The question of whether marital rape is recognised or not by Southern African Development Community (SADC) governments, as a matter of policy, should be put to rest, says Pamela Mhlanga. International organisations and agreements recognise marital rape as a human rights violation and six SADC countries have domesticated this position in their criminal justice systems.

SADC is making progress, albeit fraught with uncertainties, towards a legally binding Gender and Development Protocol scheduled for adoption in 2008. Yet, it is surprising that the current draft of the Gender and Development Protocol excludes marital rape from the ambit of gender based violence, making it diametrically opposed to the 1998 commitment by SADC governments, and indeed, the progress already made in six countries in the region. Are we taking a step back or moving forward?

The journey just got tougher for civil society activists who have been spearheading efforts to ensure that Southern African Development Community (SADC) governments are legally bound to achieve gender equality, writes Pamela Mhlanga

The SADC Protocol on Gender and Development, due to have been adopted by Heads of State at their meeting in Lusaka, Zambia, in August, has been deferred until the next annual summit to be held in South Africa in mid-2008. The latest draft of the Protocol has had huge chunks removed and concrete commitments softened.

Rising to the challenge, during 16 Days of Activism these activists will be picking up the pace in a campaign to see that a draft Protocol on Gender and Development has the needed commitment and detail necessary to make it a meaningful document in promoting true equality.

SADC is arguably one of the few regions that have done some groundbreaking policy work to institutionalise gender equality. Aside from adoption of a Declaration on Gender and Development in 1997 and an Addendum to address violence against women and children in 1998, all 14 SADC states have ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).

This positive gender equality policy scenario in SADC should lay the basis for a smooth transition from having non-binding SADC instruments to achieve gender equality, such as the 1997 Declaration, to a legally binding one, right? Wrong, as the most recent SADC Heads of State Summit demonstrated.

The baby was almost thrown out with the bath water, when the draft Protocol failed to be adopted, despite having been approved by SADC Gender Ministers, as well as Justice Ministers, the latter having reviewed it in an extraordinary meeting just weeks prior to the August Summit.

The essence of the proposed SADC Gender Protocol is to consolidate all the various commitments made by SADC governments to achieve gender equality and women’s empowerment, in an “omnibus” document. This document will legally bind member states, and provide a framework with time bound targets, for assessing progress and evaluating their performance.

If adopted it will be the first document of its kind in any sub-region. Technically, a lot of work went into the preparation of the pre-Summit draft, including input by an intergovernmental and civil society Task Force set up by the SADC Secretariat under the leadership of the SADC Gender Unit, as well as portfolio SADC Ministers.

Members of the Southern Africa Gender Protocol Alliance, a coalition of 16 organisations working on women’s empowerment at national and regional levels, also made expert input into the drafts. Coordinated by Gender Links, this Alliance includes a wide range of organisations from across the region, such as the Botswana Congress of NGOs (BOCONGO), the Federation of African Media Women (FAMW) – SADC, Gender and Media Southern Africa Network (GEMSA), Malawi Council of Churches, Media Institute of Southern Africa (MISA), and Women in Law in Southern Africa (WLSA).

What is worrying is that the revised draft that came out of the Summit is substantially different from the pre-Summit draft in many respects. Some of the core issues that will, if effectively tackled, result in considerable positive impact on (currently unequal) gender relations and women’s full equality have either been removed, or modified.

This significantly compromises the potential effectiveness of the proposed Protocol, and, interestingly, even limiting the potential to achieve other commitments already made by SADC governments. For example, the text of the new draft creates loopholes to the adherence by governments to time bound targets, in line with commitments already made in global development blue prints such as the Millennium Development Goals (MDGs). Words like “ensure” are changed to “endeavour”.

Examples of gaps in the new SADC Gender Protocol draft include excluding reference to groups that suffer marginalisation or exclusion and limiting constitutional review processes that will eradicate discrimination and marginalisation of women. The new draft is missing entire sections from areas such as health, HIV and AIDS, education and institutional arrangements.

Some sections, such as HIV and AIDS are cross-referenced with documents that are either not legally binding such as the Maseru Declaration on HIV and AIDS or do not take into consideration gender issues, such as the SADC Protocol on Education and Training.

The commitment to ensuring that where there is a contradiction between customary law and Constitutional provisions for gender equality the latter takes precedence have been removed. This leaves wide open the dual legal system that daily undermines the rights of women in the region, especially poor women in rural areas.

In preparation for the next SADC Heads of State Summit, the Gender Protocol Alliance, currently coordinated by Gender Links, is developing a position paper motivating for a redrafting of the text of the Protocol in order that it a meaningful document that is grounded in women’s rights, and in line also with already existing SADC gender equality commitments.

The Alliance met in Johannesburg on 9 November 2007 to review the status of the Gender Protocol adoption process. The meeting focused on action that civil society can take to facilitate an essentially government process that seems to have been drawn back sharply.

Alliance members realise that the adoption of the Protocol requires greater political engagement, particularly at national level, to influence the spheres of power with responsibility for committing governments to act. Further, engaging with different spheres of influence at national and regional level is priority on the agenda, including Ministers of Gender, Justice, and Foreign Affairs, parliamentarians, seniour government officials, and other strategic activists.

At the core of action by gender activists is also to mobilise from the grassroots, so that there is popular support and a critical mass that recognises the value of the Protocol and sees its adoption and implementation as a critical factor in achieving equality and positive transformation for all. Thus, engaging potentially powerful sectors such as faith based organisations, local government actors, and others with their fingers on the pulse of community action and change will make significant inroads in ensuring multi-layered support.

The sum total of these proposed actions should turn the tide towards adoption of a SADC Gender Protocol that we can all identify and work with to raise the bar in addressing women’s rights in this region. Once ending gender violence becomes a legal obligation, maybe then our countries and communities will be safer places for everyone.

* Pamela Mhlanga is the Deputy Director of Gender Links.

* This article is part of a series produced by the Gender Links Opinion and Commentary Service for the Sixteen Days of Activism on Gender Violence.

* Please send comments to or comment online at www.pambazuka.org

The Women’s Rights Protocol arguably demonstrated the maturity of the African women’s movement, showing the power of collective agenda setting and follow through in a systematic and coherent way, says Pamela Mhlanga.

As the second anniversary of the coming into force of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Women’s Rights Protocol) dawns, we need to pause and reflect. The adoption and subsequent coming into force of the Women’s Rights Protocol was a turning point in the struggle for the rights of women on the continent. Women’s rights discourse and practice was deepened and expanded, and the Women’s Rights Protocol has proved to be a source of inspiration for keeping the momentum to achieve women of Africa’s full equality. The reflection, during this second anniversary, should thus focus on what we know, what we have learnt, and what we are carrying forward to strengthen ourselves as a women’s movement, as well as the content and practice of women’s rights, thereby solidify the gains we have made and decisively tackling the gaps remaining.

The Women’s Rights Protocol arguably demonstrated the maturity of the African women’s movement, showing the power of collective agenda setting and follow through in a systematic and coherent way. It also signaled that the experiences, voices and engagement of women of Africa with human rights matter, and these nuances wee captured in the form of the Protocol. Significantly, it marked the further institutionalization and affirmation of the rights of women on the continent; there is now a ‘homegrown’ source of women’s rights to which we can refer, underpinned by universal human rights standards.

What we know, however, is that women ‘do not eat paper’, and we face the perennial issue of promise vs delivery, and, by extension, ‘paper rights’ vs substantive rights. What we also know is that African governments ratify international human rights instruments all the time, and, dare it be said, often with impunity, as a number of them dance the ratification dance at international level, yet show little sign of domesticating or implementing their commitments. A case in point is that all 14 Southern African Development Community (SADC) countries have ratified CEWDAW, and only 3 countries have domesticated it, due in part to unique constitutional provisions providing for self-execution of ratified international obligations. Another case in point, is numerous reports replete with empirical evidence of little progress in enlarging women of Africa’s entitlements to fully engage with rights, thus denial of rights is still rampant, from violations of bodily integrity, sexuality, and socio economic rights, to outright discrimination often entrenched in national legal frameworks; the long reach of patriarchy and sexism, and increasingly backlash and rise of fundamentalisms, continue to coalesce and pose a fundamental challenge to the positive steps thus far taken to claim our rights.

This contradictory picture of progress and regression begs the question, if substantive delivery on women’s rights remains such a challenge, how are we to reframe the struggle to claim our rights, and how do we continue to creatively use the Women’s Rights Protocol as a point of reference? Certainly for the women’s movement, the struggle for rights must not only remain deeply political, but also located and articulated within broader struggles for advancing participatory democracy, people centred development and good governance. It must go further and be framed as nothing short of an agenda for transformation; radicalising the empowerment project in a way that fundamentally shifts gendered stratifications in structures, processes, cultures and political ethos in new ways.

This agenda for transformation implies a reconceptualisation of indicators of success in achieving women’s rights as a ‘live’ and dynamic process, defined by what is working or not working for women at any given time, not confined to occasional reports, and defining one or two acts or promises by governments as evidence of ‘political will’. The current poverty eradication and HIV/AIDS response frameworks, for example, are not working for women, otherwise these devastating conditions would not have our faces imprinted on them; why after so many decades do we still talk about the feminisation of poverty?

It is absolutely essential that the ‘footsteps’ of women are traced, and their voices made visible in empowering ways, in order to excavate the authentic voice that will not be erased by sophisticated frameworks for advancing rights that are, at times, so complex many of us hardly recognise ourselves in them; the project, as one activist has pointed out, is as much about going back to basics in terms of raising critical consciousness amongst women about asserting our rights and dignity, as it is about sitting on high tables negotiating complex legal instruments based on our agenda and demands. The establishment of the Solidarity for African Women’s Rights (SOAWR) is a point of departure, as the network is working towards harness this complex political agenda in the context of the Women’s Rights Protocol, in a way that aims to bridge the dichotomy between paper rights and substantive rights.

There is an understanding within the SOAWR network, made up of continental and national based women’s empowerment organizations, that the deployment of the Women’s Rights Protocol requires a deepening and broadening ownership of the content of the Protocol, achieved through mobilising a groundswell of support from all the places where women are, in order to create new opportunities for demanding accountability and delivery. Thus whilst some members are visible in key forums such as the AU and SADC Summits, others are taking the message to places where critical engagement is also essential, such as local communities. There is a recognition also that quiet diplomacy in pushing for change may be useful up to a point, so some members are working on public interest litigation cases, and using issue based advocacy such as gender based violence, to place the Women’s Rights Protocol on as many agendas as possible.

SOAWR members recognise the value of broadening the power base in order to ensure strategic influence at all levels, thus they have sought to engage both state and non state actors. In the years beyond this second anniversary of the coming into force of the Women’s Rights Protocol, there are various points of influence that will be necessary to continue to engage, not just by SOAWR but other initiatives, if the continent is to move from 22 ratifications to 53, and there is a fast and effective transition from ratification to domestication and implementation. These would include, amongst others, structured linkages with coalitions working towards an effective African Court on Human and People’s Rights, as well as groups addressing critical issues of people centred empowerment; closer ties with all Regional Economic Communities, supporting the Special Rapporteur on the Rights of Women in Africa, a more pivotal role at every point of gender mainstreaming processes in institutions, structures and processes that matter to us, including stronger ties with the AU Gender Directorate and the African Centre for Gender and Social Development in the ECA, amongst others. Equally important should be the refusal to continue to engage in spaces that no longer serve us, but deepening our own internal engagement on lessons we have learnt and how we can leverage this learning to be more effective as a women’s movement, including ensuring mutually supporting each other’s efforts. The struggle continues.

* Pamela Mhlanga is Head of Programme, Women in Development Southern Africa Awareness (WIDSAA) Programme, at the Southern African Research and Documentation Centre (SARDC)

* Please send comments to or comment online at www.pambazuka.org