Examine the Prospects and Challenges in the Promotion and Protection of the Rights of

Women in Africa

ROBERT OKWEI DOWUONA

UNIVERSITY OF EDUCATION, WINNEBA

FACULTY OF SOCIAL SCIENCE

DEPARTMENT OF SOCIAL STUDIES EDUCATION

Introduction

The problems of oppression, exploitation, discrimination and subjugation of women are neither

new phenomena nor peculiar to Africa alone but the world at large. Millions of women

across the globe live under the condition of abject deprivation and attack against their

natural and fundamental human rights. It appears that majority of womenfolk suffer

discrimination, exploitation or oppression because they are women and, therefore, regarded as

members of a "subordinate" class. In the recent past, women's right has been a great

concern all over the world. This therefore, calls for the need to examine the historical

background of women's rights with the view of determining their status and rights available to

them (http:// www.unilorin.edu.ng/rights_of_women_in_the_pre_co).

The world has seen gradual evolution of regional human rights arrangements. The adoption by

the UN General Assembly of the Universal Declaration of Human Rights on December 10, 1948,

was followed by the creation of numerous regional instruments that address concerns of

particular importance in the regional context. Three world regions, Africa, the Americas and

Europe, have established their respective regional instruments together with the supervisory

mechanism, such as commissions and courts (www.sylff.org/wordpress/wp-

content/uploads/.../sylff_p57-1022.pdf ).

The African Charter on Human and Peoples‟ Rights, with its emphasis on group rights and

individual duties challenges the Western liberal account of rights, as expressed in the Universal

Declaration of Human Rights. The cultural differences brought to the fore not only the tension

between individual and group rights but also the question as to whether the universalism of

human rights is possible.

On the continent of Africa, women‟s rights mechanisms face a number of common and particular

challenges. Prospectively, Africa is going through a tremendous and interesting phase. These

challenges are not insurmountable. It is generally recognized that the concern for women‟s rights

is not confined to a particular society, continent or culture. Alongside the struggle over the years

for the recognition of women‟s rights, efforts have also been made to evolve mechanisms for the

promotion and protection of those rights at the national, international and regional levels. At the

international level there are, for instance, the Universal Declaration of Human Rights and the

United Nations Covenants and several human rights instruments. Mechanisms have also been

evolved to safeguard these rights at the regional level. The African Charter on Human and

Peoples‟ Rights and the Protocol to the African Charter on Human and Peoples' Rights on the

Rights of Women in Africa, are some of the mechanisms or arrangements for promotion and

protection of women‟s rights over the continent of African

(http://www.uir.unisa.ac.za/bitstream/10500/.../1/thesis_ingange_wa-ingange.pdf).

This study examines the content and substance of human rights norms of women in Africa, its

prospects and challenges in the promotion and protection of these rights.

Prospects of women’s rights in Africa

The Universal Declaration of Human Rights, adopted in 1948, enshrines "the equal rights of men

and women", and addressed both the equality and equity issues. In 1979 the United Nations

General Assembly adopted the Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW) for legal implementation of the Declaration on the Elimination of

Discrimination against Women which was described as an international bill of rights for women;

it came into force on 3 September 1981.

The Convention defines discrimination against women in the following terms: 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 equality of men and women, of human rights and fundamental freedoms in the

political, economic, social, cultural, civil or any other field

(www.ohchr.org/english/bodies/cedaw/index.htm).

It also establishes an agenda of action for putting an end to sex-based discrimination for which

states ratifying the Convention are required to enshrine gender equality into their domestic

legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard

against discrimination against women. They must also establish tribunals and public institutions

to guarantee women effective protection against discrimination, and take steps to eliminate all

forms of discrimination practiced against women by individuals, organizations, and enterprises

(Wikipedia: http://www.wikipedia.org/womens‟ rights)

Apart from international documents like the UDHR and CEDAW which has set the standard in

promotion and protection of women‟s rights worldwide, the African charter on Human and

People‟s rights (ACHPR), the Protocol to the African charter on human and peoples' rights on

the rights of women in Africa and The New Partnership for Africa‟s Development (AU‟s

NEPAD initiative) were promulgated to promote and protect women‟s rights in Africa.

The African Charter on Human and People‟s rights (ACHPR) also referred to as the Banjul

Charter was adopted in 1981 but came into force in 1986. This Charter makes clear reference to

women‟s rights in three of its articles;

Article 2; every individual shall be entitled to the enjoyment of the rights and freedoms

recognized and guaranteed in the present Charter without distinction of any kind such as race,

ethnic group, color, sex, language, religion, political or any other opinion, national and social

origin, fortune, birth or other status. This is a non discriminatory clause.

Article 3 (1-2) every individual shall be equal before the law. Every individual shall be entitled

to equal protection of the law. This is equality clause to both men and women.

From article 4-24 has these phrases; “everyone or individual, and “all people” which refers to

both men and women, thus ensuring that the rights of women are also protected and promoted in

Africa.

Article 18 (3) ensures the elimination of every discrimination against women and their

protection.

This Charter however, was inadequate in protecting and promoting the rights of women in

Africa. There were omissions of issues of great concern to women such as custom and marriage.

The African Charter further promoted African traditional values and traditions without taking

into consideration some of its harmful effects on women.

Due to inadequacy of the African Charter to promote and protect the rights of women on the

continent, On 11 July 2003, the African Union adopted the Protocol on the Rights of Women in

Africa (better known as Maputo Protocol), a supplementary protocol to the African Charter on

Human and Peoples Rights, which was adopted in 1981.

With the Maputo Protocol having been ratified by the required 15 member nations of the African

Union, the protocol entered into force. The protocol guarantees comprehensive rights to women

including the right to take part in the political process, to social and political equality with men,

and to control of their reproductive health, and an end to female genital mutilation.

Advancing the human rights of African women through creative, substantive and detailed

language, the new Protocol covers a broad range of human rights issues. For the first time in

international law, it explicitly sets forth the reproductive right of women to medical abortion

when pregnancy results from rape or incest or when the continuation of pregnancy endangers the

health or life of the mother. Furthermore, the Protocol explicitly calls for the legal prohibition of

female genital mutilation.

In other equality advances for women, the Protocol calls for an end to all forms of violence

against women including unwanted or forced sex, whether it takes place in private or in public,

and a recognition of protection from sexual and verbal violence as inherent in the right to

dignity. It endorses affirmative action to promote the equal participation of women, including the

equal representation of women in elected office, and calls for the equal representation of women

in the judiciary and law enforcement agencies as an integral part of equal protection and benefit

of the law. Articulating a right to peace, the Protocol also recognizes the right of women to

participate in the promotion and maintenance of peace (article 10).

The broad range of economic and social welfare rights for women set forth in the Protocol

includes the right to equal pay for equal work and the right to adequate and paid maternity leave

in both private and public sectors (article 13). It also calls on states to take effective measures to

prevent the exploitation and abuse of women in advertising and pornography. The rights of

particularly vulnerable groups of women, including widows, elderly women, disabled women

and 'women in distress,' which includes poor women, women from marginalized population

groups, and pregnant or nursing women in detention, are specifically recognized.

The main articles are:

Article 2: Elimination of Discrimination against Women

Article 3: Right to Dignity

Article 4: The Rights to Life, Integrity and Security of the Person

Article 5: Elimination of Harmful Practices, this refers to female genital mutilation and other

traditional practices that are harmful to women.

Article 6: Marriage

Article 7: Separation, Divorce and Annulment of Marriage

Article 8: Access to Justice and Equal Protection before the Law

Article 9: Right to Participation in the Political and Decision-Making Process

Article 10: Right to Peace

Article 11: Protection of Women in Armed Conflicts

Article 12: Right to Education and Training

Article 13: Economic and Social Welfare Rights

Article 14: Health and Reproductive Rights

Article 15: Right to Food Security

Article 16: Right to Adequate Housing

Article 17: Right to Positive Cultural Context

Article 18: Right to a Healthy and Sustainable Environment

Article 19: Right to Sustainable Development

Article 20: Widows' Rights

Article 21: Right to Inheritance

Article 22: Special Protection of Elderly Women

Article 23: Special Protection of Women with Disabilities

Article 24: Special Protection of Women in Distress

Article 25: Remedies

Indigenous Women in Africa

The past three years saw progress in the formation of the African Indigenous Women

Organization, one of whose objectives was to create awareness of their existence and the role

they play in their different communities. Their long journey started with a single step that has

advanced with time and now one is able to quantify the outcome of the whole initiative. The

possibility of that success was due to the support they got from different donors to travel and

attend different forums from human rights and development, to environment. They have

organized training for their own members and most of them have had a voice. This is more

visible in Eastern Africa where there are many Indigenous Women‟s organizations and

community based women groups who have been empowered.

Indigenous Peoples organizations have integrated Gender issues in their different activities and

this has enabled the women to have strength. In Kenya Indigenous Women are participating

effectively in activities relating to the country‟s constitutional review, in civic education and

improving the visibility of Indigenous Pastoralists, hunter gathers and other minority

communities. This is being done through cultural events, women and youth group meetings and

other social gatherings that bring different leaders and their communities together. Training

Indigenous Women on human rights has helped a lot especially during this time when Kenya is

reviewing its Constitution. It has been very important since in many African countries, women

are the majority when it comes to voting. They have been voting without any knowledge of their

rights as voters and this has caused them to vote for candidates who are not development

conscious (Mulenkei, 2002).

In Southern Sudan, for example Indigenous Women have played a big role in peace-building

after the good and successful model of the Somali women who tried all ways to bring peace in

their war torn country. This is a good example of the role played by Indigenous Women as

Peacemakers. In Sudan the women have been more visible and are playing a major role to bring

about peace by forming several organizations and having activities that are aimed at:

Sharing their personal experiences in war situations and human rights abuses. Seeking support

for peace and democracy in Sudan.

Forwarding the special cases of more vulnerable civilians: widows, orphans, unaccompanied

minors, single mothers, the aged and disabled.

Enhancing capacity building for women to participate in peace building.

Bringing different ethnic groups to rebuild their communities starting with peace and

reconciliation.

Organizing and training women to offer effective, sustainable counseling to those traumatized.

With all these instruments and groups existing purposely to protect and promote women‟s rights

on the African continent, there are a number of challenges to their effective and efficient

implementations.

Challenges of women’s rights in African

"Women‟s rights, and the discrimination against them that limits the scope of their rights in most

countries, is not an accident. The causes of women‟s subordination and unequal gender relations

are deeply rooted in history, religions, culture, legal systems, political institutions and social

attitudes. The solutions, therefore, require a comprehensive approach to address long-term

systematic discrimination and oppression (Amoako, 1997)

The Oppression mentioned above is worst for Indigenous Women who are a minority in any

society in Africa. It is a difficult situation to enable them to be visible. Despite legal reforms in

most of the African countries where Indigenous Peoples live, Women‟s social and economic

status continues to be largely defined by customary rules that are deeply rooted in country-

specific historical, economic and social factors. Even though Women have always been partners

in the struggle especially in the last few years, they have taken responsibilities for the survival of

their people, in bringing the family together even in times of conflict; they have been in the

forefront giving hopes to their families. Poverty, which has drastically increased over time due to

the over exploitation of the scarce Natural Resources available has resulted to frequent droughts,

due to sudden climatic changes, conflicts in some parts of the African region, illiteracy, funding,

lack of access to better health care and HIV/AIDS. These are some of the root causes of both the

invisibility and denial of their basic human rights of the Indigenous Women of Africa.

Over the past twenty years, World Conferences on women have contributed to the progressive

strengthening of the legal, economic social and political dimensions of the role of women in a

society. Despite the progress made, women‟s concerns are still being given second priority

almost everywhere. Although women constitute seventy percent of the world‟s poor they still

face discrimination and marginalization in many areas (Mulenkei, 2002).

A high rate of illiteracy among women still prevails in much of Africa. In the business world,

women rarely account for more than one or two per cent of the top executive positions. Too

many women lack access to reproductive health services. In developing countries, maternal

mortality is a leading cause of death for women of reproductive age. The World Health

Organization (WHO) estimates that more than a half a million women die each year in childbirth.

An African woman‟s lifetime risks of dying from pregnancy related causes are 1 in 23, while a

North American woman‟s is 1 in 4,000.

In contemporary Africa women are facing human rights abuses unparalleled elsewhere in the

world. Despite the region‟s diversity, its female inhabitants largely share experiences of sexual

discrimination and abuse, intimate violence, political marginalization, and economic deprivation.

Consider the following:

A woman in South Africa has a greater chance of being raped than she does of learning how to

read (BBC 2003).

Seventy percent of women in Niger report being beaten or raped by their husband, father or

brother (UNOCHA 2007);

Maternal mortality rates in South Sahara Africa (SSA) are the highest in the world. SSA is home

to 20 percent of the world‟s births but contributes 40 percent of the world‟s maternal deaths

(UNFPA 2008);

In SSA, about half of the population lives below the poverty line; over 80 percent of the poor are

women (UNFPA 2008).

A major obstacle to checking these abuses is women‟s marginalization and under-representation

within the nation-states responsible for implementing human rights standards: women in SSA

represent only 6 percent of seats in national legislatures, 10 percent at the local level and a scant

percent in national cabinets (UNFPA 2008). Additionally, weak, male-dominated governments, a

colonial legacy, and economic underdevelopment plague SSA nations and complicate efforts to

redress violations of women‟s human rights.

Women’s Rights in Africa: One Step Forward, Two Steps Back

It is true that some remarkable attempts to push the issue of women‟s rights forward occurred in

some African jurisdictions over the years. Among them are a proposal in Liberia to raise the

level of participation of women in politics; a proposal in Rwanda to improve the working

conditions for pregnant and breastfeeding working women; and a court ruling in Swaziland

allowing married women to own property in their own name.

However, there have also been some major challenges to the cause. The best example in this

regard is the defeat of a major family law bill in Mali, proposed in 2009, which sought to

substantially improve the rights of women by raising the minimum marriage age, enhancing the

rights of women to inherit, and abolishing customary marriages (which, among other things,

allow polygamy). Had it been enacted, I think this bill would have set a precedent for reforming

customary and religious laws that govern matters of personal status in most African jurisdictions

and that are by and large unfavorable towards women (Human rights watch, 2014).

Another setback to the issue of women‟s rights this year came from Uganda in the form of a

court decision. In March, the Constitutional Court, in response to a challenge mounted by a

women‟s rights group, found the traditional practice of bride price (dowry) to be constitutional.

This practice contributes to the forced marriages of women – it incentivizes members of their

extended family, who stand to gain materially, to force women into marriages without their

consent, and also means that women remain in bad marriages because the tradition dictates that

the dowry is refundable if a marriage is dissolved.

Yet another setback to the cause came this month with a decision of a Nigerian Federal High

Court to reject a forced marriage case. The claim was brought by a 26-year-old woman from

Sokoto State, one of the several Northern Nigerian States governed by Shari‟a law, who sought

to have her marriage nullified after she was forced into marrying a member of the Nigerian

Senate by her father. In rejecting the petition, the court found that the question before it was not

a human rights issue but a matrimonial matter, which is exclusively under the jurisdiction of a

Shari‟a Court. (http://www.google.com.gh/blogs.loc.gov/law/2010/11/women-rights-in-africa-

one-step-forward-two-steps-back).

Culture and African values

African cultures have rightfully being criticized for not respecting the rights of women, mostly

because of harmful practices which negate gender equality. Many campaigns have been launched

against these practices, which include female genital mutilation/cutting, and early marriage.

National laws and policies have been passed to combat such practices and to end

discrimination against women. At the continental level, the Women‟s Rights Protocol and the

ACRWC both aim to combat such practices. Yet these practices still continue. Women‟s

organizations themselves have accepted that traditional practices, which are deeply rooted

in society, cannot simply be legislated away; but they also realize that combating such practices

requires political will and commitment, dialogue within communities and with traditional

leaders, and civic and human rights education. It would be equally wrong, therefore, to argue

that culture has no place in the human rights discourse. In this context, Africa‟s struggle for

liberation was also a struggle for its identity and cultural heritage as well as respect for human

rights because the goal of colonialism in Africa was to undermine African cultures and the rights

of the African people. To ensure the protection of African cultures, the OAU adopted the African

Cultural Charter in 1976. Today, Africa is once again faced with having to defend its

cultural heritage against the impacts of globalization and Western lifestyles on traditional

modes of living and social mores. Paradoxically, for cultures to survive the test of time, they

must both interact with other cultures and change, and yet maintain their own unique

characteristics (Gawanas, 2009).

Legal issues

Most of the rules of procedures in courts are not friendly to victims of domestic violence. The

combined factors of economic vulnerability and financial dependence of women on men, social

and cultural practices that condones domestic violence, and lack of prosecution of perpetuators

discourage victims from voicing out and seeking redress. The widespread of poverty, political,

cultural, and religious marginalization of women in Africa have made them more vulnerable to

domestic abuses (Henkin, 1990).

Recommendation

In view of the foregoing challenge, this article suggests that the provisions of all the

regional instruments for the protection and promotion of women‟s rights should be opened to

judicial intervention in order to provide adequate means for the realization of women's

rights in Africa.

Training on human rights and other international, regional instruments that are important in the

fight for the rights of women is paramount.

Above all, Government should endeavor or intensify its efforts to abolish all laws and culture

that discriminate against women. More importantly discriminatory interpretation and

implementation of laws relating to women must be removed.

Women should intensify their efforts and struggles for the protection of their rights

and ensure that all obnoxious customary practices that hindered the realization of their

rights are thrown into trash can of history.

Conclusion

Despite the potential of various international conventions and conferences and the full body of

human rights law, the lives of many African women remain embroiled in violence. One reason is

that UN treaties and conventions have not been locally interpreted in a way that is responsive to

African women‟s experiences of injustice. But robust human rights remain elusive for most

women primarily because neither the international community nor national leaders have given

primacy to the voices of African women themselves. Transcending the rhetoric of rights starts

with recognizing the agency of women and following the agenda they set. Listening to their

priorities for the future of human rights work in the region can ensure that international human

rights norms have sufficient legitimacy within particular cultures and traditions to prove

effective.

The Platform for Action reaffirms that all human rights - civil, cultural, economic, political and

social, including the right to development - are universal, indivisible, interdependent and

interrelated, as expressed in the Vienna Declaration and Programme of Action (VDPA) adopted

by the World Conference on Human Rights. The Conference reaffirmed that the human rights of

women and the girl child are an inalienable, integral and indivisible part of universal human

rights. The full and equal enjoyment of all human rights and fundamental freedoms by women

and is a priority for Governments and the United Nations and is essential for the advancement of

women.

Equal rights of men and women are explicitly mentioned in the Preamble to the Charter of the

United Nations. All the major international human rights instruments include sex as one of the

grounds upon which States may not discriminate.

Governments must not only refrain from violating the human rights of all women, but must work

actively to promote and protect these rights. Recognition of the importance of the human rights

of women is reflected in the fact that three quarters of the States Members of the United Nations

have become parties to the Convention on the Elimination of All Forms of Discrimination

against Women.

The World Conference on Human Rights reaffirmed clearly that the human rights of women

throughout the life cycle are an inalienable, integral and indivisible part of universal human

rights. The International Conference on Population and Development reaffirmed women's

reproductive rights and the right to development.

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