The Emperor is still naked: why the protocol on the rights of women in Africa leaves women exposed to more discrimination.

AuthorDavis, Kristin

ABSTRACT

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its object and purpose. This Note contends that certain language is too narrow, creating an over-specificity that will deter necessary countries from joining. However, this Note also asserts that certain aspirational provisions of the Protocol are overly broad, creating legal obligations that States Parties will be unable to meet. Ultimately, African countries with questionable women's rights records will refuse to sign--States Parties will either be unable or unwilling to protect women to the extent required, leaving women in the same position as before. Worse yet, some States Parties may implement extreme measures that could increasingly disadvantage women over time. By relying on Western ideas of women's rights and without explicitly determining how or if customary law will be considered in implementation, the Protocol faces serious obstacles on the domestic level. This Note concludes by asserting that unless States Parties consider a more grassroots, community-oriented approach to implementing the Protocol, the instrument's requirements will remain unrealized, and women in Africa will remain marginalized.

TABLE OF CONTENTS I. INTRODUCTION II. THE EMPEROR'S OLD WARDROBE: THE PROTOCOL AND ITS ENTOURAGE A. The African Union B. The African Charter on Human and Peoples' Rights C. The African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights D. Other International Human Rights Instruments E. The Development of the Protocol III. FULLY CLOTHED OR STILL NAKED: WHAT THE PROTOCOL FALLS TO COVER A. Targeting Women and Africa-Specific Practices B. Which Law Governs Implementation? 1. Statutory Law 2. Customary Law 3. Living Law C. When Implementation Does Not Occur D. When Implementation Does Occur, but Is Ineffective, Counter-Productive or Not Enforced 1. Article 9: Affirmative Action, Negative Reaction 2. Women Do Not Have to Speak with a Unified Voice IV. IT'S TIME TO DROP THE IMAGINARY MANTLE: HOW TO FIX THE PROTOCOL A. Failing to Look in the Mirror: The Status Quo B. Women's Rights Education Programs and Advocacy Conferences: The Ministers' Opinions C. Listening to the Child in the Crowd: The Grass Roots Approach D. Knowing When to End the Parade: Other Useful Revisions to the Protocol V. CONCLUSION An emperor who cared too much for clothes hired two men who promised him the finest suit from the most beautiful cloth. This cloth. they told him, was magical and invisible to anyone who was either ignorant or not fit for his position. The Emperor, nervous because he could not see the cloth himself, sent his ministers to view it. They too saw nothing, yet praised the cloth. When the swindlers reported that the suit had been fashioned, the Emperor allowed himself to be dressed in their creation for a procession through town. During the procession, the crowd "oohed" and "aahed," until a small child cried out, "He has nothing on!" The crowd realized the child was telling the truth and began laughing. The Emperor realized that the people were right as well, but could not admit it. He thought it better to continue the procession under the illusion that anyone who could not see his clothes was either ignorant or incompetent. So he sat stiffly on his carriage, while behind him a page held his imaginary mantle. (1) I. INTRODUCTION

The past few decades have shown an increasing appreciation for women's rights around the world, particularly in Africa. (2) The most recent indication of change in Africa was the 2003 adoption of an additional protocol to the African Charter on Human and Peoples' Rights (Banjul Charter). (3) Forty-three African states have signed this human rights instrument, the Protocol on the Rights of Women in Africa (Protocol), and, as recently as February 28, 2008, twenty-three countries have ratified the instrument. (4) While the Protocol initially received international approbation for the protections it would offer women, few have carefully examined if it has actually succeeded.

The Protocol was designed to protect women in a more comprehensive manner than pre-existing instruments. (5) Despite an international effort to eradicate all forms of discrimination against women, the African Union recognized that women were still excluded from legal, social, economic, and cultural processes. (6) The Protocol was thus developed to protect African women from forms of discrimination particular to Africa. (7) Drafters recognized the unique conflict of laws that arose when courts and legislatures alike had to decide between the application of international and domestic statutory law and customary tribal law. (8) When opened to signature in 2003, the international community praised the Protocol as the most progressive tool for protecting women's rights to date. (9) It guaranteed rights never before ensured in the international community, such as the right to an abortion and HIV services. (10) African governments, non-governmental organizations (NGOs), and international human rights groups touted the Protocol as a milestone for women in Africa and worldwide.

However, the Protocol's aspirational language, coupled with its legally binding nature, poses difficulties for States Parties. Limited budgets and legal systems that waffle indeterminately between respecting statutory obligations and cultural traditions constrain many countries. Moreover, in the international context, the creation of protocols has become an iterative process--an academic legal exercise of sorts. (11) Furthermore, the Protocol is both overbroad in some sections and too narrow in scope in other sections. It guarantees rights that even the wealthiest of countries could not ensure and specifically articulates measures that must be followed, regardless of the context. (12)

Unfortunately, these supposedly positive steps taken in the Protocol may ultimately have a negative impact on women in Africa. As States Parties realize that the ambitious rights guaranteed in the Protocol are largely unattainable due to their countries' current conditions, they will abandon their efforts to meet their obligations. Permitting an international obligation to go unmet may, over time, create evidence of an acceptable customary international norm or state practice that ultimately makes such illegal behavior legally acceptable. (13) Even worse, in an effort to properly and immediately implement the language of the Protocol, many countries have adopted female quotas for government positions. (14) Actions like these create a protected status for women, which might be beneficial for a short period but over time may become limiting, stigmatizing, and contrary to the progress needed for women's rights in Africa.

At the end of twenty years of development, accession, and implementation, scholars and policymakers alike are left with several questions: Should the Protocol be considered a success? Despite overwhelming support from internationally active NGOs, will the Protocol actually help women now and in the future? Or, upon closer inspection, will the women's rights movement recognize that, indeed, the Protocol is naked--dressed only in empty promises that have yet to materialize? Most importantly, is it too late for the Protocol and the women it was designed to protect? Has the Protocol already paraded unadorned into the international arena to the chagrin of its drafters? This Note aims to answer these questions by critically analyzing the key features of the Protocol that may contribute to its ineffectiveness and the instrument's potential for marginalizing women in the future.

Part II details the interaction between the various African instruments and bodies as related to the Protocol. This section assesses why international instruments like the Convention on the Elimination of All Forms of Discrimination (CEDAW) and the Banjul Charter were found to be ineffectual and why the Protocol was viewed as a necessary addition to the growing body of international human rights law. Part II briefly outlines the development of the Protocol to its current status in Africa and the international community. Part III analyzes the basic weaknesses of the Protocol--first by looking at the actual language of several articles and then by exploring the problems it has encountered in the course of implementation. Applying a framework that draws from statutory, customary, and living law framework, Part III explains how the Protocol not only leaves women vulnerable to continued marginalization but also how it may enable a new, more permanent form of de jure discrimination. Finally, Part IV proposes possible solutions to prevent the Protocol from fading into history as a futile effort to protect women or worse-from becoming a tool of inequity. These solutions range from redrafting local laws to be gender-neutral to taking a more grassroots approach of first surveying people and then implementing necessary changes to the law and custom.

  1. THE EMPEROR'S OLD WARDROBE: THE PROTOCOL AND ITS ENTOURAGE

    The Protocol must rely upon and interact with various international African bodies and documents. It is important to know who developed it, why it was developed, and in what context it is interpreted and enforced. Understanding the relationship between these bodies and the Protocol will better explain why the Protocol as designed is so ill-fated.

    1. The African Union

      The...

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