of the protocol. Gambia subsequently rescinded its reservation and much of South Africa’s reservations formalistically aimed to preclude the risk of compromising favourable national laws that were perceived as superior affirmations of the protocol’s ideals. Again, if the incidence and nature of reservations is a measure of favourable human rights bias, we proffer that African states generally exhibit patterns that intimate a friendly predisposition towards human rights. Incidentally, only a few African states ratified the CEDAW with reservations and the number of reservations entered against the Maputo Protocol is even more negligible; as of 2007, only South Africa’s ratification was encumbered with reservations. It is conceivable that the low occurrence of reservation in the Maputo Protocol may be seen as signalling heightened conscientiousness and deliberative adoption in a manner that may actually offer partial explanation for a gap in ratification.
A hallmark of the protocol is the platform that it has provided for the unparalleled mobilisation of women across the African continent for tireless consultations, debates, advocacy, monitoring and evaluation. Indeed, the protocol is a testament to the resilience of gender activism and a tribute to the courage of indefatigable women who stood their ground against grave odds in fierce contestations for Africa’s destiny in general and gender equity in particular. Vigorous gender activism has not merely been a recipe to stimulate a hospitable environment to enlist support, consolidate gains and facilitate compliance with political commitments; it has been an engine of change in its own right and intrinsically an infrastructure for promoting gender justice. The success of gender forums, coalitions and networks is further indication of political will for human rights and their trajectory is instructive on frameworks that can effectively advance both broader participation in and implementation of relevant instruments. Individuals and groups of divergent stripes who coalesced around shared visions of gender equality and persevered through tedious processes of iteration and grinding challenges to build confidence, commitment and critical networks to midwife the adoption and ratifications of the protocol remain pivotal to drive and sustain the successes of implementation. Much of the credit for the celebration of the protocol as an innovation in the human rights regime inures to these cohesive networks which foster awareness and sensitisation, enrich relevant knowledge, improve understanding, nurture confidence and build capacity among critical stakeholders to actively engage salient issues. The interventions of these networks at once increase opportunities for constructive dialogue about home-grown solutions, help leverage resources more efficiently and promote strategic collaborations with better coordination to design, manage, and focus efforts to implement programmes that ultimately pipeline a culture of gender equity that consistently maintains the momentum of progress for women’s human rights.
The astute gender entrepreneur whose tenaciousness, sweat and equity have thus far facilitated the birth and progress of the protocol were neither oblivious of nor naïve about the obstacles to domestication and compliance when they set out to enliven the dialogue and dissent that ultimately culminated in the protocol’s promulgation. On the contrary, they went to great lengths to campaign for the adoption of the instrument precisely to create entitlements that would offer a rally point to further incentivise and spur stakeholders across the spectrum of society to action that would help mediate the discrepancies of statecraft. Indeed, the promulgation is an objective measure of the bandwidth of gender activists to influence the democratic process and state institutions. The journey so far is encouraging and provides inspiration for the considerable undertakings ahead. The activism that endowed the world with the gift of the normative protocol boasts the dexterity to stay the course and help foster critical macro- and micro-level changes in respective countries. The initiative, enterprise, skill sets and competencies it required to formulate, nurture and sustain the protocol’s paradigmatic relevance to date parallel those necessary to reconcile compliance with commitment and align behaviour with normative standards. However, planning is integral to progress and advancement on the unfinished business. In material respects, core experiences with the protocol bear out the insights of development experts who contend that plans exemplified by pronouncements such as the protocol are nothing, while insisting that planning is everything and that a failure to plan is tantamount to a plan to fail. From inception to implementation, the history of the protocol reflects proactive strategies that suggest ample opportunities to turn the table against African political elites who ordinarily tend to be adept at adopting frameworks that they fail to implement.
Juxtaposing a deficit-based critique of the role of the protocol that emphasises the challenges of signing, ratification and implementation against an asset-attuned standpoint, we have deliberately elected to privilege the gains of the protocol over its gaps. Part of the enthusiasm for the protocol derives from its promise as an instrument for Africa’s self-determination specifically drawn and driven by Africans. A fine example of African agency on gender matters which has found expression in other respects, the protocol evinces a pedigree that demonstrates the resonance of gender parity and/or an equity ideal. As alluded to earlier, constitutional guarantees of equality abound in Africa where the CEDAW has been adopted by almost all and the protocol, which was signed by all but seven African countries, has been ratified by 29 countries within less than five years of coming into force. It is one thing to secure the far-reaching protocol; it is another to organise, dedicate and invest the quality of resources imperative to ensure that the instrument matures into a compelling tool to enrich women’s capabilities and functioning. Granted, the enormous potential of the instrument as a formidable tool for gender empowerment has not readily translated into qualitative transformations of gender realities to date. Nevertheless, it behoves critical stakeholders to come to terms with the reality that individual feminists and gender networks have their work cut out for them.
Just as the protocol was a hard-won gain, its forceful implementation and impact will not been conceded on a platter of gold, so to say. The good news is that just as the interventions of non-state actors turned the tide to generate the critically acclaimed protocol, the same actors are equipped with the advantage of hindsight to embrace the enforcement challenges as an apt opportunity for creativity and to harness steep learning curves and build on the discernible footprint as a cornerstone to provide fresh thinking to tool up, map out, execute and calibrate a robust plan to systematically leverage the resources necessary to give adequate teeth to the instrument to bring about and routinise measurable change vis-à-vis women’s human rights. Consistent with women’s invaluable, even if typically discounted contributions, the reinforced efforts of gender advocacy networks are poised to enhance what is right with Africa in ways that ameliorates human rights strategies that are of global applicability.
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* Leslye Obiora is professor of law at the University of Arizona. She recently served as Nigeria’s minister of mines and steel.
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