This study sheds light on factors affecting the ratification and commitment of African countries to treaties, to change and possibly even improve their conduct according to the obligations of those treaties.

Due to the decentralised nature of international law, in recent years scholars have pondered why states comply with international law and whether international legal commitments can indeed result in greater compliance with human rights norms. On the one hand, there is a tendency to believe that human rights treaties invest domestic actors such as courts and non-governmental organisations (NGOs) with the power to ensure greater compliance with human rights norms, post-ratification. On the other hand, however, international human rights treaties can change the public perception of human rights norms, and in so doing, place pressure on policymakers to meet the terms of those treaties through a domestic compliance mechanism driven by the electorate.[1] Yet another view, expressed by scholars such as R. Aron, is that states ratify international conventions they are already inclined to follow, and international law is merely a reflection of the state’s existing preferences instead of being a tool, capable of changing state behaviour.[2]

In examining the attitude of African states towards ratifying human rights treaties, this study uses the example of the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, better known as the ‘Maputo Protocol’.[3] The Maputo Protocol is considered ‘the’ pillar of women’s human rights protection in Africa.

R. Manjoo affirms that the adoption of a comprehensive protocol on women’s rights constitutes the starting point for a process of genuine engagement by states and an acknowledgment that “making rights a reality”[4] is not just an empty slogan recited by state and non-state actors (NSAs) when it is politically convenient to do so.[5] R. Mayanja confirms that the message conveyed by the Maputo Protocol is unequivocal, with African women determined to hold states responsible for the promotion and protection of their human rights.[6]

During the last decades, African countries have gained a greater awareness of their obligations under international law. As a result, the implementation of international standards becomes almost inevitable where domestic responses do not resolve a crisis threatening regional or international stability. The next step is the need for these states to draft, for example, constitutions, laying down an effective foundation for democracy, the rule of law, the protection of fundamental human rights and good governance. Doing so, however, constrains the sovereign right of these states to determine the content of their national legislation as well as to govern themselves without any interference from external actors. In the diverse African context, there is an increasing need for a common legal ‘cover’, to enhance a sense of community and promote a more coherent legal system. The concept of general principles of law[7] is a possible conceptual tool to achieve this. The concept of general principles of law can be considered as a bridge between ‘hard law’ based on consensus, on one hand, and common interests and values, on the other hand, and also between international law and domestic law.[8]

This paper considers the effect of such infringements on the sovereign rights of African states to determine the content of their domestic law and, more importantly, whether they have resulted in any progress in the protection of women’s rights in Africa.

After this introductory note, the main features of the Maputo Protocol are presented, focusing the challenges faced by African states when they have the opportunity to adopt the Protocol. The discussion centres on adaptation and compliance, which is crucial in allowing states to implement the Protocol. The article then examines several initiatives, both regional and domestic, which have been adopted by states to comply with the Protocol. Concluding remarks are then made on the Maputo Protocol as well as general remarks on the position of African states vis-à-vis women’s rights on the continent.

As articulated in the Maputo Protocol, historically Africa’s record in terms of women’s rights has been poor, to say the least.[9] F. Banda argues that the Protocol is not so much a means of correcting normative deficiencies in existing human rights law regarding the protection of women but rather, a response to the lack of implementation of such provisions.[10]

The Maputo Protocol, which was adopted by the African Union (AU) Assembly of Heads of State and Government (Assembly) in Mozambique in July 2003, is a legally binding supplement to the 1981 African Charter on Human and Peoples Rights.[11] To date,[12] of the 55 AU Member States, 43 have ratified the Maputo Protocol, with Ethiopia being the most recent, ratifying the document on 17 September 2019. While most countries have at least signed the Protocol, three have neither signed nor ratified it, namely, Botswana, Egypt and Morocco.[13] Six other countries (Cameroon, Kenya, Mauritius, Namibia, South Africa and Uganda) have expressed reservations as to several articles upon ratification of the Protocol, which, they maintain, are incompatible with their national laws, traditions, religions or cultures.[14]

An example is the reservation expressed by Cameroon, which if on one side discourages the female genital mutilation (FGM), however it equates this harmful practice with homosexuality considered as another practice to avoid. It is clear that, in the mind of Cameroonian legislators, the cultural tradition that views homosexuals as criminals is still prevalent in society.[15]

The acceptance of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in African should in no way be construed as endorsement, encouragement 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, and which could be wrongly understood as arising from the rights of women to respect as a person or to free development of her personality. Any interpretation of the present Protocol justifying such practices cannot be applied against the Government of Cameroon.[16]

In this regard, it is interesting to note that a 190-page periodic report released by the Cameroonian authorities for the African Commission on Human and People’s Rights (ACHPR) in January 2020 on the status of the human rights in the country does not contain a single line on the situation of the LGBT community in the country.[17]

The reservations voiced by the Kenyan authorities are also of interest. Kenya has a different vision compared to that expressed in the Maputo Protocol on the health and reproductive rights of women. In particular, it appears to object to article 14(2)(c), according to which the reproductive rights of women should be protected by authorising medical abortion “in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.” In Kenya, the debate on the matter is still huge. On the one hand, under section 26(4) (Right to Life) of the 2010 Kenyan constitution, abortion is allowed when there is a necessity for emergency treatment, or when the life or health of the mother is at risk.[18] On the other hand, however, a 2019 judgement by the High Court (Constitutional and Human Rights Division) in Nairobi reaffirms the general rule that abortion is illegal.[19] In the case of rape, abortion is permissible only under the exception of section 26(4). In the words of the judgment, “It is not the cause of the danger that determines whether an abortion is necessary but the effect of the danger.”[20]

It is not by chance that this article has been also reserved by Rwanda and Uganda. Yet in Rwanda, the Ministerial Order of 8 April 2019 makes several concessions for the possibility of abortion. According to article 3, abortion is possible under the following conditions: a) the pregnant person is a child; b) the person requesting abortion became pregnant as a result of rape; c) the person requesting abortion became pregnant after being subjected to a forced marriage; d) the person requesting abortion became pregnant as a result of incest committed by a person to the second degree of kinship; e) the pregnancy puts at risk the health of the pregnant person or the foetus.[21] Since then, Rwandan President, Paul Kagame, pardoned several women who had been imprisoned for abortion.[22]

In Uganda, the legal situation is even harsher given that article 22(2) (Protection of Right to Life) of the national Constitution prescribes that no individual has “the right to terminate the life of an unborn child except as may be authorised by law”.[23] In addition, section 141 (Attempts to Procure Abortion) of the 1950 Penal Code clearly stipulates:

Any person who, with intent to procure the miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means, commits a felony and is liable to imprisonment for fourteen years.

This provision is mitigated by section 224 (Surgical Operation) which affirms that a person is not criminally responsible for performing, in good faith and with reasonable care and skill, a surgical operation upon an unborn child for the preservation of the mother’s life, if the performance of the operation is deemed ‘reasonable’.[24]

Kenya has also expressed reservations as to article 10(3) of the Protocol, stipulating that state parties adopt all necessary measures to reduce military expenditure in favour of expenditure promoting the rights of women. Kenya’s objection is consistent with the policies of a country that is constantly increasing expenditure on armaments in absolute terms (from US$ 1,015 million in 2012 to US$ 1,148 million in 2019) although as a percentage of its Gross Domestic Product (GDP), the expenditure decreased from 1.7 % in 2012 to 1.2 % in 2019.[25]

The majority of countries on the continent, however, have tried to give full effect to the principles of the Maputo Protocol through policies and programmes on gender equality. Nonetheless, significant gaps exist between the provisions of the Protocol, their domestication, and women’s enjoyment of their rights in practice.

The fact that this Protocol has obtained the number of ratifications to enforce it in a very short period (it entered into force on 25 November 2005 after the ratification of Togo) is noteworthy. It indicates an awareness in Africa of the need for a regionally specific legal framework for the protection of women’s rights.[26]

It is, however, perplexing that Botswana has not even signed the Protocol considering that this country is well known in Africa for its high standard of human rights protection. For example, Botswana has one of the oldest national legislation in Africa on refugee protection, which dates back to 1968[27]−only two years after the country achieved independence. In 2019, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CoEDAW)[28] concluded its review of the fourth periodic report of Botswana on measures adopted to implement the provisions of the 1979 Convention on the Elimination of All Forms of Discrimination against Women.[29] In that review, the CoEDAW questioned why Botswana was not party to the Maputo Protocol and when it intended on ratifying the Protocol. The response of the Botswana delegation was that there was no reason for the government not to sign the Maputo Protocol, expressing regret at its slow response.[30]

When the Maputo Protocol was drafted and adopted, the two principal legal instruments for the protection of women in Africa−the Banjul Charter and the CEDAW−had already entered into force. In 2003, both had already garnered a substantial number of ratifications in Africa. The CEDAW finds one of its pivotal axes in article 1 which defines the term ‘discrimination against women’, which is similar to that provided in the Maputo Protocol.[31] It was, however, considered failing to adequately address African women’s needs.[32] Consequently, considering the similarity in its wording, the definition of ‘discrimination against women’ contained in the Maputo Protocol is also disappointing, bearing in mind that this duty was imposed only on state parties of the Protocol and did not take into consideration, for example, non-state actors (NSAs).[33]

The Maputo Protocol seems, however, to have been adopted for four main goals, which have by and large been reached: (i) to improve the protection guaranteed to women under the Banjul Charter;[34] (ii) to create a specific instrument to protect African women that could fill the existing gap in this regard;[35] (iii) to draft a specific African legal instrument that would consolidate international standards for African states, allowing African governments to fulfil the engagements to which they have subscribed; and (iv) to create an enforced mechanism for the present obligations to protect women on the continent.[36]

After the adoption of the Maputo Protocol, the AU Assembly adopted a Solemn Declaration in 2004, urging states to ratify the Maputo Protocol. This initiative was successful in speeding up the rate of ratification of the Protocol.[37] The emphasis placed by the AU on this declaration[38] played an important role in convincing member states to adopt the Protocol.

However, this regional initiative should be analysed in conjunction with the gender units established by the sub-regional economic organisations. Of these, the most noteworthy is perhaps the SADC Protocol on Gender and Development, which entered into force in February 2013.[39] Its objective, made explicit in article 3(a), is to “provide for the empowerment of women, to eliminate discrimination and to achieve gender equality and equity through the development and implementation of gender responsive legislation, policies, programs and projects.”

Moreover, compared to the Maputo Protocol, the SADC Protocol is more coherent in the formulation of its provisions, possibly thanks to its smaller numbers and the relative sociocultural homogeneity of the countries adhering to it.[40] However, M. Forere and L. Stone highlight that, ideally, the SADC Protocol should have adopted a plan of action to implement the Maputo Protocol. Hence, instead of directing scarce financial resources to overlap with the Maputo Protocol, the SADC should have reinforced the protection of women’s rights more concretely in Southern Africa. This is because the promotion of women’s rights has never been greater, yet their protection remains very low.[41]

International human rights standards and principles have become especially important in African countries with highly dysfunctional constitutional orders, including countries such as the Central African Republic, the Democratic Republic of Congo, Somalia and South Sudan where sectarian violence towards women remains pervasive and domestic legal responses are no longer capable of restoring peace and security.[42] C. Fombad argues that the application of international law standards and principles to any state is usually not intended as a replacement of domestic law. Instead, international law principles and standards are supposed to supplement domestic law and enhance good governance.[43] For example, where domestic law is poor and the country is incapable of adequately protecting human rights, international human rights norms may “replace deficient domestic laws or complement them.”[44]

This is crucial for many countries in Africa where domestic constitutions have yet to prohibit customs and traditions that intrude on the rights of women. One can examine the treatment of women under customary law in African countries to determine the extent to which domestic courts can now use international human rights law to challenge and invalidate customs and traditions that discriminate against women and violate their rights.

Examples of these kinds of traditions are the painful and harmful practices of ‘breast ironing’, an essential part of the culture of some ethnic and cultural groups; forced child labour on farms and mines; and forced sexual service by young girls in fetish shrines.[45] In this way, the Maputo Protocol can replace incomplete domestic laws.

To surmount the obstacles created by such traditions, a new understanding of ethics is necessary in those regions. This poses a significant challenge, particularly for the myriad African actors. These actors are both regional organisations and national governments, with the support of national and international NGOs operating in those areas, which are dedicated to women’s rights. One such example is represented by the NGOs committed to eradicating FGM, which is still practiced in several African countries. In this regard, L.J. Kouba and J. Muasher affirm that female circumcision has been widely practiced across Africa in a broad triangle, stretching from Senegal in the west to Egypt in the northeast and Tanzania in the southeast. However, the authors also highlight that not all inhabitants of those areas circumcise women. This practice is principally an ethnic one and has nothing to do with political boundaries. Hence, as people move back and forth across borders or migrate from one country to another, they carry this tradition with them.[46] FGM is a form of gender-based violence and is therefore a source of possible persecution by states. Both the UN and the United Nations High Commissioner for Refugees (UNHCR)[47] consider it a practice that should be eradicated.[48] African countries ratifying the Maputo Protocol have expressed a patent willingness to put an end to those practices. Furthermore, they have also complied with the AU Assembly’s decision adopted in 2019 as well as the decision of the Continental International Conference held in Ouagadougou in October 2018 by which member states commit to accelerate the elimination of female genital mutilation by 2030.[49]

It is not a coincidence that the 2018 conference was held in Ouagadougou, given that several states have adopted more decisive legal steps to curb FGM. Burkina Faso is one of the African states where FGM is punished under the criminal code.[50] In Gambia, the Women’s (Amendment) Act 2015 addressed the issue of harmful practices for the first time in the country by introducing section 32(A), clearly stipulating that female circumcision is prohibited. Sub section 1 of section 32(A) is even more direct, affirming that “[a] person shall not engage in female circumcision.”[51]

In terms of practices similar to FGM, an important factor in the decision to ratify a treaty is the nature of the information that is disseminated in society. The role of local authorities is essential in achieving this, although it is not always forthcoming. When human rights scholars and activists talk about the normative or cultural changes that must take place within a society before human rights laws can be effectively enforced, they are typically referring to the reframing of a social issue. It is widely believed that new legal rules and national policies will not be adopted, enacted or enforced until the social meanings attached to the targeted practices or people are changed.

Nevertheless, social meanings can be changed without the support of local government. For example, opponents of female genital cutting (FGC) have been successful in changing the social meaning of that practice in a rural community in Egypt.[52] Opponents of the practice, mostly NGOs and members of civil society, undertook an education campaign targeting women, religious leaders and unmarried men, which reframed FGC as literacy, family planning and healthcare issue rather than one necessary for the chastity of young women.[53]

The Maputo Protocol enhances the ability of the law to recognise and protect human rights and improve the living standard of citizens, especially those of historically marginalised groups on the continent, such as women in this case. In the first instance, the Maputo Protocol challenges existing stereotypes about the role of women in society, viewing women as full, effective and equal partners with men in the development of their communities. It places a moral obligation on AU member states to promote equal opportunities for men and women to play meaningful roles in society. While it has become evident that international law can play a significant role in helping African countries to improve governance generally and to recognise and protect human rights in particular, its most important impact is likely to be seen in attempts to resolve conflicts between traditional and customary laws and practices and how they affect vulnerable groups.

A main aspect of facilitating domestic enforcement of human rights treaties in Africa is the adoption and adaptation process. "States must adopt international legal rules by incorporating them into their domestic legal systems. Additionally, the international legal obligations are often translated into local terms using strategic frames that advantageously situate the obligations within the state’s discursive opportunity structure."[54]

Adaptation refers to the fact that continuous exposure to a relatively constant stimulus results in change to meet the different conditions created by that stimulus. With rising expectations, this tendency accelerates greatly. "In some instances, a dramatic change in socioeconomic status or the social system is necessary before a given individual can relate to the social order in a conformant manner."[55]

A key feature of the political opportunity structure for an analysis of the Maputo Protocol provisions is the role of influential allies. In seeking to promote the adaptation process as related to the Maputo Protocol norms, the state has to identify or create interpretations that will adequately translate these norms into the local context. This is a challenging process, as individuals advancing such interpretations have to ‘package’ the international legal obligations and underlying norms in familiar terms that simultaneously confront existing understandings of power relationships. "Developing allies among customary legal officials can be useful in the adaptation process because it is the application of customary legal rules, which often creates the most significant barrier for failing to comply" with the Maputo Protocol. Adaptation first requires African states and their citizens to accept the legitimacy of international legal obligations.[56] In this context, not by chance, H. Koh emphasises the role of internalisation. He contends that states engage in a three-step process, culminating with the internalisation of international legal norms, which facilitates compliance with human rights treaties.[57] H. Koh identifies three types of internalisation: legal, political and social. Legal internalisation occurs when a norm is incorporated into a state’s domestic legal system, through legislative or executive action, judicial interpretation or some combination of the above. When political elites accept the relevant norms and adopt them as a matter of government policy, political internalisation has taken place. In the case of the Maputo Protocol, this step is not always evident, often because of extreme reluctance by elites to change the status quo. Social internalisation exists when a norm gains widespread public legitimacy and general compliance.[58] Given the strong influence that African political elites still have on public opinion, in the case of the Maputo Protocol, social internalisation is only likely to follow political internalisation.

Yet, in an era of globalisation, universal cultural models, constructed and propagated through global cultural and associational processes, can persuade African states to ratify the Maputo Protocol. One such process that has recently been highlighted in legal scholarship is that of ‘acculturation’. Acculturation refers to the process by which actors adopt the beliefs and behavioural patterns of the surrounding culture. Changes in behaviour are induced through social and cognitive pressure to assimilate.[59] It is also clear that the existence of legal institutions and social movements, which could either enhance or hinder compliance with human rights provisions, is influenced by the dominant culture or by a rupture with the dominant culture in a given African country. In both cases, it is either compliance or a clash with the dominant culture that influences the attitude of the legal institutions and/or the social movements. Referring back to the example of Cameroon mentioned earlier, the silence of Cameroonian authorities on LGBT rights in the 2020 report submitted to the ACHPR can almost certainly be attributed to the dominant culture in the country, where LGBT rights are deemed unworthy of protection and are indeed, criminalised. The criminalisation of consensual same-sex conduct under section 347(1) of the Penal Code, which punishes “sexual relations with a person of the same sex” can warrant up to five years in prison.[60]

Once adaptation to international norms has been achieved, the following step is to comply with the obligations of the Maputo Protocol. This is not always as a smooth process, however. As L. Henkin notes, “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”[61] According to R.B. Bilder, states comply with international law because of the mutual gains from cooperation that ensure self-enforcing compliance in the realm of international trade law and the laws of war.[62] However, such a mechanism does not sufficiently explain compliance with human rights law. Just because one state does not comply with the stipulations of a human rights treaty should not and indeed, does not, encourage another state to abandon its commitment to human rights in order to punish the dissenting state. "There are no mutual gains to be shared or lost with human rights treaties."[63]

Bodies such as the Special Rapporteur on the Rights of Women in Africa (Special Rapporteur),[64] which usually make three types of recommendations (structural, legal and programmatic), can be helpful in the process of compliance by African states.

To facilitate compliance with the Maputo Protocol, the Special Rapporteur supports the development of domestic enforcement mechanisms. A key feature for effective domestic enforcement is creating an enabling environment for law reform and enforcement. Recognising the role of norms and socialisation in this process of adaptation, the Special Rapporteur recommends that state parties implement educational measures and awareness-raising programmes to increase knowledge about the obligations of the Maputo Protocol. To support this aspect of domestic enforcement, the Special Rapporteur makes programmatic recommendations, which encourage states to act appropriately with the aim of respecting international norms and to adopt or implement programmes and/or policies that support particular obligations contained in the Protocol.

The Special Rapporteur, however, forms part of the ACHPR that is responsible for a wide range of human rights contained in the Banjul Charter, in addition to the Maputo Protocol. As such, the missions usually undertaken by the ACHPR need to be balanced and need to cover all the human rights that the Commission is accountable for. Even when the Special Rapporteur is part of a mission, she cannot solely focus on investigating the implementation of the Maputo Protocol, as it is essential to consider other rights in the ACHPR.[65] The formation of an African institution such as the CoEDAW, which is solely dedicated to the implementation of the Maputo Protocol, could possibly help in assessing the situation of the respect of the human rights contained in the Protocol. Such a new institution can be created either by the adoption of a new protocol, under article 66[66] of the Banjul Charter which establishes the proposed institution, or by amending the Maputo Protocol accordingly. The African Court Protocol,[67] for example, has been adopted under the same article of the Banjul Charter.

An important aspect of the commitment that states express in complying with a human rights treaty concerns the mechanisms guaranteeing the respect of its provisions. In Africa, treaty-monitoring bodies generally adopt a broader conceptualisation of compliance, which recognises state efforts aimed at changing the social meanings attached to particular practices and groups.[68]

According to article 26(1) of the Maputo Protocol, states parties are requested to allow inspection of their observance of the Protocol through the regular submission of state reports to be examined by the ACHPR.[69] As state parties accepted the Maputo Protocol as an addition to the Banjul Charter, they reported on the measures adopted to implement the rights of the Protocol concurrently with their periodic reports under article 62 of the Banjul Charter.[70] The provision contained in the Maputo Protocol is a reminder for states to submit periodical reports, but states parties to the two instruments may submit only one report dealing separately with both instruments.

During the examination of state reports under the Banjul Charter, the ACHPR typically leaves questions about women’s rights to the Special Rapporteur, who also makes inquiries about women’s rights under the Maputo Protocol.[71] Article 26(1) of the Maputo Protocol clearly shows that state reporting constitutes a means of monitoring the implementation of the Protocol.[72]

However, and in spite of the double provisions, both non-reporting and the late submission of reports remains a significant problem in Africa,[73] particularly given that article 26 of the Maputo Protocol does not specify which institutions should review the reports.[74] Nevertheless, the 24th Ordinary Session of the AU Assembly entrusted the ACHPR with this task as well as the responsibility of preparing guidelines regarding the content and form of the periodic reports.[75]

The Maputo Protocol does not add any supplementary independent mechanism to its enforcement, preferring to rely on the existing mechanisms under the Banjul Charter.[76] This choice reflects a realistic approach and may have been dictated by several factors such as the avoiding the proliferation of too many African institutions.[77] The only reference made by the Protocol to an additional mechanism for its enforcement is mentioned in article 25, requesting states to adopt ‘appropriate remedies’ for any violation of the freedoms and rights of women recognised in the Protocol.[78]

Apart from the explicit provision requesting states to submit reports on measures adopted to give effect to Maputo Protocol, this instrument does not extend the scope of the ACHPR’s protective mandate. Article 27 of the Protocol provides that the African Court on Human and Peoples’ Rights (AfCHPR) will “[b]e seized with matters of interpretation arising from the application or implementation of this Protocol.” The expression ‘matters of interpretation’ is ambiguous, however, implying that this article grants the power to receive communications on violations of the Maputo Protocol to the AfCHPR, in compliance with the Protocol to the African Charter on Human and Peoples’ Rights Establishing the African Court on Human and Peoples’ Rights.[79] However, while international courts may help adjudicate disputes at times, the fact remains that no state is forced to appear before an international court. States that commit to the compulsory jurisdiction of international tribunals usually do so with the strategic reservation that they retain the right to withdraw.[80]

Yet in the case of sexual violence against women during conflict, for example, the expression ‘matters of interpretation’ would mean that the AfCHPR would be legally empowered to condemn states for violations of international humanitarian law, as provided in the 1949 Geneva Convention, the two additional 1977 Protocols as well as the 1948 Genocide Convention.[81]

The AfCHPR has recently intervened in the matter of the violation of the minimum age of marriage for girls (article 6(b) of the Maputo Protocol), the violation of the right to consent to marriage (article 6(a) of the Maputo Protocol), and the violation of the obligation to eliminate traditional practices and attitudes that undermine the rights of women (article 2(2) of the Maputo Protocol) in the APDF & IHRDA v Republic of Mali case.[82] In the judgement delivered in May 2018, the AfCHPR holds that it lies with the Republic of Mali to guarantee compliance with the minimum age of marriage as well as the right to non-discrimination. By failing to do so, the respondent state violated article 6 (b) of the Maputo Protocol.[83] Additionally, the AfCHPR notes that, in the procedure for the celebration of marriage, the law called into question (the 2011 Family Code)[84] sanctions, in articles 283, 287 and 300, the application of religious and customary laws on the consent to marriage and permits different marriage regimes, depending on whether these are celebrated by a civil officer or a religious minister. These practices, however, are not consistent with the Maputo Protocol.[85] Finally, having established the violation of the provisions governing the minimum age for marriage and the right to consent to marriage, the AfCHPR notes that, by adopting the 2011 Family Code and upholding discriminatory practices, which undermine the rights of women, Mali has violated its international commitments.[86] Therefore, the AfCHPR not only holds that Mali must amend its legislation to bring it in line with the Maputo Protocol[87] but also that, in accordance with article 25 of the Banjul Charter, Mali must comply with the duty “[t]o promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as the corresponding obligations and duties are understood.”[88]

As noted by A. Budoo, however, although the AfCHPR could represent an effective means of holding state parties responsible for women’s rights violations, its accessibility criteria can be challenging.[89] This can offer states a way out of complying with the provisions of the Maputo Protocol.

As a concluding remark in the analysis of how African institutions can encourage African states to adopt conventions and comply with their norms, article 46 of the Banjul Charter stipulates that the ACHPR can also undertake “any appropriate method of investigation”[90] regarding the rights enshrined in the Maputo Protocol since it is also competent to investigate complaints about the violation of rights by a state party to the Maputo Protocol. An example of such an investigation is the fact-finding mission to the Republic of Sudan in the Darfur region (8-18 July 2004) which detected a high number of women raped and abducted in the area because of the Janjaweed militia attacks.[91] Gross violations of the rights of women, rape and sexual violence have been committed during the Darfur conflict, even though the Sudanese government has denied this.[92] However, in other circumstances, the ACHPR delegates member states to conduct independent investigations into sexual and gender-based violence crimes during conflicts.[93] In one circumstance, however, the ACHPR–without any additional investigation–called on member states to end acts of intimidation against women and defenders of human rights because of their cooperation with various international human rights bodies.[94]

The ACHPR also promotes the adoption of General Comments, such as General Comment No. 2 on article 14(1)(a), (b), (c) and (f) and article 14(2)(a) and (c) (Health and Reproductive Rights), providing interpretive guidance on the obligations of state parties towards promoting the domestication and implementation of article 14 of the Maputo Protocol. In the comment, the AHCPR provides for both general and specific obligations for states, specifying that the obligation to fulfil rights requires that state parties adopt laws, policies and programmes guaranteeing the fulfilment of women’s sexual and reproductive rights, including the allocation of sufficient and available financial resources for the full realisation of those rights.[95] In addition, the ACHPR also promotes missions in African countries to advance human rights over the continent, sometimes with a particular focus on women’s rights. The most recent of these took place in Gambia in April 2017. The ACHPR delegates made several suggestions to the Gambian government, notably to enact a law stipulating a quota of at least 30 % of women in all decision-making positions, to implement laws against child marriage and FGM and to increase the economic activities of women.[96]

Over the last ten years, states in Africa have undertaken important legal reforms in the area of gender equality yet gender discrimination appears to persist in the region. African countries are often considered to be among the worst in terms of compliance records in the area of gender equality and human rights.[97]

Although there is limited consensus as to why states adhere−or fail to adhere−to their international legal obligations, there is widespread agreement that domestic enforcement is one of the most effective means of implementing treaty obligations.[98] Treaties operate as binding law within ratifying states in one of two ways: either the treaty can be automatically incorporated into domestic law upon ratification or legislation can be introduced, giving legal effect to the treaty obligations.[99]

Scholars investigating domestic sources of compliance have highlighted the importance of the domestication of human rights instruments. For example, B. Simmons argues that signing a human rights treaty guarantees that the public opinion changes its perception of the norms contained in the treaty.[100] At that point, large segments of the local population expect government officials to respect what they have signed.[101] This shift in attitude of the population regarding human rights norms encourages civil society to advocate for compliance and courts to ensure compliance with the codified norm.[102] Other scholars such as A.S. Chilton explore the possibility of an electorate-driven domestic compliance mechanism whereby politicians pay an electoral cost for defaulting post-ratification; this is because treaties reshape public attitudes regarding international human rights norms.[103] In any event, although some studies claim that weak legal commitments are increasing their influence on various institutions, indeed even domestic institutions,[104] a broader consensus recognises the limitations of non-binding legal commitments, stressing the need for laws, which entail a high level of obligation, such as the Maputo Protocol.[105]

Human rights guarantees contained in the Maputo Protocol are extensive. However, there is still a wide gap between commitments pursuant to the ratification of the texts and the reality of women’s lives. Harmonisation with domestic law in the countries, which have ratified the Protocol, is yet to be reached. This is largely due to the lack of real political will and the persistence of several other obstacles. Gender policies have, however, been developed in almost all countries and have resulted in the adoption of specific laws and reforms in areas such as education, family law, health and the judiciary, taking into consideration the gender dimension.

Recent constitutions, such as that adopted in Kenya in 2010 and in Zimbabwe in 2013, include a gender-sensitive dimension that improves women’s rights.[106] Another example of a SADC country is Namibia; the Maputo Protocol, in accordance with article 144 of its Constitution, is an integral part of the Namibian domestic laws. This means that the rights and freedoms provided in the Protocol are enforceable by the Namibian judiciary and quasi-judicial bodies.[107]

Moreover, many AU member states have established special national bodies to promote and protect the rights of women. Along with human rights commissions, which are traditionally regarded as national mechanisms, there are also gender equality or equal opportunities commissions dedicated to the rights of women. These have been established in countries such as Kenya, South Africa, Uganda and Zimbabwe.[108] In 2008, Burkina Faso established a national commission to implement its commitment to women’s rights. The mandate of the commission includes promoting the ratification of existing and pending legal instruments that enhance the socioeconomic, political and cultural advancement of women in the country.[109] As early as 1997, Burkina Faso had also set up a Ministry for the Promotion of Women.[110]

Many other countries have implemented legislative solutions to improve the rights of women, notably Benin, which adopted a Family Code in 2004 promoting gender equality and prohibiting polygamy[111] as well as introducing a Sexual Harassment Act in 2006.[112] Mozambique adopted a new Penal Code in 2014, which afforded rapists the chance to marry the victim to avoid prosecution, although this created an outcry amongst civil society organisations. The government has since reviewed this section and removed the provision. The Penal Code now includes marital rape as an offence.[113] Addressing another issue afflicting women in Africa, Angola adopted a Domestic Violence Act in 2011, which considers domestic violence as a public crime.[114] Lastly, Malawi has managed to comprehensively address all the aspects mentioned above. The country introduced the Gender Equality Act in 2013[115] and the Marriage, Divorce and Family Relations Act in 2015 in an effort to eradicate discrimination against women. The latter Act sets the legal age of marriage at 18.[116] Additionally, Malawi issued a ground breaking judgement in 2015, ensuring that women are protected from discrimination. In a case where sex workers were forced to have an HIV test, the High Court stated that compulsory HIV testing was unconstitutional. This case is important for several reasons. Firstly, it shows that it is possible for women to hold the government accountable when their rights have been violated. In addition, this judgment set a significant precedent in Malawi, recognising the right not to be subjected to mandatory HIV testing by the state.[117] However, while Malawi claims to have progressive laws and policies, there remains a wide implementation gap, with a persistent lack of awareness of women’s rights among large sectors of the population.[118]

Through the adoption of the Maputo Protocol, Africa seems to be witnessing the implementation of innovative laws, policies and other institutional mechanisms at a national level to advance women’s human rights. Against this backdrop, customary legal officials remain key social actors in most communities throughout Africa. Excluding these individuals from the adaptation process would mean missing an important opportunity to successfully frame the Maputo Protocol obligations and norms in a way that would facilitate domestic enforcement.[119] The role of customary legal officials, for example, plays an important role in countries such as Sierra Leone, where the 2009 Registration of Customary Marriage and Divorce Act protects people entering into customary marriage from forced marriage, in line with traditional customs and practices.[120]

Although the Maputo Protocol has been in force since 2005, R. Murray is skeptical as to whether it can truly help to integrate women’s rights into the 1981 Banjul Charter and AU structures.[121] C. Ocran concurs, expressing doubts that states parties will be able to incorporate the terms of the Protocol into their national legal systems when the provisions are not directly applicable domestically.[122] More generally, there is a significant concern as to how the Maputo Protocol can be implemented[123] given that, at times, several rights in the Protocol clash with established cultural and national traditions.[124] The Protocol recognises that equal opportunities between men and women in Africa are unfeasible unless certain cultural and traditional attitudes and stereotypes are corrected.[125] On the other hand, the continued violations of the Maputo Protocol can be attributed to financial constraints, which fail to provide adequate support for existing mechanisms.[126]

The majority of the provisions contained in the Maputo Protocol is not attainable now given the present socioeconomic conditions in many countries of the region.[127] Furthermore, the Maputo Protocol fails to recognise several rights, deemed particularly relevant for refugees in Africa, such as the right to a fair trial and the rights of convicted and detained women.[128] Nonetheless, the Protocol is described as the most progressive instrument on women’s rights and human rights in the world.[129]

Article 31 of the Maputo Protocol is clear in privileging the conditions of women that could have been assured more favourably by other binding legal instruments.[130] From a theoretical perspective, the protection of women’s rights is once again reaffirmed as the main thrust of the Maputo Protocol. Because it is based on the presumption that women’s rights are of paramount importance, the prominence of the Maputo Protocol as a legal instrument may not be given effective legal protection unless women participate directly in the development, interpretation and enforcement of the law.[131] Until these aims have been met, the impact of the Maputo Protocol in protecting women’s rights remains limited, falling short of the ‘new dawn’ for women on the continent.[132]

In order to promote the implementation of the Maputo Protocol and to make the ratifications of so many African countries a concrete reality, the mechanism of the Special Rapporteur should be reviewed. To achieve this, the AU needs to increase support for the Special Rapporteur to ensure that this role has the required tools to oversee the implementation of the Maputo Protocol.

In addition, state parties are encouraged to collaborate with civil society organisations, such as women’s organisations and human rights organisations, in the adaptation process. Currently, there is no specific recommendation at any legal level requiring state parties to collaborate with those responsible for administering the customary legal system.[133]

As a general concluding remark, when human rights norms are emerging, as is the case with those contained in the Maputo Protocol, strong international legal commitment generates greater public support for compliance compared to weak commitment, although some of the content of the Maputo Protocol has also been the subject of criticism. Conversely, when a human rights norm is domesticated, stronger state commitment does not always generate greater public support compared to a weaker commitment.[134]

Domestic enforcement is paramount in this regard. A crucial aspect of facilitating domestic enforcement is the adoption and adaptation process.[135] This involves creating an enabling environment for law reform and enforcement. Given the important role of norms and socialisation in this process of adaptation, it is recommended that state parties implement educational measures and programmes to raise awareness of the Maputo Protocol’s obligations. To support this aspect of domestic enforcement, programmatic recommendations by existing institutions, above all by the ACHPR, are sought. These recommendations should encourage states to ‘take appropriate measures’ and to adopt or implement programmes or policies which support the provisions of the Maputo Protocol.

As F. Viljoen affirms: “It is women’s fundamental subordination embedded in socio-economic and cultural structures that underlies the denial of their rights, not the dearth of legal guarantees reaffirming their rights.”[136] In summary, the Maputo Protocol should certainly be commended for its role in furthering the protection of women’s rights in Africa; however, the full potential of this legal instrument has not yet been reached.[137] Despite their ostensible commitment to the Maputo Protocol, African states continue to be hamstrung by strong cultural legacies, which view women as inferior to men in many spheres of life.