Kavinya Makau is a Programme Officer at Equality Now, on Discrimination in Law. She has engaged in Pan-African women’s human rights advocacy and most recently, in leadership development as Akili Dada’s Innovation in Leadership programme director. She spoke to The Star reporter Nduta Waweru on the importance of the Protocol.
Tell us briefly what the Maputo Protocol is all about?
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol, is a progressive legal framework that comprehensively addresses the political, social and economic rights of women and girls.
It was adopted in Mozambique’s capital Maputo on July 11, 2003 by African Union heads of state after prolonged advocacy from individuals and institutions in Africa, in and outside of governments. To date, 49 states have signed it and 36 have ratified it. Only three states are yet to sign it, while 18 are yet to ratify.
What makes it important to Africa?
It is a legal framework negotiated by Africans for Africans. As such, it addresses the contextual realities of girls and women in Africa. It is hailed as progressive because, for the first time in the history of women’s rights, it specifically addresses violence against women in article 3, female genital mutilation in article 5, and the rights of women living with HIV/Aids article 14 {(1) (d) and (e) }, amongst other issues.
In a continent where the gendered effects of disruptive conflict and terrorism are evident, the right to peace is an important feature of the Protocol. On the basis that harmful culture, traditions and gender specific stereotypes continue to entrench discrimination against women, the right to a positive cultural context is a unique aspect of this important instrument. In recognition that there are girls and women who face multiple forms of discrimination owing to their age, status and health, the Protocol covers the rights of elderly women, widows and persons living with disabilities.
Kenya ratified the protocol but with a restriction, could you tell us more about that?
Generally, reservations limit a state’s obligations in respect of a specific right outlined in a treaty article. Ideally, reservations are supposed to be temporary measures while states work to put in place measures that ensure the right reserved to is eventually accessed.
Kenya ratified the Protocol on October 13, 2010, with two reservations to the Protocol. This is with regards to Article 10 (3) of the Protocol which relates to states reducing military expenditure significantly in favour of spending on social development in general and in the promotion of women in particular. Kenya is currently grappling with alarming cases of insecurity in various parts of the country including acts of terrorism including the recent attacks in Garissa. Calling for a reduction in military expenditure at this stage may not be appropriate or strategic.
That said, the state ought to balance its military spending with adequate measures aimed at addressing the structural concerns that continue to fuel inequality and insecurity.
The other reservation relates to Article 14 (2) (c) which refers to the medical termination of pregnancy. This is specific to 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.
Article 26 (4) of the Constitution of Kenya provides that ‘Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
In view of Article 26(4) above, it has been argued that the reservation in Article 14(2)(c) is inconsistent with the Constitution given that it has more specific/ narrow limitations in respect of termination of pregnancy.
Where does the Protocol stand in light of the Kenyan Constitution and the laws in place?
Because Kenya has ratified the Protocol, it is part and parcel of the country’s laws, as per article 2(6) of the 2010 Constitution. Nonetheless, Article 2(1) of the Constitution states that it is the supreme law of the land, binding all people and both levels of government. Article 2(4) goes further to say that if there is any discrepancy in any provision then that provision is invalid to the extent of the inconsistency.
Generally, where any other law is inconsistent both with the spirit and the letter of the Constitution as read together with the Protocol, the ideal is for relevant duty bearers to adopt a progressive interpretation that adequately addresses discrimination occasioned on girls and women.
How has the Protocol helped women in Africa? Are there specific cases you could mention?
The Maputo protocol has been particularly helpful in the adjudication of various human rights cases affecting women in the continent. In these cases, the victims of the violation have relied heavily on the Protocol to defend their position i.e where the state involved has ratified the Protocol and is therefore bound. See the case of:
Mildred Mapingure (Zimbabwe)
Rape – Termination of Pregnancy – Due diligence in the treatment of survivors of sexual violence
Mapingure was raped in 2006. She sought emergency contraception within 72 hours of her rape to ensure that the rape did not result in a pregnancy. Despite emergency contraceptives being legal in Zimbabwe, Mapingure failed to access emergency contraception on time due to delays at the police station and their failure to provide proper information about how to access it.
Upon discovering she was pregnant, she sought a lawful termination; as a victim of rape she is eligible for an abortion under Zimbabwe’s Termination of Pregnancy Act. Due to unnecessary judicial delays, she was unable to obtain the court order allowing the termination in time and eventually gave birth. She sued the government in 2007, seeking damages for herself as well as maintenance for her baby from the state.
The government failed to respond to her lawsuit. Nonetheless, in December 2012, the High Court handed down judgement in favour of the state. The Supreme Court handed down judgment in the appeal on 25 March 2014.
The Supreme Court of Zimbabwe found that there was negligence on the part of the doctor and the police in ensuring that the pregnancy was prevented; It also found that Mapingure did in fact suffer actionable harm which could entitle her to damages; The court conceded that the law on termination lacks clarity; The court recognised the relevance of international norms and conceded that the State may be failing to meet its international obligations.
However, The Court failed to find negligence in respect of the termination of pregnancy.
Ruth Berry Peal Case (Liberia)
FGM Case
Ruth was kidnapped from her home and mutilated by two women from the Sande secret society. The women were brought to trial and convicted for kidnapping, theft and felonious restraint. Kidnappers jailed for forcing woman to undergo FGM.
Rosaria Mashita Katakwe vs. Edward Hakasenke (Zambia)
Rape Case
The Zambian High Court heard a civil claim for damages for personal injury and emotional distress caused to a minor school girl by the first defendant, Mr. Hakasenke. The first defendant taught the school girl. The teacher lured the school girl to his house and raped her. The High Court granted damages to the school girl raped by her teacher and referred the case to the DPP for possible prosecution. The Judge also called on the Ministry of Education to issue regulations in order to better protect children from sexual violence from teachers in the future.
Mmusi & others vs Ramantele & another (Botswana)
Inheritance under Customary Law
Case filed before the High Court on appeal from a decision of the Customary Court of Appeal. It is a challenge to a customary law rule which provides only for male inheritance of the family home. In a landmark ruling, the Court held that the customary law rule infringed the right to equality under the Botswana Constitution.
The respondent appealed the High Court’s judgment. The Attorney-General intervened in support of the appellant arguing that the law is constitutional. On 3 September 2013, the Court of Appeal held that Mmusi and her sisters were to inherit the homestead and decide with their siblings who amongst them who was to take care of the property.
Masupha vs The Senior Resident Magistrate for the Subordinate Court of Berea and Others (Lesotho)
Gender Discrimination-customary law
Case challenged Section10 of Lesotho’s Chieftainship Act which denies all daughters the right to succeed to Chieftainship. The Court of Appeal upheld section 10 of the Chieftainship Act of 1968 which denies all daughters the right to succeed to chieftainship.
What challenges have you come across in creating awareness on the Protocol to the people and to governments?
The structures and systems that perpetuate discrimination against girls and women are deeply entrenched both amongst citizens and duty bearers in government. It’s not easy to change patriarchal views overnight. Hence our approach also prioritizes activities that go beyond the theory of the law in an effort to modify existent beliefs and societal trends that fuel discrimination against girls and women. These include:
- The idea that promotion of girls and women’s rights is equal to the marginalization of boys and men.
- In some instances, positive strides are made in engaging government on their obligations. When another government comes in, priorities may shift and that might result in a roll back of positive strides made.
As Equality Now, you are currently lobbying for a sex discrimination law, why is it important to have it?
Not much has changed for women and girls in the past twenty years. There has been some progress but we need to accelerate advancement. An easy fix and positive next step for governments is to ensure legal equality for women and men. Since our first analysis of Beijing PFA in 1999, over half of the sex discriminatory laws we highlighted have been (at least partially) repealed or amended. However, women deserve 100 per cent.
Almost all new constitutions written since 1995 have considered legal equality for women and men, but of course implementation is a key obstacle. According to UN Women, 143 countries now guarantee gender equality in their constitutions
For instance, Kenyan women can now pass their citizenship to their children and spouses on the same basis as men. According to UN Women, gender parity in primary education has been reached – almost the same for secondary education and Kenya is clearly making progress on that front. However, good progress is still hampered by other issues that detrimentally hinder the progress of girls: including sexual and economic exploitation; harmful traditional practices such as Female Genital Mutilation and child marriage; and, the lack of access to nutrition, physical and mental health care. This is why we not only want to ensure that discrimination in law comes to an end, laws are repealed and amended where necessary and most importantly implemented.