The impact of the

African Charter and the

Maputo Protocol in selected
African states

Editor
Victor Oluwasina Ayeni
LLM HRDA (Pretoria), LLB (Akungba), BL (Abuja)
Doctoral Candidate, Centre for Human Rights, University of Pretoria

2016
Title:
The impact of the African Charter and the Maputo Protocol in selected African states

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Printed in the Republic of South Africa

Seventeen countries covered in this book
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

The Gambia..................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 Mauritius .................................................................................................... 165
Meskerem Geset Techane
Roopanand Mahadew

Nigeria ........................................................................................................ 183

Victor Oluwasina Ayeni

Sierra Leone ............................................................................................... 203

Augustine Sorie Marrah

South Africa ............................................................................................... 215

Ofentse Motlhasedi
Linette du Toit

Swaziland ................................................................................................... 233

Dumsani Dlamini
Sizakele Hlatshwayo

Tanzania ..................................................................................................... 249

Grace Kamugisha Kazoba
Charles Mmbando

Uganda ....................................................................................................... 263

Agaba Daphine Kabagambe

Zimbabwe ................................................................................................... 281

Tarisai Mutangi

Conclusion ................................................................................................. 297

Victor Oluwasina Ayeni

Bibliography ....................................................................................................... 315

Questionnaire used for the study.......................................................329

 PREFACE

This book assesses the impact and effectiveness of the African Charter on Human and
Peoples’ Rights (African Charter) and the Protocol to the African Charter on the Rights
of Women in Africa (Maputo Protocol) in 17 African countries, namely Burkina Faso,
Cameroon, Côte d’Ivoire, Ethiopia, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauri-
tius, Nigeria, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda and Zimba-
bwe.
Apart from the introductory and concluding chapters, each chapter of the book is
devoted to the impact of the African Charter and the Maputo Protocol in a particular
state. The chapters are structured according to the 15 research questions included in the
study questionnaire that was provided to researchers. Typically, each chapter begins
with an introduction which provides a background and overview of the general context
of human rights and the situation of women in the study country. The concluding part
of each country chapter highlights the factors which have impeded or enhanced the
impact of the African Charter and Maputo Protocol in that country.
The Centre for Human Rights intends to use this research as the basis for a continu-
ously updated database on the impact of the African Charter and Maputo Protocol. The
‘first edition’ of this book, published under the title ‘The impact of the African Charter
and Women’s Protocol in selected African states’, appeared in 2012 and covered the
following 19 countries: Benin, Burkina Faso, Cameroon, Chad, Congo, Côte d’Ivoire,
Eritrea, Gambia, Kenya Lesotho, Mauritius, Mozambique, Niger, Nigeria, Rwanda,
Senegal, Sierra Leone, South Africa and Zimbabwe. This edition is essentially an exten-
sion and a reworking of the first edition. Some new country chapters - Ethiopia, Ghana,
Malawi, Swaziland, Tanzania and Uganda – have been introduced, while some country
chapters - Benin, Chad, Congo, Eritrea, Mozambique, Niger and Senegal – have been
dropped due to our inability to find suitable researchers from those countries within the
period the research was carried out.
We therefore invite anyone who has any information to supplement, update or
correct the information in this publication to contact us at chr@up.ac.za or hrda.alum-
ni@up.ac.za. Information about the impact of the African Charter and Maputo Proto-
col in countries not covered in this publication is also welcome.

vii
 The researchers for both editions are mostly alumni of the Master’s programme in
Human Rights and Democratisation in Africa, presented by the Centre for Human
Rights, Faculty of Law, University of Pretoria.
The first edition of this publication was based on research conducted as part of ‘The
State of the Union’ initiative, supported by OXFAM whose financial contribution is
gratefully acknowledged. The support of the Norwegian government in developing and
publishing this edition of the publication is also gratefully acknowledged.
 ACRONYMS

ACDHRS African Centre for Democracy and Human Rights Studies

ACERWC African Committee of Experts on the Rights and Welfare of the Child

ACHPR African Commission on Human and Peoples’ Rights

AHRLJ African Human Rights Law Journal

AHRLR African Human Rights Law Reports

AIDS Acquired Immune Deficiency Syndrome

APRM African Peer Review Mechanism

AU African Union

CALS Centre for Applied Legal Studies

CANGO Co-ordinating Assembly of Non-Governmental Organisations

CEDAW Convention on the Elimination of all forms of Discrimination against

Women

CERD Committee on the Elimination of Racial Discrimination

CESCR Committee on Economic, Social and Cultural Rights

CHR Centre for Human Rights

CHRAGG Commission for Human Rights and Good Governance

CHRPA Commission on Human Rights and Public Administration

CRC Convention on the Rights of the Child

CSO Civil Society Organisation

ix
CSVR Centre for the Study of Violence and Reconciliation

ECCJ ECOWAS Community Court of Justice

ECHR European Convention on Human Rights

ECOWAS Economic Community of West African States

EHRC Ethiopian Human Rights Commission

ESCR Economic, Social and Cultural Rights

EVD Ebola Virus Disease

FGM Female Genital Mutilation

FIDA International Federation of Women Lawyers

FLAG Female Lawyers Association of Gambia

HIV Human Immunodeficiency Virus

HRCSL Human Rights Commission of Sierra Leone

HRDA Human Rights and Democratisation in Africa

ICCPR International Covenant on Civil and Political Rights

IHRDA Institute for Human Rights and Development in Africa

ILO International Labour Organisation

KNCHR Kenya National Commission on Human Rights

LLM Legum Magister (Master of Laws)

LRC Law Reform Commission

LRC Legal Resources Centre

NCHRF National Commission on Human Rights and Freedoms

NEPAD New Partnership for Africa’s Development

NGO Non Governmental Organisation

NHRC National Human Rights Commission

NHRI National Human Rights Institutions

NIA National Intelligence Agency

NRM National Resistance Movement

OHCHR United Nations Office of the High Commissioner for Human Rights

OSIWA Open Society Initiative for West Africa

SAHRC South African Human Rights Commission

SALC Southern Africa Litigation Centre

SERAC Social and Economic Rights Action Centre

SERAP Socio-Economic Right Accountability Project

SRRWA Special Rapporteur on the Rights of Women in Africa

UDHR Universal Declaration of Human Rights

UHRC Uganda Human Rights Commission

UN United Nations

UPR Universal Periodic Review

US United States

ZLHR Zimbabwe Lawyers for Human Rights

ZSC Zimbabwe Supreme Court

ZWLA Zimbabwe Women Lawyers Association

 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 INTRODUCTION AND PRELIMINARY OVERVIEW
OF FINDINGS

Victor Oluwasina Ayeni*

1 Background have turned many countries into thea-

tres of war, the importance of periodic
review of the domestic impact of human
One of the most explicit and accurate rights treaties cannot be overempha-
predictors of the effectiveness of an sised. This book singles out two of the
international human rights treaty regime main regional human rights treaties in
is the extent to which the treaty has Africa – the African Charter on Human
influenced policy making, legislative and Peoples' Rights (African Charter or
actions, court decisions and civil society Charter) and the Protocol to the African
activities at the domestic level.1 Easy as Charter on the Rights of Women in
it may sound, establishing a causal link Africa (Maputo Protocol or Protocol) –
between a treaty regime and an observ- and assesses the extent to which 17
able behaviour of state actors is a very states in Africa have given effect to their
difficult yet important task. As Cassel obligations under these two treaties.
has rightly pointed out, ‘the institutions
of human rights deserve our energetic The extent to which human rights
support only to the extent that they treaties have been effective at the
contribute meaningfully to protection of domestic level is an important enquiry
rights, or at least promise eventually to not only to take stock of the progress so
do so’.2 In Africa where the scourge of far made but also to better understand
poverty, sectarian crisis, political insta- the potential roles and challenges of
bility, corruption and poor governance human rights treaties in the future. For
these and other reasons, the domestic
impact of human rights treaties has
continued to receive sustained attention
from academic writers, research centres
and donor organisations in the last two
* LLM HRDA (Pretoria), doctoral candidate, decades. Some of the existing studies on
Centre for Human Rights, University of the impact of international human rights
Pretoria. Email: victorayeni7@gmail.com.
1 CH Heyns & FJ Viljoen (eds) The impact of the treaties involve quantitative analysis of
United Nations human rights treaties on the the impact of selected treaties in a
domestic level (2002) 1; F Viljoen International
human rights law in Africa (2007) 529. numbers of countries over a period of
2 D Cassel ‘Does international human rights
law make a difference?’ (2001) 2 Chicago
Journal of International Law 121.

1
2 Introduction

time.3 There are also qualitative coun- the treaty.6 This is in sharp contrast to
try-specific studies analysing the domes- first-order compliance which is limited
tic effects of global, regional and sub- to compliance with the substantive
regional human rights treaties.4 In provisions of a treaty.7
recent times, there has been growing
engagement with ‘second-order compli- What have we learned from the
ance’ at the global, regional and sub- various studies on the domestic effects
regional level.5 Second-order compli- of human rights treaties? While interna-
ance refers to compliance with the deci- tional human rights law is generally
sions of an authoritative body charged assumed to have a constraining effect on
with the responsibility of interpreting state behaviour,8 empirical evidence
provisions of a treaty or resolving tends to suggest that the effect of treaties
disputes arising from implementation of on human rights practices at the state
level is negligible.9 In fact, some studies
find that human rights practice at the
domestic level may actually worsen or
degenerate following ratification of
human rights treaties.10 These findings
3 EM Hafner-Burton & K Tsutsui ‘Human prompt the question: why would states
rights in a globalizing world: The paradox of invest such great resources into adopting
empty promises’ (2005) 110 American Journal
of Sociology 1373; OA Hathaway ‘Do human human rights treaties if these treaties
rights treaties make a difference?’ (2002) 111 make no difference to their citizens?
Yale Law Journal 1935; LC Keith ‘The United
Nations International Covenant on Civil and Thankfully, qualitative studies11 and
Political Rights: Does it make a difference in more recent quantitative research have
human rights behavior?’ (1999) 36 Journal of
Peace Research 95 95. shown some optimism, suggesting that
4 Heyns & Viljoen (n 1 above); C Heyns & human rights treaties do give rise to
F Viljoen ‘The impact of the United Nations
human rights treaties on the domestic level’ positive consequences.12 However, a
(2001) 23 Human Rights Quarterly 484;
OC Okafor The African human rights system,
activist forces and international institutions 6 See C Romano, K Alter & Y Shany (eds)
(2010); VO Ayeni ‘Domestic impact of the Oxford handbook of international adjudication
African Charter on Human and Peoples’ (2014) 377; R Fisher Improving compliance with
Rights and the Protocol on the Rights of international law (1981); MP Ryan ‘The logic
Women in Africa: A case study of Nigeria’ of second order compliance with inter-
unpublished LLM Dissertation, University of national trade regimes’ Working Paper No 694
Pretoria, 2011; FN Kabata ‘Impact of of the University of Michigan (1992) 2-3.
international human rights monitoring 7 As above.
mechanisms in Kenya’ unpublished LLD 8 BA Simmons & D Hopkins ‘The constraining
thesis, University of Pretoria, 2015; Centre for power of international treaties: Theory and
Human Rights Impact of the African Charter and methods’ (2005) 99 American Political Science
the Women’s Protocol in selected African states Review 623; BA Leeds ‘Alliance reliability in
(2012). times of war: Explaining state decisions to
5 See C Paulson ‘Compliance with final violate treaties’ (2003) 57 International
judgments of the International Court of Organization 801; BA Simmons ‘International
Justice since 1987’ (2004) 98 American Journal law and state behaviour: Commitment and
of International Law 434; C Hillebrecht compliance in international monetary affairs’
Domestic politics and international human rights (2000) 94 American Political Science Review 819.
tribunals: The problem of compliance (2014) 3; 9 Hafner-Burton & Tsutsui (n 3 above);
J Donnelly International human rights (2007) 1; Hathaway (n 3 above); Keith (n 3 above).
F Viljoen & L Louw ‘State compliance with 10 As above.
the recommendations of the African 11 Heyns & Viljoen (n 1 above); T Risse,
Commission on Human and People's Rights, SC Ropp & K Sikkink The persistent power of
1994-2004’ (2009) 7 International Journal of human rights (2013); T Risse, SC Ropp & K
Civil Society Law 22; HS Adjolohoun ‘Giving Sikkink The power of human rights (1999).
effect to the human rights jurisprudence of the 12 E Neumayer ‘Do international human rights
Court of Justice of the Economic Community agreements improve respect for human
of West African states: Compliance and rights?’ (2005) 49 Journal of Conflict Resolution
influence’ unpublished LLD thesis, 925; BA Simmons Mobilising for human rights
University of Pretoria, 2013 8. (2009); Hillebrecht (n 5 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 3

key finding of all major research on the so.15 Power, coercion and self-interest
domestic effects of international human are what make international human
rights treaties is that treaty effects are rights treaties have an effect at the
seldom unconditional. Treaty effects are domestic level, according to realists.
believed to be conditional on state-level Another strand of the rational choice
characteristics and factors related to the theory – institutionalism – relies on
treaty regime.13 states’ cooperation instead of power or
coercion. While institutionalists agree
What mechanisms and conditions that states are self-interested rational
make domestic effect or impact of inter- actors, they differ from realists in that
national human rights treaties more like- they believe cooperation between states
ly? Several theories have been proposed is possible, and that states may comply
to explain the process by which interna- voluntarily with their international obli-
tional law may have effects at the gations within the framework of that
domestic level. These theoretical cooperation if it is in their interests to do
approaches may be divided broadly into so.16 One important consequence of
two, namely rational choice theory and institutionalism as a theory is that it
constructivist theory, also referred to as draws the attention of international
the normative theory. While the rational lawyers to the role of two important
choice theory emphasises material factors of international cooperation –
incentives, hegemonic power, sanctions reputation and reciprocity.17 For
and self-interest as the primary drivers Guzman, states comply with interna-
of states’ compliance with treaty obliga- tional human rights treaties mainly
tions, constructivists argue that states because of reputational concerns and
comply with human rights treaties fear of sanctions.18 Hathaway argues
because of normative considerations that states comply with international
such as the persuasive powers of human law as a result of enforcement and
rights obligations, repeated transnation- ‘collateral consequences’ such as repu-
al interactions, argumentation and tation, development assistance and trade
states’ continuous exposure to norms.14

One of the earliest strands of the

rational choice theory is realism. For 15 See generally, OR Young ‘The effectiveness of
realists, states generally comply with international institutions: Hard cases and
critical variables’ in JN Rosenau &
their international obligations whenever E-O Czempiel (eds) Governance without
it is in their interests or in the interests government: Order and change in world politics
(1992) 160; OR Young Compliance and public
of a more powerful state for them to do authority: A theory with international applications
(1979); L Henkin How nations behave (1979);
HJ Morgenthau Politics amongst nations: The
struggle for power and peace (1978); H Simon
Models of man: Social and rational-mathematical
essays on rational human behaviour in a social
setting (1957) 200-204.
16 RO Keohane After hegemony (1984); D Snidal
13 DW Hill ‘Estimating the effects of human ‘The limits of hegemonic stability theory’
rights treaties on state behaviour’ (2010) 72 (1985) 39 International Organisation 579.
Journal of Politics 1161; GW Downs, 17 A-M Slaughter ‘International relations,
DM Rocke & PN Barsoom ‘Is the good news principal theories’ www.princeton.edu/~slau
about compliance good news about ghtr/Articles/722_IntlRelPrincipalTheories_
cooperation?’ (1996) 50 International Slaughter_20110509zG (accessed 18 Nov-
Organization 379; Simmons (n 12 above). ember 2015).
14 ES Bates ‘Sophisticated constructivism in 18 AT Guzman ‘A compliance-based theory of
human rights compliance theory’ (2015) 25 international law’ (2002) 90 California Law
European Journal of International Law 1170. Review 1849.
4 Introduction

interests.19 Based on the rational choice ble democracies tend to support human
theory, Hafner-Burton argues that rights treaty regimes to ‘lock in’ demo-
human rights treaty obligations are most cratic gains and ‘signal’ human rights
likely to be complied with by states commitment as well as an intention to
when such obligations are tied to consolidate democratic institutions.25
economic benefits, for instance trade.20
More recently, Simmons has
Another variety of the rational confirmed Moravcsik’s findings. She
choice theory is liberalism.21 The main argues that treaties do not have the same
thrust of the liberal theory is that state- effects in all countries and that the inter-
level characteristics matter in determin- national human rights system will have
ing whether or not human rights treaties its greatest domestic impact in countries
will have an effect at the domestic which are neither stable autocracies nor
level.22 Liberal theorists believe the stable democracies but are partial
unique nature of ‘liberal states’ make democracies and transitioning
human rights treaties more likely to regimes.26 This, she reasons, is because
have greatest effect in those states.23 in stable democracies, although citizens
However, more recent work by liberal have the means to employ human rights
theorists has demonstrated that the treaties for social mobilisation, the
conditions that make human rights trea- motive is usually absent. In stable autoc-
ties effective at the domestic level are racies, by contrast, citizens have the
complex and go further than merely motive to use international human
categorising states as liberal or illiberal. rights treaties to demand change but
Moravcsik, for instance, found that generally lack the means to do so.27
human rights treaties are more likely to
attract support and have an impact in Constructivist or normative theo-
newly established and unstable democ- ries, on the other hand, focus primarily
racies than in long-standing democracies on identity, ideas, beliefs, the role of
and autocratic states.24 The reason for social norms, non-state actors and inter-
this is that newly established and unsta- national institutions.28 One of the earli-
est normative theories came from
Chayes and Chayes. They argued that
19 OA Hathaway ‘Between power and principle:
An integrated theory of international states’ non-compliance with internation-
law’(2005) 72 University of Chicago Law Review al treaties is an endemic problem rather
506.
20 EM Hafner-Burton ‘Trading human rights: than the result of a cost-benefit analysis
How preferential trade agreements influence as the rational choice theorists
government repression’ (2005) 59 International
Organization 633. claimed.29 The causes of non-compli-
21 Hathaway (n 3 above) 1952.
22 Slaughter (n 17 above).
23 Slaughter (n 17 above); Hathaway (n 3 above); 25 Moravcsik (n 24 above); Simmons (n 12
A Moravcsik ‘Taking preferences seriously: A above) 65; T Ginsburg ‘Locking in
liberal theory of international politics’ (1997) democracy: Constitution, commitment and
51 International Organisation 513; A-M Slaugh- international law’ (2006) 38 New York
ter ‘The liberal agenda for peace: University Journal of International Law and
International relations theory and the future Politics 707; DH Moore ‘A signalling theory of
of the United Nations’ (1995) 4 Transnational human rights compliance’ (2003) 97
and Contemporary Problems 377; A-M Slaugh- Northwestern University Law Review 879.
ter ‘International law in a world of liberal 26 Simmons (n 12 above) 16-17 & 360.
states’ (1995) 6 European Journal of 27 As above.
International Law 503. 28 Slaughter (n 17 above). See also JT Checkel
24 A Moravcsik, ‘The origins of human rights ‘The constructivist turn in international
regimes: Democratic delegation in Postwar relations theory’ (1998) 50 World Politics 324.
Europe’ (2000) 54 International Organization 29 A Chayes & AH Chayes ‘On compliance’
228. (1993) 47 International Organization 204.
 Impact of the African Charter and the Maputo Protocol in selected African states 5

ance, according to Chayes and Chayes, and the lack of economic interest and
are ambiguity and indeterminacy of political will.35
treaty language, lack of capacity, and
the temporal dimension of the obliga- More recent scholarship on the
tions imposed by treaties.30 In order to domestic effects or impact of interna-
improve state’s compliance with treaty tional human rights treaties tends to
obligations, Chayes and Chayes integrate constructivist perspectives with
proposed that the ‘enforcement model’ rational choice models. This new
should be replaced with a ‘managerial approach has been described as modern
model’ that entails the use of ‘iterative constructivism.36 For instance, in his
process of justificatory discourse’. They analysis of how democratic states
recommended the following instruments respond to judgments of the European
to manage states’ compliance with their Court of Human Rights (ECtHR), Von
obligations: transparency, reporting, Staden concluded that states demon-
monitoring, dispute settlement and stra- strate a normative sense of obligation to
tegic review, amongst others.31 abide by the ECtHR’s judgments yet
exploit various instrumental and costs-
Another normative theorist, Thom- saving options to comply as little as
as Franck, contends that fairness and possible.37 Risse, Ropp and Sikkink
legitimacy are the elements of a treaty proposed a ‘spiral model’ of human
that exerts a compliance pull on states.32 rights change.38 The spiral model is a
A relatively recent normative perspec- five-phase process involving state repres-
tive called the ‘transnational legal sion, denial, tactical concession,
process’ theory was offered by Howard prescriptive status and rule-consistent
Koh.33 Transnational legal process is a behaviour.39 State repression activates
three-part process of interaction, interpre- transnational activist networks that use
tation, and internalisation whereby inter- information politics to pressure repres-
national treaties are interpreted through sive governments. At first, the govern-
the interactions of transnational actors ment denies repression before making
and then internalised into the domestic some tactical concessions. Using the
legal system.34 Koh believe the reasons concessions, activist networks push for
states fail to comply with international more concession by urging the govern-
law include vagueness of the norms, ment to recognise and embrace more
toothless mechanisms, weak regimes human rights and democratic govern-
ance standards. The final stage of the
spiral model is the rule-consistent behav-
iour phase, where the state begins to
30 As above.
internalise human rights norms through
31 A Chayes & AH Chayes The new sovereignty: behavioural change and sustained
Compliance with international regulatory
agreements (1995) 135.
32 T Franck Fairness in international law and 35 See Koh ‘How is international human rights
institutions (1995); T Franck The power of law enforced?’ (n 33 above) 1398.
legitimacy among nations (1990) 24. 36 Bates (n 14 above) 1181.
33 See HH Koh ‘How is international human 37 A von Staden ‘Rational choice within
rights law enforced?’ (1999) 74 Indiana Law normative constraints: Compliance by liberal
Journal 1398; HH Koh ‘The 1998 Frankel democracies with the judgments of the
Lecture: Bringing international law home’ European Court of Human Rights’ SSRN
(1998) 35 Houston Law Review 626; HH Koh eLibrary 6 February 2012.
‘The 1994 Roscoe Pound Lecture: 38 Risse, Ropp & Sikkink The power of human
Transnational legal process’(1996) 75 rights (n 11 above) 8.
Nebraska Law Review181. 39 Risse, Ropp & Sikkink The power of human
34 As above. rights (n 11 above) 6.
6 Introduction

compliance.40 Although the spiral zation of African Unity (OAU), now the
model is largely a constructivist proposi- African Union (AU), on 27 June 1981,
tion, the authors juggle both instrumen- and came into force on 21 October
tal and normative incentives in their 1986. All 54 member states of the Afri-
theory. The spiral model, for example, can Union, with the exception of the
comprises the following mechanism of newcomer South Sudan, are state
social action and human rights change: parties to the African Charter.49
coercion, sanctions, incentives, persua-
sion and capacity building.41 When compared with human rights
instruments at the global level and with
This hybrid constructivist-rationalist other regional systems, the African
approach is also noticeable in recent human rights system and the African
works of Simmons,42 Hillebrecht,43 Charter are unique in a number of
Goodman and Jinks,44 Cardenas,45 ways.50 The Charter contains both civil
Alter,46 and Hafner-Burton,47 all of and political rights as well as economic,
which view compliance with human social and cultural rights, and both of
rights treaties as largely a function of these two ‘generations of rights’ are
domestic politics, rather than transna- justiciable. Another distinctive feature
tional interactions. One important of the African Charter is the notion of
theme that is common to all domestic peoples’ rights or what some writers
politics theories is the integration of refer to as ‘solidarity rights’.51 Unlike
constructivist perspectives with rational- other international human rights trea-
ist propositions. ties, the African Charter does not allow

2 The African Charter and the

Maputo Protocol

The African human rights system is 48 Constitutive Act of the African Union 2000,
based mainly on the African Charter.48 Protocol to the African Charter on Human
and Peoples’ Rights on the Rights of Women
The Charter was adopted by the Organi- in Africa 2003, Convention on Prevention
and Combating Corruption 2003, African
Charter on Democracy, Elections and Good
40 As above. Governance 2007, and the AU Convention
41 Risse, Ropp & Sikkink (n 11 above) 12-16. for the Protection of and Assistance of
42 Simmons (n 12 above). Internally Displaced Persons 2009, amongst
43 Hillebrecht (n 5 above). others.
44 R Goodman & D Jinks Socializing states: 49 South Sudan has signed the Charter but yet to
Promoting human rights through international law ratify it. See http://www.au.int/en/treaties
(2013). (accessed 15 November 2015).
45 S Cardenas Conflict and compliance: State 50 M Mutua ‘The Banjul Charter and the
responses to international human rights pressure African cultural fingerprint: An assessment of
(2007). the language of duties’ (1995) 35 Virginia
46 K Alter ‘Tipping the balance: International Journal of International Law 339.
courts and the construction of international 51 P Alston ‘A third generation of solidarity
and domestic politics’ (2011) 13 Cambridge rights: Progressive development or
Yearbook of European Legal Studies 1. obfuscation of international human rights
47 E Hafner-Burton Making human rights a reality law?’ (1982) 29 Netherlands International Law
(2013). Review 307; K Vasak ‘For the third generation
48 Other human rights instruments in Africa of human rights: The rights of solidarity’
include: OAU Convention Governing the Inaugural Lecture to the Tenth Study Session of the
Specific Aspects of Refugee Problems in International Institute of Human Rights
Africa 1969, Cultural Charter for Africa 1976, Strasbourg, 2-27 July 1979; BE Winks ‘A
African Charter on the Rights and Welfare of covenant of compassion: African humanism
the Child 1990, Protocol to the African and the rights of solidarity in the African
Charter on Human and Peoples’ Rights on Charter on Human and Peoples’ Rights’
the Establishment of the African Court on (2011) 11 African Human Rights Law Journal
Human and Peoples’ Rights 1998, the 447. See arts 19-24 of the African Charter.
 Impact of the African Charter and the Maputo Protocol in selected African states 7

derogations from its provisions, even in country-specific resolutions.56 More

situation of emergency.52 recently, the African Court on Human
and Peoples’ Rights (African Court) was
The African Charter established the established to complement the Commis-
African Commission on Human and sion’s protective mandate.57 Assessing
Peoples’ Rights (African Commission or the impact or the extent to which states
Commission) as its primary supervisory have given effect to the innovative
mechanism and vests in the Commis- provisions of the African Charter, the
sion both promotional and protective various works of the African Commis-
mandates.53 The Commission is sion and the emerging jurisprudence of
mandated by the Charter to promote the African Court is certainly an inter-
and protect human rights in Africa, esting inquiry.
interpret the provisions of the Charter
and perform any other tasks assigned to One of the major shortcomings of
it by the OAU Assembly of Heads of the African Charter is that its normative
States and Government (now AU content with respect to the protection of
Assembly).54 The Commission was women’s rights is inadequate.58 The
formally inaugurated on 2 November only specific reference to women in the
1987. As of November 2015, the Charter is a provision dealing with the
Commission has received close to 500 family.59 Some writers have argued that
communications, of which more than this implies that the drafters of the Char-
half have been finalised; and has found ter viewed women only within the fami-
violations in 83 communications, ly context.60 In order to compensate for
involving 27 states that are parties to the this normative inadequacy and also to
African Charter.55 The Commission has improve the implementation of the
also issued at least 41 concluding obser- human rights provisions enshrined in
vations, 72 mission reports and not less the Charter, the Maputo Protocol was
than 293 thematic, administrative and adopted.61 The Protocol was adopted
on 11 July 2003 in Maputo, the capital

56 African Commission ‘Documents’ http://

52 See Commission nationale des droits de l’Homme www.achpr.org/search/ (accessed 15 Nov-
et des libertés v Chad (2000) AHRLR 66 ember 2015).
(ACHPR 1995) para 21. 57 See Protocol to the African Charter on
53 See art 45 of the African Charter. Human and Peoples’ Rights on the
54 As above. Establishment of the African Court on
55 See African Commission on Human and Human and Peoples’ Rights (1998) art 1.
People’s Rights ‘Communications’ http:// 58 See I Eze-Anaba ‘Domestic violence and
www.achpr.org/communications/ (accessed legal reforms in Nigeria: Prospects and
26 August 2015); IHRDA African human rights challenges’ (2007) 14 Cardozo Journal of Law &
case law analyser http://caselaw.ihrda.org/ Gender 31; F Viljoen ‘An introduction to the
body/acmhpr/ (accessed 26 August 2015). In Protocol to the African Charter on Human
its 32nd and 33rd (joint) activity report and Peoples’ Rights on the Rights of Women
adopted by the Executive Council of the AU in Africa’ (2009) 16 Washington & Lee Journal
in January 2013, the Commission reported of Civil Rights & Social Justice 17; Viljoen (n 1
that since inception, it has handled a total of above) 269.
426 Communications and concluded 210 59 See art 18 of the African Charter.
Communications. As at December 2014, the 60 K Stefiszyn & A Prezanti The impact of the
Commission had 89 pending communi- Protocol on the Rights of Women in Africa on
cations. See Statement by the Chairperson of violence against women in six selected Southern
the African Commission on Human and African countries: An advocacy tool (2009) 2.
Peoples’ Rights on the human rights situation 61 See Viljoen (n 1 above) 268. See also
in Africa (28th Session of The United Nations Preamble to the Protocol; F Banda ‘Brazing a
Human Rights Council) http://www.achpr. trail: The African Protocol on Women’s
org/news/2015/04/d171 (accessed 8 Sep- Rights comes into force’ (2006) 50 Journal of
tember 2015). African Law 72; MS Nsibirwa ‘A brief analysis
8 Introduction

city of Mozambique. This is why the Protocol was carried out by Stefiszyn
Protocol is often referred to as the and Prezanti in 2009, but the study was
Maputo Protocol. After achieving the limited to only six Southern African
required 15 ratifications, the Maputo countries.64
Protocol came into force on 25 Novem-
ber 2005. Just over ten years later, in In 2011, on the occasion of 25 years
2016, the Protocol has been ratified by since the entry into force of the African
36 states.62 Fifteen states signed but Charter, the Centre for Human Rights,
have not yet ratified the Protocol and through its network of alumni, conduct-
three states have neither signed nor rati- ed a study on the impact of the African
fied the Protocol.63 Charter and the Maputo Protocol in
selected African states.65 The findings
Like the African Charter, the Mapu- included that lack of awareness and use
to Protocol also contains innovative of the African Charter and the Maputo
provisions. These include the legal Protocol, as well as the jurisprudence of
prohibition of female genital mutilation the African Commission, were primary
(FGM) and an authorisation of medical causes of the minimal impact of the
abortion in instances of rape, incest, African Charter and the Maputo Proto-
sexual assault and where a pregnancy col in the selected states. The study,
endangers the health or life of the moth- however, noted the growing use of the
er. The Protocol is also the first legally Charter and the Protocol by civil society
binding human rights treaty to make organisations in the study countries.
explicit reference to HIV/AIDS. In One of the points that came out clearly
addition to these innovative provisions, from the study was the need for periodic
the Protocol addresses human rights review of the impact of the African
issues such as polygamy, violence Charter and the Maputo Protocol in all
against women, child marriage, harmful member states of the African Union.
practices, widowhood practices, This book, which is a follow up edition
women's inheritance, women’s econom- of the same study, is intended to update
ic empowerment, the political participa- the existing research database on the
tion of women, women in distress and impact of the African Charter and the
women in situations of armed conflict. Maputo Protocol in selected African
Although 36 countries have ratified both states.
the African Charter and the Maputo
Protocol, not much is known about the 3 Conceptual clarification and
measures these states have taken to methodology
bring their domestic legal systems and
policies in line with the Charter and the A number of terminologies are used in
Protocol. One of the first major studies this book. These concepts are likely to
on the domestic impact of the Maputo be misunderstood unless their contextu-
al meaning is clarified. These include
61 of the draft protocol to the African Charter on ‘compliance’, ‘implementation’, ‘follow-
Human and Peoples’ Rights on the rights of up’, ‘impact’ and ‘effectiveness’ of
women’ (2001) 1 African Human Rights Law
Journal 41. human rights treaties.
62 African Union ‘List of countries which have
signed, ratified/acceded to the African
Charter on Human and Peoples’ Rights’
http://www.au.int/en/treaties (accessed
15 November 2015). 64 Stefiszyn & Prezanti (n 60 above).
63 As above. 65 See Centre for Human Rights (n 4 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 9

In simple terms, compliance with a actors.70 It comprises both direct and

human rights treaty may be defined as indirect effects of a treaty.71 Direct
conformity between the provisions of a effects of a treaty refer to the conscious
treaty and observed behaviours at the and deliberate measures taken to imple-
domestic level. In the context of interna- ment or comply with treaty norms,
tional human rights adjudication, including decisions of treaty monitoring
compliance is conformity between a bodies. Indirect effects on the other
remedial order prescribed in a decision hand consist of more than mere compli-
of an international human rights moni- ance with or implementation of the
toring body on the one hand, and state provisions of a human rights treaty.
behaviour or factual situation at the Indirect effects encompass the incre-
domestic level, on the other hand. mental use and more subtle influences
Implementation of treaties entails the of the treaty – for instance through
process of taking steps or measures, academic writing, references to the trea-
whether legislative, judicial or adminis- ty in news reports, use by civil society
trative, to give effect to the provisions of and the general level of awareness by
a treaty, including the decisions of a members of the public. A treaty may
tribunal established under that treaty.66 have a low compliance rate but very
Implementation is the process while high impact.
compliance is the outcome. Ideally,
compliance results from implementa- Throughout this book, the following
tion. This however is not always the terms – ‘impact’, ‘effect’ and ‘influence’
case. As Okafor has noted, compliance – are used interchangeably. When we
may not happen in the same way a twist talk about the impact of the African
to the hand causes pain.67 More often Charter and the Maputo Protocol, we
than not, compliance is the result of refer to the totality of effects or influenc-
coincidence, inadvertence or reasons es that these treaties have had at the
extrinsic to a legal rule.68 Follow up is a domestic level. These terms should
process of facilitating implementation.69 however be distinguished from ‘effec-
It is assumed that follow up improves tiveness’. In the context of international
implementation, which in turn increases human rights treaties, effectiveness is
the compliance rate. Both domestic and the extent or degree to which a treaty
transnational actors may be involved in induces a desired change that furthers
follow up, whereas implementation and the goals of such treaty.72 Arguably, a
compliance are essentially domestic treaty may have effects which do not
affairs. significantly advance the goals of the
treaty.73 In fact, some empirical studies
The impact of an international trea- have shown that a treaty may have a
ty is the totality of effects that the treaty negative impact on the situation of
has on the actions of state and non-state human rights in a particular state even

66 See M Burgstaller Theories of compliance with 70 Heyns & Viljoen (n 4 above) 484-485.
international law (2004) 4. 71 As above.
67 Okafor (n 4 above) 116-117. 72 See Murray & Long (n 69 above) 29;
68 K Raustiala ‘Compliance and effectiveness in Raustiala (n 68 above) 393-394.
international regulatory cooperation’ (2000) 73 The African Charter arguably has had a huge
32 Case Western Reserve Journal of International impact on tourism in The Gambia. However,
Law 391. improving tourism in The Gambia is not one
69 See R Murray & D Long The implementation of of the goals of the African Charter. This is one
the findings of the African Commission on Human of the instances where high impact does not
and Peoples’ Rights (2015) 28. correspond to effectiveness.
10 Introduction

in instances where compliance is high.74 research in a particular country. The

Thus, a treaty which has a very high final selection of country researchers
compliance rate and a great impact may was made on the basis of the research-
nevertheless be low on effectiveness. On er’s personal knowledge of the country’s
the other hand, a treaty regime may be legal system and human-rights situation,
effective even though its compliance as well as the alumni’s availability and
rate and overall impact is low.75 Thus capacity to carry out the research. A
the ultimate goal of assessing the status questionnaire was developed to guide
of implementation, compliance or the research and each researcher was
impact of any international human provided with a copy of this question-
rights treaty regime is to determine the naire and other relevant documents. A
extent to which it may be effective. copy of the questionnaire used for the
study is included in the annexure to this
The research presented in this book book. Researchers were required to
was carried out by human-rights schol- study existing literature, official docu-
ars, activists and practitioners, all whom ments as well as news reports and
have in-depth knowledge of the various conduct semi-structured interviews
issues discussed in their respective chap- based on the questionnaire provided.
ters. The primary objective of the Interviews were conducted with govern-
research is to determine the extent to ment officials, members of civil society
which two main regional human rights (especially NGOs whose activities relate
treaties in Africa have been effective and to the African Charter and the Maputo
impactful. Each of the chapters in the Protocol), and members of the public.
book sets out to answer three overarch- After conducting field research,
ing questions: what is the status of the researchers submitted their preliminary
implementation of the African Charter reports, which were reviewed by the
and the Maputo Protocol in a particular editors.
country; what indirect effects, if any,
have the Charter and the Protocol had 4 Overview of study results
in that country; and what factors or
mechanism enhance or impede the The evidence and findings presented in
impact of the two instruments in that this book suggest that the overall impact
country? of the African Charter and the Maputo
Protocol are difficult to establish conclu-
The study, which was conducted
sively. The question whether the Afri-
under the overall supervision of the
can Charter and the Maputo Protocol
Centre for Human Rights, began with
have led to an improvement in the
an invitation to alumni of the Centre’s
human rights conditions at the domestic
Master of Laws programme in Human
level cannot be answered with a simple
Rights and Democratisation in Africa,
yes or no.76 However, while direct caus-
seeking their involvement and participa-
al links may be difficult to establish, the
tion in the research project. A number
evidence does suggests that the African
of alumni responded to the call and in
Charter and the Maputo Protocol have
some cases, there were two or more
had a modest impact in the 17 countries
alumni seeking to collaborate on

74 Hafner-Burton & Tsutsui (n 3 above); 76 E Neumayer ‘Do international human rights

Hathaway (n 3 above); Keith (n 3 above). treaties improve respect for human rights?’
75 Raustiala (n 68 above) 387-397. (2005) 49 Journal of Conflict Resolution 950.
 Impact of the African Charter and the Maputo Protocol in selected African states 11

selected for the study. Laws have been and opening up the democratic space.
adopted, policies formulated, resources Activist forces and networks capitalised
allocated, institutions created and reme- on these initial concessions to press for
dies provided as a direct consequence of change until international human rights
states parties obligations under the Afri- norms are accepted, internalised and
can Charter and the Maputo Protocol. cascaded into domestic systems.

The influence of the African Charter Consistent with the transnational

and Maputo Protocol in the 17 studied legal process theory, evidence in various
countries is consistent with three main chapters also reveals that repeated inter-
theories of compliance with internation- action between state and non-state
al law: the domestic politics theory, the actors in domestic and international fora
spiral model of human rights change has intensified the impact of the African
and the transnational legal process theo- Charter and the Maputo Protocol. Côte
ry. Evidence from the various chapters d’Ivoire, where the African Commis-
shows that domestic actors – policy sion’s session and promotional activities
makers, legislators, judges and domestic have had more impact than the protec-
civil society organisations – are the tive activities, is an example of this.
primary drivers of impact of the African
Charter and the Maputo Protocol. The The transnational legal theory holds
chapters also reveal that state-level char- the key to understanding why human
acteristics such as the level of political rights treaties, particularly the African
stability in a state and the extent of Charter and Maputo Protocol, may or
openness, transparency and citizen may not have the desired effect in a
participation in governance are useful particular state. According to Koh, trea-
predictors of the impact and effective- ty effects may take three pathways:
ness of the relevant treaties. political internalisation, legal interna-
tionalisation and social internalisa-
Findings also illustrate the role of tion.78 Political internalisation occurs
state repression within the framework of when political elites accept a norm. This
the spiral model: in countries such as is usually a prerequisite for legal inter-
Kenya, Malawi, Nigeria, Uganda and nalisation, which involves incorporation
Zimbabwe, state repression has of the norm into domestic laws. Legal
propelled domestic activist forces to internalisation may be administrative,
demand human rights change, in legislative or judicial. The final stage of
particular by connecting with transna- human rights norm internalisation is
tional activist networks.77 Governments social internalisation and this is attained
of these countries initially responded by when a norm has obtained public legiti-
denying that human rights abuses were macy, support and widespread adher-
taking place in their countries but even- ence.79 While there is no particular
tually made tactical concessions, for sequence for this internalisation process,
instance by freeing political prisoners, it is important for activist networks at
recognising some basic human rights the domestic level to understand the
level of internalisation in a particular
state. Evidence in this book shows that
77 See ME Keck & K Sikkink Activists beyond
borders (2008); M Finnemore & K Sikkink
‘International norm dynamics and political 78 HH Koh ‘Bringing human rights home’
change’ (1998) 52 International Organization (1998) 35 Houston Law Review 642.
892. 79 As above.
12 Introduction

norms cascade much more easily into The findings also support the argu-
the domestic system if political internali- ment of Simmons, Murray and Long
sation is followed by legal internalisa- that international human rights treaties
tion and then social internalisation. It is will be impactful only if they have
more difficulty – although not impossi- ‘added value’.82 According to Simmons,
ble – where this process is reversed. ‘treaties are causally meaningful to the
extent that they empower individuals,
The most significant impact of the groups, or parts of the state with differ-
African Charter, and to a large extent ent rights preferences that were not
the Maputo Protocol, has been recorded empowered to the same extent in the
in new democracies and during times of absence of the treaties’.83 The creative
political transition. This is consistent use of the African Charter by local activ-
with findings of Moravcsik and ists and judicial actors in Nigeria during
Simmons that international human the country’s worst military dictatorship
rights treaties will have their most signif- supports this view. The direct domesti-
icant impact in new democracies or cation of the African Charter in Nigeria
transitioning regimes. Evidence from provided activist forces with an added
Côte d’Ivoire, Kenya, Nigeria and advantage, which was used creatively.
South Africa support this conclusion. In South Africa, courts have relied on
Notable influence of the African Charter the African Charter’s protection of the
was recorded in Nigeria, Kenya and family in judicial decisions because the
Côte d’Ivoire amongst others immedi- South African Constitution has no
ately before or during transition from explicit provision for the protection of
one regime to another. Conversely, the the family. When asked why civil socie-
evidence in this book reveals that the ty organisations in South Africa do not
‘constraining effect’80 of the African take cases to regional human rights
Charter and the Maputo Protocol on bodies, most respondents indicated that
state behaviour, or the degree to which they are generally satisfied with availa-
these treaties can be said to constrain ble domestic remedies. Accordingly,
state behaviour, is relatively limited in dissatisfaction with domestic legal
countries such as The Gambia, Zimba- frameworks and judicial remedies seems
bwe and Uganda, where political transi- to be one of the most important precon-
tion has not taken place in the last two ditions for reliance upon and ultimately
decades. The findings in this book there- impact of human rights treaties, particu-
fore support the view that democratic larly the African Charter and the Mapu-
political transition and treaty effects are to Protocol.
related.81
Several factors have enhanced or
impeded the impact of the African Char-
ter and the Maputo Protocol in the
80 The phrase is used to refer to the ability of a selected countries, and most of these
treaty to constrain state behaviour, domestic factors converge at the state level. This
laws and policies brought about as a result of
the African Charter or in response to a leads to the conclusion earlier alluded to
decision of the African Commission or other that treaty effects at the domestic level
regional human rights monitoring bodies. See
BA Simmons & D Hopkins ‘The constraining are essentially a domestic affair. One of
power of international treaties: theory and
methods’ (2005) 99 American Political Science
Review 623. 82 Murray & Long (n 69 above) 10-26; Simmons
81 See Moravcsik (n 24 above) 228; Simmons (n (n 12 above) 125.
12 above) 16 – 17. 83 Simmons (n 12 above) 125.
 Impact of the African Charter and the Maputo Protocol in selected African states 13

the most interesting findings of this complied with by states.84 For instance,
study is that just as some positive factors adoption of the Maputo Protocol in the
at the domestic level may impede the National Gender Policy of Zimbabwe
impact of the African Charter and the was affected on the basis that it is
Maputo Protocol, negative factors may regarded as the least contentious issue in
equally enhance their impact. For Zimbabwe and hence supported by poli-
instance, creative use of the African ticians. This analysis underscores the
Charter is relatively lacking in countries importance of cost-benefit calculations
such as South Africa, Ghana and to states’ compliance and domestic trea-
Tanzania amongst others that have rela- ty effects. The costs that influence
tively progressive Bills of Rights. The domestic treaty effects may be political,
availability of satisfactory domestic financial or ideological. For instance,
remedies in South Africa has been iden- rights which require huge financial
tified as a factor that impedes use of the outlay for their realisation, or those that
communication procedure under the threaten the political survival of state
African Charter. Although a negative actors, are often least likely to be
record, the atrocities and human rights complied with or implemented by states.
abuses perpetrated by military adminis-
trations in Nigeria was also identified as The various reports also underscore
a factor which enhanced the impact of the significance of the African Human
the African Charter in that country. In Rights Moot Competition in raising
Zimbabwe, the increase in human rights awareness about the African Charter,
abuses between 2000 and 2008 led to an Maputo Protocol and more generally
increase in the number of individual the jurisprudence of the African
communications filed against Zimba- Commission. The evidence also
bwe and the number of country-specific suggests the steady influence of the
resolutions adopted by the African Master of Laws (LLM) in Human
Commission regarding that country. Rights and Democratisation in Africa
(HRDA) programme of the Centre for
The most important factor that has Human Rights at the University of
contributed to the limited yet significant Pretoria on the promotion and protec-
impact of the African Charter in Nigeria tion of human rights at the domestic
is its direct domestication. In South level.
Africa, it is the rich network of civil
society organisations, academic institu- In the various chapters, contributors
tions and research centres. In Côte agree that the most important require-
d’Ivoire, the 42nd ordinary session of ment for improving the impact of the
the African Commission which was African Charter and the Maputo Proto-
held in that country, coupled with the col is increased awareness at the domes-
African Commission’s concluding tic level. The chapters point out that
observations and special mechanisms, awareness should be aimed not only at
are what have left an imprint on the sensitising policy makers, legislators,
country’s human rights landscape. judges, civil society and members of the
public about the provisions of these
Findings from this study also instruments but also on how these provi-
support the views of Hill and Neumayer
that the least contentious human rights
provisions are the ones most likely to be
84 See Hill (n 13 above); Neumayer (n 12 above).
14 Introduction

sions may be used to solve human rights cated international treaties before
problems in specific contexts. domestic courts.
• South Africa submitted an interpre-
4 Best practices and areas of tive declaration on the Maputo Proto-
col which requires that the South
concern African Bill of Rights shall not be
interpreted to offer any less favoura-
The following practices were found to ble protection of human rights than
the Maputo Protocol.
have greatly enhanced the impact of the
African Charter and Maputo Protocol: • The government of Uganda ensures
equal or fair representation of women
• In 1983, Nigeria directly domesti- in its delegation during its presenta-
cated the African Charter through tion of state reports before the Afri-
national legislation entitled ‘the Afri- can Commission.
can Charter on Human and Peoples’ • In Zimbabwe, women have a defined
Rights (Enforcement and Ratifica- quota of 50 per cent in the composi-
tion) Act’. The author of the chapter tion of constitutional commissions
on Nigeria noted that this is the most and other government bodies,
important factor for the relatively although it is unclear if government
high impact of the African Charter in abides by this requirement at all levels
Nigeria. of governance.
• Kenya, though traditionally a dualist • In Kenya, the President is required by
state, amended its constitutional the Constitution to submit, every
instruments to make duly ratified year, a report for debate on how the
international treaties directly applica- government is meeting its obligations
ble within Kenya with or without with regard to international treaties.
legislative domestication.
• The African Charter, Maputo Proto- The following are noteworthy areas of
col and other duly ratified interna- concern around the impact of the Afri-
tional treaties have a higher status can Charter and Maputo Protocol in the
than the Constitution in Côte countries under study:
d’Ivoire. In Ethiopia, international
human rights treaties, including the • In Ethiopia, the government requires
African Charter and the Maputo civil society organisations working in
Protocol, have a status higher than the area of human rights to raise 90
ordinary legislation, and are equal in per cent of their funding from local
status to the Constitution. sources or face risk of legal conse-
• The government of Tanzania usually quences. This law promotes double
conducts ‘dissemination workshops’ standards and violates several human
after receiving copies of concluding rights principles. Both the govern-
observations of the African Commis- ment of Ethiopia and the African
sion. Union rely heavily on foreign aid to
• The Ethiopian Human Rights finance expenditure. Arguably, Afri-
Commission has translated the Afri- can governments lack the moral
can Charter into the major local authority to deny civil society organi-
language (Amharic) and dissemi- sations access to external funding,
nated copies to the public. Similarly, since governments also rely heavily
the Maputo Protocol was translated on foreign donors.
into indigenous languages in Nigeria • The Gambia and Lesotho are yet to
prior to ratification. set up dedicated national human
• The highest courts in Ghana, Lesotho rights institutions, despite repeated
and several other dualist states allow calls by the African Commission and
and support the use of undomesti- other international human rights
 Impact of the African Charter and the Maputo Protocol in selected African states 15

mechanisms requesting them to do instruments have not had a uniform

so. effect in all states. The effects of these
• The Republic of Mauritius is yet to two treaties have largely been condition-
ratify the Maputo Protocol and there al on a combination of three factors:
is no defined structure of government
state level characteristics, the nature of
responsible for coordinating
responses and reporting obligations the treaty and the level of interaction,
to international human rights bodies persuasion and pressure applied on
in that country. states by domestic and international
• No civil society organisations based compliance partnerships.
in Mauritius or Sierra Leone have
observer status with the African In order to improve the impact of
Commission. the African Charter and the Maputo
• Courts in several Francophone coun- Protocol in the selected states and across
tries such as Cameroon, Côte d’Ivoire Africa more generally, it is recommend-
and Burkina Faso have to date never
ed that the focus should be on increas-
cited or made reference to the African
Charter, Maputo Protocol or any ing awareness about these instruments
other regional human rights treaty in and how they may be used to solve
Africa. human rights problems in specific
• An example was given in the chapter domestic contexts. There is empirical
on Zimbabwe that the Maputo Proto- support for the proposition that the
col was incorrectly cited in the domestic effect of the African Charter
Zimbabwean National Gender Policy
and the Maputo Protocol corresponds to
as ‘Protocol to the 2003 African
Charter on Human and People’s the level of awareness of them at the
Rights on the Rights of Women’. state level. Domestication of human
• A practice was reported in the rights treaties is meaningless if members
Burkina Faso chapter that the Conseil of the public do not have basic informa-
africain et malgache pour l’éducation tion about these instruments. This is the
supérieure (CAMES) does not consider case in most Francophone countries
publications on human rights when
selected for this study where duly rati-
evaluating academics for promotion
and career advancement. This has a fied treaties, including the African Char-
negative implication for academic ter and the Maputo Protocol, are
writing on the African Charter and directly applicable but rarely applied
Maputo Protocol in that country. because of the lack of awareness not
• It is also noted that in a majority of only by ordinary citizens but also policy
the countries, NHRIs are not directly makers, legislators, judges and legal
involved in the implementation of
practitioners.
decisions and concluding observa-
tions of the African Commission. The
African Commission must encourage
NHRIs to include implementation of
the decisions of the African Commis-
sion and African Court in their
thematic focus and programmes.

After a careful review of the evidence

and findings presented in the various
chapters in this book, it is the view of
this author that the African Charter has
had modest yet significant impact in all
the 17 selected states. However, the two
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
BURKINA FASO

Kounkinè Augustin Somé*

1 Introduction Mouvement Burkinabè des Droits de

l’Homme et des Peuples (MBDHP) record-
Burkina Faso has ratified most of the ed that 34 people were killed across the
international treaties on human rights. country, including 21 in Ouagadougou,
The country was amongst the first Afri- seven in Sebba, three in Ouahigouya,
can states to make the declaration two in Bobo-Dioulasso and one in Léo.
(pursuant to article 34(6) of the Protocol Amongst the victims, at least 19 were
to the African Charter on the Establish- shot dead. Unfortunately, at the time of
ment of an African Court on Human this report, no clear and credible inves-
and Peoples’ Rights [African Court]), tigation had yet been conducted to
allowing direct access of individuals and establish the exact circumstances of the
NGOs to the African Court. However, deaths and to determine responsibilities.
many challenges remain that impede the
full enjoyment of the rights contained in The transitional institutions estab-
the African Charter and the Maputo lished following the crisis were intended
Protocol. The political crisis that the to facilitate the organisation of credible
country experienced in 2014 was the elections scheduled for October 2015.
consequence of multifaceted social The revised electoral law excludes all
discontent. Although many claims relat- those who supported the unlawful
ed to the equitable distribution of project to change the Constitution.1
resources, unemployment, access to This has been contested by political
health and housing were raised, the parties close to the former regime,
main objective of the social unrest was including before the ECOWAS Court of
to oppose the change in the Constitution Justice, which found that the general
to allow President Compaoré to remain nature of this provision may lead to
in office after 27 years of reign. Several discrimination.2
violations of human rights occurred
Nonetheless, both civil and political
during the October 2014 uprising. The
rights and economic, social and cultural

1 Art 166 of the amended Electoral Code.

2 Judgment ECW/CCJ/JUG/16/15 http://
* LLM HRDA 2004; Coordinator, Citizens www.courtecowas.org/site2012/pdf_files/de
Information and Documentation Centre cisions/judgements/2015/Aff_CDP_c_l_Et
(CIDOC), Ouagadougou; asomes@yahoo.fr at_du_Burkina.pdf (accessed 6 September
infocidoc@yahoo.fr 2015).

17
18 Burkina Faso

rights (ESCR) are guaranteed in the However, the African Charter was
current Constitution. Title I of the ratified by the Executive alone in 1984.
Constitution, comprised of two chapters At that time, there was no Parliament as
and 30 articles, is dedicated to funda- the country was under a revolutionary
mental rights and duties. Although it is military regime. The instruments of rati-
clear that economic, social and cultural fication of the Maputo Protocol were
rights (ESCR), such as the right to prop- deposited on 21 September 2006 accord-
erty (article 15) can be claimed before a ing to the process explained above. The
court, not all ESCR are justiciable. ratification process for the Protocol was
as follows: the Ministry in charge of the
With regard to the status of promotion of human rights submitted a
women's rights, progress continues to be draft law to Cabinet and after endorse-
noted in policy and legislative reform. ment, the draft was tabled before Parlia-
Still, women continue to be victims of ment for adoption into law. Act 021-
violence and discrimination. Child 2005/AN of 19 May 2005 authorising
marriage, harmful traditional practices, government to ratify the Maputo Proto-
maternal mortality and weak participa- col was adopted on 19 May 2005, prom-
tion in political processes, among other ulgated through a presidential decree
things, are still daunting challenges to and published in the Official Journal.
the full translation of Charter-based The ratification document was sent to
rights into reality. the African Union Commission by the
Ministry of Foreign Affairs.
2 Ratification of the African
Charter and the Maputo During the presentation of the draft
Protocol bill before the Parliamentary Committee
on Foreign Affairs, the Minister in
charge of the promotion of women
Burkina Faso ratified the African Char-
contended that ‘given the issues covered
ter on 6 July 1984 and the Maputo
by the Maputo Protocol, it is without
Protocol on 9 June 2006. Both the
any doubt the most suitable fundamen-
Legislature and the Executive play a
tal legal instrument to the context of
role in the process of ratification of
African women’.4 She explained that its
international agreements. Depending on
the nature of the treaty, the relevant ratification by Burkina Faso is in line
ministerial department initiates a draft with the country’s will and constant
request for ratification, the draft is commitment to promoting women’s
discussed in a Cabinet meeting and rights and would translate the good will
when endorsed, it is passed on to Parlia- of national authorities to promote and
ment for adoption. Article 149 of the protect the rights of women. She
Constitution reads that only Parliament concluded that the ratification of the
can authorise the ratification of an inter- Maputo Protocol will fill the gaps and
national convention. According to the lacunas revealed in the implementation
Constitution, the President negotiates, of national and international human
signs and ratifies international conven- rights instruments already ratified by the
tions.3 country. In the submissions tabled and
defended before Parliament, the Minis-

4 Exposé des motifs presented before Parliament

by the Minister in charge of the promotion of
3 Art 148 of the Constitution. women.
 Impact of the African Charter and the Maputo Protocol in selected African states 19

ter highlighted the value added by the ated by government ministries;

Maputo Protocol and stressed its (b) review and advise on government
progressive nature and how it would policies and strategies on human rights;
help advance women’s rights.5 and (c) provide technical support in the
drafting of Burkina Faso’s state reports
3 Government focal points to human rights mechanisms, including
the UN human rights bodies and the
The Ministry of Justice, Human Rights African Commission.
and Civic Promotion (Ministère de la
In accordance with the country’s
Justice des Droits humains et de la promo-
international human rights obligations,
tion civique – MJDHPC) is the focal point
the CIMDH is also tasked to: review
for interaction on the Charter and the
and advise on any dispute involving the
Protocol. It has a specific Directorate
state; contribute to the introduction of
tasked with ensuring follow up on inter-
human rights and international humani-
national conventions: the Directorate in
tarian law in the formal and non-formal
charge of following up international agree-
education system; and disseminate
ments. When it comes to the Protocol,
human rights and international humani-
the MJDHPC is assisted and supported
tarian law culture amongst government
by other ministerial departments,
structures, including the national armed
including in particular the Ministry of
forces.
Women and Gender Promotion.
Besides the CIMDH, there are
In general, the MJDHPC, being a
human rights focal points in each minis-
cross-cutting structure for this matter,
try. Nonetheless, the responsibility of
collaborates with other departments at
implementation of human rights is
different levels. The Ministry hosts the
disputed by several line ministries with
Inter-ministerial Committee on Human
reference to the subject matters they
Rights and International Humanitarian
cover.
Law, the Comité Interministériel des droits
humains et du droit international humani- The focal points communicate with
taire (CIMDH).6 It is a technical consul- the African Commission through diplo-
tative body that supports and advises matic channels. The Ministry of Foreign
government on policies and strategies Affairs and Regional Integration is
for the promotion, protection and therefore a very key transit point. Inter-
respect of human rights and internation- viewed stakeholders feel that this way of
al humanitarian law. The CIMDH is communicating with the Commission
tasked to amongst other things: (a) facil- could be quite burdensome. Some
itate coordination of human rights commented that direct informal
promotion and protection activities initi- contacts, including through emails are
increasingly being established for the
5 As above. purposes of work, but diplomatic chan-
6 The inter-ministerial committee on human nels remain favoured.
rights and international humanitarian law
(CIMDH) was established by the décret
2005-100/PRES/PM/MPDH du 23 février
2005 portant création, attributions, 4 Domestication or incorporation
composition et fonctionnement du Comité
interministériel des droits humains et du
droit international humanitaire and later on Article 151 of the Constitution estab-
amended by the décret 2008-740/PRES/ lished the principle of the supremacy of
PM/MPDH du 17 novembre 2008.
20 Burkina Faso

international law provisions to those of specific domestication requirements.

national law, provided that they are The African Charter was directly incor-
applied by the other party. In the porated and forms an integral part of the
Burkinabe legal system, duly ratified Constitution.7 The Preamble of the
international conventions are directly Constitution refers expressly to the
applicable when they directly recognise Charter, and the Bill of Rights contained
the rights of citizens. In cases of conflict, almost all the Charter’s rights. However,
international law is considered superior. there is no specific legislation with the
Upon publication of the instruments of intention to give effect to the Charter or
ratification, the provisions of interna- the Protocol. A few specific Acts refer to
tional law can be invoked by the judge the Charter. Notwithstanding, there are
as well as by third parties. Thus, the national laws which by their content,
provisions of the Maputo Protocol can are a translation of a combination of
be invoked directly by individuals before various UN and regional human rights
national courts. Reliance no longer instruments. These include among
requires a particular incorporation act or others the law on reproductive health
law. (21 December 2005); a law on the fight
against HIV/AIDS and the protection
Paragraph 8 of the Preamble to the of the rights of persons living with HIV/
Constitution reaffirms ‘solemnly our Aids (20 May 2008); and the law insti-
engagement vis-à-vis the African charter tuting quotas for legislative and munici-
of human and peoples’ rights of 1981’. pal elections in Burkina Faso (16 April
With this, the Charter is an integral part 2009).
of the Constitution and this confers a
constitutional value to its provisions. As 5 Legislative reform and adoption
such, they are normally directly applica-
ble. The Maputo Protocol, which was
The African Charter was ratified in 1984
ratified in 2006 as explained in the
when the country was under military
section below, remains a treaty and
rule, and therefore had no constitution.
therefore is considered at the level of
For the Maputo Protocol, a compatibili-
legislation under the Constitution.
ty test was conducted before its ratifica-
Almost all the rights provided for by the
tion in 2006. In the first instance, a legal
Charter are included in the Bill of
opinion was sought from the Constitu-
Rights, although only civil and political
tional Council as to whether the Mapu-
rights have direct application while
to Protocol is in conformity with the
economic, social and cultural rights are
Constitution. The answer was positive.8
to be promoted, in the sense of their
This paved the way for the ratification
progressive realisation. In fact, the Char-
process to proceed. Furthermore, and in
ter was ratified at a time when Burkina
Faso had no constitution. The Bill of
Rights that followed included the Char- 7 Paragraph 8 of the Preamble of the
ter rights. The Charter has influenced Constitution reads that ‘reaffirming solemnly
our engagement vis-à-vis the African charter
the new Constitution and the Bill of of human and peoples’ rights of 1981’. With
Rights contained therein. this, the Charter is an integral part of the
Constitution and this confers a constitutional
legal value to its provisions; they are
Burkina Faso, like most civil law normally directly applicable and opposable
to government.
traditions, has a monist approach to 8 Avis juridique no 2006-001/CC du 24/02/
international treaties. There are no 2006 sur la conformité à la Constitution du
02 juin 1991, du Protocole à la Charte
 Impact of the African Charter and the Maputo Protocol in selected African states 21

general, a project was initiated by the tion has been incorporated. The Pream-
Ministry in charge of the promotion of ble of the Constitution now recognises
human rights to align national legisla- gender promotion as a factor for the
tion with international norms with realisation of gender equality as a right
regard to civil and political rights. and gender promotion has since became
a constitutional norm.9
Several pieces of legislation have
been amended or adopted since ratifica- 6 Policy reform and adoption
tion of the Maputo Protocol with a view
to take women rights into account.
Several policies and strategies have been
These include:
developed with a view to taking
(a) Law 033-2012/AN of 11 June 2012 on women’s rights into account and which
the review of the Constitution; can be considered as aiming to give
(b) Law 0034-2009/AN of 24 July 2009 on effect to the Maputo Protocol. These
rural lands: It gives men and women include:
the same rights to access and
enjoyment of land; (a) The National Policy for the Promotion
of Human Rights and Civic Education
(c) Law 010-2009/AN of 16 April 2009
(PNDHPC) 2013-2022 is regarded as a
instituting quotas in the parliamentary
reference document which explains the
and municipal elections, intended to
foundations of government action in
promote women’s political rights. This
the area of human rights and civic
law requires all political parties to
promotion. It envisions contributing to
include at least 30 per cent of either sex
the consolidation of the rule of law for
on the list of candidates for legislative
better enjoyment of human rights in
and local elections. Failure to abide by
the service of peace, civism and
this rule will result in the said party
sustainable development of Burkina
losing half of the public funding for
Faso by 2022.10 The policy was
electoral campaign activities. The
adopted through a decree and
important role played by the African
published in the Official Gazette of
Commission in the adoption of this
Burkina Faso.11
provision on quotas should also be
highlighted; the Commission has sent (b) Special Fund for women’s initiatives:
advocacy letters to several state with regard to women’s access to
authorities requesting them to adopt or funding and loans, government has
facilitate the adoption of legislation on established a special Fund to support
quotas; women’s initiatives as well as a special
job creation programme to fund
(d) Law 029-2008/AN of 15 May 2008 on
women’s activities.
the fight against human trafficking and
similar practices, which provides for (c) National Gender Policy: the adoption
particularly severe sanctions when the of the National Gender Policy ‘Politique
victim of trafficking is a vulnerable Nationale Genre’ in July 2009.12
person (such as a pregnant woman or
child) or when it has resulted in
mutilation or permanent infirmity. 9 See the Preamble and arts 101 of the loi 033-
2012/AN du 11 juin 2012 portant révision
de la Constitution
More so, the Constitution was reviewed 10 http://www.ilo.org/dyn/natlex/docs/SERI
in 2012 and the issue of gender promo- AL/97958/116409/F1316129139/BFA-979
58.pdf (accessed 21 November 2015).
11 Journal Officiel, 2013-06-06, 23.
12 Ministry of Women and gender promotion
8 africaine des droits de l’homme et des website http://www.mpf.gov.bf/index.php/
peoples relative aux droits de la femme en faqs/1-latest/197-ministere-de-la-promotion-
Afrique, adopté par la Conférence des Chefs de-la-femme-et-du-genre-le-guichet-special-l-
d’Etat et de Gouvernement de l’Union appui-a-lentreprenariat-feminin-r-expliqueau
Africaine le 11 juillet 2003 à Maputo. x-jeunes-filles (accessed 21 November 2015).
22 Burkina Faso

(d) FGM Policy: the adoption in 2008 of 7 Court judgments

the Zero tolerance policy on female
genital mutilations for an initial period
of 2009-2013. In general, domestic courts tend to refer
predominantly to national legislation,
(e) The Accelerated growth and sustain-
able development Strategy (SCADD) and in this sense, judges in Burkina
was adopted in 2011. In this document, Faso, like in most civil law systems, are
the government had planned strategic strongly attached to the local law. To
actions to take into account the specific date, the African Charter has not
rights of women mentioned in the
expressly been mentioned in any judg-
SCADD. The country’s development
plan was reviewed in 2015 with human ment by a domestic court. The only
rights having a central place. mention of the Protocol is in the Consti-
tutional Court 2006 legal opinion,13
Other documents that have been adopt- confirming that the Protocol was in
ed to boost the objectives of the conformity with the Constitution.
SCADD include: the National Policy of
Human Rights and Civic Promotion; To create more awareness and
the National Policy on Health; the educate the legal profession on the use
National Policy on Employment; the of international human rights instru-
National Policy on Finance; and the ments, the Ministry of Justice is work-
Program for the Strategic Development ing to sensitise judges and other actors
of Education, amongst others. All these on best practices in the use of interna-
policies and programmes have been tional conventions in domestic courts.
developed for the realisation of women’s This work is supported by civil society
rights and the welfare of Burkina organisations.
people.
8 Awareness and use by civil
In general, the government of Burki- society
na is doing its best to improve the condi-
tions and enjoyment of women’s legal
In general, very few NGOs in Burkina
rights. Although the above mentioned
Faso are aware of or sensitised on the
policies are not explicitly said to give
Maputo Protocol and the Charter.
effect to the African Charter and the
Amongst them, the Burkinabé Human
Maputo Protocol, they contribute
and Peoples’ Rights Movement
tremendously to the advancement of
(MBDHP) regularly monitors and advo-
women’s legal rights, including those
cates for the actual implementation of
provided for in the Charter and Maputo
the Charter. The MBDHP, which has
Protocol. Besides the Action Plan for
observer status with the African
the Promotion of Human Rights and
Commission, frequently submits shad-
Civic Education, the Minister of Justice
ow reports. It also issues an annual
and Human Rights has also developed a
report on the human rights situation in
methodology note to guide the elabora-
the country, using the Charter as a basis
tion of sectoral policies with the view to
ensuring that they are human rights-
based. This was acknowledged by the 13 Avis juridique 2006-001/CC du 24/02/2006
sur la conformité à la Constitution du 02 juin
Human Rights Council during Burkina 1991, du Protocole à la Charte africaine des
Faso’s review at the second cycle of the droits de l’homme et des peoples relative aux
droits de la femme en Afrique, adopté par la
UPR. Conférence des Chefs d’Etat et de
Gouvernement de l’Union Africaine le 11
juillet 2003 à Maputo.
 Impact of the African Charter and the Maputo Protocol in selected African states 23

for review. Women’s rights groups such holder’s obligations.16 On the occasion
as the Female Lawyers Association of the periodic report of Burkina Faso
(Association des femmes juristes du Burkina reviewed at the 49th ordinary session of
Faso) also use the Maputo Protocol, the African Commission held in Banjul,
mostly in their advocacy work and for The Gambia, only FIACAT and ACAT
their training activities. The Citizen Burkina presented a shadow report. At
Information and Documentation Center the 53rd ordinary session of the
(Cidoc)14 trained civil society organisa- Commission, the MBDHP made an oral
tions on the rights contained in the intervention concerning the human
Maputo Protocol and how to use the rights situation in Burkina Faso.
instrument for advocacy and monitoring
activities. It is observed that local NGOs are
much more aware of the United Nations
During a sensitisation mission to human rights mechanisms than those of
Burkina Faso in March 2006, the Afri- the African Union. For instance, there
can Commission’s delegation called on are more shadow reports submitted to
civil society and NGOs in particular to the UN treaty bodies on Burkina Faso
further consolidate their activities in the than to treaty bodies established under
area of sensitisation of the population the African regional human rights
on human rights issues through the system.
promotion of the African Charter.
9 Awareness and use by lawyers
National NGOs which have obser- and judicial officers
ver status with the African Commission
include: the Mouvement Burkinabé des
Many lawyers in Burkina have little
Droits de l'Homme et des Peuples
awareness of African human rights
(MBDHP); the Union Interafricaine des
instruments, including the Charter and
Droits de l'Homme; the Association de
the Maputo Protocol, and therefore
Protection et de Sauvegarde de
their effective use is still developing. In
L'Enfance en Danger; the Association
conducting this research, we could not
d'Appui et d'Eveil ‘PUGSADA’
find instances where lawyers have used
(ADEP); the Association des Femmes
the Charter or Protocol in their submis-
Juristes du Burkina Faso; the Antenne
sions or in any other way before domes-
Social Alerte Burkina (ASAB); the
tic courts. The only instances where
Association Burkinabè pour la Survie de
provisions of regional human rights
l’Enfance (ABSE); the Centre pour la
mechanisms are invoked are when they
Gouvernance Démocratique (CGD);
are used to defend a case before a
and the Fondation pour l'étude et la
regional court such as the ECOWAS
promotion des droits humains en
Afrique (FEPDHA).15

Not all of the organisations listed

above comply with their observer status 16 The Commission started granting observer
status to NGOs in 1988. It took a decision at
its 11th Session requiring all NGOs with
observer status to submit their activity
reports to the African Commission at least
once every two years – see http://www.
14 www.centrecitoyen.net (accessed 21 Novem- achpr.org/sessions/24th/resolutions/30/
ber 2015). (accessed 13 January 2016). Yet, most
15 http://www.achpr.org/network/ngo/ NGO's in Burkino Faso with observer status
(accessed 6 September 2015). have yet to comply with this requirement.
24 Burkina Faso

Court of Justice. In Decision 2015-021/ ter and Maputo Protocol, is taught in

CC/EL,17 the Constitutional Council of this course.
Burkina Faso commented on the recent
decision of the ECOWAS Court of However, and within the UN-
Justice regarding the compatibility of backed world programme for human
the electoral code with regional human rights education,18 government has
rights instruments. introduced human rights education in
the curricula of all branches of educa-
Talking to some of the legal practi- tional structures, including at the
tioners pursuant to this study, they ENAM, Universities and high
argued that national laws are compre- schools.19 Training modules and
hensive enough to provide them with programmes are also developed for
arguments to defend their cases. Howev- state-run professional education institu-
er, most of them admitted that they tions and training centres.20
have little or no knowledge of the
regional instruments. The Ministry of Apart from some articles, no publi-
Justice is organising training to enhance cation has been registered specifically
the promotion of the Charter in law concerning the African Charter and the
societies and to increase the knowledge Maputo Protocol in Burkina Faso.
of these important instruments. Some Academic practitioners explained that
NGOs are also intervening on this this is due to the system put in place by
matter. the Conseil africain et malgache pour
l’éducation supérieure (CAMES), which
10 Higher education and academic does not consider publications on
writing human rights when evaluating candi-
dates for promotion. Due to this, some
university professors have limited them-
In general, universities do not sufficient-
selves to theoretical teaching with
ly take into account the issue of human
almost no publication on the topic.
rights in their curricula. Even when this
However, Yarga Larba and Professor
is dealt with, it remains very succinct.
Salif Yonaba have written on human
Law schools teach Civil Rights and
rights though not with a specific focus
Human Rights Law in the third year.
on the African Charter and the Maputo
This is where the African human rights
Protocol. Law students have equally
system is taught. In addition, private
written their dissertations on various
universities began offering LLM courses
human rights issues, including on the
on human rights studies.
African human rights system. When
Human rights law is also taught at talking about the Charter, the views
the National School of Administration generally expressed are that it is an Afri-
(Ecole Nationale d’Administration et de can instrument which is based on Afri-
Magistrature – ENAM) to public officers, can values and perspectives.
especially civil servants recruited to
work with the Ministry in charge of
18 http://www.ohchr.org/EN/Issues/Educatio
human rights. The African human rights n/Training/WPHRE/ThirdPhase/Pages/
system, together with the African Char- ThirdPhaseIndex.aspx (accessed 16 Novem-
ber 2015).
19 Burkina Faso report to the African
Commission covering the period of 1998-
17 http://www.zoodomail.com/spip.php?artic 2002.
le10944 (accessed 6 September 2015). 20 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 25

11 National human rights workshops is regarded as an instance of

institutions (NHRIs) involvement in the preparation of state
reports to the African Commission.
Burkina Faso has both a National
Human Rights Commission (NHRC) 12 State reporting
and an Ombudsman Office, known as
the Mediateur du Faso. Both institutions The MJDHPC is the focal point for
are created by Acts of Parliament, but state reporting to international human
the NHRC is considered as the primary rights mechanisms. The Direction du
national human rights institution. The Suivi des Accords Internationaux – DSAI,
Acts establishing both institutions do within the MJDHPC, plays a vital role
not make specific mention of the Afri- in this process. This Ministry is in
can Charter or the Maputo Protocol. charge of monitoring implementation of
the African Charter and the Maputo
The plan of action of the National Protocol. However, it relies on many
Human Rights Commission of Burkina other state ministries in this task,
Faso has outlined several projects aimed through human rights focal points.
at promoting and protecting human
rights. Though the plan does not refer In practice, the state reporting
directly to the Charter or the Protocol, process is as follows: (a) the technical
its implementation will favour the reali- departments of the MJDHPC in collab-
sation of the rights articulated therein. oration with relevant government minis-
The Mediateur du Faso traditionally tries generate the first draft, taking into
strives to ensure respect of the human account initial or previous reports;
rights of the citizenry and its mandate (b) the draft is validated in a workshop
focuses on repairing, through media- with the participation of public struc-
tion, violations that a citizen may have tures as well as human rights-based civil
suffered at the hands of the state. It does society organisations; (c) the validated
not expressly refer to the Charter or the draft is submitted to the CIMDH for
Protocol. review; and (d) the report is tabled for
adoption in a cabinet meeting. This
The NHRC is affiliated to the Afri- cabinet-adopted version will then be
can Commission and therefore submits sent to the relevant human rights mech-
reports to the Commission, but it is not anism through the Ministry of Foreign
engaged in direct follow up of the imple- Affairs and Regional Integration.
mentation of the Commission’s recom-
mendations, decisions or general For instance, for the most recent
comments. The yearly reports of the reports presented to the African
Mediateur du Faso have hardly referred to Commission, the MJDHPC established
the Charter or the Protocol. a committee for the preparation of the
report and a multi-sectoral committee
Both the National Human Rights for the monitoring of the reports draft-
Commission and the Mediateur du Faso ing process. This committee consisted of
participate in the national validation representatives from various ministries
workshops before state reports are (the human rights focal points), institu-
submitted. Apart from that, their opin- tions and civil society organisations.
ions or views are not directly sought. The ministry of women and gender
Their participation in the validation promotion (MPFG) which is in charge
26 Burkina Faso

of the implementation of government (d) Increase the number of Reception

policies for women rights was heavily centres for women victims of
witchcraft accusation and adopt
involved.
specific measures for their protection;
and
So far, Burkina Faso has presented
(e) Facilitate registration procedures and
four state reports. The reports have,
the establishment of supplementary
however, not always been submitted on judgment of birth certificates for non-
time. For instance, the third and fourth reported children.
cumulated periodic report (2011-2015)21
was submitted on 11 May 2015. Though Some actions have been taken to give
it ratified the Maputo Protocol in 2006, effect to these concluding observations.
Burkino Faso has yet to submit a specif- These include:
ic report on the Maputo Protocol.
(a) The continuation of the free prenatal
However, in its May 2015 report on the
care policy for women and child
African Charter, Burkina Faso did immunisation through the acquisition
address implementation of the Maputo of drugs and consumables worth 650
Protocol. million CFA francs;
(b) The adoption of a national plan for the
Government delegations for the elimination of female genital
presentation of the report are usually mutilation in the perspective of a zero
made up of officials from the ministries tolerance policy;
of justice and human rights and those in (c) The establishment of shelters for
charge of women and gender promo- women accused of witchcraft and
excluded from their communities.
tion. The delegations usually demon-
There are 13 reception centres
strate equitable representation of recognised by the Ministry of Social
women. Action and National Solidarity.
Furthermore, government adopted a
Pertinent concluding observations national action plan in 2012 to fight
concerning women’s rights made pursu- against the social exclusion of people
accused of witchcraft; and
ant to the previous report submitted by
Burkino Faso include the following. The (d) The 2012, adoption of a National civil
status strategy covering 2012-2016.
Commission requested the Government
This strategy aims to improve the
of Burkina Faso: performance and efficiency of the
system of registration through
(a) Make family planning programmes computerised registration in all registry
accessible and increase efforts to offices.
reduce maternal and infant mortality;
(b) Implement support measures of the law Furthermore, several pieces of legisla-
on quotas to increase women's tion and policies have been amended or
representation in decision-making adopted to take into consideration some
areas;
of the recommendations made by the
(c) Ensure effective implementation of the African Commission, including the law
law on female genital mutilation and
and quotas for women's political partici-
strengthen measures to eradicate the
practice of female genital mutilation; pation. These legislative and policy initi-
atives may not be specifically taken as a
response to the recommendations but
they contribute to a solid framework on
21 http://www.achpr.org/files/sessions/57th/ women's human rights.
state-reports/3-2011-2015/staterep3.pdf
(accessed 6 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 27

13 Communications of Justice, in its Judgement ECW/CCJ/

JUG/16/15,26 warned Burkina Faso
In total, three cases have been decided against mass exclusion of political oppo-
on Burkina Faso by the AU human nents in the electoral process which may
rights monitoring mechanisms.22 In be a violation of the AU Charter on
communication 204/97, Mouvement Democracy, Elections and Govern-
Burkinabé des Droits de l’Homme et des ance.27
Peuples v Burkina Faso,23 the African
Commission found that Burkina Faso 14 Special mechanism –
was in violation of articles 3, 4, 5, 6, Promotional visits of the
7(1)(d) and 12(2) of the African Charter, African Commission
and recommended that Burkina Faso
heed the legal consequences of such a To date, none of the special mecha-
finding, including by taking specific nisms of the African regional human
measures enumerated by the Commis- rights system have visited the country.
sion. Very little was done, however, to Only two promotional missions of the
implement the decision of the Commis- African Commission were conducted to
sion. In another case, Norbert Zongo v Burkina Faso: one in 2001, and the
Burkina Faso,24 the African Court other in 2007. These promotional
ordered the State of Burkina Faso to missions coincided with the period
resume investigations and prosecute the when Salamata Sawadogo of Burkina
perpetrators of the murder of Norbert Faso was the Chairperson of the African
Zongo and his three companions. It also Commission. Amongst other pertinent
asked the government to compensate recommendations, the government of
the families of the victims.25 Burkina Faso was asked to:
It should be noted that in recent (a) Implement reforms, including in the
months, the interaction of Burkina Faso field of justice and ensure the effective
with the AU and ECOWAS human implementation of commitments made
rights mechanisms has been intensive as part of the quest for solutions to the
problems of human rights violations;
around the application of the AU Char-
ter on Democracy, Elections and (b) Take all necessary measures to combat
illiteracy and poverty affecting the
Governance. In the case Congrès pour la enjoyment of human rights; and
Démocratie et le Progrès (CDP) & Autres v
(c) Take the necessary steps to transform
L’Etat du Burkina, the ECOWAS Court the Secretariat for the Promotion of
Human Rights into a full Ministerial
Department and establish a National
Human Rights Commission of Burkina
Faso.

After this promotional mission, Burkina

Faso created the Ministry of Human

26 http://www.courtecowas.org/site2012/pdf_
22 http://caselaw.ihrda.org/fr/country/burkin files/decisions/judgements/2015/Aff_CDP
a-faso/ (accessed 6 September 2015). _c_l_Etat_du_Burkina.pdf (accessed 6 Sep-
23 http://www.achpr.org/communications/de tember 2015).
cision/204.97/ (accessed 13 January 2016). 27 http://www.au.int/en/sites/default/files/tr
24 Case 013/11, African Court on Human and eaties/7790-file-african_charter_on_democr
Peoples’ Rights. acy_elections_and_governance.pdf (accessed
25 As above. 13 January 2016).
28 Burkina Faso

Rights. However, currently, human women are expected to strengthen

rights are again merged with justice into impact of the Charter and Protocol in
a single ministry. The country has Burkina Faso. Translation of the Afri-
improved the literacy and school enrol- can Charter into local languages and the
ment rates. renewed interest of civil society for the
respect of human rights norms, are
15 Factors that may impede or factors that could further boost impact
enhance the impact of the of the Charter and Protocol in Burkina
African Charter and the African Faso.
Commission Apart from the 19th ordinary
session of the African Commission that
Poverty, ignorance and lack of aware- it hosted from 26 March to 4 April
ness of existing human rights instru- 1986, Burkina Faso has hosted no other
ments and mechanisms, as well as sessions of the African Commission in
insufficient political commitment recent years. Indeed, holding another
impede negatively on the positive session of the Commission in the coun-
impact of the Charter, the Maputo try may help to boost people's under-
Protocol and activities of the African standing of the greater awareness and
Commission in Burkina Faso. With the use of the Charter and its protocols by
popular insurrection of 30-31 October the legal profession.
2014, the situation is changing and
changing fast. Many political and civil To date, only Ms Salamata Sawado-
society actors are conducting sensitisa- go has been a member of the African
tion campaigns in favour of respect for Commission. She chaired the Commis-
human rights and women’s rights in sion from 2003 to 2007. Since then,
particular. After the events of October Burkina Faso has not had another
2014 which led to a change in regime, national serve as a member of the
the different actors are fighting for the Commission. During the chairperson-
revision of some laws in order to ship of Ms Sawadogo, citizens of Burki-
improve women’s political participa- na Faso learned more of the
tion. These actions will contribute to Commission and relevant documenta-
enhanced impact of the African Charter tion and information were provided to
and Maputo Protocol in Burkina Faso. national NGOs. As Chair of the
For instance, a quota was set aside for Commission, she also played a vital
women in the National Transitional advocacy role in the adoption of legisla-
Council (CNT) which serves as legisla- tion allocating gender-based quotas for
tive body. Their participation in the parliamentary and local elections.
CNT has led to pro-women’s rights
reforms being initiated. The role of the media in implemen-
tation of the African Charter and Mapu-
In general, the existing legal and to Protocol is limited. The media cover
institutional frameworks, including the the activities of civil society and publish
human rights commission which enjoys their press releases, but there is no
observer status with the African specific programme developed by the
Commission, and the national commis- press on promotion of the African Char-
sion established to follow up on Burkina ter. Some radio and TV stations hold
Faso’s commitments in favour of debates on women’s rights themes, but
 Impact of the African Charter and the Maputo Protocol in selected African states 29

these are not always clearly linked to the

Charter or the Protocol. It would be
interesting to organise training activities
for the benefit of media practitioners on
use of African instruments for the
protection of human rights.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
CAMEROON

Polycarp Ngufor Forkum*

1 Introduction In Cameroon, there are several insti-

tutions that deal with human rights.
The Preamble of Cameroon's Constitu- These institutions include the Ministries
tion states that ‘the human person, with- of External Relations, Promotion of the
out distinction as to race, religion, sex Family, Social Affairs and Justice and
or belief, possesses inalienable and also the Cameroon National Commis-
sacred rights’ and further that ‘the state sion on Human Rights and Freedoms
shall guarantee all citizens of either sex (NCHRF). As per the decree establish-
the rights and freedoms set forth in the ing the Ministry of Women and the
Preamble of the Constitution’. Articles Promotion of the Family,2 there is an
12 and 13 of Decree 94/199 of October entire directorate for the Promotion and
1994, on the General Status of the the Protection of the Family and the
Public Service, amended by Decree Rights of the Child. Cameroon has
2000/287 of 12 October 2000, specifies acceded to the major international and
that the public service is open, without regional human rights treaties.3
discrimination, to every Cameroonian
fulfilling age requirements. Electoral
eligibility and voting rights are equally
2 Decree 2012/0638 of 21 December 2012 on
guaranteed to every person of Cameroo- the Organisation of the Ministry of Women
nian nationality, without distinction of and the Promotion of the Family.
3 These include : International Covenant on
sex; provided they meet the voting age Civil and Political Rights (Accession 27 June
requirement, which is 20 years in Came- 1984); Optional Protocol to the International
Covenant on Civil and Political Rights
roon.1 The principles of equality and (Accession 27 June 1984); International
non-discrimination are further guaran- Convention on the Elimination of All Forms
of Racial Discrimination (Ratification
teed by article 16 of the Civil Code, arti- 24 June 1971); Convention on the
cle 1 of the Penal Code and article 84 of Elimination of All Forms of Discrimination
against Women (Ratification 23 August
the Labour Code. 1994); Optional Protocol to the Convention
on the Elimination of Discrimination against
Women (Accession 7 January 2005);
Supplementary Convention on the Abolition
* LLM HRDA (Pretoria), Superintendent of of Slavery, the Slave Trade, and Institutions
Police and Head, Human Rights Unit, and Practices Similar to Slavery (Accession
National Advanced Police School, Yaoundé 27 June 1984); Convention for the
– Cameroon/Independent Researcher. Suppression of the Traffic in Persons and of
1 National Commission on Human Rights and the Exploitation of the Prostitution of Others
Freedoms Report on the state of Human Rights (Accession 19 February 1982); Convention
in Cameroon (2009) 73. against Torture and Other Cruel, Inhuman

31
32 Cameroon

Major civil and political rights are spheres of decision making and elective
guaranteed and protected in Cameroon. offices.
Socio-economic rights are justiciable in
spite of governments’ constant justifica- 2 Ratification of the African
tion of compliance difficulties on the Charter and the Maputo
economic situation of the country. Initi- Protocol
atives at the level of protecting women
against FGM and gender-based violence
The Republic of Cameroon signed and
include the draft Code of the Person and
ratified the African Charter on 23 July
the Family, which contains favourable
1987 and 20 June 1989, respectively.
provisions on the rights of women, and
The Maputo Protocol was signed on
provides a major opportunity for gender
25 July 2006, ratified on 13 September
equality and equity. Moreover, the draft
2012 and the instrument of ratification
bill on the Prevention and Punishment
deposited on 28 December 2012.4 In
of Violence on Women and Gender
terms of the Constitution of Cameroon,5
based Discriminations protects women
the executive, through the President of
and establishes legal equality between
the Republic, has the responsibility to
men and women. Also worth mention-
ratify all international treaties. Article
ing is the update of the National Action
43 provides as follows:
Plan to fight Female Genital Mutilation
(FGM) which focuses mainly on sensiti- The President of the Republic shall
sation of both victims and actors of the negotiate and ratify treaties and
phenomenon. Areas of concern for international agreements. Treaties and
women’s rights in Cameroon include international agreements falling within the
area of competence of the Legislative
the promotion of equal and equitable Power as defined in Article 26 above shall
access of women and men, and girls and be submitted to Parliament for
boys to education, training and informa- authorisation to ratify.
tion; the promotion of equal opportuni-
ties between women and men in the On its part, article 44 states the follow-
domain of the economy and employ- ing:
ment; and the increase in the participa-
Where the Constitutional Council finds a
tion and representation of women in the provision of a treaty or of an international
agreement unconstitutional, authorisation
to ratify and the ratification of the said
treaty or agreement shall be deferred until
3 or Degrading Treatment or Punishment the Constitution is amended.
(Accession 19 December 1986); Optional
Protocol to the Convention Against Torture
and Other Cruel, Inhuman or Degrading Further still, article 45 suggests that
Treatment or Punishment (Signature Cameroon is a monist state as it stipu-
15 December 2009); Convention on the
Rights of the Child (Ratification 11 January lates that:
1993); Optional Protocol to the Convention
on the Rights of the Child on the
involvement of children in armed conflicts Duly approved or ratified treaties and
(Ratification 4 February 2013); Convention international agreements shall, following
concerning the Prohibition and Immediate their publication, override national laws,
Action for the Elimination of the Worst
Forms of Child Labour (Ratification 5 June
2002); Convention relating to the Status of
Refugees (succession 23 October 1961);
African Charter on Human and Peoples' 4 Decree 2009/143 of 28 May 2009.
Rights (Ratification 20 June 1989); and 5 Constitution of the Republic of Cameroon,
African Charter on the Rights and Welfare of Law 96-06 of 18 January 1996 amending the
the Child (Ratification 5 September 1997). Constitution of 2 June 1972.
 Impact of the African Charter and the Maputo Protocol in selected African states 33

provided the other party implements the effect to the fundamental rights and free-
said treaty or agreement. doms spelt out in the Universal Declara-
tion on Human Rights (UDHR), the
The organ in charge of implementa-
African Charter and other ratified inter-
tion of the African Charter is the Sub-
national treaties. The 1996 Constitution
Directorate of NEPAD at the Ministry
limits itself to, in the Preamble, enumer-
of External Relations. Regarding the
ating human rights such as the rights to
Maputo Protocol, there is no specific
life, physical and moral integrity and to
organ in charge of implementation in
humane treatment; the right to freedom
Cameroon. However, the government
and security; the right to education; the
has created an institutional framework
protection of minorities; the rights of
that protects and promotes the rights of
indigenous populations in accordance
women and girls. In 1975, the Ministry
with the law; freedom of movement;
of Social Affairs was created and this
privacy; the right not to be unduly pros-
later became the Ministry of Women
ecuted, arrested or detained; the right to
Affairs, and then the Ministry of Promo-
a fair hearing before the courts; the right
tion of Women and the Family and
to presumption of innocence; the right
today exists as the Ministry of Women
not to be harassed on grounds of one’s
Empowerment and the Family. The
origin, religious, philosophical or politi-
mandate of the Ministry is to put in
cal opinions or beliefs, freedom of reli-
place measures aimed at respect for the
gion and worship; freedom of
rights of women in Cameroon, the elim-
communication, of expression, of the
ination of all forms of discrimination
press, of assembly, of association, and of
against women and the promotion of
trade unionism, as well as the right to
equality in political, economic, social
strike; the right to a healthy environ-
and cultural life.6
ment; and the obligation to work.
The Ministry is mandated to study
Article 65 clearly states that the
and propose strategies and measures
Preamble shall be part and parcel of the
aimed at reinforcing the promotion and
Constitution. Therefore, fundamental
protection of the rights of the child so as
rights mentioned in the Preamble as per
to take into account the definition of
article 45 have primacy over every
woman given by the Maputo Protocol
domestic law. It is the duty of lawmak-
which is child inclusive. In this context,
ers to ensure that, prior to ratification,
girls are victims of for example forced
no provisions of an international
marriages, sexual abuse and discrimina-
convention conflict with existing nation-
tion in educational opportunities.7
al laws. The Parliament of Cameroon
neither made reservations while ratify-
3 Domestication or incorporation ing the Maputo Protocol nor modified
domestic laws before ratification.
There is no separate section in the However, the adoption in 2010 of a
Constitution that could be referred to as National Plan of Action for the Elimina-
a bill of rights. The revised Constitution tion of Female Genital Mutilation in
of 1996 (1996 Constitution) gives full Cameroon is a genuine example of an
explicit measure adopted to give effect
6 Decree 2011/408 of 9 December 2011
organising the government.
7 Report by the Ministry of Justice on Human
Rights in Cameroon in 2012 (2013) 284.
34 Cameroon

to the African Charter and the Maputo The draft Code of the Person and
Protocol.8 the Family, which contains favourable
provisions on the rights and aspirations
4 Legislative reform or adoption of women, provides a major opportunity
for gender equality and equity. The Bill
There is no available information about provides amongst other things that:
a compatibility study of domestic law dowry and gifts cannot be returned;11
with the African Charter that was spouses owe each other mutual love,
undertaken before its ratification. respect, fidelity, help and assistance, and
Though a monist state, Cameroon does in the case of polygamy, each wife has
not have a real problem in matters of the right to equal treatment in relation
domestication as treaty ratification to other wives;12 each spouse has free-
cannot occur without Parliament’s dom to work without obtaining the
authorisation,9 which process should consent of the other;13 in case of disso-
ensure that there is no conflict between lution of a marriage, the wife is entitled
a treaty proposed for ratification and the to her share of the marriage property
Constitution. The compatibility test is before the husband;14 and in cases of
by way of consulting the Foreign Affairs polygamy, all the widows have the right
Committee of the National Assembly to inheritance shared between them in
which has the duty to control the consti- proportion to the number of years in
tutionality of international treaties and marriage with the deceased.15
agreements. There is no particular law
that was adopted to facilitate implemen- In addition, the draft bill on The
tation of the African Charter or Maputo Prevention and Punishment of Violence
Protocol. on Women and Gender based Discrimi-
nations, protects women and establish
However, the government says that legal equality between men and
in keeping with international human women.16 The content of the right to
rights law, the Maputo Protocol is in health has been updated as per the
conformity with the national law in Maputo Protocol by highlighting the
force by reaffirming the traditional civil, right of women to control reproductive
political, economic, social and cultural functions and more specifically through
rights of women. Some of the rights recognition of a legal right to medical
have been consolidated while others abortion.17
reinforced with the aim of wiping out
gender inequality in family manage- Finally of importance is the creation
ment, institutionalisation of political by Order 081/CAB/PMd of 15 April
equality, greater involvement of women 2011 of an inter-ministerial monitoring
in decision-making processes and the
drawing up and implementation of 11 Draft Code of the Person and the Family,
development programmes.10 sec 215.
12 Draft Code of the Person and the Family,
sec 234(3).
13 Draft Code of the Person and the Family,
sec 240.
14 Draft Code of the Person and the Family,
8 National Commission on Human Rights and sec 459(2).
Freedoms Report on the state of Human Rights 15 Draft Code of the Person and the Family,
in Cameroon (2012) 69. sec 545(2).
9 Art 43 of the Constitution. 16 Report of the Ministry of Justice 2005 (2006)
10 Report by the Ministry of Justice on Human 252.
Rights in Cameroon in 2009. 17 Penal Code of Cameroon, sec 339.
 Impact of the African Charter and the Maputo Protocol in selected African states 35

committee for the implementation of stakeholders to ensure their effective

international and regional human rights implementation. Significant progress
promotion and protection mechanisms has been made towards the promotion
including the African Commission. This and protection of the rights of vulnera-
inter-ministerial Committee, which ble classes although much is still to be
reports to the Prime Minister, is vested done.20
with the power to draw up a list of the
different cases before these bodies, Also worth mentioning is a three
propose ways of addressing the recom- sector National Gender Policy set up in
mendations and/or decisions of these 2012 by government, with the support
bodies, ensure the implementation of of GTZ and SNV. This policy concerns
validated proposals, brainstorm on the the promotion of equal and equitable
possibility of reducing or avoiding situa- access of women and men, girls and
tions where the government is blamed in boys to education, training and informa-
cases investigated by these bodies and tion; the promotion of equal opportuni-
encourage and oversee training schemes ties between women and men in the
relating to the promotion and protection domain of the economy and employ-
of human rights.18 ment; and the increase in participation
and representation of women in the
5 Policy reform or formulation spheres of decision making and elective
offices. This invaluably led to lofty initi-
atives. More than ever before, gender
The Ministry of Women’s Empower-
equality is considered to require
ment and the Family has carried out
women's access to elective posts as in
several actions for the promotion of
the Electoral Code which includes a
women’s rights which resulted in an
gender provision in the electoral
update of the National Action Plan to
process.21 The Electoral Code states
fight Female Genital Mutilation (FGM)
which focusses mainly on sensitisation that for the election of parliamentarians
of both victims and actors of the to the National Assembly, municipal
phenomenon; calling on opinion leaders counsellors and senators, ‘each list shall
and public authorities on the issue; take into consideration the various soci-
multi-form support to the actors and ological components of the constituency
their socio-professional reconversion; concerned. It shall also take into consid-
and the psychological management of eration gender aspects’.22
victims.19 This has been followed up by
The United Nations Secretary
a series of activities and events.
General initiated a campaign known as
The government admits that the Africa Unite to end violence against
promotion and protection of the rights women and the girl child in Cameroon
of women according to the norms estab- in 2013.23 Efforts to improve the living
lished under the Maputo Protocol is a conditions of women are discussed in
progressive process that calls on all
20 Report of the Ministry of Justice (n 16 above)
18 Fifty-third ordinary session of the African 287.
Commission Third Periodic Report of Cameroon 21 Law 2012/001 of 19 April 2012 relating to
within the framework of the African Charter on the Electoral Code.
Human and Peoples’ Rights Banjul, 9 to 24 22 Electoral Code (n 21 above) art 151(3).
April 2013. 23 National Commission on Human Rights and
19 Report of the Ministry of Justice (n 16 above) Freedoms Report on the state of Human Rights
284. in Cameroon (2013) 55.
36 Cameroon

framework documents for Cameroon’s excess reproductive rights. In other words,

development, including most notably, this Article is an open door legalizing
abortion in Africa; we condemn it … This
the Poverty Reduction Strategy Paper,
law is repugnant to the Cameroon law
which is in line with the Millennium which prohibits abortion and its
Development Goals (MDGs).24 legalisation.26

Generally, to ensure better incorpo- In a press conference on 23 September

ration of the recommendation on the 2009 and carried by Cameroon Tribune
need to take measures for the total and of 24 September 2009, the Minister of
effective implementation of the African Women’s Empowerment and the Fami-
Union (AU) Solemn Declaration on ly explained why Cameroon ratified the
Gender Equality on the one hand, and Maputo Protocol. She declared:
the need to formulate a policy on gender
representation in positions of responsi- The Maputo Protocol is in line with the
Head of State’s blueprint project for the
bility on the other, it must be under-
society and, consequently, with the policy
scored that though the 50 per cent quota orientations thereto. Its ratification is a
prescribed by the African Commission further indicator of the continuous
has not yet been achieved, initiatives harmony between the national policy and
taken by the government in this regard the development directives of the
international community.27
must be noted. These initiatives include,
amongst others, an overall brainstorm-
ing on the status of the woman in 6 Court judgments
Cameroon. Thus, a National Gender
Policy (NGP) has been formulated, the In the famous Cameroonian case of
vision of which is consistent with the Immaculate Vefonge v Sammuel Lyonga
general vision of Cameroon for 2035. It Yukpe, the Court of Appeal of Buea
seeks to guarantee the enjoyment of the ruled to sustain a Bakweri custom
same rights by men and women includ- whereby a husband is forbidden to send
ing equitable and equal participation in away a nursing mother from the matri-
the development of the country.25 monial home or worse still contemplate
divorce proceedings against her.28
The developments described above
have been in spite of condemnation by Furthermore, the NCHRF regis-
the Catholic Church. At the 34th gener- tered some cases in which the African
al assembly of the National Episcopal Charter was violated.29
Conference of Cameroon, the Bishops
For example:
of Cameroon adopted and published, on
27 June 2009, a Declaration which in • Nzecke Marie v Ngo Etogo Apollinaire in
substance states that the Church disap- which on 23 January 2012, the
proves the will of the law to protect NCHRF received a report by the Ngo
women against all forms of social injus- Etogo family denouncing the violation
tice and abuse. The Conference stated: of physical integrity suffered by Ms
Nzecke Marie, on the part of Mr Etogo
Article 14 of the Maputo Protocol really
endangers life at birth by granting women 26 Le jour 484 of 13 July 2009 10.
27 Cameroon Tribune No 243 of 24 September
2009 9.
24 National Commission on Human Rights and 28 National Commission on Human Rights and
Freedoms (n 23 above) 73. Freedoms (n 23 above) 104.
25 Third Periodic Report of Cameroon (n 18 29 National Commission on Human Rights and
above) para 32. Freedoms (n 23 above) 67-69.
 Impact of the African Charter and the Maputo Protocol in selected African states 37

Appollinaire, her father, who inflicted respect to article 14 of the Protocol on

burns on her; health and reproductive rights. How-
• Ms Otteh Ernestine Ndam, in which a ever, following the Bishops’ Resolution,
teacher in a government primary a protest was held in the Douala Archdi-
school in Yaoundé filed a report to the
ocese.31
NCHRF to denounce the physical,
moral and psychological abuse she
suffered regularly at the hands of her Article 14(2)(c) of the Maputo
husband, alongside his failure to Protocol on health and reproductive
contribute in any way to running of the rights, often regarded as a bone of
household; and contention, calls on governments to
• Ms Ewane Njombo Dora Claire, widow of
late Ewane Nnoko who died in a road … protect the reproductive rights of
accident in 2002 in Lagos (Nigeria), women by authorising medical abortion in
filed a report to the NCHRF to cases of sexual assault, rape, incest, and
denounce the violation of her right to where the continued pregnancy endangers
compensation by the management of the mental and physical health of the
African Reinsurance Corporation mother or the life of the mother or the
(AFRICA-RE), which had not fulfilled foetus.
its contractual obligations relative to
the case of her late husband’s fatal Article 337 of the Cameroonian Penal
accident. Code which deals with abortion severely
sanctions the practice. In terms of this
The NCHRF having a quasi-judicial
provision, abortion can only be under-
status settled these matters by reconcil-
taken in the case of pregnancy resulting
ing the parties with reference to the Afri-
from rape and subject to judicial approv-
can Charter and the Maputo Protocol.
al. Abortion may also be carried out for
medical reasons as stipulated in article
7 Awareness and use by civil 339 of the Penal Code. Given the clearly
society defined circumstances in which abortion
is permissible, the Maputo Protocol
The categories of rights that emerge cannot be used to justify infanticide or
from the Maputo Protocol have been similar practices.32
classified by the Ministry of Justice into
the following three categories: protec- Nevertheless, the Catholic Church
tion of women against violence, prohibi- gained the support of the Cameroonian
tion of poor treatment of women, and youth, who through youth associations
the right of women to control reproduc- opposed this aspect of the Maputo
tive functions.30 Civil society organisa- Protocol. By extensive means, including
tions in Cameroon are well aware of the social media, they expressed their indig-
African Charter and the Maputo Proto- nation, arguing that the Maputo Proto-
col. As will be illustrated below, the col legitimises homosexuality in the
African Charter has been used in country, contrary to the law in force.
NGOs’ work and its provisions
mentioned as well. As stated above, rati-
fication of the Maputo Protocol in 31 http://goliath.ecnext.com/coms2/gi_0199-
12086493/Cameroon-abortion-the-Catholic-
Cameroon has been met with stiffness hierarchy.html (accessed 1 September 2011).
on the part of the Catholic Church with 32 http://www.leffortcamerounais.com/2009/
10/female-empowerment-and-family-minist
er-says-cameroon-has-not-legalised-abortion-
and-homosexuality.html?cid=6a00d83451c7
30 Report of the Ministry of Justice (n 16 above) 3369e20120a8e780dd970b (accessed 21 Nov-
252. ember 2015).
38 Cameroon

Faced with this lack of understanding of Building on their supplementary

the provisions of the Protocol and as a report submitted to the United Nations
way to enlighten the public on the Committee on the Elimination of Racial
matter, the NCHRF organised, on the Discrimination (CERD), in January
occasion of the International Day of the 2010, the Réseau Recherches Actions
African Woman on 31 July 2009, a Concertées Pygmées (RACOPY), and FPP
panel discussion on the stakes and chal- included the issues raised by indigenous
lenges of ratification of the Maputo women and their communities during
Protocol.33 the consultations and at the National
Forum on Forests in their supplementa-
Civil society organisations in Came- ry report to the African Commission.
roon have had occasion to submit shad- These issues included the multiple forms
ow reports before treaty-monitoring of discrimination faced by indigenous
bodies. For instance, the International women in society; violation of their
Working Group on Indigenous Affairs reproductive rights; indigenous
(IWGIA) submitted complimentary women’s increasing lack of access to
information in 2006 to the African health care, water, and traditional
Commission in preparation of the revi- resources; and the obstacles to conduct-
sion of Cameroon’s periodic report. The ing traditional and income-generating
information presented was on the rights activities, which contribute to food inse-
of indigenous people in Cameroon. curity, greater marginalisation, and
extreme poverty. The report recom-
In preparation for the examination mended that the African Commission
of Cameroon’s periodic report by the urge the government of Cameroon to
African Commission in May 2010, the take concrete measures to protect
Centre for Environment and Develop- doubly marginalised indigenous
ment (CED), in collaboration with local women.
partners, undertook consultations with
communities in Eastern and Southern The concluding observations that
Cameroon. The consultations took followed the consideration of Came-
place in March 2010. The purpose of the roon’s state report are remarkable for
consultations was to gather information the number of recommendations relat-
on the situation of indigenous women in ing to the rights of indigenous peoples.
Cameroon’s forests in order to better Many of the recommendations can be
inform the elaboration of a supplemen- said to draw on the information
tary report to the African Commission outlined in the supplementary report
and to report on the situation of indige- submitted to the African Commission.
nous women and peoples in the coun- In addition to recommending that
try. Later in March 2010, indigenous Cameroon ‘harmonize the national
women in Cameroon also had the legislation with the regional and interna-
opportunity to voice their concerns at tional standards on the rights of indige-
the National Forum on Forests which nous populations or communities’ and
welcomed the participation of 11 indige- ‘work towards the consideration of their
nous women. cultural peculiarities’, the African
Commission also expressly urged Came-
roon to ‘take special measures to guar-
antee the protection and implemen-
33 National Commission on Human Rights and tation of indigenous women’s rights due
Freedoms (n 1 above) 74.
 Impact of the African Charter and the Maputo Protocol in selected African states 39

to their extreme vulnerability and the human rights in the African human
discrimination to which they are rights system and beyond.
subject’. These recommendations consti-
tute important legal standards and a The National Advanced Police
significant step for indigenous peoples School, Yaoundé, has human rights as a
and women. They can now be used at subject and human rights is also main-
the national level for the recognition streamed into other subjects. In class-
and realisation of rights.34 room lectures, especially on gender and
policing, reference is made on the provi-
8 Higher education and academic sions of the Maputo Protocol. Recently,
writing some students in their end course disser-
tation for the award of the diploma of
Superintendent of Police, included in
The law faculty of the University of
their writing ideas which drew on the
Dschang conducts training on human
gender provisions of the Maputo Proto-
rights. Before 2009, the programme was
col in assessing whether police efficien-
a Diplôme d’Etudes Supérieures Spécialisées
cy might be enhanced if gender concerns
(DESS) in human rights and humanitar-
are more expressly considered during
ian action. Since the University Reform
recruitment, training, deployment and
in 2009, this programme is the equiva-
promotion. Such thoughts are often
lent of a masters’ degree and has a
regarded as contrary to opposing views
module in African human rights law
that more women in the police academy
which draws content from the African
will make the service less efficient.
Charter as well as the Maputo Protocol.

At the University of Buea, there is 9 National human rights

an introductory course on human rights, institutions (NHRIs)
which also touches on the African
human rights system. However, the The NCHRF frequently refers to Came-
course is an elective for students with a roon’s ratification of the African Charter
specific interest in the discipline of and the Maputo Protocol amongst other
human rights. In the same vein, the international conventions relating to the
Association pour la Defence des Droits de rights of women but regrets that the
l’Homme en Afrique Centrale (APDHAC), social and cultural context in which
an NGO based at the Catholic Universi- Cameroonian woman live is character-
ty of Central Africa (UCAC), has a ised by long lasting practices that largely
fully-fledged programme on human emanate from customs and religious
rights in Africa. This institution, precepts that encourage or justify
through UCAC, offers master’s degree distinction, exclusions or gender based
and doctorate programmes in human restrictions, instead upholding the
rights. The institution also offers year- primacy of men at all levels.35
long short courses on different aspects of
The NCHRF is, however, keen on
implementation of the concluding obser-
34 See Forest Peoples Programme ‘Advocacy
efforts lead to African Commission’s vations and decisions of the African
increased consideration of indigenous
women’s rights’ 3 June 2011 http://www.
forestpeoples.org/topics/gender-issues/news
/2011/06/advocacy-efforts-lead-african-com 35 National Commission on Human Rights and
mission-s-increased-consideration (accessed Freedoms Report on the state of Human Rights
1 September 2011). in Cameroon 2007-2008 (2008) 39.
40 Cameroon

Commission. For example, as part of Rights in the Ministry of Justice. The

national capacity building in human African Affairs Division at the Ministry
rights, the NCHRF organised a training of Foreign Affairs also takes part in this
workshop for its focal points in the vari- process.
ous state administrations and institu-
tions on the universal system for the However, in its concluding observa-
submission of reports and follow up on tions, the African Commission regretted
recommendations issued by treaty the fact that Cameroon’s second period-
bodies.36 ic report did not take into account the
concluding observations adopted at the
10 State reporting 39th ordinary session of the Commis-
sion following presentation by Came-
roon of its last periodic report. In
Cameroon has submitted one initial
addition, the African Commission noted
report and three periodic reports on the
that there is no reference in the report to
African Charter to the African Commis-
the conditions under which the report
sion.37 The goal of periodic reports is to
was prepared and as to the involvement
present the progress and difficulties in
of civil society in the drafting process.39
implementing human rights in a coun-
try. In the case of Cameroon, periodic
reports have been cited as a means to 11 Communications
show that international conventions
constitute domestic legislation and To date, the African Commission has
could be invoked in a court of law in received 11 communications against
Cameroon.38 To date, no specific, sepa- Cameroon filed by civil society organi-
rate reports on the Maputo Protocol sations on behalf of individuals and by
have been submitted. individuals themselves.40 Of these 11
communications, six communications
A state report in Cameroon is were declared inadmissible on grounds
prepared by inter-ministerial collabora- ranging from the fact that Cameroon
tion between the Ministry of Foreign had not yet ratified the Charter at the
Affairs and the Ministry of Justice. time the communications were filed,41
More specifically, the report is prepared to non-exhaustion of local remedies.42
by the Division of International Co-
operation and the Division of Human Of all the communications brought
before the African Commission against
Cameroon, the Open Society Justice Initia-
36 National Commission on Human Rights and tive (on behalf of Pius Njawe Noumeni) v
Freedoms Report on the state of Human Rights
in Cameroon 2008 (2009) 22.
37 The initial report was presented in 2002 in
Pretoria, South Africa. The first report was 39 Concluding Observations and
presented in Banjul, The Gambia in 2006 Recommendations on the Second Periodic
and the second report, which covered the Report of the Republic of Cameroon,
period 2003-2008, was presented during the adopted at the 47th ordinary session of the
47th ordinary session of the Commission in African Commission held from 12 to 26 May
May 2010 in Banjul, The Gambia. The third 2010, Banjul, The Gambia.
periodic report was submitted during the 40 See http://www.achpr.org/english/_info/
15th extraordinary session held from 7 to 14 index_Decision_Cameroon.html (accessed
March 2014. 21 November 2015).
38 BR Guimdo Dongmo ‘Le droit d’accès à la 41 See International PEN v Malawi, Ethiopia,
justice administrative au Cameroun: Cameroon and Kenya (unreported)
Contribution à l’étude d’un droit fonda- Communication 19/88 7th Activity Report.
mental’ Revue de la recherche juridique-droit 42 See Miss A v Cameroon (2004) AHRLR 39
prospectif (2008) 463. (ACHPR 2004).
 Impact of the African Charter and the Maputo Protocol in selected African states 41

Cameroon has received the greatest, most took note of the above request and
intensive and continuous media atten- closed the file.
tion ‒ for over a decade now.43 This
case was finalised by way of an amica- 12 Special mechanisms and
ble settlement between the parties. The promotional visits by the
complaint lodged by an NGO main- African Commission
tained that following the liberalisation
of airwaves in 2000, an application to
In September 2002, Dr Vera Chirwa, the
the Ministry of Communications of
then Special Rapporteur for Prisons and
Cameroon for a licence to operate a
Detention Conditions of the African
radio station was put forward. After the
Commission, visited prisons and deten-
six months period prescribed by law, the
tion centres in Cameroon. The objective
Ministry did not respond favourably to
of the visit was to assess and document
the request, arguing that the application
the conditions of detention in Came-
was still being considered. The
roon, make immediate recommenda-
complainant started broadcasting
tions where necessary and initiate
programmes, the Ministry of Communi-
cooperation with the government of
cation banned the radio station and the
Cameroon towards the improvement of
police and army then sealed the premis-
prison conditions in the country.44
es of the radio station.
In February 2011, the Chairperson
The complainant requested the Afri-
of the African Commission, Reine Alap-
can Commission to consider the above
ini-Gansou headed a delegation to
facts as a violation of articles 1, 2, 9 and
Cameroon with a special focus on the
14 of the African Charter and pleaded
conditions as well as the rights of
with the African Commission to request
women and journalists who were held
Cameroon to pay adequate compensa-
in detention. In the delegation was
tion to the victim for multiple violations
Justice Lucy Asuagbor, a Cameroon
of their rights and freedoms. At the 36th
national, who served previously as the
ordinary session of the African Commis-
Special Rapporteur on Human Rights
sion, the Minister of Justice at the time
Defenders in Africa for the African
offered his good offices with a view to
Commission and who has just recently
facilitating an amicable solution to the
assumed the mandate of Special
matter. At the 38th ordinary session, the
Rapporteur on the Rights of Women in
complainant informed the African Africa. The visit to Cameroon was
Commission that the government of essentially intended to assess the human
Cameroon dropped the criminal charges
against the director of the radio station
and released the equipment that was
earlier confiscated. The government also
granted provisional authorisation to
broadcast. On its part, the director of the
radio station agreed to discontinue the 44 Prisons in Cameroon report of the Special
communication before the African Rapporteur on prisons and conditions of
detention in Africa ‒ The African
Commission. The African Commission Commission on Human and Peoples’ Rights
Report to the government of the Republic of
Cameroon on the visit of the Special
Rapporteur on Prisons and Conditions of
Detention in Africa from 2 to 15 September
43 (2006) AHRLR 75 (ACHPR 2006). 2002.
42 Cameroon

rights situation in the country.45 real obstacle to the full enjoyment of

Commissioner Reine Alapini Gansou rights. Despite the measures taken to
noted with satisfaction that Cameroon ensure the peace of the population, the
opened its doors to the mission without growing insecurity in some parts of
any restraints. The mission met with Cameroon is a major concern that is
ministers of external relations, justice, likely to affect the effective promotion
territorial administration and decentrali- and protection of human rights in gener-
sation, defence as well as the general al and the African Charter and the
delegate for national security, Supreme Maputo Protocol in particular.46
Court representatives and the Prime
Minister of Cameroon. Above all, Cameroon has not yet
complied with the directive which
13 Factors that may impede or requires 50/50 gender parity in parlia-
enhance the impact of the ment and in other leadership positions.
Women and especially indigenous
African Charter, the Maputo
women are still marginalised despite
Protocol and the African adoption by the African Commission of
Commission the Resolution on the Protection of
Rights of Indigenous Women in Africa.
There are indeed factors that play in
favour or against implementation of the Cameroon has also not yet imple-
African Charter and the Maputo Proto- mented the concluding observations and
col in Cameroon. There are shortcom- recommendations by the African
ings both at the level of penal law and at Commission with necessary speed,
a civil level. The penal law for example which amongst other recommendations
does not define the concept of discrimi- include the call for ratification of the
nation against women and does not African Charter on Democracy, Elec-
repress it either. Article 242 of the Penal tions and Governance47 and the Proto-
Law prohibits discrimination on col to the African Charter on Human
grounds of race and religion only. and Peoples’ Rights on Establishing the
African Court on Human and Peoples’
Moreover, we note the persistence Rights, and to lodge the declaration
of customary and religious practices that under article 34(6) of this Protocol.
impede the full enjoyment of rights by
women, especially those that deny Some laws or the absence thereof
women and girls their rights to inher- are in conflict with the Maputo Proto-
itance; the practice of inhuman and col. For instance, marital rape is still not
degrading widowhood rites; female punishable under Cameroonian law.
genital mutilation; and the primacy of Cultural and customary beliefs seem to
masculinity and the patriarchal system. be at loggerheads with the Maputo
Protocol. Female genital mutilations
To add to these challenges, poverty still exists in some parts of the country
and ignorance of women constitute a as well as child marriage and wife inher-
itance. In spite of the above, Cameroon
45 ‘Commission verifies human rights in
Cameroon’ Cameroon Today February 2011 46 Concluding Observations on the 3rd Periodic
http://news.cameroon-today.com/commiss Report of the Republic of Cameroon (2014)
ion-verifies-human-rights-in-cameroon/4122 47.
/#ixzz1WhTGA41l (accessed 21 Nov- 47 Cameroon has since ratified this treaty
ember 2015). thereby launching it into force.
 Impact of the African Charter and the Maputo Protocol in selected African states 43

has been cooperative in submitting peri-

odic reports on the African Charter to
the African Commission and has
received several delegations from the
African Commission on fact-findings
missions without restraints as indicated
earlier in this report.

Although Cameroon has not hosted

any sessions of the African Commis-
sion, Chief Justice Lucy Asuagbor, a
native of Cameroon, was appointed the
African Commission’s Special Rappor-
teur on Human Rights Defenders in
Africa in 2010 and as stated earlier, she
shortly after assumed the mandate of
Special Rapporteur on the Rights of
Women in Africa. Amongst other
duties, Commissioner Asuagbor was
allocated Benin, Rwanda, Guinea
Bissau and Togo as countries where she
will have to undertake promotional
missions during her tenure. Her appoint-
ments have helped to create more
awareness about the African Charter
and the Maputo Protocol in Cameroon.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
CÔTE D’IVOIRE

Kounkinè Augustin Somé*

Armand Tanoh**

1 Introduction attachment of the state to the African

Charter as well as the Universal Decla-
Côte d’Ivoire became independent in ration of Human Rights meaning there-
1960 and the independent country's first fore that the rights contained therein are
constitution was adopted on 3 August directly enforceable within the state of
1960. This Constitution made reference Côte d’Ivoire.2
to both the French Declaration of the
Rights of the Man and the Citizen and Côte d’Ivoire ratified the African
the United Nations’ Universal Declara- Charter on 6 January 1992. With rela-
tion of Human Rights (UNHR). The tive success, it has endeavoured to give
Constitution, however, did not contain effect to the provisions of the African
any specific human rights provision.1 Charter as required by article 1 of the
Charter, which calls upon members
The second constitution of Côte states to take steps in this regard.3 In the
d’Ivoire was adopted on 1 August 2000 past decade, Côte d’Ivoire has witnessed
and is still in force. Title I of the Ivoirian several political crises, the latest being
Constitution enshrines human rights. the post-election conflict in 2010 which
Twenty-two articles of the Constitution claimed the lives of more than 3000
protect human rights. This is a major people between December 2010 and
move in comparison to the first consti- April 2011. Women suffered most
tution. In addition, the Preamble of the during the crisis, which left massive
Ivorian Constitution also proclaims the human rights violations unaccounted
for.

Since April 2011, and for the first

time in its recent political history, the
country has been able to organise non-
* LLM HRDA (Pretoria), serving as a Human
Rights Officer with the United Nations
Operation in Côte d’Ivoire. He is the 2 Para 1 of the Constitution of Côte d’Ivoire of
Coordinator of the Technical Cooperation 1 August 2000 (the Constitution).
Unit of the Human Rights Division. 3 Art 1 of the Charter reads that: ‘The Member
** LLM HRDA (Pretoria), Advocate at the States of the Organization of African Unity
Paris Bar, France. parties to the present Charter shall recognize
1 The first Ivorian Constitution only provided the rights, duties and freedoms enshrined in
for key provisions about state organisation, this Chapter and shall undertake to adopt
type of government and the main legislative or other measures to give effect to
institutions. them.’

45
46 Côte d’Ivoire

violent elections. A lot has also been and the Maputo Protocol. Côte d’Ivoire
done in recent years with regards to currently faces many human rights chal-
Côte d’Ivoire’s interactions with interna- lenges which are mostly connected to
tional human rights mechanisms. Since the political crisis the country experi-
2011, new ratifications of human rights enced between 1999 and 2011. During
conventions have taken place and the this time, thousands of people were
country submitted overdue reports to killed and so far only a few perpetrators
international mechanisms, including the have been formally identified. Due to
initial and cumulated reports under the this crisis, all civil and political rights as
African Charter in 2012,4 the initial and well as socio-economic rights remain
cumulated reports under the Interna- priority areas in Côte d’Ivoire.7
tional Covenant on Civil and Political
Rights (ICCPR), a second review by the 2 Ratification of African Charter
UN-led Universal Periodic Review and the Maputo Protocol
(UPR),5 and the creation of a Special
Procedure for Côte d’Ivoire under the Côte d’Ivoire ratified the African Char-
UN Human Rights Council, with the ter in 1992. The Ivorian Constitution
appointment of an independent expert stipulates that the President of the
on the situation of human rights in Côte Republic negotiates and ratifies treaties
d’Ivoire.6 and other international agreements to
which the state seeks to become a
With regard to the situation of
party.8 The President requires, however,
women and the enjoyment of their
authorisation by parliament before rati-
rights, several initiatives have been
fying any international treaty. More
taken both at legislative and policy level.
importantly, the Constitutional Council
Nonetheless, women in Côte d’Ivoire
needs to decide whether the treaty does
continue to suffer discrimination. This
or does not violate any provisions of the
impedes their full enjoyment of the
Constitution.9 It is only after the
rights stipulated in the African Charter
approval by the National Assembly and
the decision of the Constitutional Coun-
4 The African Commission held its 52nd cil authorising the President of the
ordinary session in October 2012 in Republic to ratify a treaty that the Presi-
Yamoussoukro, Côte d’Ivoire. It was during
this session that the country submitted its dent may proceed with the ratification
first ever state report to the African
Commission.
5 Côte d’Ivoire was reviewed twice by the UN
Human Rights Council in 2009 and 2014 7 From 1999 to 2011, extrajudicial killings
under the UPR. occurred in Côte d’Ivoire. Thousands of
6 The Independent Expert mandate on Côte people were killed. Many Ivorian lost their
d’Ivoire was created in 2011. The current property; some remain homeless or
and second Independent Expert, Mr internally displaced or were granted refugee
Mohamed Ayat visited Côte d’Ivoire twice. status in neighbouring countries. Young
After his last visit in January 2015, he held a people are still highly unemployed.
press conference during which he paid 8 Art 84 of the Constitution.
tribute to the government of Côte d’Ivoire for 9 As an illustration, the President of the
progress made with regard to respect for and Republic seized the Constitutional Council
protection of human rights, while urging that to ask whether the Rome Statute did not
the harmonisation of the national legal violate the Constitution. In its decision
framework with international standards be 002/CC/SG of 17 December 2003, the
strengthened. He emphasised the importance Constitutional Council held that the Rome
of prosecuting all persons responsible for Statute violates the Constitution as it
human rights violations and the need to undermines state sovereignty. This decision
continue to address sexual violence against in essence was not legally motivated well but
women and the situation of children, it indicates the power of the Constitutional
including children in conflict. Council in the ratification process.
 Impact of the African Charter and the Maputo Protocol in selected African states 47

process. This procedure was followed communication channels with treaty

for ratification of the African Charter on bodies.12
6 January 1992 and the Maputo Proto-
col on 5 October 2011. It should also be noted that the
procedure for the preparation of state
Decree 61-157 of 18 May 1961 insti- reports to human rights treaty bodies
tuted a specific mechanism to monitor has evolved over the years. In the past,
the implementation of conventions, the Ministry of Foreign Affairs took
resolutions and other instruments rati- charge of the preparation of human
fied by Côte d’Ivoire.10 According to rights reports. From 2003, however, a
this decree, the Ministry of Foreign ministry of human rights was estab-
Affairs prepares the instruments of ratifi- lished with the clear mandate of contrib-
cation. After signature by the President, uting to the promotion and protection of
the instrument is published in the Offi- human rights. This ministry is now in
cial Gazette and is incorporated ipso charge of coordinating the preparation
facto into the domestic legal system, of reports to human rights treaty bodies.
taking precedence over domestic legisla-
tion.11 Normally, the Ministry of 3 Domestication or incorporation
Foreign Affairs dispatches to the rele-
vant ministry information concerning According to the Constitution, a treaty,
the implementation of thematic instru- once ratified, has a higher status than
ments. With regard to gender equality any other law of the land.13 Like most
issues and women’s empowerment, the civil law countries, Côte d’Ivoire has a
relevant ministry is the Ministry of soli- monist tradition. Therefore, ratified
darity, family, women and children treaties are theoretically directly applica-
affairs. ble at the domestic level provided that
they have been formally published in the
However, as recommended by the
Journal Officiel and subject to reliance by
UPR mechanisms during Côte d’Ivoire's
the other litigating party.14 Therefore,
second review in 2014, the government
treaties, once ratified, form part and
committed to reviewing Decree 61-157
parcel of the law in Côte d’Ivoire. The
of 18 May 1961 with a view to establish-
Maputo Protocol enjoys the same high-
ing an inter-ministerial body in charge
er status as the African Charter. Follow-
of ensuring coordinated interaction with
ing ratification and publication, like any
the UN and African Union human
other convention, the Charter and the
rights mechanisms. Human rights focal
Protocol were incorporated directly into
points within government ministries and
the domestic legal system. Further, in
national institutions are of the view that
accordance with the Constitution,15
such a body will help rationalise the
they take precedence over domestic
laws. Consequently, in principle, the
Charter and the Protocol prevail over
national legislation in case of a conflict.

12 Views expressed during discussions at the

10 Côte d’Ivoire’s state report to CEDAW workshop to present the report and
http://tbinternet.ohchr.org/_layouts/treaty recommendations of Côte d’Ivoire’s second
bodyexternal/TBSearch.aspx?Lang=en&Tre review by the UPR.
atyID=3&DocTypeID=29 (accessed 10 Sep- 13 Art 87 of the Constitution.
tember 2015). 14 As above.
11 Art 87 of the Constitution. 15 As above.
48 Côte d’Ivoire

The Constitution of Côte d’Ivoire convention would be given after the

makes reference to the African Charter Constitution is revised or amended, to
in its Preamble16 and provisions similar solve the contradiction.18 For both the
to the provisions of the African Charter Charter and the Protocol, the Constitu-
can be found throughout the Constitu- tion was not amended to comply with
tion. The Constitution enshrines civil the provisions of the Charter or the
and political rights as well as socio- Protocol, indicating that its provisions
economic rights from articles 2 to 22. were not regarded as being in conflict
with the provisions of the Constitution.
The Constitution was not amended
following ratification of the Maputo After the decade of political crisis,
Protocol. during which very few laws were made
by parliament, legislative activities have
The Ivorian Constitution of August intensified in recent years, with several
2000 does incorporate a great number of pieces of new legislation aiming to give
human rights. Chapter I, made of the effect to the provisions of both the Afri-
first 22 articles, can be seen as the ‘Bill can Charter and the Maputo Protocol.
of Rights’. As mentioned above, Côte
d’Ivoire has a monist tradition wherein In recent years and mostly under the
duly ratified treaties are theoretically leadership of the Ministry of Solidarity,
directly applicable provided that they Family Women and Children Affairs
have been regularly published in the (MSFFE), several policies have been
Journal Officiel and subject to reciproci- adopted with a view to giving effect to
ty.17 As such, there is no need to adopt women’s rights. On 26 March 2012,
specific legislation in order to give effect Côte d’Ivoire adopted the national
to international norms. Nevertheless, development plan (Plan National de
there is no clear indication as to whether Développement – PND).19 The PND is a
and how the human rights proclaimed comprehensive framework of all nation-
therein can be claimed directly before al development policies. It is built
Ivorian courts of law. around six axes, including defence,
security, justice and the rule of law,
4 Legislative and policy reform education, health, employment, and
social affairs. A draft national policy for
In the Ivorian system, compatibility the promotion and protection of human
studies take the form of a decision by rights is under finalisation by the Minis-
the Constitutional Court as to whether try of Justice, Human Rights and Public
an international agreement contradicts Liberties (MDJHLP).
the Constitution. When such a decision
The government of Côte d’Ivoire
of the Constitutional Council confirms a
also adopted a National Action Plan on
contradiction between the two texts,
UN Security Council Resolution 1325
Parliament’s authorisation to ratify the
on women, peace and security and
created the Ministry of Solidarity, Fami-
16 Para 6 of the Constitution reads as follows: ly Women and Children Affairs, as well
‘The people of Côte d’Ivoire … Proclaim
their adherence to the rights and freedoms
defined in the Universal Declaration of
Human Rights of 1948 and the African 18 Article 86 of the Constitution.
Charter on Human and Peoples’ Rights of 19 The PND was adopted in 2012 and has been
1981’. reviewed in 2015 along the same axes and for
17 Art 87 of the Constitution. the period covering 2016-2020.
 Impact of the African Charter and the Maputo Protocol in selected African states 49

as a Directorate of equality and gender this. Firstly, most of them are not aware
promotion to work on gender equality of the international human rights instru-
issues. This Directorate within the ments ratified by Côte d’Ivoire. Lawyers
MSFFE is aimed at ensuring implemen- have also, however, neglected to
tation of the national policy on equal mention or make reference to human
opportunities, equity and gender, and at rights provisions in their written submis-
instilling an enabling environment for sions. The Human Rights Division of
gender mainstreaming in all sectors and the United Nation Operation in Côte
at all levels. In 2014, the Directorate d’Ivoire (ONUCI) has been organising
was transformed into an Observatory on training and capacity building work-
equity and gender. The Observatoire shops for judicial actors on the use of
National de l’Equité et du Genre (ONEG), international human rights mechanisms.
which is located within the Office of the
Prime Minister, was created by Decree One of the main challenges for
No-842 of 17 December 2014 with the popularisation of the African Charter is
mandate to monitor, evaluate and make that lawyers who are supposed to take
recommendations for the promotion of human rights issues to Court do not
gender equality in all public policies.20 really play their part. Most of the time,
The government also created a Compen- they are focused on issues connected to
dium of women competences with a the usual legal subjects such as commer-
view to providing government with a cial law, civil law and penal law. Only a
comprehensive database of qualified few lawyers who are human rights activ-
Ivorian women for the purpose of ists, or are involved in human rights
appointing them to high level decision activities, know about the Charter, the
making positions. Government has also Maputo Protocol and other human
set up a National Committee to fight rights instruments and use these instru-
violence against women and children ments in their work. The other factor is
and adopted a National Strategy to fight that lawyers may not be familiar with
sexual and gender-based violence. international law as well as internation-
al human rights law. ONUCI’s Human
5 Court judgments Rights Division together with the Insti-
tute for Human Rights and Democracy
in Africa (IHRDA) has been providing
Unfortunately, the African Charter has
briefings and training to judges on the
not been mentioned specifically in any
use of international instruments and
judgment by a domestic court. Judges in
mechanisms to protect human rights.
Côte d’Ivoire, as in many Francophone
During such training, it came out that
countries, still rely heavily on domestic
only a few lawyers know about the
law. There could be many reasons for
instruments and fewer have ever used
20 The ONEG is tasked with, amongst other
human rights conventions in their argu-
things: advising government on issues of ments before domestic courts.
equity and gender; implementing of the
national policy on equal opportunities,
equity and gender; identifying obstacles to 6 Awareness and use by civil
gender equality in public policies;
monitoring and evaluating the implemen- society
tation of Côte d’Ivoire’s international
agreements relating to equity and gender
equality; suggesting gender-sensitive legis- Civil society and human rights organisa-
lative and policy reforms; and collecting and tions have been very active in Côte
providing credible data on the issues of
gender equality.
50 Côte d’Ivoire

d’Ivoire, especially in recent years. They Association Internationale pour la

are aware of both the Charter and the Démocratie en Afrique (AID-AFRIQUE),
Protocol, although they might not use it Association Ivoirienne pour la Promotion des
or refer to it systematically. The political Droits de l'Homme (APDH), Mouvement
instability and the massive extra judicial Ivoirien des Droits Humains (MIDH), Club
killings that went with it contributed to Union Africaine Côte d’Ivoire (Club UA/
the development of many human rights CI), Association des Femmes Juristes de
organisations in the country. The Unit- Côte-d’Ivoire (AFJCI), and Centre Feminin
ed Nations Operation in Côte d’Ivoire pour la Démocratie et les Droits Humains,
through the Human Rights Division has Soutien aux prisonniers en Côte d’Ivoire,
conducted sensitisation activities and (SOPCI), Action pour la Protection des
contributed to strengthening the capaci- droits de l’homme, and Ngo Playdoo - CI.22
ties of civil society organisations. Civil
society organisations have organised 7 Higher education and academic
many activities on human rights and are writing
now involved in different campaigns
with various human rights agenda’s. Human rights education in primary and
secondary schools in Côte d’Ivoire is
With the scepticism expressed
still developing. Within the framework
recently with regard to the prosecution
of the UN World programme for human
of crimes relating to the post-election
rights education,23 the government of
crisis by domestic courts, local NGOs
Côte d’Ivoire adopted a Decree in 2012,
and human rights organisations are
formally introducing human rights
increasingly vocal on respect for interna-
education in the curricula of educational
tional conventions. They regularly refer
systems at the primary and high school
to the Charter in their press releases,
levels. This is being pursued at higher
monitoring activities and advocacy
levels, in the professional training acade-
efforts. After Côte d’Ivoire was
mies, Police and Gendarmerie Academies
reviewed by the African Commission in
as well as at the National School of
December 2012, some NGOs referred to
Administration (ENA), which trains
the concluding observations formulated
civil servants.
by the Commission in their advocacy
for more equitable justice as well as in At university level, human rights
policy and law reform.21 education has really evolved over the
last few years with the development of
Eleven NGOs from Côte d’Ivoire
various master’s degrees by the National
enjoy observer status with the African
University as well as different human
Commission. These are: Ligue Ivoirienne
rights institutes. The African Charter
des Droits de l'Homme (LIDHO), Associa-
and the Maputo Protocol are part of the
tion Chrétienne Pour l'Abolition des Tortures
curricula of the university as well as the
et pour le Respect des Droits de l'Homme,
institutes. Several public and private

21 NGOs have referred to the concluding

observations of the 52nd ordinary session of 22 African Commission on Human and
the Commission as well as other treaty Peoples’ Rights ‘NGOs with observer status’
bodies’ recommendations to advocate for the http://www.achpr.org/network/ngo/#
Human Rights Defenders’ Act, the law on (accessed 9 September 2015).
the national human rights commission and 23 http://www.ohchr.org/EN/Issues/Educatio
the ongoing discussions on the draft law of n/Training/Pages/Programme.aspx
freedom of association. (accessed 13 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 51

universities now offer master’s agreed principles in several respects, and

programmes in human rights law. renders the Commission more of a
consultative body. After more than two
Many Ivorian academics have years of operation, the Commission is
discussed the African Charter and yet to agree on a national action plan
Maputo Protocol but these discussions and internal governance documents,
are mostly philosophical and too which so far remain at draft level.
academic to have a wider impact in Neither Law 2012-1132 nor the draft
Côte d’Ivoire. The literature in Côte action plan make clear reference to the
d’Ivoire with respect to the African African Charter or the Maputo Proto-
Charter and Maputo Protocol is thus col. Even though the Commission has
limited. Tanoh and Adjolohoun, in their plans to increase the level of awareness
article on the problems of human rights about the Charter, only some projects
litigation in Côte d’Ivoire and Benin,24 and planned activities of the Commis-
pointed out the lack of decisions from sion mention these instruments in the
Ivorian courts with respect to human context and justification sections.
rights. Lecturers at the National Univer-
sity have written and published a few The Médiateur de la République is an
articles, which have unfortunately not independent administrative body. It
received wider distribution. enjoys constitutional status25 and is an
alternative dispute resolution mecha-
8 National human rights nism. Neither the law, nor the 2014-
institutions 2015 plan of action of the Médiateur de la
République26 make any reference to the
Côte d’Ivoire has a national human Charter or the Maputo Protocol.
rights commission and an Ombudsman
The law on the CNDHCI is not
Office known as the Médiateur de la
very explicit regarding its role on the
République. The current human rights
follow up on implementation of
commission, the Commission nationale des
concluding observations and/or deci-
droits de l’homme de Côte d’Ivoire (CNDH-
sions of international human rights
CI) was established by Law 2012-1132
mechanisms. However, article 2 of the
of 13 December 2012. The CNDHCI
law which enumerates the powers of the
appears to be an independent consulta-
Commission could be interpreted to
tive body whose functions are to ensure
include such prerogatives.27
consultation, evaluation, and make
recommendations in the area of human
rights. The new law was supposed to
make the Commission compliant with
the Paris Principles on the establishment 25 The Mediateur de la Republique was instituted
by the Constitution.
and functioning of national human 26 http://mediateur-republique.ci/ (accessed
rights institutions. However, and despite 15 November 2015).
27 Article 2 of Law 2012-1132 of 13 December
several advocacy efforts and advices, the 2012 establishing the Ivorian National
new law does not comply with the Human Rights Commission reads, amongst
other things, that the Commission is tasked
to: ensure the ratification of international
human rights instruments or adhesion to
24 A Tanoh & H Adjolohoun ‘International law such instruments, as well as their
and human rights litigation in Côte d’Ivoire implementation at national level and to
and Benin’ in M Killander (ed) International contribute to the elaboration of reports as
law and domestic human rights litigation in prescribed by the international legal
Africa (2010). instruments to which Côte d’Ivoire is party.
52 Côte d’Ivoire

9 State reporting rights, led by the minister. There were

no women in the delegation.29
Despite the mechanism instituted by
Decree 61-157 of 18 May 1961 to moni- Amongst the issues of concern
tor the implementation of conventions, raised in the concluding observations
resolutions and other instruments, there were: non-ratification of several human
is no clarity on who does what when it rights treaties, including the Convention
comes to state reporting. The responsi- for the Protection and Assistance of
bility is rather based on the thematic Internally Displaced Persons in Africa;
issues being reported on. For instance, the African Charter on Democracy,
the reporting process under the African Elections and Good Governance; the
Charter was led by the ministry in Protocol to International Covenant on
charge of human rights and public liber- Civil and Political Rights (ICCPR) on
ties. Indeed, the Ministry generated the the abolition of death penalty; the
first draft with contributions from absence of the declaration pursuant to
human rights focal points designed article 34(6) of the Protocol to the Afri-
within ministries and institutions. The can Charter on the Establishment of the
draft was discussed and validated with African Court; the lack of specific legis-
the participation of civil society organi- lation protecting human rights defend-
sations. ers; the presence of discriminatory
provisions against women in national
The ministry responsible for gender legislation; the presence of harmful
equality issues and women’s empower- traditional practices that affect women;
ment is tasked with implementing the the low level of resources for the imple-
Maputo Protocol and the Convention mentation of Resolution 1325 on
on the Elimination of All Forms of women, peace and security; the lack of
Discrimination against Women. In disaggregated data in the reports; and
practice, it will follow the same process the non-functioning of the human rights
as above. commission, amongst others.

Côte d’Ivoire submitted its initial Côte d’Ivoire was also encouraged
and cumulated reports to the African to repeal all discriminatory provisions in
Commission at its 52nd Session in its national legislation and revise civil
Yamoussoukro in 2012.28 This was the law relating to the status of persons; to
only time the country has submitted a put in place legislative measures and
state report to the Commission. There- programmes to resolve the problem of
fore, reports have not been submitted sexual and domestic violence; to bring
within the agreed timeframe. Although to justice all perpetrators of sexual
the 52nd Session was held in Yamous- violence; to put in place legislative
soukro, the capital city of Côte d’Ivoire, measures to ensure the protection of
the delegation was mainly constituted human rights defenders; to include in its
by staff of the then ministry of human next state report up-to-date and disag-
gregated data per sex and thematic
human rights areas; and to produce the

28 The fact that Côte d’Ivoire was hosting the 29 http://www.achpr.org/files/sessions/52nd/

session of the African Commission could be conc-obs/1-1994-2012/cbservations_conclu
one of the reasons that motivated the sives_cote_divoire.pdf (accessed 13 Septem-
submission of these reports. ber 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 53

next report in line with the Guidelines African Commission found that Côte
for the submission of state party reports d’Ivoire has violated its obligations
on the African Charter and the Maputo under the African Charter. The first of
Protocol. these communications deals with access
to land in Côte d’Ivoire by foreigners,32
Many of the above observations and and the second communication deals
recommendations have been imple- with the eligibility criteria for the office
mented by Côte d’Ivoire. These include of President.33 With regard to the first
the declaration pursuant to article 34(6) communication, the law on access to
of the Protocol to the African Charter land was not amended and still remains
on the Establishment of the African a critical issue. With regard to the eligi-
Court to allow individuals and NGO to bility criteria to the presidency, one
have direct access to the Court, the Law could first mention that a special decree
2012-1132 establishing the national was adopted in 2005 to allow all politi-
human rights commission which in cal parties’ leaders to run for Presiden-
many regards, complies with some of cy.34 However, article 35 of the
the Paris principles; the accommodation Constitution which restricts the eligibili-
of the Rome Statute through revision of ty criteria to the Presidency is still appli-
the Constitution (Law 2012-1134 of 13 cable. The newly elected President has
December 2012 integrating article 85 bis made a commitment to organise a
on the International Criminal Court in referendum in order to amend this
the Constitution; the adoption in June provision.
2014 of Law 2014-388 on the protection
and promotion of human rights defend- These issues are amongst the
ers; the enactment of the law on reasons Côte d’Ivoire went through such
marriage adopted in 2013; adoption of a a serious military and political turmoil.
National Action Plan on UN security The resolution of these issues is still
Council Resolution 1325 on women, partial as far as criteria for eligibility is
peace and security; and the creation of a concerned as the constitutional provi-
National Committee to fight violence sions have not been fully dealt with. The
against women and children. reaction of Côte d’Ivoire in this respect
has been confirmed by the African
10 Communications Commission which held that the coun-
try has not taken serious steps to comply
There are four decided communications with its recommendations.
against Côte d’Ivoire before the African
Commission,30 three before the ECOW-
AS Court of Justice31 and one before
the African Court of Human and 31 Henri & 5 Others v Côte d’Ivoire (2009) ECW/
CCJ/JUG/04/09; The National Co-ordinating
Peoples’ Rights. In two instances, the Group of Departmental Representatives of the
Cocoa-Coffee Sector (CNDD) v Côte d'Ivoire
(2009) ECW/CCJ/JUD/05/09.
32 Communication 262/02 Mouvement ivoirien
30 Communications 289/04 Maîtres Brahima de droits de l'Homme (MIDH) v Côte d'Ivoire.
Koné et Tiéoulé Diarra v Côte d’Ivoire; 246/02 33 As above.
Mouvement ivoirien des droits humains (MIDH) 34 Decision 2005-1/PR of 5 June 2005
v Côte d'Ivoire; 262/02 Mouvement ivoirien de regarding the designation of presidential
droits de l'Homme (MIDH) v Côte d'Ivoire; 138/ candidates at the elections of October 2005
94 International PEN (on behalf of Senn and (décision 2005-1/PR du 5 juin 2005 relative
Sangare) v Côte d’Ivoire. à la désignation à titre exceptionnel des
31 Simone Ehivet and Michel Gbagbo v Côte d’Ivoire candidats à l’élection présidentielle d’octobre
(2013) ECW/CCJ/JUD/03/13; Amouzou 2005).
54 Côte d’Ivoire

11 Special mechanisms – admitted that no satisfactory measures

Promotional visits of the had been taken in respect of the recom-
African Commission mendations made. The third promotion-
al visit of the African Commission took
The fact that Côte d’Ivoire hosted the place from 24 to 29 May 2003, and
52nd ordinary session of the African recommendations of the Commission
Commission in October 2012 helped were connected to peace building and
disseminate the Charter, Maputo Proto- conflict resolution. These recommenda-
col and the Commission’s work tions were in line with recommenda-
amongst NGOs and the broader human tions issues after the two preceding
rights community. visits. Nothing has been done so far
with regard to the investigation and
In addition, the African Commis- identification of perpetrators.
sion has organised three promotional
visits in Côte d’Ivoire in 2001 and 2003. The Commission’s Special Rappor-
The first visit took place from 4 to teur on Human Rights Defenders,
8 February 2001 and the delegation of Madam Reine Alapini-Gansou visited
the Commission was headed by Mrs Côte d’Ivoire on two occasions in 2014
Julienne Ondziel-Gnelenga, a member and 2015.35 She played an impressive
of the Commission and former Special advocacy role in the adoption of the law
Rapporteur on the Rights of Women in on human rights defenders in Côte
Africa. Given the political context of d’Ivoire. She is still supporting civil soci-
that time, the mission in its recommen- ety groups in Côte d’Ivoire to dissemi-
dations urged the Ivorian government to nate and sensitise members of the public
conduct investigations about allegations on the law.
of rape of women in the police college
in 2001 and other human rights viola- 12 Factors that may impede or
tions that occurred during the electoral enhance the impact of the
protests. So far, no trials have been African Charter, the Maputo
organised and the perpetrators of these Protocol and the African
violations are yet to be identified. The Commission
second visit took place from 2 to 4 April
2001. The Chairperson of the Commis- The government of Côte d’Ivoire has
sion at that time, Prof EVO Dankwa, the primary responsibility to respect,
was the head of the delegation. The protect and fulfil the rights enshrined in
delegation met different high level offi- the African Charter and the Maputo
cials, amongst them the President and Protocol. In order to respect its interna-
ministers, to assess the human rights tional human rights obligations, the
situation in Côte d’Ivoire. Different Ministry of Human Rights was estab-
recommendations were made to the lished in 2003 with the mandate of
government of Côte d’Ivoire, amongst promoting and protecting human rights.
them, the setting up of commissions of Despite different campaigns and activi-
inquiry on the massive human rights ties organised on the ground, the general
violations, the trial of the perpetrators of
human rights violations and the submis-
sion of periodic reports under article 62 35 http://ci-ddh.org/2015/01/visite-de-la-rapp
of the Charter. The Commission itself orteure-speciale-des-defenseurs-des-droits-de
-lhomme-aupres-de-la-cadhp/ (accessed
13 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 55

feeling of civil society organisations is presenting their submissions to the

that Ivoirians in general are not aware courts. Lawyers in Côte d’Ivoire have
not really been able to submit cases on
of the existence of the Charter as well as
human rights violations. Only a few
the Protocol. Other factors which lawyers who are members of different
impede the impact of the African Char- human rights organisations have a
ter and the Maputo Protocol in Côte good knowledge of human rights
d’Ivoire are as follows: principles and treaties. In the two
communications brought before the
(a) Political environment: Côte d’Ivoire African Commission, the Mouvement
was a very unstable country for more Ivoirien des Droits Humains (MIDH) did
than ten years (1999-2011). The civil not have the opportunity of exhausting
war as well as the economic meltdown local remedies as MIDH contended
has brought the country to its knees. they were not available.36 If remedies
This instability complicates any action were available, this could have been a
or effort aimed at the promotion of the very good test for the Ivorian judiciary
African Charter in the country. Human with respect to human rights.
rights violations are prominent and (d) Poor media coverage: One of the
remedies or access to justice are not means of popularisation of a human
really available. But as mentioned rights instrument is the media. In Côte
above, the Ivorian authorities are fully d’Ivoire, the media has not been very
aware of the work of the Commission active in the coverage of human rights
as they regularly attend the sessions of activities because of the lack of
the Commission. The challenge is to resources and the limited number of
convey the messages or to promote the private media agencies. The African
Charter at a wider scale. Initiatives are Charter and the Maputo Protocol are
being taken but are not sufficient only discussed during commemora-
considering the different problems. tions and anniversaries.
(b) Lack of awareness and strong reliance
of the judiciary on domestic law: As 13 Conclusion
mentioned above, the judiciary plays a
very important role in the recognition
and justiciability of human rights. But, It can be said that the promotion of the
so far, no judgment has been rendered African Charter as well as the Maputo
outlining violations of provisions of the Protocol still has a very long way to go.
Charter or Maputo Protocol. The The large scale of human rights viola-
judges still rely heavily on domestic law tions that occurred in the country this
because this is the law they know
better. There is no serious initiative or past decade is a clear indication of the
judicial activism despite different importance of the African Charter and
training organised by international the Maputo Protocol as well as other
NGOs and international human rights human rights instruments.
organisations. The training of judges
does not include human rights and Whilst Côte d’Ivoire demonstrated
international law as such. The
Constitutional Council which is the great ability to comply with the African
supreme judicial institution in Côte Charter and the Maputo Protocol, the
d’Ivoire with the mandate of protecting adoption of domestic legislation is still
the Constitution (which includes undermined by the general lack of coor-
human rights provisions) has not dination and the absence of a concrete
rendered any specific decisions on
human rights. plan of action to domesticate all interna-
(c) Lack of serious involvement of
lawyers: Having decisions on human 36 Communications 246/02 Mouvement ivoirien
rights cases also requires the des droits humains (MIDH) v Côte d'Ivoire ;
involvement of lawyers when writing or 262/02 Mouvement ivoirien de droits de
l'Homme (MIDH) v Côte d'Ivoire.
56 Côte d’Ivoire

tional instruments ratified by the state.

The establishment of the Ministry of
Justice and Human Rights will definite-
ly help in the enforcement of interna-
tional human rights norms in general.

In addition, regular reports to the

African Commission are also very
important to measure the real impact of
the African Charter and the Maputo
Protocol. The Ivorian State must take
concrete, specific and targeted measures
in order to give effect to the African
Charter and the Maputo Protocol.
Popularisation of the African Charter as
well as the Maputo Protocol remain
essential as most of the citizens are not
aware of the existence of these instru-
ments.
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
ETHIOPIA

Meskerem Geset Techane*

1 Introduction a federal parliamentary multi-party

democracy ‒ a fundamental shift from
Known as one of the earliest and auton- the previous centralised form of govern-
omous continuing states in the world, ance. The Federal Democratic Republic
Ethiopia claims the oldest modern and of Ethiopia (FDRE) is composed of the
independent constitution in Africa that Federal Government and nine self-
dates back to 1931. The history of the governing National Regional States.
legal regime of human rights in Ethiopia The FDRE Constitution ‒ the most
starts from the imperial era of Emperor liberal constitution the country has seen
Haile Selassie's modernisation of crim- ‒ is the supreme law of the land and
inal law and the introduction of basic provides extensive protection for indi-
human rights in the 1955 Constitution. vidual as well as group rights and for the
After one of the longest legacies of pillars of democracy, as it was intended
indigenous monarchal rule in Africa, ‘to address the ills of the previous
Ethiopia became a republic under the regime and the political turmoil that
1987 Constitution of the Mengistu preceded it’.1
regime, which also dedicated a chapter
to ‘basic freedoms and rights’ that Ethiopia is party to a number of
emphasised economic, social and cultur- international and regional human rights
al rights, owing to the socialist orien- treaties. The Ethiopian Constitution
tation of the regime. The country is incorporates a Bill of Rights that reflects
currently governed by the 1995 Consti- the norms of the African Charter, the
tution of the Federal Democratic Maputo Protocol and other international
Republic of Ethiopia (FDRE Constitu- human rights instruments. A number of
tion or Constitution) which established laws enabling the implementation of
human rights were promulgated and
encourage an environment for the
promotion of human rights and democ-

* LLM HRDA (Pretoria); doctoral candidate,

Human Rights Centre, University of Padova
and former Deputy Executive Director of the 1 TS Twibell ‘Ethiopian constitutional law:
Institute for Human Rights and Development The structure of the Ethiopian government
in Africa (IHRDA). The researcher and the new constitution's ability to
acknowledges the instrumental assistance overcome Ethiopia's problems’ (1999) 21
provided by Ayalew G Assefa, Deborah H Loyola of Los Angeles International and
Birhanu & Haile B Daba. Comparative Law Review 369.

57
58 Ethiopia

racy. These are nurtured by the creation also saw the introduction of repressive
of national human rights institutions laws in Ethiopia that have been increas-
and a growing number of civil society ingly condemned for violating interna-
organisations (CSOs), opposition politi- tional standards, such as the notorious
cal parties and private media. The Charities and Societies Proclamation
FDRE Constitution also commendably (CSOs Law) and the Anti-Terrorism
incorporated both general and specific Proclamation which restrict the activi-
provisions on the rights of women.2 ties of civil society, political parties,
Following this, the adoption of the human rights defenders and journalists.4
revised Family Law of 2000 was a land- The treatment of suspects, accused
mark step forward in addressing persons and detainees, and prison condi-
comprehensive issues concerning the tions fall short of international stand-
rights of Ethiopian women in marital ards.5 Though the Constitution
and family affairs. The (Revised) Crimi- guarantees judicial independence, Ethi-
nal Code of 2004 was introduced to opian courts have continuously been
provide better protection from discrimi- criticised for tainted independence.6
nation and violations such as rape, Impunity is also a problem; failure of
abduction, Female Genital Mutilation the government to enforce accountabili-
(FGM), domestic violence, sexual ty of the armed forces and the police for
exploitation and harassment. The abuses perpetrated especially in relation
government formulated the Women’s to the 2005 post-election violence is a
National Policy (1993) and promoted case to rest.7 Moreover, in spite of the
gender mainstreaming in all its develop- progress recorded in relation to
ment policies and strategies to tackle women’s rights, female genital mutila-
gender inequality. Equally, affirmative tion, early marriage, abduction, domes-
action measures in education and poli- tic violence, child trafficking and sexual
tics have been implemented and the
participation of women in higher educa-
tion and politics has grown noticeably.

Despite notable positive steps,

restrictions on freedom of expression,
assembly, association, and movement 3 Rights Watch ‘World Report 2015: Ethiopia’
continue to be alarming matters in Ethi- https://www.hrw.org/world-report/2015/c
ountry-chapters/ethiopia (accessed 20 Sep-
opia. As repeatedly criticised by interna- tember 2015).
tional commentators, suppression of the 4 As above.
5 See Ethiopian Human Rights Commission
media (both print and online media), (EHRC) ‘Monitoring Report on the
harassment, intimidation, arrest and treatment persons under police custody’
(Amharic) (2013); see also African
detention of journalists, human rights Commission on Human and Peoples’ Rights
defenders, supporters and members of Report of the Mission of the Special Rapporteur
on Prisons to Ethiopia (2004) www.achpr.org/
opposition political parties and peaceful .../mission-reports/ethiopia/misrep
protesters shattered the human rights (accessed 17 August 2015).
6 World Bank ‘Ethiopia legal and justice sector
record of the country.3 The past decade assessment’ (2004) http://siteresources.
worldbank.org/INTLAWJUSTINST/Resou
rces/EthiopiaSA.pdf (accessed 2 September
2015), See also Freedom House ‘Freedom in
2 See arts 34 & 35 of the Constitution. the World: Ethiopia’ (2014) https:// freedom
3 See ‘Amnesty International Report 2014/ house.org/report/freedom-world/2015/ethi
2015’ https://www.amnesty.org/en/countri opia (accessed 21 September 2015).
es/africa/ethiopia/report-ethiopia/ 7 See Amnesty International & Human Rights
(accessed 20 September 20015.); Human Watch (n 3 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 59

exploitation of girls remain key areas of it.12 There have been lobbying efforts
concern.8 from government and non-government
stakeholders towards ratification. The
The Ministry of Foreign Affairs Ministry of Women, Children and
(MoFA) of Ethiopia is the responsible Youth Affairs (MoWCYA) in particular
government body mandated by law to initiated a ratification process in 2010
deal with all communications with which was stalled at the Cabinet level.13
international human rights bodies as per There was another proposal instigated
the pertinent treaties.9 MoFA, being the by MoFA in 2014 that successfully
focal point, consults with other relevant passed the approval of the Cabinet and
government bodies in accordance with made it to Parliament, where it is
their mandates and areas of expertise. currently under scrutiny.14
Accordingly, MoFA has been reporting
to as well as communicating with the International treaties in Ethiopia are
African Commission on matters related concluded by the executive and then
to the implementation of the African submitted to the House of People’s
Charter in Ethiopia. Representatives (Parliament) for ratifica-
tion as per article 55(12) of the Constitu-
2 Ratification of the African tion. The Constitution bestows the
Charter and the Maputo power of negotiating and signing inter-
Protocol national treaties to the executive;15 and
MOFA is specifically mandated by law
to coordinate this process.16 The power
Ethiopia ratified the African Charter on
15 June 1998 without reservation.10 to ratify any international treaty, includ-
ing human rights treaties, is given to the
According to the accession Proclama-
Parliament.17 The Parliament ratifies
tion,11 the rationale behind the ratifica-
tion of the African Charter is the those treaties, signed and submitted by
conviction that ratifying the African the executive, after thorough delibera-
tion and forwards them to the president
Charter supports the principal interna-
tional human rights instruments Ethio- of the republic for signature.18 The
pia is already a party to; and will process of ratification of a certain treaty
complement Ethiopia’s consistent starts either at the MoFA or the respon-
support for regional and international sible Ministry. Studies are normally
efforts to achieve normative standards done on the effects of a certain treaty by
for basic human rights. the Ministry initiating the ratification
and the proposal for ratification together
Ethiopia signed the Maputo Proto- with the relevant study will be submitted
col on 1 June 2004 but has not ratified
12 http://www.achpr.org/instruments/women-
protocol/ratification/ (accessed 23 August
2015).
8 Committee on the Elimination of 13 Interview with Mr Dereje Tegyebelu,
Discrimination against Women, Concluding Director, Legal Affairs Directorate,
observations: Ethiopia (2011) http://www MoWCYA (2 November 2015).
2.ohchr.org/english/bodies/cedaw/docs/co 14 Interviews with MoFA officers (24 Septem-
/CEDAW-C-ETH-CO-7.pdf (accessed ber 2015).
21 August 2015). 15 Art 55(12) of the Constitution.
9 See Proclamation 708/2010. 16 See art 25(2) of Proclamation 4/1995.
10 http://www.achpr.org/instruments/achpr/ 17 As above.
ratification/ (accessed 23 August 2015). 18 Art 57 of the Constitution. The signature by
11 See Preamble of Proclamation 114/1998: the President is more of ceremonial as the
Accession to African Charter on Human and treaty will come into force after 15 days
Peoples’ Rights Charter. irrespective of signature by the President.
60 Ethiopia

to cabinet. Once it achieves the assent of Cassation Division20 which directly

cabinet, a treaty will be passed to Parlia- invoked the provisions of the Conven-
ment for consideration and decision. tion on the Rights of the Child (CRC) in
a landmark judgment of 2007.21 The
3 Domestication of the African status of international treaties in the
Charter and the Maputo Ethiopian legal regime has been a
Protocol subject of debate as no clarity has been
provided either in the Constitution or
other legislation. Article 9(1) of The
The African Charter is incorporated in
FDRE Constitution provides that the
the Ethiopian legal system by virtue of
Constitution is the supreme law of the
article 9(4) of the Constitution which
land with the effect that any contradicto-
clearly states that international agree-
ry law shall be void. On the other hand,
ments ratified by Ethiopia are integral
article 13(2) of the Constitution provides
parts of the law of the land. In practice,
that the Bill of Rights shall be interpret-
the African Charter and all international
ed in a manner conforming to interna-
instruments ratified by Ethiopia are
tional instruments adopted by Ethiopia.
fused into national law through a ‘ratifi-
The Constitution elevated international
cation proclamation’ ‒ a piece of legisla-
human rights treaties binding Ethiopia
tion promulgated by Parliament in the
to a status higher than any ordinary
official law gazette (the Federal Negarit
legislation, and equal to the Constitu-
Gazeta). By such legislation, Parliament
tion.22 The Federal Supreme Court
simply declares the ratification of the
instrument without reproducing and (Cassation Division) recently estab-
domesticating its text. Consequently, lished a precedent in the famous case of
this study did not find any domestic Tsedale Demissie v Kifle Demissie wherein
legislation that explicitly domesticated it settled a case of child custody by
the provisions of the African Charter. giving primacy to the best interest of the
child principle of the CRC over the
Though article 9(4) of the Constitu- provision of the family law.23 Thus, as
tion as above prescribes a monist one of the human rights instruments
approach as to domestication of interna- ratified by Ethiopia, the African Charter
tional instruments, a deep rooted culture hence is not only part of Ethiopian law
of dualism prevailed in practice as a
result of legislation requiring publication
20 It must be noted that the Cassation Division
of all laws in the Federal Negarit Gazeta has the final judicial power over fundamental
to effect judicial notice of those laws.19 errors of law as per art 80(3)(a) of the
Constitution.
This brought tendencies that publication 21 In Tsedale Demissie v Kifle Demissie Federal
of the text of a ratified treaty in the offi- Cassation File 23632 (6 November 2007), the
Court directly applied the provision of the
cial gazette in the official language is a CRC arguing that ‘… the UN Convention on
requirement for that treaty to become a the Rights of the Child – one of the
Conventions which Ethiopia has ratified in
directly applicable law of the land just 1992 – and which has become the integral
like other legislation enacted by Parlia- part of the law of the land by virtue of art
9(3) …’
ment. The controversy seems to be 22 See I Idris ‘The status and application of
resolved by the Federal Supreme Court international treaties in Ethiopia’ (2000) 20
Journal of Ethiopian Law 113; T Soboka ‘The
monist-dualist divide and the supremacy
clause: Revisiting the status of human rights
treaties in Ethiopia’ (2009) 23 Journal of
Ethiopian Law 132.
19 Arts 2(2) and (3) of Proclamation 3/ 1995. 23 Tsedale Demissie (n 21 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 61

with a higher status in the hierarchy, but from torture, inhuman and degrading
also authoritative text for the interpreta- treatments; access to justice; due process
tion of the Bill of Rights. This notwith- and fair trial rights; and freedoms of
standing, the status of international movement, religion, opinion, expres-
human rights instruments vis-à-vis the sion, assembly and association. Though
Constitution remains tricky in light of the limited nature of this study does not
the supremacy of the Constitution. It allow exhaustive description and in-
may logically follow that the provisions depth analysis of each of these rights, a
of the African Charter (and other inter- close reading affirms that the provisions
national human rights instruments) have maintain conformity with the norms of
equal importance with the Bill of Rights the African Charter.
provisions to the extent that they do not
contradict the Constitution.24 The Bill of Rights incorporated
specific provisions that address
The Constitution of Ethiopia recog- women’s rights and gender equality
nises a long list of rights ranging from issues in a manner corresponding with
civil and political rights to socio- the norms of the Maputo Protocol and
economic and group rights. The African the African Charter. The FDRE Consti-
Charter cannot be said to have played a tution can, in fact, be cited as one of the
significant role during the drafting of more progressive constitutions in Africa
the Bill of Rights, as the adoption of the when it comes to women’s rights. For
1995 Ethiopian Constitution precedes instance, article 34 of the Constitution
the ratification of the Charter by Ethio- dealing with family rights provides for
pia in 1998. It is also important to note equality of women and men in conclu-
that the Bill of Rights was not changed sion, duration and dissolution of
after Ethiopia became a party to the marriage; and article 35 of the Consti-
African Charter. Most importantly, the tution, devoted to the rights of
majority of the rights recognised under women, guarantees equality in mari-
the African Charter, the Maputo Proto- tal affairs, employment rights, proper-
col and other international human rights ty rights (including equal rights over
instruments are enshrined in the Consti- land and inheritance), maternity
tution. rights in employment, access to fami-
ly planning information and services,
The traditional civil and political protection from harmful traditional
rights, mostly replicated from the practices, the right to consultation,
Universal Declaration of Human and entitlement to affirmative meas-
Rights, are comprehensively provided ures. The Bill of Rights also provides
for. These range from equality before ample protection to children under
the law and protection against discrimi- article 36 that conforms to the African
nation to the rights to life, liberty, physi- Charter and the Maputo Protocol, as
cal security and integrity; protection well as other relevant international
instruments dealing with children’s
rights.
24 This excludes the application of the
interpretation clause (art 13(2) of the
Constitution) to cases where clear Social and economic rights (SER)
discrepancies exist between the Constitution are also covered under the Ethiopian
and international instruments. See AK
Abebe ‘Human rights under the Ethiopian Bill of Rights. Article 41(4) imposes a
constitution: A descriptive overview’ (2011) duty on the government to provide
5 Mizan Law Review 48.
62 Ethiopia

access to health, education and other development.30 The importance of these

social services ‘to the extent the coun- rights for Ethiopia as a country with a
try’s resources permit’. The Constitu- rich and varied mix of ethnic groups is
tion also guarantees several socio- immense especially in the context of
economic rights as part of the National remedying past problems and upholding
Policy Principles and Objectives25 that the equality of all peoples as enshrined
fall outside the Bill of Rights. The under article 19 of the African Charter.
provisions of the Constitution dealing However, the Bill of Rights falls short of
with SER, though arguably justiciable, recognising important peoples’ rights as
are criticised for not being formulated provided under the African Charter such
in a clear cut ‘rights language’ that as the rights of peoples to existence, to
establishes individual or collective justi- free disposal of wealth and natural
ciable rights as in the African Charter resources, and to peace and securi-
and other international instruments.26 ty.31
A notable departure of the FDRE
Constitution in respect of SER is that The Constitution allows the possible
the provisions often refer to Ethiopians suspension of most of the fundamental
as subjects of the rights unlike the Afri- rights and freedoms to ‘the extent neces-
can Charter that guarantees the rights to sary’ with only very few exceptions.32
all persons.27 The Constitution also What is dangerous is that the derogation
lacks provisions on individual cultural provisions fall outside the Bill of Rights
rights as it simply provides for the duty (Chapter 3 of the Constitution) and are
of government to protect cultural and not subject to the interpretations clause
historical heritage.28 applicable to the Bill of Rights; there is
no constitutional imperative for their
The Ethiopian Bill of Rights is interpretation in the light of internation-
applauded for enshrining the rights of al human rights instruments.
peoples’ (nations, nationalities and
peoples); becoming the only in Africa The Bill of Rights is justiciable as
that guarantees the right to self-deter- the Constitution clearly establishes the
mination of peoples’ in congruence with duty of courts to enforce fundamental
article 20 of the African Charter.29 In rights and freedoms, and the right of
addition to self-administration, it also everyone to bring a justiciable matter to
preserves peoples’ rights to freely court to get remedy.33
express and develop their culture and
language, and exercise their right to

30 See arts 39(2)(3) & 43 of the Constitution

25 Arts 89 & 90 of the Constitution. and art 22 of the African Charter.
26 They are said to be formulated in a manner 31 Arts 20, 21& 23 of the African Charter.
creating government obligations rather than 32 See arts 91-94 of the Constitution. The only
rights which begs for arguments about their exceptions are the protection against cruel,
justiciability. See Abebe (n 24 above). inhuman, and degrading treatment or
27 See art 41 of the Constitution and arts 15-17 punishment, and slavery or servitude, and
of the African Charter. It is to be noted that trafficking (art 18), the right to equality and
art 4 of the ICESCR leaves room for equal protection of the law (art 25), and the
developing countries to determine the scope right to self-determination up to secession
of application of the rights to non-nationals. (art 39).
28 Arts 44 & 91 of the Constitution. 33 See arts 13(1) & 37(1). See also
29 See art 39(1); see also C Heyns & SA Yeshanew ‘The justiciability of human
W Kagoungo ‘Constitutional human rights rights in the Federal Democratic Republic of
law in Africa’ (2006) 22 South African Journal Ethiopia’ (2008) 8 African Human Rights Law
of Human Rights 673 678. Journal 273 277-279.
 Impact of the African Charter and the Maputo Protocol in selected African states 63

4 Legislative and policy reform economic rights. A Proclamation on the

Registration of Vital Events and Nation-
Legislative measures have been taken by al Identity Card has been issued to
both the Federal and Regional States’ create a mechanism for the registration
legislative organs to enhance the protec- of vital events which was followed by
tion of human rights in Ethiopia. In establishing the Vital Events Registra-
spite of the absence of any constitutional tion Agency.34 The list is clearly not
amendment since ratification of the exhaustive. These and other enabling
African Charter, several laws and poli- pieces of legislation do not however
cies came in to effect afterwards. Some make any explicit reference to the Afri-
of these laws give effect to the African can Charter or the Maputo Protocol.
Charter by virtue of correspondence in
norms (though no cases of direct causal- On the other hand, regressive laws
ity found); and some derogate from the were passed by Ethiopia in recent
standards provided for in the African years leading to serious human rights
Charter. violations which have been the subject
of criticism at the national as well as
Positive examples include the international level. Notable examples
Revised Family Law of 2000 which include the Access to Information Proc-
guarantees equality of spouses during lamation of 2008 which imposes restric-
the conclusion, duration and dissolution tions on freedom of expression,
of marriage, equality in common prop- compelling journalists and the mass
erty management and administration of media to disclose their sources of infor-
family matters, and sets the minimum mation. The Anti-Terrorism Proclama-
age of marriage at 18 years for both tion of 2009 stifles dissent through the
males and females. The Revised Crimi- use of accusations of terrorist activities
nal Law of 2004 was a normative step mainly against journalists and members
forward in introducing wider safeguards of opposition political parties. The
against violence and exploitation of chil- Charities and Civil Societies Proclama-
dren and women, sexual crimes and tion of 2009 curtails the exercise of free-
crimes against humanity, amongst dom of association and assembly,
others. The Labour Proclamation of and suppresses the activities of civil soci-
2003 and its amendments, the Right to ety. The Electoral Decree of 2014 also
Employment of Persons with Disability prohibited civil society organisations
Proclamation of 2008, the Public Serv- from ‘campaigning’, including providing
ants Pension Proclamation of 2011 and human rights education, on any issue
the Private Organization Employees’ relevant to elections.
Pension Proclamation of 2011 provided
comprehensive legal frameworks for the In line with the National Policy
implementation of employment related Principles and Objectives provided in
rights. In addition, several other procla- the Constitution (Chapter 10), Ethiopia
mations such as the Higher Education adopted a number of development-
Proclamation of 2009; the Social Health focused policies that facilitate the reali-
Insurance Proclamation of 2010; and sation of human rights in general; as
Expropriation of Land Holdings for well as specific policies relevant to the
Public Purposes and Payment of
Compensation Proclamation of 2005
34 See Proclamation 760/2012 and Regulation
addressed a range of social and 278/2012.
64 Ethiopia

implementation of human rights norms. power of constitutional adjudication is

The Democratic System Building Policy not given to courts, but rather to the
(2002) provides a framework for build- House of Federation (lower house of the
ing democratic rule, good governance Parliament) upon recommendation by
and social justice. The Criminal Justice the Council of Constitutional Inquiry
Policy (2010) dealt with policy matters (CCI).37 This in practice limits to a
concerning crime prevention, criminal large extent the use of international
justice administration and the protection instruments as well as the interpretation
of vulnerable groups. The Women’s of the Bill of Rights by Ethiopian courts.
Policy (1993) that laid down the policy
framework for the realisation of There are some notable cases in
women’s human rights has been which international human rights instru-
strengthened through subsequent ments are used by the CCI and the
national strategies and action plans.35 Federal Supreme Court (Cassation Divi-
National action plans that address social sion). The CCI referred to the African
protection and the welfare of children, Charter in its decision concerning the
older persons and persons with disabili- constitutional question raised by the
ty were introduced.36 The National petitioners in the case between Assefa
Human Rights Action Plan (NHRAP) Abrha and others v Federal Ethics and Anti-
was adopted in 2013 to advance the Corruption Commission.38 The Council
respect, protection and fulfillment of the illuminated that the right to bail has
human rights guaranteed by the Consti- limitation under international and
tution in a comprehensive and structural regional law, particularly the African
manner. Except for the NHRAP, none Charter as well as other human rights
of these and other policies make direct instruments. It ruled that the law that
reference to the African Charter (or the denies bail in cases of some serious
Maputo Protocol) but they reflect the crimes is constitutional and in line with
norms therein and give effect to the international human rights instruments.
same.
The Federal Supreme Court cites
international human rights instruments
5 Court judgments
in only a few cases. Apart from the
notable case of Tsedale Demissie v Kifle
The practice of Ethiopian courts in
Demissie, the Supreme Court has also
general reflects rare use of international
directly applied the African Charter on
human rights instruments in adjudica-
the Rights and Welfare of the Child in
tion at all levels within the judiciary. It
the case of The House of the Federation of
is also worth noting that in Ethiopia, the
Democratic Republic of Ethiopia (the HOF)

35 See S Demessie & T Yitbark ‘A review of

National Policy on Women’ (2008) in 37 The Council of Constitutional Inquiry is a
T Assefa (ed) Digest of Ethiopian National quasi-judicial body constitutionally man-
Policies, Strategies and Programs (2008) 93-125. dated to examine constitutional disputes and
The National Action Plan on Gender submit interpretive recommendations to the
Equality (2002-2006 and beyond), and the House of the Federation which has the ulti-
recent National Strategy and Action Plan on mate say on constitutional interpretation.
Harmful Traditional Practices against See arts 82, 83, and 84 of the FDRE Consti-
Women and Children launched in 2013 are tution.
notable frameworks. 38 For a thorough discussion of the case see
36 See Ministry of Labour and Social Affairs W Demissie ‘The Right to Bail in Ethiopia:
http://www.molsa.gov.et/English/SWD/ Respective Roles of the Court and the
Pages/index.aspx (accessed 15 October Legislature’ (2009) 23 Journal of Ethiopian
2015). Law 2.
 Impact of the African Charter and the Maputo Protocol in selected African states 65

and others v Rev Mamo Yitaferu as a basis The obvious reason for minimal
of remedy by setting aside the Civil usage of the Maputo Protocol,
Code provisions.39 However, review of compounded by a lack of awareness, is
Supreme Court decisions shows that the the fact that it is not a ratified instru-
African Charter has not been used in ment. When it comes to case law, aside
any binding decisions and is used occa- from the awareness deficit, the civil law
sionally in dissenting opinions. Lower tradition adopted by the Ethiopian legal
courts are no exception to this general system poses certain limitations, as
trend; their practice typically reflects much allegiance is directed towards
only occasional reference to conventions codified law. As a result, the idea of
by the International Labour Organisa- reference to case-law of the African
tion (ILO) in employment related Commission has not yet been conceived
disputes. by many judges. Irrefutably, the provi-
sions of the African Charter and the
Judges admit that use of the African findings of the African Commission in
Charter as a basis for interpretative interpreting the provisions of the Bill of
guidance or remedy in binding judg- Rights will go a long way towards
ments is rarely attributed, mainly due to enforcing constitutional rights and
limited awareness and access.40 Inacces- enriching domestic human rights juris-
sibility of the instruments in working prudence.
languages coupled with case backlogs
are perhaps amongst the limiting factors 6 Awareness and use by lawyers
which prevent judges from making
‘extra efforts’ to look for reference
The practice of lawyers in Ethiopia in
outside the ‘hands-on’ domestic laws.41
respect of the application of internation-
For that matter, judges are mostly left al human rights instruments is no excep-
unaware of the contents of ratified trea- tion to that of judges. The study
ties as ratification proclamations do not revealed that international instruments
publish full texts of the various treaties. are rarely referred to by lawyers in their
In addition, availability of treaties in the written submissions as well as oral argu-
working languages of the courts has ments. Similarly, major reasons cited for
been difficult. It is important at this the lack of reference to regional instru-
juncture to note that none of the African ments are the lack of awareness and
Union or United Nations official accessibility of these instruments.42 The
languages is the language of Ethiopian
CRC and the ILO conventions are
courts, and that Ethiopian courts are
better utilised by lawyers in relative
required to take judicial notice only of
terms while use of the African Charter is
those laws as they appear in the official
almost non-existent. It has come up
gazettes.
very clearly that only a few practicing
lawyers are in fact aware of the African
human rights system.

39 As above.
40 Interviews with Justice Bewket Belay & Jus- 42 Interviews with Attorneys Mr Hassabe Mulu
tice Belachew Anshiso of the Federal (2 September 2015), Mr Fekadu Mola
Supreme Court (31 August 2015). Other (30 October 2015) and Mr Amaha
judges who participated through question- Mekonnen (12 November 2015). Other
naires and group discussions also shared lawyers who participated through group
similar opinion. discussions and questionnaires conceded
41 As above. with the statement.
66 Ethiopia

The dearth of promotion of these ration in terms of transfer of experiences

instruments in legal trainings and around using relevant treaties.
national human rights activities highly
contributes to the limited awareness 7 Awareness and use by civil
amongst lawyers and consequently a society
lack of visibility of the African Charter
in the Ethiopian legal practice.43 It must Currently, there is no adequate presence
be noted that many lawyers do not of human rights NGOs in Ethiopia.
pursue human rights as a career as it is More so, the level of awareness and
perceived to be the work of NGOs. engagement of civil society groups in
Most lawyers focus on commercial and respect of the African Charter and the
company law, which mostly does not Maputo Protocol is low. The more
require direct use of human rights notable Ethiopian NGOs do not have
instruments and generally does not international human rights programmes
involve active human rights litigation. that regularly engage with international
There are only a few lawyers who human rights institutions and proce-
specialise in human rights and even dures.
fewer who are affluent with knowledge
and experience of the African human There are only two Ethiopian
rights system and of these, many either NGOs that currently have observer
do not engage in litigation practices or status with the African Commission ‒
work outside Ethiopia. In this regard, the Human Rights Council (HRCO) and
the importance of sensitising workshops Justice for All ‒ Prison Fellowship Ethiopia.
on the use of the African Charter and These NGOs attend the African
case law of the African Commission Commission’s sessions from time to
was underscored by lawyers.44 time though do not actively participate
in the activities of the Commission.
Lawyers’ associations also do not Moreover, they have not engaged much
incorporate activities that promote use with the individual complaints proce-
of the African Charter. For instance, the dure, the special mechanisms, shadow
Ethiopian Lawyers Association (ELA) reporting or other platforms and mecha-
provides continuous training for lawyers nisms of the Commission.
and also organises discussions on laws;
but it has not included the African Char- CSOs in Ethiopia in general have
ter or any of the African instruments in rarely used the African Commission’s
its activities.45 Though ELA is a communications procedure. Only four
member of regional lawyers groups46 communications involving Ethiopia
which actively engage with the African have been settled by the African
human rights instruments and mecha- Commission since the state ratified the
nisms, there has not been much collabo- African Charter and yet none of those
were submitted by Ethiopian CSOs.
43 Interviews with representatives of the One communication was in fact submit-
Ethiopian Lawyers Association, Mr Tamirat ted by an Ethiopian NGO (the Ethiopi-
Kidanemariam, President & Mr Manyawkal
Mekonnen, CEO (10 November 2015). an Women Lawyers Association ‒
44 Interviews with Attorneys (n 42 & 43 above). EWLA) in 2007 but it was not pursued
45 Interviews (n 43 above).
46 ELA is a member of the Pan African due to initiation of an amicable settle-
Lawyers Association (PALU) and an ment that was believed to be favourable
observer member of the East African Law
Society.
 Impact of the African Charter and the Maputo Protocol in selected African states 67

to the victim.47 The African Charter and NGOs that previously engaged in
the jurisprudence of the African human rights work had to close their
Commission have not served as a key human rights programmes and shift
resource in the hands of Ethiopian their focus to service or development
NGOs, CSO's or human rights defend- oriented programmes. A typical exam-
ers. It is the writer’s observation that ple is the Action Professional Associa-
there is a general hesitation or fear tion for the People (APAP), a
amongst CSOs, human rights advocates prominent human rights advocacy
and lawyers when it comes to resorting NGO, which closed down its human
to international mechanisms. rights programmes in order to survive
the new funding requirements. Those
The use of the Maputo Protocol by who chose the path of human rights ‒
women’s rights organisations is invisi- such as EWLA and HRCO ‒ had to
ble, and this is attributable to the fact downsize their programmes and main-
that Ethiopia has not ratified the Proto- tain only minimal operations due to
col. A few NGOs such as EWLA and immense resource constraints.
the Network of Ethiopian Women’s
Associations (NEWA) have been 8 Higher education and academic
promoting the Maputo Protocol through writing
awareness creation and lobbying
forums. The 2012 Maputo Protocol ratifi-
In Ethiopia, a revised and nationally
cation campaign organised by NEWA
harmonised new curriculum for under-
in collaboration with other women’s
graduate legal studies was introduced in
rights groups is worth noting. There is
2008. Under this curriculum, courses on
however no awareness or promotion of
international human rights, African
the General Comments of the African
human rights and African Union law
Commission on the Provisions of the
are offered in all law schools in the
Protocol relating to women's rights.
country. The African human rights law
The number of human rights NGOs course is designed to deal directly with
in Ethiopia has decreased since the the regional human rights system in
enforcement of the CSOs Law that Africa; the major instruments covered
requires local/human rights CSOs to being the African Charter, the Maputo
raise 90 per cent of their funding from Protocol and the African Charter on the
local sources.48 As a result, many Rights and Welfare of the Child. It is
also noted that there are some postgrad-
uate human rights programmes run by
47 Interview with Ms Zenaye Tadesse,
Executive Director of EWLA (12 November Ethiopian universities which incorpo-
2015). The communication was submitted rate the African human rights system as
on behalf of a girl who was abducted and
raped by a man, and yet did not get justice well. For instance, at Addis Ababa
from domestic courts. EWLA reported that University, the oldest in the country,
the case was dropped as the Ethiopian
government recognised the violations and courses that deal with African human
offered satisfactory remedies. Nevertheless, rights are offered by both the Faculty of
one of the co litigants before the
Commission, Equality Now, continues to Law and the Centre of Human Rights at
pursue this case. an undergraduate and postgraduate
48 See art 2(2) & (3) of Proclamation 621/2009.
Those CSOs that receive more than 10 per level. Moreover, the African human
cent of their funding from foreign sources are rights system is fairly well represented in
prohibited from engaging in human rights
advocacy work by virtue of art 14(5) of the extra-curricular activities such as moot
Proclamation.
68 Ethiopia

court competitions. The growing partici- dissertations by students that make use
pation of Ethiopian universities in the of the African Charter is increasing.
annual African Human Rights Moot Relevant scholarly articles in local
Court Competition has not only helped journals are still very limited but more
to bring greater exposure to the African are being published in foreign journals.
Charter but also to the case law and
procedures of the African Commission. 9 National human rights
institutions
There are no significant academic
writings in Ethiopia on the subject of the
The Ethiopian Human Rights Commis-
African Charter, the Maputo Protocol
sion (EHRC) was established by law in
or the African Commission, probably
2000 and is armed with an extensive
because of the late introduction of Afri-
mandate around the promotion and
can human rights course in law school
protection of human rights in Ethio-
education. Though there are several arti-
pia.51
cles that make reference to the African
Charter or the Maputo Protocol, while EHRC was granted affiliate status
discussing different human right issues, with the African Commission in 2006,52
there are few published articles directly and engages with the African Commis-
dealing with the said instruments or the sion by attending sessions and collabo-
African Commission.49 Though there rating with the special mechanisms. It
are a few scholars who have contributed has not, however, submitted any reports
notable academic writings on the Afri- to the African Commission, as is
can human rights instruments and required having regard to its affiliate
mechanisms, their work is not widely status; though the first report is said to
published and disseminated locally.50 be under preparation.53 Active partici-
pation by the EHRC in the activities of
The study was unable to conduct
the African Commission is yet to be
countrywide exhaustive searches in all
enhanced.
the law schools. It is however conclu-
sively observed that the number of EHRC makes reference to the Afri-
can Charter in its research, law reviews,
training, public education and advocacy
49 Some examples include, AJ Ali ‘The admis-
sibility of sub-regional courts’ decisions activities in the same manner as it does
before the African Commission or African to other relevant African and interna-
Court’ (2012) 4 Mizan Law Review 241; EH
Mengesha ‘Reconciling the need for advanc- tional instruments. Remarkably, the
ing women's rights in Africa and the dictates EHRC has made the African Charter
of international trade norms: The position of
the Protocol on the Rights of Women in available in the local language (Amhar-
Africa – Focus on the Protocol to the African ic) and this version has been published
Charter on Human and Peoples' Rights on
the Rights of Women in Africa’ (2006) 6 Afri- and disseminated to relevant human
can Human Rights Law Journal 208 168-187; rights actors, and exists as an online
FH Berhane ‘Why Ethiopia should ratify the
Maputo Protocol’ (2010) 507 Pamazuka resource available on the EHRC
News http://pambazuka.org/en/category/
features/69059 (accessed 10 November
2015). 51 See Proclamation 210/2000. EHRC only
50 For example, TS Bulto extensively published became operational in 2005.
on the African human rights system in 52 http://www.achpr.org/sessions/40th/
international journals (see his publications (accessed 20 August 2015).
available at http://www.researchgate.net/ 53 Interview with Mr Mitiku Mekonnen, Direc-
profile/Takele_Bulto/publications (accessed tor, Human Rights Protection and Monitor-
5 February 2016)). ing Directorate, EHRC (11 November 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 69

website. Wider dissemination to the tions of which are translated, published

public, and translation into and publica- and disseminated by EHRC.54
tion in other local languages is yet to be
done. With regards to the Maputo 10 State reporting
Protocol, the EHRC is working closely
with MoFA on lobbying for ratification. Ethiopia submitted two state reports to
The rights of women being one of the African Commission in respect of
EHRC’s main programmes under the the African Charter. The first was a
Commissioner of Women’s Rights, combined initial and 1st-4th periodic
EHRC has provided technical assistance report and was submitted in 2008 while
in preparing the relevant proposal to the second was a combined 5th and 6th
cabinet for purposes of initiating ratifica- periodic report, submitted in 2014. In
tion of the Protocol. the light of article 62 of the African
Charter, requiring states to submit
Working closely with MoFA,
reports every two years, Ethiopia’s
EHRC also plays an active role in the
reporting record falls short of meeting
preparation of periodic reports under
the timeframes for each report. The
human rights treaties to which Ethiopia
reason for such delay, as indicated by
is a party. Accordingly, the EHRC is
the government, was inadequacy of
greatly involved in the preparation of
resources55 perhaps compounded by
reports submitted to the African
multiple reporting duties. However,
Commission and provides technical
having made remarkable effort in clear-
support and coordination assistance in
ing its reporting backlog, Ethiopia is
the form of facilitating consultation with
currently one of very few member states
CSOs and other stakeholders. The
who have no outstanding reports under
EHRC, in fact, served in the National
the African Charter.56
Drafting Committee that was tasked to
draft the 5th and 6th periodic reports The legal department of MoFA is
submitted to the African Commission responsible for preparation of state
by the government of Ethiopia. reports under the African Charter and
other international instruments. As the
Admittedly, there is not much done
African Charter covers a range of
by the EHRC in so far as promoting the
human rights that fall under the
African Charter is concerned, and
mandate of different institutions, MoFA
following up on implementation of the
works closely with other government
concluding observations, resolutions
ministries to gather relevant information
and decision of the African Commission
and coordinate the drafting process.
is equally not a main activity of the
EHRC. There is, in fact, no dialogue The preparation of the combined
concerning implementation of the initial and 1st-4th reports was less
recommendations of the African participatory although broad participa-
Commission on the communication
involving Ethiopia discussed below. It is 54 EHRC ‘Recommendations from 2nd UPR of
noted, moreover, that there is greater Ethiopia’ (Amharic) (2015).
55 See ‘Ethiopia State Report ‘(2008) http://
focus on the Universal Periodic Review www.achpr.org/files/sessions/46th/state-re
(UPR) process, the concluding observa- ports/1st-to-4th-1998-2007/staterep1to4_eth
iopia_2008_eng.pdf (accessed 8 August
2015) 7.
56 http://www.achpr.org/states/ (accessed
20 November 2015).
70 Ethiopia

tion was noted in the case of the later, 11 Communications involving the
combined 5th and 6th report. Prepara- state
tion of the combined 5th and 6th period-
ic reports was led by a National There have been some communications
Committee composed of the EHRC and submitted to the African Commission
six relevant ministries,57 and coordinat- involving Ethiopia. One of the commu-
ed by the MoFA. The drafting process is nications involving Ethiopia was
said to have involved extensive stake- Communication 301/05 Haregewoin
holder consultations to gather informa- Gabre-Selassie and IHRDA (on behalf of
tion on implementation of the African former Dergue Officials) v Ethiopia.60 The
Charter. Consultative workshops were complainants alleged violation of fair
also organised at different stages of the trial rights, amongst others, under the
drafting process and provided an oppor- African Charter. The African Commis-
tunity to a wide range of stakeholders ‒ sion found the government of Ethiopia
from government, civil societies, inter- to be in violation of the said rights and
national partners, the private sector and consequently ordered Ethiopia to pay
the media ‒ to discuss the drafts and adequate compensation to the victims.
provide comments and inputs that were Despite the importance of the communi-
taken into consideration.58 cation in providing a remedy to the
victims involved, no publicity has been
The concluding observations issued given to the communication or decision
by the African Commission and other at the domestic level. The concerned
treaty bodies are distributed to relevant NGO and the lawyers involved in the
government ministries and depart- communication have not used it for
ments. Apart from inter-ministerial domestic level promotion of the
dissemination, there is no evidence of outcome as well as the work of the Afri-
dissemination of the concluding can Commission. So far, no known
observations to the public or any steps have been taken by the Ethiopian
translation of the same into local government towards implementing the
languages. Similarly, specific steps recommendations of the African
taken towards implementing the recom- Commission in respect of the communi-
mendations in the concluding observa- cation and the government is yet to
tions of the African Commission cannot report to the African Commission on
be traced. In this regard, MoFA is said implementation.
to be planning to institute a structured
follow-up mechanism for recommenda- The above case is the only commu-
tions of international human rights nication involving Ethiopia that has
bodies including those of the African been decided on its merits as at the time
Commission.59 of this study. As for the rest, they were
all dismissed or suspended at the admis-
sibility stage of the communications
57 The six member ministries were the MoFA,
Ministry of Justice, Ministry of Federal process.61 The study notes that a hand-
Affairs, MoWCYA, Ministry of Finance and
Economic Development, Ministry of
Communication Affairs. See Ethiopia State
Report (2014) http://www.achpr.org/ states 60 http://www.achpr.org/communications/de
/ethiopia/reports/5-2009-2013/ (accessed cision/301.05/20 (accessed 12 August 2015).
22 August 2015) 12. 61 See details of the communications at African
58 Interviews with MoFA officers (n 14 above). Human Rights Case Law Analyser: http://
See Ethiopia State Report (n 57 above). caselaw.ihrda.org/country/ethiopia/
59 Interviews with MoFA officers (n 14 above). (accessed 5 February 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 71

ful of communications involving Ethio- above problems. In addition, govern-

pia are pending before the African ment was urged to consider the release
Commission, the details of which are of persons above the age of 70, those
not yet public due to the confidentiality who are seriously sick, expectant and
clause under the Rules of Procedure of nursing mothers, and political prisoners;
the African Commission. to provide special dietary meals for chil-
dren, the sick, and nursing and expect-
12 Special mechanisms and ant mothers; to facilitate the regular
promotional visits by the inspection of prisons and detention
African Commission centres by government authorities, the
EHRC and NGOs; and to ensure proper
investigation of complaints of abuse,
The only visit by a special mechanism of
amongst others.
the African Commission to Ethiopia
was held by the Special Rapporteur on
Government has made attempts to
Prisons and Conditions of Detention in
address some of these recommenda-
Africa, in 2005. The mission was led by
tions. Measures to address prison
the then Special Rapporteur, Commis-
crowding, separation of juveniles from
sioner Dr Vera Chirwa, who visited
adults, separation of convicts and
several prisons in the country and held
suspects, and the provision of legal aid
discussion with government authorities,
are progressively being enforced.63 A
prisoners, prison and detention center
National Prison Administrations Strate-
officials, and NGOs.62
gic Plan is also being implemented in
order to standardise the treatment of
The mission identified several posi-
and provision of services to prisoners at
tive aspects in relation to the treatment
federal and regional levels. In 2007, the
and conditions of prisons and detention
Council of Ministers has issued Regula-
centres, such as the proper separation of
tions64 to ensure respect for the human
female sections from male sections that
are also guarded by female wardens; rights of prisoners and take measures in
and separate facilities for nursing and cases of violations. The EHRC also
expectant mothers. It also, however, conducted monitoring visits to police
identified problems of overcrowding, detention centres that documented
lack of separation of children from progress, gaps and recommendations.65
adults, and suspects from convicted
persons; lack of provisions of basic 13 Factors that may impede or
services and utilities; inadequate educa- enhance the impact of the
tional, medical and recreational facilities African Charter, the Maputo
in prisons; poor sanitation in police Protocol and the African
detention centres; inadequate funding Commission
allocation to prisons; and unduly
prolonged detention at the pre-trial and The availability of the African Charter
trial stages of the criminal justice in Amharic, which by virtue of being the
system, amongst others. The recommen- working language of the Federal govern-
dations of the Special Rapporteur
included urging the government of Ethi- 63 See Ethiopia State Report (n 57 above).
opia to take necessary steps to tackle the 64 The Federal Prison Wardens Administration
Regulation 137/2007 & the Treatment of
Federal Prisoners Regulation 138/2008.
62 See African Commission Report (n 5 above). 65 See EHRC Report (n 5 above).
72 Ethiopia

ment and four other regional states is human rights system. In particular,
widely used throughout the country, is a incorporation in the EHRC’s Strategic
positive factor. The translation of the Plan of advocacy work around ratifica-
Charter in as many local languages as tion of the Maputo Protocol is an
possible would go a long way in important factor that can support the
promoting it. ratification and visibility of the Proto-
col. The EHRC should incorporate
The existence of a justiciable Bill of targeted projects to promote the African
Rights and enabling subsidiary laws is Charter, the Maputo Protocol and the
instrumental in promoting and giving work of the African Commission.
effect to the African Charter. In particu-
lar, the interpretation clause of the Available institutional frameworks
Constitution can play an immense role such as the Justice Professionals Train-
in catalysing application of the African ing Centre and the Justice and Legal
Charter into the domestic legal practice Systems Reform Institute could be
involving human rights issues. Howev- powerful tools for incorporating the
er, it requires an active judiciary and African Charter and the jurisprudence
lawyers who keenly initiate interpreta- of the African Commission in trainings
tions in the light of the provisions of the and legal research.
African Charter. The emerging practice
of reference to international instruments Wider participation of government
by the Federal Supreme Court can also as well as non-government stakeholders
slowly erode the stalemate in the Ethi- in the reporting process and the impor-
opian judicial tradition towards refer- tant attention given by government
ence to international legal instruments. bodies to reporting and concluding
Such practice should be extended to the observations of the African Commission
provisions of the African Charter and is a positive asset to intensify the impact
also be mainstreamed to lower and of the African Charter and its protocols.
regional courts. Publication and wider dissemination of
periodic reports and concluding obser-
The existence of NGOs with observ- vations can be instrumental in raising
er status with the African Commission the awareness of grassroots actors and
could also be a powerful resource if the general public, and should be priori-
exploited effectively. It could be used to tised.
promote the African Charter and the
work of the African Commission; to The formal and harmonised
lobby for ratification of the Maputo incorporation of the African human
Protocol; and proactively to engage with rights system into law school curricu-
the Commission through available chan- la at national level, coupled with the
nels. growing number of university lectur-
ers trained on the African human
EHRC’s comprehensive statutory rights system, is already enhancing
mandates and its affiliate status with awareness and knowledge of regional
the African Commission could be human rights law among the new
useful in increasing the visibility of the generation of legal professionals.
African Charter, the Maputo Proto- Moreover, the increasing number of
col and the work of the African Ethiopians attending human rights
Commission within the domestic courses at a postgraduate level is prov-
 Impact of the African Charter and the Maputo Protocol in selected African states 73

ing an asset for promoting and incor- ter in domestic litigation, it still
porating the African Charter in their creates practical problems. Thus,
official texts of treaties should be made
respective fields of domestic human
available to courts in relevant, various
rights work. languages.
(c) A s fo r t h e Maputo Protocol, its sta-
Dr Solomon Ayele Dersso is the
tus as a non-ratified instrument highly
first Ethiopian to join the African precludes any attention given to it at
Commission as a Commissioner. all levels. The MoFA, MoWCYA,
However, as he has just been appointed, EHRC and concerned NGOs should
in June 2015, it is premature to assess persist in their lobbying efforts to effect
ratification that is pending before par-
what role this factor has played in
liament.
enhancing the influence of the African
(d) The dearth of dynamic local or interna-
Charter and the African Commission in
tional human rights NGOs operating
Ethiopia. It is hoped that it will have a in Ethiopia that engage with the Afri-
positive influence in increasing the visi- can Commission, aggravated by the
bility of the African Charter and the restrictions imposed by the CSOs Law,
work of the Commission in Ethiopia. is a major factor that limits the promo-
tion of the African Charter in domestic
human rights practice.
The presence of the African Union
Headquarters should serve as a bridge (e) Laws that curtail freedom of associa-
tion and expression which in effect sup-
between the African Commission and
press NGO’s work and the freedom of
the people of Ethiopia. The African academics, lawyers and journalists
Commission as well as interest groups have negative bearings on the use and
working with it can use the African impact of the African Charter in Ethio-
Union Commission channels for the pia.
promotion of human rights. (f) The lack of media attention to the
work of the African Commission con-
The main factors that the study tributes to the lack of public aware-
ness. Review of major media coverage
identified as impeding the influence of
revealed that the interest of the mass
the African Charter, the Maputo Proto- media on African issues focuses on
col and the African Commission in political and economic topics. Stake-
Ethiopia are summarised as follows: holders should enhance the role of the
media in promoting the African Char-
(a) The lack of widespread awareness of ter and the work of the African Com-
the African Charter and the work of mission.
the African Commission amongst key (g) The fact that no sessions or promo-
stakeholders such as judges, lawyers, tional visits of the African Commission
academics, human rights advocates have been held in Ethiopia since ratifi-
and government institutions constitutes cation of the African Charter has also
a major factor that diminishes the use contributed to the disconnect between
and influence of the African Charter. the Commission and local human
Training and awareness raising forums rights actors.66 Holding sessions and
are highly desired. visits in Ethiopia could facilitate
(b) The lack of publication of the Afri- greater awareness and promote greater
can Charter in government law interaction with the African Commis-
gazette in the official working lan- sion if complemented by effective pro-
guages of courts is a key practical motional strategies.
factor impeding its use by judges
and litigating lawyers. Though pub- 66 Prior to ratification, the 1st Ordinary Session
lication can no longer be used as a of November 1987 and the 14th Ordinary
ground to exclude use of the Char- Session of December 1993 have taken place
in Ethiopia.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
THE GAMBIA

Satang Nabaneh*

1 Introduction population is estimated at 1.8 million.5

The preliminary results indicate that
The Gambia remains one of poorest women make up 50,5 per cent of the
countries in the world. The 2014 UNDP population with males constituting 49,5
Human Development Report ranks the per cent.6
country 172 out of 187 countries.1 The
Gambia ranks at 139 on the Gender The promulgation of the 1997
Inequalities Index (GII).2 According to Constitution of the Republic of The
the Mo Ibrahim Index of African Gambia heralded a new dispensation for
Governance, The Gambia ranks 23 out the recognition and upholding of the
of 52 African states. Under the gender dignity of the individual. The Preamble
index score, the country ranks at 19th recognises the following:
position with a 58.3 score out of 100.3
The fundamental rights and freedoms
enshrined in this Constitution will ensure
The Gambia is a common law for all time respect for and observance of
country,4 and is one of the smallest human rights and fundamental freedoms
countries in mainland Africa. According for all, without distinction as to ethnic
to The Gambia’s 2013 population and considerations, gender, language and
religion.
housing census preliminary results, the
Section 17(1) of the Constitution
provides that the ‘fundamental human
rights and freedoms’ enshrined in the
Constitution ‘shall be respected and
upheld by all [government organs
including] the Legislature’. The Consti-
* LLM HRDA (Pretoria) & lecturer, Faculty of
Law, University of The Gambia. Email: tution contains a comprehensive cata-
satang.nabaneh@gmail.com. logue of rights and freedoms under
1 See UNDP Human Development Report Chapter IV. Section 37 of the Constitu-
‘Sustaining human progress: Reducing
vulnerabilities and building resilience’
(2014).
2 UNDP Human Development Report (n 1 5 The Gambia Bureau of Statistics (GBOS)
above) 158. ‘The Gambia 2013 Population and Housing
3 Mo Ibrahim Index of African Governance Census Preliminary Results’ (2014) 6 http://
(IIAG) 2014. dhsprogram.com/pubs/pdf/FR289.pdf
4 The Country attained her independence (accessed 20 August 2015).
from Britain on 18 February 1964. 6 GBOS (n 5 above) 8.

75
76 The Gambia

tion provides that any person who alleg- 2 Ratification of the African
es that any of the provisions of Chapter Charter and Maputo Protocol
IV have been, are being, or are likely to
be contravened in relation to himself or The Gambian Constitution vests in the
herself by any person; he or she may President the power to negotiate and
apply to the High Court for redress. conclude treaties and other international
agreements. The President may exercise
Section 28 of the Constitution
the power personally or through his
ensures that women are accorded full
Secretaries of State. Ratification of such
and equal dignity of the person with
treaties and international agreements is
men; and have the right to equal treat-
the prerogative of the National Assem-
ment with men, including equal oppor-
bly of The Gambia.8 With regards to the
tunities in political, economic and social
procedure for transmitting treaties, the
activities. Despite their numerical
Ministry of Justice receives the resolu-
strength, women’s rights and gender
tion of ratification from the National
equality issues continue to be systemati-
Assembly and prepares the instrument
cally marginalised even after all the rati-
of ratification for signature of the Presi-
fication and harmonisation of
dent. After signature, the instrument is
international human rights instruments
deposited through the Ministry of
and documents.
Foreign Affairs.9
Women’s representation in elective
The Gambia is a state party to many
positions is significantly low. In the
international human rights instruments.
National Assembly, only three out of
It ratified the African Charter and the
the 48 elected members are women with
Maputo Protocol on 8 June 1983 and
the addition of one nominated member
25 May 2005, respectively. There is no
being the current deputy speaker,
available information on the reasons for
making a total of four out of 53
ratifying the two instruments. However,
members. Thus, the percentage of elect-
it can be deduced that it might have
ed women members of parliament is 6,2
been as a result of the involvement of Sir
percent while the total percentage of
Dawda Jawara, The Gambia’s first
women in parliament is 7,5 per cent. At
President, in the process leading to the
the local level, as of April 2013, there
adoption of the final draft version of the
were only 18 women councillors out of
African Charter which was concluded in
137 councillors and only ten elected
Banjul, the Capital of the Gambia.
from a total of 109 elected councillors
around the country, which is less than However, it is important to note
one per cent. These figures are far below that The Gambia made a blanket reser-
The Gambia’s commitment to attaining vation on articles 5 (elimination of
gender equality.7 harmful practices), 6 (marriage), 7 (sepa-
ration, divorce and annulment of
marriage) and 14 (health and reproduc-
tive rights) of the Maputo Protocol. In
2006, due to intense advocacy and The

8 Sec 79(1)(c).
9 Email from Cherno Marenah, Solicitor
7 See S Nabaneh ‘Open letter on women’s General and Legal Secretary on 30 October
political participation’ (April 2013). 2015.
 Impact of the African Charter and the Maputo Protocol in selected African states 77

Gambia hosting the African Union (AU ed in 1996. It is responsible for policy
Summit), the reservation was formulation, coordination, resource
removed.10 In its failure to provide an mobilisation, monitoring and evaluation
explanation around the reservation, The at the highest level, addressing the needs
Gambia has shown that it made the and aspirations of women and girls
reservation without any tangible justifi- within the confines of Constitution and
cation. national policies.12

3 Government focal point The Women’s Act, 2010 under

sections 57 and 70 provide for the estab-
lishment of the National Women’s
The Ministry of Justice is the focal point
Council and the National Women’s
for all human rights issues under the
Bureau as the main government gender
leadership of the Attorney General and
machinery for implementation of the
Minister of Justice including the imple-
Maputo Protocol and other government
mentation of the African Charter.11 The
laws and policies for the advancement
Attorney General and Minister of
of women. The Council and Bureau
Justice are usually present and deliver a
also work closely with the Gender Focal
statement during the opening of sessions
Points (GFPs) of the various ministries
of the African Commission that are held
as gender mainstreaming is seen as a
in The Gambia. The ministry is also
crosscutting issue. The GFPs support
responsible for fulfilling state reporting
their respective ministries to assess their
obligations such as reports for the
specific needs in the field of gender
Universal Periodic Reviews. They do
responsive planning, programming,
this through the establishment of task
implementation, monitoring and evalua-
forces comprising different government
tion and make appropriate recommen-
ministries and agencies. A final report is
dations for capacity building. The
usually presented at a validation work-
Council and Bureau, with the support of
shop before government officials, para-
and in collaboration with related institu-
statals and various representatives of
tional structures and civil society organi-
civil society organisations. In addition,
sations (CSOs) strive to create an
they are also part of the delegation that
enabling environment for the full reali-
presents these reports to the relevant
sation of women’s rights.
human rights bodies. The ministry is
one of the most critical of all state agen-
cies with the mandate to ensure and 4 Domestication
safeguard fundamental freedoms and
rights including popularising human The Gambian legal system is based on
rights laws amongst law enforcers and English common law. It thus follows the
other professionals. However, it is also dualistic approach. This is based upon
beset with institutional, financial and the perception of two quite distinct
human resource capacity constraints. systems of law, operating separately and
also maintains that, before any rule or
The Ministry of Women’s Affairs, principle of international law can have
headed by the Vice President, was creat- any effect within the domestic jurisdic-
tion, it must be expressly and specifical-

10 F Viljoen International human rights law in

Africa (2012) 256. 12 Woman includes a ‘girl-child’ according to
11 Email from Cherno Marenah (n 9 above). sec 2 of the Women’s Act 12 of 2010.
78 The Gambia

ly 'transformed into municipal law by organizations of which The Gambia is a

the use of the appropriate constitutional signatory.
machinery, such as an Act of Parlia-
As directive principles of state policy,
ment.’13
these provisions do not confer legal
There is a strong presumption in rights and are not enforceable, but, all
common law systems that statutes and organs of government should be ‘guided
the common law will be read so as to be by and observe them.’
compatible with international law,
The first step to using the African
except where the provisions of a statute
Charter and the Maputo Protocol as
or common law clearly preclude such an
tools for the enforcement of human
interpretation. This principle was specif-
rights in The Gambia is to have provi-
ically recognised in Gambian law by
sions of these instruments fully incorpo-
Moshood Adio J, on behalf of the pre-
rated into national law, thereby creating
1994 Supreme Court (now the High
legally enforceable obligations to which
Court), in the case of Abdulrasheed
the government can be held accounta-
Mohamed v The State.14 This approach is
ble.17 Although no specific Act of
also in keeping with the principle of the
Parliament has directly domesticated
Gambian constitutional interpretation
the African Charter, provisions of the
set out by the Privy Council in the case
African Charter have been incorporated
of Attorney General v Jobe (No 2)15 that
into The Gambian legal systems.
the Constitution, ‘in particular that part of
it which protects and entrenches fundamen- The Constitution is the supreme law
tal rights and freedoms to which persons in of the land and any other law found to
the State are to be entitled, is to be given a be in conflict with it is void to the extent
generous and purposive construction’.16 of the inconsistency.18 In addition to the
Constitution, laws applicable in The
Section 216(3) of the Constitution
Gambia include: Acts of the National
obligates the state to be guided by inter-
Assembly, the common law and princi-
national human rights instruments in
ples of equity, customary law, Shari’a
making policies for the protection of
law and any orders, rules, regulations
fundamental rights and freedoms.
and subsidiary legislation made by a
Section 211(b) further empowers the
person or authority conferred by the
courts to have regard to these state poli-
Constitution.19 The different bodies of
cies in interpreting any laws based on
laws especially customary and Shari’a
them. Section 219(c) and (d) of the
law create contradictions and inconsist-
Constitution also provide that:
encies in terms of personal law. The
The State shall endeavour to ensure that in Gambian customary law is unwritten
international relations, it … fosters respect and consists of orally transmitted
for international law, treaty obligations … rules.20 There are many discriminatory
and … is guided by the principles and provisions in all these sources of law,
goals of international and regional

17 J Sallah & S Jahateh Desk review of the national

13 MN Shaw International law (1997) 100. laws, international conventions, treaties and best
14 Unreported decision of the then Supreme practices, relating to Gender Based Violence
Court, 1993 as cited in OAS Jammeh The (GBV) 2011.
Constitutionnel Law of the Gambia, 1965-2010 18 Sec 4.
(2011). 19 Sec 7.
15 [1960-1963] GLR 226. 20 EA Agim The Gambia legal system revised
16 Jobe (No 2) (n 15 above) 241. edition (2010) 13.
 Impact of the African Charter and the Maputo Protocol in selected African states 79

particularly in the areas of family and announced a ‘conditional’ moratorium

property law. The application of both on executions, which would be ‘auto-
customary law and Shari’a law is not matically lifted’ if crime rates increased.
absolute. The UN Special Rapporteur on extraju-
dicial executions stated in his 2015
The rights and freedoms provided in report that ‘the only difference between
the Constitution include the right to life those who lived and those who died,
and personal liberty, freedom from slav- seems to be pure luck. The killings were,
ery and forced labour, torture and inhu- in other words, arbitrary and thus
man treatment, the rights to privacy, unlawful’.23
property and fair trial, freedom of
speech, conscience, assembly, associa- The African Commission, in
tion and movement, the right to political response to the executions, noted that:
participation, right to marry, rights to
education and culture as well as free- [the killings were in] total disregard of the
obligations of The Gambia under the
dom from discrimination.21
African Charter on Human and Peoples’
Rights, other regional and international
Several of these rights are limited. human rights instruments to which The
An assessment of several of these rights Gambia is a party, as well as, the
has been seen to be violated and people Constitutive Act of the African Union in
have been subjected to punitive and which the ‘respect for the sanctity of
human life’ is a principle that should be
arbitrary regulations without due
followed by each Member State.24
process.
The Gambia has also witnessed major
For example, nine death row shrinking of the political space over the
inmates, eight men and one woman, years. First, the Elections (Amendment)
were removed from their prison cells Act,25 2015 was passed on 7 July 2015
and executed on 27 August 2012. and assented to by the President on
According to the news report, 20 July 2015. Section 43 of the Act
increases the required deposits that
all persons on death row have been tried by
the Gambian courts of competent candidates for election must make;
jurisdiction and thereof convicted and candidates for President must pay
sentenced to death in accordance with the 500 000 dalasis (approximately
law. They have exhausted all their legal US$12 500) up from 10 000 dalasis
rights of appeal as provided by the law.22
(approximately US$250) previously
The government’s justification for the required; candidates for the National
execution was that The Gambia was Assembly must deposit 50 000 dalasis
witnessing a high crime rate and becom- (approximately $1000) which previously
ing a safe haven for criminals. The was 5000 dalasis (approximately
executions were the first in The Gambia
since 1985 although the military junta 23 UN Human Rights Council ‘Report of the
reinstated the death penalty in 1995. In Special Rapporteur on extrajudicial,
September 2012, President Jammeh summary or arbitrary executions: Mission to
The Gambia’ A/HRC/29/37/Add.2
(11 May 2015) para 25.
24 See ACHPR ‘Press Statement on the
21 Secs 17-33 of the Constitution. Execution of Nine (9) Death Row Inmates in
22 This was officially announced on Gambia The Gambia’ http://www.achpr.org/press/
Radio and Television Services (GRTS) News 2012/08/d127/ (accessed 30 November
https://www.youtube.com/watch?v=lHxZ 2015).
Z6eKj8o (accessed 10 October 2015). 25 Act 6 of 2015.
80 The Gambia

US$125) and candidates for local coun- For example, section 15 of the
cil offices must pay about 10 000 dalasis Women’s Act deals with temporary
(which is about $200). Opposition politi- special measures to be adopted by every
cal parties do not only regard the organ, body, public institution, authori-
increases as unreasonably high but also ty or private enterprise aimed at acceler-
as a ploy by the government to drastical- ating de facto equality between men and
ly limit the participation of the opposi- women. This section of the Women’s
tion in elections. Act failed to introduce quotas in meet-
ing the 30 percent target for women’s
The Constitution contains several political participation and representa-
sections that guarantee women’s rights tion in the National Assembly and
although the framework thereunder is public positions respectively.27 This
not as strong as it could be. For becomes more relevant in the political
instance, the Constitution under arena and decision-making at all levels,
sections 17(2) and 33 provide that every where women are not legally barred
person is entitled to the enjoyment of from participating effectively on an
rights without discrimination and equal- equal footing with men, but may not be
ity before the law, but allows exceptions able to do so due to cultural bias in
in terms of personal law. The CEDAW favour of men and stereotypical percep-
Committee recommended the: tions of the role of women.28
amendment of section 33(5) of the 1997 The Maputo Protocol is the first of
Constitution, which explicitly exempts
its kind to include a number of protec-
from prohibition of discrimination on
grounds of gender areas governing tions specific to women, including
personal status, particularly with regard to reproductive choice and autonomy. This
adoption, marriage, divorce, burial and is best articulated in article 14 of the
devolution of property on death.26 Maputo Protocol, which provides for
women’s health and reproductive rights.
The Constitution also does not protect
In line with this obligation, section 30 of
the rights to health, work, food, shelter,
the Women’s Act protects women
development and satisfactory environ-
against discrimination in reproductive
ment.
health rights and services and provides
In its efforts to domesticate both for the right to medical abortion where
CEDAW and the Maputo Protocol, The the pregnancy endangers the life of the
Gambia promulgated the Women’s Act mother or the foetus. This is limited in
2010 which was signed into law by the scope contrary to article 14(2)(c) of the
President on 28 May 2010. Generally, Maputo Protocol which provides for
the Act is a very innovative piece of medical abortion in cases of assault,
legislation which contains provisions on rape and incest.
promoting and protecting the rights of
On 24 November 2015, President
women in The Gambia. However, some
Jammeh declared a ban on female geni-
of its provisions are incompatible or not
tal mutilation (FGM) stating that it was
consistent with the provisions of the
a cultural and not a religious practice.
Maputo Protocol.

27 AU Solemn Declaration.
28 See S Nabaneh Women’s political participation
26 CEDAW 33rd Session 22 July 2005 and representation in The Gambia: One step
CEDAW/C/GMB/CO/1-3. forward or two back?(2013).
 Impact of the African Charter and the Maputo Protocol in selected African states 81

This was swiftly followed by the passing try as well as girls forced to undergo the
of the Women’s (Amendment) Bill 2015 procedure in countries with weaker
by the National Assembly on 2 Decem- FGM laws. Nevertheless, the Act
ber 2015 to prohibit female circumci- constitutes a major step forward in
sion. The amendment addresses one of terms of promoting and protecting the
the key deficiencies of the Women’s Act rights of women to bodily integrity and
2010 which was the absence of content dignity.
intended to reflect the protections
enshrined under article 5 of the Maputo 5 Legislative reform
Protocol, dealing with the ‘elimination
of harmful practices’. The Amendment No information could be obtained on
Act added sections 32A and 32B to the whether a compatibility study was
Women’s Act. With the enactment, The conducted before the African Charter
Gambia joined a number of African and the Maputo Protocol were ratified.
countries in adopting legislation as a However, several legislative reforms
reform strategy for ending FGM. have been made through the enactment
of laws that implicitly or explicitly give
Section 32A makes it an offence for
effect to the African Charter and Mapu-
any person to engage in female circum-
to Protocol. These include the Women’s
cision and stipulates that whoever
Act of 2010, Domestic Violence Act of
contravenes the prohibition is liable on
2013 and the Sexual Offences Act of
conviction to imprisonment for a term
2013. Although the Legal Aid Act of
of three years or a fine of 50 000 Dalasis
2008 does not expressly stipulate which
(approximately $1250) or both. The Act
treaty it incorporates, it was revealed
also stipulates a life sentence in prison if
during interviews that the Institute for
the circumcision results in death.
Human Rights and Development in
The Act also addresses those who Africa (IHRDA), an international NGO
commission the procedure in section based in The Gambia, fostered the
32B(1). The section states that enactment of the law in furtherance of
the African Charter.29
a person who requests, incites or promotes
female circumcision by providing tools or The long title of the Women’s Act
by any other means commits an offence states that it was enacted to incorporate
and is liable on conviction to imprison- and give effect to the provisions of
ment for a term of three years or a fine of CEDAW and the Maputo Protocol in
fifty thousand Dalasis or both.
The Gambia.30 The Act however does
In addition, a fine of 10 000 Dalasis not limit or restrict the incorporation
(approximately $250) as provided in and enforcement of any provisions of
section 32B(2) of the Act is levied these two instruments. These two trea-
against anyone knowing about the prac- ties will thus serve as an aid in the inter-
tice and failing to report it. pretation of the Act where there is a gap
or where a particular provision is not
However, there is a major lacuna in
the Act, in so far as it makes no provi- 29 Interview with Edmund Foley and
sion for cross-border circumcision Humphrey Sipalla, respectively legal officer
and communication officer of the Institute
addressing both circumcisers who for Human rights and Development in
perform the procedure outside the coun- Africa, 25 August 2011 conducted by Tem
Fuh.
30 See Long Title, Women’s Act of 2010.
82 The Gambia

provided for, in which instance recourse who do not act swiftly and effectively
may be had on the original texts of these while respecting the human rights of the
two instruments. women affected within a required time
frame. The former UN Special Rappor-
The Domestic Violence Act was teur on Violence against Women stated
passed by the National Assembly on that: ‘in the context of norms recently
17 December 2013 and assented to by established by the international commu-
the President on 30 December 2013. nity, a state that does not act against
The Act is aimed at combating domestic crimes of violence against women is as
violence and thus provides protection guilty as the perpetrators.’31
for the victims of domestic violence,
particularly women and children and for
other related matters. The Act contains
6 Policy reform 32
32

a number of progressive and rights-

enhancing provisions. Domestic Several policies have been formulated
violence under section 3 is given a broad relating to the attainment of rights and
definition to include physical abuse as freedoms in certain thematic areas such
well as sexual and economic abuse, as education, agriculture, trade and
emotional, verbal and psychological employment, information and commu-
abuse. Importantly, under section 4, the nication, population, reproductive
Act covers not just marriage but a whole health and youth. These include the
range of intimate living conditions National Gender and Empowerment
collectively termed as ‘domestic rela- Policy (2010-2020), Programme of
tionships’. Section 6 stipulates that the Accelerated Growth and Employment
consent of the victim is not a defence to (2012-2015), The Gambia National
a charge of domestic violence. Even Action Plan on UNSCR 1325, the
though the government has complied National Health Policy (2011-2015),
with the provisions of the Domestic National Strategic Plan for HIV and
Violence Act in Part II section 3 by AIDS (2015-2020), and the National
establishing the Victims of Violence Education Policy (2004-2015), amongst
Advisory Committee, it has failed to others.
comply with sections 4, 5, 6 and 7 of the
There is no evidence to suggest that
same Act to ensure effective functioning
government policies reflect the provi-
of the committee.
sions of the African Charter. However,
The Sexual Offences Act addresses there are policies that explicitly mention
the most common sexual offenses, and CEDAW and the Maputo Protocol such
provides for punitive measures. This Act as the National Gender and Empower-
provides protection against sexual ment Policy framework.
crimes against all persons especially
vulnerable groups, including women,
children and people who are mentally 31 UN Human Rights Council ‘Report of the
Special Rapporteur on violence against
and physically disabled. The Act is women, its causes and consequences on
applicable to the crime of rape and other intersections between culture and violence
against women’ UN Doc A/HRC/34 (2007).
sexual offences. However, the law fails 32 For a more comprehensive analysis of
to address marital rape. It further failed policies see S Nabaneh ‘Desk review of
adequacy of laws, policies and vision 2020
to have a provision for the review of the for gender sensitivity’ (2014) commissioned
law as well as penalties for authorities by Office of the Vice President & Ministry
for Women’s Affairs.
 Impact of the African Charter and the Maputo Protocol in selected African states 83

7 Court judgments equitable distribution of matrimonial

property.36
In The Gambia, there are no specialised
courts that deal with violations of In the aforementioned case, the
human rights. Different pieces of legisla- woman was married to her husband for
tion have different courts exercising 26 years and had three children. At
jurisdiction. some point during their marriage, the
couple occupied the matrimonial prop-
There have been several decided erty. At the time they moved into the
cases in which the Gambian courts have property, it was incomplete. The
invoked decisions of the African husband had lost his job and was unem-
Commission as well as the obligations ployed. The woman personally expend-
of The Gambia under the African Char- ed a considerable amount of money into
ter examined. developing and completing the property,
which was registered in her husband’s
In Ousman Sabally v IGP & 2 Others, name. She was able to produce some
Jallow JSC referred to the decision of receipts of the materials she bought and
the African Commission in Constitution- other contributions she made towards
al Rights Project, Civil Liberties Organiza- the construction, completion and main-
tion and Media Rights Agenda v Nigeria, in tenance of the property. All contribu-
interpreting the right to freedom of tions made towards the matrimonial
expression.33 In Mariam Denton v the home were on the clear understanding
Director General of the NIA and & 5 that it was a joint matrimonial property
Others,34 Justice Monageng made refer- with the full consent of her husband.
ence to the obligations of The Gambia She also took responsibility of the fami-
under the African Charter. So also was ly while her husband was sick and out
the case in Garrision v the Attorney Gener- of work.
al.35 Besides these, no other known case
exists where the two instruments under The lady approached the Female
study or a decision of the African Lawyers Association of The Gambia
Commission have been invoked. (FLAG) for assistance in 2010 when her
husband summoned her to the Kanifing
In relation to litigating women’s Cadi Court seeking a divorce. She was
rights, the Women’s Act is the legisla- instructed by the Cadi to move out of the
tion most often relied on and for the matrimonial bedroom until after the
most part gives effect to the Maputo ‘Idda’.37 FLAG intervened on her behalf
Protocol in The Gambia. In a landmark and she stayed in the matrimonial
High Court case, the Court declared that bedroom as prescribed by Shari’a. In
distribution of joint property be in equi- August 2011, she was locked out of the
table shares accordance with section 43 property on the instruction of her
of the Women’s Act, which is a replica husband, and the husband further filed
of article 7 of the Maputo Protocol on an eviction suit in the Magistrate’s
Court. FLAG represented her, sought

36 HC 427/11/MF/059/F1.
33 (2000) AHRLR 227 (ACHPR 1999). 37 This is a waiting period in which a woman
34 HC/24/06 MF/087/F1. must observe after the death of her spouse or
35 Initial report of The Gambia to the UN after a divorce during which she may not
Committee on the rights of the child, 1992. marry another man.
84 The Gambia

for a stay of proceedings after a suit was host of others, which all base their work
filed on her behalf in the High Court on the Women’s Act and by extension,
seeking a declaration that she was enti- the Maputo Protocol. The Think Young
tled to an equitable share of the matri- Women, a young-women-led organisa-
monial property in accordance with the tion, has for example, organised a Joint
Women’s Act 2010. This was granted. Stakeholders Workshop on Sharing Best
Practices in the implementation of the
This case clearly illustrates that the Women's Act for security officials, the
Women’s Act 2010 can be instrumental judiciary, ministries and university
in ensuring that women enjoy their students.
rights in cases of separation, divorce or
annulment of marriage. However, it is In separate activities and sometimes
important to note that there is no official collaboratively, TANGO,38 WANEP
data to indicate how often the provi- and ACDHRS have all led initiatives
sions of the Women’s Act 2010, the over the past few years to promote
Sexual Offences Act, 2013 and the women’s active participation and
Domestic Violence Act, 2013 have been increased representation in decision
invoked before the courts. making structures, using the Women’s
Act as well as the Maputo Protocol.
8 Awareness and use by civil These organisations supported women’s
society organisations candidature in parliamentary and local
council elections, as well as, advocated
The African Charter and the Maputo for gender quota in politics. In 2013,
Protocol are well known amongst TANGO convened a consultative meet-
human rights NGOs that operate in The ing between women leaders from the
Gambia. The two most prominent are major parties in the country to sensitise
the African Centre for Democracy and them and garner their support for
Human Rights Studies (ACDHRS) and gender quotas in representative institu-
the Institute for Human Rights and tions such as the parliament and local
Development in Africa (IHRDA), councils as well as within political
which both have observer status with parties. Earlier ACDHRS had conduct-
the African Commission. The work of ed a review of manifestos of political
these two organisations is based princi- parties to assess their gender sensitive-
pally on the instruments under study. ness.
There are numerous women's associa-
The domestication of CEDAW and
tions and organisations such as the
the Maputo Protocol in the Women’s
Gambian Committee on Traditional
Act of 2010 was largely as a result of
Practices (GAMCOTRAP), the Foun-
lobbying and advocacy undertaken by
dation for Research on Women’s
these organisations, notably the
Health, Productivity and the Environ-
ACDHRS. On its part, the Legal Aid
ment (BAFROW), the Female Lawyers
Act of 2008 was the result of sustained
Association Gambia (FLAG), the Asso-
efforts of the Institute for Human Rights
ciation for Promotion of Girl’s and
and Development in Africa.
Women’s Advancement in The
Gambia, the Forum for African Women
Educationalist (The Gambia) FAWE-
GAM, the Gender Action Team and a 38 The Association of Non-Governmental
Organisations in The Gambia (TANGO).
 Impact of the African Charter and the Maputo Protocol in selected African states 85

Furthermore only The Association enforced. Additionally and more impor-

of Non-Governmental Organisations in tantly, they are also afraid of reprisals.39
The Gambia (TANGO) and The
Gambia Press Union (GPU) have 9 Awareness and use by lawyers
observer status before the African
Commission but have not yet submitted Although The Gambia hosts the secre-
any shadow reports to the Commission. tariat of the African Commission and
The NGOs have not used any resolu- other international organisations, a
tions or general comments adopted by major barrier in litigating women’s
the African Commission in their work rights in The Gambia is the lack of
in The Gambia. knowledge of international human
rights law by both judges and lawyers.
However, CSOs are gradually
This means that most lawyers are
becoming more proactive in submitting
unable to cite international human
shadow reports. For instance, the Child
rights law while judges and magistrates
Protection Alliance (CPA) submitted
are unable to draw conclusions through
shadow reports for the UPR and the
the application of relevant international
CRC Committee on the situation of
human rights law.
Children’s rights in The Gambia respec-
tively. During the recent CEDAW This has also led to an absence of
Committee review of The Gambia’s judicial activism within the legal
periodic report, TANGO with a group community. Generally, lawyers are
of women rights organisations, submit- unable or unwilling to bring cases to
ted a joint shadow report on the list of address on-going women's rights viola-
issues and questions in relation to the tions in The Gambia. Strategic and
combined fourth and fifth periodic impact litigation around women's rights,
reports of The Gambia in July 2015. In if improved, could promote consistent
addition, the Committee on Traditional advocacy for women’s rights and may
Practices Affecting the Health of encourage the government to comply
Women and Children (GAMCOTRAP) with national and international stand-
submitted an additional shadow report ards, calling for the protection of these
in the area of sexual and reproductive rights.
health of women and girls focusing on
FGM. 10 Incorporation in law school
Except for FLAG, no other non- education
governmental organisations (NGO's)
are as heavily concerned with litigating Even though the Faculty of Law of the
women’s rights cases. Most Gambian University of The Gambia (UTG) was
activists do not use the local courts and only established in 2007, it has incorpo-
will not seek or use international rated human rights law in the curricu-
avenues for redress. Most NGOs lack lum. International human rights law is
the adequate knowledge of international taught with a focus on the African
human rights law. Many are not aware human rights system. These students
of these procedures and how to file
complaints, or think it is not worth the 39 Interview with Njundu Drammeh, National
Coordinator, Child Protection Alliance
trouble if recommendations cannot be (CPA), Madi Jobarteh, Programme Man-
ager, TANGO and Haddy Dandeh Jabbie,
Vice President, FLAG, 21 August 2015.
86 The Gambia

have gone on to become lawyers and human rights institutions to develop

magistrates. There is great hope that their skills and knowledge and encour-
they will usher in a new dispensation in age them to become human rights
terms of utilising international human defenders.41
rights law. Currently, members of staff
with expertise in this area, and with The Committee was officially
human rights degrees, lecture these launched in October 2011 by the Direc-
courses. tor of the Centre for Human Rights,
University of Pretoria, Professor Frans
The Faculty has also, with the Viljoen who presented a lecture on the
support of the Centre for Human Rights ‘African Charter at 30’ which was
at the University of Pretoria, participat- graced by the then Vice Chancellor,
ed in the annual African human rights Dean, lecturers and students of the
moot court competition. Preliminary faculty. The Committee was able to
rounds are organised in the university provide a pool of interns and volunteers
with judges from the African Commis- for ACHDRS’ NGO forums. This
sion, raising awareness about the consequently led to internships at the
system. Three of the participants of secretariat and IHRDA. In partnership
these moot competitions have been with IHRDA, they were able to organise
awarded scholarships to pursue the a symposium on the IHRDA case
LLM in Human Rights and Democrati- analyser to help students become aware
sation in Africa (HRDA) at the Centre of its existence and how best to utilise it.
in the University of Pretoria and have
come back to lecture at the Faculty.40 11 National human rights
institutions
In 2011, upon the return of two
participants from the 21st African
There is no national human rights insti-
Human Rights Moot Court competi-
tution in The Gambia. The Ombuds-
tion, they set up The Faculty of Law
man does not have a human rights
Student’s Human Rights Committee
promotion or protection mandate as
that sought to promote human rights
such and is established as a general
and build the knowledge of future
public complaints body against injustice
human rights lawyers by fostering closer
arising out of administrative misman-
relationships between the Faculty and
agement, mal-administration or discrim-
international, regional and national
ination.42 There is also the National
institutions working in the area of
Council on Civic Education which has
human rights. The Human Rights
no explicit human rights mandate but
Committee concept entails a Student
does promote values contained in the
Human Rights Volunteer Corps
African Charter and the Maputo Proto-
(SHRVC) that targets, recruits and
col. These institutions have no liaison
trains law students interested in human
with the African Commission.
rights. The volunteers are linked with
In July 2015, the CEDAW Commit-
40 These students included Satang Nabaneh, tee in its concluding observations on the
class of 2012 who represented UTG at the
2011 Moot and Musubakoto Sawo, class of
2013 who was at the 2012 Moot. Henrietta 41 The former chair and co-founder of the
M. Ekefre also a participant of the 2012 Student Human Rights Council is the author
Moot graduated from the LLM (HRDA) of this report.
programme in 2015. 42 See art 163 of the Constitution.
 Impact of the African Charter and the Maputo Protocol in selected African states 87

combined fourth and fifth periodic ing the right to health in Mozambique:
reports of The Gambia, urged the state: A critical analysis’ in E Durojaye Liti-
gating the right to health in Africa: Challeng-
to establish, within a clear time frame, an es and prospects (2015).
independent national human rights
institution, in accordance with the Paris
Principles, with a mandate on women’s 13 State reporting
issues, strong linkages with the women’s
machinery and authority to consider and The Gambia’s record of fulfilling its
issue opinions on complaints submitted by
women alleging violations of their rights.43 state obligation of submitting reports is
extremely poor. The Ministry of Justice
12 Academic writing is responsible for reporting to treaty
bodies. The country submitted its initial,
second and third reports to the
Academic writing on the African Char-
CEDAW Committee in 2005. It submit-
ter and the Maputo Protocol is very
ted its fourth and fifth combined period-
sparse. However, Hassan B Jallow, a
ic reports on CEDAW in 2010.
Gambian academic and prosecutor of
the International Criminal Tribunal for The Gambia submitted its initial
Rwanda, has published a book that report on the African Charter in 1992.
reviews the African Charter generally The first periodic report was submitted
and the jurisprudence of the African in 1994 and no more have been submit-
Commission.44 ted since.46 Since its ratification of the
Maputo Protocol, The Gambia has
This researcher during her study for
never submitted an initial report or any
the Centre for Human Rights LLM
periodic report.
programme in 2012, was a member of
the Women’s Human Rights Clinical It is important to note that the
Group which drafted and submitted the government of The Gambia gives great-
pioneer work of a General Comment on er priority to reporting under the UN
Article 14(2)(d) and (e) of the Maputo than the African human rights system.
Protocol on HIV to the African There is clear manifestation of this. For
Commission which was adopted as the instance, the country submitted its
first ever general comment by the combined initial, second and third peri-
Commission. She, with her former odic reports to the CEDAW Committee
colleagues in the group, authored ‘The in 2003 which was examined in 2005
African Women’s Rights Protocol and while the combined fourth and fifth
HIV: Delineating the African Commis- periodic report which was due in 2010
sion’s General Comment on article was submitted in 2012 and considered
14(1)(d) and (e) of the Protocol’.45 She in 2013. The government submitted its
also has a chapter, ‘Challenges in litigat- initial report to the CRC committee in
1999. In 2011, it submitted its second
43 CEDAW Committee ‘Concluding observa- and third periodic report which issued
tions on the combined fourth and fifth peri- concluding observations on 4 January
odic reports of The Gambia’ (July 2015)
CEDAW/C/GMB/4-5 para 15. 2015.
44 See HB Jallow The law of the African (Banjul)
Charter on Human and People's Rights (2007).
45 (2014) 14 African Human Rights Law Journal
681 http://www.ahrlj.up.ac.za/images/ahrlj
/2014/ahrlj_vol14_no2_2014_chapter17.pdf 46 www.achpr.org/states/gambia (accessed
(accessed 24 August 2015). 24 August 2015).
88 The Gambia

In October 2014, the Human Rights Act and replace it with a new legislative
Council (HRC) reviewed The Gambia’s regime for mental health in The
2014 Universal Periodic Report (UPR) Gambia, compatible with the African
in which it issued 171 recommenda- Charter and international standards and
tions. In March 2015, the government norms for the protection of mentally ill
submitted its written response to 78 of or disabled person as soon as possible;
the 171 recommendations including on create a body to review the cases of all
the maintenance of the moratorium on persons detained under the Lunatics
executions and the abolition of the Detention Act and make appropriate
death penalty, and on cooperation with recommendations for their treatment or
special procedures. The Gambia also release pending the first recommenda-
rejected recommendations concerning tion. It was also recommended that the
the ratification of the Convention state provide adequate medical and
against Torture and Other Cruel, Inhu- material care for persons suffering from
man or Degrading Treatment or Punish- mental health problems in the territory
ment, the non-criminalisation of sexual of The Gambia. As a way to follow-up
orientation or gender identity, and the on progress in implementing the deci-
removal of restrictions on freedom of sion, it was recommended that The
expression. Gambia report back to the African
Commission when it submits its next
14 Communications involving this periodic report on the measures taken to
state comply with the recommendations of
the African Commission.
A total of ten communications have
These cases have not been given any
been submitted to the African Commis-
exposure by the government and are
sion against The Gambia. Of these,
only known within NGO circles. Begin-
seven were dismissed for non-exhaus-
ning with the last recommendation, The
tion of local remedies, one was settled
Gambia has not submitted any report to
amicably and two were decided on the
the African Commission since 1994.
merits. In Sir Dawda Jawara v The
The government in collaboration with
Gambia,47 the African Commission had
the World Health Organization is
found The Gambia in violation of arti-
currently drafting a Mental Health Bill.
cles 1, 2, 6, 7(1)(d) and (2), 9(1) and (2),
The African Commission has not been
10(1), 11, 12(1) and (2), 13(1), 20(1) and
associated with this process and the Bill
26 of the African Charter and recom-
is not in the least informed by the deci-
mended that The Gambia should bring
sion in the Purohit case.49 There have
its laws in conformity with the provi-
been many legislative reforms since
sions of the Charter.
these two cases were decided but there
In Purohit and Another v The is no evidence that the decision to
Gambia,48 The Gambia was found to be reform the laws was a result of the
in violation of various articles of the recommendations of the African
African Charter. The African Commis- Commission.
sion recommended that: The Gambia
should repeal the Lunatics Detention
49 Interview with Dr Senghore who is also a
member of the Law Reform Commission of
47 (2000) AHRLR 107 (ACHPR 2000). The Gambia. This was also confirmed by
48 (2003) AHRLR 96 (ACHPR 2003). Gaye Sow.
 Impact of the African Charter and the Maputo Protocol in selected African states 89

At the sub-regional level, there have marks nine years since the arrest of
been several decided cases before the Chief Manneh whose whereabouts
ECOWAS Community Court of Justice remain unknown and the government
dealing with violations of provisions of has not released him or pay the mandat-
the African Charter against The ed compensation ordered by the Court
Gambia. However, it is important to seven years ago.
note the non-adherence to judgments of
the Court by The Gambian govern- In the case of Musa Saidykhan v The
ment.50 Gambia,53 the plaintiff filed an applica-
tion against The Gambia at the ECOW-
In 2008, the ECOWAS Court of AS Community Court of Justice in 2007
Justice in the case of Chief Manneh v The in which he complained of a violation of
Gambia,51 ordered the government of his human right to personal liberty,
The Gambia to release ‘Chief’ Ebrima dignity of his person and fair hearing
Manneh, a journalist who has been guaranteed by articles 1, 5, 6 and 7 of
missing since July 2006, and pay his the African Charter. According to the
family damages of US$100,000. Since plaintiff, the Editor of The Independent
2006, the reasons for his arrest have not newspaper based in The Gambia, they
been disclosed by the government of published the names of alleged coup
The Gambia and efforts by his family, plotters on 21 March 2006. Six days
friends and lawyers to know his wherea- later, he was arrested at night by a
bouts or have access to him have proved combined team of armed soldiers and
futile. The plaintiff has not been seen policemen, without a warrant of arrest.
since then. They took him to a detention centre in
the headquarters of the National Intelli-
A declaration was sought that his gence Agency (NIA) in Banjul. For the
arrest on 11 July 2006 and his continual next 22 days, the plaintiff claimed he
detention since then without trial, is was held totally incommunicado.
unlawful and a violation of his right as
guaranteed by articles 4, 5, 6 and 7 of In December 2010, having regard to
the African Charter. In the absence of article 4(g) of the ECOWAS Revised
The Gambian’s government failure to Treaty, which enables the court to apply
establish that the arrest and detention of the African Charter, and having regard
the plaintiff was in accordance with the to articles 5, 6, and 7 of the African
provisions of any previously laid down Charter; and having regard to the find-
law, the Court held that such an action ings of fact, the court decided that the
was clearly contrary to the provisions of plaintiff had established his case that he
articles 2 and 6 of the African Charter was arrested, detained and tortured by
and that the plaintiff was entitled to the the defendant’s agents for 22 days, with-
restoration of his personal liberty and out any lawful excuse and without
the security of his person.52 July 2015 trial.54 The Court awarded the plaintiff
damages in the sum of US$200 000.
There is no evidence to show that the
50 See HS Adjolohoun ‘Giving effect to the government of The Gambia has adhered
human rights jurisprudence of the Court of
Justice of the Economic Community of West to the judgment of the court.
African states: Compliance and influence’
unpublished LLD Thesis, University of
Pretoria, 2013. 53 ECW/CCJ/JUD/08/10.
51 (2008) AHRLR 171 (ECOWAS 2008). 54 Musa Saidykhan (n 53 above) paras 46 and
52 Chief Manneh (n 51 above) paras 27 & 28. 47.
90 The Gambia

In the case of Etim Moses Essien v The 15 Special mechanisms and

Gambia,55 the ECOWAS court did not promotional visits by the
find any violation with regard to the African Commission
plaintiff’s rights as enshrined in article 5
on inherent human dignity and article There have been limited promotional or
15 on the right to work under equitable fact finding missions to The Gambia by
and satisfactory conditions with equal special procedures mandate holders
pay for equal work of the African Char- both at the regional and international
ter respectively. levels due to the non-cooperation of the
government of The Gambia.
Recently, on 10 June 2014, in the
case of Deyda Hydara Jr & Others v The In terms of special mechanisms,
Gambia,56 the ECOWAS Court deliv- Commissioner Dankwa, in his capacity
ered judgment finding that the govern- as Special Rapporteur on Prisons and
ment had failed to conduct a proper Conditions of Detention in Africa,
investigation into the death of Deyda undertook a special mechanism visit in
Hydara, the co-founder, publisher and the country from 21-26 June 1999.58
editor of the Point Newspaper who was There has been one promotional
killed on 16 December 2004 in The mission of the African Commission to
Gambia. The Court held that The The Gambia undertaken by Commis-
Gambia had allowed a culture of impu- sioner Jainaba Johm from 22 December
nity in The Gambia. The Court further 2001-5 January 2002. The report of this
held that Deyda’s death violated the mission was not adopted by the African
right to life as guaranteed by articles 1 Commission.
and 4 of the Charter, as well as the right
to freedom and the press as provided It is important to note that NGOs
under article 9 of the Charter and article have sent a letter to the African
66 of the Revised Community Treaty. Commission requesting for a fact find-
The Court awarded damages of US ing mission to The Gambia. This was
$50,000 for the failure to properly inves- discussed during its 17th Extra-Ordinary
tigate the assassination, as requested by Session in February 2015 in The
the claimant. Gambia.59 In the same session, through
the Resolution on the Human Rights
There is no evidence to show that Situation in the Republic of The
the government of The Gambia has Gambia, the Commission called on the
adhered to the rulings of the court government to invite the African
which are binding on them as a state Commission to undertake a fact-finding
party. This was reiterated by Christof mission to The Gambia.60 There are no
Heyns, who stated that the government indications yet whether the government
has failed to implement the three deci-
sions of the ECOWAS Court.57
58 The report is available at: http://www.
achpr.org/states/gambia/missions/prisons-
1999/ (accessed 24 August 2015).
59 ACHPR ‘Final Communiqué of the 17th
55 ECW/CCJ/JUD/05/07. Extra-Ordinary Session of the African
56 ECW/CCJ/PP/30/11. Judgment available Commission on Human and Peoples’ Rights’
at https://www.opensocietyfoundations.org http://www.achpr.org/news/2015/03d167/
/sites/default/files/Hydara%20Judgment. (accessed 24 August 2015).
pdf (accessed 30 September 2015). 60 ACHPR/Res.299 (EXT.OS/XVII) 20 http:/
57 Report of the Special Rapporteur (n 23 /www.achpr.org/sessions/17th-eo/resolutio
above) para 15. ns/299/ (accessed 24 August 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 91

of The Gambia will extend an invita- government has placed numerous

tion. restrictions in the exercise of human
rights, while necessary budgetary alloca-
At the UN level, in November 2014, tions to sectors that fulfil the needs of
the UN Special Rapporteur on Torture women remain low. Laws and policies
and the Special Rapporteur on Extra- need financial resources to meet their
Judicial Executions respectively, visited obligations and fulfil rights. The nation-
The Gambia. This was the first visit ever al budget is essentially the political
to the country by any of the special embodiment of government’s goals. The
procedures of the Human Rights Coun- inadequate budgetary allocation to the
cil. However, it was greatly compro- Women’s Ministry and its satellite insti-
mised by the unwillingness of the tutions especially the Women’s Bureau,
government to grant the Special as well as the social sectors, impede the
Rapporteurs freedom of movement and implementation of programmes geared
inquiry in all areas of detention facili- towards the realisation of the rights of
ties. During their mission they were women in The Gambia.
refused access to the Security Wing of
Mile 2 Central Prison in the capital The Ministry of Women’s Affairs,
Banjul, where death row prisoners are the National Women’s Council and
held.61 Women’s Bureau are the lead advocates
on women’s rights. However, they face
16 Factors that may impede or a plethora of administrative and institu-
enhance the impact of the tional challenges, including inadequate
African Charter, the Maputo gender expertise to ensure the full imple-
Protocol and the African mentation of laws and policies on
gender. Although the Ministry and the
Commission
Women’s Bureau have put in place vari-
ous monitoring mechanisms such as
As evident in the foregoing information,
Focal Points, these are not always effec-
it is clear that the African Charter, the
tive. There are additional problems of
Maputo Protocol and the African
relying on counterparts and implement-
Commission which is actually located in
ing partners in collecting and monitor-
Banjul have very minimal impact in The ing data as well as the need to ensure
Gambia. the accuracy of information collected.
In the first place, The Gambian
There is, generally, inadequate judi-
government has consistently demon-
cial activism and reliance on interna-
strated its willingness to disregard
tional human rights instruments. Mere
fundamental rights and freedoms of its
existence of laws and policies cannot
citizens, particularly the rights of girls
guarantee respect, promotion and fulfil-
and women. There is limited political
ment of women’s rights. This raises the
will and leadership to directly ensure
issue of the level of consciousness-rais-
that the rights of women are respected
ing that the gender machinery is
and protected. By law and practice,
engaged in with all the laws and policies
in place. This requires the awareness
61 UN Human Rights Council ‘Report of the and understanding of the laws and poli-
Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or cies and the capacity to do their part in
punishment: Mission to The Gambia’ A/ implementation. For example, lawyers,
HRC/28/68/Add.4 (16 March 2015) para 4.
92 The Gambia

judges, teachers, social workers, law many within the wider African and
enforcers amongst others should be global civil society movement have
continuously trained on women’s rights called for the African Commission to be
and specific legislation. Women, men, relocated elsewhere from The Gambia
children and youth must also be aware in response to its consistent abuse of
of these laws and policies to make sure rights.63
they are respected and adhered to and
so that duty bearers are held accounta- It should be acknowledged that The
ble. Gambia has made some progress that
should be consolidated as evidenced by
Not only has The Gambia failed to the enhancement of several legal and
criminalise several socio-cultural prac- policy frameworks. A gender audit of all
tices that harm the rights and dignity of laws and policies has been conducted.
women and girls, such as early and This was in line with section 14 of the
forced marriage, and wife inheritance, Women’s Act 2010 which obliged the
but has also failed to take deliberate government, in line with its internation-
measures to increase women’s voices al obligations under CEDAW and the
and representation in decision making Maputo Protocol, to undertake such an
processes and to put in place affirmative audit. With the support of the UNDP,
action measures in many sectors. This the Ministry of Women’s Affairs
indicates the disinterest of the state in commissioned a gender audit of existing
women’s issues. Despite the fact that laws and policies. The purpose of the
there is a woman Vice President, review was to identify the gaps in
women’s political representation is national documents and make concrete
extremely low amidst an overall inabili- recommendations to address gender
ty to influence policy and decision inequalities and inequities. The audit
making processes. There are too few made recommendations for review and
women in elective positions at both the harmonisation of laws in line with inter-
National Assembly and local govern- national obligations.64
ment levels and the district tribunals
largely comprise of men.62 There has also been a proliferation
of CSOs, NGOs, and professional
Regardless of the fact that the coun- groups operating in the area of women’s
try hosts the African Commission, with human rights and women’s empower-
most of its extraordinary sessions taking ment – a growing women’s movement.
place in Banjul, The Gambia remains Women’s involvement in the promotion
insulated against the decisions and voic- and protection of women’s human
es that emerge in these processes. rights has been on the increase. There
Against the backdrop of repressive laws have also been marked increases in
and arbitrary arrest, a climate of fear efforts to raise the voices of women and
hovers over the heads of The Gambian to promote women’s leadership and
civil society and media practitioners
thus limiting their ability to utilise the 63 See blog post by F Viljoen ‘A call to shift the
structures and processes of the African seat: The Gambia is not a suitable seat for
the African Commission on Human and
Commission to put pressure on the Peoples’ Rights’ (27 May 2013) http://
state. In fact, over the past few years, africlaw.com/2013/05/27/a-call-to-shift-the-
seat-the-gambia-is-not-a-suitable-seat-for-the-
african-commission-on-human-and-peoples-
rights/ (accessed 30 August 2015).
62 Nabaneh (n 28 above) 48-57. 64 Nabaneh (n 32 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 93

involvement in decision making, partici-

pation and representation.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
GHANA

Michael Gyan Nyarko*

1 Introduction After a series of constitutional

dispensations interspersed with four
Ghana was the first sub-Saharan Afri- military coup d’états, the country
can country to gain independence from returned to civil constitutional rule in
British rule, in 1957. The constitutional 1993 under the 1992 Constitution (the
history of Ghana is long and chequered. Constitution) which established a
The Independence Constitution of 1957 unitary presidential system of govern-
established a parliamentary monarchy ment based on multi-party democracy.
with Dr Kwame Nkrumah as Prime The Constitution establishes a constitu-
Minister.1 Ghana became a republic in tional supremacy4 with a Supreme
1960 with a new constitution which Court empowered to interpret the
established a presidential system of Constitution and strike down acts and
government based on multi-party omissions of the other branches of
democracy. Ghana became a one-party government which are inconsistent with
state in 1964 through a constitutional the provisions of the Constitution.5 The
amendment which made Dr Kwame Constitution also dedicates a chapter to
Nkrumah’s ruling Convention Peoples’ ‘fundamental human rights and free-
Party (CPP) the only party recognised doms’6 and guarantees civil and politi-
by law. 2 The country slipped into dicta- cal rights as well as some economic,
torship with this amendment which also social and cultural rights, including the
declared Nkrumah president for life.3 right to life,7 liberty of the person,8
Nkrumah and his CPP were overthrown dignity,9 protection from cruel, inhu-
in a military coup d’état in 1966. man and degrading treatment,10 protec-
tion from slavery and forced labour,11
equality before the law and non-discrim-
ination,12 the right to property,13 the

4 Art 1 of the Constitution of Ghana (1992).

* LLB (KNUST-Ghana), LLM HRDA 2014 5 Art 2.
(Pretoria), LLD Candidate and Tutor, Centre 6 Chap 5.
for Human Rights, University of Pretoria. 7 Art 13.
1 K Quashigah ‘The 1992 Constitution of 8 Art 14.
Ghana’ (2013) 2 http://www.icla.up.ac.za/ 9 Art 15(1).
images/country_reports/ghana_country_rep 10 Art 15(2).
ort.pdf (accessed 20 August 2015). 11 Art 16.
2 As above. 12 Art 17.
3 As above. 13 Art 18(1) & 20.

95
96 Ghana

right to privacy,14 and the right to a fair It must be noted that the rights
trial.15 Others include freedom of protected under the Constitution are not
expression,16 freedom of thought and exhaustive and may include ‘others not
conscience,17 freedom of religion,18 specifically mentioned which are
freedom of assembly and protest,19 free- considered to be inherent in a democra-
dom of association including to form or cy and intended to secure the freedom
join trade unions,20 the right to informa- and dignity of man’.38 Such rights may
tion,21 freedom of movement,22 the include those guaranteed in ‘treaties,
right to political participation,23 proper- conventions, international or regional
ty rights of spouses,24 the right to fair accords, norms and usages’39 including
administrative procedure,25 the right to ‘provisions of international human
work under satisfactory, safe and rights instruments (and practice under
healthy environment including the right them) or from the national human rights
to form or join trade unions,26 the right legislation and practice of other
to education,27 the right to culture,28 states’.40
women’s rights,29 children’s rights,30
and rights of persons with disabilities As indicated above, the Constitu-
and the sick.31 The directive principles tion contains specific provisions which
of state policy contained in chapter six are applicable to women. For instance
of the Constitution also stipulate various article 28 guarantees the right of moth-
rights, including the right to good health ers to be accorded ‘special care’ for a
care,32 the right to inheritance,33 the reasonable period before and after child-
right to effective participation in the birth including paid maternity leave.
development process including the Women are also ‘guaranteed equal
formation of associations for such rights to training and promotion without
participation,34 social assistance to the any impediment’.41 Other women’s
aged,35 the right to secondary and right related constitutional provisions
tertiary education, subject to the availa- include non-discrimination,42 the prohi-
bility of resources,36 and the abolition of bition of harmful customary practices43
harmful cultural practices.37 and the right of spouses to an equal
share of property jointly acquired during
marriage.44 The Constitution also oblig-
14 Art 18(2). es the state to take ‘appropriate meas-
15 Art 19. ures to achieve regional and gender
16 Art 21(1)(a).
17 Art 21(1)(b). balance in recruitment and appointment
18
19
Art 21(1)(c).
Art 21(1)(d).
to public offices’45 and ‘necessary steps
20 Art 21(1)(e). so as to ensure the full integration of
21 Art 21(1)(f). women into the mainstream of the
22 Art 21(1)(g).
23 Art 21(3). economic development of Ghana’.46 It
24 Art 22.
25 Art 23.
26 Art 24. 38 Art 33(5).
27 Art 25. 39 Adjei-Ampofo v Attorney General [2003-2004]
28 Art 26. SCGLR 418.
29 Art 27. 40 Ghana Lotto Operators Association & Others v
30 Art 28. National Lottery Authority [2007-2008]
31 Arts 29 & 30 respectively. SCGLR 1088.
32 Art 34(2). 41 Art 28(3).
33 Art 36(7). 42 Art 17(2).
34 Art 37(2)(a). 43 Arts 26(2) & 39(2).
35 Art 37(6)(b). 44 Art 22.
36 Art 38(3)(a). 45 Art 35(6)(b).
37 Arts 26(2) & 39(2). 46 Art 36(6).
 Impact of the African Charter and the Maputo Protocol in selected African states 97

is also noteworthy that all the other women.52 Within the civil service, 24
rights enshrined in the Constitution are per cent of Chief Directors are women
guaranteed on a non-discriminatory while in the local government service
basis and therefore equally apply to only 8,2 per cent Municipal and District
women. Chief Executives are women.53 ‘Nega-
tive cultural perceptions of gender
Even though there has been signif- equality’ persist, which continue to limit
icant progress with regard to women’s women’s access to productive resources
rights and women enjoy formal equal- such as land and credit.54 While female
ity, substantive equality is far from being enrolment in school has improved
achieved. Discrimination against considerably over the past decades at
women and gender inequality is not the pre-tertiary levels of education (48,9
uncommon in Ghana.47 Domestic per cent in primary school), gender pari-
violence is widespread and an estimated ty in higher education has still not been
15-30 per cent of women and girls in attained, with current female enrolment
northern Ghana still undergo female figures at higher educational institutions
genital mutilation,48 even though the stand at 33,6 per cent of public universi-
practice is proscribed by law. Women ty students, 33,1 per cent of polytechnic
still face substantial challenges especial- students, and 43,3 per cent of Colleges
ly with regard to political participation of Education.55
and decision making. Currently, women
consist of a meagre 11 per cent of the 2 Ratification of the African
members of parliament (30 out of 275) Charter and the Maputo
almost the same as the 10,4 per cent
Protocol
women representation in Ghana’s first
parliament in 1957.49 Within the exec-
Ghana ratified the African Charter in
utive, women make up 29 per cent of
198956 and the Maputo Protocol in
ministers and 22 per cent of deputy
2007,57 without reservation.58 The
ministers.50 Ghana’s Council of State, a
presidential advisory body of 25
eminent persons has only three 51 Ghana’ (2013) 8 http://gwweb.jica.go.jp/
women.51 In the judiciary, 29 per cent km/FSubject1501.nsf/cfe2928f2c56e150492
571c7002a982c/a0b426e5087691cf49257afe
of judges of the Supreme Court and 25 000cdf45/$FILE/%E8%8B%B1%E8%AA%
per cent of those in the High Court are 9E%E7%89%88%202012.pdf (accessed
9 August 2015).
52 Ministry of Gender, Children and Social
Protection (n 50 above) 32.
53 As above.
47 Make Every Woman Count ‘African 54 Ministry of Gender, Children and Social
Women’s Decade 2010-2020: 2012 annual Protection (n 50 above) 3.
review’ (2012) 69. 55 Ministry of Gender, Children and Social
48 As above. Protection (n 50 above) 10.
49 Network for Women’s Rights in Ghana 56 Ratification Table: African Charter on
(NETRIGHT) ‘Ghana NGOs Alternative Human and Peoples' Rights http://www.
Report for CSW 57’ (2012) 6. achpr.org/instruments/achpr/ratification/
50 Ministry of Gender, Children and Social (accessed 9 August 2015).
Protection ‘Ghana’s fourth progress report 57 Ratification Table: Protocol to the African
on the implementation of the African and Charter on Human and Peoples' Rights on
Beijing Platform of Action and review report the Rights of Women in Africa http://www.
for Beijing +20’ (2014) 30 http://www.un achpr.org/instruments/women-protocol/rati
women.org/~/media/headquarters/attach fication/ (accessed 9 August 2015).
ments/sections/csw/59/national_reviews/ 58 African Union Executive Council ‘Report on
ghana_review_beijing20.ashx (accessed the status of OAU/AU treaties’ (2012)
9 August 2015). EX.CL/728(XXI) Rev.1 http://www.peace
51 Japan International Corporation Agency au.org/uploads/ex-cl-728-xxi-e.pdf
(JICA) ‘Country gender profile: Republic of (accessed 9 August 2015).
98 Ghana

power for executing treaties on behalf of responsible for corresponding and

Ghana is vested in the president as head reporting on treaties which Ghana has
of the executive, which may be exer- ratified. Where the treaty relates to a
cised in person or caused to be exercised specific theme, the sector Ministry
on behalf of the president.59 The presi- responsible for that thematic area is also
dent’s exercise of this power is however involved. Consequently, the Ministry of
subject to ratification by an act of parlia- Justice, Ministry of Foreign Affairs and
ment or a resolution of parliament Ministry of Gender, Children and Social
passed by more than half of all the Protection62 (which is responsible for
members of parliament.60 Parliament women’s rights issues) would be the
therefore exercises an oversight respon- ‘natural’ focal points for the African
sibility over the ratification of treaties, Charter and Maputo Protocol. Informa-
which are only binding on Ghana after tion was not available on the views of
parliamentary approval is secured. The these Ministries on the channel of
process usually starts with the Minister communication with the African
responsible for the particular subject Commission and the institutionalisation
matter of the treaty consulting with the of the state’s responsibilities in relation
Attorney General. The outcome of this to the African Charter and the Maputo
process is submitted to Cabinet which Protocol.
approves it and directs the treaty to be
submitted to parliament for ratification. 4 Domestication or incorporation
Once parliament ratifies, the instrument
of ratification is forwarded to the Minis- Ghana, like many common law coun-
try of Foreign Affairs for onward trans- tries, follows a dualist approach to trea-
mission to the relevant treaty body. ty implementation. Thus, ratified
treaties are not directly enforceable in
No official statements were found
Ghana unless and until domesticated
with regard to the reasons for ratifica-
through an act of parliament occurs.63
tion of the African Charter or the Mapu-
That said, Ghana’s notoriety for non-
to Protocol.
domestication of international human
rights instruments is well known.64
3 Government focal points
61 Session 29 March-7 April 1993, Banjul, The
Information was not readily available Gambia ACHPR/MOC/XIII/008.
on the government department specifi- 62 The Ministry of Gender, Children and Social
Protection (formerly, Ministry of Women
cally responsible for the African Charter and Children’s Affairs) generally reports to
and Maputo Protocol. Review of state treaty bodies on women and children’s rights
issues.
reports submitted to the African 63 AKP Kludze ‘Constitutional rights and their
Commission in the past and other UN relationship with international human rights
in Ghana’ (2008) 41 Israel Law Review 677
treaty bodies suggests that two main 679; EK Quansah ‘An examination of the
Ministries – the Ministry of Justice and use of international law as in interpretative
tool in human rights litigation in Ghana and
Ministry of Foreign Affairs61 are Botswana’ in M Killander (ed) International
law and domestic human rights litigation in
Africa (2010) 37 39; Quashigah (n 1 above)
21.
59 Art 75(1) of the 1992 Constitution of Ghana. 64 F Viljoen International Human Rights Law in
60 Art 75(2) of the 1992 Constitution. Africa (2012) 530-531; see also EVO Dankwa
61 The Ministry of Foreign Affairs submitted ‘Implementation of international human
Ghana’s previous state reports to the African rights instruments: Ghana as an illustration’
Commission. See African Commission (1991) 3 ASICL Proc 57; Kludze (n 63 above);
‘Periodic report of Ghana’, 13th Ordinary Open Society Initiative for West Africa
 Impact of the African Charter and the Maputo Protocol in selected African states 99

Ghana has not explicitly domesticated Constitution, however, expressly

most of the international and regional provides that the Constitution is the
human rights instruments it has ratified supreme law of Ghana and all other
including the African Charter and laws found to be inconsistent with its
Maputo Protocol. The attention of the provisions are void to the extent of the
Attorney General was drawn to this inconsistency.71 The Constitution,
anomaly during the African Commis- however, obliges the state to ‘promote
sion’s promotional mission to Ghana in respect for international human rights
2008.65 That notwithstanding, the law, treaty obligations and settlement of
Constitution of Ghana, which was international disputes by peaceful
adopted subsequent to Ghana’s ratifica- means’ and to adhere to treaties of inter-
tion of the African Charter, was signifi- national organisations to which Ghana
cantly influenced by the African is a member.72 In this regard, the
Charter.66 There are therefore many Supreme Court has held that ratified
provisions in the Constitution which treaties are not binding until incor-
directly correspond with provisions in porated by law and even then the
the African Charter67 and Maputo Constitution remains the supreme law
Protocol.68 of Ghana, having precedence (to the
extent of any inconsistency) over ratified
The Constitution of Ghana does not treaties73 including the African Charter
clearly spell out the relationship and Maputo Protocol. This traditionalist
between international law and national position notwithstanding, the Supreme
law.69 Neither is international law Court has in recent years adopted a
included amongst the sources of law more progressive position towards the
enumerated by the Constitution.70 The enforcement of international human
rights treaties – holding that non-domes-
tication of human rights treaties does
64 (OSIWA) & Institute for Democratic Gov-
ernance (IDEG) ‘Ghana: Justice sector and not per se mean that they should be
the rule of law’ (2007); K Appeagyei-Atua disregarded by national courts.74 This
‘Ghana at 50: The place of international
human rights norms in the courts’ in was the Supreme Court’s position in
H Mensa-Bonsu et al (eds) Ghana law since NPP v Inspector General of Police,75 where
independence: History development and prospects
(2007); Quansah (n 63 above); NA Anyidoho the court held that the fact that Ghana
‘Review of rights discourse – Ghana’ (2009) had not domesticated the African Char-
Human rights, power and civic action research
project, Universities of Oslo, Leeds and Ghana. ter does not mean that it cannot be
65 African Commission ‘Report of the relied upon. The Supreme Court has
promotion visit to the Republic of Ghana’
(2008) para 58. also held that the non-exclusion clause
66 Kludze (n 63 above). See also Anyidoho in article 33(5) of the Constitution
(n 64 above) 12.
67 As above. provides an avenue for provisions of
68 Human Rights Committee ‘Consideration of international human rights instruments
reports submitted by States parties under
article 40 of the Covenant: Ghana’ (and the practice under them) to be used
(30 January 2015) CCPR/C/GHA/1 47. It where such rights are not expressly
must be clarified that the Maputo Protocol
came into force a decade after the adoption
of 1992 Constitution of Ghana and therefore
its provisions could not have been contem-
plated in the drafting of the Constitution. 71 Art 1(2).
This notwithstanding, many of the provi- 72 Art 40. See also Quansah (n 63 above) 41.
sions of the Constitution corresponds with 73 NPP v Attorney-General [1996-97] SCGLR
provisions of the Maputo Protocol. 729 761.
69 Quansah (n 63 above). 74 NPP v Inspector General of Police [1993-94] 2
70 Art 11 does not include international law as GLR 459.
one of the sources of law in Ghana. 75 As above.
100 Ghana

guaranteed in the Constitution.76 In ‘female idiot’ or incest; where the preg-

addition, the Constitution mandates nancy would involve risk to the life or
that the state ‘be guided by international health of the women; and where the
human rights instruments in develop- child may suffer substantial physical
ment processes’.77 abnormalities when born.81 Similarly,
the repeal of criminal libel and sedition
5 Legislative reform or adoption provisions in the Criminal and Other
Offences Act enhanced the enjoyment
No evidence of a compatibility study of of the right to freedom of speech, espe-
domestic law with the African Charter cially press freedom.82 In terms of new
or the Maputo Protocol conducted by legislation adopted, the Children’s Act,
the government of Ghana prior to the 1998 criminalises underage and forced
ratification of these instruments was marriages, and fixes the minimum age
found. Neither has legislation been of marriage at 18, providing protection
adopted which explicitly mentions the for women and girls.83
African Charter or the Maputo Proto-
col. However many legislative reforms Additionally, the Intestate Succes-
have been adopted which implicitly give sion Law, 1985 protects the rights of
effect to the African Charter and the spouses and children (women and the
Maputo Protocol.78 As indicated in the girl child were usually excluded under
customary law prior to this) to inherit a
immediately preceding section, the Bill
substantial share (two-thirds) of the
of Rights in the Constitution corre-
estate of a deceased spouse or parent
sponds with many of the rights in the
who dies without a will. Both male and
African Charter. In addition to the Bill
female children receive an equal share
of Rights, many legislative amendments
of the deceased parent’s estate.84 Simi-
to the Criminal and Other Offences Act
of 1960 have been adopted to enhance larly, the Labour Act, 2003 guarantees
the full enjoyment of human rights. women equal pay for equal work on a
These include criminalisation of harm- non-discriminatory basis with men.85
ful practices such as female genital muti- The Labour Act also prohibits the
lation79 and customary servitude assignment of pregnant employees from
the regular place of residence after the
(trokosi).80 Abortion on the other hand
fourth month of pregnancy and guaran-
has been decriminalised where the preg-
tees a minimum of 12 weeks maternity
nancy results from rape, defilement of a
leave.86 The Public Order Act, 1994
76 Ghana Lotto Operators Association & Others v
National Lottery Authority [2007-2008]
SCGLR 1088 1096; Adjei-Ampofo v Attorney- 81 Sec 58(2) of the Criminal & Other Offences
General [2003-2004] 1 SCGLR 411; NPP v Act.
Attorney-General [1996-97] SCGLR 729 761. 82 Criminal Code (Repeal of criminal libel and
77 Article 37(3). seditious laws) (Amendment) Act, 2001 (Act
78 It must be highlighted that many of these 602). See also K Quashigah ‘Trends in the
legislative reforms preceded Ghana’s promotion and protection of human rights
ratification of the Maputo Protocol which under the 1992 Constitution of Ghana’ in
may have been done in anticipation of K Boafo-Arthur (ed) Ghana: One decade of the
bringing the laws into conformity with the liberal state (2007) 21.
Maputo Protocol prior to ratification. On the 83 Sec 13 of the Children’s Act, 1998 (Act 560);
hand, these reforms may also have been done see also African Development Fund ‘Ghana
to bring the laws in conformity with Country Gender Profile’ (2008) vi.
CEDAW which Ghana had earlier ratified. 84 Interstate Succession Law, 1985 (PNDCL
79 Sec 69A of the Criminal & Other Offences 111).
Act, 1960 (Act 29). 85 Secs 10(b) & 68 of the Labour Act, 2003 (Act
80 Sec 314A of the Criminal & Other Offences 651).
Act. 86 Sec 57 of the Labour Act.
 Impact of the African Charter and the Maputo Protocol in selected African states 101

facilitates the enjoyment of the right to which protects all persons, especially
assembly and peaceful protest by remov- women and girls (usually the victims of
ing the erstwhile requirement of police domestic violence) from all forms of
permit (this has been replaced with noti- violence especially within the domestic
fication) to demonstrate and also guar- setting;91 and the National Peace Coun-
antees the right of protesters to police cil Act, 2011 (Act 818) which establishes
protection.87 The National Health the National Peace Council with a core
Insurance Act, 2003 (Act 650) which mandate to prevent, manage and resolve
established the national insurance conflict and build sustainable peace.92
scheme to provide affordable health Other bills currently in the process of
insurance has improved access to health being enacted to further enhance the
care.88 The Legal Aid Scheme Act, 1997 enjoyment of human rights include the
(Act 542), provides legal aid in the form Property Rights of Spouses Bill 2013 –
of ‘representation by a lawyer, including to ensure equitable distribution of prop-
all such assistance as is given by a erty acquired during marriage;93 the
lawyer’ to indigent persons who earn Right to Information Bill, 2013 – to
less than the government minimum facilitate the enjoyment of the right to
wage, to enable access to justice.89 The information;94 and the Affirmative
Patient’s Charter spells out extensively Action Bill – to ensure women’s equali-
the rights of patients including protec- ty and participation in the public
tion from non-discrimination, the right service.95 The government of Ghana has
to quality health care and the right to also accepted a proposal by the Consti-
information regarding treatment.90 tutional Review Commission to amend
the Constitution ‘to provide that all
Other promising legislative interven-
tions include the Human Trafficking
Act, 2005 (Act 694) which was passed 91 A-G Abdulai ‘Political context study-Ghana’
to combat the growing menace of (2009) Human rights, power and civic action
research project, Universities of Oslo, Leeds and
human trafficking (of mostly women Ghana 5.
and children); the Disability Act, 2006 92 National Peace Council Act, 2011 (Act 818).
See also National Peace Council, ‘Five-year
(Act 715) to promote and protect the Strategic Plan for the National Peace
rights of persons with disabilities; the Council 2013-2017)’ (2013) 9; and Ministry
of Gender, Children and Social Protection (n
Domestic Violence Act, 2007(Act 732) 50 above) 25.
93 GAS Evelyn & Women in Law and
Development Africa (WILDAF-Ghana)
‘Property rights of spouses in relation to
87 Secs 1 & 2 of the Public Order Act, 1994 (Act economic violence against women in Ghana’
491). See also Anyidoho (n 64 above) 9; (2013) https://www.researchgate.net/publi
OSIWA & IDEG (n 64 above). cation/264051209_Property_Rights_of_Spo
88 NJ Blanchet, G Fink & I Osei-Akoto ‘The uses_in_Relation_to_Economic_Violence_A
effects of Ghana’s National Health Insurance gainst_Women_in_Ghana (accessed
Scheme on health care utilisation’ (2012) 46 20 August 2015).
Ghana Medical Journal 76 http:// 94 Commonwealth Human Rights Initiative
www.ncbi.nlm.nih.gov/pmc/articles/ ‘The Right to Information Bill 2013 of
PMC3426378/ (accessed 16 August 2015); Ghana: A critique and recommendation for
PA Dalinjong & AS Laar ‘The national improvement’ (2013) http://www.human
health insurance scheme: Perceptions and rightsinitiative.org/postoftheday/2013/Dec
experiences of health care providers and /GhanaRTIBill2013_CHRI_Critique_ATI_
clients in two districts of Ghana’ (2012) 2 Team_Dec13.pdf (accessed 17 August 2015);
Health Economics Review http://www. KK Adu ‘Ghana’s Right to Information Bill:
healtheconomicsreview.com/content/2/1/ An opportunity for the implementation of
13 (accessed 16 August 2015). digital preservation structure’ (2014) 4
89 Sec 2 of the Legal Aid Scheme Act, 1997 Journal of Emerging Trends in Computing and
(Act 542). Information Sciences 795.
90 Sixth Schedule of the Public Health Act, 95 Government of Ghana ‘Gender Ministry,
2012 (Act 851). stakeholders speak on Affirmative Action
102 Ghana

public institutions must be composed of mentions the African Charter and

at least thirty per cent [30%] of each Maputo Protocol amongst the instru-
gender’,96 in a bid to increase the partic- ments which the policy seeks to imple-
ipation of women in public institutions ment.99 The goal of the policy is to
which are currently dominated by men. improve access to health care for both
men and women by giving due attention
6 Policy reform or formulation to gender consideration in health care
delivery in order to promote equity and
Although Ghana has not adopted a equality between men and women.100
specific policy framework explicitly
giving effect to the African Charter and In implicit terms, the Ghana Shared
the Maputo Protocol in totality, many Growth and Development Agenda,
government policies contain human 2010-2013 (GSGDA) set out amongst
rights commitments which are in line its objectives promotion of fundamental
with the provisions of the African Char- human rights and enforcement of rati-
ter and the Maputo Protocol. A few fied regional and international human
government policies explicitly mention rights instruments.101 It also committed
the African Charter and the Maputo to ensuring protection of the rights of
Protocol as instruments which influ- vulnerable groups such as children,
enced the policy objectives. For persons with disabilities and women;
Instance, the National HIV and AIDS, improving access to justice; and improv-
STI Policy mentions amongst others the ing human safety and security.102 Other
African Charter – on the right to highest human rights commitments in the
attainable standard of health ‒ as one of GSGDA include enhancing the partici-
the international human rights instru- pation of local communities in environ-
ments ratified by Ghana to which the mental and natural resource
policy seeks to align its objectives.97 The management;103 improving human
objectives of the policy include eliminat- settlement development through
ing mother to child transmission, improved access to housing and slum
upgrading;104 ‘increasing equitable
improving access to treatment, alleviat-
ing the socio-economic effects of HIV access to and participation in quality
and AIDS, ensuring that HIV and AIDS
prevention and control are pursued in a 99 Ministry of Health ‘Health Sector Gender
gender sensitive manner and ensuring Policy’ (2009) 5 http://www.moh-ghana.
org/UploadFiles/Publications/Gender%20
that the basic human rights of persons policy091221104951120330053957.pdf
living with HIV and AIDS or other STIs (accessed 10 October 2015).
100 Ministry of Health (n 99 above) 21.
are ‘respected, protected and upheld’.98 101 Government of Ghana, National Develop-
The Health Sector Gender Policy also ment Planning Commission ‘Medium term
national development police framework:
Ghana Shared Growth and Development
Agenda (GSGDA), 2010-2013’ (2010) 158
95 Bill’ http://www.ghana.gov.gh/index.php/ https://s3.amazonaws.com/ndpc-static/pub
media-center/news/1802-gender-ministry- ication/%28GSGDA%29+2010-2013_Dece
stakeholders-speak-on-affirmative-action-bill mber+2010.pdf (assessed 15 August 2015).
(accessed 28 August 2015) 102 Government of Ghana, National Develop-
96 Government of Ghana ‘White paper on the ment Planning Commission (n 101 above)
Report of the Constitution Review Commis- 159-62.
sion of Enquiry’ (2012) 14. 103 Government of Ghana, National Develop-
97 Ghana Aids Commission ‘National HIV and ment Planning Commission (n 101 above)
AIDS, STI Policy’ (2013) 5 http://www. 60-61.
healthpolicyproject.com/pubs/153_Policyfi 104 Government of Ghana, National Develop-
nal.pdf (accessed 22 August 2015) ment Planning Commission (n 101 above)
98 Ghana Aids Commission (n 97 above) 7. 84-86.
 Impact of the African Charter and the Maputo Protocol in selected African states 103

education at all levels’;105 and bridging targeted communities.113 The National

the gender gap in access to educa- Gender and Child Policy of 2004 had
tion,106 amongst others. These commit- amongst its objectives redressing gender
ments are reiterated and renewed in the inequalities, strengthening women’s role
Ghana Shared Growth and Develop- in economic development and promot-
ment Agenda 2014-2017 (GSGDA ing ‘women’s equal access to and
II).107 control of economically significant
resources and benefits’.114
In addition, the Education Strategic
Plan 2010-2020 in line with the Consti- The government has recently
tution commits to amongst other things approved a new National Gender Policy
providing free universal basic education which aims at mainstreaming gender
(including providing free meals for equality concerns into the national
learners in the most impoverished areas development process’ and empower
to ensure retention of learners);108 bridg- marginalised groups such as women,
ing the gender gap in access to educa- children and persons with special needs.
tion;109 and improving access and The broad policy objectives of the policy
quality of education for persons with include ‘women empowerment and live-
disabilities.110 Ghana also introduced lihoods; women rights and access to
gender responsive budgeting in 2007 to justice; women leadership and account-
ensure women’s rights issues are proper- able government; economic opportuni-
ly taken account of in the budget.111 ties for women and gender roles and
The National Social Protection Strategy relations’.115
(NSPS)112 provides the framework for
the Livelihood and Empowerment Under the Affirmative Action Poli-
against Poverty (LEAP), a social protec- cy guidelines of 1998, government
tion programme of the Ministry of committed itself to ensuring 40 per cent
Gender, Children and Social Protection representation of women at all levels of
which aims to reduce food insecurity, governance, on Public Boards, Commis-
malnutrition and extreme poverty in sions, Councils, Committees and Offi-
cial Boards including Cabinet and the
Council of State.116
105 Government of Ghana, National Develop-
ment Planning Commission (n 101 above)
94.
106 Government of Ghana, National Develop-
ment Planning Commission (n 101 above)
96-97.
107 Government of Ghana, National Develop- 113 National Development Planning Commis-
ment Planning Commission ‘Medium-term sion/Government of Ghana & United
national development police framework: Nations Development Programme (UNDP)
Ghana Shared Growth and Development Ghana ‘Ghana millennium development
Agenda (GSGDA) II, 2014-2017’ (2014) goals report’ (2010) 9; S Handa et al ‘Liveli-
https://s3.amazonaws.com/ndpc-static/pub hood empowerment against poverty impact
ication/GSGDA+II+2014-2017.pdf evaluation’ (2013) Carolina Population
(accessed 15 August 2015). Center, University of North Carolina.
108 Government of Ghana, Ministry of Educa- 114 Ministry of Women and Children’s Affairs
tion ‘Education Strategic Plan 2010-2020’ ‘National Gender and Children Policy’
(2010) 15 http://www.moe.gov.gh/assets/ (2004) http://www.hsph.harvard.edu/popu
media/docs/ESP2010-2020Vol1Final.pdf lation/womenrights/ghana.gender.04.pdf
(accessed 15 August 2015). (assessed 20 September 2015).
109 As above. 115 Government of Ghana ‘Gov’t approves
110 As above. national gender policy’ http://www.ghana.
111 African Development Fund ‘Ghana country gov.gh/index.php/media-center/news/1822
gender profile’ (2008) 5. -govt-approves-national-gender-policy
112 Government of Ghana ‘National Social (accessed 30 September 2015).
Protection Strategy’ (2007). 116 Human Rights Committee (n 68 above) 28.
104 Ghana

7 Court judgments Charter means that the Charter cannot be

relied upon. On the contrary, article 21 of
our Constitution, 1992 has recognised the
As indicated above, there is no direct right of assembly mentioned in article 11 of
constitutional provision on the use of the African Charter.
international law in litigation before the
courts.117 Consequently, the courts in The Court then proceeded to find that
Ghana have not adjudicated on many the requirement of obtaining a permit to
cases in which international human exercise the right to demonstrate not
rights instruments and especially the only violates the Constitution of Ghana
African Charter and Maputo Protocol but also article 11 of the African Char-
are invoked as the primary bases of liti- ter.120
gation. The Courts have, however, had
the opportunity in a number of instances This position was reiterated by the
to find violations of the African Charter Supreme Court in Ocansey and Others v
or at least use its provisions and the The Electoral Commission and Another, 121
decisions of the African Commission as in which applicants challenged the
an interpretative guide. constitutional validity of sections of the
Representation of The People Law of
In New Patriotic Party v Inspector – 1992122 which disqualified prisoners
General of Police,118 the applicants chal- from voting. Even though the Court did
lenged provisions of the Public Order not find a substantive violation of the
Decree of 1972 which provided that African Charter in this case, it cited arti-
processions and public demonstrations cle 5 of the African Charter in its discus-
could only be undertaken pursuant to a sion of the right to dignity guaranteed in
permit granted by the police. The appli- the Constitution.123 The Court also
cant’s contention was that these provi- mentioned that the African Commission
sions were in contravention to the right ‘has often based its findings of breach of
to freedom of assembly and association Article 5 on torture and cruel practices
guaranteed in the Constitution of relating to imprisonment’; even though
Ghana. The Supreme Court in uphold- no specific jurisprudence or soft law of
ing the case of the applicant relied on the African Commission was refer-
amongst others provisions of the Afri- enced.124
can Charter holding that non-domestica-
tion of the African Charter does not In Asare & Others v Ga West District
prevent the court from relying on it. In Assembly & Another,125 the applicants
the words of Chief Justice Archer:119 challenged the demolition of their

Ghana is a signatory to this African

120 As above.
Charter and member states of the OAU 121 Ocansey and Others v The Electoral Commission
and parties to the Charter are expected to and Another (2010) 26 http://www.chr.up.
recognise the rights, duties and freedoms ac.za/images/files/documents/africancases
enshrined in the Charter and to undertake /country/ghana/ocansey_others_electoral_
commission_2010.pdf (accessed 17 Septem-
to adopt legislative and other measures to ber 2015).
give effect to the rights and duties. I do not 122 Representation of the People Law, 1992 (P N
think the fact that Ghana has not passed D C L 284).
specific legislation to give effect to the 123 Representation of the People Law 40.
124 As above.
125 Asare and Others v GA West District Assembly &
Another (2009) AHRLR 343 (GhHC 2009)
117 Quansah (n 63 above) 42. http://opil.ouplaw.com/view/10.1093/law:
118 [1993-94] 2 GLR 459. ildc/1488gh08.case.1/law-ildc-1488gh08
119 New Patriotic Party 466. (accessed 20 August 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 105

homes as a violation of their rights to 8 Awareness and use by civil

life and property. The first respondent society
(the Ga West District Assembly) had
earmarked the applicants’ houses for There is a substantial presence of civil
demolition because they were built society organisations in Ghana. Civil
across water courses, leading to heavy society in Ghana has evolved over the
flooding during heavy rains. The High past few decades to increasingly playing
Court cited article 4 of the African quite a dominant role in public policy
Charter and the African Commission’s making in Ghana. This is as a result of
decision in Aminu v Nigeria126 in its the rather liberal and conducive envi-
discussion of the right to life guaranteed ronment created by the Constitution,131
in the Constitution.127 On the right to which encourages right-based activism
property,128 the Court further cited arti- by guaranteeing ‘the enjoyment of rights
cle 14 of the African Charter as well as of effective participation in development
the African Commission’s decision in processes including rights of people to
the Constitutional Rights Project and Others form their own associations free from
v Nigeria.129 The Court concluded that state interference ...’132 NGOs, thus,
article 14 of the African Charter allowed actively engage with government and
a limitation of the right to property increasingly influence government poli-
where such limitation is in the general cy.133 Abdulai illustrates this with the
interest of the community. Consequent- example of a coalition on women’s
ly, since the location of the applicants’ rights which in 2005 initiated a national
homes was not in the general interest of discussion on the menace of domestic
the community, their demolition was in violence in Ghana ‒ eventually leading
line with the provision of article 14 of to the enactment of the Domestic
the African Charter.130 Violence Act in 2007 (the initial bill was
drafted by the NGO coalition).134
No evidence was found of the use of
the resolutions or general comments of A cursory review of the programmes
the African Commission or the Maputo and advocacy work of NGOs in Ghana
Protocol by or in the courts. The exam- indicates quite extensive use of the Afri-
ples above, however, indicate prepared- can Charter and to a greater extent the
ness of the courts to rely on the African Maputo Protocol, especially by
Charter, Maputo Protocol and other soft women’s rights NGOs which are some
law instruments and decisions of the of the most visible civil society organisa-
African Commission. The courts use of tions in Ghana. Several NGOs have
these instruments would be largely influ- observer status before the African
enced by the frequency with which liti- Commission.135 Records of shadow
gants and their lawyers cite them in reports submitted by NGOs on Ghana’s
their arguments before the courts. state reports to the African Commission
could not be obtained – likely attributa-
ble to the fact that Ghana has not

126 Aminu v Nigeria (2000) AHRLR 258 131 Abdulai (n 91 above) 16.
(ACHPR 2000). 132 Art 37(2)(a) of the 1992 Constitution.
127 Asare (n 125 above) paras 25-35. 133 Abdulai (n 91 above) 17.
128 Asare (n 125 above) para 36-46. 134 Abdulai (n 91 above) 16.
129 Constitutional Rights Project and Others v 135 For a list of these NGOs, see http://www.
Nigeria (2000) AHRLR 227 (ACHPR 1999). achpr.org/states/ghana/ (accessed 23 Octo-
130 Asare (n 125 above) paras 45-46. ber 2015).
106 Ghana

submitted its state reports since 2001. applicants’ homes did not constitute a
NGOs, however, submit shadow reports violation of the right to property
on Ghana’s reports to various UN treaty enshrined in article 18 of the Constitu-
bodies. tion and article 14 of the African Char-
ter since the location of the houses were
9 Awareness and use by lawyers not in the general interest of the
and judicial officers community. The demolitions were thus
justified in terms of the public interest
As indicated below, human rights law is qualification of article 14 of the African
taught in the majority of law faculties in Charter.139 The Court agreed with the
Ghana at the undergraduate level. The respondents.140
awareness of the African Charter and
Specific information on awareness
the Maputo Protocol amongst practicing
of the African Charter and Maputo
lawyers can therefore be reasonably
Protocol amongst judicial officers was
inferred. However, while a good
not readily available. However, in 2007,
number of lawyers is aware of the Afri-
AfriMap, Open Society Initiatives for
can Charter and the Maputo Protocol,
West Africa (OSIWA) and The Institute
this has not resulted in their use in litiga-
for Democratic Governance (IDEG)
tion before the courts. The use of the
reported that ‘judges in Ghana have
African Charter and the Maputo Proto-
little knowledge of international human
col and indeed international human
rights law, and training to encourage the
rights instruments in litigation generally
application of international law princi-
is rather abysmal.
ples in national courts should be
As indicated above, the African expanded’.141 This call was reiterated
Charter has been utilised in litigation by Justice SK Date-Bah (then Justice of
before the courts in at least three cases. the Supreme Court) in 2008.142 In the
It was, however, not clear from the course of the study, the researcher came
judgments whether the reference made across reports of human rights training
to the African Charter by the courts in of judges and other judicial officers
all three judgements was as a result of often under the auspices of NGOs.143
their use in arguments of lawyers before Evidence was also not available on
the courts. The use of the provisions of whether the Judicial Training Institute
the African Charter in arguments of which is responsible for training new
lawyers before the courts was only and promoted judges has incorporated
discernible in one of the cases. international human rights law into its
curriculum. A specialised ‘Human
In Asare & Others v GA West District
Assembly & Another,136 counsel for the
139 Asare (n 125 above) para 41.
applicants137 argued that the demolition 140 Asare (n 125 above) para 146.
of the applicant’s houses was in viola- 141 AfriMap, Open Society Initiatives for West
Africa (OSIWA) and The Institute for
tion of article 14 of the African Char- Democratic Governance (IDEG) ‘Ghana:
ter.138 The second respondent, on the Justice sector and rule of law’ (2007) 4.
142 E Hanson ‘Judges asked to sharpen skills in
contrary, argued that demolition of the human rights matters’ Ghanaweb 31 March
2008 http://www.ghanaweb.com/public_
agenda/article.php?ID=9713 (accessed
136 Asare (n 125 above). 30 September 2015).
137 The applicants were represented by the 143 Hanson (n 142 above). See also ‘Judges
Centre for Public Interest Law. attend seminar on emerging trends of human
138 Asare (n 125 above) paras 38-40. rights’ Ghanaweb 22 September 2011.
 Impact of the African Charter and the Maputo Protocol in selected African states 107

Rights Division’ of the High Court has University College,148 King’s University
been established to hear human rights College,149 GIMPA Law School150 and
cases. However, the UN Working the University of Cape Coast.151 In
Group on the issue of human rights and addition to the undergraduate
transnational corporations and other programmes, the University of Ghana
business enterprises reported in 2014 offers an LLM/MPhil programme in
that ‘in some instances, judges of those human rights and humanitarian law of
courts lack adequate training’.144 which the African Charter and Maputo
Protocol form an important part.152
10 Higher education and academic
writing A number of the law faculties are
also regular participants of the African
Human Rights Moot Court Competi-
Eight universities145 in Ghana offer
tion organised annually by the Centre
undergraduate courses leading to the
for Human Rights (University of Preto-
award of a bachelor of laws degree in
ria), which amongst others aims at
Ghana. The African human rights
creating awareness of the African
system including the African Charter
human rights system and instruments
and Maputo Protocol is taught as part of
amongst law students across the conti-
international human rights law in many
nent.153 It can therefore be inferred that
of these faculties. In some faculties it is
the African Charter and Maputo Proto-
taught as a compulsory subject whilst in
col are not unknown to a good number
others it is an elective subject. The
of law students at the undergraduate
curriculum of the University of Ghana
level. This is however not the case with
for instance devotes two academic
the Ghana School of Law where
semesters to the teaching of internation-
lawyers receive practical advocacy train-
al human rights law, of which the Afri-
ing before being called to the bar ‒
can human rights system forms an
human rights law is not a part of that
integral part.146 At the Faculty of Law
curriculum.
of Kwame Nkrumah University of
Science and Technology, international
human rights law is taught as an elective
subject.147 This is also true of the Zenith
148 Zenith University College ‘The LLB
programme’ http://www.zenithuniversity
college.org/site/programmes/detail/6
144 Human Rights Council ‘Report of Working (accessed 5 September 2015).
Group on the issue of human rights and 149 Kings University College ‘LLB Law: Course
transnational corporations and other Handbook 2014-2015’ (2014) http://www.
business enterprises – Visit to Ghana’A/ kuc.edu.gh/images/phocadownload/llb.pdf
HRC/26/25/Add.5 para 25. (accessed 5 September 2015).
145 These are University of Ghana, Kwame 150 http://www.new2.gimpa.edu.gh/index.php?
Nkumah University of Science and id=39 (accessed 5 September 2015).
Technology (KNUST), Ghana Institute of 151 University of Cape Coast http://ucc.edu.gh/
Public Administration (GIMPA), University academics/view/5196/department/5198/pr
of Cape Coast, Central University College, ogramme/5391 (accessed 5 September
Mountcrest University College, Kings 2015).
University College, Zenith University 152 University of Ghana – School of Law
College. ‘Programmes’ http://law.ug.edu.gh/acade
146 University of Ghana, School of Law ‘Course mics/programmes (accessed 5 September
descriptions’ http://law.ug.edu.gh/academi 2015).
cs/course_descriptions (accessed 5 Septem- 153 Notably the University of Ghana, Kwame
ber 2015). Nkrumah University of Ghana and Ghana
147 KNUST, Faculty of Law ‘Course description Institution of Management and Public
in LLB programme’ http://archive.knust. Administration (GIMPA) have participated
edu.gh/pages/sections.php?siteid=law&mid in the African Human Rights Moot Court
=258&sid=846 (accessed 5 September 2015). Competition several occasions.
108 Ghana

Academics have quite widely mandate as national human rights insti-

referred to the African Charter154 and to tution,159 ombudsman160 and anti-
a lesser extent the Maputo Protocol155 corruption agency.161 The human rights
mostly in highlighting the fact that mandate of CHRAJ includes monitor-
Ghana has ratified these instruments as ing Ghana’s implementation of national
part of its commitment to human rights. and international human rights law.162
Many of these academics have also Examinations of official policies and
discussed the African Charter in terms reports indicate that CHRAJ uses
of how its provisions influenced the (though not very regularly) the African
Constitution of Ghana and how the Charter and Maputo Protocol in its
provisions of the African Charter may programmes. CHRAJ has for instance
be enforced in Ghana. Others have in its reports highlighted some of the
discussed the practical implications of obligations of Ghana in terms of the
the African Charter on some of the laws African Charter and Maputo Proto-
of Ghana.156 Evelyn Ankumah157 and col.163 CHRAJ follows up on the
Professor Kuffour158 on the other hand concluding observations and decisions
have extensively discussed the African of the African Commission in addition
Charter with regard to the procedures to making its own detailed recommen-
and practice of the African Commis- dations to government on its obligations
sion. under various human rights treaties.164
Information could not be obtained on
11 National human rights the role of CHRAJ in the preparation of
institutions state reports to the African Commission
given that Ghana has not submitted a
The Commission on Human Rights and state report since 2001. CHRAJ has,
Administrative Justice (CHRAJ) was however, been involved in the prepara-
established in 1993 under Ghana’s tion and submission of Ghana’s Univer-
Constitution. CHRAJ has a tripartite sal Periodic Review report.165

154 Abdulai (n 91 above); Kludze (n 63 above);

Anyidoho (n 64 above); NKA Busia Jnr 159 Article 218(a), (c) and (f) of the Constitution
‘Ghana’ in AA An-Na'im (ed) Human rights and sec 7(1)(a), (c) & (g) of the CHRAJ Act,
in African constitutions: Realizing the promise for 1993 (Act 456).
ourselves (2013); Appeagyei-Atua (n 64 160 Articles 218(a), (b) of the Constitution and
above); SY Binpong-Buta ‘The role of the sec 7(1)(a), (b) of the CHRAJ Act, 1993 (Act
Supreme Court in the development of 456).
constitutional law in Ghana’ LLD thesis, 161 Art 218(a) & (e); 284-288 of the Constitution
University of South Africa, 2005; Quashigah and sec 7(1)(a), (e) & (f) of the CHRAJ Act,
(n 1 above); Quashigah (n 82 above); 1993 (Act 456).
Quansah (n 63 above). 162 CHRAJ http://www.chrajghana.com/?page
155 BT Torto ‘Affirmative action and women’s _id=43 (accessed 24 October 2015).
empowerment in Ghana: Challenges to a 163 CHRAJ ‘State of human rights in Ghana’
growing democracy’ (2013) Conflict Trends (2009) http://www.chrajghana.com/wp-con
41; S Bawa ‘Women’s rights and culture in tent/uploads/2012/08/sohr_2009.pdf
Africa: A dialogue with global patriarchal (accessed 10 September 2015); CHRAJ
traditions’ (2012) 33 Canadian Journal of ‘State of human rights in Ghana’ (2010);
Development Studies 90. CHRAJ ‘Gender assessment report’ (2013);
156 Dankwa (n 64 above). CHRAJ ‘State of human rights in Ghana’
157 EA Ankumah The African Commission on (2013).
Human and Peoples' Rights: Practices and 164 Email correspondence (9 October 2015) with
procedures (1996). Gloria Agyeman-Duah, Principal Investiga-
158 KO Kuffour The African human rights system: tor, CHRAJ.
Origin and evolution (2010). 165 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 109

12 State reporting Welfare of the Child and the Protocol

on the establishment of the African
State reporting is generally the mandate Court on Human and Peoples’ Rights;
of the Ministry of Foreign Affairs which and take measures to eradicate all harm-
represents Ghana at international and ful practices.169 As discussed above,
regional fora. However, the Ministry of many of the recommendations have
Justice which is government’s principal been complied with through legislative
legal advisor is usually involved. On and policy reforms.
issues relating to specific themes, such
as women’s rights under the Maputo Information could not be obtained
Protocol, the Ministry of Gender, Chil- on the process of preparing state reports
dren and Social Protection plays a presented to the African Commission.
significant role in the compilation of The experience of Ghana’s recent report
state reports as well as presentation of to the CEDAW Committee, however,
reports. indicates that the process commences
with a consultative meeting of Minis-
Ghana has submitted two state tries, Departments and Agencies
reports to the African Commission on (MDAs) and Civil Society Organisa-
its obligations pursuant to the African tions (CSOs). A Drafters Committee is
Charter. Its initial report upon ratifica- then constituted after which a request is
tion of the African Charter was submit- made to various human rights institu-
ted to the African Commission in 1993 tions and the judiciary to provide infor-
and this was followed by its second peri- mation on their sectors. A Lead
odic report in 2001. No other report has Consultant is then engaged to compile
been submitted by Ghana since then.166 the report. The draft report is submitted
This was brought to the attention of the to a validation workshop to enable
Attorney General during the African MDAs, CSOs and development partners
Commission’s promotional mission to to discuss and comment on the draft
Ghana in 2008.167 Ghana has eight report before it is finalised.170
overdue state reports.168 The reports
were submitted by the Ministry of No evidence of dissemination of
Foreign Affairs on behalf of Ghana. concluding observations was found.
Information on the delegation that
submitted the report could not be 13 Communications
obtained. The African Commission
recommended that the government of Six communications have so far been
Ghana amongst others amend national brought against Ghana.171 Of these, two
laws including the Constitution to bring
them in line with the African Charter;
169 C Heyns & M Killander (eds) Compendium of
improve the conditions of prisons; ratify key human rights documents in the African Union
the African Charter on the Rights and (3rd ed, 2007) 170-171.
170 Committee on the Elimination of Discrimi-
nation against Women ‘Consideration of
reports submitted by state parties under arti-
166 African Commission ‘Report of the cle 18 of the Convention on the Elimination
promotion visit to the Republic of Ghana’ of All Forms Discrimination against
(2008) para 22. Women: Combined sixth and seventh
167 African Commission (n 166 above) para 58. reports of state parties – Ghana’ 5 February
168 African Commission on Human and 2013 CEDAW/C/GHA/6-7, para 38.
Peoples’ Rights ‘State reporting’ http:// 171 Communication 6/88 Dr Kodji Kofi v Ghana;
www.achpr.org/states/ (accessed 10 Septem- Communication 4/88 Coordinating Secretary
ber 2015). of the Free Citizens Convention v Ghana;
110 Ghana

were ruled inadmissible because Ghana application of the criminal law. He also
had not yet ratified the African Charter alleged that the High Court’s failure to
at the time the communications were uphold his ‘submission of no case’ after
submitted;172 one was declared inadmis- the prosecution had closed its case was a
sible for non-exhaustion of local reme- violation of his right to be presumed
dies;173 one was withdrawn,174 and two innocent until proven guilty. Additional-
have been decided on merits.175 In ly, the government had acted in such a
Abubakar, the applicant had been held in manner, namely by appointing new
prison custody for seven years without judges to the Supreme Court panel hear-
trial. He approached the Commission ing his case, that the independence and
when he escaped from custody citing impartiality of the judiciary in adjudicat-
the fact that he could not return to ing his case had been compromised.
Ghana because he would be subject to a This conduct, he argued, was in contra-
penalty of six months to two years, vention of the Constitution of Ghana
notwithstanding the unlawfulness or and articles 7(1)(b), (c), 7(2) and 26 of
otherwise of the original detention. The the African Charter.178 The African
applicant alleged that his rights to liber- Commission found Ghana to be in
ty of person (article 6), the right to be violation of article 26 of the African
tried within a reasonable time (article Charter and called on the state to desist
7(1)(d)) and the right to return to his from any measures which would under-
country (article12(1)) had been violated. mine the independence of the courts. It
By reason of these events, the African does not appear that these decisions
Commission found Ghana in violation have been publicised within Ghana.
of articles 6 and 7(1)(d) of the African Neither was information on compliance
Charter.176 Louw reported partial available. This is partly because the
compliance with the decision in decision in Tsikata was only adopted by
2004.177 The present status of the deci- the African Commission in May 2014.
sion could not be obtained.
14 Special mechanisms ‒
In Tsikata, the applicant alleged that Promotional visits of the
he had been charged with amongst
African Commission
others a crime which did not constitute
a known offence at the time it was
committed, amounting to a retroactive The African Commission undertook a
promotional mission to Ghana from 1-5
September 2008.179 The mission was led
171 Communication 93/93 International PEN v by Commissioner Musa Ngary Bitaye,
Ghana; Abubakar v Ghana (2000) AHRLR
124 (ACHPR 1996); Communication 221/ then Commissioner responsible for
98 Alfred B Cudjoe v Ghana; Communication human rights promotion in Ghana.180
322/06 Tsatsu Tsikata v Ghana.
172 Communication 6/88 Dr Kodji Kofi v Ghana The delegation met and consulted with
and 4/88 Coordinating Secretary of the Free amongst others the Minister of Foreign
Citizens Convention v Ghana.
173 Communication 221/98 Alfred B Cudjoe v Affairs, the Commission on Human
Ghana. Rights and Administrative Justice,
174 Communication 93/93 International PEN v
Ghana. NGOs, the Attorney General, the Chief
175 Abubakar and Tsikata.
176 Abubakar.
177 L Louw ‘An analysis of state compliance 178 Tsikate paras 95-103.
with the recommendations of the African 179 African Commission ‘Report of the
Commission on Human and Peoples’ Rights’ promotion visit to the Republic of Ghana’
unpublished doctoral thesis, University of (2008).
Pretoria, 2004, 59. 180 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 111

Justice, the Law Faculty of the Universi- difficulties in exhausting local reme-
ty of Ghana, Ghana Journalist Associa- dies.184 Ghana also made the declara-
tion, the Ghana Police Service, and tion under article 34(6) of the Protocol
Correctional Services.181 The African on the establishment of the African
Commission provided an elaborate list Court in 2011.185 Beyond these, it is
of recommendations including the need observed that not much has changed
to domesticate the African Charter and since the African Commission made
other ratified international and regional recommendations to Ghana pursuant to
instruments, make the declaration under the promotional mission of 2008.
article 34(6) of the Protocol on the Ghana has still not submitted any
Establishment of the African Court, further periodic reports on the African
submission of overdue state reports, Charter nor the Maputo Protocol.
abolition of the death penalty, deconges- Neither have these instruments been
tion of prisons, the need to address long domesticated. The Right to Information
pre-trial detentions, improved access to Bill has been pending for over a decade;
information, training of police officers prison conditions have not changed and
in human rights and especially the use the police continue to resort to excessive
of force and resourcing the national use of force.
human rights institution.182 On
women’s rights issues, the African In addition to this, the Special
Commission recommended that more Rapporteur on Freedom of Expression
women be appointed to senior offices and Access to Information in Africa,
within the police service and testing Commissioner Pansy Tlakula, under-
female convicts for pregnancy before took an advocacy visit to Ghana from 1-
they are sentenced to prison custody.183 2 July 2014. The purpose of the visit
was to advocate for the prompt enact-
The promotional visit increased ment of the Right to Information Bill
awareness about the mandate and activ- which takes into account the African
ities of the African Commission, espe- Commission’s Model Law on Access to
cially amongst NGOs, and generally Information in Africa, currently before
enhanced the visibility of the African parliament.186 The Special Rapporteur
Commission in Ghana. The delegation met with leaders of parliament and
for instance used the opportunity to Ministers of various Ministries and
provide responses to questions raised by received the assurance of Ghana’s
NGOs during the visit, pertinent commitment to pass the Right to Infor-
amongst which was around the estab-
lishment of formal relationships with
NGOs through the granting of observer 184 African Commission (n 179 above) paras 48-
56.
status, the role of the African Commis- 185 F Viljoen International human rights law in
sion in the implementation of the Mapu- Africa (2012) 427; Ghana’s declaration on
article 34(6) http://dev.ihrda.org/doc/art_
to Protocol, the legal status of the 34_(6)_dec_ghana/view/ (accessed 5 Octo-
findings of the African Commission and ber 2015).
186 African Commission ‘Activity report of
Advocate Pansy Tlakula, Special Rapporteur
of freedom of expression and access to
information in Africa’ presented during the
56th ordinary session of the African
Commission, Banjul, The Gambia 21 April-
07 May 2015, paras 8-10 http://www. achpr.
181 As above. org/files/sessions/56th/inter-act-reps /219/
182 African Commission (n 179 above) para 190. 56os_intersession_report_en.pdf (accessed
183 As above. 5 October 2015).
112 Ghana

mation Bill before expiration of the • The work of academics in regularly

tenure of the present government’s term highlighting Ghana’s obligations under
the African Charter and Maputo Proto-
in 2016.187 Subsequent to the visit,
col and the need to reform national
Ghana’s Parliamentary Select Commit- laws to bring them in conformity with
tee on Constitutional, Legal and Parlia- the provisions of these instruments also
mentary Affairs recommended revisions needs to be commended in enhancing
to ‘problematic’ sections of the bill their impact.
based on the African Commission’s • The 41st ordinary session of the Afri-
Model Law on Access to Information in can Commission took place in Ghana
from 16-30 May 2007. This brought
Africa and submissions by NGOs.188
awareness to the African Commission
and allowed CSOs who had previously
15 Factors that may impede or complained of lack of funding to attend
enhance the impact of the the Commission’s sessions in Banjul to
participate.
African Charter, the Maputo
• Professor Emmanuel Victor Oware
Protocol and the African Dankwa served as a member of the
Commission African Commission from 1996-2005,
serving as Vice-Chair, Chair and as
The following factors have enhanced the Special Rapporteur on Prisons and
Detention Centres. Prior to his mem-
impact of the African Charter, the bership in the African Commission, he
Maputo Protocol and the African staunchly advocated for the domestica-
Commission: tion of the African Charter in the
national laws of Ghana and for law
• The courts, especially the Supreme reform to bring various laws in con-
Court, have been progressive in their formity with the African Charter.189
application of international human He also served as a Member of the
rights instruments, especially the Afri- Committee of Experts which drafted
can Charter despite its non-domestica- proposals for the current Constitution
tion and on occasion have relied on the of Ghana. This may account for simi-
jurisprudence of the African Commis- larities between many of the provisions
sion. The progressive interpretation of of the African Charter and the Consti-
the ‘non-exclusion’ clause in article tution of Ghana.
33(5) of the Constitution enables use of
provisions of the African Charter and On the other hand, many factors have
other human rights instruments where impeded the impact of the African Char-
the relevant right has not been domesti- ter, Maputo Protocol and African
cated in the Constitution.
Commission. These include:
• Civil society (NGOs, the media, law-
yers) have quite extensively used the • Non-domestication of Charter rights,
African Charter and the Maputo Proto- while not completely incapacitating
col in their programmes and advocacy their use, has hampered their full and
activities, though less so in litigation. effective enforcement and consequently
This has brought much awareness to impact, especially in human rights liti-
the provisions of the African Charter gation. Even though the Supreme
and Maputo Protocol as well as put Court has decided that the non-domes-
pressure on government to implement tication of the African Charter and
these instruments. other international human rights trea-
ties does not prevent their use in litiga-
187 As above. tion on human rights and has found a
188 ‘Ghana parliamentary panel praised for violation of the African Charter in at
passing RTI Bill’ freedominfo.org 11 Septem-
ber 2014 http://www.freedominfo.org/
2014/09/ghana-parliamentary-panel-praised
-passing-rti-bill/ (accessed 5 October 2015). 189 See Dankwa (n 64 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 113

least one instance, some lawyers are gation in terms of socio-economic

still reluctant to use them because they rights has led to less than desired
have not been domesticated.190 In impact of these instruments in respect
some instances, courts have rejected of the socio-economic rights enshrined
human rights claims based on interna- therein.
tional human rights instruments on • Limited knowledge of the African
grounds of non-domestication.191 Charter and Maputo Protocol amongst
• The uncertainty of the status of inter- judicial officers has also impeded the
national law within the Constitution impact of these instruments.
has also hampered the impact of inter- • Failure to submit state reports which
national human rights instruments. would enable the African Commission
Unlike the Constitution of South to comment on progress made and
Africa which requires courts to con- loopholes through concluding observa-
sider international law in interpreting tions as well as NGO alternative
the Constitution, no comparable provi- reports has hampered the impact of the
sion exists under the Constitution of African Charter and Maputo Protocol.
Ghana. Consequently, use of the Afri- Since Ghana has not been reporting,
can Charter and Maputo Protocol in the African Commission has rarely had
for instance human rights adjudication the opportunity to assess Ghana’s com-
would depend on the industry of the pliance with the African Charter and
presiding judge(s) or in some instances Maputo Protocol. NGOs have also not
where parties before the court invoke had the opportunity to submit alterna-
and rely on these instruments as part of tive reports, usually done through a
their case. consultative process amongst NGO
• As discussed earlier, international coalitions which creates greater aware-
human rights law is taught as an ness.
elective subject in the majority of law • ‘Gender inequality is institutionalised
faculties in Ghana, but is altogether in patriarchal traditional traditions’
absent in the curriculum of the Ghana and attitudes continue to impede the
School of Law. This state of affairs effective realisation of women’s
means that not all lawyers are aware of rights.194 These coupled with the rather
the African Charter and Maputo ‘gentle person’ and ‘give it to God’ atti-
Protocol or how to use them in tudes of the average Ghanaian means
litigation. This may well be the reason that even though elaborate rights are
for the rather abysmal use of the guaranteed many ‘Ghanaians still find
African Charter and Maputo Protocol it difficult to demand accountability
in arguments of lawyers before the and transparency from government
courts. institutions’, resulting in widespread
• In line with the immediately preceding tolerance and endurance of human
point, the implementation of socio-eco- rights violations.195 These have
nomic rights have especially suffered become frontiers of resistance which
because ‘the legal profession in Ghana impede the impact of the African Char-
has not developed the aptitude of fash- ter generally and more specifically, the
ioning personal rights in terms of eco- Maputo Protocol.
nomic, social and cultural rights’.192
The courts have therefore not devel-
oped expertise in adjudicating socio-
economic rights cases.193 Limited liti-

190 Anyidoho (n 64 above) 12

191 In Issa Iddi Abass & others v Accra Metropolitan
Assembly and Another (unreported) argu-
ments on the right to housing based on inter-
national human rights instruments were
rejected by the High Court. 194 Bawa (n 155 above) 102.
192 Quashigah (n 82 above) 26. 195 See Ghana’s second periodic report to the
193 Quashigah (n 82 above) 26-28. African Commission (2001) 37.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
KENYA

Saoyo Tabitha Griffith*

Paul Ogendi**

1 Introduction the previous Constitution where no such

provisions existed.4
The Constitution of the Republic of
Kenya (2010 Constitution) provides that The previous Constitution also did
‘the general rules of international law not provide for the manner of ratifica-
shall form part of the laws of Kenya’1 tion of international human rights
and further expressly states that, ‘any instruments. The legislature had no
treaty or convention ratified by Kenya express role in regard to signing and
shall form part of the laws of Kenya ratifying international treaties. In prac-
under this Constitution’.2 To this end, tice, the responsibility of signing and
the Kenya National Commission on ratifying international treaties fell into
Human Rights (KNCHR) is now the the hands of the executive,5 with the
‘principal organ of the state in ensuring Cabinet leading the process.6 Generally,
compliance with obligations under trea- Kenya’s treaty signing and ratification
ties and conventions relating to human history has been ‘haphazard’ with no
rights’.3 This is a notable change from
4 Kenya adopted its first Constitution in 1963
upon independence which was then
amended numerous times through Constitu-
tion of Kenya (Amendment) Acts 1964-2008.
See N Kamunde ‘Kenya’s constitutional his-
tory’ 2014 http://www.4cmr.group.cam.ac.
uk/filecab/redd-lawproject/20140821%20
BP%20Kenyas%20Constitutional%20His-
tory.pdf (accessed 16 November 2015).
5 Constitution of Kenya Review Commission
(CKRC) ‘The Final Report of the
Constitution of Kenya Review Commission’
* LLM HRDA (Pretoria), Sexual and (Final Draft) approved for issue at the 95th
Reproductive Health Rights Programme Plenary Meeting of the Constitution of
Manager, Kenya Legal and Ethical Issues Kenya Review Commission held on 10
Network on HIV&AIDS, Nairobi. February 2005 (2005) 150 states that ‘The
** LLM HRDA (Pretoria), Researcher and doc- conduct of international law issues is deemed
toral candidate, Centre for Human Rights, and implied to fall under the powers
University of Pretoria. This work essentially accorded to the President under sec 23 of the
builds on V Lando, W Kaguongo & C Bosire Constitution. In addition, the powers and
‘Kenya’ in Centre for Human Rights Impact of functions of the legislature do not expressly
the African Charter and the Women’s Protocol in provide for domestication of international
selected African states (2012) 65-78. law but again it is implied as one of the
1 Art 2(5). legislative powers’.
2 Art 2(6). 6 Interview with Senior State Counsel, State
3 Art 59(2). Law Office, Kenya, 26 August 2011.

115
116 Kenya

clear answers as to why some treaties institutions including the National

were signed or ratified and others not.7 Gender and Equality Commission and
the KNCHR.
Under the previous Constitution,
the Office of the Attorney General was 2 Ratification of the African
in charge of legal compliance with all Charter and Maputo Protocol
international instruments that Kenya
had signed and ratified.8 This aspect
Kenya ratified the African Charter on
was however clarified under the 2010
21 January 1992 and deposited the
Constitution with KNCHR now taking
instrument of ratification on 10 Febru-
charge as the principal organ of the state
ary 1992.12 Discussions before signature
in ensuring compliance with obligations
and ratification took place at cabinet
under treaties and conventions relating
meetings, records of which meetings
to human rights.9 The process of signa-
could not be accessed during this study.
ture and ratification is guided by the
Treaty Making and Ratification Act that Kenya signed the Maputo Protocol
was enacted in December 2012. This on 17 December 2003 and ratified it on
Act requires Parliament to debate and 13 October 2010, thereby becoming the
approve treaties before Kenya ratifies 29th state party to the Maputo Proto-
any international treaty.10 The 2010 col.13 Unlike the African Charter,
Constitution clears doubts on the posi- parliamentary discussions took place on
tion of international law in Kenya and the ratification of the Protocol. On
cases discussed below show a change in 13 April 2005, the Minister in charge of
approach by Kenyan courts.11 Gender Affairs stated that Kenya had
delayed ratification of the Maputo
It is noteworthy that as a result of
Protocol despite signing it in 2003
the 2010 Constitution, civil, political,
because it had certain concerns regard-
economic, social and cultural rights are
ing some of its provisions.14 The Minis-
all enunciated in the Constitution and
ter noted that while article 10(3) of the
therefore justiciable pursuant to articles
Protocol called on the Kenyan govern-
21(2) and 43. Women’s rights are enact-
ment to significantly reduce its military
ed in a wide variety of laws that prohibit
budget for purposes of facilitating
violations such as domestic violence,
women’s development, the government
sexual violence, female genital mutila-
was uncomfortable with this provision
tion and trafficking in persons, amongst
others. Furthermore, women’s rights in
Kenya are protected through a variety of 12 African Union ‘List of Countries which have
signed, ratified/ acceded to the African
Charter on Human and Peoples’ Rights’
7 CKRC (n 5 above) 151. http://www.africa-union.org/root/au/Doc
8 The Attorney General is the legal advisor of uments/Treaties/List/African%20Charter%
government and thus advises the government 20on%20Human%20and%20Peoples%20Ri
on Kenya’s compliance with treaties that it ghts.pdf (accessed 20 September 2015).
has ratified. 13 African Union ‘List of Countries which have
9 Art 59(2)(g). signed, ratified/ acceded to the Protocol to
10 Sec 8(4) of the Treaty Making and the African Charter on Human and Peoples’
Ratification Act 45 of 2012 stipulates that the Rights on the Rights of Women in Africa’
National Assembly may approve the http://www.africa-union.org/root/au/Doc
ratification of a treaty with or without uments/Treaties/List/Protocol%20on%20
reservations to specific provisions of the t h e % 2 0 R i g h t s % 2 0 o f % 2 0 Wo m e n . p d f
treaty. (accessed 20 September 2015). Correct link
11 David Njoroge Macharia v Republic Court of 14 Parliament of the Republic of Kenya
Appeal at Nairobi Criminal Appeal 497 of ‘National Assembly Official Report’
2007. (Wednesday 13 April 2005) 644-646.
 Impact of the African Charter and the Maputo Protocol in selected African states 117

and especially the exact meaning and with the National Gender and Equality
impact of the term ‘significant’ as used Commission (NGEC), KNCHR and
in the Protocol. Secondly, the Minister select civil society organisations work-
noted that article 14(1)(b) of the Maputo ing on human rights issues. As a govern-
Protocol gave women a choice to decide ment institution, NGEC is the focal
whether or not to have children and this point for the Maputo Protocol and has
had the potential of encouraging abor- the obligation of representing the state
tion. Nevertheless, the government and responding to concerns raised
bowed to pressure from lobby groups during state reporting to the African
and ratified the Protocol on 13 October Commission, particularly on issues of
2010.15 women’s equality and freedom from
discrimination.17
3 Government Focal Point
4 Domestication
Article 152(1)(d) of the 2010 Constitu-
tion limits the number of cabinet secre- The African Charter and the Maputo
taries to 22. This is a shift from the Protocol are now part of Kenyan law
previous regime which provided for a under the 2010 Constitution.18 Howev-
cabinet of approximately 44 ministers.16 er, the Constitution remains the
As a result, several ministries under the supreme law.19 The Constitution
then 2007-2012 government were contains economic, social and cultural
absorbed as departments post the 2010 rights in the Bill of Rights which are
Constitution. In the circumstances, the justiciable,20 thus placing Kenya
then Ministry of Justice, National Cohe- amongst the few African countries that
sion and Constitutional Affairs that was have expressly recognised socio-
previously responsible for legal policy, economic rights in their Bills of
policy on administration of justice and Rights.21 In the case of Satrose Ayuma,22
constitutional matters was absorbed as a petitioners relied on the Bill of Rights in
department under the Office of the the 2010 Constitution, the African Char-
Attorney General (AG). Whereas ter and the Ogoniland case to argue
KNCHR is constitutionally mandated to against the eviction of squatters living
ensure compliance with obligations on land belonging to the then Kenya
under treaties and conventions, the
Department of Justice under the AG’s 17 Sec 8(n) of National Gender and Equality
Act states the function of NGEC as
office is still responsible for reporting to producing periodic reports for national,
the African Commission as well as other regional and international reporting on
progress in the realisation of equality and
UN treaty monitoring bodies. These freedom from discrimination for these
reports are generated in collaboration interest groups.
18 Art 2(6) Constitution of Kenya.
19 Art 2(3) provides that ‘the validity or legality
15 African Union (n 13 above). The ratification of this constitution is not subject to challenge
of the Maputo Protocol by Kenya coincided by or before any court or other state organ’
with the ‘Africa Women’s decade’ which was making it superior to international law in the
organised by the African Union and was domestic legal system of Kenya.
hosted in Nairobi. FIDH ‘Kenya: Concrete 20 Art 43(1) provides for the right to health,
steps required to demonstrate government’s housing, food, social security and education.
will to respect women’s rights’ 11 October 21 South Africa and Ghana remain some of the
2010 http://www.fidh.org/Kenya-Concrete- few countries that recognise socio-economic
steps-required-to-demonstrate (accessed rights within their constitutions. See
14 August 2011). JC Mubanguzi ‘Constitutional protection of
16 http://www.businessdailyafrica.com/-/539 socio-economic rights’ (2006) 2 African
546/1751972/-/qng29b/-/index.html Journal of Legal Studies 1.
(accessed 24 September 2015). 22 Constitutional Petition 65 of 2010.
118 Kenya

Railways enterprise without proper rights contained in the African Charter

guidelines and alternative areas of settle- and the Maputo Protocol.29
ment.23 Similarly, in the ongoing case of
KELIN & Others v Médecins Sans Fron- Today, the African Charter and the
tières and Others, the petitioners have Maputo Protocol continue to influence
cited the provisions of article 43(1)(a) of domestic legislation, including the
the Constitution, the International recently enacted Marriage Act 2014,
Covenant on Economic, Social and Matrimonial Property Act 2014, Kenya
Cultural Rights, the African Charter and National Commission of Human Rights
the Maputo Protocol to argue against Act 2011, National Commission on
the forced and coerced sterilisation of Gender and Equality Act 2011 and the
women living with HIV.24 Protection against Domestic Violence
Act 2015, which borrow from provi-
The adoption of the 2010 Constitu- sions of the African Charter, the Mapu-
tion ended more than two decades of to Protocol and the Convention on the
struggle for constitutional reform. The Elimination of all forms of Discrimina-
African Charter and other human rights tion against Women (CEDAW).30
instruments formed a basis for demands
for political and constitutional reform.25 5 Legislative reform or adoption
In the process, important amendments
to the previous Constitution were made, Under the previous Constitution, the
some of which implemented the African cabinet led the process of implementa-
Charter provisions. These include intro- tion of international treaties. A compati-
duction of multi-party politics in 1992,26 bility study would be carried out and
gender considerations in nominating discussed in cabinet,31 and the relevant
members of parliament,27 and the addi- ministry would initiate drafting of the
tion of ‘sex’ as one of the grounds for relevant legislation. In the constitution
prohibition of discrimination.28 Subse- review process, the African Charter
quently, even as the country was in featured prominently in discussions on
search of a new constitutional dispensa- the Bill of Rights; for example, article 29
tion, much legislation was enacted that of the African Charter was highlighted
directly or indirectly recognised the as an important provision in regard to
the need to preserve family cultural
values such as respect for parents.32
23 The matter was determined by the Court
which held that the First Respondent had
violated the Petitioners’ right to accessible
and adequate housing contrary to art 43 of
the Constitution. See http://kenyalaw.org/ 29 Statutes such as the Childrens Act make
caselaw/cases/view/90359/ (accessed 25 direct reference to the UN Convention on the
September 2015). Rights of the Child. Sec 7(2) of the Act
24 Constitutional Petition 605 of 2014. See also provides that: ‘Every child shall be entitled to
Muigai vs John Bosco Kariuki & another (2014) free basic education which shall be
where the Court of Appeal relied on compulsory in accordance with Art 28 of the
international instruments that prohibit United Nations Convention on the Rights of
discrimination against women to wit, the the Child’.
UDHR, CESCR, CEDAW and ICCPR. 30 The Protection against Domestic Violence
25 GK Kuria ‘The rule of law in Kenya and Act 2 of 2015 https://ke.boell.org/sites/def
status of human rights’ (1991) 16 Yale Journal ault/files/uploads/2015/08/protectionagain
of International Law 217. stdomesticviolenceact_2015_1.pdf (accessed
26 Sec 1A of the former Constitution (Act 5 of 25 September 2015).
1969). 31 See interview with Senior State Council (n 6
27 Sec 33(3) of the former Constitution. above).
28 Sec 82(3) of the former Constitution. 32 CKRC (n 5 above) 91.
 Impact of the African Charter and the Maputo Protocol in selected African states 119

Legislative reform has typically of persons living with HIV/ AIDS.40

taken the form of either piece-meal With regard to the right to a clean envi-
changes to national legislation through ronment, the Environmental Co-ordina-
amendments33 or the adoption of new tion and Management Act (EMCA)
legislation. The African Charter was which was enacted in 199941 was an
used as the basis for repealing the provi- important step for economic, social and
sion on corporal punishment from the cultural development.42 The Act
Kenyan Penal Code in 2003.34 Many allowed wide access to courts for the
pieces of legislation that cover a wide enforcement of environmental rights
spectrum of rights have been adopted which was initially restricted and
over the years. These include the Sexual narrowly construed.
Offences Act, 2006 which aims at
improving the protection of victims of Additionally, other recently enacted
sexual offences.35 Amongst the new pieces of legislation that have been
measures introduced was the compre- adopted to give effect to various articles
hensive definition of the offence of rape of the African Charter and the Maputo
and simplification of several rules of Protocol include the Protection Against
evidence to better protect victims.36 Domestic Violence Act 2015, the Coun-
ter Trafficking in Persons Act 2010 43
Kenya also established KNCHR in and the Prohibition of Female Genital
2003 for more effective realisation of Mutilation 201144 which speak to arti-
human rights.37 While Kenya only rati- cles 4(2)(a), (g) and 5(b) of the Maputo
fied the Maputo Protocol in 2010, it had Protocol.
already established the National
Commission on Gender and Develop- 6 Policy reform or formulation
ment in 2003, meant to support the
mainstreaming of gender in issues of As with legislative reform, a number of
national development.38 In 2006, Parlia- policies have been adopted which
ment also enacted the HIV and AIDS impact on different rights covered by the
Prevention and Control Act39 which African Charter and the Maputo Proto-
provides for a number of safeguards and col. Kenya has formulated a host of
measures aimed at protecting the rights policies on a wide variety of issues that
implicitly and explicitly touch on both

33 For instance, the Penal Code has been

amended many times to delete provisions 40 TO Ojienda ‘HIV/AIDS and the labour
that go against international human rights sector: Examining the role of law in
standards. protecting the HIV positive worker in Kenya’
34 Parliament of the Republic of Kenya Unpublished thesis, University of South
‘National Assembly Official Report’ (1 April Africa, 2010 128-132.
2003) 709. 41 Act 8 of 1999.
35 Act 3 of 2006. 42 Preamble to the EMCA.
36 Sec 3 of the Sexual Offences Act. 43 Counter-Trafficiking in Persons Act8 of 2010
37 Act 9 of 2002. Art 59(4) of the Constitution http://kenyalaw.org/kl/fileadmin/pdfdown
of Kenya transformed the KNCHR into a loads/Acts/Counter-TraffickinginPersons
constitutional body with an enhanced Act_No8of2010.pdf (accessed 24 September
human rights mandate. See www.knchr.org 2015).
for more information on the activities of the 44 Prohibition of Female Genital Mutilation
Kenya National Commission on Human Act 32 of 2011 http://kenyalaw.org/kl/file
Rights. admin/pdfdownloads/Acts/Prohibitionof
38 Sec 6(2)(j). FemaleGenitalMutilationAct_No32of2011.p
39 Act 13 of 2006. df (accessed 24 September 2015).
120 Kenya

the African Charter and the Maputo provision of adequate, affordable and
Protocol.45 quality housing in sustainable human
settlements. There is also, currently, a
There is the National Policy for the Draft National Prevention of Slums
Prevention and Control of HIV/AIDS Upgrading Policy which provides for
and Sexually Transmitted Infections better housing particularly for youth and
(STI)46 which seeks to implement most women.49 Moreover, there are several
of the matters covered under the HIV government policies that have been
Prevention and Control Act of 2006. adopted to implicitly give effect to the
Further, Kenya adopted a Land Reform provisions of the Maputo Protocol.
Policy in 2007. This Policy seeks to These include the National Guidelines
address critical issues such as communal on the Management of Sexual Violence,
land ownership schemes like those prac- 2014 and the Adolescent Reproductive
tised by most indigenous communi- Health and Development Policy, 2015.
ties.47 The latter aims to enhance the sexual
and reproductive health and rights
Additionally, in a creative move, status of adolescents in Kenya and
the Ministry of Public Health and Sani- contributes towards realisation of their
tation used the report of the African full potential in national development.
Commission’s Working Group on
Indigenous Populations and Communi- In addition to the above, there is
ties48 to develop strategies for public also the Kenya Health Policy (2012-
health needs to marginalised and vulner- 2030) which aims at ‘attaining the high-
able groups in Kenya. In pursuit of this est possible health standards in a
policy, the Ministry set aside funds manner responsive to the population
(Health Sector Services Funds) to needs’. The Policy seeks to achieve this
support community health projects in through supporting provision of equita-
arid and semi-arid areas where some of ble, affordable and quality health and
the groups identified by the African related services at the highest attainable
Commission Working Group are found. standards to all Kenyans.

In line with the African Charter,

7 Court judgments
Kenya has also enacted a National
Housing Policy which facilitates the
Kenyan courts were initially reluctant to
apply international law instruments
45 Key amongst the Policies include: the
National Plan of Action against Sexual directly to relevant domestic matters.50
Exploitation of Children in Kenya 2013- However, even under the previous
2017; the Kenya National Health Policy and
Guidelines; the Child Survival Development constitutional regime that was strongly
Strategy; the National Reproductive Health dualist, courts gradually softened their
Policy; the National Disability Policy; the
Draft Special Needs Education Policy; the approach and are increasingly making
Draft National Social Protection Policy; and direct reference to international and
the Draft National Policy on National Values
and principles of Governance, amongst regional human rights instruments to
many others. which Kenya is party.51 For instance, in
46 See http://nascop.or.ke/is/ (accessed
14 August 2011).
47 Ministry of Lands ‘National Land Policy’
(Land Policy Secretariat) (May 2007). 49 Kenya’s Combined 8t-11th Periodic Report
48 African Commission ‘Report of the African under the African Charter November 2014,
Commission on Human and Peoples’ Rights para 117.
Working Group of Experts on Indigenous 50 Okunda v Republic [1970] EA 453.
Populations/Communities’. 51 (2005) AHRLR 107 (KeCA 2005).
 Impact of the African Charter and the Maputo Protocol in selected African states 121

the celebrated case of Rono v Rono, the The Court of Appeal has noted that
Court of Appeal stated that African while Kenya has had a strong dualist
customary succession laws that disinher- past, the position may have changed
ited women contravened article 18 of with the passing of the 2010 Constitu-
the African Charter which Kenya volun- tion.60 In the case of David Macharia v R,
tarily ratified without any reservation.52 the court noted the fact that the African
The judge noted that Kenyan domestic Charter has been ratified by 53 African
law was insufficient in regard to this states, which strengthens its place and
aspect of discrimination of women and legitimacy in domestic legal systems of
thus international human rights instru- states party to this Charter.61 The court
ments that Kenya had ratified were also made reference to the guidelines on
necessary.53 In a later case, Re Andrew fair trial adopted by the African
Musyoka (Deceased)54 the judge referred Commission62 and indicated that they
to the precedent that was set in Rono v were an authoritative interpretation of
Rono and used the African Charter and Kenya’s obligations under the African
other human rights instruments to Charter.63
protect the rights of daughters to inherit
their father’s property and held that Post the enactment of the 2010
disinheriting daughters is contrary to Constitution, Kenyan courts have made
article 18 of the African Charter and a series of declarations, rulings and
other human rights instruments that judgments that have both explicitly and
Kenya has ratified that protect and implicitly referred to the provisions of
guard women’s rights.55 the Maputo Protocol. Indeed, the courts
have pronounced themselves on a wide
In Waweru v Republic,56 the court array of rights including the appoint-
invoked article 24 of the African Charter ment of women to public office under
and stated that the ministries in charge the Two-Thirds Gender Rule,64 protec-
of local government and water affairs tion against violence, property inher-
were obligated to construct a sewerage itance and the prohibition against
treatment plant to prevent environmen-
tal pollution.57 In Martha Karua v Radio
Africa Ltd,58 the court noted that articles
11 and 12(2) of the African Charter do
not allow derogation from the right to
freedom of expression whereas the then 60 David Njoroge Macharia v Republic Court of
Constitution of Kenya allowed for dero- Appeal at Nairobi Criminal Appeal 497 of
2007.
gation. The court noted that any new 61 As above.
constitutional dispensation should take 62 African Commission on Human and
Peoples' Rights ‘Principles and guidelines on
into account the non-derogable nature the rights to a fair trial and legal assistance in
of this freedom.59 Africa’ http://www.achpr.org/instruments/
principles-guidelines-right-fair-trial/
(accessed 10 October 2011).
63 As above.
64 The Constitution espouses the rights of
52 As above. women as being equal in law to men, and
53 Rono (n 51 above). entitled to enjoy equal opportunities. Article
54 eKLR (2005). 27 of the Constitution obligates the
55 As above. government to develop laws, including
56 (2007) AHRLR 149 (KeHC 2006). affirmative action programmes and policies
57 As above. to address the past discrimination that
58 High Court at Nairobi (Nairobi Law Courts) women have faced by ensuring that, not
Civil Suit 288 of 2004. more than two-thirds of elective or
59 As above. appointive positions shall be of the same sex.
122 Kenya

discrimination on the basis on HIV.65 pay hospital fees and who were subject-
ed to physical, mental, and verbal
The recent case of MNN v Attorney abuse.67 In its decision, the Court noted
General of Kenya, brought on behalf of a that the two women were unlawfully
woman who was mistreated in a private detained and suffered numerous human
Kenyan hospital brought to light the rights violations, including their rights
severity of the harm suffered by women to liberty and dignity. The ruling also
in Kenyan health facilities. MNN’s acknowledged that they were discrimi-
story revealed the weaknesses of the nated against on the basis of their socio-
accountability mechanisms that are economic status and gender. The Court
meant to protect women from such has ordered the Nairobi County govern-
abuse as well as provide remedies when ment to pay reparations to both women
rights violations occur. The MNN case is and all legal fees.68
one of the first reproductive rights cases
to be brought before the Kenyan High In Richard Muasya v AG, the peti-
Court and highlights the state’s failure tioner relied on the non-discrimination
to live up to its legal obligations under provisions of the African Charter to
both domestic law and regional and fortify the argument that the constitu-
international human rights standards. tional provisions on non-discrimination
With this case, the High Court has an were also applicable to intersex persons
opportunity to demand stronger legal in Kenya.69 Therefore, by and large, the
standards on female genital mutilation, new constitutional dispensation has
to address the systemic accountability shown signs of embracing the applica-
issues that underlie rights violations in tion of international human rights
healthcare facilities and to affirm instruments in the resolution of disputes
Kenya’s obligation to implement inter- otherwise classified as national to which
national human rights law.66 domestic laws should exclusively apply.
Besides the African Charter, key
Similarly, in September 2015, the amongst the international instruments
High Court of Kenya ordered the Minis- frequently cited by the courts include
try of Health to end the discrimination the ICCPR, ICESCR and the Universal
and abuse experienced by women in Declaration of Human Rights.
public maternity hospitals and provide
financial compensation for two women
who were illegally detained at Pumwani
Maternity Hospital for their inability to

67 http://www.reproductiverights.org/pressroo
65 See also FIDA Kenya & 5 Others v The Attorney m/crr-case-on-unlawful-detention-of-women
General and the Judicial Service Commission -in-maternity-hospitals-in-the-high-court-of-
Petition 102 of 2011; VMK v CUEA (2013) kenya (accessed on 28 September 2015)
eKLR; and CK and 11 Others v The Correct link
Commissioner of Police/Inspector General of the 68 The Center for Reproductive Rights filed this
National Police Service and 2 Others Petition 10 case in December 2012 to hold the Ministry
of 2012. of Health accountable for allowing rampant
66 This case had been instituted by the detention and abuse of women in health care
Federation of Women Lawyers (Kenya), settings.
with the Centre for Reproductive Health 69 High Court Petition 705 of 2007. The Court
applying to be enjoined as Amicus Curiae. held that the petitioner had been subjected to
To date, the matter is yet to proceed. Center inhuman and degrading treatment under the
for Reproductive Rights ‘MNN v Attorney Constitution and article 5 of the UDHR and
General of Kenya’ http://www.reproductive awarded damages of 500 000 Kenyan
rights.org/node/2435 (accessed 28 Septem- Shillings for the inhuman and degrading
ber 2015). treatment he endured.
 Impact of the African Charter and the Maputo Protocol in selected African states 123

8 Awareness and use by civil become increasingly aware of the Proto-

society col as a litigation tool.71

Currently, there are 20 NGOs that

Most national human rights NGOs are
have observer status with the African
aware of the African Charter and use it
Commission in Kenya alone.72
in their work alongside other interna-
tional and regional human rights instru-
ments and domestic law. Depending on 9 Incorporation in law school
their exact thematic focus, these NGOs education and use by lawyers73
will use the African Charter in advoca-
cy, public education, policy review and There are about 13 law schools in
litigation.70 However, it is important to Kenya.74 Human rights law is taught in
note that in most cases, the first point of law schools at different levels. At the
reference is the 2010 Constitution. undergraduate level, human rights law
Other international and regional instru- is taught as part of the Constitutional
ments are used to augment their consti- Law Module with a specific focus on
tution-based arguments. It is only in the Bill of Rights. In the upper years of
instances where the Constitution is defi- undergraduate study, specifically the
cient that direct reference is made to the third and fourth years of study, human
African Charter and other international rights law is taught as an elective unit
instruments. However, taking cogni- for one semester. It is also taught as part
sance of article 2(5) of the 2010 Consti- of Public International Law but not in
tution, it is clear that the African considerable depth. In Jomo Kenyatta
Charter now forms part of Kenyan law. University of Agriculture and Technolo-
It is, therefore, important to ensure that gy, international human rights law is
there is increased awareness of the new still taught together with international
status of the African Charter as part of humanitarian law. In Moi University,
Kenyan law and the need to refer to it in international human rights law is taught
the same manner as one would refer to in the gender studies module offered in
any domestic legislation. It is notewor- the third year. This course serves as an
thy that human rights institutions such introduction to the basic concepts of
as Equality Now have endeavoured international human rights. At this
over the years to continuously engage stage, the main areas of focus are the
the bar and the bench on use of the
Maputo Protocol and have aggressively 71 SOAWR ‘Protocol watch’ http://www.
led a coalition known as Solidarity for soawr.org/content/protocol-watch (accessed
28 September 2015).
African Women’s Rights (SOAWR) 72 African Commission on Human and
that has tasked African governments not Peoples’ Rights ‘NGOs with observer status’
http://www.achpr.org/network/ngo/
only to ratify but also to implement the (accessed 16 November 2015).
Protocol. Through such sensitisation, 73 Interviews with Lecturers at Catholic
University, Moi University, University of
more civil society organisations have Nairobi, Riara Law School, Kabarak
University Law School.
74 These include three campuses in Nairobi,
Kisumu and Mombasa for the University of
Nairobi, Kenyatta University, Strathmore
University, Riara University, Kisii University
College, Jomo Kenyatta University of
Agriculture and Technology, Mount Kenya
70 Interview with Davis Malombe, Deputy University, Catholic University of East
executive Director, Kenya Human Rights Africa, African Nazarene University,
Commission (KHRC), 12 September 2011. Egerton University and Kabarak University.
124 Kenya

UN and the African human rights 10 National human rights

systems. Other regional systems such as institutions (NHRIs)
the Inter-American and European
systems are not delved into in detail.75 KNCHR is an independent and autono-
However, students at this level are well mous institution created under article 59
able to appreciate the concept of human of the Constitution and the Kenya
rights and the available structures and National Commission on Human
mechanisms for the protection and Rights Act, 2011 to promote and protect
promotion of human rights at the human rights in Kenya. KNCHR takes
domestic, regional and international the view that human rights are universal
levels. It is probably at the post-graduate and indivisible and hence seeks to advo-
level that human rights law is most cate human rights principles in line with
extensively taught and in more detail. international and regional standards in
all aspects of its work on transitional
At the University of Nairobi, a justice, political accountability, public
centre for human rights and peace stud- education on human rights, compliance
ies was established in September 2012 with international obligations, minori-
to, amongst other things, teach a multi- ties and marginalised groups, culture
disciplinary course in human rights and human rights, business and human
particularly at the postgraduate level. rights and legal services.
Public interest lawyers are generally
Under its compliance and interna-
aware of the African Charter provisions
tional obligation work, and in line with
and use it to advance their human rights
its functions as provided for under arti-
arguments. However, even lawyers who
cle 8(f) of the KNCHR Act, 2011,
do engage in human rights legal practice
KNCHR specifically: works in partner-
rarely interact with the African Charter
ship with government to ensure timely
and would thus not use it in their legal
reporting and dissemination of conclud-
arguments.76 However, in the Satrose
ing observations by the various commit-
Ayuma,77 the petitioners’ advocates
tee bodies; builds the capacity of
relied on the African Charter and the
Kenyan civil society to conduct their
Ogoni land case to argue against the evic-
own monitoring and prepare shadow
tion of squatters living in land belonging reports; and prepares and submits alter-
to the former Kenya Railways without native reports to guide the work of trea-
proper eviction guidelines and the provi- ty body committees. Also, KNCHR’s
sion of alternative areas of settlement. Strategic Plan for the years 2015-2018
integrates both international and region-
al human rights law throughout the
75 From the consultations of different lecturers work of the KNCHR.78 In this regard,
and author’s own experience as a former
student of law in Kenya, it appears that the African Charter and to some extent,
besides what is provided for under the
syllabus, there is a wide discretion for them
to define the scope of their teaching in this
area. In this regard, some teachers will focus
on Maputo Protocol specifically and others
may mention it in passing.
76 See interview with John Chigiti, Advocate
and Public Interest Lawyer, 26 August 2011.
77 Satrose Ayuma and 11 Others v The Registered 78 See the KNCHR ‘Strategic Plan 2015-2018’
Trustees of the Kenya Railways Staff Retirement http://www.knchr.org/Portals/0/Strategic
Scheme and 2 Others Constitutional Petition Reports/Strategic%20Plan%202015-2018.
65 of 2010 pdf (accessed 14 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 125

the Maputo Protocol79 are useful refer- 11 Academic writing on the

ence points in the activities of the African Charter and Maputo
KNCHR.80 Protocol
KNCHR also plays a leading role
A survey of writing by Kenyan academ-
collaborating with regional human
ics leads to the conclusion that there is
rights institutions including the African
not much reference to the African Char-
Commission and the African Court.
ter or the Maputo Protocol. This may be
KNCHR applied for and was granted
attributed to the relatively limited
affiliate status in 2004. In June 2013, it
academic writing compared to say a
accepted an invitation from the African
country like South Africa which has
Commission to serve as a focal point to
many well-respected legal journals.
the Working Group on Indigenous
Kenya lacks long-standing legal
Populations/Communities in Africa.
academic journals even from the more
Similarly, in July 2013, it hosted a dele-
established faculties of law such as the
gation from the African Court at its
University of Nairobi. Nevertheless, a
premises.
few academics have discussed continen-
Equally important in this category is tal human rights instruments in depth,
NGEC, which is established pursuant to but those have presented a positive
article 59 of the Constitution and the perception of its usefulness in alleviating
National Gender and Equality Commis- the human rights problems faced by
sion Act, 2011.81 It derives its mandate Kenya.
under articles 59, 27, 43 and Chapter 15
Muthoni Wanyeki, writing in the
of the Constitution of Kenya as well as
East African newspaper, expresses
section 8 of the NGEC Act. Article 8(c)
disappointment that Kenya withdrew its
provides that the NGEC shall act
offer to host the 50th ordinary session of
as the principal organ of the state in the African Commission celebrating 30
ensuring compliance with all treaties and years of the African Charter in October
conventions ratified by Kenya relating to 2011.82 She describes the African Char-
issues of equality and freedom from ter as ‘a seminal instrument for Africa as
discrimination and relating to special
a whole’ that has dispelled the notion
interest groups including minorities and
marginalised persons, women, persons that human rights are culturally relative
with disabilities and children. not universal, that human rights are
divisible, and that human rights can
only be claimed by individuals rather
than collectives. She lauds the use of the
African Charter by the African Commis-
sion for amongst other things ensuring
that the AU does not block the referral
of the Darfur situation by the UN Secu-
79 The main reason could be that issues relating rity Council to the International Crimi-
to women are dealt with primarily at the
National Gender and Equality Commission
(NGEC) from mainly an equality and
freedom from discrimination perspective. 82 ‘Kenya won’t host human rights summit –
80 Interview with KNCHR Officers, 17 August What a pity’ The East African 14 August 2011
2011. See also the KNCHR website http://www.theeastafrican.co.ke/OpEd/co
www.knchr.org (accessed 14 September mment/Kenya+wont+host+human+rights
2015). +summit+what+a+pity/-/434750/1218724
81 Cap 15 Laws of Kenya. /-/12aw2hs/-/ (accessed 15 August 2011).
126 Kenya

nal Court. She also considers it a to contest for office, and safeguarding
positive aspect being the African other rights that support the exercise of
Commission’s numerous responses to democracy, rule of law and good
individual complaints, the fact that governance.86 The failure in protecting
states have generally not implemented this right has been suggested as a factor
the recommendations notwithstanding. which led to the violence experienced in
On the whole, she expresses positive Kenya in the aftermath of the 2007 elec-
views about the African Charter and the tions.
Maputo Protocol, although states’
compliance record with the instruments In recent publications, more views
has been wanting. are being proffered with regards to the
African Charter and the Maputo Proto-
The African Charter has been col. Orago, for instance, argues that in
invoked as a source of inspiration for order for Kenya to be accountable for its
African leadership as leaders seek to human rights obligations under interna-
find a solution to the prevailing drought tional law, domestic laws should be
in the Horn of Africa region.83 In light subordinate to international law.87 The
of the post-election violence experienced international law in this part also
in Kenya in 2007-2008, the right to includes the African Charter.
participate in the government of one’s
country provided in the African Charter The right to housing under the Afri-
has been examined.84 Mbondenyi’s can Charter was also revisited in a
analysis of this right in the African recent publication by Juma. According
Charter highlights a gap in the scope of to the publication, the articulation of the
the provision as enshrined in this Char- right to housing, which is not expressly
ter in that the right is recognised in a in the Charter, in SERAC v Nigeria, was
superficial way that does not expressly only possible as a result of the notion of
guarantee the holding of periodic and the interdependence of human rights.88
genuine elections, a striking omission For him, the express provision in the
given the plague of poor governance Maputo Protocol of the right to housing
that afflicts many states on the conti- means that it is more critical for the
nent.85 The survey of the African protection of vulnerable groups includ-
Commission’s jurisprudence on the ing women.89 What is not clear howev-
right illustrates that simply holding elec- er is whether the implied right under the
tions is not enough, the right to partici- African Charter and the express provi-
pation in governance involves the sions under the Maputo Protocol means
conduct of elections without exclusion- different obligations for the state, with
ary bars often intended to prevent politi- vulnerable groups being expressly
cal opponents from exercising their right favoured.

83 ‘East Africa’s drought response – Union

members must arise’ Pambazuka News 86 Mbondenyi (n 84 above) 190.
4 August 2011 http://www.pambazuka.org/ 87 NS Orago ‘The 2010 Kenyan Constitution
en/category/comment/75413 (accessed 15 and the hierarchical place of international
August 2011). law in Kenyan domestic legal system: A
84 MK Mbondenyi ‘The right to participate in comparative perspective’ (2013) 13 African
the government of one’s country: An Human Rights Law Journal 415 440.
analysis of article 13 of the African Charter 88 L Juma ‘Nothing but a mass of debris: Urban
on Human and Peoples’ Rights in light of evictions and the right of access to adequate
Kenya’s 2007 political crisis’ (2009) 9 African housing in Kenya’ (2012) 12 African Human
Human Rights Law Journal 183. Rights Law Journal 470 480.
85 Mbondenyi (n 84 above) 187. 89 Juma (n 88 above) 483.
 Impact of the African Charter and the Maputo Protocol in selected African states 127

On the issue of derogation, Ambani 12 State reporting

and Mbondenyi have observed that the
Kenyan Constitution may be incompati- The Treaty Making and Ratification
ble with international law and specifical- Act94 provides in section 16:
ly the African Charter, which do not
recognise derogation in any situation Where a treaty provides for the submission
including emergency cases.90 In the of periodic reports as part of its monitoring
mechanisms the Cabinet Secretary shall, in
opinion of the two authors, this may
conjunction with the Attorney General
pose a challenge in terms of the review and the relevant State Department
process by treaty bodies and during liti- facilitate the preparation and submission of
gation under the Bill of Rights.91 These such report within the prescribed period.
views are particularly important taking
into account that international law now The Cabinet Secretary referred to in this
forms part of the Kenyan law pursuant provision is the one responsible for
to article 2(6) of the Constitution. foreign affairs.95 The relevant State
Department presumably refers to the
On political participation, Ogendi department responsible for the subject
observes that the standard set under arti- matter of the treaty.
cle 13(1) of the African Charter did not
impose upon its members the require- Currently, the Office of the Attor-
ment of a free and fair election and as ney General is charged with the leader-
such, it was necessary to remedy this ship role in the preparation of state
situation by the adoption of the Charter reports on human rights treaties. Where-
on Democracy, Elections and Good as KNCHR is constitutionally mandat-
Governance.92 ed to ensure compliance with
obligations under treaties and conven-
Lastly, Aura, while giving several tions, this mandate is however restricted
examples about the situation of women to a watch-dog role of developing alter-
in Kenya, is of the view that ratification native reports. The Department of
by Kenya of CEDAW in 1984 and the Justice under the AG’s office is thus
Maputo Protocol in 2010 has not ‘fully’ responsible for reporting to the African
benefited Kenyan women as it should Commission as well as other UN treaty
have.93 Monitoring bodies.96 Section 5(1)(d) of
the Office of the Attorney General Act97
provides that in addition to the func-
tions of the Office of the Attorney
General under article 156 of the Consti-
tution, the Office is also responsible for
90 JO Ambani & MK Mbondenyi ‘A new era in amongst others: ‘coordinating reporting
human rights protection in Kenya? An
analysis of the salient features of the 2010 obligations to international human
Constitution’s Bill of Rights’ in rights treaty bodies to which Kenya is a
MK Mbondenyi et al Human rights and
democratic governance in Kenya: A post-2007
appraisal (2015) 29.
91 Ambani & Mbondenyi (n 90 above) 30.
92 P Ogendi ‘Political parties and “free and 94 Act 45 of 2012.
fair” nominations in Kenya’ in MK 95 Sec 2(1) of the Treaty Making and
Mbondenyi et al (n 90 above) 161. Ratifications Act.
93 R Aura 'Judicial responses to women’s rights 96 These Reports are generated in collaboration
violations in Kenya in the post-2007 context' with NGEC, KNCHR and select civil
in MK Mbondenyi et al Human rights and society organisations working on human
democratic governance in Kenya: A post-2007 rights issues.
appraisal (2015) 364. 97 Act 49 of 2012.
128 Kenya

member or on any matter which 13 Communications

member states are required to report.’
Several communications have been
The process of preparing the report lodged before the African Commission
includes obtaining input from govern- against Kenya. The latest, the Endorois
ment ministries as well as state bodies case, was decided in November 2009.101
such as independent national human Kenya was found to be in violation of
rights institutions and civil society the Endorois peoples’ rights to freedom
organisations. Nevertheless, this process of religion, property, cultural life, wealth
has been faulted for not including the and natural resources and development.
wider Kenyan public, and also for not The African Commission recommended
measuring progress as against bench- that the state should recognise rights of
marks or even with reference to ownership to the Endorois and restore
concluding observations previously Endorois’ ancestral land. It also found
issued.98 With regards to the latter criti- that the state must ensure that the
cism, Kenya recently submitted its Endorois community has unrestricted
Combined 8th to 11th periodic report to access to Lake Bogoria and surrounding
the African Commission with a section sites for religious and cultural rites and
containing information on the 2007 for grazing their cattle. The African
concluding observations of the African Commission further recommended that
Commission.99 Kenya pays adequate compensation to
the community for all the loss suffered,
The 2010 Constitution provides that
pay royalties to the Endorois from exist-
every year the President of the Republic
ing economic activities and ensure that
shall submit a report for debate to the
they benefit from employment possibili-
National Assembly on how the govern-
ties within the Reserve. Furthermore, it
ment is meeting its obligations with
was recommended that the state should
regard to international treaties.100 This
grant registration to the Endorois
provision holds the promise of account-
Welfare Committee and engage in
ability in terms of what the government
dialogue with the complainants for the
is doing to give effect to concluding
effective implementation of these
observations. Unlike before, the
recommendations. Finally, as a follow-
KNCHR is currently working in part-
up mechanism, the African Commission
nership with government to ensure time-
recommended that Kenya should report
ly reporting and dissemination of
on the implementation of these recom-
concluding observations by the various
mendations within three months from
committee bodies.
the date of notification.

On 18 January 2011, and in

response to a question in Parliament on
the status of implementation of the
98 OHCHR ‘Taking these rights seriously: Civil
society organisations’ parallel report to the above recommendations, the Minister of
initial state report of the Republic of Kenya Lands indicated that he had requested
on the implementation of the International
Covenant on Economic, Social and Cultural and was still waiting for a certified copy
Rights’ (2008) 8 http://www2.ohchr.org/ of the decision from Kenya’s Mission to
english/bodies/cescr/docs/ngos/K-HURI
NET_Kenya_CESCR41_report.pdf
(accessed 15 August 2011).
99 n 51 above, 67-72. 101 (2009) AHRLR 75 (ACHPR 2009) (27th
100 Art 132(1)(c)(iii). Activity Report) (Endorois case).
 Impact of the African Charter and the Maputo Protocol in selected African states 129

the AU in Addis Ababa.102 He never- On its part, KNCHR is not able to

theless indicated that there were already profile all communications due to limit-
steps that the government had undertak- ed resources and other competing needs.
en, even though not specifically in Consequently, it gives exposure only in
response to the communication, that specific matters that are of broad public
would resolve some of these issues. He interest, for example, the Endorois case
noted that the 2010 Constitution ruling and its significance to the rights
protected community land,103 directed of indigenous communities and land
the state to take measures, including the rights in Kenya. In such cases, KNCHR
enactment of legislation, to revise, engages with relevant stakeholders to
consolidate, rationalise existing land ensure that the findings are widely
laws and revise sectoral land use laws in disseminated.
accordance with principles of equitable
access to land and security of land rights In the Endorois case, KNCHR
amongst other principles.104 In relation convened CSO stakeholders to mobilise
to the environment and natural resourc- the public through television and print
es, the 2010 Constitution provides that media and through grassroots work-
the state shall ensure the sustainable shops with the Endorois community on
exploitation, utilisation, management the recommendations’ significance to
and conservation of the environment, their rights as indigenous people. Steps
public participation in these goals and have also been taken to engage with
utilisation of the environment and natu- Parliament and with the Minister
ral resources for the benefit of the people responsible for land affairs to pursue the
of Kenya, to name a few obligations.105 implementation of the decision as part
Other provisions relate to the enforce- of the wider realisation of the communi-
ment of environmental rights and the ty land framework under the current
regulation of agreements relating to the Constitution. As a follow up, CSOs and
exploitation of natural resources.106 KNCHR will undertake a strategic plan-
ning process to identify key resources
The Minister further pointed out and formulate means of mainstreaming
that the Ministry of Lands had drafted a the Endorois decision implementation
National Lands Policy and was within their core programme areas. The
involved in the drafting of a National convening role of KNCHR remains
Land Commission Bill and a Lands Bill. important.107 Indeed, today, KNCHR
The Policy had received input from has in place minorities and marginalised
pastoral and minority groups. He said groups programmes focusing on,
that the emphasis of the Ministry was amongst others, indigenous groups.
on developing a framework on equitable
access to land for use rather than owner- Also, recent decisions against
ship. Kenya from the African Commission
have not gone beyond the preliminary
stages. In February 2013, Communica-
tion 407/11 Artur Margaryan and Artur
102 National Assembly Official Report (18 Sargasyan v Kenya was struck out for lack
January 2011), Questions by private notice
‘Property rights for pastoralists/marginalised of diligent prosecution. Similarly,
groups’ 17-22.
103 Art 63.
104 Art 68. 107 Interview with Senior KNCHR Staff in
105 Art 69. charge of Minorities in the ECOSOC
106 Arts 70-71. Department, 17 August 2011.
130 Kenya

Communication 464/14 Uhuru Kenyatta took place from 24 to 28 August

and William Ruto (represented by Innocence 2015.111
Project Africa) v Kenya was also rejected
at seizure stage during the 15th extraor- 15 Factors that may impede or
dinary session of the African Commis- enhance the impact of the
sion in Banjul, The Gambia. African Charter, the Maputo
Protocol and the African
14 Special mechanisms and Commission
promotional visits by the
African Commission The 2010 Constitution has provided a
much needed breath of fresh air in the
In 2003, then member of the African articulation and advocacy of human
Commission responsible for Kenya, rights principles in Kenya. In particular,
Commissioner Vera Chirwa, decried the article 2(5) thereof provides that all trea-
apathy towards requests for promotional ties ratified by Kenya shall form part of
visits which went unanswered and unac- the laws of Kenya. The import of this is
knowledged, and the then dismal state that all human rights treaties that Kenya
reporting status on the African Char- has ratified (including the African Char-
ter.108 Notwithstanding this general ter), now constitute part of Kenyan law.
concern, in 1998, Kenya hosted one
promotional mission by the Special Moreover, the Bill of Rights
Rapporteur on Prisons, Conditions of contains a raft of provisions that are
Detention and Policing in Africa.109 modelled on international and regional
The Working Group on indigenous standards for the promotion and protec-
populations/communities in Africa tion of human rights. It is anticipated
conducted a research and information that this, together with a vibrant civil
visit to the Republic of Kenya from 1-19 society, fairly independent media and
March 2010.110 Lastly, at the invitation effective watchdog agencies such as the
of the KNCHR, working together with a KNCHR, will enhance the human rights
group of civil society organisations, the discourse in Kenya and thus the impact
Special Rapporteur on Freedom of of the African Charter and the Maputo
Expression and Access to Information Protocol
of the African Commission conducted a
five day advocacy visit in Kenya, which In terms of government led process-
es, the reform process in Kenya has seen
matters of human rights come to the
fore and be included in every discussion
on law and policy. Furthermore, adop-
tion of the proposed National Action
108 East African Human Rights Report - Kenya Plan and Policy on Human Rights and
(2003) 1 The East African Journal of Human
Rights and Democracy 1 26. the Performance Contracting Process in
109 Adopted during the 24th ordinary session government with human rights indica-
held from 22-31 October 1998 in Banjul, The
Gambia, http://www.achpr.org/states/ken
ya/missions/promo-1998/ (accessed
5 December 2015). 111 See the press statement here: http://knchr.
110 Adopted during the 50th ordinary session org/Portals/0/PressStatements/Press%20
held from 24 November 2010 in Banjul, The Statement-Advocacy%20Visit%20by%20Sp
Gambia, http://www.achpr.org/states/ken ecial%20Rapporteur%20and%20Freedom%
ya/missions/indigenous-2010-kenya/ 20of%20Expression.pdf (accessed 21 Sep-
(accessed 5 December 2015). tember 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 131

tors will ultimately result in the main- laws and its impact on human rights in
streaming of human rights in all aspects Kenya.
of service delivery by government.
In addition, there is the perception
Kenya was, under the previous that UN Mechanisms are more effec-
Constitution, a dualist state. This meant tive, and they thus enjoy more publicity
that international instruments had force than the African mechanisms. For
of law only when domesticated, and instance, the former UN Special
undomesticated treaties were only Rapporteur on Extra-Judicial Execu-
persuasive in terms of human rights tions, Professor Philip Alston took
advocacy and litigation. Coupled with a government to task over alleged extra
lack of judicial activism, this effectively judicial killings by the Kenyan police
hampered the impact of the African and military in 2008 whereas little was
Charter, notwithstanding that the Char- heard from the AU and African
ter was adopted in Nairobi. Myriad Commission on this. Furthermore, the
governance challenges and a hostile AU’s political stand in matters relating
political environment for human rights to the International Criminal Court
defenders suffocated the human rights process in Kenya and other African
discourse in general including the Afri- states has served to cast all AU affiliated
can Charter and the Maputo Protocol. mechanisms, including those established
The enhanced democratic space and a by the African Charter, in a negative
more vibrant human rights discourse light within the domestic realm. For this
after 2003 has generally improved pros- reason, it is suggested that the African
pects for positive impact of the Charter Commission undertakes a promotional
and the Protocol in Kenya. visit to Kenya to engage with CSOs and
other human rights actors and the gener-
A significant challenge, however, is al populace in an effort to create new
the lack of awareness and use of the partnerships and strengthen existing
African Charter and the Maputo Proto- ones.
col by CSOs, legal practitioners and
government bodies. In most cases, Additionally, the main challenge
lawyers and activists rely on the provi- today for human rights in Kenya is the
sions of international treaties such as the fight against terrorism particularly in the
ICCPR, and other UN instruments. wake of the WestGate Mall and Garissa
Recourse is only had to the African University attacks. The Kenyan govern-
Charter in cases before the East African ment has responded by applying meas-
Court of Justice whose constitutive ures that sometimes violate human
instrument makes explicit reference to rights norms. There should be a clear
the Charter as a source of law.112 response by the African Commission to
Kenyans are quick to engage with the ensure that human rights are not
UN mechanisms to the detriment of the ignored during the implementation of
regional framework. There is thus the counter-terrorism measures. This is
need for enhanced awareness on the because as discussed above, and in line
African Charter, and its relation to our with the African Commission’s jurispru-
dence, the African Charter does not
recognise derogation of human rights
even in emergency situations.
112 For instance IMLU v Attorney General of Kenya
and 4 others EACJ Ref No 3 of 2010.
132 Kenya

With specific focus on the Maputo

Protocol, it is evident that there are still
a number of negative cultural practices
that continue to subjugate women and
impede the full realisation of their
rights. Practices such as early marriages,
wife inheritance, female genital mutila-
tion and preference for the boy-child still
need to be addressed in order to
enhance the impact of the Maputo
Protocol.

State parties to the Maputo Protocol

have also not fully embraced its spirit.
There is, therefore, a dire need for more
sensitisation on the gains that the Mapu-
to Protocol offers to the African people
‒ both men and women, in terms of
accelerated development due to the
great untapped potential of African
women in all spheres of life.

Kenyan national Lawrence Mute

has been a member of the African
Commission since 2013. This is a
unique opportunity for Kenya to ensure
better realisation of human rights in the
country.

Additionally, Kenya hosted the 18th

extraordinary session of the African
Commission in Nairobi from 29 July to
7 August 2015, signalling an improving
relationship in human rights coopera-
tion.
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
LESOTHO

Sizakele Hlatshwayo*

1 Introduction systems cannot be applied simultaneous-

ly in a given situation.3
Lesotho gained independence in 1966
from the British government and inherit- The 1993 Constitution of Lesotho
ed a Westminster type constitution provides a framework for the promotion
which provided for a Constitutional and protection of human and peoples’
Monarch as the head of state and a rights. Section 18(4)(c) of the Constitu-
prime minister, who was the leader of tion entrenches freedom from discrimi-
the majority party, and exercised execu- nation and stipulates that no law may
tive power as the head of government. A make a provision that is discriminatory
new Constitution was drafted and came and that public officials, whilst perform-
into effect on 2 April 1993. Ironically, ing their duties in terms of any law, may
the new Constitution was a replica of not treat any person in a discriminatory
the Independence Constitution.1 Section manner.4 The Constitution defines
45 of the 1993 Constitution of Lesotho discrimination as affording different
provides that the King is designated by treatment to different persons on the
the College of Chiefs in accordance with basis of race, colour, gender, language,
the Customary Law of Lesotho if his religion, political or other opinion,
predecessor dies or if there is a vacancy national or social origin, property, birth
in the Office of the King. Lesotho has a or other status.5 Nevertheless, it is
dual legal system, Roman Dutch Law important to note that the principle of
(Common Law) and Basotho customs non-discrimination does not apply to
(Customary Law).2 These two systems certain aspects of life which fall within
of law have equal validity with the provi- the ambit of customary law and person-
so that in cases of inconsistency, statuto- al law.6 Institutions of protection, such
ry law prevails. However, the two as the courts and the Ombudsman, have

3 As above.
* LLM HRDA (Pretoria). 4 Shale (n 1 above).
1 I Shale ‘The law and legal research in 5 M Pholo ‘Lesotho: Justice sector and the
Lesotho’ (update) (2014) Globalex http:// rule of law’ (2013) Afrimap.
www.nyulawglobal.org/globalexLesotho. 6 The areas include adoption, marriage,
htm (accessed 24 August 2015). divorce, burial, devolution of property, death
2 Lesotho State Report on CEDAW, submitted or other matters which fall within the
to the UN CEDAW Committee on July 2010 provisions of personal law. See section
(CEDAW /C/LSO/1-4). 18(4)(c) Constitution of Lesotho.

133
134 Lesotho

been established to give practical effect Be that as it may, Lesotho has over
to these rights. However, there are the years made great strides to circum-
several social, cultural and economic vent the situation of women’s minority
rights (contained in Chapter III of the status in many ways, including through
Constitution) which cannot be contested the enactment of laws aimed at protect-
or enforced through the courts, but are ing the rights of women. For instance,
promoted through the policies of the married women in Lesotho gained
state.7 equality to men in 2006 under the Legal
Capacity of Married Persons Act. Legal-
As Lesotho is a patriarchal society, ly, any woman can now own land,
gender roles and stereotypes and socio- receive inheritance, and make her own
cultural norms are prejudiced by patriar- decisions. In 2003, women's rights were
chy, a system which is embedded on an protected through passage of the Sexual
ideology which supports and justifies Offenses Act which officially defines all
the subordination of women by men, forms of unwanted sexual penetration as
regulates relations between them and rape, not just vaginal penetration as was
allows men to control women in all the case prior to this Act. The law also
spheres of life, including in private and gives legal rights and validity to men
public life. The negative stereotypes who are raped.9 Other key pieces of
about women are unfortunately perpe- legislation include the Labour Code
trated by the honour of the Basotho Order 1992, which defines discrimina-
culture which has deep-seated harmful tion in the work place as any exclusion
norms, practices and traditions (patriar- or preference made on the basis of sex,
chal attitudes) regarding the roles, marital status or religion; the Labour
responsibilities and identities of women Code Wages (Amendment) Act 2009,
and men. For instance, polygamy and which provides for paid maternity leave
bride price (Bohali) are key customs and for workers in clothing, textile and
practices that perpetuate discrimination leather manufacturing sectors;10 the
and unequal status against women and Education Act (2010) which provides
girls in the fields of education, public for free and compulsory education; the
life, decision-making and exacerbate the Anti-Trafficking in Persons Act (2011)
persistence of violence against women.8 which criminalises all forms of slavery
Although women and men enjoy equal and provides for harsh penalties for
rights in civil and criminal courts, inher- perpetrators; and the Children’s Protec-
itance rights are an exception. Civil law tion and Welfare Act (2011). A Law
does not address the issue, and custom- Reform Commission was also estab-
ary law discriminates against women lished on 16 December 1993 with the
and girls as it pertains to inheritance. mandate of reviewing discriminatory
Customary law limits inheritance to laws.11 In 2003, Lesotho adopted a
male heirs only; it does not permit Gender and Development Policy (2003)
women or girls to inherit property. which commits the state to ensuring that
all sectors of development address
gender inequalities that permeate all
sectors of society. The Policy further
7 As above.
8 C Balch ‘Discovering the mountain
kingdom: Women in Lesotho – Gender
inequality’ http://pcbalch.blogspot.co.za/20 9 As above
08/07/women-in-lesotho-gender-inequality. 10 See n 2 above.
html (accessed 22 June 2015). 11 Law Reform Commission Act 5 of 1993.
 Impact of the African Charter and the Maputo Protocol in selected African states 135

addresses inequalities cutting across ties. In Britain, at the time, the power to
social, racial, legal, cultural, economic ratify international treaties resided with
and political spheres.12 the executive rather than the legisla-
ture.16 According to one author,
However, the country has continued commenting on the position in Botswa-
to hold on to cultural principles in some na, which is almost identical to the
aspects which members of the public are Lesotho position, the legislature plays
not comfortable to abandon. Although no role in the treaty ratification
the Constitution prohibits discrimina- process.17 It is arguable that this is also
tion of any kind and unfair treatment, it the position in Lesotho given a similar
contains exceptions to the principle of historical context. Lesotho ratified the
non-discrimination (as stated above) in African Charter on 10 February 1992
matters relating to adoption, marriage, and the Maputo Protocol on 26 October
divorce, burial, devolution of property, 2004.18 True to the tradition of execu-
death or other matters that fall within tive-led ratification, the process in both
provisions of personal law, or where instances seems to have been led by the
customary law is applicable. This is in executive to the exclusion of parlia-
contravention of the Maputo Protocol.13 ment.19
The Kingdom has been called by treaty
bodies including the CEDAW Commit- The Ministry of Justice is responsi-
tee,14 to amend provisions of the Consti- ble for coordinating implementation of
tution which are discriminatory as they Lesotho’s obligations under the African
constitute claw-back clauses which give Charter, while the Ministry of Gender
rights on one hand and take away the and Women’s Affairs is responsible for
rights on the other. Worse still, Lesotho obligations in respect of the Maputo
has continued to protect the issue of Protocol. In 2002, the government shuf-
succession to the throne and chieftain- fled ministries, and as a result, the
ship, despite a world-wide, widely publi- Ministry of Gender and Youth, Sports
cised litigation strategy by women’s and Recreation (MGYSR), amongst
rights and gender activists in the Senate others, was established. Its functions are
Masupha chieftaincy case.15 to drive and direct the country’s initia-
tives to promote and protect the rights
2 Ratification of African Charter of women. Several initiatives have been
and the Maputo Protocol implemented as a result of the establish-
ment of this coordinating Ministry.20
One of the legal traditions that Lesotho They are therefore responsible for liais-
imported from the British Common ing and communicating with the Afri-
Law is in the realm of international trea- can Commission on the Maputo

16 BT Onkemetse ‘Giving effect to treaties in

12 As above. the domestic law of Botswana’ (1997) 10
13 See n 11 above. Lesotho Law Journal 205, 209 cited in
14 CEDAW Committee Concluding Recom- T Thabane & I Shale Impact of the African
mendations to the Lesotho State Report Charter and Maputo Protocol (2012).
October, 2011. 17 As above.
15 Senate Masupha v Senior Resident Magistrate of 18 See ‘Chart of ratifications: AU human rights
the Subordinate Court of Berea District and treaties’ in C Heyns (ed) Compendium of key
Others 2014 LSCA CofA Civ. All the courts human rights documents of the African Union
including the upper court of the land, upheld (2005) 261-264.
the discriminatory provision. This was a 19 T Thabane & I Shale Impact of the African
blow not only to the Basotho women, but to Charter and Maputo Protocol (2012).
all women in the African region. 20 CEDAW Report (n 2 above).
136 Lesotho

Protocol. The Ministry of Justice, Although the Constitution is, for the
Human Rights and Correctional Servic- most part, consistent with the norms
es is charged with the dispensation and laid down by international agreements
administration of justice, protection and to which Lesotho is a party, such
promotion of human rights and the consistency is limited by adherence to
rehabilitation of offenders. In fulfilling customary law. Whilst the Constitution
its mandate, the Ministry pursues the is progressive in some areas, its guaran-
efficient delivery of Justice through tee of non-discrimination does not apply
improved and more effective use of to the customary law pertaining to
correctional resources and the provision persons who are subject to such law.22
of skills; ensuring a culture of zero toler- Pholo23 in analysing the situation noted
ance to corruption, and committing that ‘this claw-back provision has the
Lesotho to the promotion and protec- effect of perpetuating the application of
tion of human rights of disadvantaged customary law, including those of its
people such as children, the vulnerable, aspects which legitimise gender-based
people with disabilities and those infect- discrimination’.24 She argues that there
ed and affected by HIV and AIDS.21 is no constitutional provision which
obliges the government to domesticate
3 Domestication or incorporation all human rights instruments or that
provides for a systematic process for
Lesotho, just like a number of countries domesticating international human
in the African region, practices the dual- rights treaties once they are ratified or
ist approach to domestication and acceded to. In order to enable the people
enforceability of international instru- of Lesotho to benefit fully from the
ments. This means that international protection of human rights, the Consti-
instruments are not enforceable in tution must be amended to include
national courts of law, unless they have provisions that make domestication of
been incorporated into national laws by ratified treaties obligatory for the state.25
an Act of Parliament. The monist
approach, on the other hand is such that There has been an attempt to
once a country has ratified an instru- domesticate some provisions of the
ment, it becomes an integral part of Maputo Protocol, through the Legal
national laws and is enforceable. Capacity of Married Persons Act
2006.26 The rights enshrined in the Afri-
Notwithstanding ratification of the can Charter, albeit not all, are explicitly
African Charter and the Maputo Proto- provided for in the Bill of Rights.27 In
col, there has not been any deliberate particular, the following rights are
move to domesticate either of the two provided for: the right to life,28 the right
instruments, thus limiting enjoyment of to personal liberty,29 freedom of move-
human rights for the people of Lesotho ment,30 freedom from inhumane treat-
as envisaged in the instruments. Worse
still, Lesotho has continued to enact 22 Sec 14(c) of the Constitution.
laws that contravene its obligations 23 Pholo (n 5 above).
24 As above.
under both the African Charter and the 25 As above.
Maputo protocol. 26 Legal Capacity of Married Persons Act 9 of
2006.
27 See Chap 2 of the Constitution.
28 Sec 5 of the Constitution.
21 Lesotho government portal http://www. 29 Sec 6 of the Constitution.
gov.ls (accessed 25 August 2015). 30 Sec 7 of the Constitution.
 Impact of the African Charter and the Maputo Protocol in selected African states 137

ment,31 freedom from slavery and and political rights.48 They are regarded
forced labour,32 freedom from arbitrary as principles of state policy and as such
search or entry,33 the right to respect for are not enforceable in any court. These
private and family life,34 the right to a rights are also subject to the limits of the
fair trial,35 freedom of conscience,36 economic capacity and development of
freedom of expression,37 freedom of Lesotho. They are meant to guide the
peaceful assembly,38 freedom of associa- authorities and agencies in the perfor-
tion,39 freedom from arbitrary seizure of mance of their duties with a view to
property,40 freedom from discrimina- progressively realising them.49 They
tion,41 the right to equality before the include the protection of health,50 provi-
law and the equal protection of the sion for education,51 and the opportuni-
law,42 and the right to participate in ty to work.52
government.43 Interestingly, the Leso-
tho Constitution has an equality provi- 4 Legislative and policy reforms
sion which enjoins the state to take
affirmative action measures to promote Notwithstanding the lack of direct
the rights of disadvantaged groups, but domestication of human rights treaties,
this is under principles of state policy Lesotho has made great strides in legis-
and thus not justiciable.44 lative reform, as noted in several
government documents.53 There exist a
Shale and Thabane45 observe that plethora of legislation and policies
some of the rights in the African Charter which incorporate rights provided for in
have not found their way into the 1993 the African Charter and the Maputo
Constitution, at least explicitly. They, Protocol. These include: the Legal
however, noted that the 1993 Constitu- Capacity of Married Persons Act (2006),
tion proscribes undignified practices like the Sexual Offenses Act (2003), the
slavery and inhumane treatment, but Labour Code Order 1992), the Labour
does not, like the African Charter, Code Wages (2009), the Anti-Traffick-
explicitly provide for the right to human ing in Persons Act (2011), the Chil-
dignity as an independent right.46 It also dren’s Protection and Welfare Act
lacks the right to receive information.47 (2011), and the Gender and Develop-
ment Policy (2003).
Socio-economic rights are provided
for in a separate chapter of the 1993 Some important government poli-
Constitution from the traditional civil cies implicitly give effect to both the
African Charter and the Maputo Proto-
col. For example, the Gender and
31 Sec 8 of the Constitution.
32 Sec 9 of the Constitution. Development Policy strives to address
33 Sec 10 of the Constitution. gender inequality and the vulnerability
34 Sec 11 of the Constitution.
35 Sec 12 of the Constitution.
36 Sec 13 of the Constitution.
37 Sec 14 of the Constitution. 48 See Chap 3 of the Constitution.
38 Sec 15 of the Constitution. 49 See sec 25 of the Constitution on application
39 Sec 16 of the Constitution. of the principles of state policy.
40 Sec 17 of the Constitution. 50 Sec 27 of the Constitution.
41 Sec 18 of the Constitution. 51 Sec 28 of the Constitution.
42 Sec 19 of the Constitution. 52 Sec 29 of the Constitution.
43 Sec 20 of the Constitution. 53 For example, Lesotho Poverty Reduction
44 Sec 26 of the Constitution. Strategy (2004/2005-2006/2007); National
45 Thabane & Shale (n 19 above). Gender Policy, Lesotho Report to the
46 Art 5 of the African Charter. CEDAW (2010); Lesotho SADC Protocol
47 Art 9 of the African Charter. Gender Barometer 2014.
138 Lesotho

of women to HIV/AIDS.54 It calls for strategic plan.56 The National HIV and
non-discrimination towards women, AIDS Strategic Plan 2007/2011, which
men, girls and boys in the following ten was launched in 2007, identifies domes-
priority areas: gender and poverty and tic violence as one of the factors fuelling
economic empowerment; gender and HIV and AIDS in Lesotho and commits
education and training; gender and the state to addressing it in collaboration
youth; gender and power, gender and with partners through implementing the
politics and decision making; gender Behaviour Change Strategy. The coun-
and health; gender-based violence; try also developed a National Action
gender and civil society organisations; Plan on Gender-based Violence in 2007,
gender and the media; gender and the set up a One Stop Centre to support
environment; and gender and science survivors of abuse as anticipated by the
and technology. The above rights are Maputo Protocol and established a dedi-
also encapsulated in the Maputo Proto- cated Unit for Children (Child and
col. The policy serves as a guiding tool Gender Protection Unit (CGPU)),
to the government of Lesotho in its recognising that children, although by
effort to achieve gender equality and extension are provided for under
protect the interests of vulnerable groups women’s rights issues have specific
such as women. It is also used as a needs that need special attention.
guide in gender mainstreaming process-
es for all government ministries, which The Lesotho Law Reform Commis-
could serve to address gender concerns sion (LLRC) is mandated to review laws
in a wide spectrum of developmental of Lesotho and consider proposals with
issues.55 Subsequent to the formulation a view to ensuring that the laws and
of the Gender and Development Policy, proposals are consistent with the protec-
an Implementation Plan 2008/10 was tion of fundamental human rights and
developed for mainstreaming gender freedoms specified in Chapter II of the
concerns in policies and programmes of Constitution.
different sectors. Concurrently, institu-
tional strengthening was undertaken for 5 Court judgments
effective implementation of the plan, by
establishing Gender Focal Points According to Thabane and Shale,57 the
(GFPs), the Gender Technical Commit- African Charter and the Maputo Proto-
tee (GTC) and an Expanded Thematic col are seldom used in judgments.
Group on Gender and Reproductive However it would seem that the Leso-
Health (later renamed the Gender tho courts are in fact ready and willing
Forum) to effectively implement the to rely on these international instru-
plan. ments when these are relevant and
persuasive in any given circumstances –
Other policies that have favourably for example those that deal with issues
considered the African Charter and such as the independence and impartial-
Maputo Protocol include the Lesotho
Correctional Service HIV and AIDS
policy and the National HIV/AIDS
56 Thabane & Shale (n 19 above). These are
available on the National AIDS Commission
website at http://www.nas.org.ls/docu
ments/default.php (accessed 12 September
54 Thabane & Shale (n 19 above). 2011).
55 Lesotho Report on CEDAW (n 2 above). 57 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 139

ity of the courts, free and fair elections, activities of the executive and the
human rights and freedoms.58 legislature.61

The courts began, in Joe Molefi v However, in interpreting the right to

government of Lesotho, with a strict legal representation in DPP v Sole and
approach to dualism where they another,62 the Court made reference to
demanded that ratified international several international human rights
instruments be incorporated into the instruments including article 7(1) of the
domestic law before they can regard African Charter.63 Later, in the celebrat-
their provisions enforceable.59 In Baso- ed case of Molefi Ts’epe v The Independent
tho National Party and Another v govern- Electoral Commission and Others, the high-
ment of Lesotho and Others,60 the est court in the land confirmed the
applicants, inter alia, sought an order emerging acceptance and reliance on
directing the government of Lesotho to international human rights instruments
take necessary steps, in accordance with by referring to several ratified, but undo-
its constitutional processes, to adopt mesticated instruments including the
such legislative and other measures African Charter, CEDAW, the SADC
necessary to give effect to the rights Declaration on Gender and Equality,
recognised in international conventions and the International Covenant on Civil
such as the African Charter. The Court and Political Rights (ICCPR).64 The
explicitly stated that ‘these Conventions appellant had challenged the constitu-
cannot form part of our law until and tionality of a law that reserved one third
unless they are incorporated into munic- of local government seats for women.
ipal law by legislative enactment.’ The He contended that the law was discrimi-
Court stressed that: natory on the basis of sex. Interestingly,
he also argued that the international
the court cannot usurp the functions obligations that the respondent sought
assigned the executive and the legislature to bring to the fore were actually in
under the Constitution and it cannot even conflict with the domestic laws of Leso-
indirectly require the executive to
tho. The court dismissed his arguments
indirectly introduce a particular legislation
or the legislature to pass it or assume itself and found that Lesotho was bound by
a supervisory function over the law-making its international obligations. It specifi-
cally referred to article 18(4) of the Afri-
can Charter despite the fact that this
Charter is not domesticated. In an
58 SN Peete ‘Influential constitutional justice – unprecedented move, the Court also
Its influence of society and on developing a referred to, but did not apply, the Mapu-
global human rights jurisprudence: A
Lesotho perspective’ http://www.venice. to Protocol, which Lesotho had already
coe.int/WCCJ/Papers/LES_Justice_Peete_
E.pdf (accessed 25 August 2015).
59 Joe Molefi v government of Lesotho 1967-70
LLR 237. See also K Mohau ‘Protection and 61 The Court quoted Bhagwati J in State of
redress for victims of crime and human rights Huniachal Pradesh v Student 1 Parent (1986)
violations: Adequacy and efficacy of LRC 208 (Supreme Court of India).
institutions and laws’ in Lesotho Justice 62 [2001] LSHC 101 (unreported).
Sector Conference Report (26-30 July 2004) 63 See also Judicial Officers Association of Lesotho v
96 where the author makes reference to this The Prime Minister [2006] LSHC in which the
decision. Court referred to arts 7 and 26 of the African
60 Basotho National Party and Another v govern- Charter and stated that Lesotho is a state
ment of Lesotho and Others (Constitutional party to the African Charter which imposes
Case No 5/2002) [2003] LSHC 6 (1 January on it, the duty to guarantee independence of
2003) (unreported) and Moosa and others v the courts.
Magistrate - His Worship Mr Ntlhakana and oth- 64 Lesotho ratified the ICCPR in 1992 and
ers [2007] LSHC. CEDAW in 1995.
140 Lesotho

ratified at that stage, but which had not Maputo Protocol. In the case of Security
yet come into force due to the fact that Lesotho v Moepa,68 the court cited inter-
there were inadequate ratifications.65 national human rights instruments,
including article 26 of the African Char-
Regarding the utility of the African ter. Also in Rex v Malefetsane Mohlomi
Charter and the Maputo Protocol, in an and Others,69 the court referred to the
interview with Shale and Habana,66 African Charter on the Rights and
four of the 11 Judges of the High Court Welfare of the Child. It should be noted
of Lesotho indicated that minimal use of however that the list of cases mentioned
these instruments is attributed to above is not exhaustive as access to the
amongst other things: lack of awareness recent cases by the researcher had limi-
by the courts as to the existence of the tations.
two instruments and whether Lesotho is
party thereto; lack of awareness and However, the case of Senate
access to the decisions of the African Masupha v the Kingdom of Lesotho70 was
Commission; failure of legal practition- found to have gone an extra mile in rely-
ers to refer to the two instruments and ing on the two instruments as a basis for
the lack of enabling legislation that their arguments:
domesticates the African Charter and
the Maputo Protocol. Pholo in her anal- On May 16, the Constitutional Court dis-
missed the gender discrimination case of
ysis in 201367 went a step further and
Senate Masupha, who challenged the consti-
asserted that the absence of enabling tutionality of the Chieftainship Act, which
legislation for the domestication of the denies women the right to succeed to chief-
international human rights instruments tainship based on the tradition of male pri-
is the key reason for their minimal use. mogeniture. Masupha sought to succeed
her late father as principal chief of Ha
It would seem that the courts in Lesotho
Mamathe in Berea District and to inherit
have not allowed themselves to be his estate. The court ruled no discrimina-
proactive enough in their judgments so tion had taken place and noted that even if
as to play an advocacy role. In instances the law discriminated based on gender,
where instruments have not been such discrimination would be justifiable
because the constitution enshrines patriar-
domesticated, the Courts play a major
chal customary law. Masupha appealed the
role in enforcing provisions of those decision; the Court of Appeal in March
instruments through judicial activism. 2014, also upheld the decision of the subor-
However, it is critical that law practi- dinate court.
tioners, in their submissions, persuade
the bench in that direction as well. Subsequent to exhausting local reme-
dies, on 9 September 2014, Senate
Recently, there has been an attempt Masupha, the Federation of Women
for cases to cite the African Charter and Lawyers (FIDA-Lesotho) and the
Southern Africa Litigation Centre
(SALC) submitted a complaint to the

65 For a comprehensive discussion of the case, 68 Constitutional Case No 12 of 2014.

see F Viljoen & M Nsibirwa ‘Political 69 Review case No 06/2013 CR. NO.10/2013/
participation of women in Lesotho: The case Review Order No 1/20.
of Molefi Ts’epe v The Independent Electoral 70 Senate Gabashane Masupha v Senior Resident
Commission and Others, Judgment of 30 June Magistrate of the Subordinate Court of Berea
2005’ (2006) 39 Comparative and International District and Others (2013) LSHC 9 CC; Senate
Law Journal of Southern Africa 351. Gabashane Masupha v Senior Resident
66 Thabane & Shale (n 19 above) Magistrate of the Subordinate Court of Berea
67 n 2 above. District and Others (2014) LSCA CofA Civ.
 Impact of the African Charter and the Maputo Protocol in selected African states 141

African Commission challenging Leso- mation on the use of these instruments

tho’s law that provides for male-only before national courts and to encourage
succession to chieftainship. The prayer lobbying of the government to enact
of the complainants was that the Afri- enabling legislation.73 They also provide
can Commission declare (i) section 10 legal services for women and occasion-
of the Chieftaincy Act 22 of 1968 inva- ally take on pro-bono cases for
lid to the extent that it excludes all first orphaned children, particularly girls, in
born daughters from succeeding their cases of property grabbing and dispos-
fathers as chiefs and (ii) the Constitution session. GEMSA monitors the media
of Lesotho invalid as far as it permits for equal and positive representation of
discrimination in violation of articles 1, women.74 The Lesotho Christian Coun-
2, 3, 5, 13, 14, 16, 17, and 18(3) of the cil (LCC) educates the community on
African Charter; and articles 2, 3, 5, their rights contained in all international
8(f), 9, 13,14, 17 and 21(3) of the Mapu- treaties.
to Protocol.71
The Transformation Resource
6 Awareness and use by civil Centre (TRC) has a human rights unit
society which in many instances uses the Afri-
can Charter in its human rights
campaigns, in its moot court competi-
There is a reasonable presence of civil
tions which it holds for law students and
society organisations and NGOs operat-
also in lobbying for domestication of the
ing at the national level in Lesotho. The
African Charter, so as to give effect to
work that each organisation is engaged
the rights provided therein, including in
in indicates awareness and a level of
particular socio-economic rights which
incorporation of the two instruments
are still not justiciable in the country.75
into their everyday work. They include:
Civil society in Lesotho plays a major
Women and Law in Southern Africa
role in raising awareness on human
(WLSA), Federation of Women
rights issues including through being
Lawyers (FIDA), the Lesotho Council
involved in strategic litigation on perti-
of NGOs (LCN), Lesotho Planned
nent issues. The Federation of Women
Parenthood Association (LPPA),
Lawyers for instance collaborated with
PHELA Health and Development
the Southern Africa Litigation Centre
Communications, as well as Gender
(SALC) to bring the Chieftaincy case
and the Media in Southern Africa
before the African Commission. TRC is
(GEMSA). WLSA runs a free legal
the only NGO in Lesotho that has
advice centre for women, empowerment
observer status before the African
programmes for women in leadership
Commission, though it has collaborated
positions, and awareness campaigns on
with other local NGOs to send human
property and inheritance rights.72 FIDA
rights cases to the African Commission.
trains paralegals in communities across
However, Lesotho civil society has not
Lesotho to give legal advice and infor-
submitted any shadow reports to the
African Commission on the two instru-
71 Sec 10 of the Chieftaincy Act violates arts 1, ments under review.
2 3, 5, 13, 14, 16, 17 and 18 of the African
Charter; sec 10 of the Chieftaincy Act
violates arts 2, 3, 5, 8, 9, 13, 14, 17 and 21 of
the Maputo Protocol.
72 ‘Women and Law in Southern Africa – 73 As above.
Lesotho’ http://www.womenandlaw.org.Is 74 Lesotho Report on CEDAW (n 3 above).
(accessed 22 June 2014). 75 Thabane & Shale (n 19 above).
142 Lesotho

7 Awareness and use by lawyers general, though without necessarily

and judicial officers singling out the Charter and the Maputo
Protocol.
In general, there is some level of aware-
ness and recognition of the African 8 Higher education and academic
Charter and the Maputo Protocol in writing
Lesotho, particularly with government
officials and civil society. The two The Faculty of Law at the National
instruments have been used as a basis University of Lesotho has included two
for development of key national docu- courses relating to the African Charter
ments like the Poverty Reduction Strate- and the Maputo Protocol: Human
gy; cited in judgments of the High Court Rights and Humanitarian Law as well
of Lesotho and also used as a basis for as Gender and the Law. Human Rights
advocacy work by civil society, calling and Humanitarian Law has been one of
upon government to adhere to its obliga- the law courses at the university since its
tions and commitments under the two inception, and topics relating to the
instruments. African Charter have been taught as far
back as 1981. Developments in terms of
The level of awareness however resolutions and decisions of the African
does not translate to practical usage of Commission on communications
either the African Charter or the Mapu- submitted to it are also included in this
to Protocol. It is in very few cases that course. Specific topics dealing with the
lawyers in Lesotho have resorted to the provisions of the African Charter and its
African Charter in their arguments. implementation mechanisms are also
Most lawyers are of the opinion that part of the course. It also discusses the
since the African Charter and the Mapu- African Commission and the procedures
to Protocol have not been domesticated for bringing communications before it,
into national law, they cannot be used as well as establishment of the African
for either interpretation purposes or to Court of Justice. In Gender and the
persuade the courts.76 Law, which was recently reintroduced
and made part of the curriculum within
For those who make reference to the faculty of law, students are exposed
regional human rights instruments, to the rights of women as enunciated in
resort is made mostly to the European the Maputo Protocol and other instru-
Court of Human Rights’ judgments and ments.78
the Canadian Charter on Human
Rights. Exact reasons for this pattern The African Charter and the Mapu-
could not be ascertained although one to Protocol have been referred to and at
may conclude that the influence may be times critiqued in various articles in the
from some of the Court of Appeal judg- Lesotho Law Journal which is produced
ments in which cases from the Europe- and edited by the Faculty of Law at the
an Court of Human Rights were quoted National University of Lesotho. These
with approval.77 There have been a articles focus on a range of issues, from
number of trainings organised by the the rights of women in the African
Law Society on human rights law in

76 As above.
77 As above. 78 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 143

Charter,79 human rights, democracy expression under the African Charter,84

and development aid in Africa,80 the racial discrimination,85 human rights
right to legal representation in Africa,81 and democracy in Africa,86 the content
independence of the judiciary,82 the of civil and political rights in the African
concept of peoples’ rights,83 freedom of Charter,87 and culture and human
rights.88

It is evident from the foregoing that

79 K Acheampong ‘The African Charter and academics in Lesotho have engaged
equalisation of human rights’ (1991) 7 Leso-
tho Law Journal 21; O Tshosa ‘Judicial pro-
tection of the rights of women under the 84 K Acheampong ‘Freedom of expression
constitutions of southern African countries including freedom of the press under the
with particular reference to non-discrimina- African Charter’ (1997) 10 Lesotho Law
tion’ (2008-2009) 18 Lesotho Law Journal 99. Journal 57. This article determines the extent
In this article, the Charter and Protocol are and the nature of the right to freedom of
quoted with approval as some of the interna- expression including that of the press under
tional human rights instruments that prohibit the Charter. It argues that arts 27 and 28
discrimination on the basis of sex; N stipulate the parameters within which the
Aniekwu ‘Customary law impacts on right may be interfered with or limited by
women’s rights issues: Reconciling the ten- governments in accordance with the words
sions in Nigeria’ (2008-2009) 18 Lesotho Law ‘within the law’ in art 9. The author,
Journal 85 where the Charter and the Proto- however, notes that such limitations must be
col are quoted as other sources or legal basis reasonably justifiable or necessary in a
for women’s rights in Nigeria. The author democratic society in which alone this right
notes with concern that although the Charter and other rights thrive.
has become part of Nigerian Law, it has how- 85 ZS Gondwe ‘Prohibition against all forms of
ever not been a basis for vindication of racial discrimination: Policy, law and reality’
women’s rights in Nigeria. She makes an (1996) Lesotho Law Journal 13. In discussing
example of Mojekwu v Mojekwu in which a international and regional instruments that
certain Nigerian custom was declared dis- prohibit discrimination, this article refers to
criminatory but without reference to the arts 2 and 28 of the Charter. The author
Charter or Protocol as the basis for such a criticises these provisions on the ground that
holding. the Charter is concerned more with the
80 K Acheampong ‘Human rights, democracy promotion by way of superimposition of
and development aid to Africa’ (1992) 8 human rights than with the identification
Lesotho Law Journal 17. Here the author while and elimination of the root causes of racism.
discussing the link between human rights, 86 K Acheampong ‘Africa and the vicissitudes
democracy and developmental aid, refers to of the human rights principle of the will of
art 22(1) of the Charter which imposes upon the people as the basis of the authority of
state parties, the primary duty of facilitating government’ (1998) 11 Lesotho Law Journal
the exercise of the right to development. He 87. The author refers to art 13(1) of the
argues that though this article, unlike art 1(1) Charter and argues that it is a standard upon
of the UN Declaration on Development does which all national constitutions should be
not include the word ‘political’, and that is based and which if adhered to would lead to
no sign that the Charter has revisited the democracy.
ideological battlefield of the issue of 87 M Mbondenyi ‘Improving the substance and
prioritisation of human rights. He bases this the content of civil and political rights under
assertion on the fact that although the the African Human Rights System’ (2007) 17
Charter has not in the past, paid particular Lesotho Law Journal 37. This article
attention to the right to development, it does commends the Charter for having all human
make some reference to it in its preamble. rights provided in one instrument without
81 J Hatchard ‘The right to legal representation there being generalisation of rights. It also
in Africa: The Zimbabwean experience’ identifies some shortcomings of the Charter
(1988) 4 Lesotho Law Journal 135. that deal with civil and political rights and
82 PKA Amoah ‘Independence of the judiciary suggests how such may be improved.
in Lesotho: A tribute to Justice Mofokeng’ 88 P Letete ‘The notion of culture and equality
(1987) 3 Lesotho Law Journal. In discussing in international law: Conflict of laws in
independence of the judiciary in Lesotho, the Lesotho’ (1998) 11 Lesotho Law Journal 159.
author comments that although the Charter The author makes a point that art 18(3) of
and other instruments seem to be in the Charter protects culture whilst at the
agreement that judicial independence is a same time safeguards the equality of all
sine qua non for protection of basic human human beings. The author laments that
rights, they do not, however, provide despite being a party to the Charter, Lesotho
comprehensive definition of the concept. has ‘ignored’ incorporating its provisions in
83 M Fanana ‘The peoples’ rights under the municipal law and thereby making protective
African charter on human and peoples’ principles enunciated in the Charter and the
rights’ (1997) 10 Lesotho Law Journal 37. Protocol useless.
144 Lesotho

with the African Charter in their writing structure. The second part contains a
from as early as the 1980s. It is, howev- description of the implementation of the
er, worrying that the lawyers they train obligations under the Charter, listed arti-
do not seem to see the value in using the cle by article. It concludes with a list of
African Charter and other African the statutes and legal instruments
instruments when they begin legal prac- referred to in the report.92 However,
tise.89 Lesotho has not been able to meet the
requirement of submitting periodic
9 State reporting and reports to the Commission; according to
communications the 2012 Promotion Mission to Lesotho,
five reports are now outstanding. Leso-
State reporting is the domain of an tho has similarly not yet submitted any
Inter-sectoral Committee for Human reports on the Maputo Protocol.
Rights (ICHR) comprised of representa-
There has been a slow increase in
tives of different government ministries
the number of communications submit-
and civil society. The composition of
ted to the African Commission against
this body makes it ideal to deliver on
Lesotho, following the first communica-
state reporting as different government
tion in 1989. Ironically, this was submit-
ministries and civil society organisations
ted before Lesotho became a party to
are represented in it. It has been faced
the African Charter and as such it was
with a huge backlog of overdue reports
declared inadmissible.93 It had emerged
to different treaty bodies. It admitted to
during the African Commission’s
the promotional mission of the African
promotional mission to Lesotho in 2006
Commission in 2006 that it prioritised
that a prisoner tried to access the Afri-
reporting to United Nations treaty
can Commission through a letter
bodies.90 It also acknowledged that it
complaining about torture in Lesotho
has capacity challenges. The govern-
prisons, but his letter was short of a
ment, therefore, ought to ensure that it
formal communication.94
is resourced and able to deliver on its
mandate.91 Recently, three cases have been
submitted to the African Commission
Lesotho submitted an initial report
against Lesotho. The Commission is yet
on the African Charter in August 2000
to make its decision on the case of
which covered the period from 1991 to
2000. It provided information on legisla-
tive, judicial and administrative proce-
dures, actions and interventions 92 Lesotho: 1st Peripodic Report 1991-2000,
available at http://www.achpr.org/states/
intended to give effect to the African lesotho/reports/1st-1991-2000/ (accessed
Charter. The first part of the report 10 September 2015).
93 See Simon B Nkata v Lesotho 33/89 http://
provides general information about the www1.umn.edu/humanrts/africa/comcases
country and its legal and institutional /33-89.html (accessed 9 September 2011).
Lesotho became a party to the African
Charter on 10 February 1992 and this matter
was declared inadmissible at the
89 Thabane & Shale (n 19 above). Commission’s 4th Ordinary Session held
90 See ACHPR ‘Report of the promotional from 17-26 October 1988. A prisoner also
mission to the Kingdom of Lesotho’ (2006) tried to access the commission recently
paras 129-136 http://www.achpr.org/files/ through a letter complaining about torture in
sessions/40th/mission-reports/promo-lesot prisons but this was short of a formal
ho-2006/misrep_promo_lesotho_2006_eng. communication.
pdf (accessed 9 September 2011). 94 See Report of the promotional mission to the
91 Thabane & Shale (n 19 above). Kingdom of Lesotho (n 90 above) para 166.
 Impact of the African Charter and the Maputo Protocol in selected African states 145

Senate Masupha Chieftaincy. The Commissioner Mumba Malila

Commission declared Asemie v Lesotho95 addressed a symposium on strengthen-
inadmissible. And lastly, in Munyandu ing the independence of the judiciary in
and Freeth v Angola and Others,96 a case 2010.101 This engagement with the
dealing with the suspension of the country’s judiciary was a step in the
SADC Tribunal submitted against all right direction, given the 2006 recom-
SADC member states, the Commission mendations made by the African
found that there was no violation of the Commission’s promotional mandate on
Charter. issues of judicial independence in the
country.
10 Special mechanisms and
promotional visits of the A second promotion mission was
undertaken from 3 to 7 September 2012.
African Commission
The mission was premised on the gener-
al situation in Lesotho, thematic issues
The African Commission undertook a
related to freedom of expression and
promotional mission to Lesotho from
access to information, as well as prisons
3-7 April 2006.97 The mission was led
and conditions of detentions.102
by Commissioner Mmasenono Mona-
geng and her terms of reference were, The terms of reference for the
inter alia, to raise awareness and visibili- mission included amongst other objec-
ty of the African Commission; to tives; to promote the Charter, and delib-
encourage Lesotho to establish a nation- erate on how to improve the enjoyment
al human rights institution; and to of human rights in the country; to raise
submit its first periodic report in accord- awareness on the importance of the
ance with article 62 of the African Char- right to freedom of expression and
ter.98 After consultations with various access to information; hold discussions
stakeholders, the mission made two with prison administrative officials and
important observations, namely that other stakeholders on detention issues,
civil society was weak and law reform assess conditions of prisons, follow up
was very slow.99 It also made recom- on recommendations arising from the
mendations ranging from the speedy concluding observations adopted by the
establishment of a national human Commission following its examination
rights institution; abolition of the death of Lesotho’s initial report in 2000; and
penalty; and measures to ensure the to encourage Lesotho to be up to date
integrity and preservation of judicial
independence.100
101 The Commissioner delivered a paper at the
symposium on ‘Strengthening the independ-
ence, impartiality and accountability of the
judiciary in the context of Lesotho’ organ-
95 Communication 435/12 – Eyob B Asemie v the ised by the International Commission of
Kingdom of Lesotho. Jurists in conjunction with the Judiciary of
96 Communication 409/12 – Luke Munyandu Lesotho 4-5 March 2010, Maseru, Lesotho
Tembani and Benjamin John Freeth (represented titled ‘The independence of the judiciary
by Norman Tjombe) v Angola and Thirteen through the eyes of the African Commission
Others. on Human and Peoples’ Rights’ http://
97 See Report of the promotional mission to the www.icj.org/dwn/database/Malila-SC-Judi-
Kingdom of Lesotho (n 90 above) paras 129- cialIndependencethroughtheeyesoftheACH
136. PR.pdf (accessed 12 September 2011).
98 As above. 102 See ACHPR ‘Report of the promotional
99 As above, paras 184 and 185. mission to the Kingdom of Lesotho’ (2012)
100 See recommendations to various paras 7 8 www.achpr.org/states/lesotho/mis
stakeholders from paras 186-217 of the sions/promo-2012 (accessed 13 November
Report (n 90 above). 2015).
146 Lesotho

with its periodic reports in accordance 11 Factors that may impede or

with article 62 of the African Charter.103 enhance the impact of the
The mission comprised of Commission- African Charter, the Maputo
er Pansy Tlakula, Commissioner Med Protocol and the African
SK Kaggwa, and Ms Irene Desiree Commission
Mbengue Eleke, Legal Officer at the
Secretariat of the Commission, who
Lesotho witnessed its first peaceful
assisted the Commissioners. The
transfer of power in June 2012 when
mission met with various stakeholders
Prime Minister Motsoahae Thomas
at the high level in government, civil
Thabane took office.106 Domestic and
society organisations and other actors
international observers described the
who are involved in the protection and
election as peaceful, credible and trans-
promotion of human rights in Lesotho.
parent. Also, for the first time, political
The mission also visited the Central
party leaders signed a declaration
Prison of Maseru and the Correctional
accepting election results.107 However,
Centre of Maseru.104
just when the country was being cele-
Following the visit, the Commis- brated for being democratic, 2014 saw
sioners made a number of observations the country plunge into political unrest
including commending peaceful elec- yet again. The current political situation
tions, drafting of a media policy, ratifi- is therefore uncertain and may impede
cation of African human rights the impact of the African Charter and
instruments on children’s rights, the Maputo Protocol.
women’s rights, democracy, elections
Civil society and the media are
and governance, and the African Court.
major players in exposing human rights
It noted with concern, amongst other
violations and holding states and non-
issues, Lesotho’s non-compliance with
state actors accountable. The African
her reporting obligation under article 62
Commission’s promotional mission of
of the African Charter, and called on the
2006 observed that these two players are
government to submit its reports in the
very weak in Lesotho. This may there-
nearest future. The delegation also
fore explain the limited impact the Afri-
encouraged the government to involve
can Charter has in the country.108
civil society in the compilation of the
periodic reports and thereafter made Most countries have established
recommendations.105 The research was dedicated human rights institutions to
not able to ascertain how far the govern- promote the culture of human rights.
ment has gone in implementing the Lesotho, despite support from donor
recommendations made by the mission. agencies, and clear recommendation
from the African Commission, has still
not established a human rights institu-
tion. This vacuum in the promotion of
human rights indirectly impedes the

106 Amnesty International 2014 Human Rights

Report on Lesotho.
103 As above. 107 US Department Human Rights Report on
104 As above. Lesotho 2013.
105 As above. 108 Thabane & Shale (n 19 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 147

impact of human rights instruments in

the country.109

Although civil society is generally

weak, women’s rights groups like FIDA
and the Lesotho Women and Law in
Southern Africa (WILSA) have been
vocal on issues of women’s rights. They
have participated in debates that led to
the elaboration of the Maputo Protocol
and the SADC Gender Protocol and
have used their experiences to shape the
agenda of women’s rights in the coun-
try. They have also been instrumental in
the law reform process, thus ensuring
that provisions of the African Charter
and Maputo Protocol find their way
into Lesotho’s domestic law. Having led
the law reform process, they have also
undertaken country-wide campaigns to
expose women to the new laws meant to
ameliorate their condition.110

It is arguable that the famous Molefi

Ts’epe case paved the way for the direct
impact of the African Charter, the
Maputo Protocol and other internation-
al instruments in Lesotho. It is up to
lawyers and judges to embrace it.
Commissioner Mumba Malila’s engage-
ment with the judiciary and members of
the legal profession where he, amongst
others, exposed them to extensive juris-
prudence of the African Commission on
judicial independence and talked about
the value of the African Commission’s
jurisprudence in the municipal jurisdic-
tion is indeed a step in the right direc-
tion. It is hoped that the judiciary and
the legal profession will tap into the
information and knowledge shared by
the Commissioner.111

109 As above.
110 As above.
111 As above.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
MALAWI

Sarai Chisala-Tempelhoff*
Seun Solomon Bakare**

1 Introduction where the young listen to the old and

the chiefs are obeyed. This of course
Malawi is a country that is burdened by built up his own unassailability as the
widespread poverty, food insecurity, paramount chief of chiefs. This control
corruption, HIV/AIDS and pervasive extended to the sphere of morality.
gender inequality. It is also a country HKB wanted to preserve traditional
that still bears the traces of its convolut- values, attitudes and ways of thought. In
ed political history. Malawi attained his role as the protector of culture, he
self-government in 1963 and full inde- declared himself the ‘Number 1
pendence in 1964 with Dr Hastings Nkhoswe’ of all Malawian women.1 In
Kamuzu Banda (HKB) as its first Presi- this manner, he used the concept of
dent. The 1964 Constitution contained a mbumba to appropriate culture and
Bill of Rights. However, at the attain- create a mass-based political organisa-
ment of republican status in 1966, the tion. Matrilineal groups in Malawi use
Bill of Rights was expunged from the the concept of the mbumba and the
Constitution. The 1966 Constitution nkhoswe to explain the special guardian-
formally made Malawi a one party state, ship that an older brother or maternal
with the then ruling party, the Malawi uncle (the nkhoswe) has over the women
Congress Party (MCP), as the sole legal- in the family (the mbumba). As the
ly recognisable political party. Number 1 Nkhoswe of Malawian
women, HKB expressed his deep
HKB manipulated cultural concepts concern for ensuring their modesty and
to validate and consolidate his control, moral integrity through legislative meas-
often speaking of the ‘good village’ ures such as the dress code. Culture was
redefined to suit his political ends.2

1 P Forster ‘Culture, nationalism and the

* LLM HRDA 2005; Senior Legal Researcher invention of tradition in Malawi’ (1994) 32
and the founder of EmGENDER: the The Journal of Modern African studies 477;
Malawi Gender Justice Network. J Power Political culture and nationalism in
** LLM HRDA (Pretoria); Legal Assistant at Malawi: Building kwacha (2010); L Semu
the African Commission on Human and ‘Kamuzu's Mbumba: Malawi women's
Peoples’ Rights, Banjul, The Gambia; and embeddedness to culture in the face of
Visiting Professional at the International international political pressure and internal
Criminal Court (ICC) in The Hague, The legal change’ (2002) 49 Africa Today 77.
Netherlands. 2 Semu (n 1 above).

149
150 Malawi

HKB soon set about regulating 14 June 1993. A staggering two-thirds

personal behaviour and he did so majority voted in favour of introducing
through a comprehensive code of a multiparty system of government.
censorship and dress provisions. The Presidential and parliamentary elections
proffered rationale for the strict censor- were held under a provisional constitu-
ship was ‘protecting the national culture tion that came into full effect the follow-
from pollution by immorality’.3 Some ing year. The transition to democracy
provisions never came into fruition, was negotiated peacefully; with the
such as a Wills and Inheritance Bill, introduction of a pluralistic constitution,
better known as the ‘Kamuzu’s Mbum- democratic elections and a change of
ba’s Protection Bill’, that declared illegal government in May 1994, the formal
certain injustices done to women in process of democratisation was complet-
matters of inheritance, illegitimate preg- ed.5
nancy, marriage, and divorce.4
A provisional constitution, drafted
Others, such as the Decency in by the Constitutional Subcommittee of
Dress Act of 1973 and the Censorship the National Consultative Council
and Control of Entertainments Act of (NCC) between January and May 1994,
1968, became a formal part of the legal was adopted by Parliament on 16 May
system. These were laws that were 1994.6 This Provisional Constitution
harshly enforced at the time, perhaps no provided for a year of operation, pend-
more so than by the citizens themselves. ing review by a Constitutional Commit-
The women of Malawi continuously tee. Thereafter, the revised Constitution
carve out their freedoms from the endur- was adopted and came into force on
ing rock of patriarchy. The Mbumba of 18 May 1995. The Bill of Rights drafted
the HKB years lives on, and whilst new by the NCC has remained largely
legislation is largely gender-responsive untouched by subsequent constitutional
and follows the international human revision. The rights and freedoms
rights norms, the enduring ‘cultural’ enshrined in the Bill of Rights are all
conceptualisation of Malawian women fully justiciable, no distinction is made
as the Mbumba with the state taking the between the different generations of
place of the Number 1 Nkhoswe prevails. rights in this aspect. Alongside recognis-
Malawian women are constantly negoti- ing almost all the traditional civil and
ating their lives at the intersections of political rights, it also protects a number
poverty, health, [dis]ability, culture, of economic, social and cultural rights
ethnicity, class, race, law and [hidden] such as the right to education, cultural
sexuality. and language rights, the right to proper-
ty, the right to work or to pursue a liveli-
Malawi returned to multi-party hood, and rights concerning family and
democracy in 1994. HKB was old, out marriage. Section 24 protects the rights
of touch and unaware of his limited of women, in a comprehensive set of
popularity. He succumbed to wide- provisions that touch upon some of the
spread pressure for change. A referen- protections under the Maputo Protocol
dum to decide upon reintroducing
multiparty democracy was held on 5 H Meinhardt & N Patel Malawi's process of
democratic transition: An analysis of political
developments between 1990 and 2003 (2003).
3 D Jones Censorship: A world encyclopedia 6 See the Constitution of the Republic of
(2001). Malawi (1994). See also DM Chirwa Human
4 Semu (n 1 above) 82. Rights under the Malawian Constitution (2011).
 Impact of the African Charter and the Maputo Protocol in selected African states 151

‒ for example relating to fair disposition 2 Ratification of African Charter

of property upon dissolution of marriage and the Maputo Protocol
and by granting additional protections
for gender based discrimination in Malawi ratified the African Charter on
particular harmful cultural practices. 17 November 1989. The 1994 Constitu-
tion was the first in the constitutional
In 2015, Malawi was lauded for its
history of Malawi to include a fully
progressive stance on child marriage
justiciable bill of rights.7 The 1994
when the Marriage Act was passed into
Constitution also paved the way for the
law. The Act purports to bring child
ratification and domestication of several
marriage to an end by setting the mini-
international instruments, including the
mum age for marriage at 18. However,
Maputo Protocol which was ratified on
under section 22 of the 1994 Constitu-
20 May 2005. The Constitution spells
tion, girls and boys ages 15 to 18 may be
out the process of ratification and
married with parental consent. The
domestication of international treaties
Constitution also does not specifically
and agreements. It provides that while
prohibit the marriage of children under
the President negotiates, signs, enters
15, but merely directs the government to
into and accedes to international agree-
‘discourage’ such marriages. The new
ments, he may delegate such power to
marriage law also takes a very specific
ministers, ambassadors and high
stance on LGBTi relationships by
commissioners.8 Members of the Cabi-
decreeing that marriage is limited to
net often assist the President in identify-
persons of the opposite sex, where sex is
ing and determining international
further defined as the sex of the person
agreements to be so concluded and rati-
at birth. The Act also retains the status
fied, and they hold a further duty to
quo in terms of polygamy, with polyga-
inform the Parliament. Any internation-
my only being prohibited with respect to
al agreement ratified by an Act of
civil marriages. The laws criminalise
Parliament shall form part of the law of
harmful traditional practices ‒ but it is
the Republic if so provided for in the
almost impossible to find instances
Act of Parliament ratifying the agree-
where these laws have been enforced.
ment.9
The laws prohibit harmful gender relat-
ed practices but women who dare to The main government focal points
bare their legs in a mini-skirt still face responsible for the implementation of all
the wrath of street vendors and risk international agreements, including the
being stripped and publicly humiliated. African Charter, are: the Office of the
There is a strong disparity and definite President and Cabinet (OPC); the
disconnect between the package of Ministry of Justice and Constitutional
gender justice laws that have been Affairs; acting with the support of the
promulgated (particularly in an effort to Malawi Human Rights Commission
nationalise instruments such as the Afri- and the particular line Ministries work-
can Charter and the Maputo Protocol)
and the law as lived by the people of
Malawi. 7 Chirwa (n 6 above) 6.
8 See generally art 89(f) of the Constitution of
the Republic of Malawi, 1994. See also
GH Flanz Constitutions of the countries of the
world (2000) http://scholar.harvard.edu/files
/bsimmons/files/APP_3.2_Ratification_rul
es. pdf (accessed 5 September 2015).
9 As above.
152 Malawi

ing within that field. In the implementa- part of the law. In addition, binding
tion of the Maputo Protocol, the focal international agreements entered into
points are: the Ministry of Gender, Chil- before 1994 and customary international
dren and Social Welfare; the Malawi law continue to form part of Malawian
Human Rights Commission (MHRC) as law unless Parliament specifies other-
the enforcement agency of the Gender wise.11
Equality Act 49 of 2012, and the Mala-
wi Law Commission which is responsi- In respect to domestication of the
ble for the review of all gender African Charter and the Maputo Proto-
insensitive laws.10 col, the 1994 Constitution gave certain
provisions of the Charter constitutional
3 Domestication status when it incorporated a justiciable
Bill of Rights.12 Nkhata has explained
the current legal position as follows:
In Malawi, international law is both an
indirect and a direct source of law. It is All international agreements entered into
considered an indirect source of law in prior to the Constitution or after the
that it aids the courts in constitutional Constitution are binding on Malawi only if
interpretation. This role is prescribed they are not in conflict with any domestic
under various provisions of the Consti- legislation. Thus international agreements,
irrespective of when Malawi became a
tution. Accordingly, the guiding princi- party to them, will be binding on Malawi
ples of interpretation under section 11 as long as there is no domestic statute
require the court to have regard to providing the contrary. As for customary
‘current norms of public international international law, this is binding on
law’ where applicable. Section 13(k) Malawi as long as it does not contradict
either the Constitution or any domestic
calls upon the state to govern in accord- statutes. In applying international law in
ance with the law of nations. Section 45 Malawi, courts will strive to ensure an
allows derogation from the rights only interpretation that does not contradict the
during a state of emergency, and only so Constitution or any domestic statutes, but
far as such derogation is consistent with where this is not possible, domestic law
will always prevail.13
Malawi’s obligations under internation-
al law. Most notably, the Constitution Justice Redson Kapindu reiterated this
stipulates that no restrictions or limita- interpretation, stipulating that:
tions may be placed on the exercise of
any rights and freedoms other than The position in Malawi is that where
those prescribed by law, which are Malawi is a party to a treaty containing
reasonable, recognised by international provisions that are relevant to the facts of a
case at hand, it is peremptory that if a
human rights standards and necessary in court is interpreting the Constitution, it
an open and democratic society. must demonstrate that it paid due regard to
that treaty. The courts, as an organ of the
International law is also a direct state, will be bound not to act in a manner
source of law. The Constitution stipu- that defeats the object and purpose of such
lates that any international agreement a treaty in interpreting the Constitution. In
cases where the treaty has been
ratified by an Act of Parliament forms

11 Sec 211 of the Constitution.

10 Malawi’s initial and combined periodic state 12 Chirwa (n 6 above).
report to the African Commission 71http:// 13 MJ Nkhata Malawi Country Report http://
www.achpr.org/files/sessions/56th/state-re www.icla.up.ac.za/images/country_reports/
ports/1-1995-2013/malawi_state_report_ malawi_country_report.pdf (accessed 8 Sep-
eng.pdf (accessed 5 September 2015). tember 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 153

domesticated, it will obviously easily be the 2015 Marriage, Divorce and Family
directly enforceable by the courts as part of Relations Act.16
domestic law.14

There is also the principle of interpreta- 4 Legislative and policy reform

tion that obliges courts to interpret laws
in such a way as to avoid creating The Malawi Law Commission has been
breaches with international law or inter- engaged in several law reform projects
national agreements.15 What is clear is that have a direct impact on gender
that the judiciary must make every effort imbalance in the country. Within the
to take judicial notice of all treaties that past decade several law reform reports
are binding on Malawi. issued by the Commission have been
developed into gender justice laws. Such
The Constitution further establishes legislation includes the Marriage,
three independent governance institu- Divorce and Family Relations Act
tions to provide oversight functions and (2015), the Gender Equality Act (2013),
ensure domestication of the rights and the Prevention of Domestic Violence
the state’s obligations under the African Act (2006), the Trafficking in Persons
Charter. These include the Law Act (2015), the Deceased Estates (Wills,
Commission mandated to conduct law Inheritance and Protection) Act (2011),
reform which includes systematic the Child Care, Protection and Justice
review of existing legislation and devel- Act (2010), and the Disability Act
opment of new legislation in accordance (2012). The Malawi Law Commission
with applicable international and has pointed out that Malawi has an obli-
regional instruments. The African Char- gation to meet international legal stand-
ter is one of the instruments that are ards in the development of its municipal
taken into account in law reform. laws. This was stated in the report on
Where there are inconsistencies between the development of the Marriage,
the African Charter and local legisla- Divorce and Family Relations Act of
tion, it is addressed through a systematic 2015. The Commission’s report specifi-
legislative and policy review approach cally cited CEDAW, the Beijing Plat-
with the aim of gradually eliminating form for Action, the SADC Declaration
inconsistencies. Courts also provide on Gender and Development, and the
avenues for domesticating elements of Maputo Protocol as foundational to the
the African Charter. Examples of legis- development of the Gender Equality
lation developed through law reform Act (GEA) 2013.17
that have embraced precepts of interna-
tional legal instruments include the The terms of reference for the devel-
Gender Equality Act 2013 (GEA) and opment of legislation to prevent and

16 This information was sourced from Malawi

delegation’s oral presentation and response
14 Paper presented at the Judicial Colloquium to the questions posed by the African
on the Rights of Vulnerable Groups, held at Commission in respect of its periodic report
Sunbird Nkopola Lodge, Mangochi, at the presentation of its state report during
Malawi, 6 and 7 March 2014 http://www. the 56th ordinary session of the African
southernafricalitigationcentre.org/1/wp-con Commission in Banjul, The Gambia.
tent/uploads/2014/12/8.pdf (accessed 17 Malawi Law Commission (2006) ‘Report of
6 December 2015). the Law Commission on the review of laws
15 S Gloppen & FE Kanyongolo ‘Courts and on marriage and divorce’ http://www.law
the poor in Malawi: Economic marginalisa- com.mw/docs/Report_on_the_review_of_
tion, vulnerability and the law’ (2007) 5 Inter- Marriage _and_Divorce_Act.pdf (accessed
national Journal of Constitutional Law 258 259. 5 September 2015).
154 Malawi

eliminate trafficking in persons included Programme 2004-2009.23 In 2005, then

the Maputo Protocol as one of the inter- Chairperson of the Industrial Relations
national instruments to be consulted.18 Court, Rachel Zibelu-Banda, made a
In the development of the GEA, the direct connection between the ratifica-
Maputo Protocol was relied upon as a tion of the African Charter and the
key international instrument that has formulation of the National Aids Poli-
had an impact on the government’s cy.24 However, the researchers could
gender equality policy.19 Specific not find any evidence to show that
sections of the GEA that reflect the government policies specifically reflect-
protections under the Maputo Protocol ed the provisions of any general
include the prohibition of harmful comments of the African Commission
cultural practices and the clearly eluci- concerning women’s rights.
dated sexual and reproductive health
rights.20 The GEA also imposes duties 5 Court judgments
upon health service providers to respect
the sexual and reproductive rights of According to Gloppen and Kanyongolo,
service users without discrimination and the Malawian judiciary, which was
to provide family planning services to marginalised during HKB's thirty years
any person demanding them ‒ regard- of authoritarian rule, thereafter emerged
less of their marital status.21 Those as a surprisingly strong institution in an
duties are backed up by penal sanctions otherwise weak political system.25 The
‒ a fine and three-year prison sentence ‒ two authors noted that the existing juris-
for any health services officer who prudence bears little trace of the progres-
contravenes the provisions.22 sive promises contained in the letter of
the law,26 pointing out the following:27
Policies and programmes have been
put into place to give effect to Malawi’s As in many African constitutions, a wide
international and constitutional obli- range of social rights is recognized in
gations. Examples include the Malawi Malawi's Constitution as a series of princi-
Growth and Development Strategy ples of national policy concerning such
issues as gender equality, nutrition, health,
2006-2011, followed by the Malawi environmental rights, education, rights of
Growth and Development Strategy the disabled, children, the elderly, and the
2011-2016; the National Gender Policy family. The principles are directive in
2000-2005; and the National Gender nature and not directly justiciable, but …
[an] activist judiciary could thus give the
directive principles significant jurispruden-
tial force.

In his paper on the relevance of interna-

tional law in judicial decision-making,
18 Malawi Law Commission (2011) ‘Law
Commission Report No 22: Report of the
Law Commission on the Development of
Trafficking in Persons Legislation’ http:// 23 OHCHR ‘Committee on Elimination of
www.lawcom.mw/docs/Report_on_the_De Discrimination against Women considers
velopment_of_Trafficking_in_Persons_Legis report of Malawi’ http://www.ohchr.org/
lation.pdf (accessed 6 September 2015). EN/NewsEvents/Pages/DisplayNews.aspx?
19 Malawi’s initial and combined periodic state NewsID=9766&LangID=E#sthash.BLRm1
report (n 10 above). 8ma.dpuf (accessed 9 September 2015).
20 Sec 19 of the Gender Equality Act of 2013. 24 See Banda v Lekha [2005] MWIRC 44.
21 Sec 20 of the Gender Equality Act of 2013. 25 Gloppen & Kanyongolo (n 15 above).
22 Sec 20(2) of the Gender Equality Act of 26 Gloppen & Kanyongolo (n 15 above) 259.
2013. 27 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 155

Justice Redson Kapindu also points out ages the right to vote as a process where
that:28 the will of the people is given and a citi-
zen freely participates in the govern-
Socio-economic rights litigation has thus ment of his country through elections
far been generally confined to a narrow
held by secret voting. In the matter of
range of economic rights, namely, labour
rights, the right to work, the right to Jumbe and Another v Attorney General,32
economic activity and to pursue a Justice Katsala cited provisions of the
livelihood and, to a very limited extent, the African Charter (and other international
right to education. Many other key socio- instruments) that uphold fair trial rights:
economic rights, such as access to housing,
access to water, access to food, and others, Suffice to say that the right to a fair trial
that could conceptually have been litigated and to be presumed innocent is recognized
almost 20 years after the adoption of the almost in all civilized societies. This is
Constitution, have remained judicially evidenced by its inclusion in major
unexplored. international human rights documents. For
example … The African Charter on
While the courts have increasingly used Human and Peoples’ Rights, adopted on
international law for the purposes of June 27 1981, in Article 7(1)(b) provides:
interpreting constitutional rights, they Every individual shall have the right to
have rarely directly used the provisions have his cause heard. This comprises: (b)
the right to be presumed innocent until
of international treaties for holding the
proved guilty by a competent court or
state responsible.29 In the earlier case of tribunal.
R v Chihana,30 the Supreme Court
referred to the African Charter as being The provisions of the African Charter
distinguishable from the Universal were applied directly in R v Cheuka &
Declaration of Human Rights (UDHR) Others.33 In that case, Constable Joshua
per Banda CJ: Cheuka and three other police officers
were charged with manslaughter for
Whereas the latter is part of the law of their involvement in the fatal shooting
Malawi, the African Charter is not.
of a lorry driver. The court applied the
Malawi may well be a signatory to the
Charter and as such is expected to respect provisions of the African Charter when
the provisions of the Charter but until determining whether or not the use of
Malawi takes legislative measures to adopt force in this particular instance
it, the Charter is not part of the municipal conformed to international human
law of Malawi and we doubt whether in
rights standards.
the absence of any local statute
incorporating its provision the Charter
would be enforceable in our Courts. In Malawi Telecommunications Limit-
ed v Makande & Omar,34 the Malawi
Post 1994, Justice Banda called upon Supreme Court of Appeal ruled that all
provisions of the African Charter in international treaties required domesti-
deciding the matter of Chakuamba and cation first before they could be relied
Others v Attorney General and Others,31 upon as law in local courts. The court
declaring that the African Charter envis- opined that in addition to the provision
of the Constitution regarding domestica-
28 RE Kapindu ‘Courts and the enforcement of tion, one has to consider also the
socio-economic rights in Malawi: Jurispru- language of the treaty and its provisions
dential trends, challenges and opportunities’
(2013) 1 African Human Rights Law Journal
125 128.
29 Chirwa (n 6 above) 30. 32 [2005] MWHC 15.
30 [1993] MWSC 1. 33 [2009] MWHC 49.
31 [2000] MWSC 1. 34 Civil Appeal 2 of 2006 (unreported).
156 Malawi

to determine whether it requires domes- case) have been complaining to the Trust,
tication before it could be relied upon in and on the basis that the Trust’s research
has led to the conclusion that there is a
a domestic court. It was further
problem, is not sufficient interest in the
observed that in some cases, the provi- manner the existing authorities construe
sions of treaties would not require that expression under Section 15(2) of the
domestication because they are self- Constitution. We, therefore, find ourselves
executing. in agreement with the observation of the
Attorney General to the effect that the
Applicant’s interest in the matter it has
In Kishindo v Kishindo,35 Justice
raised is hypothetical, moot, or academic,
Dunstain Mwaungulu referred to article and that it indeed rather seeks the advisory
4 of the Maputo Protocol when distrib- opinion of the Court, than a judicial
uting marital property after the dissolu- determination from it on an issue that is
tion of the marriage. Mwaungulu truly in dispute. In the circumstances, we
have no option but to dismiss the
interpreted the relevant sections of the
Applicant’s Originating Motion herein.
Constitution in light of the Maputo
Protocol and the UDHR.36
6 Awareness and use by civil
Local courts have been called upon society
to protect and promote the rights of
women in innumerable other cases. An In 2014 and 2015, two civil society
example is the 2009 matter of Trustees, organisations, the Centre for Human
Women & Law (Malawi) Research & Rights and Rehabilitation (CHRR) and
Education Trust v Attorney General37 Centre for the Development of People
where the Applicant approached the (CEDEP), submitted shadow reports to
Constitutional Court on a matter of the African Commission in response to
public interest alleging that the existing Malawi’s Initial and Combined Periodic
property law regime is inconsistent with Report. It is important to stress that
the rights of equality and women’s prop- these are two of the civil society organ-
erty rights as enshrined in the Constitu- isations from Malawi with observer
tion. The case was dismissed for lack of status before the African Commission.
legal standing. Per Justice Anaclet Chip- Two external organisations, the Centre
eta: for Reproductive Rights and The Advo-
cates for Human Rights also submitted
In the absence of its having suffered a shadow reports to the African Commis-
violation of its rights by the Court’s use or sion in respect of Malawi’s State Report.
misuse of the legislation complained
Despite the lack of significant
against or cried for, and in the absence of a
woman who has suffered this type of representation amongst those CSOs
disadvantage being in the driving seat of with observer status, local organisations
the intended public interest litigation, such regularly demonstrate their awareness of
interest as the Applicant has claimed it has and engagement with the African
for commencing this matter is all distant
human rights system and these two
and remote. Suing on the basis that the
Trust Deed’s objectives coincide with instruments in particular. An illustration
women’s rights in the Republican can be found in the 2011 Access to
Constitution, and on the basis that women
(not mentioned and not involved in the

35 [2014] MWHC 2.
36 As above.
37 [2014] MWHC 1.
 Impact of the African Charter and the Maputo Protocol in selected African states 157

Justice Report by Desmond Kaunda;38 behalf of a juvenile offender in the case

or even the 2012 UNDP supported HIV of Republic v Mphembedzu.41 In response,
and AIDS legal environment assessment Justice Chirwa stated as follows:
which outlined the framework of rights
and obligations that the African Charter Since we have the following constitutional
provision in place, a provision which
imposes in the context of the legal
clearly requires the State to make adequate
responses to the HIV/AIDS pandemic provision for its citizens coupled with the
in Malawi.39 provisions of the Prisons Act (Cap 9:02)
This Court thus finds Counsel's reference
7 Awareness and use by lawyers to the provisions from the International
Covenant on Economic, Social and
and judges Cultural Rights (ICESCR), the African
Charter on Human and Peoples' Rights
The cases outlined in the previous (the African Charter) or (the Banjul
Charter); the United Nations Standard
sections demonstrate that there is a
Minimum Rules for the Treatment of
significant level of awareness of the Prisoners Principal 22(2) etc, for the
African Charter and the Maputo Proto- purposes of this Application a futile
col within the Malawian legal and judi- exercise.
cial community. The cases also
demonstrate the willingness to use Currently, the Malawi Law Society
courts to address inequalities between (MLS) is about to embark on a year-
men and women. Whilst Malawian long project to raise awareness about
courts may be accused of not always human rights and laws especially
taking full advantage of the African pertaining to addressing the needs of the
Charter and the Maputo Protocol, most vulnerable groups such as children
nevertheless the two instruments are and women. The activities that
intricately woven into the tapestry of members are requested to be involved in
Malawian jurisprudence. Even if specif- include participating in a radio
ic provisions are not cited, the rights programme to discuss legislation
protected under those provisions are designed to address social justice issues;
well within the local legal vocabulary. contributing to a weekly column on the
To cite a specific example, human rights various aspects of law that have impact
trained lawyer, Mandala Mambulasa40 on social justice; and participating in
sought to rely upon the African Charter mobile legal clinics in several districts
and other human rights instruments especially in Zomba, Thyolo, Lilongwe,
when making a bail application on Mzimba and Blantyre.42

38 Working paper by DM Kaunda ‘Expanding

access to justice for the poor: Malawi’s
search for solutions – A comparative analysis 41 [2011] MWHC 12.
with other select informal justice systems’ 42 Malawi Law Society and Times Group have
Research Partnership Programme, Danish entered into a partnership to launch a project
Institute for Human Rights (December 2011) on human rights awareness and legal literacy.
http://www.humanrights.dk/files/media/bi The project will entail popularising laws that
lleder/udgivelser/desmond_report_ok.pdf impact on social justice issues, especially
(accessed 9 September 2015). those that affect the vulnerable groups such
39 ‘UNDP Malawi Annual Report 2012’ http:/ as children, women and disabled persons.
/www.mw.undp.org/content/malawi/en/ The project is being funded by the Open
home/library/annual-reports/undp-malawi- Society Initiative of Southern Africa
annual-report-2012/ (accessed 3 November (OSISA) and will be carried out by way of
2015). newspaper articles, radio programmes and
40 It should also be noted that Mandala mobile legal clinics. Tichezeza Malamulo
Mambulasa also served as the president of Radio Program started on Wednesday
the Malawi Law Society. 23 September 2015 on Matindi Radio
158 Malawi

Participants will focus on the Maputo Protocol is also carried out by

Constitution and various pieces of social other state and non-state institutions
justice legislation including the Gender such as the MHRC; the Malawi Law
Equality Act, the Prevention of Domes- Commission; the National AIDS
tic Violence Act, the Marriage Act, the Commission; the Malawi Law Society;
Deceased Estates Act and the Traffick- Women and Law (WLSA) Malawi; the
ing Act. The MLS is currently recruiting Women Lawyers Association; the Mala-
and training its members for this wi Human Rights Resource Centre
purpose. (MHRRC); the Council of Non-Govern-
mental Organisations in Malawi
8 Higher education and academic (CONGOMA); the Malawi Economic
writing Justice Network (MEJN); the Civil
Liberties Committee; the Center for the
There is only one certified law school in Development of People (CEDEP); the
Malawi – the University of Malawi’s NGO Gender Coordination Network;
Faculty of Law. The faculty covers the the Center for Human Rights and Reha-
African Charter and the Maputo Proto- bilitation (CHRR); and the media to
col in great detail in a number of courses mention just a few.
that are offered. The Law of Human
Malawian academics regularly
Rights was taught as a full and separate
engage with the African human rights
course for the first time during the first
framework in their writing and teaching.
semester of the 2001-2002 academic
One of the more significant works to
year. Prior to this, human rights law
emerge recently is Danwood Chirwa’s
was taught as an integral part of Public
book Human rights under the Malawian
International Law. However, the Facul-
Constitution, which takes stock of the
ty adapted the subject into a separate
human rights jurisprudence generated
(and compulsory) course: ‘[D]ue to the
by the new Constitution and the new
rising awareness of human rights in
judiciary in Malawi.44 In her paper on
Malawi and elsewhere and the potential
marriage and customary law, Lea
contribution of human rights law to
Mwambene also grappled with the role
development, peace, justice and the
that African human rights instruments
quality of life.’43 The implementation of
play in the local legal framework.45
human rights under the African Union
Other authors and academics have
system is tackled as a core aspect of the
published on specific aspects of the Afri-
course, and the course materials include
can human rights system ‒ such as
both the African Charter and the Mapu-
Thoko Kaime’s work which focuses on
to Protocol.
the socio-legal aspects of the African
Civic education about the protec- Charter on the Rights and Welfare of
tions under the African Charter and the the Child. Other writings include books
and papers by constitutional lawyer and
lecturer Fidelis Edge Kanyongolo and
42 Station from 19:00-19:30; Malawi News – the works of legal experts such as Msai-
Malawi Law Society News Column: ‘Legal
literacy corner’ – English Column started on
3 October 2015; Chichewa Column also 44 Chirwa (n 6 above).
started on the same day ‘Dziwaniza 45 L Mwambene ‘Marriage under African
Malamulo’. See www.malawilawsociety.net customary law in the face of the Bill of
(accessed 4 October 2015). Rights and international human rights
43 From the 2015 Syllabus: Law 340 ‒ The Law standards in Malawi’ (2010) 1 African Human
of Human Rights. Rights Law Journal 78.
 Impact of the African Charter and the Maputo Protocol in selected African states 159

wale Chigawa, Matembo Nzunda, The MHRC was influential in the prepa-
Garton Kamchedzera, Ngeyi Kanyon- ration of the state reports on the ICCPR
golo, and so many others. Their publica- and the African Charter: participating in
tions are relied upon to conduct training the two report compilation task forces
in the Faculty of Law. Beyond academic that were set up by the Ministry of
writing, these and other legal experts are Justice and Constitutional Affairs; as
regularly invited to provide their exper- well as contributing the background
tise in development projects across the research for the reports; and sending
country; and, to provide commentary representatives as part of the team that
on constitutional affairs in the media. In presented the report to the African
this way, our key thinkers are participat- Commission.47 Malawi reported to the
ing in educating not just our legal African Commission that officials from
students, but the broader public, on the its National Human Rights Institutions
relevance and content of Malawi’s inter- were some of the members of the
national obligations. National Task Force which prepared its
Periodic State Report. As at the time of
9 National human rights this research though, the African
institutions Commission has not issued concluding
observations on Malawi’s state report,
The Malawi Human Rights Commis- hence our inability to assess whether
sion plays a key role in monitoring the these institutions will follow up on the
implementation of Malawi’s obligations implementation of such concluding
under the African Charter and other observations.
human rights instruments. The Consti-
tutional responsibilities of the MHRC 10 State reporting
include the following:
At the 56th ordinary session of the Afri-
To promote the harmonization of national can Commission held in April and May
legislation and practices with international 2015, Malawi presented its initial and
human rights instruments to which
Malawi is a party and to promote and periodic state report, in accordance with
monitor their effective implementation; to its obligation under article 62 of the
contribute to the reports which Malawi is African Charter. In submitting a sepa-
required to submit pursuant to treaty rate Part B report specific to the Maputo
obligations and where necessary, express Protocol, Malawi became the first and,
its opinions on the subject matter but
always with due regard to its status as an to date, the only country to report sepa-
independent national institution; to rately, as required by article 26 of the
cooperate with agencies of the United Maputo Protocol, on progress towards
Nations, the Organization of African meeting the obligations in the Maputo
Unity, the Commonwealth and other Protocol. The report covers the period
multilateral or regional institutions and
national institutions of other countries from 1992 to 2013. The report did not
which are competent in area of protection state any reason for the delay in submit-
and promotion of human rights.46 ting a periodic report before 2013. Mala-
wi’s Minister of Justice and a host of

46 See secs 129 to 131 of the Malawi 1994

Constitution. See also Malawi Human 47 Malawi Human Rights Commission ‘14th
Rights Commission ‘About Us’ http://www. Annual Report of the Malawi Human Rights
hrcmalawi.org/about.html (accessed 3 Nov- Commission’ (2013) http://www.hrcmalawi.
ember 2015). org/2013ar.pdf (accessed 5 September 2015).
160 Malawi

other officials including women led the African Commission in Malawi.

delegation that presented the report. Malawians also face significant barriers
in accessing justice ‒ even locally. This
Part A of the report, which is on could also account for the low level of
compliance with the African Charter, engagement with the communication
‘was prepared by a National Task Force procedure of the African Commission.
chaired by the Ministry of Justice and
Constitutional Affairs’.48 Part B that However, in Communication 64/
reports on compliance with the Maputo 92-68/92-78/92_8AR Krishna Achuthan
Protocol was prepared while ‘Malawi (on behalf of Aleke Banda), Amnesty Inter-
prepared her report under the Conven- national (on behalf of Orton and Vera Chir-
tion on the Elimination of all forms of wa), Amnesty International (on behalf of
Discrimination against Women Orton and Vera Chirwa) v Malawi, the
(CEDAW)’.49 The composition of the African Commission reached a decision
National Task Force, which prepared on the merits and declared the State of
the report, includes members from Malawi in violation of articles 4, 5, 6
several government ministries and para- and 7 of the African Charter.51 Vera
statals as well as representatives of civil Chirwa received compensation from the
society. The report states as follows: government. The government also
amended its legislation to outlaw Tradi-
The Report was prepared by a National tional Courts such as the Southern
Task Force chaired by the Ministry of Jus-
Region Traditional Court that tried Vera
tice and Constitutional Affairs. Members
of the Task Force included, Ministry of and Orton Chirwa.52 In Communica-
Foreign Affairs, Office of the President and tion 64/92-68/92-78/92_7AR Krishna
Cabinet, Ministry of Finance, Ministry of Achuthan (on behalf of Aleke Banda),
Information, Ministry of Education, Min- Amnesty International (on behalf of Orton
istry of Lands, Ministry of Internal Secu-
and Vera Chirwa), Amnesty International
rity, the National Assembly, the Judiciary,
the Law Commission, the Human Rights (on behalf of Orton and Vera Chirwa) v
Commission, the Ombudsman, Malawi Malawi, the African Commission not
Police Service, Malawi Prison Service, the only found that there were violations of
Anti-Corruption Bureau and National Sta- the provisions of the African Charter, it
tistics Office. Civil Society organizations
further referred the matter to the Assem-
were also represented on the Task Force by
the Human Rights Consultative Commit- bly of Heads of states and governments,
tee, and the Public Affairs Committee.50 in line with its power under article 58 of
the African Charter.53
11 Communications

Malawi is one of the state parties to the

African Charter that has not had many
51 See generally ‘Merits’ http://case law.
complaints submitted against it by indi- ihrda.org/doc/64.92-68.92-78.92_8ar/view/
viduals and NGOs. This reflects the en/#merits (accessed 7 September 2015).
52 L Louw ‘An analysis of state compliance
generally low level of awareness about with the recommendations of the African
the communication procedure of the Commission on Human and Peoples’ Rights’
unpublished LLD thesis, University of
Pretoria, 2009 26.
53 See generally ‘Final decision’ http://case
48 Malawi’s initial and combined periodic state law.ihrda.org/doc/64.92-68.92-78.92_7ar/
report (n 10 above). view/en/#holding (accessed 6 December
49 As above. 2015); http://caselaw.ihrda.org/doc/64.92-
50 Malawi’s initial and combined periodic state 68.92-78.92_7ar/ (accessed 7 September
report (n 10 above) 2. 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 161

Available records further show that [P]romote the African Charter and to
a few other communications against exchange views and information on the
implementation of the African Charter by
Malawi were declared inadmissible.54
the Republic of Malawi. Furthermore, the
These include Communication 42/90 Mission was intended to raise awareness
International PEN v Malawi and Commu- and visibility of the African Commission
nication 19/88 International PEN v Mala- and its functions among the relevant
wi and three Others.55 government departments and institutions
and in the civil society, and generally to
encourage a closer relationship between
12 Promotional visits the African Commission and the
government and between the African
Dr Vera Mlangazuwa Chirwa, then the Commission and civil society in Malawi.57
African Commission’s Special Rappor-
The delegation met with members of
teur on Prisons and Conditions of
key democratic institutions across the
Detention in Africa, carried out a
country including the dean of the only
Mission on Prisons and Conditions of
accredited law school at the University
Detention in Malawi in 2001. Dr Chir-
of Malawi in Zomba. The delegation
wa and her team visited places of deten-
noted that:
tion in Malawi from 17 to 28 June
2001.56 The objective of the visit was to The efforts that Malawi is making in
assess and document the conditions of fighting corruption and all the steps in the
detention in Malawi. This visit is a direction of realising for its people, the
particularly poetic one since Dr Chirwa rights enshrined in the African Charter on
Human and Peoples’ Rights. The
spent 12 years as a political prisoner democratic space created by the
under HKB. On Christmas Eve 1981, introduction of multiparty politics, the
she and her husband were arrested and creation of institutions of good governance
charged with attempting to overthrow such as the Malawi Human Rights
the government. The Chirwas were Commission, the Anti-Corruption Bureau,
the Malawi Electoral Commission and a
sentenced to death in 1984 and she free and vibrant press are all pointers in the
remained in prison until 24 January right direction and the government should
1993 when the country was caught up in be encouraged to strengthen these
the political transition to multiparty institutions.58
democracy and HKB ordered her
release on humanitarian grounds. 13 Factors that may impede or
enhance the impact of the
A promotional visit of the African African Charter, Maputo
Commission to Malawi was conducted Protocol and African
on 7 April 2008. The purpose of the Commission
Mission was to
As noted above, Dr Vera Chirwa was a
member of the African Commission
54 See ‘Malawi’ http://caselaw.ihrda.org/ (November 1999-November 2005) and
country/malawi/ (accessed on 7 September
2015). formerly Special Rapporteur on Prisons
55 As above.
56 African Commission on Human and
Peoples’ Rights ‘Malawi: Missions on 57 African Commission on Human and
Prisons and Conditions of Detention, 2001: Peoples’ Rights ‘Press Release on the
Prisons in Malawi’ http://www.achpr.org/ Promotional Mission to Malawi’ http://
files/sessions/30th/mission-reports/Malawi www.achpr.org/press/2008/04/d59/
/achpr30_misrep_specmec_priso_malawi_ (accessed 3 November 2015).
2001_eng.pdf (accessed 9 September 2015). 58 As above.
162 Malawi

and Conditions of Detention in Africa. ested and wanted to help was that whilst
She occupies a powerful space in Mala- they were aware of both instruments,
wi's history, particularly as a woman ‒ they simply did not know enough about
she is the first female lawyer in Malawi. the African Charter or the Maputo
She was instrumental in Malawi’s inde- Protocol to feel comfortable about
pendence story; and she was imprisoned answering the questions.60
for fighting for democracy. She estab-
lished one of the oldest gender justice All but one of the respondents was
organisations in the country ‒ Malawi college educated; 11 identified as
Centre for Advice, Research and Educa- female, and four as male. Four of the
tion on Rights (Malawi CARER) and respondents had never seen any infor-
she wrote a book about her incredible mation about either the African Charter
life. Dr Chirwa continues to be celebrat- or the Maputo Protocol. Most notably,
ed as a freedom fighter and an ardent the majority of the respondents felt that
advocate of gender equality. It is almost the African Charter and the Maputo
impossible to quantify the role that Dr Protocol have had little to no impact in
Chirwa’s presence on the African Malawi. Several respondents cited the
Commission has played on the impact prevailing context of gender inequalities
of the African Charter in Malawi. That as an obstacle to the implementation of
being said, she is very present in the both the African Charter and the Mapu-
memory and imagination of the coun- to Protocol. Respondents also pointed
try. She fought the tyrannies of colonial- out that there was a general and wide-
ism and dictatorship ‒ political systems spread lack of awareness amongst
that tread upon the freedoms embodied Malawians:
in the African Charter and the Maputo
[T]he conventions are impeded by a lack of
Protocol.
publicity and general public awareness.
More awareness would enable people to
The authors conducted an anony- know their rights and demand them. The
mous self-administered survey with a impact of the conventions are enhanced by
cross-section of Malawians to gauge a willingness on the part of judges and law
their awareness and impressions of the makers to accept and apply the provisions
of the charter. It is also enhanced by the
African Charter and the Maputo Proto-
emergence of prominent women in
col. The electronic survey was widely organizations such as the AU, whose
disseminated online through a web link presence generally bring issues of equality
posted on social media and targeted to the fore of conversations on rights.61
individual emails sent to networks. The
Facebook metrics show that the survey The results of the survey, even the
reached 19 231 people in Malawi and general unwillingness of people to
that 128 people followed the link.59 engage with the questions, lend support
After three weeks, only 15 people to a position that the authors hold: that
completed the survey. Personal commu- the existence and impact of these instru-
nications from people who were inter- ments is predominantly evident to those
who work on social justice issues.
Whilst most provisions have been given
59 The surveymonkey.com link was publicised legal effect through the Constitution,
through targeted Facebook advertising. The
parameters were that the audience may: be of legislation and policies, their effect on
any sex; be in Malawi; be aged over 18; and
that they are interested in the African Union,
human rights and a long list of directly 60 The survey had ten questions.
related topics. 61 Respondent #10 (2 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 163

people’s lived realities is still mythical.

The barriers and challenges that the
majority of Malawians face in accessing
justice keep the promises of the African
Charter and the Maputo Protocol
beyond reach.

The authors believe that there is

hope though. The enduring human
rights challenges across Malawi exist
within a very particular context: a coun-
try that is generally free and a populace
that jealously guards its political free-
dom; the shifting demographics of
Malawi; the borderless ‘digiverse’ where
information that matters must be 140
characters or less; and the widespread
connectivity of all Malawians – rural
and urban – via mobile phones and
particularly social media applications
such as Facebook, WhatsApp and Twit-
ter. The authors suggest that the coinci-
dence of these social realities can
radically shift the way that the region is
connected and regional agreements like
the African Charter and the Maputo
Protocol are consumed. Perhaps one
day soon the #AfricanCharter and
#MaputoProtocol will be trending.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
MAURITIUS

Meskerem Geset Techane*

Roopanand Mahadew**

1 Introduction model,4 was adopted upon independ-

ence. Despite a number of amendments,
After a long period of French and Brit- the 1968 Constitution has subsisted over
ish colonial rule respectively, Mauritius the years and the fundamentals have
attained its independence in 1968 while remained unchanged since independ-
the British Monarchial regime under the ence, with the exception of a 1992
Queen of England was maintained. A major amendment establishing the
Republic was established in 1992. The Republic, which revoked the British
Republic of Mauritius is a parliamentary monarchial regime. Having evolved
multi-party democracy with the Presi- under both colonial systems, the legal
dent as the head of the state and the system of Mauritius manifests a cross-
Prime Minister as the Head of Govern- breed of laws with French and British
ment.1 The National Assembly is a origin.5 Substantial laws concerning
unicameral legislative body encompass- society were of French inspiration while
ing members democratically elected the procedure and court systems that
every five years.2 applied those laws are based on the
English legal system, thus illuminating
The supreme law of the land,3 the the hybrid nature of Mauritian law.6
first written and comprehensive Consti-
tution based on the Westminster Mauritius has entrenched a justi-
ciable Bill of Rights under Chapter II of
the Constitution in terms of which all
the fundamental rights and freedoms of
* LLM HRDA (Pretoria); doctoral candidate, individuals, which derive substantial
Human Rights Center, University of Padova; inspiration from the European Conven-
and formerly Deputy Executive Director of
the Institute for Human Rights and tion of Human Rights (ECHR), have
Development in Africa (IHRDA).
** LLM HRDA (Pretoria); doctoral candidate,
Faculty of Law, University of Western Cape;
full time academic at the Department of Law, 4 PR Domingue ‘Legal method and Mauritian
University of Mauritius; and former legal legal systems’ unpublished paper, University
researcher with the African Committee of of Mauritius, 2011 34.
Experts on the Rights and Welfare of the 5 Domingue (n 4 above).
Child. 6 V Glover ‘Legislative drafting in Mauritius:
1 See secs 28, 59 & 61 of the Constitution of A developing discipline’ (2011) 21 http://
the Republic of Mauritius (the Constitution). www.opc.gov.au/calc/docs/Loophole_pape
2 Sec 31 of the Constitution. rs/Glover_Aug2011.pdf (accessed 8 August
3 Sec 2 of the Constitution. 2015).

165
166 Mauritius

been inscribed.7 Courts are bestowed is also acclaimed for its democratic insti-
with the mandate to interpret and tutions and independent judiciary.13
enforce provisions of the Constitution Elections are generally free and fair,14
and constitutional questions of a and security forces are under the
substantial nature are to be settled by command of the authority rendering the
the Supreme Court, the highest judicial country politically stable and peaceful.15
authority in the country,8 save for the
constitutional right of appeal to the Nevertheless, such a noteworthy
Privy Council of the United Kingdom.9 record is not without flaws. Arbitrary
The broader legal system in Mauritius arrests and detention, abuse of suspects
also embodies an array of other laws for and detainees by the police force and
the protection and enforcement of breach of fair trial safeguards are
fundamental rights and freedoms. amongst prevalent cases in Mauritius. It
Mauritius is a party to notable inter- is reported that police have been detain-
national human rights instruments and ing people on mere suspicion and that
reports to and cooperates with treaty many high profile cases have been
bodies.10 Encompassing other reporting submitted for prosecution based on
obligations under international treaties, erratic confessions.16 Those confessions
Mauritius has successfully fulfilled its have, in some cases, been attained by
submission for both the African Peer way of violence and duress resulting, for
Review Mechanism (APRM) and the instance, in the unfortunate deaths of
Universal Periodic Review (UPR).11 It some detainees.17 Despite relatively
was highlighted by the APRM Panel improved conditions of detention, the
that Mauritius has made laudable efforts problem of drug abuse in Mauritius'
in the areas of health, education, corpo- prisons still loiters as a crucial cause for
rate and social governance.12 Mauritius concern. Recent visits by local stake-
holders such as the press, the Mauritian
National Human Rights Commission
(NHRC) as well as the United Nations
Office of Drugs and Crime have gener-
ally ruled out prison conditions as being
7 Sec 17 of the Constitution provides remedy
by the Supreme Court where any individual
alleges infringement of her/his rights
enshrined in the Bill of Rights.
8 Sec 84 of the Constitution.
9 Sec 81 of the Constitution.
10 Mauritius ratified the ICCPR, ICESCR,
CERD, CEDAW, CAT, CRC, ACRWC
(1992), ACHPR (1998) and the African 13 See R Kasenally ‘Chapter 8: Mauritius’ in
Court’s Protocol (2003). See Ministry of D Kadima & S Booysen (eds) Compendium of
Foreign Affairs ‘List of treaties and Elections in Southern Africa 1989-2009 (2009).
conventions’ http://foreign.govmu.org/Eng 14 M Singh ‘Election and democracy: Lessons
lish/conventons/Pages/List-of-Conventions- to be learnt from Mauritius’ (2012) 1 https:/
and-Treaties.aspx (accessed 3 September /www.academia.edu/7792959/Election_an
2015). d_Democracy_Lessons_to_be_learnt_from_
11 See African Peer Review Mechanism Country Mauritius_A_reporton_the_backdrop_of_ve
Review Report No 13 (2010) http://www. x at i ou s_e lect io n _of_M an i pu r_In di a_
aprm-au.org/admin/pdfFiles/CRR_No13- (accessed 8 August 2015).
Mauritius_EN.pdf (accessed 23 August 15 As above.
2015); see UPR Info http:www.upr-info.org 16 US Department of State ‘Country report on
(accessed 20 September 2011). human practices for 2014’ (2014) 6 http://
12 See ‘African Union Peer Review Report photos.state.gov/libraries/mauritius/882940
lauds Mauritius for best practices’ Africa /hrr_2015/mauritius_2014_human_rights_
Money http://africamoney.info/african-uni report.pdf (accessed 8 August 2015).
on-peer-review-report-lauds-mauritius-for- 17 ‘The very controversial Mr Raddhooa’
best-practices/ (accessed 18 August 2015). lexpress 24 January 2006 8.
 Impact of the African Charter and the Maputo Protocol in selected African states 167

decent.18 Freedom of the press is also children.23 The issue of rape has
not fully implemented or respected, become another subject of serious
especially by political leaders.19 The concern. Despite criminal laws which
country has also recently been struck by criminalise rape with stiff sentences,24 it
some corruption cases, such as the Brit- is contended that rape is rampant but
ish American Insurance Scandal and the not always reported to the police for fear
corruption cases involving the former of social stigmatisation.25 It must be
Prime Minister.20 There are rampant noted however that spousal rape is yet
cases of violence and discrimination to be criminalised. The Protection from
against women, sexual abuse of children Domestic Violence Act of 1997 provides
and discrimination against people living for various protective measures, despite
with HIV/AIDS.21 The Ministry of alleged ineffective implementation of
Gender, Child Development and Fami- them.26 On the progressive side, Mauri-
ly Planning (Ministry of Gender) in tius has recently legalised abortion in
Mauritius reported that women and specific circumstances (such as rape,
children in the country continue to be incest, and danger to the life of the baby
vulnerable to violations and underlined, or the mother).27
in particular, that the frequency of
domestic violence is disquieting.22 The There is no defined structure or
African Commission has also echoed government institution or office respon-
concern over the pervasiveness of sible for coordinating Mauritius’
violence against, and discrimination of, responses and reporting obligations to
international human rights bodies. The
Attorney General’s office, the National
18 United Nations Office of Drugs and Crimes Human Rights Commission (NHRC)
‘Counter piracy programme: Support to the and relevant ministries will normally
trial and related treatment of piracy suspects’
(2013) 6 https://www.unodc.org/documents contribute. For instance, the Attorney
/easternafrica/piracy/UNODC_Brochure_ General’s office has a division called
Issue_11_wv.pdf (accessed 8 August 2015).
19 For example, the popular case of Nitin Chin- International Affairs and Mutual Legal
ien, a journalist from the Mauritius Broad- Assistance Division which provides
casting Corporation was arrested and
accused of violating the Information and legal advice to the government and its
Technologies Authority Act and threatening agencies on all aspects relating to inter-
the former Prime Minister Navin Ram-
goolam until the Director of Public Prosecu- national law. There is also the Multilat-
tions dropped all the charges against him due
to a lack of evidence. See ‘Nitin Chinien
appears in court: His lawyer “not informed”’
Business Mega (2013) http://business. 23 African Commission’s Concluding Obser-
mega.mu/2013/11/21/nitin-chinien-appear- vations and Recommendations on the 2nd,
court-his-lawyer-not-informed/ (accessed 3rd, 4th and 5th periodic reports of the
8 August 2015). Republic of Mauritius (Concluding
20 ‘Changing fortunes of Mauritius’ ousted Observations) (2009), para 43 & 46 http://
leaders’ Aljazeera 17 March 2015 http:// www.achpr.org (assessed 15 August 2011).
www.aljazeera.com/indepth/features/2015 24 A term of imprisonment up to 20 years and a
/03/changing-fortunes-mauritius-ousted-lea fine not exceeding MUR 200,000 (Criminal
ders-150309095143234.html (accessed Code, art 249).
8 August 2015). 25 K Kinnear Women in developing countries: A
21 US Department of State (n 16 above) 4. reference handbook (2011) 210.
22 See ‘A study of the extent, nature and costs 26 Such as the Protection Order, the
of domestic violence in Mauritian economy’ Occupation Order and the Tenancy Order.
(2010) & ‘A situational analysis of women Section 8 of the Act also provides for a fine
and children in the Republic of Mauritius’ which is double upon a second conviction
(2003) in MG Techane ‘Where is the African under the Act.
Charter? Assessing the impact of the African 27 RA Mahadew ‘Mauritius decriminalizes
Charter on Human and Peoples’ Rights in abortion in certain circumstances – Lessons
Mauritius’ unpublished LLM dissertation, from the travaux preparatoires’ (2015) 36
University of Pretoria, 2011 20. Statute Law Review 160.
168 Mauritius

eral Political Directorate of the Ministry consultation with the Attorney Gener-
of Foreign Affairs which is responsible al’s Office and other stakeholders. The
for bilateral and multilateral discussions Attorney General’s Office then carries
and negotiations with international out a compatibility review whereby the
governmental organisations on a range implications of the specific treaty will be
of issues including human rights. Final- assessed in the light of domestic poli-
ly, the Human Rights Unit under the cies, laws, and Mauritius’ international
Prime Minister’s Office is charged by obligations.30 The Cabinet will thor-
Cabinet with inter-ministerial monitor- oughly deliberate upon the request and
ing and coordination of human rights may pass it to Parliament for approv-
related activities, which by default al.31 Once the request for ratification is
include preparation of periodic reports endorsed by Parliament, the Ministry of
under international treaties.28 Foreign Affairs will deposit the instru-
ment of ratification with the relevant
2 Ratification of the African international body.32
Charter and the Maputo
A study conducted in 2011 attempt-
Protocol
ed to explore the ratification history of
the African Charter but had little
The African Charter was signed by
success in accessing p r i m a r y s o u r c -
Mauritius on 27 February 1992 and rati-
e s . 33 In spite of such impedi-
fied on 19 June 1992. Mauritius signed
ments, government officials share a
the Maputo Protocol on 29 January
firm opinion that ratification of the Afri-
2005. However, more than ten years
can Charter was galvanised by the senti-
after becoming a signatory, Mauritius
ment to reinforce the state’s
has still not ratified the Protocol.
commitment to human rights, bearing
Ratification of international instru- in mind that Mauritius already had in
ments in Mauritius is the responsibility place a democratic Constitution that
of the executive and Parliament. This fully recognises several fundamental
study found no specific laws or regula- rights and freedoms. 34
tions in place that clearly define the
Reports show that ratification of the
roles and responsibilities of these two
Maputo Protocol is underway, 35
organs of government in the ratification
though it is difficult to note any tangi-
process. International instruments can
ble progress on ratification over the
only have significance in Mauritius if
they are endorsed by Parliament upon
the request of relevant ministries.29 30 Interview with G Chitto, Principal State
Accordingly, initial considerations are Counsel, Attorney General’s Office,
18 August 2015.
made by the concerned ministry in 31 See interview with Cader (n 28 above).
32 Interviews with NP Ponnisamy, Second
Secretary, Ministry of Foreign Affairs,
28 A Cabinet decision adopted in 2008. See 18 August 2015.
interview with BR Cader, Acting Principal 33 MG Techane ‘The impact of the African
Assistant, Prime Minister’s Office, Charter and the Women’s Protocol in
5 September 2011, cited in Techane (n 22 Mauritius’ in The Impact of the African Charter
above) 45. and the Women’s Protocol in selected African
29 Multilateral Political Directorate of the states (2012) 92.
Ministry of Foreign Affairs http://foreign. 34 Interviews (n 30 & 32 above).
govmu.org/English/AboutUs/foreign/Pag 35 See Mauritius Country Report on the AU
es/Multilateral-Political-Directorate-(Multil Solemn Declaration on Gender Equality in
ateral-Organisations).aspx (accessed Africa, Comment 9: Implementation of the
18 August 2015). Solemn Declaration on Gender Equality In
 Impact of the African Charter and the Maputo Protocol in selected African states 169

years. Notwithstanding assertions from 3 Domestication of the African

government authorities as to the Charter and the Maputo
absence of any obstacles to ratifica- Protocol
tion, 36 the long delay begs critical
questions. The African Commission The Constitution i s s i l e n t o n the
has also highlighted its concern that status of international treaties signed
Mauritius has still not ratified the and ratified by the government, except
Maputo Protocol. 37 Yet, the question by providing for the supremacy of the
of ratification has not been tabled Constitution, with the effect that any
before cabinet. inconsistent law shall be null and
void.40 It logically follows that the
Mauritius could presumably be
provisions of the African Charter and
playing the card of ‘compliance without
the Maputo Protocol are applicable only
ratification rather than ratification with-
to the extent that they are consistent
out compliance’.38 As a state party to
with the Constitution.41
CEDAW, Mauritius arguably does
provide for a decent and internationally The African Charter has not been
acceptable set of legal rights and protec- incorporated into the domestic laws of
tion to women, thus breeding a tenden- Mauritius either by explicit embodi-
cy of reluctance towards ratifying the ment in the Constitution or by an Act of
Maputo Protocol. No doubt, such a Parliament. As is the norm in any dual-
stand is against empirical evidence ist state,42 international human rights
showing that ratification of legal instru- treaties are not enforceable by national
ments breeds more positive effects on courts in Mauritius unless incorporated
human rights.39 into domestic law.43

The civil and political rights

enshrined in the Constitution to a large
extent tally with the African Charter
provisions notwithstanding a few omis-
sions or deviations. On the contrary, the
35 Africa: First report by all AU member states particular norms of the Maputo Proto-
for consideration at the January 2007
summit to be held in Addis Ababa, Ethiopia
http://www.africaunion.org/root/au/confer 40 Sec 2 of the Constitution.
ences/past/2006/October/WG/doc.htm 41 M Killander & H Adjolohoun ‘International
(accessed 4 September 2011). See also law and domestic human rights litigation in
NHRC Report (2006) para 189 in Techane Africa: An Introduction’ in M Killander (ed)
(n 33 above) 93. International law and domestic human rights
36 Interviews with senior officials of the litigation in Africa (2010) 14.
Ministry of Gender, i n Techane (n 33 above) 42 The dualist theory provides that
93. It was also reported that the Attorney international law and domestic law are
General’s Office advised the absence of separate legal systems; thus, international
any impeding legal considerations to norms require a process of incorporation to
ratify the Maputo Protocol (See Mauritius form part of domestic law and have a force of
Country Report n 35 above). law municipally. See G Gaja ‘Dualism – A
37 African Commission’s Concluding Observa- review’ in J Nijman & A Nollkaemper New
tions (n 23 above) para 47. perspectives on the divide between national &
38 Resonates the position of the United States international law (2007) 52 cited in Killander
when it comes to the ratification of the (n 41 above) 11; see also F Viljoen
CEDAW; see W Schulz The future of human International human rights law in Africa (2007)
rights: The US Policy for a new era (2008) 109. 535-536 & J Dugard International law: A
39 OHCHR ‘International Human Rights South African perspective (2005) 61.
Laws’ http://www.ohchr.org/EN/Profes 43 R Lallah ‘The domestic application of
sionalInterest/Pages/InternationalLaw.aspx international human rights norms’ (1988) 2
(accessed 8 August 2015). Mauritius Law Review 216.
170 Mauritius

col are generally absent in the Constitu- respectively, the Bill of Rights falls short
tion. Though the relevance of the of expressly recognising the right to
existing positive ordinary laws cannot integrity and security of the person as
be dismissed,44 Mauritius’ commitment an autonomous right. Most critical is
under the African Charter to ensure the that judicially sanctioned punishments
elimination of all forms of discrimina- for criminal offence constitute justified
tion against women and to confer exceptions to the protection of the right
special protection to women and chil- to life.49 The African Commission
dren is not constitutionally rooted. This recommended amendment of the provi-
may be inconsistent with the African sions of the Constitution that license the
Charter.45 death penalty;50 though this recommen-
dation has not been complied with so
Despite the entrenchment of the far. Despite outlawing torture, inhu-
principles of equality and non-discrimi- mane and degrading punishment and
nation in sections 3 and 16 of the treatment, the Bill of Rights provides
Constitution, the grounds for discrimi- dangerous exceptions in cases of
nation are provided exhaustively and punishment authorised by law, contrary
Mauritian courts have also attached to the absolute protection under the
strict adherence to these grounds.46 African Charter. Except for the implicit
However, the Equal Opportunities Act element of dignity in relation to the
(2008) has expanded the grounds of prohibition of degrading treatment and
non-discrimination, by adding two new punishment, the right to dignity is also
grounds, namely sexual orientation and blatantly absent from the Constitution
impairment. Further, section 16 of the as a self-standing right.
Constitution, which deals with the
right to non-discrimination, does not The right to the recognition of one’s
cover laws concerning foreigners and legal status, a very important right
personal status which may license expressly provided for both in the Afri-
personal status laws that discriminate can Charter and the Maputo Protocol, is
women and children in contradiction to not protected under the Constitution of
the Maputo Protocol.47 This limitation Mauritius.51 The Bill of Rights also has
to section 16 may also justify the lack of no provisions conforming with article
adequate protection for migrant workers 13 of the African Charter on the right
as well as the absence of law on granting to participate in government, and the
asylum or refugee status.48 right of equal access to public property
and service. It is noted that the sections
While guaranteeing the rights to life of the Constitution dealing with the
and liberty under sections 4 and 5 election of members of the National
Assembly provide for the rights to be
44 For example, the Equal Opportunities Act 42
elected and to vote,52 confining political
of 2008. participation to the National Assembly
45 Techane (n 22 above) 20. which is a rather restrictive scope of
46 See for example Jeekahrajee v Registrar Co-
operatives (1978) MR 215 and Société United political participation.
Docks v government of Mauritius (1976) MR 81.
47 This is contrary to arts 6, 7 and 21 of the
Maputo Protocol which provides states’ duty to 49 See sec 4(1) of the Constitution.
ensure the equality and non- discrimination 50 See Concluding Observations (n 23 above)
of women in marriage, separation, divorce para 59.
and annulment of marriage and inheritance. 51 See arts 5 and 3 of the African Charter and
48 See Concluding Observations (n 23 above) the Maputo Protocol respectively.
para 40-41. 52 See sec 33 and 44 of the Constitution.
 Impact of the African Charter and the Maputo Protocol in selected African states 171

The economic, social and cultural During the examination of periodic

rights guaranteed in the African Charter reports to the United Nations Commit-
have not been enshrined under the tee on Economic, Social and Cultural
Constitution of Mauritius. A range of Rights (CESCR), however, Mauritius
fundamental rights, such as the rights to was questioned as to when it intends to
work, health, education, family and enshrine socio-economic rights in its
culture, amongst others, do not enjoy Constitution.55 Irrespective of such a
any constitutional protection.In addi- legislative framework, socio-economic
tion to the exclusion of the rights of rights should be guaranteed as justicia-
women and children, the aged and the ble constitutional rights, rather than
disabled are not given special constitu- legislative prerogatives, as required by
tional protection. Such critical omis- the African Charter.
sion is attributable to the Bill of
Rights’ background of direct inspiration The distinct and intrinsic compo-
by the ECHR which does not have nent of the African Charter, ‘peoples’
comparable provisions dealing with rights’, 56 are not recognised in the
socio-economic and cultural rights. Mauritian Bill of Rights. Without over-
This fact notwithstanding, ratification emphasising the significance of the prin-
of the African Charter should have ciple of ‘equality of all peoples’ to the
stimulated constitutional amendments multi-cultural society of Mauritius,
towards incorporation of justiciable the African Charter also emphasises the
socio-economic rights. essentiality of the right to development;
the right to economic, social and cultur-
It is worth mentioning that there is al development and the right to a satis-
existing domestic legislation that factory environment, amongst others.
provides legal protection for socio- These rights are very important to the
economic rights.53 This legislation, Mauritian population and should be
coupled with Mauritius’ welfare state incorporated into the Constitution.
system, may simply imply that there is
ample protection of socio-economic and 4 Legislative and policy reforms
cultural rights and in effect, explain the
lack of enthusiasm towards entrenching A number of new laws and legal
them as constitutional guarantees.54 reforms, including several constitutional

53 For example, (a) on the right to work:

Employment Rights Act 33 of 2008, the
Equal Opportunities Act 42 of 2008,
Occupational Health and Safety Act 28 of 54 incorporation of socio-economic rights in the
2005, Training and Employment of Disabled Bill of Rights; yet to be considered by the
Persons Act 9 of 1996, National Pensions government. See Techane (n 33 above) 93.
Act 44 of 1976; (b) on the right to health: 55 See CESCR ‘Examination of the second,
Public Health Act Cap 277 of 1925, Public third and fourth periodic reports’ (2010) 44th
Health Amendment Bill 30 of 2006, the HIV Session of the CESCR (7 May 2010) http://
and AIDS Act 31 of 2006; National Council tbinternet.ohchr.org/Treaties/CESCR/Shar
for the Rehabilitation of Disabled Act 37 of ed%20Documents/MUS/INT_CESCR_ST
1986; (c) on the right to education: The A_MUS_44_11146E.pdf (accessed
Education Act (RL2/6031957) & The 23 August 2015).
Education (Amendment) Act 33 of 1977; 56 Arts19-24 cover a range of peoples’ rights
(d) on social welfare: Social Aid Act 2 of including the right to development, the right
1983. to existence, to self-determination, to freely
54 It should be noted that the Law Reform dispose of their wealth and natural resources,
Commission (LRC) and National Human the right to national and international peace
Rights Commission (NHRC) eventually and security, and the right to a general
submitted recommendations for the satisfactory environment.
172 Mauritius

amendments,57 have come into effect in jurisdictions.61 Similarly, LRC’s

Mauritius since ratification of the Afri- proposed reforms on criminal law as
can Charter. A few examples include well as property rights have not inte-
the Protection from Domestic Violence grated relevant provisions of the African
Act (amendments) (2004, 2007, Charter or instruments of the African
2011), Equal Opportunities Act Commission.62
(2012), Combating of Trafficking in
Persons Act (2009), Revision of the Notwithstanding the African
Civil Code (2011), and the Criminal Commission’s resolution63 that urges
Code Amendment (2012). Notwith- states to take steps for the integration of
standing that the adoption or revision of provisions of the African Charter in
these laws derived inspiration from rele- their national laws, there is not much
vant international human rights instru- deliberate effort shown by Mauritius to
ments, none has shown a clear influence accomplish this.
of the African Charter or the Maputo
Protocol.58 There is hardly any evidence show-
ing that the African Charter and the
Compatibility reviews are Maputo Protocol have influenced the
commonly conducted by the Attorney formulation or reform of specific poli-
General’s Office when a new bill is cies in Mauritius. The Gender Policy
proposed, with the view to verify a bill's (2008) refers to the Maputo Protocol as
conformity with the Constitution, inter- one of the guiding principles of the poli-
national treaties, domestic laws and cy framework, though CEDAW is
Concluding Observations of treaty given a position of primacy as the
bodies.59 The African Charter and the main instrument that inspired the poli-
Concluding Observations of the African cy.64 This may be plausible considering
Commission, amongst others, reportedly the fact that the Maputo Protocol is not
constitute imperative considerations in yet ratified. The National Human
such reviews. Rights Action Plan (NHRAP 2008)
makes no reference to the African Char-
The Law Reform Commission ter or the Maputo Protocol. None of the
(LRC) is seen to only make use of legal programmes in the NHRAP, including
instruments from the United Nations or its recent revision, incorporated specific
the European regional system and none components for the promotion and
from the African system.60 For exam- implementation of the African Charter
ple, constitutional amendments seeking
to include socio-economic rights in the
Bill of Rights proposed by the LRC 61 The LRC proposal derived major inspiration
from the Constitution of South Africa, and
were not inspired by the African Charter the Draft 2006 Constitution of Trinidad and
but by international treaties from other Tobago. See LRC Issue Paper (2010)4-5;
Techane (n 22 above) 29.
62 See LRC ‘Issue Paper – Droit des biens’
http://lrc.govmu.org/English/Documents/
Reports%20and%20Papers/34%20reform-
codes.pdf (accessed 3 September 2015).
63 African Commission Resolution on the
57 For example, secs 5(3), 8,10 & 16 of the Integration of the Provisions of the African
Constitution. Charter on Human and Peoples’ Rights into
58 Techane (n 22 above) 28. National laws (1989).
59 Interview with Chitto (n 30 above). 64 See National Gender Policy Framework
60 L RC o f Activity Reports (1997-2011); (2008). It is noted that the Maputo Protocol
Issue Papers & Newsletters (2007-20011) is merely listed amongst other several
reviewed in Techane (n 22 above) 29. relevant documents.
 Impact of the African Charter and the Maputo Protocol in selected African states 173

or the Maputo Protocol. The same can Previous studies based on a system-
be asserted concerning the National atic review of judgments delivered after
Action Plan to End Gender-Based ratification of the African Charter,
Violence (2012-2015), that is currently corroborated with personal statements
being implemented, and the National from judges, counsel as well as court
Action Plan on Family, that was imple- officers69 suggest that interpretive guid-
mented in 2015, and the National ance is taken mainly from French legal
Action Plan to Combat Domestic doctrines and English case-law. The
Violence, as inspired by CEDAW, ECHR and case law of the Euro-
which also resulted in the creation of the pean Court stands as the most
Victim Empowerment and Abuser frequently referenced human rights trea-
Rehabilitation Policy.65 ty a n d h u m a n r i g h t s c a s e l a w . In
the same vein, it is common to come
5 Court judgments across cases that make similar reference
either directly or by reference to the
International law may enjoy judicial Privy Council’s decisions which are also
application in domestic courts either by highly influenced by the European
way of direct enforcement or reference Court’s jurisprudence.70 Some deci-
as an interpretive guide.66 The question sions have also made reference to the
of direct application will not have much International Covenant on Civil and
relevance to the dualist legal system of Political Rights in interpreting constitu-
Mauritius.67 There is no express provi- tional provisions.71 However, none
sion in the Constitution empowering were found that referred to the African
national courts to use international Charter, case law of the African
human rights instruments as interpretive Commission or any instruments from
guides. Likewise, the Mauritian rule of the African human rights system.
interpretations does not provide for any Resulting from the close rela-
canon to use international law as an aid t i o n s h i p between the Constitution
to interpretation of national law.68 In and the European Convention, a large
the absence of any constitutional or body of case-law from the European
legislative imperative, courts are left to Court is incorporated into domestic
their own discretion to apply the Afri- jurisprudence. Thus, judges are simply
can Charter and/or Maputo Protocol as
an aid to interpretation.
69 See Techane (n 22 above) 22 & Techane (n 33
above) 97. The review was done through the
use of an interactive online database made
available by the Supreme Court of Mauritius.
65 ‘Government Programme’ (2005-2010) in See http://supremecourt.govmu.org/scourt
Techane (n 22 above) 30; See ‘Family /home/welcome.do (accessed 6 December
Welfare and Protection Unit’ Ministry of 2015).
Gender, Child Development and Family 70 Few examples include: Dookhits S v The
Welfare http://gender.govmu.org/English/ Distric Magistrate of Pamplemousses (2011) SCJ
Pages/Units/Family-Welfare-and-Protection 101; Parayag RK v The Independent
-Unit.aspx (accessed 15 August 2015). Commission against Corruption (2011) SCJ
66 Viljoen (n 42 above) 540. 309; Bundhun VP v State (2010) SCJ 206;
67 In the Interlocutory Judgment in Ex Parte Moodoosoodun v State (2009) SCJ 413; Oozeer
Devendranath Hurnam, a Barrister-at-Law SA.S & Others v The State (2007) SCJ 307;
(2007) SCJ 289, the Supreme Court asserted State v Assame HD &Another (2001) SCJ 177.
that unratified and unincorporated treaties 71 For example, Bajan Mvthe State (2010) SCJ
are of no direct effect in Mauritian courts. 348; Devendranath Hurnam, Toolskykamalv HH
See also Techane (n 22 above) 14. The District Magistrate of Pamplemousses (2007)
68 Interpretations and General Clauses Act RL SCJ 289; Fakeemeeah Mohamed v Commissioner
3/267 of 1982. of Police and Others (2001) SCJ252.
174 Mauritius

prone to refer to those.72 By contrast, 6 Awareness and use by civil

judges confirm that they have not society
been using the African Charter or case
law of the African Commission in their The interaction between civil society in
judgments and equally have not encoun- Mauritius and the African Commission
tered any domestic court decisions or does not tally with the regional trend of
submissions from litigants that refer to NGOs’ active participation in the work
the same.73 This explains the position of the African Commission through
that the case law of the African submission of communications and
Commission is not well known to other promotional activities. This study
Mauritian judges. Such a glaring did not find any NGO in Mauritius
absence of judicial application of the which enjoys observer status or mean-
African Charter shows that Mauritian ingfully engages with the African
judges fall short of the significant role Commission. In addition to the very
highlighted by the African Commission limited number of NGOs engaged in
towards incorporating the African Char- human rights advocacy in Mauritius,
ter and the jurisprudence of the African awareness of the African Charter and
Commission in court decisions.74 the Maputo Protocol is very low among
civil society.
It may be far-fetched to expect
courts to make reference to the Maputo Despite the human rights advocacy
Protocol as an instrument given that it done by the Mauritius branch of
has not been ratified. However, one Amnesty International, before its
may stagger at the lack of any reference closure in 2012, its publications and
to the African Charter and the case-law training and awareness raising materials
of the African Commission throughout showed no reference to the African
two decades, particularly given the Charter, the Maputo Protocol or any of
Mauritian judiciary’s rich tradition of the documents of the African Commis-
reference to international and foreign sion.75 Trainings and advocacy activi-
case law and legal instruments. The ties were highly reliant on the United
authors argue that the non-domestica- Nations human rights treaties and
tion of the African Charter has contrib- former staff have admitted that the Afri-
uted to its neglect by the judiciary and can human rights system has not been
litigants. This scenario would have used properly in the work of the organi-
been quite different if the African Char- sation.76 In fact, it was only in 2011 that
ter was an integral part of domestic law. Amnesty International’s newspaper
Needless to mention, the lack of ratifica- published an article on the African
tion of the Maputo Protocol precludes Charter and that trainings on the Afri-
any significant judicial attention to it. can Charter were delivered.77

75 See Techane (n 22 above) 36.

76 Interviews with former Amnesty Mauritius
staff cited in Techane (n 22 above) 36.
72 Interviews with judges cited in Techane (n 22 77 See Techane (n 22 above) 36; ‘Les
above) 24 & Techane (n 33 above) 97; instruments Africains des droits de l’homme’
Interview with Justice SB Domah 17 August DIME Maurice 4 October 2011 34. Also, one
2015. of the authors, MG Techane, had joined the
73 As above. Amnesty training team and covered training
74 African Commission Resolution on the Role sessions on the African Charter in the
of Lawyers and Judges in the Integration of training programmes between 12 September-
the African Charter (1996). 4 October 2011.
 Impact of the African Charter and the Maputo Protocol in selected African states 175

7 Awareness and use by lawyers rights driven groups, and have not been
seen visibly engaging in local human
A close study of the practice of both rights initiatives.83 This may also
state and private lawyers shows no contribute to their invisible role in the
significant distinction in so far as far as African human rights system.
application of the African Charter and
the Maputo Protocol is concerned. The 8 Higher education and academic
African Charter is not particularly popu- writing
lar amongst lawyers in either group and
awareness in respect of the Maputo The University of Mauritius provides
Protocol is almost non-existent.78 Only human rights courses as part of the
a few state lawyers who work on state undergraduate law curriculum,84
reporting can allege notable exposure which mainly focuses on the Consti-
to the African Charter instruments.79 tution and international human rights
instruments. The cursory coverage of
The majority of litigation lawyers the African Charter in the curriculum
tend to rely, in addition to the Constitu- leaves its occasional inclusion in
tion and other relevant domestic laws, lectures to the interests of a particular
on the ECHR and the case law of the lecturer.85 However, in recent years,
European Court, most likely due to facilitated by collaborations with the
the regard attached to the ECHR as University of Pretoria, the African
the source of the Bill of Rights.80 human rights system is gaining better
There is also a relatively growing prac- attention in the University’s law
tice of referring to sources from the programmes on a regular basis.86
United Nations human rights system.81
Nevertheless, Mauritian lawyers The gradually increasing number of
confirmed that the practice of citing dissertations on topics related to the
provisions of the African Charter or African Charter and the Maputo Proto-
case law and other authoritative docu- col is also promising.87 The restricted
ments of the African Commission in interest of students to write their disser-
their submissions is almost non-exist- tations on related topics may be
ent. This can be ascribed t o t h e i r explained by the lack of proper cover-
unfamiliarity with the relevant instru-
ments and jurisprudence.82
83 Previous assessment done in 2011 did not
The Mauritius Bar Association and find any notable human rights activities
carried out or supported by the Bar
its members do not stand as human Association. See Techane (n 22 above) 27.
The situation remained the same to date. See
n 82 above.
84 The Department of Law at the University of
78 Interviews with barristers S Calliapen and Mauritius is the one and the only with a
Arvin Ramsohok (15 August 2015); see also compulsory human rights course; though the
interviews with prominent barristers: P University of Central Lancashire and
Patten & JC Bibi, September 2011, cited in University of Middlesex, two private
Techane (n 22 above) 26. universities, also provide LLB degree
79 Interviews with state lawyers from courses.
Attorney General’s Office & Office of the 85 Interviews with lecturers D Michel &
Director of Public Prosecutions cited in V Jugoo, University of Mauritius (14 August
Techane (n 33 above) 99. 2015).
80 Interviews with barristers and prosecutors (n 86 Interview with P Bissessur, Lecturer of Law,
79 & 80 above). University of Mauritius (5 August 2015).
81 Interviews (n 80 above). 87 For example, women’s rights in Africa,
82 Interviews with barristers cited of the sexual minorities’ rights in Africa, state
African Court in Techane (n 33 above) 99. reporting mechanism in Africa, etc.
176 Mauritius

age of the African system in their cours- of the NHRC.92 The human rights
es, coupled with the dominance of education and advocacy activities of
European system in the education the NHRC usually focus on human
system. The consistent participation of rights issues under the Constitution,
the University in the African Human and may cover international instru-
Rights Moot Court Competition is ments. However most commonly they
another encouraging aspect that is facili- do not include the African Charter
tating improved visibility of the African except by occasional cursory mention in
human rights system in Mauritius’ legal a few trainings and workshops.93
education.88 Nevertheless, the library Women’s rights advocacy is highly
still offers negligible reference materials influenced by United Nations instru-
relevant to the topic of the African ments, but not by the Maputo Protocol.
Charter and the Maputo Protocol. Further, it was also observed that rele-
vant officers at the NHRC not only give
Preceding studies that reviewed higher regard to the UN human rights
academic journals, publications and system, but also lack proper exposure to
research did not find any pieces of the African system.
academic work from the domestic
academic community relevant to the The NHRC is normally expected to
African Charter or the Maputo Proto- participate in state reporting, and to
col.89 There is however encouraging submit its own report to the African
progress in recent years with the Commission.94 It is also expected to
increased participation of lecturers in assist, advise and monitor implementa-
academic conferences during which tion of Concluding Observations in
papers are presented on topics related accordance with the Paris Principles.95
the African human rights system.90 However, the NHRC has not been
actively involved in the preparation of
9 National human rights state reports under the African Char-
institutions ter,96 and neither has the African
Commission fulfilled its reporting
In spite of the NHRC’s affiliate status obligation as required of NHRIs that
with the African Commission,91 neither enjoy affiliate status with the African
the African Commission’s documents Commission.
nor the African Charter or the Mapu-
to Protocol are represented in the work

88 Centre for Human Rights ‘Moot 2014: Top 92 The NHRC annual reports since 2004 have
results’ http://www.chr.up.ac.za/index.php been closely reviewed. These reports are
/moot-archives/ moot-2014/moot-2014-top- available on NHRC’s website.
results.html (accessed 08 August 2015). 93 Discussions with NHRC staff cited in
89 Techane (n 22 above) 37 & Techane (n 33 Techane (n 22 above) 34.
above)100-101. 94 The Resolution on Granting Observer Status
90 R Mahadew ‘Best loser system in Mauritius’ to NHRIs in Africa (1998) imposes
in J de Visser (ed) Constitution-Building in obligation on NHRIs with observer status to
Africa (2015) 135; R Mahadew ‘The right to submit reports to the African Commission
health in Mauritius: Is the state doing every two years.
enough or is the constitutional protection of 95 United Nations Principles relating to the
the right to health still required?’ in E Status of National Institutions (the Paris
Durojaye (ed) Litigating the right to health in Principles) (1993) A, para 3 (a-g).
Africa (2015). 96 This was also duly faulted by the African
91 Granted in May 2002 at the 31st ordinary Commission. See Concluding Observations
session of the African Commission. (n 23 above) para 36.
 Impact of the African Charter and the Maputo Protocol in selected African states 177

10 State reporting sion generally remain unpublished.

Where published, the reports are not
Only two periodic reports have been disseminated to the public.
submitted to the African Commission
by Mauritius so far. The first is the Finally, the Human Rights Unit has
initial report submitted in 1996 and the responsibility to ensure that Concluding
second is a combined report of the 2nd, Observations are disseminated to rele-
3rd, 4th and 5th periodic reports, vant government bodies and this should
submitted in 2008. Although three be followed by necessary montitoring on
reports became due as of 2015, there are implementation of the recommenda-
no indications that any report is under- tions. 99 The Attorney General’s Office,
way for submission.97 Relevant authori- being the principal advisory body to the
ties have suggested that the delays in government, advises on the essential
reporting happen with respect to all measures to be taken as per the
treaties and are attributed to challenges Concluding Observations. A previous
in timely information gathering from study has noted that an analysis of the
various stakeholders under multiple Concluding Observations has formerly
reporting obligations to several interna- been prepared and distributed to rele-
tional bodies. vant government departments, direct-
ing them to take necessary
Presently, the Human Rights Unit measures within their mandates and
of the Prime Minister’s Office is the report back to the Human Rights Unit
apex body and has a leadership role in on their efforts.100 There is, however,
the preparation of state reports under no standard practice of disseminating
human rights treaties. Previously, the Concluding Observations to NGOs or
same task was accomplished by the the public.
Minister of Justice and Human Rights
(the current Attorney General’s Office). 11 Communications involving the
The process of preparing reports state
involves gathering inputs from relevant
government ministries and state depart- Since becoming a state party to the Afri-
ments and hosting thorough consulta- can Charter, only one communication
tions with the Attorney General’s has been brought against Mauritius (in
Office. Still, the process is faulted for conjunction with thirteen other South-
the low level of engagement and lack ern African countries) in 2013 followed
of consultation with all relevant stake- by a decision in 2014.101 The case
holders. For instance, interdepartmen- involved an alleged violation of articles
tal dialogue is infrequent and the 7 and 26 of the African Charter for deni-
participation of the NHRC, civil socie- al of access to justice after 14 countries
ty and the wider public is absent in the accepted the suspension of the SADC
reporting process.98 Important stake- Tribunal. Nonetheless, the African
holders still remain unaware of the Commission found no violation of the
reporting process and the reports
submitted to the African Commis-
99 Interview with Cader (n 28 above).
97 See Techane (n 33 above) 101. 100 Techane (n 22 above) 33 indicated that the
98 See Techane (n 22 above) 32. See also document was reviewed.
Concluding Observations (n 23 above) para 101 Tembani & Freeth v Angola and Thirteen Others
36. (2014) AHRLR 54 (ACHPR 2014).
178 Mauritius

alleged articles of the African Charter by of fact, many relevant actors and officers
the respondent states.102 are unaware of the visit and the report.

The low level of awareness regard- 13 Factors that may impede or

ing the African Charter and the commu- enhance the impact of the
nication procedure of the African
African Charter, the Maputo
Commission most probably explains
why Mauritians do not resort to the
Protocol and the African
African Commission in the pursuit for Commission
justice.
It is to be noted that factors that hinder
12 Special mechanisms and or heighten the impact of the said instru-
ments in Mauritius remain more or less
promotional visits by the
the same those found during the initial
African Commission assessment under this study which were
carried out in 2011.105
So far, there has been only one visit by
the African Commission to Mauritius The central mandate of the Human
which was held in August 2006 and Rights Unit of the Prime Minister’s
covered a comprehensive review of Office, which is to coordinate all
human rights issues in the country.103 government activities pertaining to
Accordingly the African Commission human rights, offers a great advantage
made relevant recommendations which, for institutionalising all responsibilities
amongst others, included, urging the of the state in relation to the African
government to consider the abolition of Charter. As a matter of fact, such a
death penalty, encouraging equal gender mandate, combined with the existence
representation in politics, undertaking of important institutions such as the
affirmative action in favour of marginal- NHRC and the LRC can contribute
ised groups, expediting judicial process- immensely to enhancing the impact of
es, ensuring the protection of people the African Charter.
living with HIV/AIDS from discrimina-
tion, submitting overdue reports, popu- The ongoing discourse on consti-
larising the African Charter and making tutional amendments, particularly on
the declaration under article 34(6) of the the incorporation of socio-economic
African Court Protocol to allow direct rights in the Bill of Rights, remains a
access of NGOs and individuals to the unique opportunity for the integration
African Court.104 Nevertheless, it or incorporation of the norms of the
remains disquieting that even if the African Charter and the Maputo Proto-
mission report brought about diverse col. Likewise, the opportunity can also
recommendations, no specific follow-up be seized to incorporate a constitution-
measures were underlined. As a matter al imperative for judicial interpretation
guided by the African Charter and
102 See Tembani & Freeth v Angola and Thirteen international human rights instru-
Others (n 102 above) para 146.
103 See African Commission on Human and ments. Equally, the importance of
Peoples’ Rights ‘Mission report of the domestication should also not be disre-
promotional visit to Mauritius’ (August
2006) http://www.achpr.org/files/sessions/ garded.
40th/mission-reports/mauritius/misrep_pro
mo_mauritius_2006_eng.pdf (accessed
4 June 2011). 105 See Techane (n 33 above) 103-104 & Techane
104 See Mission Report (n 104 above) 33-35. (n 22 above) 39-49.
 Impact of the African Charter and the Maputo Protocol in selected African states 179

LRC’s research can contribute The justiciable Bill of Rights, which

considerably to enlightening all stake- currently only embodies civil and politi-
holders about appropriate legislative cal rights, is an important opportunity
amendment or adoption to guarantee for the enforcement of rights in the Afri-
harmonisation with the African Charter, can Charter that could be complement-
Maputo Protocol and the Concluding ed by the extensive jurisprudence of the
Observations, general comments, reso- African commission. Furthermore,
lutions and case law of the African without disregard to the constitutional
Commission. The LRC is well posi- lacunae on socio-economic rights and
tioned to commission a compatibility some aspects of civil and political rights,
study that could spark the influence of the progressive legislation on a range of
the African Charter on legislative action human rights positively contributes to
and boost compliance by the state with the promotion and protection of rights
its obligation to take legislative meas- under the African Charter and the
ures to give effect to the rights in the Maputo Protocol.
African Charter.
The tradition of the judiciary and
A statutory human rights institu- lawyers referring to international
tion, the NHRC with affiliate status instruments can provide a fertile
with the African Commission, of fers ground for application of the African
an opportunity to enrich visibility of Charter in domestic litigation and judi-
the African Charter, the Maputo cial practice. However, the lack of
Protocol and the work of the African awareness and limited importance
Commission in the domestic human attached to the African Charter and the
rights system. The NHRC should jurisprudence of the African Commis-
proactively integrate the African Char- sion continues to limit such influence.
ter, Maputo Protocol and resolutions, Sensitisation seminars and training
general comments and Concluding programmes for judges and practicing
Observations of the African Commis- lawyers are of paramount impor-
sion in its works. The NHRC should tance. The roles of the Judicial and
also organise targeted promotional Legal Studies Institute and the Bar
activities such as awareness raising Association cannot be overemphasised
workshops, trainings, publications and in this regard.
media campaigns to promote the same.
The presence of lecturers trained
The fact that state reporting and on the African human rights system at
Concluding Observations of the African the University of Mauritius,106 and its
Commission are given rational consider- regular participation in the African
ation is an important asset to heighten Human Rights Moot Court Competi-
the impact of the African Charter even tion is an opportunity that enhances the
though much remains to be done in this influence of the African Charter and the
respect. The reporting process should jurisprudence of the African Commis-
be regarded as an opportunity to surge sion in law school education and
the impact of the African Charter by academic writing. The inadequate
enhancing the participation of all coverage of the African human rights
stakeholders. Publication and wider
dissemination of periodic reports and 106 Including one of the authors, R Mahadew,
Concluding Observations is encouraged. being a lecturer at the University of
Mauritius.
180 Mauritius

system in law school curricula and the ensure the integration of its provisions
scarcity of reference materials on the and also other instruments of the Afri-
subject still constrain the influence of can Commission in the domestic legal
the African Charter, Maputo Protocol system proves to be highly relevant. The
and the African Commission’s jurispru- NHRAP should provide concrete steps
dence. This inadequacy needs to be in relation to human rights activities,
addressed. In addition, academics in legal and policy reform, judicial train-
Mauritius need to engage in active ing, higher education and other areas.
human rights practice as ‘constitutional
interpreters’,107 and as change agents. An empirical observation evidences
the dearth of awareness about the Afri-
The lack of domestication is a can Charter and the Maputo Protocol in
critical factor encumbering the impact Mauritius. Many who work in relevant
of the African Charter in the domes- government departments are oblivious
tic system of Mauritius. While to the instruments and the work of the
Mauritius has been a party to the Afri- African Commission.
can Charter for more than two decades,
the African Charter remains invisible in The domestic influence of the Afri-
the domestic human rights practice can Charter in Mauritius is to a large
mainly because it still is not declared as extent shrunk by the lack of vibrant
a fundamental part of the domestic local or international human rights
law. In a dualist legal system like NGOs. This is aggravated by the closure
Mauritius, incorporation into domestic of Amnesty International and its
law will have greater utility in litigation Human Rights Training Center which
practices as well as judicial enforcement. promoted the African Charter. The defi-
ciency of human rights lawyers and
The non-ratification of the Maputo lawyers associations that ‘engage lead-
Protocol has contributed significantly to ing institutions of the state’108 through
the lack of attention given to the instru- dynamic efforts and catalyse change
ment. The government must earnestly poses undesirable bearings.
consider ratification of this Protocol and
the Ministry of Gender should actively It is also important to observe
p r o m o t e the Maputo Protocol and geographic, social and political
urge its ratification. contexts. The detached physical loca-
tion of Mauritius from Africa mainland,
The absence of a clear government its large population of Asian descents
programme in the National Human with dominant Asian culture and the
Rights Action Plan (NHRAP) and stable culture and the stable peace, secu-
other important policies that draw atten- rity and economic situation of the coun-
tion to the African Charter and the try might have created societal
Maputo Protocol is a point of concern.
Adoption of clear commitments to
promote the African Charter and to 108 A Aturu ‘The legal profession and protection
of human rights’ unpublished paper
presented for the Nigerian Institute of
Advanced Legal Studies, 2010 referred to in
107 Du Plessis illuminates the role of academics Meskerem, Geset Techane 'Where is the
and academic institutions as ‘constitutional African Charter: Assessing the Impact of the
interpreters’. See L Du Plessis ‘Legal African Charter on Human and Peoples'
academics and the open community of Rights in Mauritius' http://repository.up.
constitutional interpreters’ (1996) 12 South ac.za/bitstream/handle/2263/18643/Tech
Africa Journal on Human Rights 214. ane_Where(2011).pdf ?sequence=1 p 27.
 Impact of the African Charter and the Maputo Protocol in selected African states 181

perceptions of not associating with that the African Charter and the Mapu-
‘Africa’s problems’.109 In addition, to Protocol confer additional and essen-
having its major foreign relations as well tial protections of human rights. It is
as trade and economic partnerships tied imperative that the state show genuine
to Britain, France and India,110 Mauri- political will to enshrine provisions from
tius has minimal interaction with most the African human rights instruments
African states. This arguably contrib- into the domestic legal frameworks. In
utes to a general outlook amongst parallel, education of students, lawyers
relevant actors that African instru- and judges on the African human rights
ments are more relevant to an ‘African systems is mandatory. Judges particular-
context’ than Mauritius. This is ly shoulder the responsibility to incorpo-
compounded by the dominant influence rate provisions from African
of the European human rights system instruments into their judgments
and the attitude towards the UN although lawyers are also expected to
human rights system as a more rele- engage in proactive litigation integrating
vant supranational human rights the same into their submissions.
system.
Ratification and domestication of
The lack of media coverage on the the concerned instruments and the
work of the African Commission and reporting obligations therein, as well as
Mauritius’ interactions with the African necessary legislative and policy reform,
human rights system has its own awareness and capacity building
contribution to impairment of public programmes should be given due atten-
awareness. Major media coverage on tion. The roles of NHRIs, judicial and
Africa alerts the public mainly about legal training institutes, lawyers associa-
crises on the continent.111 The role of tions, government bodies, civil society
the media should be boosted to give and academic institutions should be
coverage of the African human rights enhanced.
system, thus increasing public aware-
ness.

14 Conclusion

The foregoing discussions establish that

the influence of the African Charter and
the Maputo Protocol on the domestic
system of Mauritius is weak. There are
undeniably positive dynamics that can
be used to improve the status quo.

Despite a decent standard of human

rights prevailing in the country, Mauri-
tius needs to come to terms with the fact

109 Techane (n 22 above) 40-41.

110 H Metz (ed) Mauritius: A country study (1994),
Washington GPO for the Library of
Congress http://countrystudies.us/mauri
tius/ (accessed 21 August 2011).
111 Techane (n 22 above) 42.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
NIGERIA

Victor Oluwasina Ayeni*

1 Introduction Bill of Rights, Nigeria is currently oper-

ating under its 1999 Constitution.4 The
Nigeria is one of the founding state 1999 Constitution guarantees basic civil
parties to the African Charter as well as and political rights.5 In addition to the
the Maputo Protocol, having ratified the constitutional guarantees, some progress
Charter on 22 June 1983 and the Mapu- has been achieved in the areas of access
to Protocol on 16 December 2004.1 to information,6 domestication of inter-
Nigeria gained its political independ- national instruments on children,7
ence from British colonial rule on 1 prohibition of violence against women
October 1960. Its first constitution upon and girls,8 prohibition against trafficking
attaining independence was the 1960 in persons including women and girls,9
Independence Constitution.2 This and strengthening of laws against
Constitution contains Nigeria’s first discrimination and sexual harassment in
constitutional guarantees of human the workplace.10 The incumbent Presi-
rights.3 After a series of constitutional dent of Nigeria, Muhammadu Buhari,
dispensations each of which embodied a has also initiated government-backed
programmes for the clean-up of Ogoni-
land, one of the landmark recommenda-

* LLB (Akungba-Nigeria), LLM HRDA

(Pretoria) and doctoral candidate, Centre for 4 It should be noted that between 1960 and
Human Rights, University of Pretoria, South 1999, Nigeria operated at least two different
Africa. constitutions, namely the 1963 (Republican)
1 African Union ‘List of countries which have Constitution and the 1979 Constitution.
signed, ratified/acceded to the African 5 See Chapter IV, Constitution of the Federal
Charter on Human and Peoples’ Rights’ Republic of Nigeria, 1999 (Constitution).
http://www.au.int/en/treaties (accessed 16 6 See the Freedom of Information Act of 2011.
September 2015). 7 See the Child’s Rights Act of 2003.
2 Prior to the 1960 Independence 8 See Violence against Persons (Prohibition)
Constitution, the colonial administrations in Act of 2015.
Nigeria operated at least five ‘constitutional 9 See Trafficking in Persons (Prohibition)
instruments’. These instruments also referred Enforcement and Administration Act of
to as ‘constitutions’ were made through 2015.
orders-in-council of the British monarch in 10 See Constitution of the Federal Republic of
1914, 1922, 1946, 1951 and 1954. Nigeria (Third Alteration) Act of 2011. See
3 See Chapter III, sections 17-27, also section 254(c)(2)(g) of the 1999
Independence Constitution, 1960. Constitution (as amended).

183
184 Nigeria

tions of the African Commission in the have been subjected to state-sponsored

case of SERAC v Nigeria.11 attacks, restrictions and profiling.

In spite of these advances, however, 2 Ratification of the African

the Nigerian government has failed to Charter and the Maputo
curtail human rights abuses in a number
Protocol
of areas. Some of the human rights
abuses dominating Nigeria’s human
The President of the Federal Republic of
rights landscape include the indiscrimi-
Nigeria is vested with power to conduct
nate killing of civilians and abduction of
all external relations, including negotia-
women and girls by the Boko Haram
tion and ratification of international
sect, and the failure of government to
treaties, on Nigeria’s behalf.15 This
protect the lives and property of people
power like other executive powers of the
in North East Nigeria where Boko
President may be exercised by the Presi-
Haram insurgency is currently taking
dent personally or through the Vice-
place.12 Government security forces
President, ministers or any duly desig-
handling the country’s counter-insurgen-
nated officer in the public service of the
cy operations have also been accused of
Federation.16 The National Assembly
high-handedness and massive human
on the other hand is empowered to
rights abuses including torture, arbitrary
implement or in a technical term
detention and extrajudicial killing of
‘domesticate’ international treaties duly
suspects.13 Sectarian and political
entered into by the President.17 As the
violence has continued to plague some
law currently stands, the National
states, especially in the Northern part of
Assembly has no competence to ratify
Nigeria, and the government has not
treaties between Nigeria and other coun-
been decisive in ensuring accountability.
tries.18 The procedure for treaty making,
Large-scale corruption in public and
including signature and ratification of
private institutions continues to impede
treaties in Nigeria, is contained in the
the enjoyment of socio-economic rights.
Treaties (Making Procedure) Act Cap
Consensual homosexual conduct
T20 LFN 2004. Although the President
remains criminalised across Nigeria and
may notify the National Assembly of his
same-sex marriage is prohibited and
criminalised under a new law adopted
in 2015.14 Human rights defenders, 15 See Items 26 & 31 of Part I of the Second
Schedule to the Constitution. See also
especially those working on sexual E Egede ‘Bringing human rights home: An
orientation and gender identity issues, examination of the domestication of human
rights treaties in Nigeria’ (2007) 51 Journal of
African Law 249-250. See also Items 26 & 31
of Part I of the Second Schedule to the
11 Social Economic Right Action Centre (SERAC) Constitution; VO Ayeni ‘Domestic impact of
and Another v Nigeria (Ogoniland case) (2001) the African Charter on Human and Peoples’
AHRLR 60 (ACHPR 2001). See ‘UNEP Rights and the Protocol on the Rights of
Report: Buhari orders fast-track of Ogoni Women in Africa: A case study of Nigeria’
clean-up’ Premium Times 5 August 2015 unpublished LLM Dissertation, University
http://www.premiumtimesng.com/news/to of Pretoria, 2011.
p-news/187884-unep-report-buhari-orders- 16 See sec 5(a) of the Constitution.
fast-track-of-ogoni-clean-up.html (accessed 17 Sec 12 of the Constitution.
24 September 2015). 18 See AG Federation v AG Abia State and 35
12 Human Rights Watch ‘World Report 2015: others [2002] 16 I Weekly Report of Nigeria 175;
Nigeria’ https://www.hrw.org/world-rep A Oyebode ‘Treaty making power in
ort/2015/country-chapters/nigeria Nigeria’ in A Oyebode (ed) International law
(accessed 24 September 2015). and politics: An African perspective (2003) 118.
13 As above. AA Akinbuwa ‘The concept of women’s
14 See the Same Sex Marriage (Prohibition) Act rights in Nigeria’ (2009) 15 East African
of 2013. Journal of Peace and Human Rights 465 474.
 Impact of the African Charter and the Maputo Protocol in selected African states 185

or her intention to ratify a treaty, there International Law (DCIL) of the Feder-
is no obligation to do so.19 It is the al Ministry of Justice.24 The Depart-
prerogative of the President acting ment also coordinates the meetings of
through their vice, a minister of the the Inter-Ministerial Committee on the
Federal Republic or any other duly African Charter, a committee set up to
designated officer to sign and ratify ensure Nigeria complies with her obliga-
international treaties. In accordance tions under the African Charter.25 A
with these processes, Nigeria signed and government focal point has also been
ratified the African Charter on designated for the Maputo Protocol: the
31 August 1982 and 22 June 1983 Federal Ministry of Women Affairs.26
respectively, and deposited the instru- Based specifically on the African
ment of ratification on 22 July 1983.20 Commission’s recommendation, a
Nigeria signed and ratified the Maputo National Working Group on Human
Protocol on 16 December 2003 and 16 Rights Treaty Reporting has also been
December 2004 respectively.21 The established.27 The working group is
instrument of ratification of the Maputo mandated amongst other things to
Protocol was deposited on 18 February ensure effective coordination and regu-
2005.22 lar consultation amongst stakeholders in
line ministries, departments and agen-
The Federal Ministry of Justice has cies; and also to ensure follow up action
been designated as the ‘focal point’ on concluding observations and recom-
responsible for coordinating Nigeria’s mendations of the African Commission
response and responsibilities on the and other treaty monitoring bodies.28
African Charter.23 The actual depart-
ment in charge of the ministry’s activ- 3 Domestication or incorporation
ities in respect of the African Charter is
the Department of Comparative and
Domestication of treaties may take
place at two levels: directly through
incorporation or indirectly through
transformation.29 According to Viljoen,
incorporation is the wholesale enact-
19 Akinbuwa (n 18 above). Note however that ment of the provisions of a treaty, usual-
an amendment to the Treaties (Making
Procedure) Act is currently before the ly with specific reference to the treaty
National Assembly. The Amendment seeks being incorporated.30 Transformation
amongst other things to make consultations
with the National Assembly mandatory
before the executive arm of government can
sign or ratify a treaty. See http://nass. 24 Nigeria’s Fourth Periodic Country Report (n
gov.ng/document/bills (accessed 1 October 23 above) ii & 5; Nigeria’s Fifth Periodic
2015). Country Report (n 23 above) ii & 2; AA Yola
20 African Union (n 1 above). ‘Overview of all departments in the Federal
21 African Union (n 1 above). Ministry of Justice’ (2012) 4 Justice Journal 9.
22 As above. 25 Yola (n 24 above) 11; Nigeria’s Fourth
23 Nigeria’s Third Periodic Country Report: Periodic Country Report.
2005-2008 on the implementation of the 26 Nigeria: Initial Country Report on
African Charter on Human and Peoples’ implementation of AU Solemn Declaration
Rights in Nigeria to the African Commission on Gender Equality in Africa (2004-2006).
(2008) 15; Nigeria’s Fourth Periodic Country 27 Nigeria’s Fourth Periodic Country Peoples’
Report: 2008-2010 on the implementation of Rights (n 23 above) 18.
the African Charter on Human and Peoples’ 28 As above.
Rights in Nigeria (2011) 5; Nigeria’s Fifth 29 J James-Eluyode ‘Enforcement of inter-
Periodic Country Report: 2011-2014 on the national humanitarian law in Nigeria’ (2003)
implementation of the African Charter on 3 African Human Rights Law Journal 266.
Human and Peoples’ Rights in Nigeria 30 F Viljoen International human rights law in
(2014) ii & 2. Africa (2012) 522.
186 Nigeria

on the other hand occurs where treaty Charter on Human and Peoples’ Rights
norms influences a legislative enactment (Ratification and Enforcement) Act37
or amendment without explicit refer-
ence to the treaty.31 Nigeria has adopted to enable effect to be given in the Federal
Republic of Nigeria to the African Charter
the dualist approach; this implies that
on Human and Peoples' Rights made in
duly ratified treaties do not have force of Banjul on the 19th day of January, 1981
law in Nigeria unless and until they and for purposes connected therewith.38
have been domesticated.32 Section 12 of
the 1999 Constitution provides:33 ‘No The Act provides:
treaty between the federation and any
As from the commencement of this Act,
other country shall have the force of law
the provisions of the African Charter on
except to the extent to which any such Human and Peoples' Rights which are set
treaty has been enacted into law by the out in the Schedule to this Act shall,
National Assembly.’34 This means for a subject as thereunder provided, have force
treaty to have the force of law in Nige- of law in Nigeria and shall be given full
recognition and effect and be applied by all
ria, the treaty must first be domesticat-
authorities and persons exercising
ed. legislative, executive or judicial powers in
Nigeria.39
The process of domesticating trea-
ties to which Nigeria is a party depends No official reasons were found during
largely on the subject matter of the trea- this study for the prompt domestication
ty. Where a treaty relates to any of the of the African Charter in Nigeria, which
items under the Exclusive Legislative interestingly took place before ratifica-
List, such treaty is deemed duly to have tion. One hint may be in the preamble
been domesticated upon a law passed to of the implementing legislation, which
that effect by the National Assembly.35 states that ‘Nigeria is desirous of adher-
However, where the subject matter of a ing to the said Charter’.40 Since Nigeria
treaty falls outside the Exclusive Legis- in 1983 was not a model in terms of
lative List, a law to domesticate such adherence to human rights, the actual
treaty must first be passed by the reason for domestication of the Charter
National Assembly and further ratified must be located outside the preambular
by a majority of the 36 state houses of provision. It has been argued that many
assembly.36 dictatorial regimes in Africa ratified or
domesticated the African Charter and
On 17 March 1983, Nigeria’s other international human rights instru-
National Assembly passed the African ments as a result of international pres-
sure demanding domestic reform.41 Up
31 As above.
to the time of this study, Nigeria is the
32 Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) only Anglophone country in Africa to
228 SC; Ibidapo v Lufthansa Airlines [1997] 4
NWLR (Part 498) 124 150; African
Reinsurance Corporation v Abata Fantaye [1986]
3 NWLR (part 32) 811.
33 See also sec 12(1) of the 1979 Nigerian
Constitution, sec 13 of the 1989 Nigerian 37 Cap A9, LFN 2004.
Constitution, sec 74 of the 1963 Nigerian 38 Preamble, African Charter (Ratification and
Constitution and sec 69 of the 1960 Nigerian Enforcement) Act.
Constitution. 39 Sec 1 of the African Charter (Ratification
34 The status of international treaties in Nigeria and Enforcement) Act.
thus depends on whether or not the treaty 40 Preamble, African Charter (Ratification and
has been domesticated. Enforcement).
35 Sec 12(1) & (2) of the Constitution. 41 See KO Kufuor The African human rights
36 Sec 12(1)-(3) of the Constitution. system: Origins and evolution (2010).
 Impact of the African Charter and the Maputo Protocol in selected African states 187

have directly domesticated the African Some old laws have been amended and
Charter.42 new laws adopted to give effect to obli-
gations arising from the Protocol’s
The status of the African Charter, provisions. Due to the Federal structure
domesticated as the African Charter of Nigeria and the nature of issues
(Ratification and Enforcement) Act, in covered by the Maputo Protocol,46
relation to other national legislations domestication takes place at two differ-
received significant attention in the case ent levels: national and sub-national. At
of Abacha v Fawehinmi.43 In that case, the national level, consolidated legisla-
Fawehinmi was arrested without a tion titled the Violence against Persons
warrant and detained by members of the (Prohibition) Act was signed into law on
State Security Service (SSS). He alleged 25 May 2015.47 The law prohibits and
that his arrest and detention violated the criminalises amongst other things
Nigerian Constitution of 1979 and female genital mutilation, harmful
provisions of the African Charter (Rati- widowhood practices, spousal battery,
fication and Enforcement) Act. During emotional or verbal abuse, forceful ejec-
the hearing, legal counsel for Abacha tion from the matrimonial home, forced
raised a preliminary objection contend- financial dependence, and forced isola-
ing that the Court was not competent to tion or separation from family and
hear the case since its jurisdiction has friends.48 Another consolidated piece of
been ousted by various decrees. The legislation, the Gender and Equal
Supreme Court unanimously held that Opportunities Bill seeks to domesticate
the African Charter (Ratification and articles 1-24 of the Maputo Protocol and
Enforcement) Act was superior to all currently before the National Assem-
military decrees and domestic legisla- bly.49
tion in Nigeria with the exception of the
Constitution.44 The Judges further stat- At the sub-national level, specific
ed that in the case of conflict between provisions of the Maputo Protocol, such
the African Charter (Ratification and as the prohibition of female genital
Enforcement) Act and other domestic mutilation and domestic violence, the
legislation, the African Charter (Ratifi- promotion of gender equality and
cation and Enforcement) Act shall affirmative action, women’s land rights
prevail and the conflicting domestic and widowhood practices have been
legislation shall to the extent of its absorbed into laws of the various states
inconsistency be void.45 in Nigeria.50

Unlike the African Charter, the Although as a general rule no treaty

Maputo Protocol has not enjoyed direct may have force of law in Nigeria unless
incorporation into the domestic legal enacted into law by parliament, there
system in Nigeria. Provisions of the are at least two ways to enforce an
Maputo Protocol have however been undomesticated treaty in Nigeria. First,
domesticated indirectly through a by virtue of the Constitution (Third
process of legislative ‘transformation’.
46 See sec 12(2)-(3) of the Constitution.
42 Viljoen (n 30 above) 529. 47 See Violence against Persons (Prohibition)
43 [2000] 6 NWLR (Part 660) 228. For a more Act of 2015.
detailed analysis of the case, see Egede (n 15 48 As above.
above) 249-284. 49 Nigeria’s Fifth Periodic Country Report (n
44 Abacha (n 32 above) 289-343. 23 above).
45 Sec 4(5) of the Constitution. 50 As above.
188 Nigeria

Alteration) Act of 2011, international 18(3) of the African Charter (Ratifica-

human rights instruments governing any tion and Enforcement) Act. This crea-
aspect of labour, employment, work- tive interpretation may be resorted to
place and industrial relations may be where a litigant in Nigeria intends to
enforced directly before an industrial rely on an undomesticated provision of
court in Nigeria.51 Thus, the provisions the Maputo Protocol.
of the Maputo Protocol relating to
gender equality and the prohibition of 4 Legislative reform or adoption
sexual harassment at the work place
may be applied in Nigeria with or with- The African Charter has influenced
out domestication.52 legislative outcomes in Nigeria in at
least two ways. There are cases of direct
Moreover, by virtue of article 18(3) causality and also instances of corre-
of the African Charter which has been spondence in norms. In 1987, the then
domesticated as article 18(3) of the Afri- military government of Nigeria promul-
can Charter (Ratification and Enforce- gated a decree – the Civil Disturbances
ment) Act, Nigeria has an obligation to (Special Tribunal) Decree. This Decree
ensure the elimination of discrimination set up a special tribunal to try persons
and protection of women as ‘stipulated accused of causing civil disturbances.
in international declarations and Membership of the tribunal as stipulated
conventions’.53 Viljoen and some by the Decree included a superior court
human rights experts are of the view judge and four other members, one of
that article 18(3) makes CEDAW for which must be a serving member of the
instance applicable to all state parties to Armed Forces. Right of appeal was not
the African Charter irrespective of their allowed against the decisions of the
ratification status under CEDAW.54 It tribunal. The jurisdiction of ordinary
is further submitted that even the Mapu- courts was also ousted. This Decree was
to Protocol could be considered part of challenged in a number of communica-
the African Charter under this provi- tions submitted to the African Commis-
sion.55 The implication of such indirect sion, which found the Decree to be a
incorporation for a state such as Nigeria violation of the African Charter. The
which has domesticated the African African Commission’s decisions were
Charter word for word is to empower used widely by activist organisations to
domestic courts to invoke the provisions mount pressure on the government and
of the Maputo Protocol through article on 5 June 1996, the Decree was amend-
ed. The amendment specifically granted
51 See sec 254(C)(1)(g)-(h) and 254(c)(2) of the a right of appeal and removed the
1999 Constitution as amended by sec 6 of the Armed Forces member of the tribunal.56
Constitution (Third Alteration) Act 2011.
52 As above.
53 Viljoen (n 30 above) 270. On another occasion, activist organ-
54 Viljoen (n 30 above); Women in Law and isations in Nigeria used the African
Development in Africa (WiLDAF) ‘Nigeria‘s
advocacy for better implementation of Commission’s decisions to press for the
women’s rights in Nigeria’ (2002) 5 repeal of the State Security (Detention
www.wildaf-ao.org (accessed 4 September
2004).
55 See similar argument in F Viljoen ‘The
African Commission on Human and 56 For a more detailed account of the process
Peoples’ Rights: Introduction to the African leading up to the repeal of the Decree, see
Commission and the regional human rights OC Okafor The Africa human rights system:
system’ in C Heyns (ed) Human rights law in Activist forces and international institutions
Africa (2004) 497-498. (2007) 128-130.
 Impact of the African Charter and the Maputo Protocol in selected African states 189

of Persons) (Amendment) Decree 2 of tration and Activities) Decree 1998.

1994. This Decree which was promul- Although it is difficult to establish
gated by the then military government conclusively all the factors that inspired
of Nigeria empowered the government these wide-ranging legislative reforms,
to detain persons for acts prejudicial to African Charter norms and the African
state security for up to six months. Commission’s repeated condemnations
Section 2A of the Decree prohibited the were arguably amongst the foremost
courts from issuing a writ of habeas considerations.
corpus for the release or production in
court of the detainees. In a number of The African Charter played no
communications as in the earlier case, significant role during the drafting
the African Commission condemned process of the 1999 Constitution.59 This
this Decree as a flagrant violation of the is because the 1999 Constitution is a
right to liberty and fair trial under the near-verbatim adaptation of Nigeria’s
African Charter. As a result of massive 1979 Constitution which predated the
condemnations by NGOs and civil soci- African Charter.60 The Bills of Rights in
ety organisations ‒ using the African the two constitutions are not only simi-
Commission’s decisions as a reference lar, but identical except for slight varia-
point ‒ the Decree was repealed in June tions in numbering. As a result, there is
1996.57 no explicit reference to the African
Charter in the 318 sections of the 1999
Upon transition to democracy, the Nigerian Constitution. While it cannot
following decrees which were the be said that the African Charter formed
subject of litigation in various communi- the basis of the 1999 Constitution, most
cations before the African Commission of the human rights provisions in the
were also repealed:58 Constitution Constitution coincide with the African
(Suspension and Modification) Decree Charter’s provisions. The African Char-
1984, State Security (Detention of ter has also been referenced in some
Persons) Decree 1984, Military Courts legislation enacted after the transition to
(Special Powers) Decree 1984, Treason civil rule in 1999.61 An analysis of the
and Other Offences (Special Military impact of the Maputo Protocol on the
Tribunals) Decree 1986, Civil Distur- Constitution is unnecessary because the
bances (Special Tribunals) Decree 1987, Constitution was adopted long before
Academic Staff Union of Universities the Maputo Protocol came into force.
(Proscription and Prohibition from
Participation in Trade Union) Decree No evidence was found in Nigeria
1992, Treason and Treasonable Offenc- of a compatibility study undertaken
es Decree 1993, Political Parties (Regis- prior to the ratification of either the
African Charter or the Maputo Proto-
57 See State Security (Detention of Persons)
(Amendment) (Repeal) Decree 18 of 1996. 59 See Speech Delivered by the Chairman of the
Other military decrees such as the Political Constitution Debate Coordinating
Parties Dissolution Decree 114 of 1999 and Committee (CDCC), Justice Niki Tobi,
the Newspapers Registration Decree 43 of while presenting the Committee's report to
1993 were reportedly repealed following the Head of State, General Abdulsalami
intense criticism from international and Abubakar (on file with the author).
domestic activist groups, usually relying on 60 As above.
the decisions of the Commission. See Okafor 61 See for instance, art 3(2)(f) and 4(1)(d) of the
(n 56 above) 132-134. Treaty to establish the African Union
58 See Constitution of the Federal Republic of (Ratification and Enforcement) Act of 2003;
Nigeria (Certain Consequential Repeals) sec 6 of the National Human Rights
Decree 63 of 1999. Commission (Amendment) Act of 2010.
190 Nigeria

col. Thus, real conflict still exists ria under section 55 of the Penal Code.
between the African Charter and the While the Violence against Persons
Maputo Protocol on the one hand and (Prohibition) Act of 2015 has addressed
Nigerian domestic laws on the other some of these issues, the law operates
hand.62 Under the African Charter, both only in the Federal Capital Territory.
civil and political rights as well as socio-
economic rights are justiciable. By 5 Policy reform or formulation
contrast, only civil and political rights
are justiciable under the Nigerian The African Charter and the Maputo
Constitution;63 socio-economic rights Protocol have inspired the development
are non-justiciable.64 The Nigerian of a number of national policies in Nige-
Constitution also does not recognise the ria. These policies seek to protect either
rights of peoples to existence, free human rights in general or the rights of
disposal of their wealth and natural a particular group of people. The
resources, development, peace and secu- National Action Plan (NAP) for the
rity as well as to a generally satisfactory Promotion and Protection of Human
environment.65 Notwithstanding the Rights in Nigeria was first developed in
provision of section 42 of the Nigerian 2006 and later updated in 2009.66
Constitution which generally prohibits Although the NAP document claims
discrimination on a number of grounds that the rights it contains are drawn
including sex, several laws in Nigeria from domestic, regional and internation-
still conflict with the Maputo Protocol. al human rights instruments,67 a close
Section 26(2) of the Constitution for look at the document shows significant
instance limits women’s rights to trans- influence of the African Charter. For
mit their nationality to their foreign instance, the NAP document contains
spouses. Sections 228-230, 297, 309 and references to rights to development,
328 of the Criminal Code and sections peace and protected environments and
232-236 of the Penal Code criminalise the African Charter is specifically
medical abortion in all circumstances mentioned as one of the primary sources
except where the abortion is required to of these rights.68 In addition, the docu-
save the life of the woman or to preserve ment contains over 50 references to the
her physical or mental health. Contrary African Charter and at least five refer-
to article 14(2)(c) of the Maputo Proto- ences to the Maputo Protocol.69
col, Nigerian law does not allow medi-
cal abortion in cases of sexual assault,
rape or incest. Section 357 of the Crimi-
nal Code justifies marital rape, and ‘wife
66 See National Action Plan for the Promotion
beating’ is permitted in Northern Nige- and Protection of Human Rights in Nigeria
(2006). The 2006 document was updated in
2009. See the National Action Plan for the
Promotion and Protection of Human Rights
62 See Egede (n 15 above) 255. in Nigeria (2009-2013). The 2009 document
63 Chap IV, Constitution. See also sec 6(6)(c) of is currently being viewed by the National
the Constitution. Human Rights Commission. See ‘NHRC
64 Sec 6(6)(c) of the Constitution. See reviews National Action Plan for promotion,
Archbishop Okogie v Attorney General of Lagos protection of human rights’ News Agency
State (1981) 2 NCLR 337 350. Nigeria 10 March 2015 http://www.
65 Although some provisions in the Directive nannewsnigeria.com/node/40092 (accessed
Principles in Chap II of the Constitution 22 September 2015).
speak to peoples’ rights, these Directive 67 NAP (2009-2013) 8-10.
Principles are not enforceable in court. See 68 See NAP (2006) 58-64; NAP (2009-2013) 78-
secs 14-17 as well as sec 6(6)(c) of the 91.
Constitution. 69 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 191

The National Gender Policy (NGP) promote specific provisions of the Afri-
was adopted in 2006.70 It replaced the can Charter and the Maputo Protocol.73
erstwhile National Policy on Women of
2000. The NGP is aligned with the 6 Court judgments
provisions of major international instru-
ments on women’s rights, including the The African Charter, and to some extent
Maputo Protocol. Although the Maputo the Maputo Protocol, have influenced
Protocol was not the only inspiration for judicial decisions in at least four impor-
the new Gender Policy, there are a tant ways. These include the develop-
number of reasons to believe that the ment of the African Charter supremacy
entering into force of the Maputo Proto- jurisprudence, and the use of the Afri-
col played a crucial role in mobilising can Charter or the Maputo Protocol as a
support for the new gender policy. The basis of remedy, interpretative guidance
process that culminated in the adoption and as a source of legitimacy. As early
of the new National Gender Policy as 1990, the Nigerian Court of Appeal
started in August 2006,71 less than a in the case of Oshevire v British Caledonian
year after the Maputo Protocol came Airways Ltd74 had laid down the princi-
into force and within one month after ple that a treaty which has been ratified
Nigeria submitted its initial report on and domesticated in Nigeria is superior
the AU Solemn Declaration on Gender to other domestic laws with the excep-
Equality in Africa. The NGP contains at tion of the Constitution. This decision
least four references to the Maputo has been followed in subsequent cases.75
Protocol. The Policy also reinforces arti-
cle 2(d) of the Maputo Protocol by The main contribution of the ‘Afri-
adopting a 35 per cent affirmative action can Charter supremacy argument’ is
policy for women. The affirmative that it empowered domestic courts to
action clause of the Policy was used by entertain human rights cases even in
various women’s rights groups in Nige- situations where their jurisdiction has
ria to push for and realise 33 per cent been ousted explicitly by national legis-
representation by women in the Federal lation. In a number of cases, provisions
cabinet as at 2011.72 It is unfortunate to of the African Charter have been used as
note that women’s representation in basis for seeking remedies before domes-
Cabinet under the current administra- tic courts in Nigeria. Only a few exam-
tion of President Buhari has dropped ples of these cases are referred to in this
significantly.
73 See for instance the National Policy and Plan
In addition to the two principal poli- of Action on Elimination of Female Genital
cies discussed above, a number of Mutilation in Nigeria 2002; National Gender
Policy on Education 2008; National Health
national policies have been adopted to Policy 2004; National Strategic Health
Development Plan (2010-2015); National
Policy on Environment 1999, National Child
Policy of 2007; and the National Policy on
Education 2004 amongst others.
74 (1990) 7 NWLR 507.
75 See UAC v Global Transporte Oceanic SA
(1996) 5 NWLR 291; CRP v Babangida Suit
70 See also the National Gender Policy M/102/92; Comptroller of Nigerian Prisons v Dr
Strategic Framework (Implementation Plan) Femi Adekanye (No 2) (2002) 15 NWLR 332
Federal Republic of Nigeria (2008-2013). SC; Fawehinmi v Abacha (1996) 9 NWLR (pt
71 National Gender Policy (2006). 475) 710 CA; Ubani v Director of SSS (1999)
72 See ‘Nigerian women take key cabinet posts’ 11 NWLR (pt 265) 129 CA; Abacha (n 32
afronline http://www.afronline.org/?p=177 above) 228, and Odebunmi v Oladimeji (2012)
86 (accessed 18 October 2011). LPELR 15419 (CA).
192 Nigeria

report. In Comptroller Nigerian Prisons v Since the courts have held that the African
Dr Femi Adekanye and Others,76 27 people Charter (Act) is like an enactment of the
Federal Government per decree, it follows
were arrested and detained for close to
that if there is a conflict between an
30 months under the Failed Bank enactment ousting the jurisdiction of the
(Recovery of Debts) and Financial Court and another which does not, the
Malpractices in Banks Decree 18 of Court should lean more on the one
1994. Meanwhile, the decree under (referring to the African Charter) that
preserves its jurisdiction.
which they were detained and tried
ousted the court’s jurisdiction. The trial In all the cases discussed above, the
court dismissed the suspension of its African Charter was relied upon as a
jurisdiction. On appeal, the Court of basis for seeking remedy before a
Appeal stated that the offending decree domestic court in Nigeria. The African
‘totally destroys the presumption of Charter is usually relied upon in addi-
innocence in favour of the accused tion to other relevant constitutional
under article 7 of the African Charter’.77 provisions. However, in Agbakoba v
Director of State Security Service,81 the
In Garuba and Nine Others v Attorney
provisions of article 12(2) of the African
General of Lagos State,78 10 applicants
Charter were clearly resorted to as an
mostly juveniles were tried, convicted
interpretive guide. In that case, the
and sentenced to death. They appealed
applicant had been invited to a human
against the sentence. While their appeal
rights conference in The Netherlands.
was pending, the government made
On the day he was scheduled to depart,
moves to execute them. An application
he was intercepted by officers of the
was filed to enforce their right under the
State Security Service. His passport was
Constitution and the African Charter.
impounded, without any explanation
Even though the fundamental rights
offered to him. In short, he missed the
provisions of the Nigerian Constitution
conference. In its judgment, the
as well as the African Charter Act were
Supreme Court sought guidance from
at the time suspended, the Court held
the freedom of movement provision
that the international aspects of these
under article 12(2) of the African Char-
instruments could not unilaterally be
ter which explicitly provides that ‘every
abrogated.
individual shall have the right to leave
The Nigerian judiciary further any country including his own’. The
demonstrated its creativity in deploying applicant was successful.
the African Charter in the case of Akin-
In some domestic decisions in Nige-
nola v Babangida.79 In this case, the
ria, local courts have deployed the Afri-
Court was invited to invalidate the
can Charter to legitimise claims of rights
Newspaper Decree 43 of 1993. Even
that were considered very sensitive. In
though this decree expressly ousted the
order to invalidate a customary law
jurisdiction of courts, the Court held
which prevented female children of a
that:80
deceased man from inheriting his prop-
erty, the Nigerian Court of Appeal in
Moujekwu v Ejikeme stated as follows:82
76 (1999) 10 NWLR 400.
77 Comptroller Nigerian Prisons (n 76 above) 423.
78 Suit ID/599M/91 (31 October 1991).
79 Reprinted in (1994) Journal of Human Rights
Law and Practice 250. 81 (1994) 6 NWLR 475.
80 As above. 82 (2000) 5 NWLR (part 567) 402, 409.
 Impact of the African Charter and the Maputo Protocol in selected African states 193

And what is more, such a custom has cost-effective procedure for the enforce-
clearly discriminated against Virginia, the ment of fundamental rights in Nigeria.88
daughter of Reuben and is therefore
Because the Rules predated the adop-
unconstitutional in light of the provisions
of section 42 of the Constitution of the tion of the African Charter, no reference
Federal Republic of Nigeria, 1999 ... was made to the African Charter in the
Article 18 of the African Charter on Rules; and no Rules were made subse-
Human and Peoples’ Rights specifically quently for the enforcement of the rights
provides for the elimination of
in the African Charter.
discrimination against women.

A similar decision was reached more Confronted with this tricky situa-
recently in the case of Nwosu v Nwosu83 tion, the Supreme Court of Nigeria in
where the Court of Appeal affirmed a what appeared to be a very liberal
woman’s right to custody of her children construction of the applicable laws held
pending divorce, by resorting to section in Ogugu v The State89 that although the
18(3) of the African Charter. In 2014, 1979 FREP Rules did not prescribe rules
the Supreme Court issued two landmark for the enforcement of rights in the Afri-
decisions, Ukeje v Ukeje84 and Anekwe v can Charter, the provisions of the Char-
Nwekwe85 where the court nullified the ter are nonetheless enforceable under
customary law that prevented female the 1979 FREP Rules. This reasoning
children and wives from inheriting from was adopted in subsequent cases such as
their fathers and husbands respectively. Nemi v The State,90 Bamidele v Alele
Even though socio-economic rights are Williams91 and Ohakosin v Commissioner
not justiciable under the Nigerian of Police, Imo State.92
Constitution, the Nigerian Court in
In 2009, the 1979 FREP Rules were
Odafe v Attorney General of the Federation86
abrogated and replaced with the 2009
has enforced the socio-economic rights
FREP Rules. Under the new Rules, the
of prisoners to medical care on the basis
African Charter is referred to in a
of the African Charter. The court has
number of occasions. The Rules provide
also relaxed the rules of locus standi on
for the following overriding objectives:93
the basis of article 13(2) of the African
Charter.87 The Constitution especially Chapter IV as
well as the African Charter shall be
Another aspect where the African expansively and purposively interpreted and
Charter has significantly influenced the applied, with a view to advancing and
judiciary is in the deployment of the realising the rights and freedoms contained
in them and affording the protections
Fundamental Rights Enforcement
intended by them.
Procedure (FREP) Rules. As a result of
the delay and prohibitive cost usually Referring specifically to the African
associated with court process in Nigeria, Charter and the Universal Declaration
the FREP Rules were designed in 1979 of Human Rights, the 2009 Rules
to provide a special fast-track and more mandate courts to respect municipal,

83 (2012) 8 NWLR (Part 1303) 27. 88 See sec 42 of the 1979 Constitution and sec
84 Suit No: SC.224/2004; (2014) LPELR 22724 46 of the 1999 Constitution.
(SC). 89 (1994) 9 NWLR 1 26-27.
85 Suit No: SC.129/2013; (2014) LPELR 22697 90 (1994) 1 LRC 376.
(SC). 91 Suit B/6M89 Benin High Court.
86 (2004) AHRLR 205 211. 92 (2009) 15 NWLR (part 1164) 229.
87 See Nwankwo v Onomeze-Madu (2009) 1 93 Preamble, 2009 FREP Rules (emphasis
NWLR (part 1123) 671, 715-716. mine).
194 Nigeria

regional and international bills of rights have 20 each and the United Kingdom
cited to it, brought to its attention or that has 19 NGOs having observer
which the court is has knowledge of. status with the Commission. Nigerian
The Rules also contain a number of CSOs have been more engaged with the
other progressive provisions but these African Commission’s individual
are not within the purview of this study. complaints procedure than their coun-
terparts in other countries of Africa. Out
7 Awareness and use by civil of the 31 communications submitted to
society the African Commission in respect of
Nigeria as at 2014, at least 25 were filed
There is a huge NGO presence in Nige- by CSOs. As stated by Okafor, the Afri-
ria and their level of awareness in can Charter and the jurisprudence of the
respect of the two instruments is gener- African Commission have served as key
ally high. In the 5th periodic report of resource in the hands of Nigerian NGO
the Federal Republic of Nigeria to the activists, activist lawyers, minority
African Commission, over 300 human rights advocates, activist politicians and
rights related civil society organisations activist journalists.96 More importantly,
were listed.94 Due to this huge number the key CSOs working in the field of
coupled with the relative shortness of socio-economic rights in Nigeria,
the study period, a systematic assess- according to Nigeria’s Fourth Periodic
ment of all NGOs and civil society Country Report to the African Commis-
organisations (CSOs) in Nigeria was not sion, have relied chiefly on the African
undertaken. However, most of the Charter, perhaps because there are no
organisations approached during the justiciable socio-economic provisions in
course of this study are aware of both the Nigerian Constitution.97 The same
the African Charter and the Maputo is true of CSOs working on the rights of
Protocol. women, which have included the Mapu-
to Protocol in their programmes. The
The African Charter and the Mapu- African Charter and the Maputo Proto-
to Protocol have made substantial col feature prominently in the promo-
impact on the activities of these CSOs. tional activities of CSOs in Nigeria.
They attend sessions of the African
Commission regularly and participate 8 Awareness and use by practicing
actively in the activities of the Commis- lawyers
sion. Nigeria has more NGOs having
observers’ status with the Commission The African Charter is generally more
than any other country in Africa or popular amongst lawyers than the
outside Africa.95 There are 28 NGOs Maputo Protocol. One of the interview-
from Nigeria that have observer status ees, a staff member in the Federal
with the African Commission. This Ministry of Justice, stated that the Afri-
figure is closely followed by South Afri- can Charter’s provisions are less
ca that has 24, Kenya and Senegal that frequently used by government lawyers.
According to him, the African Charter
94 See Nigeria’s Fifth Periodic Country Report is more often used in human rights cases
(n 23 above) 139-145. See also Nigeria’s
Fourth Periodic Country Report (n 23 above)
91-98.
95 See ACHPR ‘NGOs with observer status’ 96 Okafor (n 56 above).
http://www.achpr.org/network/ngo/ 97 See Nigeria’s Fourth Periodic Country
(accessed 24 September 2015). Report (n 23 above) 91-98.
 Impact of the African Charter and the Maputo Protocol in selected African states 195

by lawyers for complainants or appli- graduate and postgraduate level.

cants. In a review of Nigeria’s leading Procedure for the enforcement of
law report, the Nigerian Weekly Law human rights is also part of the curricu-
Report (1985-2014), this study found no lum of the Nigerian Law School,
less than 70 cases in which the African although emphasis on the African Char-
Charter or the African Charter (Ratifica- ter and the Maputo Protocol is minimal.
tion and Enforcement) Act was
referred.98 More recently, less reference What can be inferred from respons-
has been made directly to the African es received from specific Nigerians inter-
Charter as a treaty because the African viewed in the course of this study is that
Charter Act is more often invoked. emphasis on the African human rights
Some lawyers believe it is the Act and system is minimal or non-existent in
not the African Charter itself that is part primary and secondary schools as well
of Nigerian law. as vocational institutions. Nevertheless,
a number of lecture series at all levels
It should be recalled that one of the help to promote the African Charter and
most visible marks of military dictator- in some cases the Maputo Protocol
ship in Nigeria was the repression of the amongst academics, lawyers, judges and
media, arbitrary closure of media hous- public officers.100
es, arrest and detention of journalists,
amongst others. Some of these abuses The African Charter and to some
were challenged before the African extent the Maputo Protocol are widely
Commission and the Commission’s referred to in academic publications
decisions in most of these communica- such as books and journals. During the
tions were widely publicised in the course of this study, a significant
media although the visibility of the number of academic publications were
Commission’s findings have reduced in found which contained information on
recent years. the African Charter and which were
authored by Nigerians. Much less were
9 Academic writing and law found on the Maputo Protocol. Conclu-
school education sive figures are however unavailable
because country-wide searches were not
carried out. From the limited searches
In 56 out of the 104 faculties of law in
carried out, most of the learned papers
Nigeria, the African human rights
which were written on the African
system and especially the African Char-
ter is being taught at the undergraduate
level.99 In some faculties, it is taught as 100 Nigerian Institute of Advanced Legal
Studies, Lagos 2005-2010 annual Human
a fully-fledged module, which may be Rights training workshop sessions; National
compulsory or elective. In other facul- Judicial Institute Abuja, human rights
workshop sessions for judges of Federal and
ties, it is taught as part of public interna- State High Courts, Sharia Courts and lower
tional law. Most first and second court judges nationwide (2002 to date);
Nigerian Bar Association (NBA) Human
generations universities encourage Rights and Environment Committee Annual
research and thesis writing on the Afri- Continuing Legal Education Training
Programmes for legal practitioners at all
can human rights system at both under- levels nationwide; National Human Rights
Commission (NHRC) Abuja/Civil Society
Organisations training workshop and
seminar series on Human Rights. Papers
98 A list of these cases is on file with the author. presented during these series of lectures are
99 See Nigeria’s Fourth Periodic Country usually published. See also Nigeria’s Fourth
Report (n 23 above) 6. Periodic Country Report (n 23 above) 6-7.
196 Nigeria

Charter by Nigerians were published in of the African Commission. Since1998,

foreign journals, and few in local jour- the NHRC in conjunction with relevant
nals. The impact of the African Charter partners has been organising training
will greatly improve if more academic workshops and a public lecture series on
writing on the African Charter and the the African human rights system. One
Maputo Protocol are published locally. of the thematic focuses of the NHRC is
‘women and gender matter’. To this
10 National human rights end, the NHRC has an advocacy group
institutions on violence against women. The NHRC
coordinates the preparation of Nigeria’s
The Nigerian National Human Rights periodic report in conjunction with the
Commission (NHRC) was established Ministry of Justice. The NHRC also
in 1995. The law establishing the coordinated the development of the
Commission was amended in 2010 by National Action Plan on the Promotion
the National Human Rights Commis- and Protection of Human Rights in
sion (Amendment) Act. It is specifically Nigeria which is substantially modeled
mandated, amongst other things, to deal on the African Charter and the Maputo
with all matters relating to the promo- Protocol. Currently, follow-up and
tion and protection of human rights implementation of concluding observa-
guaranteed by the Nigerian Constitu- tions and decisions of the African
tion, the African Charter and other Commission is not one of the thematic
international human rights treaties, focus areas of the NHRC.
including the Maputo Protocol.101 The
Governing Council of the NHRC 11 State reporting
comprises 16 members including a
chair, three representatives of cognate The reporting process is coordinated by
ministries, three NGO representatives, the Federal Ministry of Justice. From a
two legal practitioners, three media review of the second, third, fourth and
representatives, one representative of fifth periodic reports of Nigeria under
organised labour, two women represent- the African Charter, the reporting
atives as well as the Executive Secretary process commences with the appoint-
of the Commission.102 ment of a consultant. Then, there is a
Core Drafting and Review Team
From evidence gathered during this comprising members drawn from the
study, the African Charter and the Federal Ministry of Justice and the
Maputo Protocol have influenced the National Human Rights Commission,
NHRC’s activities in the following which meets with the consultant to
ways. The NHRC has an affiliate status develop a framework and work plan for
with the African Commission, regularly the report writing; places call for inputs
attends sessions of the Commission, and in newspaper adverts in at least two
participates actively in the Commis- national dailies; collates and analyses
sion’s activities. The NHRC also raises the inputs supplied as a result of the
awareness in Nigeria about the African newspaper adverts; and produces the
Charter, Maputo Protocol and activities first drafts for peer review. Once this is
done, a two-day peer review workshop
101 Sec 5(a) of the National Human Rights is usually called where all stakeholders ‒
Commission (Amendment) Act 2010.
102 Sec 2(2) of the National Human Rights from the relevant ministries, agencies,
Commission (Amendment) Act 2010.
 Impact of the African Charter and the Maputo Protocol in selected African states 197

human rights NGOs, legislators and the by limiting this study to the second,
general public ‒ meet to review the first third and fourth reports. The concluding
draft and produce the second draft. observations in respect of the second
periodic report could not be accessed by
The second draft will then be vali- the author. There is also no information
dated by a one-day stakeholders’ forum in the third periodic report on steps
to be attended by the core drafting and taken by the government to implement
review team, the peer reviewers, the the Commission’s observations on the
media and members of the public. second periodic report. However, the
Inputs from the one-day stakeholders’ fourth periodic report outlined specific
forum are incorporated to produce the steps taken by the government to imple-
final draft. The final draft is then ment observations made by the
submitted to the Federal Executive Commission in the third periodic report.
Council through the Minister of Justice. A closer look at the responses however
After approval by the Federal Executive reveals that five out of the seven recom-
Council, the final report is then sent to mendations are yet to be fully imple-
the Secretariat of the African Commis- mented.105 One of the pertinent
sion. concluding observations following
review of Nigeria’s Fourth Periodic
There is no evidence of any occa- report was that Nigeria should take
sion where concluding observations of steps to ratify the Charter on Democra-
the African Commission were dissemi- cy, Elections and Good Governance.
nated to the public at large by the state. This treaty was ratified on 1 December
The Observations are also not translated 2011. The Commission also recom-
into the three major languages. Civil mended that government should enact
society groups however use concluding at the federal level, legislation prohibit-
observations in their advocacy activities. ing FGM, violence and other discrimi-
Nigeria has thus far complied with its natory practices against women.
reporting obligation under the African Pursuant to this recommendation, the
Charter, having submitted up to date Violence against Persons (Prohibition)
five periodic reports to the African Act was passed into law in 2015.
Commission.103 The first report was Concluding observations in respect of
submitted in 1990; the second in 2003; the Fifth Periodic Country Report
the third in 2008; the fourth in 2011 and submitted to the African Commission in
the fifth in 2014. Nigeria has yet to July 2014 and considered at its 56th
submit a specific report on efforts aimed ordinary session is yet to be available on
at promoting and protecting the rights the Commission’s website. It is hoped
contained in the Maputo Protocol. that when these concluding observations
are available, the government will do
The Commission’s practice with
the needful to implement them before
regard to concluding observations was
the next reporting cycle.
not fully developed until 2001,104 there-

103 One of the reasons that prompted Nigeria to

submit its Fourth Periodic Report on time
was the need to respond to the concerns
raised by the Commission in the concluding
observations issued after examination of the 105 See recommendations 35, 36, 37, 41 & 42 of
Third Periodic Report. See Nigeria’s Fourth the Concluding Observations and
Periodic Country Report (n 23 above) 1. Recommendations on the Third Periodic
104 Viljoen (n 30 above) 387. Report of the Federal Republic of Nigeria.
198 Nigeria

12 Communications involving Project v Nigeria,111 five Nigerians were

Nigeria arrested and detained by the Nigerian
military government without trial for
Between 1987 and 2014, a total of 34 about two years. On behalf of the
communications were submitted against detainees, the Constitutional Rights
Nigeria.106 Out of these communica- Project (CRP) submitted a communica-
tions, nine were declared inadmissible; tion to the African Commission. In its
three were withdrawn; one was resolved findings, the Commission found Nigeria
via friendly settlement; 21 were declared in violation of articles 6 and 7 of the
admissible.107 Violations were found in African Charter and urged Nigeria to
19 cases out of the 21 communications charge or release the complainants.
that were found to be admissible.108 Out Soon after the African Commission’s
of the 19 cases in which the African decision, the Nigerian government
Commission found violations against complied by charging the detainees.112
Nigeria, full compliance was recorded In another case, Centre for Free Speech v
only in two; partial compliance in 14,109 Nigeria,113 four Nigerian journalists
and total noncompliance in three.110 were tried and convicted secretly by a
military tribunal. During the trial, they
At least in two cases, the Nigerian were not allowed access to counsel of
government fully complied with the their choice. The military decree setting
recommendations of the African up the tribunal also ousted the court’s
Commission. In Constitutional Rights jurisdiction. The complainants thus
were without a right of appeal. In a
communication submitted on their
behalf by the Centre for Free Press, the
106 This information is based on facts available African Commission found Nigeria in
on the Commission’s website at http:// violation of articles 6, 7 and 26 of the
www.achpr.org/states/nigeria/ (accessed
6 November 2015). It should be noted that African Charter. The African Commis-
officially there are 33 communications listed sion urged the Nigerian government to
against Nigeria on the Commission’s
website. This is because communication release the journalists. They were even-
270/03 Access to Justice v Nigeria which was tually released.114
decided at the 13th extraordinary session of
the Commission on 25 February 2013 is yet
to be published. However, information in the Partial compliance was recorded in
34th Activity Report of the Commission
reveals that the case is a merit decision.
four cases.115 In Constitutional Rights
107 These figures are based on the author’s Project (in respect of Akamu, Adega and
analysis of all the 34 communications
submitted to the Commission in respect of
Others) v Nigeria,116 CRP filed a commu-
Nigeria as at 2014. nication before the African Commission
108 Communication 425/12 Legal Defence and
Assistance Project v Nigeria which was declared
admissible at the Commission’s 16th
extraordinary session on 20-29 July 2014 is 111 Constitutional Rights Project v Nigeria (2000)
yet to be decided on the Merit. Also, as AHRLR 248 (ACHPR 1999) (Nigerian
earlier discussed, the decision of the Detention case).
Commission on the merit in communication 112 See F Viljoen & L Louw ‘State compliance
270/03 Access to Justice v Nigeria is yet to be with the recommendations of the African
published. As a result, it was not possible to Commission on Human and Peoples’
ascertain whether violation was found or Rights,1994-2004’ (2007) 101 American
not. Journal of International Law 1 10.
109 See L Louw ‘An analysis of state compliance 113 Centre for Free Speech v Nigeria (2000) AHRLR
with the recommendations of the African 250 (ACHPR 1999) (Nigerian Journalists
Commission on Human and Peoples’ Rights’ case).
unpublished LLD thesis, University of 114 Viljoen & Louw (n 112 above) 10.
Pretoria, 2005 56. 115 Louw (n 109 above).
110 As above. 116 (2000) AHRLR 180 (ACHPR 1995).
 Impact of the African Charter and the Maputo Protocol in selected African states 199

on behalf of Akamu, Adega and others Following the African Commis-

who were convicted and sentenced to sion’s recommendations in SERAC v
death by a military tribunal. After Nigeria, the recommendations were
consideration of the communication, widely disseminated by SERAC.122 The
the African Commission recommended Nigerian government subsequently
that the complainants should be established the Ministry of Niger Delta
released. Although the complainants with a special mandate on the develop-
were not released, the death sentence ment of the Niger Delta area. This was
imposed upon them was commuted to followed by a Development Master Plan
terms of imprisonment.117 In a similar specifically designed for the Niger
case, Constitutional Rights Project (in Delta. The Niger Delta Development
respect of Zamani Lakwot and 6 Others) v Commission (NDDC) has also taken
Nigeria,118 the African Commission some measures to address health and
recommended the release of the development concerns of the Ogoni.123
complainants who had been sentenced However, critical issues such as impact
to death by a special military tribunal. assessment, prosecution of erring offi-
Following the African Commission’s cials, and comprehensive clean-up of the
recommendation, the complainants’ Ogoniland are yet to be adequately
death sentence was commuted to five addressed.124 It is noteworthy that the
years’ imprisonment, and they were incumbent President, Muhammadu
later released.119 Following the African Buhari has initiated programmes for the
Commission’s recommendation in clean-up of Ogoniland.125
Constitutional Right Project v Nigeria,120
11 soldiers who had been detained Due to the failure of the Nigerian
unjustly for a long period were released. government to fully implement the deci-
They were however not paid any sion of the African Commission in
compensation as recommended by the SERAC v Nigeria, the Registered Trus-
African Commission. tees of the Socio-Economic Rights
Action Project (SERAP) on 23 July
Out of the 13 cases in which the 2009 filed a complaint against Nigeria at
then military government of Nigeria the ECOWAS Community Court of
clearly failed to comply with the recom- Justice (ECCJ). The plaintiff, in the case
mendations of the African Commission, titled SERAP v Nigeria (Environ-
at least ten cases were to some extent ment),126 complained that the Nigerian
implemented upon transition to democ- government through its agencies, agents
racy.121 A number of military decrees and some multinational corporations
earlier declared by the African Commis- violated the rights to health, adequate
sion to violate the African Charter were standards of living and rights to
repealed or amended. Some of the economic and social development of the
detainees that have been vindicated by
the African Commission were also
released. 122 M van der Linde & L Louw ‘Considering the
interpretation and implementation of art 24
of the African Charter on Human and
Peoples’ Rights in light of SERAC
communication’ (2003) 3 African Human
Rights Law Journal 167 184.
117 Louw (n 109 above) 26. 123 As above.
118 (2000) AHRLR 183 (ACHPR 1995). 124 Louw (n 109 above) 48.
119 See also Louw (n 109 above) 27. 125 See Premium Times (n 11 above).
120 (2000) AHRLR 241 (ACHPR 1999). 126 SERAP v Nigeria ECW/CCJ/JUD/18/12,
121 Louw (n 109 above) 56. Judgment of 14 December 2012.
200 Nigeria

Niger Delta people. In a groundbreak- strengthening co-operation with NGOs.

ing judgment delivered by the ECCJ in The mission consisted of Commissioner
December 2012, the Court found the Dankwa and Amega. The mission
government of Nigeria in violation of recommended amongst others that: the
the African Charter and ordered it to: programme for transition of power from
take all measures as soon as possible the military to civilians should be
ensure restoration of the environment of followed through and that Nigerians
the Niger Delta; prevent occurrence of should be allowed to freely decide on
damage to the environment; and hold those to govern them; members of Niger
perpetrators of the environmental Delta communities should be compen-
damage accountable. It remains to be sated for the damage done to their envi-
seen whether the government of Nigeria ronment through government oil
will comply with this decision. exploration activities; the ‘Ogoni 19’
should be tried speedily and the condi-
In addition to the decision discussed tions under which they lived should be
above, the ECCJ has also found Nigeria improved; and that the military govern-
in violation of various provisions of the ment should release the acclaimed
African Charter amongst other interna- winner of the 1993 Presidential election,
tional human rights instruments in at Chief MKO Abiola, from prison. Most
least three cases, namely Ugokwe v Nige- of these recommendations have been
ria,127 Djot Bayi v Nigeria,128 and SERAP implemented on way or the other.
v Nigeria (Education).129 In a study
carried out in 2013 which analysed the The Special Rapporteur on the
three cases cited above, it was found Rights of Women in Africa conducted a
that full compliance was recorded in promotional mission on the rights of
two.130 women in Nigeria in 2001. In her
report, the Rapporteur recommended
13 Promotional visits by the that the government of Nigeria should:
African Commission take measures to protect women against
all forms of violence, as well as tradi-
The first mission of the African tional beliefs and practices; ensure that
Commission to Nigeria was undertaken the application of ‘Sharia’ does not
from 7 to 14 March 1997. The mission constitute an impediment to the promo-
was approved by the African Commis- tion and protection of women's rights;
sion at its 2nd extraordinary session in and ensure that laws of subnational
Kampala, Uganda, in 1995. The aims of governments respect international
the mission included gathering informa- human rights norms that the Nigeria has
tion about a number of communications willfully accepted. Today, almost all the
which were pending before the African issues raised in the recommendations of
Commission, visiting Ogoniland and the Special Rapporteur remain part of
the lingering problems with regards to
women’s rights in Nigeria.
127 ECW/CCJ/JUD/03/05.
128 ECW/CCJ/JUD/01/09. Another promotional mission was
129 ECW/CCJ/JUD/07/10
130 HS Adjolohoun ´Giving effect to the human undertaken to Nigeria by the African
rights jurisprudence of the Court of Justice of Commission in 2009. The mission
the Economic Community of West African
states: compliance and influence’ recommended amongst others that
unpublished LLD Thesis, University of government should: ensure passage of
Pretoria 2013 389.
 Impact of the African Charter and the Maputo Protocol in selected African states 201

laws aimed at addressing domestic promotional missions in Nigeria. What

violence and discrimination against is however clear is that missions give
women; review the powers, functions more visibility to the work of the
and funding of the NHRC, make the Commission. They also increase public
article 34(6) declaration under the awareness about the African Charter
Protocol to the African Charter on the and the Maputo Protocol. As to holding
Establishment of the African Court; of African Commission’s sessions in
reform and restructure the Independent member states, two sessions of the Afri-
National Electoral Commission; reduce can Commission were held in Nigeria,
overcrowding in prisons and establish namely, the 9th ordinary session, 18-25
an independent oversight body to inves- March 1991, and the 44th ordinary
tigate allegations of police malpractices, session, 10-24 November 2008. This
including unlawful killings. At least two greatly impacted on the level of aware-
of these recommendations have been ness about the African Charter. It also
satisfactorily implemented based on the increased the visibility of the African
researcher’s observations during this Commission in Nigeria.
study. In 2010, a new electoral law was
adopted strengthening the independence 14 Factors that may impede or
of the electoral body and providing for enhance the impact of the
prosecution of electoral offenders, African Charter and the
amongst others.131 The enabling law of Maputo Protocol
the NHRC was also reviewed with the
new law providing for operational,
The factors which are found in this
structural and financial independence of
study to have enhanced the impact of
the NHRC.132 The NHRC currently
the African Charter and the Maputo
enjoys ‘A’ status according to the Inter-
Protocol include the following:
national Coordinating Committee of
National Institutions for the Promotion (a) Strong civil society: This includes NGO
and Protection of Human Rights activists, activist lawyers, minority
(ICC).133 rights advocates, activist politicians and
activist journalists. The NGOs espe-
Between 23 August and 2 Septem- cially Constitutional Rights Project,
Civil Liberties Organisations and
ber 2011, Commissioner Atoki as the
Media Rights Agenda are well estab-
Special Rapporteur for Prisons and lished and well resourced. Civil society
Conditions of Detention in Africa was incredibly creative in deploying the
undertook a prisons’ promotional African Charter.
mission to Nigeria. The full report of (b) Domestication: Perhaps the most impor-
this mission is yet to be made public. It tant enhancing factor is the domestica-
is very difficult to state conclusively the tion of the African Charter in 1983.
The fact that the African Charter was
impact of the African Commission’s
already part of Nigerian law greatly
eased the work of CSOs in convincing
131 See the Electoral Act 2010. local judges to apply the African Char-
132 See the National Human Rights ter. This also helped the judges to
Commission (Amendment) Act 2010. develop the far reaching ‘African Char-
133 See International Coordinating Committee ter superiority propositions’.
of National Institutions for the Promotion
and Protection of Human Rights ‘Chart of (c) Number of communications against Nige-
the status of national institutions’ (2014) ria: The impact of the African Charter
www.ohchr.org/Documents/Countries/
NHRI/Chart_Status_NIs.pdf (accessed 20 in Nigeria has been enhanced by the
November 2015). volume of citable jurisprudence set out
202 Nigeria

by the Commission in communications tor-General of Nigeria’s Consumer

submitted against Nigeria. Protection Council, which office she
(d) Judicial activism: In partnership with still hold as at the time of compiling
activist CSOs, progressive judges have this report.
demonstrated exceptional courage and
creativity in giving effect to the African It is noteworthy that much has changed
Charter. since Nigeria returned to civil rule in
(e) Academic writings: Academic writings of 1999. Creative use of the African Char-
commentators like Odinkalu, Udom- ter by domestic courts has dropped
bana, Umozurike, Falana and Osita significantly. The same is true of the
Eze amongst others have greatly number of communications filed against
enhanced the level of awareness about
Nigeria before the African Commission.
the African Charter in Nigeria.
However, civil society advocacy and the
(f) Support by the Commission: Another fac-
general level of awareness about the
tor that has enhanced the impact of the
African Charter and the Maputo Proto- African Charter and the Maputo Proto-
col in Nigeria is the direct support and col have improved. The Maputo Proto-
encouragement given to CSOs in Nige- col has also continued to exert steady
ria by the African Commission. influence on the executive arm of
(g) The overall international and domestic con- government as well as civil society
texts: One factor that is often excluded organisations. However, the impact of
from consideration is the overall inter-
the Protocol on legislative and judicial
national and domestic context which
was favourable or even supportive of activities has been less than satisfactory.
the activities of the CSOs and that of While laws and judicial decisions have
the African Commission. Such context progressively been aligned with provi-
includes the repression and human sions of the Maputo Protocol, explicit
rights abuses by the military despots in
reference to the Protocol in legislation
Nigeria, the suspension of Nigeria from
the Commonwealth of Nations in 1995 and judicial decisions has been the
and the general relegation of Nigeria to exception rather than the norm. It is
the status of a pariah nation by foreign assumed that the absence of one or
nations and donors during the long more of the conditions which earlier
years of military dictatorship.
enhanced the impact of the Charter is
(h) Membership of the Commission: Up to the responsible for the limited impact of the
time of compiling this report of Nige-
African Charter and the Maputo Proto-
ria, two Nigerians have served on the
African Commission. These include col in Nigeria during the study period.
Professor Oji Umozurike (1989-1997)
and Ms Catherine Modupe Atoki
(2007-2013). Most importantly, their
appointments have contributed to the
development of the NHRC. After his
retirement from the African Commis-
sion, Professor Umozurike was
appointed on the Board of the NHRC
in 2000. Ms Atoki was until her
appointment a Special Rapporteur of
the NHRC on Women and Gender
related matters. Ms Atoki was also a
member of the Governing Council of
the NHRC until 2007 when she was
appointed to the African Commission.
After serving her term at the African
Commission, she was appointed Direc-
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
SIERRA LEONE

Augustine Sorie Marrah*

1 Introduction works and general awareness of human

rights.4
Sierra Leone is one of the world’s least
developed countries, with a population Although there has been an increase
of about six million people and high in legislation in favour of women, tradi-
levels of entrenched poverty, illiteracy tional practices and societal attitudes to
and youth unemployment.1 Sierra women and their livelihoods remain
Leone is a multi-party democracy with a largely unchanged. A recent study by
fusion of presidential and parliamentary Plan International, Save the Children
systems of government. While women and World Vision International
make up the highest percentage of the concluded that teenage pregnancy and
national population, they constitute just gender-based violence are on the rise
13,2 per cent of the current parliament.2 across the country mainly due to the
Ebola Virus Disease (EVD).5 The most
Sierra Leone is a state party to most recent incident of sexual violence was in
international treaties or conventions the case of a girl who was gang-raped
including the African Charter, and has along the main beach in Freetown.6
recently ratified the Maputo Protocol.3
While Sierra Leone continues to face Sierra Leone’s Constitution guaran-
enormous challenges in upholding tees fundamental human rights and free-
human rights within its borders, it
continues to record progress in the areas 4 ‘The state of human rights in Sierra Leone
of legislative and other policy frame- 2013’ http://www.hrcsl.org/ (accessed
10 November 2015).
5 Save the Children ‘Children Report
increased exploitation, teenage pregnancies
in Ebola-affected Sierra Leone’ http://www.
savethechildren.org/site/apps/nlnet/conten
t2.aspx?c=8rKLIXMGIpI4E&b=9241341&c
t=14736265&notoc=1 (accessed 20 Septem-
* LLM HRDA (Pretoria); Secretary, General ber 2015). Also see Awoko ‘Sierra Leone
Legal Council in Sierra Leone. News: Sexual penetration on the increase in
1 UNDP ‘About Sierra Leone’ http://www. Kenema District’ http://awoko.org/2015/
sl.undp.org/content/sierraleone/en/home/ 08/21/sierra-leone-news-sexual-penetration-
countryinfo.html; Sierra Leone Demograph- on-the-increase-in-kenema-district/
ics Profile 2014 http://www.indexmundi. (accessed 10 November 2015).
com/sierra_leone/demographics_profile. 6 UN in Sierra Leone ‘Statement from the
html (accessed 10 November 2015). United Nations Country Team in Sierra
2 As above. Leone over the rape and murder of a young
3 Ratified on 2 July 2015. woman at Lumley Beach, Freetown’

203
204 Sierra Leone

doms to all. Section 15 of the does not apply to any law regarding
Constitution7 guarantees fundamental adoption, marriage, divorce, burial,
human rights and freedoms of the indi- devolution of property on death or other
vidual notwithstanding their ‘race, tribe, matters of personal law. Women in Sier-
place of origin, political opinion, colour, ra Leone face discrimination in custom-
creed or sex, but subject to respect for ary laws relating to marriage, property
the rights and freedoms of others and for distribution, adoption and constitutional
the public interest’. These rights include recognition.
the right to life and liberty, security of
the person, freedom of movement, free- The Constitution of Sierra Leone is
dom of expression, conscience and evidently out of touch with modern
assembly, and protection from depriva- principles of good governance and the
tion of property. overall realities of democratic processes.
There is currently a Constitutional
The Constitution of Sierra Leone Review Committee11 that is charged
does not guarantee socio-economic with the mandate of formulating a new
rights as they only constitute part of the national constitution reflecting the aspi-
‘fundamental principles of state policy’.8 rations of the peoples of Sierra Leone in
Although the Constitution broadly the current political and social-econom-
enshrines most civil and political rights, ic era both nationally and globally. A
enjoyment of these rights is however representative of the Sierra Leone Bar
limited by claw-back clauses. For Association on the committee stated
instance, even though the Constitution that the African Charter has become the
guarantees the right to life, capital primary source of consultation in the
punishment is still legal and can be used area of human rights and ‘is very useful
in some circumstances, namely murder in putting together the new bill of rights
and treason.9 for Sierra Leone’. She remarked that she
was not aware of the African Charter
In addition to the limited rights until her appointment to the committee.
contained in the Constitution of Sierra
Leone, section 27(4)(d) which has been 2 Ratification and domestication
termed the notorious constitutional
provision in relation to women’s rights
Sierra Leone has a dualist system of
further allows discriminatory laws to be
incorporating international laws. This
applicable to women.10 Section 27(4)(d)
means that Sierra Leone must domesti-
states that the non-discrimination clause cate a treaty or international convention
in order for that treaty or international
6 20 August 2015 http://sl.one.un.org/2015/ convention to constitute part of its body
08/20/statement-from-the-united-nations- of laws. Because of this, international
country-team-in-sierra-leone-over-the-rape-
and-murder-of-a-young-woman-at-lumley- instruments do not automatically form
beach-freetown/ (accessed 10 November part of the legal regime of Sierra Leone
2015).
7 Act 6 of 1991. until they are domesticated.
8 Chap II of the Constitution.
9 Sec 16 of the Constitution.
10 Constitutional Review Committee, Republic Although the African Charter and
of Sierra Leone ‘“Expunge the infamous Sec the Maputo protocol have been ratified
27(4) (d) and (e) now” Women demand’
available at http://constitutionalreview. gov.
sl/site/MediaCenter/NewsPressReleases/ 11 Constitutional Review Committee website
expunge_infamous_sec27(4)(d)_(e)_wome http://constitutionalreview.gov.sl/site/Hom
n_demand.aspx (accessed 10 March 2016). e.aspx (accessed 20 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 205

by Sierra Leone, they have not been Attorney General in the Ministry of
incorporated into the municipal laws of Justice. The latter is the principal legal
Sierra Leone. The African Charter was advisor to the government of Sierra
ratified on 21 September 1983 while the Leone and has an international division
Maputo Protocol was ratified in July that handles treaties or other instru-
2015 some twelve years after Sierra ments to which Sierra Leone is a state
Leone signed the Protocol. The instru- party.
ment was placed before parliament by
the Minister of Social Welfare, Gender The Ministry of Social Welfare,
and Children’s Affairs supported by Gender and Children’s Affairs is the
numerous civil society groups. A senior main focal point for the Maputo Proto-
official in the Foreign Affairs Ministry col. Although it collaborates with the
noted that ‘Sierra Leone did not enter two other ministries mentioned above,
any reservations while ratifying the Afri- the gender ministry has been involved
can Charter and the Maputo Proto- with the Maputo Protocol more than
col’.12 any other governmental entity in Sierra
Leone.
Broadly speaking, international law
can become part of domestic law by 3 Legislative reform or adoption
either the act of incorporation or
through judicial use. However, provi- Sierra Leone has not undertaken any
sions from the African Charter and significant legislative reforms in the light
Maputo Protocol have not been relied of the African Charter and the Maputo
upon by Sierra Leonean courts. The Protocol. The enactment of what have
African Charter and the Maputo Proto- been dubbed ‘the three gender laws’ the
col have been rarely (if at all ever) used Domestic Violence Act 2007, the Regis-
in binding judicial precedents which tration of Customary Marriage and
would have incorporated provisions of Divorce Act 2008 and the Devolution of
these instruments into the laws of Sierra Estates Act 2007 – were prompted, in
Leone. the opinion of civil society, by the grow-
ing awareness and use of the African
The Ministry of Justice and Minis-
Charter amongst other international
try of Foreign Affairs and International
treaties.
Co-operation are the principal ministries
concerned with treaties and other inter- The Domestic Violence Act 2007
national instruments signed by Sierra addresses issues of widespread violence
Leone. There is specifically a human against women especially in domestic
rights division within the Ministry of settings in Sierra Leone in line with arti-
Foreign Affairs charged with the respon- cle 4 of the Maputo Protocol, which
sibility of handling, compiling and deals with the rights of women to life,
advising the government mainly in integrity and security.
respect of ratification of human rights
treaties signed by Sierra Leonean pleni- The Registration of Customary
potentiaries. In respect of ratification Marriage and Divorce Act was passed
and incorporation, the Ministry of to give recognition to customary
Foreign Affairs liaises with the Office of marriages, which are the most contract-
ed in the country. This law makes it
mandatory for customary marriages to
12 Interview granted on 3 August 2015.
206 Sierra Leone

be registered and this is in line with arti- vant provisions of the African Charter
cle 6(d) of the Maputo Protocol. This and the Maputo Protocol.
Act also extends recognition of custom-
ary divorce which women can now 4 Policy reform or adoption
obtain unlike before. This aspect relates
to article 7 of the Maputo Protocol. The government’s national policies have
not been directly geared towards imple-
The Devolution of Estate Act was
mentation of the African Charter or the
enacted to address issues of inheritance
Maputo Protocol but some inevitably
of property by women upon the demise
address crucial human rights issues
of their spouses. Before the passage of
contained in the African Charter and
this law, women whose husbands died
the Maputo Protocol.
intestate could not inherit if their tribal
customary laws did not provide as such. The Minister of Social Welfare,
The content of this legislation is in line Gender and Children’s Affairs noted
with article 21 of the Maputo Protocol, that ‘government has taken both legisla-
which deals with a widow’s right to tive and policy measures to address
inheritance. harmful practices to women’.16 He stat-
ed that the President has, inter alia,
In 2012, the Sexual Offences Act
endorsed the national campaign for the
was passed in order to address the rising
minimum 30 per cent quota of women
tide of sexual violence across the coun-
in political decision-making positions.
try. This could very well be interpreted
He maintained that Sierra Leone is the
as fulfilment of Sierra Leone’s obliga-
first country in the sub-region to declare
tion under article 4(2)(a) of the Maputo
International Women’s day – 8 March –
Protocol.13 The sexual offences law for
as a national public holiday. The Agen-
the first time also makes provision for
da for Prosperity17 which is the govern-
free medical treatment for sexual
ment’s roadmap for governance and
violence victims.14 The Executive
development in Sierra Leone has gender
Director of Advocaid15 noted that the
equality and women’s empowerment as
enactment of the Sexual Offences Act
one of its eight pillars. The government
was prompted by advocacy from civil
states in the said document that ‘it is
society consortiums in partnership with committed to addressing Gender Equal-
international actors and that the Maputo ity and Women’s Empowerment in the
Protocol was frequently cited during the area of legal and policy reforms’.18
process of enactment. A senior official
in the Attorney-General’s office main- There is a national healthcare policy
tained that the Disability Act of 2011 for free medical services to pregnant
and the Legal Aid Act of 2012 were all women, nursing mothers and children
in compliance with the state’s interna- across the country which has been in
tional obligations arising from the rele- force since April 2010. This has helped

13 Art 4(2)(a) provides that state parties shall

take appropriate and effective measures to: 16 Interview with Hon Emmanuel M Kaikai on
(a) enact and enforce laws to prohibit all 7 August 2015.
forms of violence against women including 17 ‘Agenda for Prosperity’ http://www.undp.
unwanted or forced sex whether the violence org/content/dam/sierraleone/docs/project
takes place in private or public. documents/povreduction/undp_sle_The%2
14 Section 39 of the Sexual Offences Act 2012. 0Agenda%20for%20Prosperity%20.pdf
15 Advocaid is a leading women’s right (accessed 10 November 2015).
organisation in Sierra Leone. 18 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 207

in some way to reduce the maternal and Charter and the Maputo Protocol, espe-
infant mortality rates in the country.19 cially in their advocacy activities.
There is also a National HIV Prevention Through this entity, the African Charter
Strategy 2011-2015 addressing preven- and Maputo Protocol are thus becoming
tion of infections and the treatment, care familiar instruments within civil society
and support of those infected.20 activism although their usage in the
courtrooms still has a long way to go.
5 Court judgments
Currently the Society for Democrat-
ic Initiatives (SDI-SL) has filed two
The African Charter and the Maputo
applications in the Supreme Court chal-
Protocol are rarely cited in court deci-
lenging certain public order provisions
sions in Sierra Leone. This is partly
on the grounds of the African Charter
because they have both not been incor-
including other international treaties.22
porated into the laws of Sierra Leone. It
could also be attributed to the fact that Panels are yet to be constituted for these
lawyers very seldom reference or cite actions.
them in their pleadings or submissions
The Human Rights Commission of
in court. The current president of the
Sierra Leone employs the African Char-
Sierra Leone Bar Association remarked
ter and the Maputo Protocol in arriving
that ‘the African Charter and the Mapu-
at some of its quasi-judicial decisions.23
to Protocol have not been very popular
amongst lawyers in Sierra Leone’.21
Also, human rights related public inter-
6 Awareness and use by civil
est litigation is few and far between in society organisations
Sierra Leone, another reason for the low
levels of awareness of the African Char- Ibrahim Tommy, the Executive Director
ter in the courtrooms of Sierra Leone. of the Centre for Accountability and
Rule of Law, a leading human rights
In recent times, a group of female organisation in Sierra Leone, held the
lawyers formed an organisation called view that the African Charter and the
Legal Access through Women Yearning Maputo Protocol are no longer unfamil-
for Equality Rights and Social Justice iar instruments to civil society groups
(LAWYERS). This group of female but expressed doubt as to the apprecia-
legal practitioners use both the African tion of the contents of those instruments
by human right activists. A few organi-
sations – such as Prison Watch SL,
19 Sierra Leone previously had one of the worst Human Right Defenders, and Amnesty
statistics on maternal and infant mortalities.
See http://www.sl.undp.org/content/sierra International – have applied for observer
leone/en/home/mdgoverview/overview/m status24 with the African Commission
dg4.html check link and provide description;
Sierra Leone infant mortality rate http:// but none has been granted so far. Alpha
www.indexmundi.com/sierra_leone/infant_
mortality_rate.html (accessed 10 November
2015).
20 National HIV/AIDS Secretariat, Sierra 22 Interview with Emmanuel Saffa Abdulai,
Leone ‘Sierra Leone National HIV Executive Director, Society for Democratic
Prevention Strategy 2011-2015’ http://www. Initiatives, 4 August 2015.
nas.gov.sl/publication/124-sierra-leone-nati 23 Interview with Doris Sonsiama, Senior
onal-hiv-prevention-strategy-2011-2015 Human Right Officer, Human Right
(accessed 16 November 2015). Commission, 4 August 2015.
21 Interview with Ibrahim Sorie, President 24 Email interview with Alpha Sesay, legal
Sierra Leone Bar Association, 3 August officer – Open Society Foundation,
2015. 16 November 2015.
208 Sierra Leone

Sesay, a legal officer at the Open Society The Executive Director of the Socie-
Foundations at the Hague observed that ty for Democratic Initiatives remarked
there is a growing interest in the African that awareness of both instruments is
Charter and the Maputo Protocol by rising within civil society as they are
local NGOs in Sierra Leone and this, he used oftentimes as advocacy tools but
said, was evidenced by their presence at noted that the same could not be said
the African Commission’s 57th ordinary for the implementation of the rights
session notwithstanding their non- contained in the said instruments.
observer status.25
The UN Country Team referred to
A senior member26 of LAWYERS the Maputo Protocol in their state-
hinted that the Maputo Protocol became ment27 on a recent rape incident in Sier-
an every day read during their advocacy ra Leone:
for the ratification of the said protocol.
She noted she was a participant in some The UN recalls that sexual assault against
women, especially gang rape, was rampant
training on the Maputo Protocol in
during the 1991-2002 civil war in Sierra
Tanzania and that most of the provi- Leone. The UNCT is also cognizant of the
sions of the Maputo Protocol have fact that the government of Sierra Leone
formed the aims and objectives of their passed legislation in 2007 making the
organisation. sexual abuse of women a criminal act. In
addition, it reminds the authorities that
Sierra Leone ratified the African Charter
The Executive Director of Advocaid
on Human and People’s Rights on the
noted that the African Charter and the Right of Women in Africa, a Charter that
Maputo Protocol are the tools they requests the state parties to protect women
mainly use in their trainings of prison from all forms of violence, particularly
officers in regards their handling of sexual and verbal violence:
female inmates. In her opinion, aware-
‘States Parties shall adopt and implement
ness of these instruments is increasing appropriate measures to ensure the
but adherence to the provisions of those protection of every woman’s right to
instruments is far from satisfactory. respect for her dignity and protection of
women from all forms of violence,
Ms Yasmin Jusu-Sheriff, a senior particularly sexual and verbal violence.’
(Article 3/4, Protocol to the African
human rights lawyer and civil society
Charter on Human and People’s Rights on
activist maintained that while awareness the Right of Women in Africa).
and use of both the African Charter and
Maputo Protocol are of appreciable 7 Incorporation in law school
levels within the civil society sector, she education and academic
lamented that such is not the same with
writings
magistrates and judges. She noted that
civil society would often use these
instruments in advocacy activities prior The Department of Law at the Universi-
to their ratification but would usually ty of Sierra Leone has for the first time
abandon them after ratification. introduced a human rights module in
the law programme. This appears to be
inspired by the growing recognition of
the African Charter and the Maputo
25 As above.
26 Christiana Davies-Cole is the Project
Manager of LAWYERS. Interview granted
on 5 August 2015. 27 UN in Sierra Leone (n 6 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 209

Protocol. The African regional system is National Institutions for the Promotion
one of the components of the course. and Protection of Human Rights (ICC).
This accreditation played a huge role in
It is hoped that this course marks Sierra Leone’s election to the member-
the beginning of a profound interest ship of the UN Human Right Council in
within the legal profession for human 2012.29
rights treaties both regionally and inter-
nationally. That inevitably would expe- Ms Jamesina King, a commissioner
dite the incorporation of the African of the HRCSL who was appointed in
Charter and the Maputo Protocol June 2015 as a commissioner of the
amongst other treaties awaiting domesti- ACHPR, noted that the African Charter
cation. and the Maputo Protocol are part of the
key tools being used in the discharge of
There is a noticeable dearth of the Commission’s mandate.30 She
academic resources in Sierra Leone and maintained that the Commission
this unattractive reality extends to employs these instruments both in its
academic materials in relation to human quasi-judicial functions and in their
rights. Before now, very few human public education and trainings, which
rights activists and organisations are offered to diverse entities and groups
referred to the African Charter in their across the country. She noted further
brochures and handbooks on human that the HRCSL does make reference to
rights. This situation is fast changing certain provisions of the African Charter
since most organisations now utilise the and the Maputo Protocol in its annual
African Charter and more new women’s reports on the state of human rights in
organisations are using the Maputo the country. Ms King maintained that
Protocol in their advocacy drives. While the Commission collaborated with
academic material referencing the Afri- many other human rights organisations
can Charter may still be limited, these in advocating for the ratification of the
instruments do come in handy in civil Maputo Protocol.
society advocacy activities.
‘[A] [f]ew years ago, the relationship
8 National human rights between the African Commission and
institutions the HRCSL was tenuous’, she said. But
that has changed since they were trained
There is a human right commission, and by a representative of the African
an office of the ombudsman in Sierra Commission on how to compile a state
Leone. The Human Right Commission report. Ms King’s recent appointment to
of Sierra Leone (HRCSL) was estab- the African Commission31 as a member
lished in 200428 in accordance with the will hopefully also strengthen the ties
Paris Principles. The Commission is
charged with the mandate of promoting 29 United Nations Human Rights Council
‘Current Membership of the Human Rights
and protecting human rights across the Council, 1 January-31 December 2016’ http:
country. The Commission was accredit- //www.ohchr.org/EN/HRBodies/HRC/Pa
ges/CurrentMembers.aspx (accessed 20 Sep-
ed ‘A Status’ in 2011 by the UN Interna- tember 2015).
tional Coordinating Committee of 30 Interview granted on 4 August 2015. Report
available at http://www.achpr.org/sessions/
57th/ (accessed 16 November 2015).
31 African Union ‘25th Assembly of the African
28 Established pursuant to the Human Right Union commits to mainstreaming women as
Commission of Sierra Leone Act 9 of 2004. the Continent begins to implement Agenda
210 Sierra Leone

between HRCSL and the African General of Sierra Leone who was
Commission. accompanied by the Sierra Leone
Ambassador to The Gambia, the head
The Office of the Ombudsman is of the Justice Sector Coordination
very much overshadowed in recent programme, a state counsel and a few
times by the prominence stemming from others.35
the activities of the HRCSL. The aware-
ness and usage of the African Charter The report is a 28 page document
and Maputo Protocol by the Office of detailing the human-rights situation,
Ombudsman in Sierra Leone is not legal frameworks and general practice in
noticeable to say the least. Currently, regard to both civil and political rights
the Ombudsman heads the Constitu- and socio-economic rights in Sierra
tional Review Committee. Therefore, it Leone. The Report seems to group both
is hoped that by the time that assign- categories of rights as if both are justicia-
ment expires, his knowledge and usage ble in Sierra Leone. It does not disclose
of these instruments would have what steps the state of Sierra Leone is
increased, courtesy of the numerous taking to ensure that socio-economic
citations and references by human right rights are enforceable in Sierra Leone.
advocates. Whilst the report attracted several ques-
tions from the commissioners regarding
9 State reporting the human rights situation in Sierra
Leone, the country was applauded for
Sierra Leone submitted its first state establishing the Independent Police
report under the African Charter in Complaints Commission.36 A shadow
2014.32 Ms King noted that the Human report is said to have been presented by
Right Commission of Sierra Leone one local NGO.37
worked in collaboration with the Attor-
It is hoped that Sierra Leone, going
ney General’s Office in putting together
forward, will be compliant with her
the said report. Sierra Leone could not
state reporting obligations under the
send a delegation to present the report
African Charter and also under the
because of the outbreak of the EVD
Maputo Protocol.
until November 2015.33 The state report
was developed by the Attorney-Gener-
al’s Office in collaboration with the 10 Communications and
HRCSL and in consultation with civil promotional visits
society groups in the country.34 The
report was presented by the Attorney To date, only one communication has
been submitted against Sierra Leone to
the African Commission for, inter alia,
31 2063’ http://summits.au.int/en/25thsumm
it/events/25th-assembly-african-union-com contravention of the right to life.38 The
mits-mainstreaming-women (accessed government of Sierra Leone executed 24
10 November 2015).
32 See African Commission on Human and soldiers after being tried and sentenced
Peoples’ Rights ‘Sierra Leone: Initial and
Combined Reports, 1983-2013’ http://www.
achpr.org/states/sierra-leone/reports/1st-19
83-2013/ (accessed 16 November 2015). 35 As above.
33 At the 57th ordinary session 4-18 November 36 As above.
2015. 37 n 24 above.
34 Khadija Z Bangura, state counsel, Attorney 38 223/98 Forum of Conscience v Sierra Leone
General’s office. Interview granted on 16 http://caselaw.ihrda.org/doc/223.98/
November 2015. (accessed 16 November 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 211

to death by a Court Martial for their 11 Factors that may impede or

alleged roles in a coup that unseated a enhance the impact of the
democratically elected government African Charter, the Maputo
headed by President Ahmed Tejan Protocol and the African
Kabah. The communication alleged Commission
procedural improprieties in the trial and
the execution before appeal, a violation
A few years ago, the African Charter
of the African Charter. The African
and the Maputo Protocol were largely
Commission, which was only seized of
unknown both in terms of awareness of
the matter after Sierra Leone had
their existence and impact in human
executed the twenty-four soldiers, decid-
rights related issues. This cannot hold
ed that the execution was in breach of
true any more for these two instruments.
the right to life under the African Char-
Firstly, the Maputo Protocol has been
ter.
ratified by Sierra Leone’s Parliament
Sierra Leone still has death penalty and this would not have happened but
provisions although a moratorium has for the nationwide advocacy efforts of
been in place for a long time and prison- many women’s groups. Therefore,
ers on death row are occasionally grant- recognition of these instruments has
ed presidential clemency.39 heightened in recent times. Also, many
human rights organisations are now
The African Commission has not beginning to use some of the provisions
undertaken any promotional or fact- of these instruments in bringing pressure
finding missions to Sierra Leone. A to bear on the government in human
promotional visit was scheduled some- rights related issues. The appointment of
time in 2014 but was cancelled due to Ms King to the African Commission has
the outbreak of the EVD, according to also substantially brought the African
Ms King.40 Charter and the Maputo Protocol to the
media spotlight. This is no doubt an
In 2010, the Special Rapporteur on opportunity for the HRCSL to build a
Prison and Places of Detention in Africa stronger connection with the African
was invited to a workshop in Sierra Commission. Sierra Leone’s presenta-
Leone. This invitation afforded the tion of its state report to the African
Special Rapporteur the opportunity to Commission was witnessed by only a
engage with the stakeholders in the pris- few of its local NGOs and did not
on sector of Sierra Leone.41 attract media attention in Sierra Leone.

While awareness levels of the exist-

39 Sierra Leone State Report (n 32 above) 9. ence of the African Charter and the
40 Jamesina King, Commissioner, Human
Right Commission SL, interview granted on Maputo Protocol have certainly soared,
5 August 2015 in Freetown. the same cannot be said of the overall
41 African Commission on Human and
Peoples’ Rights ‘Report of the Special impact of these instruments. This is
Rapporteur on prisons and conditions of partly due to the absence of political will
detention in africa’ Presented by Hon
Commissioner Med SK Kaggwa at the in upholding, promoting, fulfilling and
52nd Ordinary Session of the African respecting the human right of all persons
Commission on Human and Peoples’
Rights Yamoussoukro, Côte d’Ivoire, in Sierra Leone.
9 - 22 October 2012 http://www.achpr.org/
ses sions/52nd/intersession-activity-reports/
prisons-and-conditions-of-detention/
(accessed 16 November 2015).
212 Sierra Leone

Secondly, the non-domestication of while there is increasing recognition,

the African Charter and the Maputo education is pretty low on the extent of
Protocol has considerably crippled the these rights and the reciprocal govern-
impact these instruments would have ment obligations to promote, respect
had in enriching the inadequate consti- and fulfil them. The shallow knowledge
tutional rights in Sierra Leone. Domesti- of these instruments has affected their
cation is the first step in impact which is limited depending on
implementation, which consequently the threshold of knowledge. Many civil
would engender the impact of these society activists still regard international
instruments in all spheres of the Sierra human rights instruments as nonbinding
Leonean society. obligations and therefore only useful to
persuade government to honour its
Thirdly, within legal circles, the human rights obligations. Such attitudes
African Charter and the Maputo Proto- pose difficulties in impactful implemen-
col are not as popular as they are within tation of the African Charter and the
the civil society sector. Lawyers and Maputo Protocol.
benchers have either been too conserva-
tive or not very au fait on how to employ Thirty years after the adoption of
the provisions of these regional human the African Charter and over twelve
right instruments. This in part may be years after the adoption of the Maputo
due to the unincorporated status of these Protocol, harmful cultural practices
instruments. However, the judicial continue to torment and oppress
reluctance to utilise these instruments in women. Customary laws, which are
court and judgments has largely affected mostly unpleasant to women in Sierra
the growth and impact of these regional Leone, are still constitutionally recog-
human rights instruments in Sierra nised as part of the laws of Sierra
Leone. Active litigious usage of the Afri- Leone.42 This means therefore that
can Charter and the Maputo Protocol customary practices recognised by law
could broaden the recognition and stim- may continue to hamper the impact of
ulate substantial protection and fulfil- both the African Charter and the Mapu-
ment of human and peoples’ rights. to Protocol especially in the lives of
Also, judicial activism by means of women and children.
using the provisions of the African
Charter and the Maputo Protocol could In the case of the Maputo Protocol,
enhance the impact of these instru- the limitations outlined in the Agenda
ments. In order to promote and protect for Prosperity are exact and extensive.43
human rights in Sierra Leone, lawyers There is a dearth of resources to fully
and academics must move beyond tradi- implement the policies, plans and legis-
tional legal and academic contours by lation relating to the Maputo Protocol.
engaging the said regional instruments The Ministry of Social Welfare, Gender
in lawsuits and judicial discourse even and Children’s Affairs continues to face
when they remain undomesticated. institutional and technical constraints
due to insufficiency of staff. Domestica-
Fourthly, even though civil society tion of international and regional
groups and media entities often refer to
the African Charter and the Maputo
Protocol, they arguably still do not fully 42 Sec 170 of the Constitution.
comprehend their provisions. In effect, 43 Agenda for Prosperity (n 17 above) 142 &
143.
 Impact of the African Charter and the Maputo Protocol in selected African states 213

women’s rights instruments remains

undone.44

While progress made in terms of the

awareness levels of both the African
Charter and Maputo Protocol and the
ratification of the latter instrument must
not be overlooked, there is certainly
much yet to be achieved. Since both
instruments have been ratified by Sierra
Leone, it behoves Sierra Leone to start
implementing them by first taking steps
to incorporate them into the laws of
Sierra Leone so that they can become
enforceable domestically. Incorporation
of these instruments would no doubt
foster progress in the political, economic
and social spheres of Sierra Leone.
Human rights are not meant to deterio-
rate society but to improve the liveli-
hoods of all persons irrespective of
status, age, sex and religious and politi-
cal convictions.

44 As above.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
SOUTH AFRICA

Ofentse Motlhasedi*
Linette du Toit**

1 Introduction changed its attitude toward internation-

al law.4 While the country viewed inter-
In 1994, South Africa made a remarka- national law as a threat to the state
ble transition from an oppressive regime during apartheid; it made deliberate
characterised by racial segregation, efforts to align itself with international
inequality and authoritarianism to standards by signing multiple human
constitutional democracy. The 1996 rights treaties shortly after the Interim
Constitution has a transformative Constitution came into force.5
purpose and seeks to create a free, equal
and democratic South Africa.1 As the The 1996 Constitution’s transforma-
point of reference for the fostering of a tive vision includes the creation of a
culture of human rights, the Constitu- society where all are equal.6 While the
tion includes an enforceable and exten- main focus of this transformative project
sive Bill of Rights2 and recognises ‘the has been on equality of races, special
advancement of human rights and free- attention has also been paid to the status
doms’ as a founding value of the Repub- and position of women in the country.7
lic.3 On 9 August 2015, which is Women’s
Day in South Africa, the recurring senti-
As part of this democratic tran- ment was expressed that the country has
sition, South Africa has drastically made significant progress as far as

4 J Dugard ‘Kaleidoscope: International law

and the South African Constitution’ (1997) 1
European Journal of International Law 77.
5 Dugard (n 4 above) 82. South Africa signed
* LLM HRDA (Pretoria). the Convention on the Rights of the Child
** LLM HRDA (Pretoria). and the Convention on the Elimination of
1 K Klare ‘Legal culture and transformative All forms of Discrimination against Women
constitutionalism’ (1998) 14 South African in 1993 and the International Covenant on
Journal on Human Rights 146 150. Civil and Political Rights and the
2 See Chap 2 of the Constitution of the International Covenant on Economic, Social
Republic of South Africa, 1996 (the and Cultural Rights in 1994.
Constitution). South Africa’s Constitution 6 Sec 1(a) of the Constitution.
has often been praised for its progressive 7 The Constitution has an extensive equality
nature. It is the first Constitution in Africa to provision (sec 9) and also mandated the
include enforceable socio-economic rights. creation of a Commission for Gender
3 See sec 1(a) of the Constitution. Equality (sec 187).

215
216 South Africa

women’s rights are concerned, but that of the death penalty on pregnant and
much more needs to be done.8 nursing women. South Africa’s position
was that the section does not find appli-
It is within this context that we will cation in South Africa because the death
consider the impact of the African Char- penalty has been abolished and the
ter and Maputo Protocol in South Afri- existence of article 4(2)(j) may be
ca. construed as an inadvertent sanctioning
of the death penalty in other state
2 Ratification of the African parties.12 The second reservation, to
Charter and Maputo Protocol article 6(d), was entered into on the
basis that in accordance with national
South Africa ratified the African Char- laws, the recording of a marriage in
ter on 9 July 1996 and the Maputo writing is not necessary for it to be legal-
Protocol on 17 December 2004.9 ly recognised; particularly in light of the
fact that the failure to register a custom-
During the Maputo Summit, South ary marriage does not render that
Africa and other nations expressed marriage invalid.13 The final reservation
reservations to the Protocol.10 At the made, in relation to article 6(h), is
time of ratification, South Africa made founded on the basis that this article
three reservations and two interpretative may remove inherent rights of citizen-
declarations to the Maputo Protocol.11 ship and nationality from children
The first reservation was made to article which South Africa seeks to protect.14
4(2)(j) which deals with the imposition
Interpretive declarations were also
entered by South Africa. The first of
8 South African government website these was to article 1(f) where South
‘President Jacob Zuma: Celebration of
National Women’s Day’ 9 August 2015 Africa states that the definition of
http://www.gov.za/speeches/president-jaco ‘discrimination against women’ in the
b-zuma-celebration-national-women%E2%8
0%99s-day-9-aug-2015-0000 (accessed 1 Sep- Maputo Protocol has the same meaning
tember 2015). Positive strides include the fact and scope as provided for by the Consti-
that in 2014, 59% of university graduates and
43% of the cabinet were women. Yet, women tution of the Republic of South Africa.15
are far from equal to men on many bases and The second interpretive declaration
those living in rural areas remain particularly
vulnerable to the violation of their rights. made, in respect of article 31, provides
Gender-based violence remains grossly that the South African Bill of Rights
widespread and underreported. Women still
make out a disproportionate section of the should not be interpreted to offer less
unemployed and remain more likely to be favourable protection of human rights
employed in low-skilled occupations.
Dominant social norms place unpaid work than the Maputo Protocol, since the
such as childcare and home-making in the Maputo Protocol does not expressly
domain of ‘a woman’s responsibility’ which
means that women have less time and
opportunity to participate in the labour
market. Department of Women ‘The status
of women in the South African economy’
(2015) 9 http://www.gov.za/sites/www.gov.
za/files/Status_of_women_in_SA_economy
.pdf (accessed 1 September 2015).
9 http://www.africa-union.org/root/au/Doc 11 the Rights of Women in South Africa: South
uments/Treaties/List/Protocol%20on%20 Africa’s reservations and interpretative
t h e % 2 0 R i g h t s % 2 0 o f % 2 0 Wo m e n . p d f declarations’ (2008) 41 Law Democracy and
(accessed 21 August 2015). Development 52.
10 See http://www.chr.up.ac.za/hr_docs/them 12 Mujuzi (n 11 above) 52-53.
es/theme39.html (accessed 21 August 2015). 13 Mujuzi (n 11 above) 53-56.
11 JD Mujuzi ‘The Protocol to the African 14 Mujuzi (n 11 above) 56.
Charter on Human and People’s Rights on 15 Mujuzi (n 11 above) 56-58.
 Impact of the African Charter and the Maputo Protocol in selected African states 217

provide for limitations in the way the treaties. A signature of a treaty does not
Bill of Rights does.16 by itself establish South Africa’s consent
to be bound by the treaty;21 a resolution
In respect of the African Charter, of ratification must be passed by the
South Africa entered a declaration call- National Assembly and the National
ing for improved consultation on Council of Provinces.
enforcement mechanisms, limitations to
the rights in the African Charter and The ordinary procedures for
congruency between the African Char- concluding international agreements
ter and the United Nations resolutions have been provided in the Guideline for
characterising Zionism. This is generally Conclusion of Agreements and involve
not considered to qualify as a reserva- the following:
tion.17
(a) obtaining opinions on the agreement’s
Prior to the enactment of the final consistency with both domestic law
and international law from the Office
Constitution in 1996, the executive exer-
of the Chief State Law Advisers
cised exclusive treaty making power.18 (OCSLA) in the Department of Justice
With the advent of democracy and the and Constitutional Development and
abolishment of parliamentary sovereign- the State Law Advisers in the Depart-
ty in favour of constitutional supremacy, ment of International Relations and
Cooperation respectively;
the process of signing, ratification and
accession to international treaties was (b) preparation of a President’s Minute by
the responsible government depart-
significantly altered.19
ment for signature by both the respon-
sible line function Cabinet Minister
Section 231 of the 1996 Constitution and the President; and
and the Department of International
(c) forwarding of the two legal opinions,
Relations’, ‘Practical Guide and Proce- President’s Minute, a short Explana-
dure for the Conclusion of International tory Memorandum and a copy of the
Agreements’ (Guideline for Conclusion agreement to the Office of the Chief
of Agreements)20 provides that treaty- State Law Adviser for certification22
before it can be presented to the Presi-
making power in South Africa is shared
dency for approval.23
between the executive and the legisla-
ture. The executive plays the initial role Section 231 of the Constitution estab-
by negotiating and signing international lishes a framework for two avenues in
which a treaty may be ratified. The
procedure to be adopted is dependent on
16 Mujuzi (n 11 above) 58.
17 African Commission on Human and whether the agreement falls within the
Peoples’ Rights ‘African Charter on Human ambit of section 231(2) or section
and Peoples’ Rights’ http://www.achpr.org/
instruments/achpr/ (accessed 21 August 231(3). Section 231(2) agreements
2015).
18 Dugard (n 4 above) 81.
19 AG Assefa ‘The impact of the African 21 Except in cases provided in section 231(3),
Charter and Women’s Protocol in South for instance where the treaty states that it is
Africa’ in Impact of the African Charter and intended to be binding upon signature.
Women’s Protocol in selected African States 22 The instrument is considered to be certified
(2012) 161. when the OCSLA affix the official stamp on
20 Department of International Relations and the final text indicating that the agreement is
Cooperation, Office of the Chief State Law acceptable to be submitted for the President’s
Adviser (International Law) ‘Practical Guide approval http://www.dfa.gov.za/foreign/
and Procedures for the Conclusion of bilateral/conclusion_agreement1014.pdf
Agreements’ http://www.dfa.gov.za/foreign (accessed 21 August 2015).
/bilateral/conclusion_agreement0316.pdf 23 Guideline for Conclusion of Agreements (n
(accessed 15 September 2015). 20 above) 21.
218 South Africa

require that parliamentary approval be 3 Government focal point

sought along with the ordinary proce-
dures for concluding international agree- The focal point of South Africa’s
ments as described above. Section response and responsibilities on the
231(3) agreements, on the other hand, African Charter is the International
are adopted by the ordinary procedure Legal Relations Chief Directorate with-
and must be tabled in Parliament for in the Department of Justice and Consti-
information purposes only.24 tutional Development. The focal point
in respect of the Maputo Protocol is the
In the case of section 231(2) agree- Ministry of Women which is located
ments, parties shall notify each other in within the office of the Presidency.
writing when their respective constitu-
tional requirements necessitating entry The Chief Directorate: International
into force for a treaty are fulfilled where- Legal Relations deals with bilateral and
as section 231(3) applies to international multilateral issues and interacts with
agreements that merely require the international bodies, such as the African
signature of a duly authorised represent- Union. The Directorate also liaises with
ative of a state party to come into effect. the Department of International Rela-
Agreements that fall under section tions and Cooperation and other govern-
231(2) are those that require ratification ment departments (as well as South
or accession (usually multilateral agree- African Foreign Missions on internation-
ments), and have financial implications al legal matters). The North and Multi-
that require an additional budgetary lateral Directorate also deals with the
allocation from Parliament or have handling of human rights and humani-
legislative or domestic implications tarian law matters at bilateral and multi-
(such as treaties that require new legisla- lateral (international) levels, including
tion or legislative amendment).25 the negotiation of human rights treaties,
However, a treaty which falls under the declarations and resolutions, as well as
scope of section 231(3) is one that does writing country reports on these instru-
not require parliamentary approval for ments. Most treaties have stipulated
ratification or accession; that has no within them a requirement that states
extra-budgetary financial implications parties submit regular reports to a treaty
or one which does not have legislative monitoring body on the legislative, judi-
implications. cial, administrative, policy or other
measures which they have adopted, and
Both the African Charter and the which give effect to the provisions of the
Maputo Protocol fall under section treaty. One of treaties which fall under
231(2). this mandate is the African Charter.26

The Ministry of Women describes its

mandate as championing the advance-
ment of women’s socio-economic
empowerment and the promotion of
24 Guideline for Conclusion of Agreements (n
gender equality. It aims to drive imple-
20 above) 8.
25 Guideline for Conclusion of Agreements (n
20 above) 8-9. Approval for accession is 26 The Department of Justice & Constitutional
required when South Africa has not signed Development ‘International Legal Relations’
an agreement but can become a party thereto http://www.justice.gov.za/ilr/ilr.html
through accession. (accessed 26 August 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 219

mentation through developing appropri- 4 Domestication

ate standards for implementation of both
national and International law. It The African Charter and Maputo Proto-
describes the Maputo Protocol as one of col, as international agreements, have a
South Africa’s several regional and status lower than that of the Constitu-
international commitments on women’s tion and domestic legislation in South
empowerment and gender equality and Africa. The Constitution, which is the
describes it as falling under its ‘other supreme law of the Republic,29 provides
mandate’. The Ministry endeavours to that international agreements only
work towards the full and effective become enforceable in South Africa
implementation of the Protocol at the once they have been enacted into law by
national level.27 national legislation.30 A self-executing
provision of a ratified treaty becomes
Although the responsibility for law in South Africa unless it is inconsist-
women’s empowerment and gender ent with the Constitution or an Act of
equality is vested with the Minister of Parliament.
Women in the Presidency, gender main-
streaming is being implemented as a Many of the African Charter rights
strategy for realising gender equality are contained in the Bill of Rights,
across government and in all members including the right to equality and non-
of Cabinet, government entities, the discrimination, to dignity, life, freedom
private sector and civil society. National and security of person, religion, freedom
Gender Machinery (NGM) refers to ‘an of expression, association and assembly
integrated package’ of structures located and to participate in government.31
at various levels of state, civil society There are also corresponding provisions
and within the statutory bodies. Within on rights to property, a fair trial and a
government, this is evidenced through healthy environment.32 Significantly,
Cabinet, the National Office on the the South African Bill of Rights also
Status of Women (OSW) in the Presi- includes justiciable socio-economic
dency, Provincial OSWs in Premiers’ rights such as the right to health and
Offices, Gender Units and Gender education.33
Focal Points (GFP) in line departments
(at best in the Offices of the Directors- In a previous edition of this chapter,
General).28 Assefa has argued that even though the
Bill of Rights does not protect ‘the right
to equality of peoples’ as the African
Charter does, it does provide for the
establishment of a Commission for the
Promotion and Protection of Cultural,
27 Republic of South Africa ‘Department of
Women Strategic Plan 2015-2020’ 8.
28 South Africa’s National Policy Framework
for Women’s Empowerment and Gender
Equality; Republic of South Africa ‘Beijing 29 Sec 2.
+20 Report: Progress made on the 30 Sec 231(4).
Implementation of the Beijing Declaration 31 See sec 9-19 of the Constitution, which form
and Platform for Action and the Outcomes part of the Bill of Rights.
of the 23rd Special Session of the General 32 See secs 24, 25 and 35 of the Constitution.
Assembly in 2000’ 57 http://www.women. 33 Secs 26 & 27. On the enforcement of socio-
gov.za/attachments/article/52/Final%20D economic rights in South Africa, see
raft%20(2)%20National%20Beijing%20+20 C Mbazira Litigating socio-economic rights in
%20Report%20%2026022015%20(3).pdf South Africa: A choice between corrective and
(accessed 15 September 2015). restorative justice (2009).
220 South Africa

Religious and Linguistic Communi- Constitution provides for the creation of

ties.34 a Commission for Gender Equality.39

Similarly, many Maputo Protocol Though 17 Constitution Amend-

rights are entrenched in the South Afri- ment Acts have been adopted since the
can Constitution, though not specifical- 1996 Constitution came into force, none
ly in respect of women, but applying to have altered the provisions of the Bill of
anyone present in the Republic. These Rights. Thus it can be argued that the
rights include the right to dignity, life, African Charter and Maputo Protocol
integrity and security of person, access have not inspired constitutional amend-
to justice and equal protection before ment.
the law, education, housing, social secu-
rity and political participation. The The African Charter has not yet
Constitution explicitly guarantees the been enacted into law by national legis-
right to reproductive health care35 in line lation in terms of section 231(4) of the
with article 14 of the Maputo Protocol. Constitution.40 The process of domesti-
There are also areas where the Constitu- cating the Maputo Protocol is also still
tion can be seen to advance the aims of underway. On 29 January 2014, the
the Maputo Protocol. The principle of Centre for Applied Legal Studies
non-discrimination underlies the Mapu- (CALS) and the Centre for the Study of
to Protocol; similarly non-sexism and Violence and Reconciliation (CSVR)
the achievement of equality are founda- made joint submissions to the Portfolio
tional values of the South African Committee on Women, Children and
Constitution.36 Where article 2 requires People with Disabilities on the Women
that the principle of equality between Empowerment and Gender Equality
men and women is included in national Bill of 2013. The organisations urged
constitutions and legislative instruments that compliance with the Maputo Proto-
of member states, the equality clause in col ought to be added to the objectives
the South African Constitution explicit- of the Bill and that this would contribute
ly prohibits discrimination on the basis to its domestication process.41 The Bill
of sex, gender and sexual orientation, has, however, since been withdrawn for
amongst other grounds.37 The equality further consultation.
clause also provides that legislative and
other measures designed to protect or
advance persons, or categories of
persons, disadvantaged by unfair
discrimination may be taken to promote
the achievement of equality.38 The 1996 38 the workplace, where women have
historically suffered discrimination and in
fact continue to suffer discrimination.
39 Sec 187.
40 DE v RH [2015] ZACC 18 para 46.
34 Assefa (n 19 above) 163. 41 Oral submission to the Portfolio Committee
35 Sec 27(1)(a). on Women, Children and People with
36 Sec 1. Disabilities on the Women Empowerment &
37 Sec 9(3). Gender Equality Bill, 29 January 2014 by the
38 Subsequently, women have been identified as Center for Applied Studies (CALS) and the
a ‘designated group’ in terms of the Centre for the Study of Violence and
Employment Equity Act 55 of 1998 which Reconciliation (CSVR), delivered by
means that they are entitled to advancement Executive Director CSVR: Delphine
in the employment arena for the purposes of Serumaga http://pmg-assets.s3-website-eu-
achieving equality. Corrective and positive west-1.amazonaws.com/140129cals.pdf
measures are thus undertaken in the area of (accessed 13 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 221

5 Legislative reform according to the Department of Justice

and Constitutional Development, a
The Portfolio Committee on Justice and number of legislative initiatives have
Constitutional Development, having been undertaken by departments with a
considered the request for approval by view to enhance the application of the
Parliament of the Maputo Protocol, African Charter.45 Examples of legisla-
held deliberations in October 2004. The tion which have been enacted or amend-
Portfolio Committee compiled a brief ed with the implicit purpose of giving
report which notes reservations, areas of effect to the Maputo Protocol include:
concern and points of clarification.42 It the Choice on Termination of Pregnan-
can be inferred from these deliberations cy Amendment Act 8 of 2004; the Sexu-
and the publicised report that a compati- al Offences and Related Matters
bility study was undertaken prior to rati- Amendment Act 32 of 2007; the Civil
fication.43 Union Act 17 of 2006; and the Reform
of Customary Law of Succession and
Generally, after 1994, the South Regulation of Related Matters 11 of
African legal system experienced drastic 2009.
changes as a result of the promulgation
of the Constitution and commitment to Secondly, the Protocol is referenced
South Africa’s international law obliga- in discussion documents around the
tions. A considerable number of laws development of national legislation.
have been enacted and amended in line According to the Report of the Portfolio
with international and regional instru- Committee on Women, Children and
ments, including the African Charter People with Disabilities, public hearings
and the Maputo Protocol. South Africa on the Women Empowerment and
is required to regularly review its legisla- Gender Equality Bill took place during
tion in order to ensure that it is in line March 2014. During these discussions,
with the norms reflected in these instru- civil society organisations requested that
ments. the Maputo Protocol be included in the
Bill’s objectives, which the Department
The implicit influence of the African had undertaken to do although this Bill
Charter and the Maputo Protocol can be has since been withdrawn.46 During
traced in three different ways.44 Firstly, public hearings on the Traditional
Courts Bill in September 2012, equality
42 Report of the Portfolio Committee on Justice provisions of the Maputo Protocol were
and Constitutional Development on the
Protocol to the African Charter on Human
and Peoples' Rights on the Rights of Women 45 The enactment of the Promotion of Equality
in Africa (27 October 2004) http://pmg- and Prevention of Unfair Discrimination Act
assets.s3-website-eu-west-1.amazonaws.com 4 of 2000 is an example of this.
/docs/2004/appendices/041027report.htm 46 Parliamentary Monitoring Group
(accessed 31 August 2015). ‘ATC140324: Report of the Portfolio
43 Parliamentary Monitoring Group – Justice Committee on Women, Children and People
and Correctional Services ‘Protocol to with Disabilities Public Hearings on the
African Charter on Human and People’s Women Empowerment and Gender Equality
Rights on Rights of Women in Africa: Bill [50-2013], dated 5 March 2014’ https://
Deliberation’ https://pmg.org.za/committee pmg.org.za/tabled-committee-report/2202/
-meeting/10181/ (accessed 31 August 2015). (accessed 31 August 2015). The Centre for
During earlier deliberations the Portfolio Applied Legal Studies (CALS) and the
Committee considered the Maputo Protocol Centre for the Study of Violence and
in the light of legal advice from the State Law Reconciliation (CSVR) made joint
Adviser on certain provisions that appeared submissions in which it stated that the
contradictory or unnecessary in respect of Maputo Protocol specifically addresses
South African domestic law. patriarchal, traditional, cultural and
44 Assefa (n 19 above) 165. institutional practices that hinder women’s
222 South Africa

raised in opposition to certain of the Protocol, tend to lack direct references

Bill’s provisions.47 to these instruments.49

Finally, as Assefa has argued, There are a few instances, however,

certain legislative changes were inspired where these instruments have been used
by South African court decisions in in a direct way to formulate policy. The
which the African Charter has been Department of Correctional Services, in
referred to.48 preparing its Draft White Paper on
Remand Detention Management in
6 Policy reform and formulation South Africa seemingly took into
account its obligations under the Afri-
The African Charter and the Maputo can Charter.50 The Draft White Paper
Protocol have been used scantily in poli- states that the African Charter is part of
cy reform and formulation by the South the broader legal framework governing
African executive branch of govern- the management and remand of detain-
ment. National policies on gender, ees in the country. It makes specific
poverty reduction and education, while reference to articles 4, 5, 6 and 7 of the
expressing the purport of the provisions African Charter which enshrine the
of the African Charter and the Maputo rights to integrity and dignity of the
person, freedom from torture, inhuman
and degrading treatment, the prohibi-
tion of arbitrary arrest and detention as
well as the presumption of innocence
46 empowerment and that ‘facilitation of
compliance with the Maputo Protocol’
and fair trial rights.51 It also indicates
should be added as an objective of the Act: that international law includes guide-
Oral submission to the Portfolio Committee lines or standards that are not necessari-
on Women, Children and People with
Disabilities on the Women Empowerment & ly promulgated into law but have
Gender Equality Bill [B50-2013] 29 January normative significance in providing
2014 by the Centre for Applied Legal Studies
(CALS) and The Centre for the Study of direction to stakeholders on how to deal
Violence and Reconciliation (CSVR)
delivered by Executive Director CSVR;
with remand detainees.52
Delphine Serumaga http://pmg-assets.s3-
website-eu-west-1.amazonaws.com/140129
cals.pdf (accessed 13 September 2015).
47 Report of the Select Committee on Security
and Constitutional Development on the
Traditional Courts Bill (2012) https:// 49 Some of these policies, of which the content
pmg.org.za/tabled-committee-report/286/ overlap with that of the African Charter and
(accessed 31 August 2015). Maputo Protocol to an extent but where
48 The specific examples that Assefa notes (n 19 there is no direct reference to these
above) are that of the adoption of the instruments, include the National
Abolition of Corporal Punishment Act 33 of Developmental Plan 2030 – Our Future,
1997, which is partly influenced by the Make it Work 2012; South Africa National
decision of the Constitutional Court in S v Policy Framework on Women’s
Williams 1995 (3) SA 632 (CC). In this case, Empowerment and Gender Equality 2000;
the Court declared sec 294 of the Criminal and the National Education Policy Act 27 of
Procedure Act 51 of 1977 constitutionally 1996.
invalid and relied on a number of 50 Department of Correctional Services ‘Draft
international instruments to this end, White Paper on Remand Detention
including art 5 of the African Charter. The Management in South Africa’ 2013 http://
invalidation of sec 25(9)(b) of the Aliens www.dcs.gov.za/docs/landing/White%20pa
Control Act 96 of 1991 lead to the adoption per%20on%20Remand%20Detention%20in
of the new Immigration Act 13 of 2002. This %20SA%20Draft%20Final.pdf (accessed
has been inspired by the decision of the 13 September 2015).
Court in Dawood and Another v Minister of 51 Department of Correctional Services (n 50
Home Affairs and Others 2000 (3) SA 936(CC), above) 30-31.
where O’Regan J uses art 18 of the African 52 Department of Correctional Services (n 50
Charter. above) 30.
 Impact of the African Charter and the Maputo Protocol in selected African states 223

The Department of Women, Chil- Charter and jurisprudence from the

dren and Persons with Disabilities has African Commission to support its find-
recently recognised regional instru- ing that South Africa is obliged to inves-
ments, which includes the African Char- tigate torture allegations in a
ter, as part of the ‘enabling neighbouring state. The Court referred
environment’ which is necessary for the to a myriad of international instruments,
government to develop policy and but also noted that article 5 of the Afri-
framework.53 The African Charter is can Charter prohibits torture and that
also referred to as a relevant document torture has been interpreted by the Afri-
in the Policy and Strategic Framework can Commission in the matter of Huri-
on HIV and AIDS for Higher Education laws v Nigeria57 to include the widest
in South Africa. This is a policy docu- possible array of mental and physical
ment stemming from the 2012-2016 abuse.58
National Strategic Plan for HIV, STI’s
and TB.54 The African Charter has been
utilised by the courts on the rare occa-
The researchers were not able to sion that rights which are not explicitly
obtain any relevant information protected by the Constitution are at
concerning whether or not government stake. Unlike the constitutions of most
policies reflect the general comments of democratic states, the South African
the African Commission. Constitution does not protect the rights
of individuals to freely marry and to
7 Court judgments raise a family.59 Consequently, the
South African courts have placed much
The African Charter and Maputo Proto- reliance on the provisions of the African
col, if mentioned in South African judg- Charter dealing with rights and duties in
ments at all, are mostly only referred to respect of the family.60 The Consti-
in a cursory manner.55 This trend of tutional Court in particular has made
merely referring to an article of the Afri- use of article 18 of the African Charter
can Charter, as one of the many instru- in Dawood and Another v Minister of Home
ments protecting a particular right in the Affairs and Others,61 Volks NO v Robinson
domestic, regional and international and Others62 and most recently, in DE v
framework, has continued as can be RH.63 All these matters touched upon
seen in the recent case of National
Commissioner of the South African Police
57 (2000) AHRLR 273 (ACHPR 2000).
Service v Southern African Litigation Centre 58 Huri-laws para 39.
and Others.56 In this matter, the Consti- 59 The absence of a provision protecting the
family as the basic unit of society was
tutional Court relied on the African challenged in the First Certification case.
(Certification of the Constitution of the Republic of
South Africa, 1996 1996 (4) SA 744 (CC) para
53 National Treasury ‘Mainstreaming in 96.) The Constitutional Court held that the
programmes and projects – Setting the policy absence of a right to family life is justified in
landscape’ (2012). the multi-cultural South African context and
54 Department of Higher Education and that other provisions on the Constitution do
Training Policy Strategic Framework on HIV provide indirect protection to the family unit
and AIDS for Higher Education (2012). (paras 97-103).
55 S v Williams 1995 (3) SA 632 (CC); Bhe and 60 These provisions are arts 18, 27(1) and 29(1).
Others v Khayelitsha Magistrate and Others 2005 61 Consolidated with Dawood v Minister of Home
(1) SA 580 (CC); Samuel Kaunda and Others v Affairs; Shalabi v Minister of Home Affairs;
President of the Republic of South Africa and Thomas v Minister of Home Affairs 2000 (3) SA
Others 2005 (4) SA 235 (CC); Hassam v Jacobs 936 (CC)para 29.
NO and Others 2009 (5) SA 572 (CC); 62 2005 (5) BCLR 446 (CC) para 82.
56 2015 (1) SA 315 (CC). 63 [2015] ZACC 18 paras 45-46.
224 South Africa

the right to marriage and family life.64 8 Awareness and use by civil
The African Charter’s explicit provi- society
sions for the protection of the family
thus served to fill the gap left by the South Africa boasts a vibrant civil socie-
Constitution. ty. From interviews conducted with
members of different organisations, it is
South Africa has taken an innova-
clear that though most organisations are
tive step by including justiciable socio-
aware of both the African Charter and
economic rights in its Bill of Rights.65 In
the Maputo Protocol, they play only a
giving content to these rights, reference marginal role in the activities of the
to and reliance on the regional frame- CSOs with a domestic focus. For
work has been markedly absent from the human rights organisations that are
Constitutional Court’s jurisprudence. In based in South Africa but which have a
the seminal Grootboom case,66 the consti- regional focus, the instruments have
tutional right to housing was considered much greater significance.71
in terms of international law, but region-
al instruments and jurisprudence were Michael Power, an attorney at the
not taken into account. The same goes Legal Resources Centre (LRC),72 states
for Minister of Health and Others v Treat- that in his view, civil society is well-
ment Action Campaign and Others,67 Khosa aware of these instruments, but the
v Minister of Social Development68 and extent to which they are used would
Mazibuko v City of Johannesburg.69 depend on the specific focus area of the
particular organisation. He states that
The Constitution of South Africa
the LRC rely on the African Charter for
compels courts to consider international
the purposes of advocacy, litigation and
law when interpreting the Bill of
law reform. Thabang Pooe, researcher
Rights.70 Regrettably, even where inter-
at Section 27 says that due to the
national law has been alluded to or used
domestic focus of their organisation,
it seems that the African Charter and
they would rarely invoke regional
Maputo Protocol have not truly been
instruments beyond referencing them in
used as interpretative sources or as the
advocacy and litigation.73 Similar views
basis of a remedy.
were expressed by Irene de Vos, senior
researcher and general counsel at the
Socio-Economic Rights Institute of
South Africa (SERI).74 She states that
although CSOs are aware of the African
64 These matters were respectively about the Charter, the fact that local remedies are
circumstances in which foreign spouses of
South African residents are permitted to effective means that it is usually not
reside temporarily in the country; necessary to rely on the regional frame-
maintenance claims of life partners; and
whether the delictual claim based on work.
adultery should continue to exist in South
African law.
65 C Heyns & D Brand ‘Introduction to socio- 71 Organisations based in South Africa with a
economic rights in the South African regional focus include the Southern African
Constitution’ (1998) 2 Law, Democracy and Litigation Centre (SALC); the University of
Development 153. Pretoria’s Centre for Human Rights and
66 Government of the Republic of South Africa v Sonke Gender Justice Network.
Grootboom 2001 (1) SA 46 (CC). 72 Email from Michael Power, 30 August 2015.
67 2002 (5) SA 721 (CC). 73 Email from Thabang Pooe, 13 September
68 2004 (6) SA 505 (CC). 2015.
69 2010 (4) SA 55 (CC). 74 Email from Irene de Vos, 23 September
70 Sec 39(1). 2015.
 Impact of the African Charter and the Maputo Protocol in selected African states 225

According to Keegan Lakay,75 the society organisations, along with two

Community Education and Mobilisa- international organisations, applied to
tion manager at Sonke Gender Justice intervene as non-disputing parties
Network, the organisation engages in (NDPs) in this arbitration.78 The NDPs
impact litigation, in partnership with relied on international instruments,
other organisations in the region and provisions of the South African Consti-
places much reliance on the Maputo tution as well as article 9(1) of the Afri-
Protocol in this regard. He says that the can Charter in requesting the disclosure
Protocol is useful to the organisation in of ‘discreet categories of documents’ to
that it provides a guideline according to which they needed access in order to
which government compliance with the take part in the arbitration in a meaning-
realisation of the rights of women can ful way.79
be monitored.
10 Higher education and academic
9 Awareness and use by lawyers writing
and judicial officers
Information provided by the law facul-
Out of the ten practising attorneys ties of four different South African
surveyed, four were not aware of the universities indicate that, at most, the
existence of these instruments. Lawyers African Charter and the Maputo Proto-
in private practice mostly do not see the col are touched upon at an undergradu-
relevance of these instruments to their ate level.80 Modules such as
work.76 It seems that lawyers whose International Law or Human Rights
practices are focused on human rights Law tend to make reference to these
work would list provisions of the Afri- instruments as part of the regional
can Charter and Maputo Protocol in human rights framework, but they are
support of their arguments on a fairly not studied in-depth.
regular basis. However, due to the
expansive nature of the South African There are a large number of South
Constitution, it would rarely happen African and South Africa-based scholars
that lawyers would base their arguments whose main field of research is human
on the provisions of these instruments rights law in Africa.81 These scholars
only or directly. are responsible for lively academic delib-
eration on these instruments, their
A notable reliance on the African
Charter took place in 2009. A group of 78 The Legal Resources Centre (LRC) and the
investors instituted a claim against Centre for Applied Legal Studies (CALS),
two South African organisations, formed a
South Africa in the International Centre coalition with the International Centre for
for Settlement of Investment Disputes the Protection of Human Rights
(INTERIGHTS) and the Centre for
(ICSID).77 Two South African civil International Environmental Law (CIEL).
79 J Brickhill & M Du Plessis ‘Two’s company,
three’s a crowd: Public interest intervention
in investor-state arbitration (Pietro Foresti v
75 Telephone communication with Keegan South Africa)’ (2011) 27 South African Journal
Lakay, 4 September 2015. on Human Rights 152 159-160.
76 Three different lawyers at corporate law 80 The universities surveyed are: Nelson
firms, who were aware of the existence of the Mandela Metropolitan University, North
African Charter and Maputo Protocol, West University, the University of Pretoria
referred to the pro bono departments of their and the University of the Witwatersrand.
firms. 81 Three of these scholars are Professors
77 Pietro Foresti, Laura De Carli v Republic of South Christof Heyns, Magnus Killander and Frans
Africa ICSID Case No: ARB (AF) 07/01. Viljoen.
226 South Africa

implementation, potential and short- A positive move can be seen in that

comings.82 South Africa also houses scholars writing about human rights law
two research centres which have a in the context of South Africa and
strong focus on the regional human publishing in South African law journals
rights system: the Centre for Human also include these instruments in their
Rights based at the University of Preto- work. For example, Gustav Muller
ria83 and the Dullah Omar Institute at published an article in a South African
the University of the Western Cape.84 law journal in which he discusses the
Many publications emanating from eviction of vulnerable unlawful occu-
these institutions focus on the African pants in light of women’s rights in terms
Charter and Maputo Protocol and their of the Maputo Protocol.87 An increase
implementation. Assefa has noted that in scholarship of this kind may encour-
the African Human Rights Law Journal age courts to make use of regional
published by the Centre for Human instruments in the development of
Rights is a major contributor to scholar- socio-economic rights jurisprudence.
ship on the African Charter and Maputo
Protocol.85 Law, Democracy and Develop- 11 National human rights
ment, a journal of the Faculty of Law at institutions
the University of the Western Cape, also
makes a significant contribution in this The African Charter and the Maputo
regard.86 Protocol are utilised by the South Afri-
can Human Rights Commission
(SAHRC) in a variety of ways, includ-
ing research publications, programmes,
82 See for example: M Killander & CH Heyns
‘The African regional human rights system’ education and training, public dialogues
in C Heyns & K Stefiszyn (eds) Human rights, and workshops. In what follows, the
peace and justice in Africa: A reader (2006) 195;
M Killander & H Adjolohoun ‘International scope of the SAHRC’s involvement in
law and domestic human rights litigation in the African human rights system is
Africa’ (2010); F Viljoen ‘An introduction to
the Protocol of African Charter on Human discussed.
and Peoples’ Rights on the Rights of Women
in Africa’ (2009) 16 Washington and Lee In broad terms, the SAHRC under-
Journal of Civil Rights and Social Justice 11;
F Viljoen International human rights law in stands its mandate as monitoring
Africa (2012); F Viljoen ‘The African Charter government obligations, including those
on Human and Peoples’ Rights: The travaux
préparatoires in the light of subsequent made in terms of international and
practice’ (2004) 25 Human Rights Law Journal
313; F Ouguergouz The African Charter on
Humans and Peoples’ Rights (2003). 86 enforcement of social, economic and cultural
83 See CHR website http://www.chr.up.ac.za/ rights under the African Charter of Human
index.php/about/overview.html (accessed and Peoples’ Rights’ (2004) 8 Law, Democracy
14 September 2015). & Development 1.
84 The Institute was previously named 87 ‘On considering alternative accommodation
‘Community Law Centre’ http://community and the rights and needs of vulnerable
lawcentre.org.za/ (accessed 14 September people’ (2014) 30 South African Journal on
2015). Human Rights 4; Muller also makes mention
85 Assefa (n 19 above) 171. of the African Charter. The South African
86 See for example: ST Ebobrah ‘Application of law journal also contain articles on the
the African Charter by African sub-regional African regional human rights system, see
organisation: pains, gains and the future’ for exmple: TS Bulto ‘Patching the legal
(2012) 16 Law, Democracy and Development 49; black hole: Extra-territorial reach of states’
JD Mujuzi ‘Protocol to the African Charter human rights duties in the African Human
on Human and Peoples’ Rights on the Rights Rights system’ (2011) 27 South African
of Women in Africa: South Africa’s Journal on Human Rights 249; S Gumedze
reservations and interpretative declarations’ ‘The NEPAD and human rights: Current
(2008) 12 Law, Democracy & Development 4; developments’ (2006) 22 South African Journal
P de Vos ‘A new beginning? The on Human Rights 144.
 Impact of the African Charter and the Maputo Protocol in selected African states 227

regional treaties. In its programmes on compliance and ensures the implemen-

the Right to Food in South Africa, the tation of action plans based on interna-
African Charter and Maputo Protocol tional and regional activities.91 In order
are cited as establishing the legal frame- to foster outcome achievement and
work for the recognition of this right.88 impact realisation, the SAHRC incorpo-
The SAHRC has held workshops, rates resolutions from international and
dialogues and discussions with residents regional engagements undertaken in the
across South Africa in order to obtain previous financial year into its planning
contributions from ordinary people on process. In this regard, approximately
this aspect. The SAHRC also monitors 40 resolutions, ranging across varied
South Africa’s progress in realising the human rights areas were considered and
right to food in terms of these treaties. addressed during 2013/2014.92

The SAHRC regularly participates Finally the SAHRC is the custodial

in the sessions of the African Commis- and monitoring body of the Promotion
sion. It was the only national human of Access to Information Act in South
rights institution that made a statement Africa. It cites the African Charter along
on the human rights situation in South with the Universal Declaration of Rights
Africa and across the continent at the as providing the broader legislative
43rd Ordinary Session of the African framework for its work in this regard.93
Commission.89 In October 2012, the
SAHRC received the African Commis- 12 State reporting
sion award for its commitment to the
promotion and protection of human The Ministry of Women located in the
rights, its attendance at the sessions and Presidency is tasked with state reporting
direct contribution to the work of the under the Maputo Protocol whereas
Commission.90 reporting under the African Charter
vests within the Department of Justice
In respect of monitoring compliance
and Constitutional Development –
and following up on South Africa’s
International Legal Relations Chief
international and regional obligations,
Directorate. The coordinating govern-
SAHRC interacts with Parliament and
ment department is tasked with oversee-
stakeholders. This interaction promotes ing the entire process. The process
ideally requires the coordinating depart-
ment to prepare a baseline report,
request contributions on relevant
thematic areas and developments from
various government departments and
oversee interactions with civil society.
88 Right to Food http://www.sahrc.org.za/
home/index.php?ipkArticleID=270 All contributions received from all the
(accessed 10 September 2015).
89 43rd Ordinary Session Report http://www.
communitylawcentre.org.za/achpr/report/
Report%2043rdSess%20ACHPR%2010Jul0
8.pdf (accessed 10 September 2015). See 91 Further details contained in South African
Assefa (n 19 above) 170. Human Rights Commission 2013/2014
90 South African Human Rights Commission International and Regional Activities Action
‘SAHRC receives African Commission Plan.
Award for its commitment to the realisation 92 South African Human Rights Commission
of human rights’ 10 October 2012 http:// Annual Report 2013/2014.
www.sahrc.org.za/home/index.php?ipkArt 93 South African Human Rights Commission
icleID=139 (accessed 8 September 2015). Human Rights Development Report 2008.
228 South Africa

different stakeholders should be consoli- South Africa has, over the years,
dated by the coordinating department. implemented programmes and reforms
addressing the above issues. Although
South Africa’s initial report on the they do not specifically cite the recom-
African Charter was submitted timeous- mendations of the African Commission,
ly in October 1998. The second, third they reference the African Charter as
and fourth reports were due in October establishing the necessary legal frame-
of 2000, 2002 and 2004, respectively. work for the development of govern-
These reports were submitted late as a ment policy. To this end, government
consolidated report in May 2005. One has instituted policies on social cohesion
shadow report was also submitted. aimed at combating xenophobia, the
According to the website of the African development of the Victims Charter and
Commission, South Africa is behind on the prevention of ukuthwala which work
more than five country reports and is yet towards fighting the scourge of gender-
to submit a specific and separate report based violence.
on progress towards realising the rights
enshrined in the Maputo Protocol. 13 Communications
The pertinent concluding observa-
tions were that in some sections of the To date, there have been three commu-
reports, South Africa simply provides a nications submitted to the African
general description of the provisions of Commission which involved South Afri-
the Charter and the legislation and/or ca.94 However, no finding has yet been
policy put in place, without indicating made against the state.
how these measures have contributed to
Civil society organisations which
enhancing the rights of the persons. The
were interviewed pursuant to this study
2005 report lacked detail of the meas-
expressed a willingness to take cases to
ures taken by South Africa to eradicate
the African Commission, should domes-
the phenomenon of xenophobia directed
tic remedies become exhausted and if it
at African migrants. It was noted that
would be in the best interest of their
despite efforts to implement legislation,
clients. However, at this stage, they tend
policies and programmes to prevent and
to rely on the independence and ‘trans-
combat the sexual exploitation of chil-
formation-mindedness’ of the domestic
dren and violence against women; the
courts for the purposes of undertaking
African Commission remains concerned
human rights litigation relevant to South
at the high incidence of sexual violence
Africa. It would only be on the rare
against women and children.

In November 2006, at its 40th ordi- 94 In Gareth Anver Prince v South Africa (2007)
AHRLR 40 (HRC 2007), the African
nary session, the African Commission Commission decided the matter on the
passed the Resolution on the impor- merits and held that there was no violation of
the complainant’s rights. Communication
tance of the Implementation of the 409/12 Luke Munyandu Tembani and Another
Recommendations of the African v Angola and Thirteen Others was filed against
South Africa along with thirteen other states
Commission on Human and Peoples’ for their decisions and actions in their
Rights by state parties. This resolution capacity as SADC member states. Here too,
the Commission found no violation of the
highlights the necessity of submitting African Charter. Communication 335/06
country reports timeously and to follow Dabalorivhuwa Patriotic Front v the Republic of
South Africa was also dismissed http://
up and implement recommendations. www.achpr.org/states/south-africa/
(accessed 28 August 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 229

occasion that a party would wish to dence, ensure proper publishing, transla-
appeal from the Constitutional Court tion and distribution of its work. Finally
that instituting a claim in a regional the Commission was urged to ensure
forum would be considered.95 knowledge exchange and training
between itself and other human rights
14 Special mechanisms – institutions.98
Promotional visits of the
The Special Rapporteur on Prisons
African Commission
and Conditions of Detention visited the
country from 14 to 30 June 2004 and
The Commissioner responsible for
made specific recommendations for the
promotional activities in South Africa
improved protection of the rights of pris-
visited the country from 25 to
oners.99 The Special Rapporteur made
29 September 2001 for the purposes of
numerous recommendations to all
promoting the African Charter and rais-
stakeholders. It was suggested that pris-
ing awareness of the African Commis-
on officials should be more involved in
sion.96 It was recommended that the
monitoring the welfare of prisoners and
South African government initiate
desist from inciting one gang against the
extensive awareness programmes on
other. Heads of prison should develop
human rights for members of the South
strategies to combat corruption by pris-
African Police Service, immigration offi-
on officials. To this end, confidential
cials, prison officers and border police.
complaint boxes should be used to allow
In particular, it was recommended that
prisoners to submit confidential
the government advocate for the elimi-
complaints. Members of civil society,
nation of xenophobic attitudes towards
especially NGOs, were encouraged to
foreigners and immigration. It was
constantly visit prisons and other places
suggested that specialised training
of detention to ensure that the govern-
should be provided to the police on the
ment is meeting its domestic as well as
handling of immigrants, asylum seekers
international human rights obligations
and refugees. The mission recommend-
in respect of persons deprived of their
ed that the government put in place
liberty; encourage and organise retreats
appropriate mechanisms that would
and workshops for prison officials and
minimise the ill-treatment of alleged ille- inform them of best practices in other
gal immigrants at the time of apprehen- penal systems in Africa and around the
sion, while in detention and during world; and to support the efforts of
deportation.97 It was also suggested that government by assisting in promoting
efforts be taken to eliminate overcrowd- the welfare of prisoners. The donor and
ing in prisons. The African Commission international community were urged to
was encouraged to develop jurispru-

97 calls to inform a person of their choice of

95 This sentiment was expressed by Sonke their situation, to be allowed to fetch their
Gender Justice Network (n 71 above). documents and permits, and, in cases of
96 African Commission on Human and asylum seekers, to be adequately provided
Peoples’ Rights ‘South Africa: Promotion with information on the procedure
Mission, 2001’ http://www.achpr.org/ applicable to them.
states/south-africa/missions/promo-2001/ 98 African Commission on Human and
(accessed 16 September 2015). Peoples’ Rights (n 96 above).
97 In further detail, it was suggested that 99 African Commission on Human and
government should ensure that alleged illegal Peoples’ Rights ‘South Africa: Prisons and
immigrants are allowed to gather their detention conditions, 2004’ http://www.
belongings or hand over to a third party of achpr.org/states/south-africa/missions/
their choice, to be allowed to make telephone prisons-2004/ (accessed 16 September 2015).
230 South Africa

continue their support to the prison Constitutional Court with the notion
sector in South Africa specifically with that their rights have not been vindicat-
regard to training and rehabilitation. ed. Also, since South Africans have
Lastly, it was recommended that the both the international and domestic
Commission of the African Union framework to consider, reliance on
should collaborate with members of the regional instruments can easily be
Southern African Development neglected.
Community to explore the possibility of
prisoner exchange. To this end, the Afri- Negative factors which impede the
can Union should organise a meeting of impact of the African Charter and
SADC Ministers of Corrections and Maputo Protocol include lack of aware-
should make prisons and conditions of ness on the part of both government
detention an important indicator in the officials and legal practitioners. Since
peer review process of the NEPAD.100 not much focus is placed on these
instruments in the curricula of under-
The researchers were unable to graduate legal studies, few practitioners
establish whether effect was given to the appreciate the regional human rights
recommendations in the report of the system. One of the interviewees, who is
Special Rapporteur. attached to an NGO,101 commented
that the main problem with implementa-
15 Factors that may impede or tion lies in the lack of knowledge and
enhance the impact of the support of the African Charter and the
African Charter, the Maputo Maputo Protocol on the side of govern-
Protocol and the African ment. He laments the government’s fail-
ure to submit numerous periodic reports
Commission
over the past decade and believes that
there is a fatal disconnect between the
The impact of the African Charter and
provisions of regional instruments and
the Maputo Protocol is enhanced in
the awareness of the instruments on the
South Africa by the fact that there exists
part of the government.
a culture of human rights. Courts are
bound to consider international law South Africa hosted the 31st ordi-
when interpreting the Bill of Rights. nary session of the African Commission
South Africa has academic centres and from 2 to 16 May 2002.102 Ms Pansy
NGOs which make use of the regional Tlakula, a South African, is currently
system and thereby enhance its role. the Chairperson of the Commission.
She is also the Special Rapporteur on
A positive factor, which has the
Freedom of Expression and Access to
effect of impeding the impact of regional
Information, Chairperson of the Work-
instruments, is the effectiveness of
ing Group on Specific Issues Related to
domestic remedies. South Africans
the work of the African Commission
generally have faith in the country’s
and member of the Working Group on
judiciary and are afforded fair hearings
Rights of Older Persons and People
where their rights are taken into
account. There is a long way to go in
101 Keegan Lakay (n 75 above).
order to exhaust all local remedies and 102 Department of International Relations and
litigants would not often leave the Cooperation ‘African Commission on
Human and Peoples’ Rights’ http://www.
dfa.gov.za/foreign/Multilateral/africa/afrhr
100 As above. .htm (accessed 16 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 231

with Disabilities. Dr Barney Pityana

was a Commissioner from 1997 to 2003
and released reports on, amongst others,
the Zimbabwe Fact Finding Mission of
2002, the Botswana Promotion Mission
of 2001 and the Mozambique Promo-
tion Mission of 2000. The fact that
South African nationals serve on the
African Commission and the country’s
openness to host sessions of the
Commission point to a vested interest
on the part of the state and, when prop-
erly covered by the media, these facts
enhance public awareness of the region-
al system.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
SWAZILAND

Dumsani Dlamini*
Sizakele Hlatshwayo**

1 Introduction in the country falls short of international

standards. The African Commission has
One prominent feature of the system of expressed its alarm at the failure of the
governance in Swaziland is the interac- government of Swaziland to implement
tion between the traditional system and its decision in a communication that it
the Westminster model of governance.1 decided against the state and has called
In furtherance of this unique system of on the government to implement the
governance, the Constitution of the recommendations and submit a report
Kingdom of Swaziland of 2005 (the on the status of implementation.3 In a
Constitution) states that the Swazi similar vein, the African Commission is
nation has found it necessary to blend concerned that the government of
the good institutions of traditional law Swaziland has failed to implement the
and custom with those of an open recommendations in the report of the
democratic society.2 African Commission’s promotional
mission to the Kingdom despite calling
The Kingdom of Swaziland is a on the government to implement the
state party to various human rights recommendations.4 The Universal Peri-
instruments some of whose provisions odic Review, in its 19th session,
are reflected in the Constitution. commended Swaziland for having made
However, in spite of ratification by the positive strides in a number of areas,
state of key human rights instruments such as the right to education, but made
and the recognition of fundamental several recommendations with regard to
rights and freedoms of the individual in other rights. A mid-term review of
the justiciable Bill of Rights in the implementation of the recommenda-
Constitution, the human rights situation

3 African Commission on Human and

Peoples’ Rights (ACHPR) ‘216: Resolution
on the Human Rights Situation in the
Kingdom of Swaziland’ http://www.
* LLM HRDA (Pretoria), Lecturer, University achpr.org/sessions/51st/resolutions/216
of Swaziland. (accessed 4 September 2015).
** LLM HRDA (Pretoria). 4 ACHPR (n 3 above); see also ACHPR
1 UNDP ‘About UNDP in Swaziland' http:// ‘Report of the promotional mission to the
www.sz.undp.org/content/swaziland/en/ Kingdom of Swaziland’ http://www.achpr.
home/operations/about_undp.html org/files/sessions/41st/mission-reports/sw
(accessed 4 September 2015). aziland/misrep_promo_swaziland-2006_
2 Para 4 of the Preamble to the Constitution. eng.pdf (accessed 13 August 2013).

233
234 Swaziland

tions revealed that 38 of the recommen- tion for not entering any reservations to
dations have not been implemented, 11 the treaties to which she accedes or rati-
have been partially implemented and fies. Her major challenge, however, lies
only two have been fully implemented.5 in giving effect to the provisions of the
treaties. The Constitution provides that
Swaziland is a patriarchal society ‘the government may execute or cause
that is heavily steeped in tradition, to be executed an international agree-
which permeates all forms of social, ment in the name of the Crown’.9 The
political, legal and economic interac- term ‘government’ as used in this
tion. This has serious implications for context should be construed as referring
gender relations and consequently for to the executive branch of government.
the status of women in the country. It is the prerogative of the executive
Women in Swaziland are discriminated organ of state to negotiate and sign
against in social, economic, legal and international agreements on behalf of
cultural spheres. In spite of the adoption Swaziland.
of the Constitution, which provides for
equality of all before and under the law, The procedure for ratifying treaties
some laws still discriminate against is beyond the compass of international
women.6 The Constitution states in law.10 This matter falls exclusively with-
unequivocal terms that the traditional in the domain of municipal or internal
government of Swaziland is adminis- law.11 In this connection, the Constitu-
tered in accordance with Swazi law and tion provides that:
custom and that the traditional institu-
tions are the pillars of the monarchy.7 [A]n international agreement executed by
or under the authority of the government
shall be subject to ratification and become
2 Ratification of African Charter binding on the government by an Act of
and the Maputo Protocol parliament or a resolution of at least two-
thirds of the members at a joint sitting of
the two Chambers of Parliament.12
Swaziland ratified the African Charter
on 15 September 1995 and the Maputo The import of this provision is that
Protocol on 5 October 2012.8 The state before the state expresses its consent to
did not enter any reservations to either be bound at the international level by an
of the treaties. Swaziland has a reputa- agreement that it has executed, that
agreement shall be subject to ‘internal
5 ‘Midterm assessment, Swaziland, July 2014’ ratification’. ‘Internal ratification’ refers
http://www.upr-info.org/followup/assessm to a national process of ‘ratification’ or
ents/session25/swaziland/MIA-Swaziland
.pdf (accessed 26 May 2015). approval, which is a precursor of ‘exter-
6 For an exposition of how the courts of nal ratification’.13 In other words,
Swaziland have enforced women’s rights see
T Masuku ‘Women and justice in Swaziland: before Swaziland deposits her instru-
Has the promise of the Constitution been
fulfilled?’ in Heinrich-Boll-Stiftung
Perspectives political analyses and commentary
Africa, women custom and access to justice 9 Sec 238(1) of the Constitution.
(2013); see also CM Fombad ‘The Swaziland 10 KA Acheampong ‘The ramifications of
Constitution of 2005: Can absolutism be Lesotho’s ratification of the Convention on
reconciled with modern constitutionalism?’ the Elimination of all Forms of
(2007) 23 South African Human Rights Law Discrimination Against Women’ (1993) 9
Journal 100. Lesotho Law Journal 79 89-90.
7 Sec 227(1) of the Constitution. 11 Acheampong (n 10 above) 90.
8 ACHPR ‘Swaziland’ http://www.achpr. 12 Sec 238(2)(a) & (b) of the Constitution.
org/states/swaziland/ratifications/ 13 F Viljoen International human rights law in
(accessed 5 August 2015). Africa (2007) 21.
 Impact of the African Charter and the Maputo Protocol in selected African states 235

ment of ratification, which is an expres- signs international agreements.18 If it is

sion of consent to be bound by an not the King (as head of state and head
international agreement, with the rele- of government) or the Minister of
vant body or depository, the Parliament Foreign Affairs and International Coop-
of Swaziland must have approved of the eration who signs or ratifies a treaty,
treaty in question. Parliament shall any other minister or person who
manifest its approval by enacting an Act performs these functions should comply
of parliament or a resolution supported with article 7 of the Vienna Convention
by at least two-thirds of the members at on the Law of Treaties of 1969. It is the
a joint sitting of the two chambers of ministry of Foreign Affairs and Interna-
parliament. The act of depositing an tional Cooperation that is mostly
instrument of ratification with the responsible for depositing instruments of
appropriate depository shall bind Swazi- ratification with the appropriate
land only at the international level. bodies.19 Furthermore, the Constitution
Carefully construed, section 238(2) of stipulates that the Attorney General,
the Constitution suggests that ‘external who is the principal legal advisor to the
ratification’, which is not preceded by government,20 an ex officio member of
parliament’s approval, shall not bind the Cabinet21 and an ex officio member
Swaziland. This proposition resonates of the House of Assembly,22 shall
with the postulation that acceptance of peruse treaties and conventions to
the binding effect of a treaty has both which the government is a party or in
external and internal phases.14 The respect of which it has an interest.23 The
external aspect will manifest itself on the state shall not conclude an agreement,
international plane whereas the internal treaty or convention without the advice
facet depends on national processes.15 It of the Attorney General.24
is important that both dimensions be
satisfied. The Constitution further 3 Government focal point
provides that the provisions of section
238(2) shall not be applicable if the The Ministry of Justice and Constitu-
international agreement is of ‘a techni- tional Affairs is responsible for the
cal, administrative or executive nature state’s response and responsibilities
or is an agreement which does not under the African Charter. The Ministry
require ratification or accession’.16 has appointed a crown counsel from the
Attorney General’s chambers as a focal
Swaziland does not have a clear person in furtherance of this role. In
policy or legislation that states in whom discharging the state’s responsibilities,
power to sign or ratify international the officer communicates with the Afri-
agreements on behalf of the state can Commission from time to time and
resides.17 Either the King or a minister attends specific meetings pertaining to
the African Charter.
14 As above.
15 As above.
16 Sec 238(3) of the Constitution.
17 ‘Workshop on the Protocol to the African
Charter on the rights of women: Women and 18 Matsebula (n 17 above) 19.
law in Southern Africa Research 19 As above.
Educational Trust’ Paper prepared and 20 Sec 77(3)(a) of the Constitution.
presented by SJK Matsebula, Principal 21 Sec 77(3)(b) of the Constitution.
Parliamentary Counsel, Attorney General’s 22 Sec 95(1)(d) of the Constitution.
Chambers at a workshop held at La 23 Sec 77(5)(b) of the Constitution.
Casserole on 26-27 June 2001. 24 Sec 77(7) of the Constitution.
236 Swaziland

The Gender and Family Issues treaties in Swaziland. After the

Department under the Deputy Prime commencement of the Constitution, a
Minister’s office is the focal point of the plethora of case law authority has
state’s response and responsibilities on emerged supporting the proposition that
the Maputo Protocol. The mandate of unincorporated treaties may be used as
the department is to coordinate all interpretative sources, but do not form
programmes on gender and family part of domestic law until parliament
issues, prepare the state’s initial and enacts them into municipal law.28
periodic reports on gender issues, raise
awareness and build the capacity of The domestic Bill of Rights guaran-
government institutions and the people tees some of the rights and freedoms
of Swaziland on gender issues. enshrined in the African Charter. These
are the right to life;29 the right to liber-
The focal person at the Ministry of ty;30 the right to a fair hearing;31 the
Justice and Constitutional Affairs liaises right to freedom from slavery and forced
with the African Commission through labour;32 the right to freedom from
the Swazi Embassy in Ethiopia. This inhuman or degrading treatment;33 the
trail of communication is protracted and right to own property;34 the right to
as a result, focal points have in some equality before the law;35 the right to
instances missed deadlines because of freedom from arbitrary search and
delayed communication. entry;36 the right to freedom of
conscience or religion;37 the right to
4 Domestication or incorporation freedom of expression and opinion;38
the right to freedom of assembly and
The Constitution is the supreme law of association;39 and the right to freedom
Swaziland.25 Unless it is self-executing, of movement.40 In fact, it may be
a treaty does not form part of the munic- contended that the framers of the
ipal law of Swaziland until parliament Constitution were, to an extent, guided
enacts it into the domestic legal by the African Charter when they were
system.26 In the case of Ray Gwebu v
R,27 the Court of Appeal of Swaziland
28 Masinga v Director of Public Prosecutions &
(now the Supreme Court) determined Others (21/07) [2011] SZHC; Southern
that unincorporated international agree- Trading Company v Minister of Agriculture&
Cooperatives & 4 Others (50/2011) [2011]
ments may be used as aids to interpreta- SZSC 17; Swaziland National Ex-Miners
tion but may not be treated as part of Workers Association & Another v The Minister of
Education & Others (335/09) [2009] SZHC
municipal law for purposes of adjudica- 104; Fakudze & Others v Director of Public
tion in a domestic court. It is worth Prosecutions & Another (237/08) [2008] SZHC
16; Stapley v Dobson (2240/07)[2008] SZHC
mentioning that the Court decided this 11; Sithole NO and Others v Prime Minister of
case before the Constitution came into the Kingdom of Swaziland & Others (2792/
2006) [2007] SZHC 1 http://www.swa
force. It appears that the Constitution zilii.org (accessed 5 August 2015).
affirmed the legal position that prevailed 29 Secs 14(a) & (15) of the Constitution.
30 Sec 16 of the Constitution.
before it came into force in respect of 31 Sec 21 of the Constitution.
the domestication or incorporation of 32 Sec 17 of the Constitution.
33 Sec 18 of the Constitution.
34 Sec 19 of the Constitution.
35 Sec 20 of the Constitution.
25 Sec 2(1) of the Constitution. 36 Sec 22 of the Constitution.
26 Sec 238(4) of the Constitution. 37 Sec 23 of the Constitution.
27 http://www.swazilii.org/files/sz/judgment 38 Sec 24 of the Constitution
/supreme-court/2002/21/ray_gwebu_pdf_2 39 Sec 25 of the Constitution.
1134.pdf (accessed 5 August 2015). 40 Sec 26 of the Constitution.
 Impact of the African Charter and the Maputo Protocol in selected African states 237

drafting the provisions of the Constitu- These include, amongst others, repro-
tion. Although the language in which ductive rights, the right to food security,
the corresponding rights contained in the right to adequate housing, and the
both documents is couched may not be right to sustainable development. Some
identical, the import of these provisions commentators may argue that the
is substantially similar. It is worth conspicuous omission of these rights in
noting that the Bill of Rights, which the Bill of Rights can be excused on the
appears in sections 14 to 39 of Chapter ground that the Constitution came into
III of the Constitution and captioned force before Swaziland ratified the
‘Protection and Promotion of Funda- Maputo Protocol. It is submitted,
mental Freedoms’, is specially however, that this contention can be
entrenched.41 The Bill of Rights, howev- faulted on several counts. First, when
er, does not recognise some of the socio- the state adopted the Constitution, it
economic rights guaranteed in the Afri- had already signed, although it was not
can Charter. The non-inclusion of socio- then a state party to, the Maputo Proto-
economic rights in the Bill of Rights col. Swaziland signed the Maputo
puts a damper on the Constitution. As Protocol on 7 December 2004.46 The
noted by Fombad, although inserting Constitution came into force on 26 July
socio-economic rights in the Bill of 2005. By virtue of being a signatory
Rights will not necessarily render them state, Swaziland had the obligation not
legally enforceable, it is an indication to act in a manner that would under-
that the state accords them pride of mine the object and purpose of the
place.42 Maputo Protocol. The Maputo Protocol
should have influenced the drafting of
Section 27 of the Bill of Rights the provisions of the Constitution, espe-
states that marriage shall be entered into cially those that relate to women’s
only with the free and full consent of rights. This act of omission by the state
both parties.43 This constitutional provi- undermined the object and purpose of
sion accords with article 6(a) of the the instrument. Second, a state that has
Maputo Protocol. In keeping with arti- signed a human rights treaty, and that is
cle 2(2) of the Maputo Protocol, the wholeheartedly committed to the
Constitution provides that ‘a woman promotion of and respect for human
shall not be compelled to undergo or rights, ought to conduct a compatibility
uphold any custom to which she is in study on the basis of which it brings into
conscience opposed’.44 In conformity conformity the treaty and any national
with the equality principle of the Mapu- law that offends against the treaty provi-
to Protocol, the Constitution provides sions.47 This should be done prior to
that women have the right to equal ratification. Swaziland ratified the
treatment with men.45 Maputo Protocol in 2012. It was expect-
ed that, when the state ratified the
The Bill of Rights, however, does Maputo Protocol, its Constitution
not recognise the bulk of the rights would be in line with it. However, both
enunciated in the Maputo Protocol.
46 ACHPR ‘Ratification Table: Protocol to the
African Charter on Human and Peoples'
41 Sec 246(2)(c) of the Constitution. Rights on the Rights of Women in Africa’
42 Fombad (n 6 above) 101. http://www.achpr.org/instruments/women-
43 Sec 27(2) of the Constitution. protocol/ratification (accessed 11 September
44 Sec 28(3) of the Constitution. 2013).
45 Sec 28(1) of the Constitution. 47 Viljoen (n 13 above) 22.
238 Swaziland

the Constitution and ordinary legisla- property.54 All the rights listed above
tion retain provisions that fly in the face give effect to certain provisions of the
of the Maputo Protocol. African Charter. The resuscitated Sexu-
al Offences and Domestic Violence Bill
Swaziland has not incorporated the of 2015 states that its object is, amongst
African Charter and the Maputo Proto- other things, to give effect to the several
col into ordinary legislation, although international instruments dealing with
certain provisions of both instruments sexual and domestic violence, including
have become part of domestic law by the African Charter and the Maputo
way of reception or transformation. This Protocol.
means that parliament has amended or
repealed certain legislative provisions to 5 Legislative reforms or adoption
conform to standards contained in these
instruments, though without expressly
There is no evidence to indicate that
stating that these standards have their
Swaziland undertook a compatibility
origin in these instruments. For exam-
study before she ratified the African
ple, parliament amended section 16(3)
Charter or the Maputo Protocol.
of the Deeds Registry Act of 1968
However, both instruments have had an
(Deeds Registry Act) to give effect to the
impact on the domestic legal system as
equality provisions of the African Char-
parliament has amended legislation and
ter and the Maputo Protocol. Further-
the High Court has invalidated certain
more, parliament has domesticated the
aspects of the common law concept of
Maputo Protocol by way of reception
marital power to give effect to the provi-
through enacting section 27(2) of the
sions of these instruments.
Constitution, which provides that
marriage shall be entered into with the Parliament amended the Deeds
free and full consent of the intending Registry Act in order to give effect to the
spouses. This section resonates with equality provisions of the African Char-
article 6(a) of the Maputo Protocol. ter and the Maputo Protocol, courtesy
of a landmark decision of the Supreme
In addition, there are pieces of legis-
Court, the final court of appeal in
lation that refer to provisions of the Afri-
Swaziland, in the case of Attorney-Gener-
can Charter and the Maputo Protocol.
al v Aphane.55 The facts of the case were
The Children’s Protection and Welfare
that the respondent, who was the appli-
Act of 2012, for example, enshrines the
cant in the court a quo, approached the
right to freedom from discrimination;48
Court a quo for an order declaring that
the right to education;49 the rights of section 16(3) of the Deeds Registry Act
children with disabilities;50 the right to was invalid because it was inconsistent
opinion;51 the right to protection from with the provisions of sections 20 and
exploitative labour;52 the right to free- 28 of the Constitution. Section 20 of the
dom from torture or other cruel, inhu- Constitution provides for equality before
mane or degrading treatment or the law and equal protection of the law.
punishment;53 and the right to parental Section 28 provides that women have
the right to equal treatment with men.
48 Sec 4.
49 Sec 9.
50 Sec 11. 54 Sec 17.
51 Sec 12. 55 (12/09) [2010] SZSC 32 http://www.
52 Sec 13. Swazilii.org/sz/judgment/Supreme-Court/
53 Sec 14. 2010/ 32 (accessed 7 August 2013).
 Impact of the African Charter and the Maputo Protocol in selected African states 239

The respondent and her husband were the Roman Dutch common law position
married in community of property. that a woman who is married in
They entered into an agreement to community of property and who is
purchase immovable property and under her husband’s marital power has
wished to have the property registered no locus standi in judicio to sue and be
in their joint names. However, they sued in her own name was inconsistent
failed to register the property in their with the constitutional right of equality
joint names on the basis that because for all before the law. This common law
they were married in community of position was therefore found to be inva-
property, the property would be regis- lid to the extent of the inconsistency.
tered in the sole name of the husband as
dictated by section (16)(3) of the Deeds Parliament has also adopted the
Registry Act, thereby excluding the Children’s Welfare Act and the People
respondent’s name. It is against this Trafficking and People Smuggling
background that the respondent sought (Prohibition) Act of 2009 to give effect
the invalidation of section 16(3). The to the provisions of the African Charter
Court a quo concurred with the respond- and the Maputo Protocol.
ent, ruling that section 16(3) of the
Deeds Registry Act was unconstitution- 6 Policy reform or formulation
al. As a remedy, the court severed the
offending words in the provision and The government of Swaziland has
replaced them with words that would adopted several policies to give effect to
make the provision constitutional. The the African Charter and the Maputo
Attorney General appealed against the Protocol. The National Gender Policy
remedies of severance and reading in of 2010 provides a national framework
and argued that the appropriate remedy and strategies for gender mainstreaming
was to be determined by parliament. and women’s empowerment in order to
The Supreme Court upheld the appeal give effect to the Constitution and other
but declared that section 16(3) of the relevant international and regional
Deeds Registry Act was inconsistent human rights instruments to which the
with sections 20 and 28 of the Constitu- country is a state party. The National
tion and was therefore invalid. The Gender Policy highlights nine thematic
Supreme Court suspended the declara- areas that are considered critical in the
tion of invalidity for a period of twelve advancement of gender equality in
months to afford Parliament an oppor- Swaziland. It also articulates that the
tunity to enact legislation that would African Charter and the Maputo Proto-
rectify the invalidity. Parliament has col guide it.57 The Poverty Reduction
amended the offending provisions to Strategy and Action Plan ‘puts emphasis
bring them into conformity with the on affording equal opportunity to all
Constitution. citizens regardless of sex or race to
access social and economic services in
In another landmark decision,56 a order to enhance their development’.
full bench of the High Court held that This is in line with the prohibition on
discrimination recognised in the African
56 Nombuyiselo Sihlongonyane v Mholi
Sihlongonyane (470/2013) [2013] SZHC 144 57 http://www.undp.org/content/dam/swazi
http://www.Swazilii.org/sz/judgment/Hig land/docs/publications/UNDP_SZ_Gender
h-Court/2013/144-0 (accessed 7 August _SwazilandNational Gender Policy2010.pdf
2013). (accessed 25 August 2105).
240 Swaziland

Charter and the Maputo Protocol. The In similar fashion, the High Court
National Development Strategy of 1997 has also referred to the Human Rights
accords high priority to gender equality Committee General Comment 28 on the
and the eradication of gender imbalanc- Equality of Rights between men and
es and proposes strategies that seek to women (2000) in the Nombuyiselo Sihlon-
eliminate gender inequality and offer gonyane case.59 The Court observed that
equal opportunities to all citizens irre- Swaziland was a state party to the Inter-
spective of their sex. The Swaziland national Covenant on Civil and Political
National Children’s Policy of 2009 Rights and that in enacting the equality
informed the drafting of the Children’s provisions of the Constitution, the coun-
Protection and Welfare Act of 2012. try was aware of its obligations to its
This Act is underpinned by the Conven- people in this regard and of its interna-
tion on the Rights of the Child, The tional obligations under this human
African Charter and the Maputo Proto- rights instrument.60 Based on this
col, all of which enjoin states parties to reasoning, the Court held that the
take measures to protect the rights of the common law concept of marital power
child. was, to the extent that it barred married
women from suing and being sued with-
7 Court judgments out the assistance of their husbands,
inconsistent with sections 20 and 28 of
There are very few cases in which the the Constitution
courts have referred to provisions of the
In Mabila v The Director of Public Pros-
African Charter or Maputo Protocol or
ecutions,61 the applicants had been tried
to the jurisprudence of the African
Commission. in camera before a specially constituted
tribunal. They brought an application
In Fakudze v The Director of Public before the High Court to have the
Prosecutions,58 the Director of Public record of proceedings relating to their
Prosecutions had indicted the applicants trial, in which they were convicted of
on charges of fraud, corruption and high treason, released to them. In
theft. Since the state was taking too long opposing the application, the respond-
to prosecute, the applicants applied to ents contended that since the proceed-
the High Court for an order permanent- ings before the tribunal were conducted
ly staying their prosecution. They in camera, the release of the record was
argued, amongst other things, that the precluded. The Court referred to various
state had violated their right to a fair human rights instruments including the
trial by delaying their prosecution. In African Charter as aids to interpretation
determining the case, the Court referred to buttress the principle that in camera
to the principles and guidelines on the trials are the exception and not the rule.
right to a fair trial adopted by the Afri- The Court further stated that this princi-
can Commission as an interpretative ple is coupled with the requirement that
guide. In view of the circumstances of
the case, the Court dismissed the appli-
59 Nombuyiselo Sihlongonyane (n 56 above) para
cation. 27.
60 Nombuyiselo Sihlongonyane (n 56 above) para
29.
58 (237/08) [2008] SZHC 161 http://www. 61 (3347/2003) [2009] SHZC 119 http://www.
swazilii.org/files/sz/judgment/high-court/ swazilii.org/files/sz/high-court/2009/119/
2008/161/SZHC_237_2008.pdf (accessed SZHC_334-2003.pdf (accessed 8 August
8 August 2008). 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 241

after an in camera hearing, the whole or ments at the 54th ordinary session of the
part of the judgment has to be made African Commission, at which they
public. The Court stated that trials took turns castigating the state for its
behind closed doors with secret judg- violation of human rights and failure to
ments tainted any judicial system in implement previous recommendations
which the rule of law and fair trial rights of the African Commission.63 Their use
have any meaning at all. The Court of Concluding Observations has been
gave judgment for the applicants. The minimal. This may be attributed, among
Court in this case cited the relevant other things, to the fact that Swaziland
provisions of the African Charter but has not been consistent in submitting
unfortunately did not refer to the Afri- her periodic reports to the African
can Commission’s interpretation of the Commission and as such very few
provisions. Observations have been made. Moreo-
ver, the state has not disseminated even
In as much as the courts occasional- the Concluding Observations of the only
ly refer to the African Charter and the report that was submitted.
Maputo Protocol, they have been shy to
refer to the jurisprudence of the African The Coordinating Assembly of
Commission for interpretative guidance Non-Governmental Organisations
on the rights that have a bearing on (CANGO), which is the umbrella body
highly contentious issues in the King- of non-governmental organisations in
dom. For example, the courts have not Swaziland, has made an effort to height-
referred to the exposition of the African en CSO awareness of human rights in
Commission on what it understands to Swaziland.64 CSOs comprise non-regis-
be the scope and content of the right to tered and registered non-governmental
freedom association in the context of organisations, community-based and
political parties. faith-based organisations, amongst
others.65 CANGO has established a
8 Awareness and use by civil Governance and Human Rights Consor-
society tia that will, amongst other things, facili-
tate the ‘integration of human rights
Civil society organisations (CSOs), espe- responsive programming and develop-
cially those whose mandate involves the ment’.66 The establishment of the
promotion and protection of human consortia is a reaction to the dearth of
rights, are aware of the African Charter knowledge amongst some CSOs on the
and the Maputo Protocol. In this human rights-based approach to devel-
respect, they have filed communications opment.67 CANGO is concerned that,
before the African Commission.62 Some in spite of the adoption of a national
CSOs refer to provisions of these human constitution which reflects numerous
rights instruments, especially those
involved in legal education. CSOs also 63 R Lee ‘Swaziland under fire at the African
displayed their awareness of both instru- Commission’ 29 October 2013 http://www.
osisa.org/hrdb/swaziland/swaziland-under-
fire-african-commission (accessed 11 August
62 Communication 444/13 Justice Thomas 2015).
Masuku (represented by Lawyers for Human 64 ‘CANGO Governance and Human Rights
Rights Swaziland) v Swaziland; Communica- Consortium Strategic Plan’ The Swazi News
tion 414/12 Lawyers for Human Rights Swazi- 2 November 2013.
land (Swaziland) v The Kingdom of Swaziland; 65 As above.
Lawyers for Human Rights Swaziland v Swazi- 66 As above.
land (2005) AHRLR 66 (ACHPR 2005). 67 As above.
242 Swaziland

fundamental human rights and free- the state.71 Lawyers have not referred to
doms, lack of knowledge on the Consti- the Maputo Protocol as extensively in
tution and Bill of Rights undermines the their arguments. This may be attributed
realisation and enjoyment of these to the fact that Swaziland only ratified
rights.68 The development of an advoca- the Maputo Protocol in 2012.
cy strategic plan will, according to
CANGO, assist CSOs with a frame of Judges have shown growing aware-
reference and enable them to address ness of the African Charter and the
issues of governance and human Maputo Protocol in their judgments.72
rights.69 And, as noted above, one judge has
referred to the jurisprudence of the Afri-
9 Awareness and use by lawyers can Commission as an interpretative
source in deciding a case.73
Human rights law became a fully-
fledged course in the curriculum of the 10 Higher education and academic
University of Swaziland when the writing
university introduced the new Bachelor
of Laws programme in 2001. Awareness The University of Swaziland introduced
of human rights increased after the a course in human rights law in the
introduction of this programme, espe- 2001 academic year. A human rights
cially amongst lawyers who graduated law course outline for the 2015 academ-
from it. This does not suggest that ic year reflects that the African system
lawyers did not bring human rights of human rights protection is one of the
related cases before courts before 2001. topics covered in this course and the
Lawyers did file human rights related African Charter appears as one of the
cases in courts before this period but major legal instruments cited in this
such cases were not as pronounced as course. The Maputo Protocol features
they are today. The adoption of the prominently in the discourse on such
Constitution with a justiciable Bill of rights as the right to equality.
Rights coupled with the increase in the
number of lawyers with a background in There is a dearth of literature by
human rights law has seen an increase Swazi legal academics on the African
in human rights related cases before Charter and the Maputo Protocol.
domestic courts. There is heightened There is, however, a journal article in
awareness of the African Charter and which a legal academic laments the
the Maputo Protocol, especially omission of economic, social and cultur-
amongst lawyers who are interested in al rights in the Bill of Rights.74 She
human rights litigation. There are court contends that, by virtue of being a state
cases in which lawyers have referred to
the African Charter in their argu- 71 Communication 406/11 Law Society of
Swaziland v Swaziland http://www.achpr.
ments.70 The law society of Swaziland org/files/activity-reports/37_2015_eng.pdf
has also tabled a communication before (accessed 11 August 2015).
72 Ndzimandze & Others v Ndzimandze & Others
the African Commission in which it (981/14) [2014] SZHC 234; Masinga v
alleged violations of human rights by Director of Public Prosecutions & Others (21/07)
[2011] SZHC 58; Fakudze (n 58 above);
Mabila (n 61above).
68 As above. 73 Mabila (n 61 above).
69 As above. 74 SM Langwenya ‘Recent Legal Develop-
70 Ray Gwebu (n 27 above); Sithole NO (n 28 ments ‒ Swaziland’ (2005) University of
above). Botswana Law Journal 170.
 Impact of the African Charter and the Maputo Protocol in selected African states 243

party to the African Charter, Swaziland for state reporting under the African
was expected to recognise these rights in Charter and the Maputo Protocol
the Bill of Rights. respectively. The process of preparing a
report is not clear as Swaziland has
11 National human rights submitted only one report on the Afri-
institutions can Charter. There is no evidence that
either the state or civil society dissemi-
The Constitution provides for the estab- nate Concluding Observations of the
lishment of a Commission on Human African Commission.
Rights and Public Administration
As has been noted in the antecedent
(CHRPA).75 The Constitution outlines
paragraphs, Swaziland has not been
the functions76 and powers77 of the
consistent in submitting state reports to
CHRPA. The CHRPA was constituted
the African Commission. Swaziland
through Legal Notice 143 of 2009. By
submitted the first periodic report,
June 2013, the CHRPA had received 68
which covered the period from 1995 to
cases of alleged human rights viola-
2000 on 21 February 2000; four years
tions.78 The bulk of these cases allege
after the first report became due.80 This
violations of the right to a fair hearing,
is the only report that the state has
the right to administrative justice, the
submitted to the African Commission.
right to freedom from inhumane or
degrading treatment and the rights of In respect of the submission of peri-
workers.79 In 2009, the CHRPA odic reports, the then Minister of Justice
presented to parliament the Human and Constitutional Affairs apologised to
Rights and Public Administrative Bill the promotional mission that visited
that would fully operationalise the Swaziland, on 21-26 August 2006, for
CHRPA. To date, however, parliament the state’s failure to submit reports.81 He
has not enacted the Bill into law. Since assured the mission that since Swazi-
the CHRPA is not fully operational, it land had adopted a constitution; the
faces challenges which include process- state intended to comply with its inter-
ing the cases that it has received and national obligations, including attending
otherwise discharging its mandate as sessions of the African Commission.82
required. However, Swaziland has not lived up to
the Minister’s promise. The study could
12 State reporting not ascertain the composition of the
government’s delegation during the
The Ministry of Justice and Constitu- presentation of the state report on the
tional Affairs and the Gender and Fami- African Charter. It was impossible for
ly Issues Department under the Deputy the researchers to find the report that
Prime Minister’s Office are responsible Swaziland submitted to the African
Commission and the website of the Afri-
can Commission does not have the
75 Sec 163(1) of the Constitution.
76 Sec 164 of the Constitution. report, although it reflects that the state
77 Sec 165 of the Constitution.
78 ‘Swaziland Commission on Human Rights
and Public Administration Strategic Plan
2013-2017’ http://www.undp.org/content. 80 http://www.achpr.org/states/swaziland/rep
dam/swaziland/docs/publications/UNDP_ orts/1st-1995-2000/ (accessed 4 September
SZ_Governance_Swaziland (accessed 2015).
5 August 2015). 81 ACHPR (n 4 above).
79 As above. 82 ACHPR (n 4 above) 13.
244 Swaziland

submitted its report during that period. than what the state offers in practice.
In the absence of the report, the Swaziland has adopted a constitution
researchers could not establish the perti- whose Bill of Rights recognises some of
nent concluding observation. Swaziland the civil and political rights guaranteed
has not yet submitted her initial report in the African Charter. To some extent,
on the Maputo Protocol. The report the state has complied with article 1 of
became due on October 2014. the African Charter. In keeping with
article 7 of the African Charter, the
13 Communications Constitution provides for the right to a
fair hearing.86 The extent to which this
The African Commission has decided right is applicable in Swaziland is a
against the state in one communica- matter of speculation as the Judicial
tion.83 The state has not given any Service Commission, whose chair is the
exposure to or disseminated the findings Chief Justice, recommended the remov-
of the African Commission. A special al from office of a judge of the High
mission of the African Commission Court after a hearing that made a mock-
visited Swaziland in 2006 and inquired ery of the right to fair trial and all that it
from the then Minister of Justice and stands for. The Constitution recognises
Constitutional Affairs as to what meas- the right to freedom of assembly and
ures the state had taken to implement association87 as guaranteed in the Afri-
the recommendations of the African can Charter. In the context of the opera-
Commission on the communication tion of political parties in Swaziland,
against Swaziland.84 The Minister’s however, the enjoyment of this right
response was that the state had not remains a contentious issue. In spite of
received an official communication on the recognition of freedom of associa-
the decision and that it learnt of the tion in the Constitution, there is no law
decision by chance.85 The findings of that regulates the operation of political
the African Commission in the commu- parties. The Attorney General has
nication against Swaziland were that the argued that section 79 of the Constitu-
state had, through certain legislation, tion, which provides that the system of
violated articles 1, 7, 10, 11, 13, and 26 government in Swaziland emphasises
of the African Charter. The African individual merit as the basis for election
Commission recommended that Swazi- or appointment to public office, ‘repre-
land align the offending legislation with sents a fundamental choice by the
provisions of the African Charter and people, a choice that individuals not
that the state should involve stakehold- groups may participate in the govern-
ers, including civil society, in the ance of the country’.88 In similar fash-
conception and drafting of the new ion, he has argued that political parties
Constitution. are allowed to exist in Swaziland but
cannot contest political power.89 The
The state has adopted legislative primary aim of political parties is to
measures to implement the recommen- contest for political power in order to
dations of the African Commission, govern or rule if voted into office. The
although such measures promise more
86 Sec 21 of the Constitution.
87 Sec 25 of the Constitution.
83 Lawyers for Human Rights (n 62 above). 88 ‘AG tells judges to back off ’ Times of
84 ACHPR (n 4 above). Swaziland 25 July 2008 4.
85 As above. 89 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 245

argument by the Attorney General is in Court, however, has dismissed such

stark contrast with the observation of allegations.93
the Constitutional Court of Uganda:90
14 Special mechanisms and
The freedoms to assemble and associate do
not only concern the right to form a
promotional visits of the
political party but also guarantee the right African Commission
of such a party once formed to carry out on
its political activities freely. The African Commission undertook a
promotional visit to the Kingdom of
Swaziland has enacted section 141 of
Swaziland from 21 to 25 August 2006.94
the Constitution, which guarantees the
The terms of reference of the promo-
independence of the judiciary, in order
tional mission included discussions on
to implement the recommendation that
the implementation of the African
the state should bring its offending legis-
Commission’s decision on the commu-
lation into conformity with article 26 of
nication against Swaziland and the
the African Charter. Although at the
process of ratification of the Maputo
formal level independence of the judici-
Protocol, the Protocol to the African
ary is guaranteed, a judge of the High
Charter on the Establishment of the
Court was removed from office because
African Court, the African Charter on
of a statement he had made in his judg-
the Rights and Welfare of the Child and
ment. The Judicial Service Commission
the submission of Swaziland’s state
framed disciplinary charges against him
reports in accordance with article 62 of
and recommended his removal from
the African Charter. The promotional
office, contrary to the constitutional
mission also sought to (i) promote the
stipulation that
African Charter and deliberate on the
a judge of a superior court or any person interpretation and implementation of
exercising judicial power shall not be liable the African Charter; (ii) heighten aware-
to any action or suit for any act or ness of the African Commission and its
omission by that judge or person in the role among government departments
exercise of the judicial power.91
and civil society; and (ii) promote closer
The African Commission has expressed relationships between the African
alarm at the failure of the government of Commission and Swaziland. The
Swaziland to implement its decision in promotional mission held meetings with
this communication and has thus called relevant ministers of the Crown, the law
on the government to implement the society of Swaziland, the Commissioner
recommendations and submit a report of Police and civil society.
on the status of implementation.92
In the context of the 28 recommen-
There are concerns that the Consti- dations determined by the promotional
tution is not broadly representative of mission, the government was required
the Swazi society because some stake- to, amongst other things, abolish the
holders and CSOs were excluded in its death penalty, ratify the Maputo Proto-
conception and drafting. The Supreme col, establish a human rights commis-

90 Dr Paul Ssemwogerere and Others v Attorney 93 Sithole & Others v The Prime Minister & Others
General Constitutional Petition No 5/2002 (35/2007) [2007] SZSC http://www.
(CC) (Unreported). Swazilii.org/sz/judgment/Supreme-Court/
91 Sec 141(4) of the Constitution. 2013 (accessed 7 August 2013).
92 ACHPR (n 3 above). 94 ACHPR (n 4 above).
246 Swaziland

sion that complies with the Paris col, vitiates the impact of these treaties.
principles, submit periodic reports to the Since the adoption of the Constitution,
African Commission and effectively the courts have expressed, in not less
implement the decision in the communi- than three decisions, their concern about
cation against Swaziland. The state has parliament’s sluggishness in aligning
given effect to one of these recommen- ordinary law with the Constitution.95
dations, that is, it has ratified the Mapu-
to Protocol. There is no evidence that a Third, failure by the courts to refer
special mechanism of the African to the jurisprudence of the African
Commission has visited Swaziland or Commission as an interpretative source
made recommendations to the country. when interpreting rights enshrined in
African Charter and the Maputo Proto-
15 Factors that may impede or col discount the impact of these instru-
enhance the impact of the ments. It is indisputable on the one
hand that the jurisprudence of the Afri-
African Charter, the Maputo
can Commission is not binding on the
Protocol and the African courts of Swaziland because the state
Commission has not incorporated these instruments.
On the other hand, it is axiomatic that
The factors presented below may the general comments of this treaty
impede the impact of the African Char- body provide an authoritative interpreta-
ter, the Maputo Protocol and the Afri- tion of relevant treaty provisions and
can Commission. First, the exclusion have persuasive authority. Referring to
from the Bill of Rights of certain rights the jurisprudence of the African
enunciated in the African Charter and Commission can enrich the jurispru-
the Maputo Protocol negate implemen- dence of the courts of Swaziland
tation and the possible impact of these
treaties. This assertion finds a measure Fourth, the absence of a Human
of support in the Ray Gwebu. The Rights Commission that complies with
Supreme Court decided this case when the Paris Principles96 is a drawback not
the Constitution was in the process of only to the protection and promotion of
formulation. The Court stated in its obit- human rights generally but also to the
er dictum and in an advisory tone that specific protections offered by the Afri-
the norms recognised in the African can Charter and the Maputo Protocol
Charter to which Swaziland had specifically.
pledged her adherence should be reflect-
ed in the Constitution. The Court
observed that this was necessary in
order for the state to fulfil its obligation
‘to adopt legislative or other measures to
give effect to the rights, duties and free-
doms enshrined in the Charter’. 95 Ndzimandze (n 80 above) para 8; Attorney-
General v Aphane (n 63 above) para 61; Aphane
v Registrar of Deeds & Others (383/09) [2010]
Second, parliament’s tardiness in SZHC 29 paras 16 & 34 http://old.
enacting legislation to give effect to the swazilii.org/sz/judgment/high-court/2010/
29
Constitution, some of whose provisions 96 These are international standards that frame
give effect to the rights recognised in the and guide the work of International Human
Rights Institutions and were adopted by the
African Charter and the Maputo Proto- General Assembly of the United Nations in
1993.
 Impact of the African Charter and the Maputo Protocol in selected African states 247

Fifth, the lack of awareness of conformity with this Constitution’. This

human rights by individuals vitiates the constitutional stipulation suggests that
impact of these human rights instru- laws that offend against the Constitution
ments. As noted by CANGO97 and the should be reformed. Law reform agen-
CHRPA,98 ignorance of human rights cies play a critical role in bringing laws
by the generality of the Swazi popula- into conformity with the notion of
tion poses a major challenge to the human rights. Swaziland does not have
enjoyment of rights. Individuals cannot a law reform commission that would,
agitate for their rights and hold govern- amongst other things, align the law with
ment accountable if they are not aware current circumstances, eliminate defects
of their rights. in the law or advise on or initiate
proposals for the introduction of new
Sixth, litigation by its very nature is methods for the administration of
expensive. Awareness of rights serves no justice.99
useful purpose if the rights-holder
cannot vindicate those rights in court. Addressing the challenges discussed
The absence of a national legal aid above may enhance the impact of the
system in Swaziland impedes enjoyment African Charter and the Maputo Proto-
of the rights contained in the African col. There is also a need for judicial
Charter and the Maputo Protocol, espe- activism. As noted previously, the Bill
cially by vulnerable groups such as of Rights does not recognise the bulk of
women, children, the elderly and the socio-economic rights guaranteed in
persons with disabilities. the African Charter and the Maputo
Protocol. In this respect, Swaziland is in
Seventh, the inconsistency of the dire need of an activist bench that would
state in submitting its periodic reports to engage in an expansive reading of civil
the African Commission negates the and political rights, to include aspects of
provisions of the African Charter and socio-economic protection.
the Maputo Protocol. By submitting its
reports, the state would benefit from the The African Commission held its
Concluding Observations of the African 43rd ordinary session in Swaziland from
Commission, which highlight areas in 7 to 22 May 2008. The objective of the
which a state has to take further action. session was to enhance the promotion
and protection of human rights on the
Eighth, section 268(1) of the Consti- continent. No national of Swaziland has
tution provides that ‘[the] existing law, ever been a member of the African
after the commencement of this Consti- Commission.
tution, shall as far as possible be
construed with such modifications, The media plays a significant role in
adaptations, qualifications and excep- exposing human rights violations perpe-
tions as may be necessary to bring it into trated by the state and non-state actors.
The media has exposed, amongst other
97 ‘CANGO Governance and Human Rights
things, police brutality against individu-
Consortium Strategic Plan’ The Swazi News
2 November 2013.
98 ‘Swaziland Commission on Human Rights
and Public Administration Strategic Plan
2013-2017’ http://www.undp.org/content. 99 JE Ruhangisa ‘Human rights and good
dam/swaziland/docs/publications/UNDP_ governance: The role of law reform agencies’
SZ_Governance_Swaziland (accessed (2005) 11 East African Journal of Peace and
5 August 2015). Human Rights 108.
248 Swaziland

als, violence and discrimination against

women and abuse of children.
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
TANZANIA

Grace Kamugisha Kazoba*

Charles Mmbando**

1 Introduction occurred in 1964. Zanzibar still retains

some distinct features of a sovereign
The United Republic of Tanzania is a state,2 popularly regarded in Tanzania
union of two former sovereign states, as features of an autonomous territory,
Tanganyika and the Peoples’ Republic such as having its own legislature over
of Zanzibar. This came about as the non-union matters;3 and a judiciary up
result of ratification of the Articles of to the level of the high court distinct
Union on 23 April 1964, which entered from the High Court of Tanzania,
into force as the result of Tanganyika whereas the latter has jurisdiction over
merging with Zanzibar to form one the mainland only. In addition Zanzibar
sovereign and independent state on 26 has its own president known as the Pres-
April 1964. Apart from forming the ident of the Revolutionary Government
legal basis for the Union, the Articles of of Zanzibar4 and several non-union
Union also made the declaration of the bodies such as the Electoral Commis-
United Republic. The name ‘United sion of Zanzibar, amongst others. Laws
Republic of Tanganyika and Zanzibar’ enacted by the legislature of the United
was later changed to United Republic of Republic of Tanzanian over Union
Tanzania by the United Republic matters, usually sitting in Dodoma in
(Declaration of Name) Act of 1964.1 the Tanganyika territory, must be rati-
fied by the House of Representatives of
Tanganyika attained its independ- Zanzibar to be operational in Zanzibar.
ence from British rule on 9 December Thus, between Tanganyika and Zanzi-
1961 whereas Zanzibar became inde- bar, each party to the Union has its own
pendent as a result of a revolution which history in relation to the introduction of
human rights through the bill of rights
operating in the constitutions of each
* LL.B (Hons, Dar), LLM HRDA (Pretoria),
state party to the Union.
PhD (Dar), lecturer and Head of the
Department of General Studies (law,
development studies and communications
skills), Institute of Finance Management
(IFM), Dar es Salam.
** LL.B (Mzumbe), LLM HRDA (Pretoria),
Principal State Attorney, Ministry of 2 Art 102(1) of the Constitution of the United
Constitutional and Legal Affairs, Das es Republic of Tanzania (the Constitution).
Salam. 3 Art 106(1)-(3) of the Constitution.
1 The Declaration of Name Act 61 of 1964. 4 Art 103(1) of the Constitution.

249
250 Tanzania

Tanzania mainland introduced the and the Village Land Act of 1999. These
Bill of Rights into its Constitution of land laws provide for the equal rights of
1977 in 1984. Nevertheless, the imple- women and men to access land without
mentation of the Bill of Rights in Tanza- any kind of discrimination.
nia mainland was delayed for two years
for what was alleged by the government There are other laws that uphold
as allowing the government to put its women’s rights in accordance with the
house in order in preparation of compli- African Charter and the Maputo Proto-
ance with the Bill of Rights. Yet, in the col such as the Employment and Labour
year 1986 when the Bill of Rights Relations Act of 2004. This law prohib-
became operational in Tanzania, the its discrimination on the basis of several
legal framework was not ready to let grounds including sex, pregnancy, fami-
Tanzanians enjoy civil, political, ly responsibilities and marital status,
economic, social and cultural rights and amongst others. It also protects women
freedoms contained in the instrument. against termination of employment on
Currently, cultural and economic rights grounds related to pregnancy or taking
are generally not justiciable in Tanza- maternity leave. The Law of Marriage
nia.5 The Bill of Rights runs from article Act of 1971 provides for the right of
12 of the Constitution through to article division of matrimonial properties upon
30. The rights which are guaranteed and divorce. The Penal Code and Sexual
justiciable under the Tanzanian Consti- Offences Special Provisions (SOSPA) of
tution are as follows: equality of human 1998 prohibit Female Genital Mutila-
beings, equality before the law, the right tion and create offences that can gener-
to life, the right to personal freedom, the ally be used by women who undergo
right to privacy and personal security, physical violence by their spouses. In
the right to freedom of movement, right addition, the Constitution in article 13
to freedom of conscience, right to free- provides for equality of all before the
dom of expression, right to freedom of law.
religion, freedom of association, free-
dom to participate in public affairs, the Despite progressive provisions
right to work, right to just remuneration contained in the current Constitution of
and the right to own property. 1977, the National Land Policy of 1995
specifically provides that clan land shall
With respect to women’s rights, the continue to be governed by customary
Constitution of Tanzania provides in its law. The Land Act does not directly
article 13 for the equality clause. Article deal with issues of inheritance. Conse-
13(6) prohibits discrimination including quently, the Customary Law Declara-
on the ground of sex. Many other laws tion Order of 1963 which discriminates
and court pronouncements protect the against women in relation to inheritance
rights of women to equality. Such legis- is still operative in Tanzania, contrary to
lation includes the Land Act of 1999 the provisions of the Constitution.

2 Ratification of African Charter

5 Only a few ones such as education and to
certain extent, the right to health, which is and the Maputo Protocol
enforced through the window of the right to
life, are justiciable. See GK Kazoba Consumer
protection and a guard against counterfeit and Tanzania ratified the African Charter on
substandard pharmaceuticals in Tanzania: 18 February 1984. This was preceded by
Examining legal and institutional frameworks
(2013) 217. the signing of the Charter on 31 May
 Impact of the African Charter and the Maputo Protocol in selected African states 251

1982. Tanzania signed and ratified the sibilities under the African Charter and
Maputo Protocol on 5 November 2003 Maputo Protocol. However, there are
and 3 March 2007, respectively. The always overlapping mandates across
Maputo Protocol was ratified without different ministries such the Ministry for
any reservations despite a heated debate Gender, Community Development, and
in the parliament of the United Republic Children. The Ministry for Gender,
of Tanzania when the instruments of Community Development and Children
ratification were presented for ratifica- is responsible for matters concerning
tion. The instruments of ratification women as well as civil society organisa-
were deposited on 7 May 2007. tions which are significant stakeholders
in the protection of the rights of women.
There are no specific reasons that Thus, even though it is the Human
can be clearly pointed out as to why Rights Department of the Ministry of
Tanzania decided to ratify the two Constitutional and Legal Affairs and the
instruments. There is no specific law in Attorney Generals’ Chambers which
Tanzania that clarifies the procedure for has the overall mandate to oversee and
ratification of international instruments. report on human rights situations,
Article 63(3) of the Constitution simply including the rights of women in Tanza-
provides as follows: nia, there are other bodies that deal with
human rights monitoring, protection
For the purposes of discharging its
and promotion. Apart from the Ministry
functions, the National Assembly may:
enact law where implementation requires of Gender, Community Development
legislation; deliberate upon and ratify all and Children, there is also the Commis-
treaties and agreements to which the sion for Human Rights and Good
United Republic is a party and the Governance (CHRAGG) which is
provisions of which require ratification.
established under the Constitution of the
Thus, ratification of international instru- United Republic of Tanzania.
ments falls within the ordinary powers
Even though the Ministry of Consti-
and functions of the National Assembly.
tutional and Legal Affairs has the over-
In that context, the instruments of ratifi-
all responsibility concerning human
cation are presented by the minister
rights matters in Tanzania, it cannot be
responsible to the Parliament for discus-
ignored that combining human rights
sion and possible ratification.6
matters under one ministry regardless of
their unique nature may compromise
3 Government focal points the attention given to certain specific
issues. For instance, during the parlia-
The Ministry for Constitutional and mentary debate that preceded ratifica-
Legal Affairs is responsible for imple- tion of the Maputo Protocol, there were
mentation of all international human several resentful statements to certain
rights obligations especially in mainland provisions of the Maputo Protocol such
Tanzania, as human right are not a as those on reproductive health. This
Union matter. The Division of Constitu- could be due to the fact that the Minis-
tional Affairs and Human Rights in the try introducing the instrument was not
Attorney General’s Chambers is respon- necessarily prepared to explain the
sible for the state’s response and respon- rationale behind such provisions as it
deals with law, constitutional and legal
6 Interview with Deputy Minister for Foreign
Affairs on 4 November 2015.
252 Tanzania

rights generally rather than the rights of hold the opposite view. The justice
women. explained that if Tanzania has signed a
Convention, courts will apply it unless the
country entered some reservation in
Indeed, the fact that human rights
accordance with international law
accountability mandates of Tanzania procedures. That is only to the extent of the
are spread between different govern- reservations that the courts will not apply
ment departments creates difficulties to the Convention in local courts.7
those in need of following up human
rights issues in Tanzania. However, it is Such an approach can be found also in
the Division of Constitutional Affairs the case of Bernado v Holaria Pastory,8
and Human Rights of the Attorney where the Court addressed a customary
Generals’ Chambers that has a mandate law rule which barred women from
for Tanzania’s responsibilities in rela- inheriting clan land. The High Court of
tion to the African Charter and the Tanzania relied on the general equality
Maputo Protocol. provision of the Constitution9 to annul
the customary rule. In arriving at that
conclusion, the Court used the ‘equality
4 Domestication or incorporation
before the law’ provision of the Consti-
tution to hold that the discriminatory
Tanzania is a dualist country. By virtue rule had to accord with human rights
of article 63(3) of the Constitution, inter- norms of equality and non-discrimina-
national law must be domesticated after tion enshrined in various international
ratification before it can be applied as a human rights instruments that Tanzania
law by courts in Tanzania. Thus, the had signed and ratified such as
African Charter and the Maputo Proto- CEDAW and the African Charter. The
col having been ratified by Tanzania are Court noted that: ‘the principles enunci-
generally speaking only persuasive legal ated in these documents [international
instruments until domesticated or incor- conventions] are standards below which
porated into Tanzanian statutes. In any civilized state will be ashamed to
terms of hierarchy of laws, the Constitu- fall’.10
tion comes first, followed by national
legislation. The African Charter and the The Land Act contains a clause to
Maputo Protocol are only persuasive the effect that in circumstances where
sources of law in Tanzania. land is in issue, the provisions of the
Land Act 113 of 2002 shall prevail. The
However, one could argue that such
Village Land Act established institutions
an approach of interpretation of impact
such as Village Land Committees with a
of article 63(3) of the Constitution is
minimum requirement of women in the
merely academic. It all depends on the
presiding judge as to whether he or she
7 Kazoba (n 5 above) 133.
will accept the legal persuasion to lead 8 (1990) LRC 757.
him to a conclusion which aligns itself 9 Since the non-discrimination provision in the
Constitution did not then prohibit
to international law or not. discrimination on the basis of sex and
gender.
As Kazoba asserts: 10 See also Transport Equipment & Reginald John
Nolan v Devram Valambbia Appeal Case No
19 of 1993 (Ramadhan JA) (unreported),
The justice argued that even though where it was held that international
politicians would like to argue that once a agreements and conventions signed and
ratified by the Tanzanian government are
convention has not been domesticated it is valid undertakings and that the government
not applicable in local courts, courts will is bound by its commitments to others.
 Impact of the African Charter and the Maputo Protocol in selected African states 253

composition, failing which the Commit- Act of 2004 and the Law of Marriage
tee cannot operate. Act of 2002 also have components of
maintenance, the right to own property,
The Constitution does not include and equality in relation to division of
socio-economic rights which are provid- matrimonial property upon divorce. The
ed by the African Charter and the employment law protects women
Maputo Protocol. The only socio- against discrimination on various
economic right that can be found under grounds such as pregnancy, marital
the Tanzanian Bill of Rights is the right status, and family responsibilities. Also,
to education. However, the proposed a woman is entitled to resume work on
constitution contains some socio-econ- the same terms as she enjoyed before
mic rights in clear terms in particular the taking maternity leave, failure of which
right to health. it will be regarded as unfair termination
of employment. There are other protec-
Despite the fact that Tanzania intro- tions relevant to reproductive health
duced the Bill of Rights in 1984, it is not rights in the employment law such as
clear whether there is any relationship the right to maternity leave; not working
between the African Charter and the within six weeks of confinement; and
1984 Bill of Rights. It cannot be ignored not working at night during pregnancy,
however that the signing of the African amongst others. Although the African
Charter might have contributed towards Charter and the Maputo Protocol are
accelerating the introduction of the Bill not directly domesticated, there are
of Rights into the Union Constitution some provisions of these instruments
given the level of awareness that was which have been incorporated into
created in Tanzania when the African national laws and hence attained
Charter was adopted. For instance, in complete legal force. However, these
Ephraim v Holaria Pastory,11 Justice national laws do not specifically refer to
Mwalusanya referred to the African the African Charter or the Maputo
Charter. However, the provisions of the Protocol.
Maputo Protocol are still not incorpo-
rated into Tanzanian law.
5 Legislative and policy reform
In relation to civil and political
rights, Tanzania complies with the Afri- There is no report to the effect that a
can Charter and the Maputo Protocol specifically targeted study was conduct-
by incorporating these rights in its ed in Tanzania to assess compatibility of
Constitution and national legislation. domestic law with provisions of the
The only difference would be the extent African Charter or the Maputo Protocol
of protection. For instance, the Land before ratifying these instruments. Even
Act of 1999 provides for equal rights of if there was such a compatibility study,
women as for men in acquiring property no serious action was taken to harmo-
with the exception of clan land which nise international law with domestic
usually changes title by way of inher- laws in Tanzania. However, in 1992,
itance. Women, though they can inherit the Nyalali Commission identified 40
cannot do so on a similar basis as men. pieces of legislation that were not
The Employment and Labour Relations compatible with international human
rights standards. The Commission was

11 (2001) AHRLR 236 (TzHC 1990).

254 Tanzania

originally set up to advise government Maputo Protocol but their content

on multi-partism. implicitly advances the realisation of
various rights enshrined in these docu-
The ratification of the Maputo ments such as: the Tanzania Develop-
Protocol in 2009 was not preceded by ment Vision 2025,14 Tanzania Five
any specific study to assess the readiness Year Development Plan,15 and the
of the Tanzanian legal framework to National Strategy for Growth and
adhere to international human rights Reduction of Poverty II.16 These docu-
obligations that Tanzania had commit- ments have set out general goals to
ted itself to. That is why laws such as improve good governance, rule of law,
the Customary Law Declaration order human rights and the realisation of
and provisions of the Law of Marriage social and economic rights in the coun-
Act on bride price still exist. Although try. They also address issues of reduc-
no legislation has been enacted or tion of HIV and AIDS, improving
amended in Tanzania to specifically health care services and the protection
give effect to the African Charter or the of PLHIV,17 as a result giving life to the
Maputo Protocol, some plans and poli- rights enshrined in the African Charter
cies reflect the rights and norms estab- and the Maputo Protocol.
lished by these instruments, as detailed
below. The adoption of the National Land
Policy (NLP) in 1995 was the turning
Several policies and strategies have point for women’s rights to own land in
been formulated explicitly to give effect the country. The policy aims to promote
to the African Charter, Maputo Protocol the equitable distribution of land as well
and other human rights instruments in as provide all citizens with access to
Africa. Examples of such policies land.18 The NLP specifically describes
include the Child Justice Strategy (A the conditions in which women find
Five year Strategy for Progressive themselves regarding land ownership
Reform 2013-2017),12 and the National
Human Rights Action Plan.13 Other
policies adopted at national and institu-
tional levels have not explicitly 13 in four thematic headings, as priorities for
improving coordination and protection
mentioned the African Charter or the throughout Tanzania. The NHRAP
strengthens a Human Rights Based
Approach (HRBA) in existing national
12 Developed by the Ministry of Constitutional policies and strategies, including
and Legal Affairs in 2013, it aims at MKUKUTA, MKUZA, the MDGs, Vision
providing a framework for reforms within 2025, Five Year Development Plan spanning
which relevant MDSs and CSOs can shape from 2011/12 to 2015/2016, and existing
their child justice related activities, to ensure action plans of other Ministerial
that everyone is moving in the same Departments and Agencies (MDAs). The
direction to achieve a common vision of the Plan establishes a comprehensive system for
child justice system. The reform process is implementation, monitoring and evaluation.
framed by key principles enshrined in the 14 Adopted by the Planning Commission of the
UN Convention on the Rights of the Child, President’s Office.
the African Charter on the Rights and 15 2011/2012-2015/2018 adopted by the
Welfare of the Child and other international Planning Commission of President’s Office
Instruments. in 2012.
13 The National Human Rights Action Plan 16 2010/11-2014/2015 also famously known as
2013-2017 was adopted by the Ministry of MKUKUTA.
Constitutional and Legal Affairs. The 17 The Tanzania Five Year Development Plan
NHRAP recognises that the protection and includes a target to ‘increase and strengthen
promotion of human rights is not limited to a services for care and treatment of people
single topic, sector, government ministries, living with HIV/AIDS to reach 800,000 by
departments or agency. The plan identifies 2015/16’.
twenty three human rights issues, arranged 18 The National Land Policy (1997) 5 & 12.
 Impact of the African Charter and the Maputo Protocol in selected African states 255

and aims to cure the situation.19 The Plan to guide the country’s multi-secto-
NLP influenced the process of land law rial response to the epidemic.23 The
reform which resulted in the Land Act National HIV and AIDS Policy (2012)
of 1999 and the Village Land Act. In a further emphasised the importance of
combined way, these provisions provide respect for the human rights of PLHIV
a framework that is favourable to and Health Sector HIV and AIDS Stra-
women, giving them access, ownership, tegic Plan (HSHSP 2013-2017), a subset
and decision-making power, and thus of both the Health Sector Strategic Plan
giving life to the rights enshrined in the III and the National Multi-sector Strate-
African Charter and the Maputo Proto- gic Plan III addresses issues of HIV/
col. AIDS.

The government has also taken Although many policies do not

steps to advance issues of gender,20 and explicitly mention the African Charter
to eradicate FGM and alleviate GBV by or the Maputo Protocol, they reflect not
adopting policies, strategies and plans of only the spirit of these documents but
action.21 For more than three decades, also the comments of the African
Tanzania has made a concerted Commission in respect of women’s
response to the HIV/AIDS epidemic, rights. These policies have laid a strong
which nevertheless continues to claim foundation for the promotion and
the lives of thousands of people, and protection of women’s rights in the
threatens national, social, and economic country, thus fulfilling Tanzania’s obli-
development.22 The Tanzania Third gations under the African Charter and
National Multi-Sectorial Strategic the Maputo Protocol.
Framework for HIV/AIDS was
designed as a broad National Strategic 6 Court judgments

According to surveys conducted by the

authors in the course of compiling this
report, there are very few cases where
19 In order to enhance and guarantee women’s the African Charter, the Maputo Proto-
access to land and security of tenure, women
will be entitled to acquire land in their own col, case law, resolutions or general
right not only through purchase but also comments of the African Commission
through allocation.
20 Adoption of the Gender Policy 2000 and have been referred to as interpretive
Strategic Plan on Gender 2006 has guidance in any court judgment in
acknowledged the status of women
participation in economic and social issues Tanzania. One of the very few cases is
to be low, and through the Policy, guidelines Ephraim v Pastory.24 Additionally in the
to minimize the gaps have been provided.
21 The National Management Guidelines for case of Elizabeth v AG,25 the African
the Health Sector Prevention and Response
to Gender Based Violence (2011), the
National Strategy for Gender Development 23 The Framework calls for scaling up of the
(2000), Multi Sector National Plan of Action comprehensive, national response in
to Prevent and Respond to Violence Against prevention, care, treatment, and impact
Children (July 2013-June 2016), National mitigation in a way that is responsive to
Plan of Action for the Prevention and issues of gender. It emphasises the prevention
Eradication of Violence Against Women and of new HIV infections, with a special focus
Children (2001-2015) and its on women, youth and key populations at
Communication Strategy (2007-2015) and higher risk of HIV. It also focuses on the
the National Plan of Action to Combat necessary quality in the continuum of care
Female Genital Mutilation (2001-2015). for PLHIV and stewardship for the nation’s
22 Tanzania 3rd National Multi-Sectorial most vulnerable children.
Strategic Framework for HIV/AIDS 2013/ 24 (2001) AHRLR 236 (TzHC 1990).
14-2017/18 x. 25 Misc Civil Cause 82 of 2005.
256 Tanzania

Charter and the Maputo Protocol were col were referred to on a number of
referred to by the civil society organisa- occasions by the committee.28
tions that represented the applicant
widows but given the path the court In addition to the above, Tanzanian
took which ignored not only interna- civil society organisations supported the
tional human rights instruments but also applicant in the Independent Candidate
the Constitution of Tanzania, the instru- case,29 which was decided by the Afri-
ments were not considered and hence can Court. During the hearing of the
did not positively influence the outcome case, they made references to several
of the cases. provisions of the African Charter such
as the right to participate in public
7 Awareness and use by civil affairs under article 13(1).30
society According to the website of the Afri-
can Commission, there are five Tanza-
There is a wide range of awareness of nia-based NGOs that have observer
the African Charter and the Maputo status with the African Commission.31
Protocol amongst civil society organisa-
tions in Tanzania. For instance, the The African Charter and the Mapu-
position paper on mainstreaming gender to Protocol are widely known amongst
in constitution-making in Tanzania that lawyers in Tanzania especially those
was prepared by the Gender Forum, a who organise themselves through civil
coalition of civil society organisations society organisations. For instance, in
advocating positive gender provisions in the constitutional review discussions
the proposed constitution, used interna- referred to above, the forums were
tional human rights provisions as an composed mainly of lawyers and they
advocacy tool in addition to constitu- organised meetings as professionals.
tional provisions of other countries such Also, in the Elizabeth case, civil society
as South Africa and Kenya to advocate organisations referred to several provi-
for gender mainstreaming in constitu- sions of the African Charter. However,
tion-making.26 the high court did not pay adequate
attention to those provisions.
Also, during the same exercise of
constitutional review, a special commit-
8 Higher Education and academic
tee on the Constitution that was coordi-
nated by the Legal and Human Rights
writing
Centre (LHRC)27 and composed of
national and international experts of Higher education curricula and academ-
constitutional law and constitutional ic writing in Tanzania refer to the Afri-
matters, members of civil society organi- can Charter. For instance, Mzumbe
sations, academics with a duty to moni- University, Tumaini University and
tor, assess, inform public opinion and Ruaha University College have human
engage politicians on the constitutional
review processes and developments, the 28 One of the authors also happened to be a
member of the Committee.
African Charter and the Maputo Proto- 29 Attorney General v Rev Christopher Mtikila Civil
Appeal 45 of 2009.
30 See Mtikila v Tanzania Applications 009/
26 One of the authors of this paper happened to 2011 and 011/2011, Judgment of 14 June
be the consultant. 2013.
27 A national NGO dealing with protection and 31 http://www.achpr.org/network/ngo/
promotion of human rights in Tanzania. (accessed 16 November 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 257

rights courses at both undergraduate affiliate status by the African Commis-

and postgraduate levels. Also, the sion.35 As a NHRI with an affiliate
University of Dar es Salaam established status, CHRAGG is required to assist
its Master of Laws (LLM) Programmes the African Commission in the promo-
in 2013, of which one on procedure tion and protection of human rights at
before international judicial bodies national level and submit reports to the
which refers to and discusses issues Commission every two years on its
under the African Charter and the activities towards the promotion and
Maputo Protocol. Several academics protection of the rights enshrined in the
write published papers which make African Charter.36 In fulfilling its affili-
references to the African Charter and ate status obligation to the African
the Maputo Protocol.32 Some of these Commission, CHRAGG makes direct
works advocate for the protection of reference to the African Charter and the
socio-economic rights in the Constitu- Maputo Protocol in its programmes and
tion with particular reference to when exercising its mandate to promote
women’s right to health, maternity and protect human rights in the country.
issues and rights to work.
At the national level, CHRAGG is
9 National human rights involved in the preparation and submis-
institutions sion of state reports to the African
Commission in cooperation with other
stakeholders.37 It was involved in the
The Commission for Human Rights and
preparation and submission of the
Good Governance (CHRAGG) was
combined 2nd-10th report. CHRAGG
established under article 129(1) of the
undertakes follow up of concluding
1977 Constitution, and the Commission
observations and recommendations of
for Human Rights and Good Govern-
the African Commission. For example,
ance Act of 2001. It is an independent
CHRAGG has made formal communi-
government department established to
cation to the government by urging it to
oversee the promotion and protection of
ratify the Convention against Torture
human rights and good governance in
and Other Cruel, Inhuman and Degrad-
the country.33 It is one of the NHRIs in
ing Treatment or Punishment (CAT), as
Africa established in accordance with
a way of implementing the recommen-
the Paris Principles34 and granted
dations of the African Commission and
other international bodies.

32 See for instance, GK Kazoba 'Justiciability of At various occasions, CHRAGG

the right to health in Tanzania and women’s has urged the government to consider
access to health care: Lessons from India,
Kenya and South Africa' in GD Mjema &
GE Kaganda (eds) Socio-Economic
Development in Tanzania: A Multidisciplinary 35 ACHPR/Res.31(XXIV) 98 Resolution on
Perspective (2014); GK Kazoba ‘Promoting a granting of Observer Status to NHRI in
balance between economic development and Africa, 1998.
protection of maternity rights at work places in 36 Art 4(b) & (c) of ACHPR/Res.31(XXIV) 98.
Tanzania’ in GD Mjema & GE Kaganda 37 This is done in compliance of Principle 3(d)
(eds) Socio-Economic Dynamics in Tanzania: of the Paris Principles which requires NHRI
Lessons and experiences (2015); CJ Mmbando to contribute to the reports which states are
‘The protocol on the rights of women in required to submit to United Nations bodies
Africa: A tool to women rights protection in and committees, and to regional institutions,
Tanzania’ (2014) 3 TUMA LAW Review 16. pursuant to their treaty obligations and,
33 Art 130(1) of the Constitution. where necessary, to express an opinion on
34 Adopted by UNGA Resolution 48/134 of 20 the subject, with due respect for their
December 1993. independence.
258 Tanzania

the abolition of the death penalty, dinates stakeholders in the submission

corporal punishment and has conducted and presentation of the state report.39
public sensitisation programmes on
those issues. On the issue of indigenous A total of two reports under the
people for instance, CHRAGG has African Charter have been submitted to
continued to engage with the govern- the African Commission by Tanzania.40
ment and other stakeholders at various The first report was submitted on
levels on the recognition and implemen- 1 January 1992 during the 11th ordinary
tation of indigenous peoples’ rights.38 session of the Commission.41 A compi-
Despite the fact that on these two issues lation of the 2nd to 10th consolidated
CHRAGG has not received positive periodic reports was due in 2006. With
action from the government, its follow permission of the African Commission,
up efforts have helped the government the report was submitted, and consid-
implement other recommendations of ered at the 43rd ordinary session of the
the African Commission. Commission in 2008.42 It is important
to note that the 2nd to 10th Consolidat-
10 State reporting ed Report could not be submitted on
time due to a lack of specific institution-
al mechanisms for coordinating and
The obligation of the state to report to
preparing the report.43 The preparation
the African Commission as per article
62 of the African Charter is mandated to of these reports was participatory in
the Division of Constitutional Affairs nature; it involved stakeholders such as
and Human Rights in the Attorney civil society organisations, government
General’s Chambers. The Division is ministries, CHRAGG, NGOs, political
the focal point on issues of the obliga- parties and the United Nations Develop-
tion of the state in terms of the African ment Programme (UNDP).44 The coun-
Charter and other human rights treaties try’s delegation at the 43rd ordinary
and bodies. It coordinates state and non- session of the Commission was led by
state actors from Tanzania Mainland the Minister for Justice and Constitu-
and Zanzibar in the preparation of the tional Affairs, accompanied by repre-
state report. The division prepares
consultation meetings, shares issues 39 An interview with Nkasori Sarakikya,
Assistant Director, Division of
with stakeholders, collects inputs, Constitutional Affairs and Human Rights at
compiles a report and conducts a valida- the Attorney Generals Chambers (21 August
2015).
tion meeting of the report. It also coor- 40 There is an outstanding four reports. See
http://www.achpr.org/states/ (accessed
11 August 2015).
41 This covers the period 1984 to 1992. See
http://www.achpr.org/states/tanzania/rep
orts/1st-1984-1992/ (accessed 10 August
2015).
42 This covers the period 1992 to 2006 http://
www.achpr.org/states/tanzania/reports/2to
38 In September 2014, CHRAGG convened a 10-1992-2008/ (accessed 10 August 2015).
national stakeholders meeting involving 43 The 2nd-10th Consolidated Periodic Report
government representatives and civil society submitted by the United Republic of
actors. In June 2015, CHRAGG held a Tanzania under the African Charter (2008)
sensitisation seminar for members of 2.
parliament. In July 2015, it convened Local 44 Concluding Observation and Recommen-
Government Authorities from eight districts dations on the Consolidated 2nd-10th
where indigenous people reside. This went Periodic Report of United Republic of
hand in hand with a field visit to Yaeda Tanzania (2008) 2 http://www.achpr.org/
Chini in Mbulu district to assess the situation states/tanzania/reports/2to10-1992-2008/
of the Hadzabe community. (accessed 10 August 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 259

sentatives from government ministries, To ensure that these recommenda-

civil society organisations and tions are owned by all stakeholders and
CHRAGG. ultimately implemented, the govern-
ment through the Attorney General’s
The 43rd ordinary session resulted Chambers has conducted dissemination
into a number of Concluding Observa- workshops of the concluding observa-
tions which give account of the positive tions to stakeholders and has at various
aspects, factors restricting enjoyment of occasions done the same with the
rights guaranteed under the African public. Despite such efforts, this is an
Charter and areas of concern identified area that is faced with challenges in its
in the report.45 Amongst the pertinent implementation. Dissemination of the
Concluding Observations is the call for concluding observation to stakeholders
the government to work closely with and citizens invites budgetary aspects,
NGOs, civil society organisations and getting enough budgetary allocation for
other human rights actors to ensure this has posed a challenge for effective
enjoyment of the rights and freedoms in implementation.
the Charter;46 provide CHRAGG with
adequate financial, human and material 11 Communications
resources;47 domesticate the African
Charter and other international human
To date, the African Commission has
rights instruments ratified by the coun-
received seven communications against
try;48 formulate laws to penalise domes-
Tanzania filed by civil society organisa-
tic violence;49 enact legislation on HIV/ tions on behalf of individuals and by
AIDS and establish National AIDS individuals themselves.52 Out of these
Control Commission;50 and authorise
communications, three were declared
the African Commission to undertake inadmissible;53 in two communications
missions in the country.51
Tanzania was not found in violation;54
in one communication Tanzania was
found in violation of article 7(1)(a) of
the Charter;55 and one was closed.56
45 Concluding Observations and Recommen-
dations (n 44 above) 1&2. These communications have not had
46 The government has continued to engage much exposure in the country apart
with various NGOs especially those granted
observer status by the Commission. from paving a way for individuals and
47 The Commission operates both in Zanzibar NGOs to use the jurisprudence of the
and Tanzania Mainland.
48 Evidenced by enactment of the Law of the
Child Act 21 of 2009, the Persons with 52 http://www.achpr.org/states/tanzania/
Disabilities Act 9 of 2010 and the Anti- (accessed 10 August 2015).
Trafficking in Persons Act 6 of 2008. 53 Communication 333/06 Southern Africa
49 Implemented through the Penal Code CAP Human Rights NGO Network and Others v
16. Tanzania; Communication 53/91_8AR
50 The HIV/AIDS (Prevention and Control) Alberto Capitao v Tanzania; Communication
Act 28 of 2008, establishment of Tanzania’s 53/90_7AR Albert T Capitao/Tanzania.
Commission for AIDS through Act 22 54 See Communication 409/12 Luke Munyandu
of2001. Tembani and Benjamin John Freeth (represented
51 In October 2008, a mission was undertaken by Norman Tjombe) v Angola and Thirteen
to Tanzania by Commissioner Mumba Others; Communication 157/96 Association
Malila, member of the African Commission pour la saauvegarde de la paix au Burundi/
responsible for the promotion and protection Kenya, Uganda, Rwanda, Tanzania, Zaire
of human rights in the United Republic of (DRC) and Zambia.
Tanzania, and the African Commission’s 55 See Communication 243/01 Women Legal
Special Rapporteur on Prisons and Aid Centre (On behalf of Sophia Moto) v
Conditions of Detention in Africa. See http:/ Tanzania.
/www.achpr.org/states/tanzania/missions/ 56 See Communication 66/92 Lawyers’
promo-2008/ (accessed 10 August 2015). Committee for Human Rights v Tanzania.
260 Tanzania

African Commission in situation of Commissioner Mumba Malila in

violations. 2008.59 This mission intended amongst
others to promote the African Charter
With regard to cases before the Afri- and the activities of the African
can Court, the first judgment against Commission; engage the government on
Tanzania was in the case of Mtikila v measures it is taking or has taken to
Tanzania referred to elsewhere in this implement its international human
report, Tanzania was found in violation rights obligations and its obligations
of the African Charter especially the under the African Charter; exchange
article providing for freedom of associa- views with the government on the chal-
tion as its constitution prohibited a lenges it faces in fulfilling its internation-
possibility of an independent candidate al and regional human rights obligations
from vying for any elective position in and the extent to which the African
Tanzania.57 So far, Tanzania has not Commission can assist; and exchange
done anything to implement the deci- views with other human rights stake-
sion of the African Court. The only holders on ways and means of promot-
attempt that has been so far made was ing and protecting human rights in the
to include the right of an independent country.60
candidate to stand for election in the
proposed new constitution. However, The Commission gave out a number
since the constitutional review process of recommendations to the government
has been suspended for the time being, that range from ratifying outstanding
realisation of the remedy ordered by the human rights instruments;61 improving
African Court is still illusive in Tanza- prison conditions;62 improving the
nia.

12 Special mechanisms and

promotional visits of the
African Commission
59 Member of the African Commission
The Commission undertook its first responsible for the promotion and protection
promotional mission to Tanzania in of human rights in the United Republic of
Tanzania and the African Commission’s
2000 through Commissioner Vera Special Rapporteur on Prisons and
Mlanguzwa Chirwa. The report of the Conditions of Detention in Africa.
60 http://www.achpr.org/states/tanzania/miss
mission was presented at the 28th ordi- ions/promo-2008/ (accessed 27 November
nary session of the Commission in 2015).
61 Tanzania has ratified African Youth Charter
2000.58 It has been difficult for the in 2013.
researchers to get details of this visit. 62 Enactment of Community Service Act CAP
291, the National Parole Board Act CAP
This is because only the French version 400, National Prosecutions Service Act 8 of
of the mission report is published on the 2008 and the establishment of Criminal
Justice Forum have been collectively used to
Commission’s website. The second reduce congestion in prisons. The
promotional mission was undertaken by government has bought 17 buses, the LSRF
has bought 14 buses which all together have
been distributed across the country to
57 An independent candidate is a Tanzanian facilitate movement of inmates to attend
who is not a member of any political party, court sessions and thus facilitate disposal of
but aspires to contest for a political office in cases. The government has built 12 health
Tanzania. centres in central prisons. Measures to
58 http://www.achpr.org/states/tanzania/miss rehabilitate latrines, improve ventilation, and
ions/promo-2000/ (accessed 11 August access to information have also been taken to
2015). improve conditions of prisons.
 Impact of the African Charter and the Maputo Protocol in selected African states 261

working of the judiciary and appoint- purpose of raising awareness on the

ment of judges;63 equipping the problems and challenges that indigenous
Commission for Human Rights and people are facing in attaining their rights
Good Governance with adequate and freedoms.
resources and collaboration with it in
sensitisation programmes. It is well known that the concept of
indigenous peoples remains a conten-
These promotional visits have tious issue in Tanzania. The official
helped to bring the Commission, the position of the government is that the
government and other stakeholders on term ‘indigenous people’ is not applica-
the same page with regard to Tanzania’s ble, as all Tanzanians of African descent
obligations under the African Charter. are indigenous to Tanzania. The
The recommendations have made the government acknowledges that there are
government put greater effort into special groups which need special
improving human rights situations in protection within the country and has
the country in the areas recommended taken various measures to provide polit-
and other areas not touched on by the ical, social and cultural amenities to
visits. such groups.65 What is clear is that the
visit increased awareness about the Afri-
Between 21 January and 6 February can Charter, the Maputo Protocol and
2013, the Working Group on Indige- the work of the Commission and
nous Population/Communities in Afri- improved the Commission’s engage-
ca (WGIP) led by Dr Naomi Kipuri and ment with the government and other
Dr Abraham Sing’Oei Korir visited stakeholders on human rights in the
Tanzania. The aim of the visit by the country.
WGIP was to undertake research, gath-
er information and examine steps taken 13 Factors that may impede or
by the government towards the recogni- enhance the impact of the
tion, promotion and protection of the
African Charter, the Maputo
rights of indigenous peoples.64 The
WGIP met with various government
Protocol and the African
officials, higher learning institutions, Commission
civil society organisations, indigenous
communities in Manyara, Arusha and A strong Bar and Bench in the country
Morogoro and the media for the provides an opportunity for advancing
the African Charter, the Maputo Proto-
col and the work of the Commission.
63 The enactment of Judiciary Administration
Act 4 of 2011 and the establishment of The Commission has so far generated
Judiciary Fund have brought significant jurisprudence in various areas that are
changes in the working of the Judiciary. The
number of justices of Appeal Court has left open to both the bench and bar to
increased from nine in 2005 to 16 in 2015. utilise by making reference to them. The
Judges of the High Court have increased
from 35 in 2005 to 84 in 2015 and the spirit of the bench and bar to make refer-
number of magistrates has increased from ence to these norms will also be fuelled
151 in 2005 to 670 in 2015 http://www.
judiciary.go.tz/index.php?option=com_con if law schools and law faculties include
tent&view=article&id=217:mahakama-yam
uaga-rais-wa-jamhuri-ya-muungano-wa-tanz
ania&catid=1:latest&Itemid=124 (accessed 65 National report submitted in accordance
12 August 2015). with paragraph 15(a) of the annex to Human
64 A Letter from Ministry of Foreign Affairs Rights Council resolution 5/1 ‒ United
and International Cooperation Ref: No. Republic of Tanzania A/HRC/WG.6/12/
CHD 87/738/01/90, 20 January 2013. TZA/1 11.
262 Tanzania

modules on the African human rights African Charter, Maputo Protocol and
system with specific attention to the the work of the Commission in the spot-
African Charter and Maputo Protocol in light of their reports, writings and
their curriculums. programmes. Undoubtedly, this is a
result of lack of training and knowledge
The adoption of the Proposed of key issues. It is the duty of civil socie-
Constitution provides a great opportuni- ty organisations to bridge the knowledge
ty for advancing the rights in the African gap in media houses by engaging them
Charter and the Maputo Protocol.66 effectively.
This is because the scope of the rights
enshrined in the current Constitution The existence of negative cultural
have been widened.67 Unlike the current practices in the country continues to
Constitution, the proposed constitution defeat the full realisation of women's
has put an obligation on the courts to rights as enshrined in the Maputo Proto-
consider international human rights col. Practices such as FGM, domestic
instruments while interpreting the Bill of and gender-based violence still need
Rights.68 special attention by all players on
human rights.
The CHRAGG, with its newly
appointed Chairman Tom Nyanduga, a Reporting obligations in other
former member of the African Commis- human rights instruments also pose a
sion, and NGOs with and without challenge to the state to fulfil its obliga-
observer status with the African tion under the African Charter and the
Commission can play an instrumental Maputo Protocol. The report timing in
role in advancing the work of the many instruments collides; as a result it
Commission in Tanzania. This can be brings to bear budgetary implications
done by integrating the African Charter, and a work load that has posed to be a
Maputo Protocol and work of the challenge to the country.
Commission in their programmes. It is
important to have coordination amongst
various players to enable working
together and sharing experience.69

Much as they are major players in

exposing human rights violations in the
country, the press has not placed the

66 The proposed constitution was passed on

4 October 2014 by the Constituent assembly
and it awaits adoption through a referendum
to be scheduled any time.
67 Unlike the current Constitution, the
proposed constitution provides for special
group rights such as, the rights of employers
and employees (art 45); rights of farmers,
pastoralists and fishers (art 46); children’s
rights (art 53); youth rights (art 54); rights of
disabled persons (art 55); women’s rights (art
57); rights of elderly people (art 58); socio-
economic rights such as right to health (art
51); the right to education (art 52); and the
right to a clean environment (art 50).
68 Article 65(1)(a) of the proposed constitution.
69 Mmbando (n 32 above).
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
UGANDA

Agaba Daphine Kabagambe*

1 Introduction achievement of good governance and

human rights principles. To this end, the
Uganda’s human rights history has been NRM government went about putting in
as tumultuous as its political history. place democratic institutions, most of
The various political leaders that she has which had been destroyed during the
had since attaining independence in five year NRA guerrilla war. One of the
1962 have often come into power with first steps taken was the drafting of a
the promise of improving the human constitution which commentators have
rights situation. However, like their commended for being one of the most
predecessors, they have often ended up participatory constitutions anywhere.
forgetting about their promises as soon This is due to the fact that committees
as they entrench themselves in power. were set up in all regions of Uganda,
Since acquiring independence, Uganda aimed at soliciting people’s views of
has gone through one military regime what they wanted to appear in the
after another and each regime has been constitution.2 As a result, a very
forcefully taken over through coups or progressive constitution was drafted
wars aimed at regime change. These with an elaborate chapter four reserved
periods of instability have greatly affect- to fundamental human rights and free-
ed the extent to which the various doms. The constitution put in place
regimes observe and adhere to human institutions mandated to uphold and
rights protections. protect human rights, such as the judici-
ary, the parliament and the Ugandan
When the National Resistance Human Rights Commission.3 In show-
Movement (NRM) government came ing its compliance with human rights
into power in 1986,1 it held so much principles, the Ugandan government
promise for transforming Uganda into a signed and ratified all the core interna-
democratic country committed to the

2 came into power in 1986 after five years of

armed resistance against the Obote
government that culminated into his
* LLM HRDA (Pretoria), doctoral candidate, deposition by way of a military coup.
the Dullar Omar Institute, University of the 2 O Furley & J Katalikawe ‘Constitutional
Western Cape. reform in Uganda: The new approach’
1 The National Resistance Movement (NRM) (1997) 96 African Affairs 243 252-256.
was coined from the National Resistance 3 The Constitution of the Republic of Uganda,
Army (NRA) led by Yoweri Museveni which 1995.

263
264 Uganda

tional human rights treaties including out provisions protecting women’s

the African Charter and the Maputo rights. Such policies have been favoura-
Protocol.4 ble to women allowing for their inclu-
sion in parliament and in local councils
One of the most notable contribu- through the quota system. Again,
tors to ensuring that the government affirmative action measures have been
adheres to the promotion and protection undertaken to uplift the status of girls
of human rights are human rights organ- and women including those who come
isations. Over the last 20 years, there from disadvantaged backgrounds, in
has been a proliferation of both national education and employment.5 Further-
and international human rights organi- more, women were comprehensively
sations in Uganda. One contributing involved in the constitutional making
factor to their proliferation has been the process. Such developments have uplift-
stable and relatively peaceful environ- ed the economic, physical and social
ment of the NRM government. status of women in Ugandan society.
Amongst their achievements are: push-
ing for the ratification of various inter- However, women still have a long
national and regional human rights way to go before they can fully realise
treaties; advocating for the incorpora- their rights. One of the major issues is
tion of human rights principles in the the huge disparity amongst women in
various laws, policies and programmes; the urban areas with those in the rural
and presenting reports to the interna- areas. Due to the fact that over 80 per
tional human rights bodies on the cent of Uganda’s population resides in
human rights situation in Uganda, the rural areas,6 a very small percentage
amongst others. In its first years, the of women are able to fully enjoy their
NRM government seemed tolerant of rights. Thus, many women continue to
divergent views. However, as it has face numerous challenges in accessing
further entrenched itself (having been in health services (leading to high maternal
power for more than 28 years) by and infant morbidity rates), poverty,
amending the Constitution to remove lack of decision making power in their
term limits, it has become less tolerant homes and in public spaces, domestic
to dissenting views. This has led to the violence, lack of access to markets to
curtailing of the work of non-govern- sell their produce and cultural norms
mental organisations, mostly through and practices that perpetuate patriarchy
restrictive legislation or limiting the kind and the subordination of women.7
of work they can do.

One of the most noteworthy

achievements that the NRM has been
lauded for has been the uplifting and
improvement of women’s status. For 5 Art 33 of the Constitution of Uganda.
example, the Constitution explicitly sets 6 The Danish Institute for Human Rights
‘Access to justice and legal aid in East Africa:
A comparison of the legal aid schemes used
in the region and the level of cooperation and
4 African Commission on Human and coordination between various actors’ (2011)
Peoples’ Rights ‘Report of the joint 30.
promotion mission undertaken to the 7 FIDH ‘Uganda becomes the 28th state party
Republic of Uganda’ 25-30 August 2013, to the Maputo Protocol’ https://www.fidh.
presented at the 55th Ordinary Session, held org/International-Federation-for-Human-
from 28 April-12 May 2014, in Luanda Rights/Africa/uganda/Uganda-becomes-
Republic of Angola. the-28th-State (accessed 25 August 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 265

2 Ratification of the African factions, which were in opposition to

Charter and the Maputo some of the clauses in the Maputo
Protocol Protocol, specifically those on abortion.
Therefore, upon ratification, Uganda
Uganda unreservedly ratified the Afri- entered reservations to article 14 (1)(a)
can Charter on 27 May 1986.8 One of and (2)(c) of the Maputo Protocol which
the motivating factors for the ratification emphasises that states shall ‘protect the
of the African Charter was the political reproductive rights of women by
will at the time. The timing of the Afri- approving medical abortions in instanc-
can Charter can best be termed as es of rape, sexual assault, incest and
‘perfect’ timing as it was ratified in 1986 where the continuance with the preg-
when the NRM government had just nancy endangers the mental and physi-
come into power. Due to the fact that cal health of the mother and the
the new NRM government had over- foetus’.12 The justification for this reser-
thrown what it referred to as a non- vation was that it was not in line with
transparent and non-democratic regime Uganda’s laws such as the Constitution
that was violating numerous human read together with the Penal Code,
rights, it was very eager to demonstrate which outlaws abortion.13 Religious
internally, regionally and internationally groups which were vehemently opposed
that unlike previous regimes, it was to these clauses wrote several petitions
committed to the promotion and protec- protesting their conversion into Ugan-
tion of human rights.9 To this end, dan law.14 Uganda has not yet with-
regional and international human rights drawn its reservation to the Maputo
treaties that had not been ratified, Protocol despite recommendations from
including the African Charter, were the African Commission asking Uganda
readily signed and ratified as a sign that to withdraw this reservation and to
the new government was ready to revise its legislation on termination of
embrace principles of human rights, pregnancy in instances of life threaten-
transparency, democracy and good ing conditions to the mother.15
governance.10
3 Domestication or incorporation
On the other hand, Uganda signed
the Maputo Protocol on 18 December Uganda is a dualist country. Rules oper-
2003 but it was not until 22 July 2010 ating in international law are not bind-
that Uganda ratified the Maputo Proto-
col.11 The delay can be attributed to 12 Statement by Mrs Hannah Forster, Executive
opposition from mostly religious Director, African Centre for Democracy and
Human Rights Studies and Chairperson of
the NGO Forum Steering Committee, at the
official opening of the 50th ordinary session
8 Concluding Observations of the African of the African Commission, 24th October
Commission on the 2nd Periodic Report of 2011, The Gambia.
the Republic of Uganda’ Presented at the 13 SO Orach ‘Violating human rights to protect
45th ordinary session of the African human rights ‒ What a contradiction and
Commission held in Banjul, The Gambia whose agenda is it?’http://www.ucmb.
from 13-27 May 2009. Full citation co.ug/files/UCMBdocs/Reports/ARTICLE
9 K Eunice ‘On the international and internal S/Violating%20human%20rights%20to%20
ratification of treaties according to protect%20human%20rights.pdf (accessed
constitutional processes of the Republic of 9 December 2015).
Uganda’ Organization of the study of Treaty 14 The Maputo Protocol ‘A clear and present
Law 5-7 www.treatylaw.org (accessed danger: The fight against the Maputo
2 September 2015). Protocol’ Human life International (2011).
10 Eunice (n 9 above). 15 Report on the Joint promotional visit to
11 FIDH (n 7 above). Uganda (n 4 above) 60.
266 Uganda

ing upon Uganda unless they are ratified Parliament through a resolution is
and translated into national law.16 required.21 The parliament either
Therefore, article 123 of the Uganda domesticates the treaty by adopting the
Constitution, on the execution of trea- whole text as a schedule to the domesti-
ties, conventions and agreements, sets cating Act or through the transforma-
out that the President may make tion of the provisions of the treaty into
arrangements, treaties, conventions and provisions of an act of Parliament,
any other form of agreement between which in some instances are re-draft-
Uganda and any international organisa- ed.22
tion or body. Furthermore, it gives
parliament the power to make laws This is the process set out under
setting out the ratification of treaties, Uganda’s law. However, in practice,
agreements and conventions agreed to this procedure is often not followed;
by the state.17 In order to dispense its some steps may be skipped or an entire-
role, parliament adopted the Ratifica- ly arbitrary process might be undertak-
tion of Treaties Act in 1998.18 en. For instance, to date the African
Charter has not been domesticated even
The focal point for treaties is the though it was ratified in 1986. However,
Ministry of Foreign Affairs. The process as will be shown later, both lawyers and
taken prior to the ratification of an inter- judges use the African Charter in the
national treaty requires that the Ministry Ugandan courts of law.23 Furthermore,
of Foreign Affairs first distributes the use of the African Charter in courts has
treaty to various line ministries. The line not been uniform as in certain instances
ministries then come up with a cabinet it has been used both in defining the law
memo justifying their approval of the and also in limiting rights. Therefore, as
ratification of that particular treaty.19 pointed out by the African Commission,
Once they have approved it, the Minis- there is an urgent need for the govern-
ter of Foreign Affairs ratifies the treaty ment of Uganda to uniformly imple-
and then drafts a bill. The bill often sets ment the strategies of domesticating
out the human rights instrument in the instruments that have been ratified by
schedule thus giving it the force of the Uganda in order to ensure effective
law. The bill is then taken back to the promotion and protection of human
Cabinet for its approval and then it is rights.24
taken to the Parliament for its enact-
ment into law.20 However, if the ratifi-
cation of the treaty requires reviewing of
the Constitution (where it relates to
armistice, peace or where its implemen-
tation would require amendment to the 21 As above.
Constitution) then the approval by 22 C Mbazira ‘Uganda and the UN treaty
bodies: Reflections on the past and thoughts
for the future in the implementation of
economic social and cultural rights’ in
16 The Republic of Uganda ‘Report to the United Nations Office of the High
African Commission’ presented at the 39th Commissioner for Human Rights Uganda
ordinary session of the Commission in May and United Nations Human Rights Mechanisms:
2006, 6-7. A compilation on the occasion of the 60th
17 Constitution of Uganda (n 3 above). anniversary of the Universal Declaration of
18 Ratification of Treaties Act (CAP 204) 5 of Human Rights (2005) 20.
1998. 23 A Nolkaemper National courts and the
19 The State Report to the African Commission international rule of law (2011) 81.
(n 16 above) 23. 24 Report on Joint Promotional Visit (n 4
20 Ratification of Treaties Act (n 18 above). above) 61.
 Impact of the African Charter and the Maputo Protocol in selected African states 267

4 Legislative and policy reforms domination, oppression, racism and any

other forms of exploitation. It further
The Ugandan Constitution was adopted states that Uganda ‘shall actively partici-
in 1995; a few years after Uganda rati- pate in international and regional organ-
fied the African Charter. At the time the izations that stand for peace and
African Charter was ratified in 1986, the wellbeing and progress of humanity’,
old Constitution of 1967 was in opera- and that ‘the state shall promote region-
tion. Therefore, when the 1995 Consti- al and pan-African cultural, economic
tution was drafted, a provision was put and political cooperation and integra-
into the new constitution in article 287 tion’.26 Furthermore, chapter four of the
which stated: Constitution is dedicated to the ‘protec-
tion and promotion of fundamental and
where any treaty, agreement or Convention other human rights and freedoms’. Arti-
with any country or international cle 20 specifically states that ‘fundamen-
organisation was made or affirmed by
tal rights and freedoms are inherent and
Uganda or the government on or after the
ninth day of October, 1962, and was still in not granted by the state’.
force immediately before the coming into
force of this Constitution … the treaty, However, unlike the African Char-
agreement or convention shall not be ter, the Constitution does not include
affected by the coming into force of this economic, social and cultural rights in
Constitution; and Uganda or the
its Bill of Rights. The African Charter
government, as the case may be, shall
continue to be a party to it. was a ground-breaking regional docu-
ment in that it gave recognition both to
The purpose of this provision was to civil and political rights as well as
ensure that the treaties that had existed economic, social and cultural rights in
before the Constitution were not invali- the same document. By doing this, the
dated by the adoption of the new consti- Charter emphasised the indivisibility or
tution. However, in some instances, this interdependent nature of both these
provision has been interpreted by courts rights and the fact that one cannot be
as declaring treaties like the African achieved without the other. On the
Charter to be self-executing, an assertion other hand, in the Uganda Constitution,
that has been refuted by scholars.25 these rights were relegated to the section
on ‘directive principles of state policy’.
Furthermore, the Ugandan Consti- As a result, there has been a lot of
tution contained several provisions that debate on the justiciabilty of these direc-
are similar to those in the African Char- tive principles.
ter. First off, the Constitution sets out,
in its principles, a section on ‘foreign Additionally, over the reporting
policy objectives’. This section states timeframes to the African Commission,
amongst other things that Uganda’s Uganda has formulated as well as
foreign policy shall be based on respect amended a series of laws and policies to
for international law and treaty obliga- respond to the recommendations by the
tions and strongly opposes all forms of African Commission. These include the
Access to Information Regulations
2011, Prohibition and Prevention
25 B Kabumba ‘The application of international
law in the Ugandan judicial system: A
critical inquiry’ in M Killander (ed)
International and domestic human rights 26 Constitution of Uganda (n 4 above) ‘Foreign
litigation (2010) 83-107. Policy Objectives XXVIII’ 1995.
268 Uganda

against Torture Act 2012, Anti-Money unsafe abortions constitute 13 per cent
Laundering Act of 2013, National of preventable maternal deaths.
Development Plan and Uganda Health
Policy.27 Furthermore, implementation of the
enacted laws such as the FGM Act and
Regarding women’s rights, the Domestic Violence Act is fraught with
Constitution sets out in article 21 that all numerous challenges including: the
persons are equal before the law in all costs associated with the complaints
spheres, shall enjoy equal protection of process; allocation of budgets for the
the law and shall not be discriminated implementation of such laws; and the
against on any ground including sex. need for revising other laws such as the
Article 31 sets out the minimum age for Local Council Act to include provisions
marriage as 18 and both men and of these laws and the need to train medi-
women are entitled to equal rights in cal officers, police officers and judicial
marriage, during marriage and at the officials to implement the provisions set
termination of the marriage. Article 33 out in these laws. Also, other harmful
sets out that the state shall avail the practices still persist, which hinder
appropriate opportunities and facilities women’s enjoyment of their rights, such
to improve women’s welfare and enable as early and forced marriage and widow
them to reach their full potential. The inheritance.29 Therefore, there is a need
same article states ‘women shall have for the African Commission to go
affirmative action for the purpose of beyond recommending formulation of
redressing the imbalances created by more laws and policies to their actual
history, tradition or custom’. This has implementation. The formulation of
led to the increase in women’s participa- laws is only the first step to the improve-
tion in politics from 20 per cent before ment of human rights and should not be
1996 to over 40 per cent in 2013.28 seen as an end in itself. The focus on
drafting legislation has led to a situation
In addition to this, gender respon- which can best be referred to as ‘legisla-
sive laws and policies have been adopt- tion overload’ whereby the govern-
ed such as the Gender Policy (2007), ment’s main response to the issues
Domestic Violence Act (2010) as well as raised by the African Commission is to
the Female Genital Mutilation Act draft new pieces of legislation. Thus, the
(2010). However, certain laws which are African Commission should go beyond
vital for the realisation of women’s merely offering recommendations call-
rights, such as the Marriage and ing for the passing of legislation, to its
Divorce Bill and the Sexual Offenses actual implementation.
Bill, have been shelved for years despite
various calls for their enactment into One way of doing this is to focus
law. Also, Uganda still maintains reser- more on disaggregated data and any
vations to article 14 of the Maputo other information showing how human
Protocol which aims at permitting the rights principles have been implement-
termination of pregnancy in life threat- ed. This should take into consideration
ening conditions despite the fact that the rural and urban divide as well as
especially vulnerable populations. The
27 Report of the Joint Promotional Visit (n 4
above) 55-56. 29 International Federation for Human Rights
28 Report on the Joint Promotional Visit (n 4 (FIDH) ‘Women’s rights in Uganda: Gaps
above) 18. between policy and practise’ (2012).
 Impact of the African Charter and the Maputo Protocol in selected African states 269

African Commission should also name called, to which the government is a

consider undertaking an analysis of the party or in respect of which the
government has an interest, shall be
policies and programmes implemented
concluded without legal advice from the
towards the improvement of human Attorney General, except in such cases and
rights in Uganda. This is because the subject to such conditions as parliament
Ugandan government has been very may by law prescribe.
proactive in drafting legislation but not
implementing it, thus the situation on The usage of international and regional
the ground is still very dire. Further- documents by Ugandan courts has not
more, the process of drafting more laws been consistent. In most cases, Ugandan
often assumes that Ugandans will revert courts shy away from using internation-
to the law once their rights have been al texts but rather prefer to use their own
violated. However, this assumption is domestic law. Some of the reasons
erroneous considering that in Uganda, advanced for this include lack of exten-
poverty coupled with ignorance of the sive knowledge, research and under-
law are so pervasive that they lead to the standing of the modalities of the usage
failure by a substantial part of the popu- of international law by lawyers, and
lation to access legal services.30 This sometimes judges who prefer not to use
leads to a situation whereby the majori- it at all.32 Also, there is a lack of aware-
ty of people whose rights have been ness on the decisions of the African
violated cannot access the support of Commission by lawyers and judges;
Uganda’s legal system. This calls for these decisions are rarely referenced in a
more proactive and creative methods of court of law.33 In cases where they have
human rights protection which do not been used, they have not been interpret-
solely rely on formal justice mecha- ed consistently so as to set judicial prec-
nisms. edents that can be continuously
improved upon so as to advance their
incorporation into Ugandan law.
5 Court judgments
This discussion sets outs some of the
International law does not become law cases where the African Charter has
in Uganda until an Act of Parliament been cited. It should be noted that the
has been adopted, domesticating it.31 Maputo Protocol was only ratified in
Article 2(2) of the Constitution states 2010 and thus the timeframe has not
that the Constitution is the supreme law allowed for extensive usage of the
of the land and any law that is inconsist- Maputo Protocol in Ugandan courts.
ent with the provisions therein shall be One of the cases where the African
declared null and void as the Constitu- Charter was used was Mwenda v Attorney
tion shall prevail over it. Furthermore, General. In order to expound on the
article 119(5) of the Constitution points nature and content of the right to free-
out: dom of expression, the court cited perti-
nent clauses from the ‘Declaration of
[N]o agreement, contract, treaty,
convention or document by whatever Principles on Freedom of Expression in
Africa’ which was adopted by the Afri-
can Commission to give normative
30 The Danish Institute for Human Rights (n 6
above) 33.
31 Ratification of Treaties Act (n 18 above). See 32 Kabumba (n 25 above) 83-107.
also the State Report to the African 33 Report on the Joint Promotional Visit (n 4
Commission (n 16 above). above) 33.
270 Uganda

content to article 9 of the African Char- two soldiers on the same day for the
ter.34 murder of three civilians, the petitioners
sought a ruling declaring the process a
In the case of Attorney General v violation of the right to life as well as
Susan Kigula & 417 Others which fair trial. Justice Twinomujuni, who
concerned the constitutionality of the gave the lead judgment in the Constitu-
death penalty, reference was made to tional Court, stated that the African
the African Charter, amongst other Charter was self-executing by virtue of
provisions.35 The Court used the Afri- article 286 of the Constitution which
can Charter in supporting and emphasis- states that where Uganda was party to a
ing the connection between the treaty or convention or agreement after
constitutional provisions and the right to October 1962, that agreement was not
life and torture. The Supreme Court to be affected by the coming into force
emphasised that the fact that article 4 of of the 1995 Constitution and thus Ugan-
the African Charter spelt out the right to da shall continue to be party to it. He
life and torture did not mean that it had thus stated that since the African Char-
therefore outlawed the death penalty. ter was signed in 1981 and ratified in
The Court further emphasised that 1986, it had become ‘part and parcel’ of
usage of the word ‘arbitrarily’ in the the Constitution. He also read article
African Charter showed a limitation on 286 together with article 45 of the
the right; that in certain instances, a Constitution which states:
person could be lawfully deprived of the
right to life. Note should be taken that The rights, duties, declarations and
usage of the African Charter in this guarantees relating to the fundamental and
other human rights and freedoms
instance was not to spell out a legal
specifically mentioned in this chapter shall
principle but to buttress or further not be regarded as excluding others not
emphasise provisions in the Ugandan specifically mentioned.
Constitution on the right to life. That
notwithstanding, the Court held that the Thus he asserted that even though the
death penalty should be abolished and right to appeal was not clearly spelt out
replaced with punishments such as life in the Ugandan Constitution, the fact
imprisonment.36 that it is one of the provisions of the
African Charter made it applicable in
In certain instances, judges have the Ugandan Context.37
held contrasting positions on the usage
of international texts like the African However, while one of the judges,
Charter. In Uganda Law Society & Anoth- Kavuma JA, who gave the minority
er v the Attorney General which dealt with judgment in the case, agreed with the
the indictment, trial and execution of ruling made by Twinomujuni J that the
killing of the two soldiers was unconsti-
tutional, he disagreed with the position
34 Obbo and Another v Attorney-General (2004) taken by the lead judge on the African
AHRLR 256 (UgSC 2004) sec 16. Charter. He stated that despite the fact
35 Attorney General v Susan Kigula & 417 Others
03 of 2006, Uganda: Supreme Court, that the African Charter by virtue of
21 January 2009 http://www.refworld.org/ article 286 was one of the international
docid/499aa02c2.html (accessed 28 October
2015).
36 Following this case, guidelines specifying 35
years as the natural life of the person were 37 Uganda Law Society & Another v The Attorney
developed however these have not been General Constitutional Petitions No 2 & 8 of
operationalised. 2002 [2009].
 Impact of the African Charter and the Maputo Protocol in selected African states 271

treaties recognised in Uganda, he did and community mobilisation. One of

not support the assertion that the Afri- the main activities undertaken by NGOs
can Charter automatically became part has been to lobby government officials
and parcel of the Ugandan Constitution. in various departments to implement the
This view is supported by other scholars recommendations laid out by the Afri-
who state that the inclusion of article can Commission. CSOs were instru-
286 was mainly for the purpose of vali- mental in lobbying the government to
dating the agreements that had been in ratify the Maputo Protocol in 2010.
place prior to the Constitution. This They are still pushing for the withdraw-
does not make them self-executing, as al of reservations to the Maputo Proto-
‘an act of Parliament’ is required before col. CSOs also use the two instruments
the treaty can be converted into national in their research and in their human
law.38 rights work.

Kavuma JA went ahead to state that One of the main ways through
the right to appeal is to be conferred by which NGOs and civil society have
virtue of a statute and that the African utilised the African human rights mech-
Charter was the statute that bridged the anisms is by obtaining observer status
gap in terms of section 286 rather than with the African Commission. Current-
article 45. Yet, there seems to be an ly, 10 civil society organisations based
anomaly in this due to the fact that the in Uganda have observer status with the
African Charter has not been translated African Commission. These are: Foun-
into national law by an Act of Parlia- dation for Human Rights Initiative
ment. These contradictions show the (FHRI); Human Rights Network
challenges faced by Ugandan courts in (HURINET); Ugandan Association for
the consistent application of internation- Women Lawyers (FIDA); East and
al law in the domestic space. Therefore, Horn of Africa Human Rights Defend-
due to the fear of wrongfully applying ers Project; Pan African Movement;
these international law principles, most Kituo Cha Katiba – The East African
lawyers and judges decide to completely Constitutional Centre for Constitutional
refrain from using international human Development; African Freedom of
rights instruments and only use the Information Centre; Strategic Initiative
domestic ones. Therefore, there is a for Women in the horn of Africa; Afri-
need to domesticate the African Charter can Centre for the Treatment and Reha-
and also to conduct more training for bilitation of Torture Victims (ACTV);
judicial officers on the appropriate usage and Human Rights Centre-Uganda.39
of international legal texts in the domes-
tic context. These organisations have contribut-
ed to the promotion of human rights in
6 Awareness and use by civil Uganda by sending shadow reports to
society the African Commission to complement
state reports, by providing information
on the human rights situation which the
In advancing human rights in Uganda,
government might have left out. In its
civil society organisations (CSO's) use
various strategies including networking,
advocacy, research, lobbying, education 39 African Commission on Human and
Preoples’ Rights ‘Uganda’ http://www. ach
pr.org/states/uganda/ (accessed
38 Kabumba (n 25 above) 83-107. 28 October 2015).
272 Uganda

2006 concluding observations, the Afri- 7 Higher education and academic

can Commission noted that it had writing
received shadow reports from: the
Foundation for Human Rights Initiative Regarding education, the Constitution
(FHRI); the Uganda Association for sets out that all persons have a right to
Women Lawyers (FIDA-U); and a joint education and universities have thus
report from the International Gay and gone ahead to incorporate human rights
Lesbian Human Rights Commission as one of the fields of study both in the
(IGLHRC) and Sexual Minorities legal field and in the social sciences. For
Uganda (SMUG).40 Civil society organ- instance, the Makerere University has a
isations, as well as human rights faculty of law which runs a programme
lawyers, were also very instrumental in under the Human Rights and Peace
ensuring that the Constitutional Court Centre (HURIPEC) which aims to teach
annuls the discriminative anti-homosex- human rights to interdisciplinary
uality bill in 2014.41 governmentstudents and also integrate
them into human rights activities in
However, the submission of shadow various human rights organisations
reports is not consistent as these organi- around the country.42
sations did not submit reports in the
subsequent reporting periods on the Uganda has nine universities which
implementation by the Ugandan are accredited to teach law including
government of the recommendations Makerere University and Uganda Chris-
pointed out by the African Commission. tian University.43 All these universities
As the NRM government has have a human rights course unit both
entrenched its power over the subse- within and outside their law faculties,
quent years, it has increasingly disre- which teaches about the African human
garded human rights. Various strategies rights system. For instance, under the
have been used to narrow the operating college of humanities and social scienc-
environment for such organisations es of Makerere University, there is a
including the drafting of laws meant to bachelor’s degree in ethics and human
narrow their operation. At the time of rights and some of the course units are:
writing this report, an NGO bill is being African Traditional Systems and
discussed by parliament which organisa- Human Rights, and Human Rights in
tions have criticised for giving too much Africa.44 However, most of Ugandan
power to the government under the curricula on human rights place empha-
guise of supervising the work of NGOs. sis on the United Nations human rights
Other tactics used by the government system rather than the African human
include threats, closing workshops and rights system.
reprimanding NGOs claiming they are
intruding into political matters.
42 State Report to the African Commission (n
16 above) 25.
43 Uganda National Council for Higher
40 African Commission ‘Concluding obser- Education http://www.unche.or.ug/latest-
vations and Recommendations on the news/list-of- universities-accredited-to-teach-
Second Periodic Report of the Republic of law-in-uganda.html (accessed 8 September
Uganda’ 40th ordinary session, 15-29 2015).
November 2006, in Banjul, The Gambia. 44 Makerere University ‘Courses – Bachelor of
41 ‘Uganda Court annuls anti-homosexuality ethics and human rights’ http://courses.
law’ BBC News 1 August 2014 http://www. mak.ac.ug/programmes/bachelor-ethics-
bbc.com/news/world-africa-28605400 and-human-rights (accessed 8 September
(accessed 8 September 2015). 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 273

8 National human rights treaties.46 It also undertakes human

institutions rights education and training to various
groups such as the police, health work-
In compliance with the African Charter, ers, administrators and teachers under
the Constitution established several its mandate with the aim of ensuring
institutions mandated to uphold human that they adhere to human rights princi-
rights such as the Uganda Human ples in their work. It has also been
Rights Commission (UHRC). The instrumental in drafting documents
UHRC is very vibrant and functional. aimed at ensuring the respect of human
The Constitution gives the UHRC an rights. These include the Guidelines for
expansive mandate which goes beyond Managing Public Demonstrations,
merely monitoring and reporting on amongst others.
human rights violations, to providing
legal remedies to those whose rights 9 State reporting
have been violated. Where a rights hold-
er is not satisfied with the decisions of Despite ratification of the African Char-
the UHRC, they can appeal to the High ter in 1986, it was not until 1 April 2000
Court of Uganda.45 that Uganda submitted its first State
Report to the African Commission. The
The UHRC acts as a court with a Report covered the period from 1986-
functional ‘human rights tribunal’ which 2000. Its second report was submitted
receives, investigates and concludes on 1 May 2006 covering the period of
cases of those whose rights have been 2000-2006. Uganda attributed the delay
violated. It then provides monetary in submitting reports timeously to lack
compensation and encourages media- of qualified personnel to write the state
tion between the parties towards an report as those who had been trained
agreeable resolution. The UHRC has had either left the country or changed
been instrumental in working with the jobs.47
African Commission for the promotion
and protection of human rights in Ugan- The subsequent reports were,
da. To this end, it has affiliate status however, submitted on time as the next
with the African Commission. Also, the periodic report was submitted on 1
fact that the current chairperson of the November 2008, and the next on 26
UHRC, Med SK Kaggwa, is also a March 2011. The most recent periodic
member of the African Commission has report was submitted on 25 September
greatly enhanced its work and has 2013.48 The Concluding Observations
allowed for fruitful collaboration to the 1st state report were given at the
between the two bodies. African Commission’s 27th ordinary
session which took place from 27 April
The UHRC often aids the govern-
ment in coming up with a comprehen-
46 Report on the Joint Promotional Visit (n 4
sive periodic state report to the African above) 30.
Commission by providing the appropri- 47 EVO Dankwa ‘Report on promotional visits
to Uganda and Kenya’ 12-21 July 1998
ate information and calling for the http://www.achpr.org/states/uganda/miss
domestication of some international ions/promo-1998/ (accessed 8 September
2015).
48 ‘State reports and concluding observations’
http://www.achpr.org/states/reports-and-co
45 Report on the Joint Promotional Visit (n 4 ncluding-observations/ (accessed
above) 13-29. 26 August 2015).
274 Uganda

to 11 May 2000. The Concluding Obser- Since Uganda submitted its first
vations for the 2nd state report were periodic report, a series of issues have
given during the 40th ordinary session been brought up throughout the subse-
from the 15-29 November 2006. The quent reports to be addressed by the
observations for the 3rd state report Ugandan government. These include:
were given during the 45th ordinary police brutality especially during assem-
session which took place from the 13-27 blies and protests, the poor state of
May 2009. The Commission gave its Ugandan prisons and the restrictive
observations for the 4th state report NGO operation environment with a bill
during the 49th ordinary session from that has been looming over them for
28 April-12 May 2011. The Commission years. Some of these observations have
is yet to respond to Uganda’s 5th state been responded to by putting in place
report which was submitted in 2013.49 laws, programmes and policies to
respond to the issues.
State reports are prepared under the
Ministry of Foreign Affairs which also However, certain laws that have
represents the country during the Afri- been drafted by the state further impinge
can Commission’s sessions.50 The dele- on human rights such as the HIV and
gation that goes to the African AIDS Prevention and Control Act
Commission sessions is often a mixture which the President signed into law on
of the various ministries such as repre- 31 July 2014. This law had been criti-
sentatives from the Ministry of Justice cised by human rights activists as being
and Constitutional Affairs and those discriminatory since it criminalises the
from the Ministry of Gender. Gender transmission of HIV and calls for
representation is also a factor as the mandatory testing. In effect, the Act
delegation often has female representa- criminalises HIV thus it may deter
tion. For instance, when Uganda people from voluntarily testing for HIV
presented its 2006 state report to the due to fear of being held criminally
African Commission, the delegation liable.54 Another worrying piece of
comprised of two females and two legislation is the Public Order Manage-
males.51 The 2008 state report delega- ment Act of 2013. Domestic and inter-
tion had 4 males and 2 females52 and national organisations have criticised
the 2011 state report delegation was the bill for severely restricting freedom
represented by one male and one of expression as well as peaceful assem-
female.53 bly. If assented to by the President, it
has the potential of curtailing human
rights.55
49 State reports and concluding observations (n
48 above).
50 Report on the Joint Promotional Visit (n 4 Additionally, one of the issues that
above) 13. was raised in response to the earlier
51 Concluding Observations (n 40 above) 1-2.
52 African Commission ‘Concluding
observations of the African Commission on
the third periodic report of the Republic of 54 ‘HIV Prevention Act angers Ugandan AIDS
Uganda’ presented at the 45th ordinary activists’ Voice of America 27 August 2014
session held in Banjul, The Gambia, 13-27 http://www.voanews.com/content/hiv-pre
May 2009 1. vention-act-aids-activists/2429821.html
53 African Commission ‘Concluding obser- (accessed 8 September 2015).
vations of the African Commission on the 55 ‘Uganda: Public Order Management Bill’
fourth periodic report of the Republic of Article 19 13 August 2013 https://www.
Uganda’ presented at the 49th ordinary article19.org/resources.php/resource/37201
session, Banjul, The Gambia, 28 April-12 /en/uganda:-public-order-management-bill
May 2011 1. (accessed 8 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 275

state reports was the duplication of gain international support in order to

reports. The African Commission asked work amicably with other countries.
Uganda to refrain from submitting Therefore, even if on paper Uganda has
reports on the implementation of the seemingly undertaken steps that are
African Charter which were exactly human rights compliant, one can only
similar to those submitted to the UN conclude that at best, the recommenda-
Human Rights Committee and other tions from the African Commission
international human rights bodies.56 contributed to a certain law or policy
The Commission further pointed out reform.
that such a reporting practice demon-
strates a lack of commitment on the part 10 Communications
of the Ugandan government to conduct
research and present issues that are So far, three cases have been brought to
peculiar to the African Charter and to the African Commission involving
the African situation in general. The Uganda. The first case was decided by
government improved the subsequent the African Commission in 1995 and
reports by adhering to the guidelines set concerned a citizen from the Democrat-
out by the African Commission and ic Republic of Congo (which was then
thus the reports improved significantly Zaire) called Nziwa Buyingo. He
over time to address the issues pointed alleged that he had been subjected to
out by the African Commission. arrest, arbitrary detention and torture by
Ugandan soldiers in Kisoro, Uganda in
However, it should be noted that it
December 1987. However the Commis-
is an almost impossible task to ascertain
sion failed to get any response from him
whether laws, policies and programmes
on whether or not he had received
that are implemented in a certain period
access to the available remedies in
are a direct result of one piece of legisla-
Uganda. Thus, the African Commission
tion, in this case the African Charter or
declared the communication inadmissi-
the Maputo Protocol. This is due to the
ble.57 The second communication was
fact that Uganda reports to several
filed in 1996 by the Association pour la
human rights bodies both at the regional
sauvegarde de la paix au Burundi (ASP-
and international level, thus, the same
Burundi, Association for the Preserva-
recommendations may be pointed out
tion of Peace in Burundi) which alleged
by such other bodies. Also, a series of
that, Uganda, Kenya, Tanzania,
factors beyond the recommendations
Zambia and Zaire (now Democratic
may push government to pass certain
Republic of Congo) had violated a series
policies. Such factors may include: the
of African Charter rights by imposing an
need for political support of a regime, to
embargo on Burundi. These included:
push for a certain agenda which is in
the right to life and integrity, the right to
line with their political views and to
education, the right to economic social
and cultural development and the frus-
56 This observation was made by the African tration of attempts to strengthen peace,
Commission in its concluding observations
made in 2006 to the Uganda’s 2nd periodic solidarity and friendly relations. The
report submitted to the Commission in the African Commission found that the
same year. The Republic of Uganda ‘Report
to the African Commission on Human and
Peoples’ Rights presented at the 39th
ordinary session of the Commission on 57 8/88 Nziwa Buyingo/Uganda http://www.
Human and Peoples’ Rights’ Banjul, The achpr.org/communications/decision/8.88/
Gambia, 25 May 2006. (accessed 8 September 2015).
276 Uganda

states were not guilty of a violation of the African Charter provisions, UN

any of the Charter rights as the embargo Declaration on Principles of Interna-
had been put in place to pressure the tional Law Concerning Friendly Rela-
government of Burundi to put in place tions and Cooperation among States
democratic institutions, establish the and other applicable laws.59 At the time
rule of law and to respect human of handing down the decision, the Afri-
rights.58 can Commission noted that some posi-
tive developments had already occurred
Additionally, in early 1999, the in this matter, specifically the withdraw-
Democratic Republic of the Congo al of the armed forces of the respondent
(DRC) submitted a communication to states from that of the complainant
the African Commission against Burun- state.60
di, Rwanda and Uganda. DRC alleged
that the armed forces of these three 11 Special mechanisms and
countries had committed grave viola- promotional visits
tions of human rights and massacres
under the ‘fallacious’ pretext of safe-
The African Commission has undertak-
guarding their interests. Thus, these
en several promotional visits to Uganda
countries had acted in blatant disregard
under article 45 of the Charter. The first
of the fundamental principles that
visit was undertaken from 12 to 21 July
govern friendly relations between states,
1998 in order to inform the relevant
avoidance of use of force in internation-
stakeholders about the mandate of the
al relations, respect for the territorial
African Commission and also to
integrity and sovereignty of states and
encourage the country to submit a state
the non-interference in the internal
report as it had not submitted any
affairs of states. Therefore, the three
reports as at that time. This was so
states had violated numerous provisions
despite the fact that Uganda was
of the African Charter including the
amongst the first set of countries to have
right to life, the right to liberty, the right
a national – Grace Ibingira – serve as a
to equality, the right to health and the
commissioner of the African Commis-
right to education.
sion. Uganda expressed that the non-
In this instance, the African submission of its report was mostly due
Commission ruled in favour of the DRC to lack of qualified people to write a
by finding that the three countries were comprehensive and analytical report,
indeed in violation of numerous rights and that the personnel who had been
of the African Charter. The African trained to undertake the writing process
Commission asked the countries to with the Ministry of Foreign Affairs had
withdraw its troops from the DRC, either left the country or left the minis-
asked for adequate reparations to the try.61 The second visit was undertaken
victims of the numerous violations as a by the Special Rapporteur on Prisons
result of the actions of the armed forces and Conditions of Detention in Africa,
of the three countries and to abide by
59 227/99 Democratic Republic of Congo/Burundi,
Rwanda, Uganda http://caselaw.ihrda.org/
58 157/96 Association pour la sauvegarde de la paix doc/227.99/ (accessed 8 September 2015).
au Burundi/Kenya, Uganda, Rwanda, 60 227/99 Democratic Republic of Congo/Burundi,
Tanzania, Zaire (DRC), Zambia http://www. Rwanda, Uganda http://caselaw.ihrda.org/
achpr.org/communications/decision/157. doc/227.99/ (accessed 8 September 2015).
96/ (accessed 8 September 2015). 61 Dankwa (n 47 above).
 Impact of the African Charter and the Maputo Protocol in selected African states 277

Vera M Chirwa, from 11 to 22 March Commission had given over the years in
2001. This visit was aimed at document- response to Uganda’s periodic reports.
ing conditions of detention in Africa The visit was successful as it revealed a
and establishing dialogue with the lot of pertinent information on Uganda.
government on how to improve condi- One of the reasons for this was the fact
tions of detention and rehabilitation in that within the delegation, there was a
Uganda. Some of the recommendations Ugandan who is also a Commissioner.
by the Commissioner were: to reduce Honourable Commissioner Med SK
congestion in prisons by reforming the Kaggwa is the Special Rapporteur on
police and courts; improve general Prisons and Conditions of Detention in
hygiene and the health conditions of Africa. He is also the chairperson of the
prisoners; and to improve the drafted Uganda Human Rights Commission.
prison bill to reflect all the challenges of His vast human rights experience in
Uganda’s prison system.62 Uganda as well as contacts made over
the course of his human rights career
The African Commission undertook enabled a connection between the dele-
a third promotional visit upon the invi- gation and the right people and places.
tation of the Ugandan government from This greatly contributed to comprehen-
25 to 30 August 2013. This promotional sive findings on the human rights situa-
visit was very important and compre- tion in Uganda.
hensive as it enabled the African
Commission to interact with various In addition to the official visits
stake holders which allowed for an mentioned above, a research and infor-
informed view of the human rights situ- mation tour was undertaken by a
ation in Uganda. Amongst the groups member of the African Commission’s
that the Commissioners visited were: working group on indigenous popula-
the Ministry of Foreign; the Prime tions/communities in Africa. This took
Minister; the Ministry of Justice and place between 14 to 17 July and then
Constitutional Affairs; the Electoral from 24 to 29 July 2006. The visit was
Commission; a few prisons; the Speaker aimed at dissemination of information
of Parliament; and a few human rights to the Ugandan government about the
organisations. As a result of these inter- position of the African Commission on
actions, the African Commission was the rights of indigenous peoples in the
able to come up with a comprehensive country. It was also aimed at identifying
report on the human rights situation in challenges faced by the indigenous
Uganda and to devise practical recom- peoples such as the Batwa Pygmies of
mendations specific to Uganda. Western Uganda and formulating
diverse strategies for addressing the
Also as a result of this visit, the human rights situations of such indige-
report was more detailed than any of the nous communities.63 These objectives
concluding observations that the African were met through this visit and several
recommendations were devised, which
included: the need to recognise the
62 African Commission on Human and Batwa and the pastoralists as indigenous
Peoples’ Rights ‘Report on the mission of the
Special Rapporteur on prisons and peoples in the sense in which the word
conditions of detention in Africa to Uganda’
presented at the 33rd ordinary session of the
African Commission, 15-29 May 2003, 63 Report of the African Commission’s working
Niamey, Niger DOC/OS(XXXIII)/ group on indigenous populations/
324CcIII. communities’ Research and Information
278 Uganda

is understood internationally; and the difficult to measure progress. Some of

need to adopt appropriate legislation in the general recommendations include
this respect. ensuring the establishment of adequate
legislation on freedom of expression to
12 Factors that may enhance or fulfil its obligations under the African
impede the impact of the Charter.64 Another was to ensure that
African Charter, the Maputo legal aid is available to every citizen.65
Protocol and the African Such recommendations may be too
broad, such that any step taken by the
Commission
government may be assumed sufficient.
Furthermore, such recommendations do
One of the good practices that the Afri- not set any benchmarks to measure
can Commission undertakes is working progress from one reporting period to
closely with the UHRC. This collabora- another. The giving of general recom-
tion should be carried forward and mendations also impedes the purpose of
enhanced principally because the the reporting process where unique chal-
UHRC is the primary human rights lenges facing Uganda are not discussed
body for monitoring the promotion and in detail but, rather, are at times general
protection of human rights in Uganda. and repetitive. This in turn may have
Thus, it has wide coverage throughout the effect that state reports are equally
all the regions in Uganda and receives general and repetitive. This calls for
funding from the government. In collab- specific recommendations whose
oration with the UHRC and suitably progress can be measured in the next
placed human rights organisations, the periodic report.
African Commission should also
conduct sensitisation programmes for There is also a clear need for the
the judges, lawyers and legislators on African Commission to build upon its
how to incorporate the African Charter, previous recommendations and keep
Maputo Protocol and the jurisprudence following up on the recommendations
of the African Commission in their that have not been implemented. For
work. instance, in its earlier recommendations,
the African Commission pointed out
Additionally, the African Commis- that NGOs had not submitted alterna-
sion should shift its focus from merely tive reports to make for a balanced situa-
recommending the enactment of more tional review on the human rights
legislation to laying emphasis on moni- situation in Uganda. Thus, the govern-
toring the implementation of such legis- ment was asked to encourage NGOs to
lation. Over the years, the submit alternative reports. However,
recommendations from the African this did not happen and was not report-
Commission have tended to become ed on in the subsequent report and,
more general and thus it is sometimes consequently, the African Commission
did not bring this recommendation up
again or ask for reasons why this was
the case. Also, the issue of extending the
reporting period was not dealt with by
visit to the Republic of Uganda, 14-17 July,
24-29 July 2006. The report was adopted at
the 43rd ordinary session of the African 64 Concluding observations (n 52 above) 7.
Commission, 7-22 May 2008. 65 Concluding observations (n 53 above) 6.
 Impact of the African Charter and the Maputo Protocol in selected African states 279

the African Commission. The Ugandan

government asked the African Commis-
sion to look into the issue of extending
the reporting period to three years in
order to give it enough time to imple-
ment the recommendations pointed out
by the African Commission and to give
comprehensive feedback to the African
Commission in the next reporting peri-
od.

Last but not least, the African

Commission should encourage civil
society organisations to continue
submitting shadow reports to the period-
ic state reports. This will help the Afri-
can Commission to gather enough
information on implementation of the
recommendations in its previous reports
thus gaining a better and more informed
understanding of adherence to human
rights in that reporting period.
 TABLE OF CONTENTS

Preface ................................................................................................................... vii

Introduction .................................................................................................. 1
Victor Oluwasina Ayeni

Burkina Faso ................................................................................................17

Kounkinè Augustin Somé

Cameroon .....................................................................................................31
Polycarp Ngufor Forkum

Côte d’Ivoire ................................................................................................45

Kounkinè Augustin Somé
Armand Tanoh

Ethiopia ........................................................................................................57
Meskerem Geset Techane

Gambia .........................................................................................................75
Satang Nabaneh

Ghana ...........................................................................................................95
Michael Gyan Nyarko

Kenya ..........................................................................................................115
Saoyo Tabitha Griffith
Paul Ogendi

Lesotho .......................................................................................................133
Sizakele Hlatshwayo

Malawi ........................................................................................................149
Sarai Chisala-Tempelhoff
Seun Solomon Bakare

v
 THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
ZIMBABWE

Tarisai Mutangi*

1 Introduction It then follows that whenever a national

law with a bearing on the Charter or
The adoption of a Constitution in 2013 Maputo Protocol is subject to interpreta-
(the 2013 Constitution) was a paradigm tion, the court concerned must prefer an
shift in the legal framework for the interpretation that is consistent with
protection of human rights in Zimba- these instruments.
bwe.1 Amongst other things, the 2013
Constitution provides for an entrenched The new equality provisions in the
and elaborate Bill of Rights literally 2013 Constitution have improved the
domesticating all civil and political protection of women’s rights. Gender
rights as they are enshrined in interna- equality has been earmarked as one of
tional human rights treaties. Further, the national objectives where the state is
the Constitution now provides for justi- obligated to ‘promote the full participa-
ciable economic, social and cultural tion of women in all spheres of Zimba-
rights such as rights to health, shelter, bwean society on the basis of equality
education and water, amongst others. It with men’.3 This national objective of
also provides for environmental rights. gender equality has introduced a fifty
per cent membership quota system in
The 2013 Constitution also provides constitutional commissions and other
for a new legislative interpretation bodies established by government or
regime in which the Bill of Rights must parliament. The economic empower-
be central whenever legislation is being ment of women is also stressed to enable
interpreted.2 Any court interpreting any them to access land on an equal basis
legislation must prefer an interpretation with men.4
that is consistent with international law.
As to justiciable rights, section 56 of
the 2013 Constitution is the equality
provision prohibiting discrimination and
promoting equality. ‘Women and men
* LLM HRDA (Pretoria), Managing Partner,
have the right to equal treatment,
Donsa-Nkomo and Mutangi Attorneys, including the right to equal opportuni-
Lecturer at Midlands State University and
consultant based in Zimbabwe.
1 See Constitution of Zimbabwe (Amend-
ment) Act 20 of 2013. 3 Sec 17(1)(a) of the 2013 Constitution.
2 Sec 45 of the 2013 Constitution. 4 Sec 17(1)(c) of the 2013 Constitution.

281
282 Zimbabwe

ties in political, economic, cultural and African Commission processes because

social spheres,’5 while gender and sex of the increasing cases of human rights
are listed as grounds upon which abuses and violation of several of its
discrimination is prohibited. Interesting- obligations under the African Charter.
ly, custom, which used to be an excep- Because of the high number of cases
tion to discrimination in the previous filed against Zimbabwe and the
constitutional order is now a listed increased resolutions and statements by
ground with section 26 on marriage the African Commission on Zimbabwe,
rights emphasising the need for ‘equality the last ten years have seen increased
of rights and obligations of spouses communication between the African
during marriage and at its dissolution’.6 Commission and the government of
Zimbabwe.
Chapter 12 of the 2013 Constitution
establishes independent institutions to The most recent regional instrument
support democracy including the ratified by Zimbabwe is the Maputo
Gender Commission and the Zimbabwe Protocol. This was ratified on 15 April
Human Rights Commission.7 The 2008. Using the Maputo Protocol as an
Gender Commission is therefore the example, the process of ratification start-
premier institution in terms of promo- ed off with the Ministry of Gender. The
tion and protection of women’s rights responsible Minister tabled the proposal
while the Zimbabwe Human Rights for ratification before Cabinet which
Commission deals with general human approved the ratification process. The
rights issues. Meanwhile gender contin- ratification was presented to parliament
ues to be mainstreamed into which did not debate it, but simply took
programmes and policies of government note of the proposed ratification. The
with the assistance of United Nations ratification instruments were prepared
agencies such as UN Women and line and lodged through the Ministry of
ministries. Foreign Affairs.9

2 Ratification of the African By and large, Zimbabwe pursues an

Charter and the Maputo ad hoc system in terms of ratification of
international instruments. It is not possi-
Protocol
ble to find any rules that justify ratifica-
tion of any instrument. It appears that
Zimbabwe became a state party to the
the decision to initiate the ratification
African Charter on 30 May 1986.
process is initiated by the line minister
Communication with the African
who desires that a certain instrument be
Commission is through the Ministry of
ratified by Zimbabwe for reasons that
Justice and Legal Affairs and more
are best known by that ministry. Once
specifically the office of the Permanent
the Cabinet approves the ratification,
Secretary.8 It was not until 2000 that
the above procedure is followed result-
Zimbabwe came into the lime light of
ing in final ratification of the instrument
concerned.
5 Sec 56(2) of the 2013 Constitution.
6 Sec 26(c) of the 2013 Constitution.
7 At the time of writing, the Gender
Commission Bill, a law to implement
constitutional provisions on the Gender
Commission, was before parliament and
could be enacted in the short term. 9 Interview with a government official at the
8 Interview with government official. Ministry of Foreign Affairs.
 Impact of the African Charter and the Maputo Protocol in selected African states 283

3 Domestication and by or under the authority of the Presi-

incorporation dent before 1 November 1993 and
which, immediately before that date, did
As regards hierarchy of sources of law not require approval or ratification by
in Zimbabwe, the 2013 Constitution Parliament, remained part of the law of
provides in section 3 that: ‘This Consti- Zimbabwe after the 1993 Amendment’.
tution is the supreme law of Zimbabwe Zimbabwe ratified the African Charter
and if any other law is inconsistent with in 1986, thus making it part of the law
this Constitution that other law shall, to of Zimbabwe without need for any
the extent of the inconsistency, be void’. further legislative act. This technically
This means that any law, despite its seems to be the position in Zimbabwe.
nature or origin, should conform to the Nevertheless, the Maputo Protocol,
provisions of the Constitution. having been ratified in 2008, does not
form part of domestic law until such
Zimbabwe is a typical dualist state. time as it has been domesticated by
In terms of section 327(2) of the 2013 virtue of a legislative act, in terms of the
Constitution, all international treaties, current provisions of section 327 of the
agreements and conventions ratified by 2013 Constitution.
Zimbabwe which bind Zimbabwe and
other countries such as the African The 2013 Constitution provides for
Charter and Maputo Protocol, ‘shall not a full catalogue of civil and political
form part of the law of Zimbabwe unless rights on one hand and justiciable
it has been incorporated into the law by economic, social and cultural rights on
or under an Act of Parliament’. This the other hand. Save for provisions on
means that domestication is a prerequi- equality between men and women in
site for international instruments to relation to opportunities and matrimoni-
form part of the domestic law. al issues, women’s rights are not at all
distinctly provided for. Women-specific
However, section 327 of the 2013 rights such as those against harmful
Constitution has a history of being cultural practices are not specifically
changed from monist to dualist, back to provided for in the 2013 Constitution.
monist and then finally dualist as it In that vein, ratification of the Maputo
stands today by virtue of constitutional Protocol has not resulted in any legal
amendment. In the case decided by the reform to bring national law in conform-
Supreme Court of Zimbabwe sitting as a ity with international standards.
Constitutional Court in Kachingwe and
Another v Minister of Home Affairs and While the Charter is part of domes-
Others,10 it was held that ‘the Constitu- tic law, there have not been any efforts
tion of Zimbabwe Amendment (12) Act, to achieve full incorporation of the
1993 (4 of 1993)’ … amended the then Maputo Protocol into national legisla-
dualist section 111B … ‘so that any tion. This is only possible with the
convention, treaty or agreement which domestication process as far as the
was acceded to, concluded or executed Protocol is concerned. Other interna-
tional instruments such as the Geneva
10 SC145/04 (18 July 2005) http://www. Conventions have been fully domesti-
chr.up.ac.za/index.php/browse-by-subject/ cated by parliament resulting in the
514-zimbabwe-kachingwe-and-others-v-the-
minister-of-home-affairs-and-others-2005-ah Geneva Conventions Act [Chapter
rlr-228-zwsc-2005.html (accessed 10 August 11:06] and the Child Abduction Act
2015).
284 Zimbabwe

[Chapter 5:05] which give effect to some the African Commission. Two of these
aspects of the Convention on the Civil are key. These are the Public Order and
Aspects of International Child Abduc- Security Act of 2002 (POSA) and the
tion, signed at the Hague on the Access to Information and Protection of
25 October 1980. Privacy Act of 2002 (AIPPA). POSA
seriously curtailed the exercise of free-
4 Legislative and policy reform dom of assembly and the African
Commission in its 2002 Fact Finding
There are no records of whether a Mission Report, recommended its
compatibility study was done before the repeal. AIPPA on the other hand limit-
1986 ratification of the African Charter ed freedom of the press and freedom of
by Zimbabwe. Similarly, this research expression. Again the African Commis-
was unable to find a record to show that sion recommended the repeal of this
a compatibility study was carried out legislation. Since becoming party to the
before ratification of the Maputo Proto- African Charter, Zimbabwe has there-
col in 2008. Since ratification of the fore had a mix of progressive and retro-
African Charter in 1986, several laws gressive legislative reform.
have been passed in Zimbabwe, some
Zimbabwe adopted its inaugural
giving effect to the African Charter and
National Gender Policy in 2004, which
some derogating from the rights that are
Policy has since been replaced by the
provided for in the African Charter.
National Gender Policy 2013-2017. It is
Amendment 17 to the Constitution
encouraging to note that the current
which was passed in 2005 expanded the
Gender Policy makes reference to the
grounds on which discrimination is
Maputo Protocol in so far as it stands as
prohibited to include disability, sex,
a point of reference in terms of what the
gender and marital status. The same
Policy seeks to achieve. One could say
Amendment also recognises and
the Policy seeks to give effect to the obli-
protects women’s rights to equal access
gations contained in the Maputo Proto-
to land. It also legislated for affirmative
col amongst other instruments such as
action for previously disadvantaged
CEDAW and the SADC Gender Proto-
groups. Amendment 19 of the Constitu-
col of 2008. However, the Maputo
tion passed in 2008 created the Zimba-
Protocol is so incorrectly cited to the
bwe Human Rights Commission and
extent that one wonders whether the
Zimbabwe Electoral Commission.
drafters of the Policy had a copy of the
Enabling legislation such as the Domes-
Maputo Protocol during drafting. It is
tic Violence Act of 2006 was passed to
cited as the ‘protocol to the 2003 Afri-
further afford protection of rights of
can Charter on Human and People’s
women. These and other progressive
Rights on the Rights of Women’.
pieces of legislation do not however
make explicit reference to the African
The Gender Policy goes on to shed
Charter.
light on the extent and nature of legisla-
tive reform that followed its adoption in
However, retrogressive legislation
2004. It claims that 17 pieces of legisla-
was passed by Zimbabwe after its acces-
tion to advance gender equality and
sion to the African Charter leading to
equity objectives have since been adopt-
major human rights abuses and viola-
ed or amended. These include the
tions which have been the subject of liti-
Matrimonial Causes Act (1987); Admin-
gation in national courts as well as with
 Impact of the African Charter and the Maputo Protocol in selected African states 285

istration of Estates Act (1997); Mainte- Broadcasting Authority of Zimbabwe, Minis-

nance Act (1999); Sexual Offences Act ter of State for Information and Publicity
(2001); Education Act (2004); Labour and the Attorney General of Zimbabwe.12 In
Act, [Chapter 28:01]; Criminal Law that case, Capital Radio, which had
(Codification & reform) Act (2006); and been granted a license to broadcast in
Domestic Violence Act (2007), amongst Zimbabwe, brought in broadcasting
others. The 2004 Public Sector Gender equipment, but the Minister of Informa-
Policy put in place Gender Focal Points tion and Publicity sought to stop the
in all government ministries and state- applicant from broadcasting on grounds
controlled corporations and in 2012, a that this violated the Presidential
process was initiated to set up a Gender Powers (Temporary Measures) Act. The
Commission, which was established Presidential Powers Act was later super-
under the 2013 Constitution. The imple- seded by the Broadcasting Act. Capital
menting legislation is before parliament Radio’s constitutional challenge was
in the form of the Gender Commission that a number of provisions of the
Bill. Broadcasting Act infringe section 20(1)
of the 1980 Constitution, which guaran-
6 Court judgments tees freedom of expression.

One of the issues that the Zimbabwe

International human rights instruments
Supreme Court (ZSC) had to grapple
may be directly applied at the domestic
with was whether section 20 includes
level after domestication through parlia-
freedom of the media. The court relied
mentary approval. This is provided for
on the UDHR, ICCPR and the African
in section 327(1) of the 2013 Constitu-
Charter. Chidyausiku CJ made refer-
tion. This has been the position since
ence to article 9 of the African Charter
1993 where the old section 111B was
and the twin articles 19 of the UDHR
held not to have the effect of requiring
and ICCPR. He further quoted the Afri-
approval by Parliament of any conven-
can Commission’s interpretation of arti-
tion, treaty or agreement which was
cle 9 and concluded by saying that
acceded to, concluded or executed by or
‘Zimbabwe … is a party to the African
under the authority of the President
Charter and consequently article 9
before 1 November 1993 and which
should provide guidance in interpreting
immediately before that date, did not
section 20 of the constitution’. The
require approval or ratification by
Court then held that freedom of expres-
Parliament.11 Despite this provision,
sion has to be interpreted to include
application of the African Charter by
freedom of the press and is also enjoyed
the Zimbabwe Supreme Court (ZSC)
by corporate persons. About six sections
has been disappointing. This assessment
of the Broadcasting Act were found to
covers the period 2002 to 2011 and out
fail constitutional muster, and were
of the 642 surveyed cases, the ZSC
accordingly struck down.
made reference to the African Charter in
just three cases.

The first case in which the African

Charter was referred to is Capital Radio v

11 See sec 111B of the Constitution of

Zimbabwe. 12 SC128/02.
286 Zimbabwe

The ZSC was not so progressive in tuted inhuman and degrading treatment
Association of Independent Journalists and in contravention of section 15 of the
Others v Minister of Information and Public- Constitution. The Court held:
ity and Others.13 In that case, the appli-
cants challenged sections 79, 80, 83 and I have no doubt, in my mind, that the
holding cell that the court inspected at
85 of the Access to Information and
Highlands Police station, the same hold-
Protection of Privacy Act. Section 79 ing cell in which Kachingwe was
provides for the accreditation of journal- detained overnight, does not comply
ists, section 83 outlaws the practice of with elementary norms of human
journalism without accreditation and decency, let alone, comply with interna-
tionally accepted minimum standards.
section 85 provides for the development
of a code of conduct by the Media and The Court further held that Kachingwe
Information Commission and confers and Chibebe were detained in condi-
on it disciplinary powers and provides tions that constituted inhuman and
guidelines on sanctions for misconduct. degrading treatment in violation of
The applicants sought to have these four section 15(1) of the Constitution. The
sections declared unconstitutional. Court observed that the African Charter
prohibits torture and inhuman and
The Court referred to jurisprudence
degrading punishment in article 5 and
from the Inter-American Commission
concurred that the African Charter and
and Court on Human Rights as well as
the ICCPR were signed before 1993 and
the European Court on Human Rights.
became part of Zimbabwe law by virtue
There was no reference to the African
of section 111B of the Constitution. The
Charter or the African Commission’s
Court further made reference to the
Declaration of Principles on Freedom of
jurisprudence of the African Commis-
Expression in Africa. Principle IX of the
sion in which there was a finding of
Declaration provides as follows:
violation of article 5 of the African
Any regulatory body established to hear Charter.15 Surprisingly, the ZSC did not
complaints about media content, includ- find a violation of section 15(1) of the
ing media councils, shall be protected Constitution in another case of inhuman
against political, economic or any other and degrading treatment and punish-
undue interference. Its powers shall be
ment in prisons in the case of Woods v
administrative in nature and it shall not
seek to usurp the role of the courts. Commissioner of Prisons and Another16 and
Effective self-regulation is the best there was no reference to the African
system for promoting high standards in Charter.
the media.
Concluding on this point, it is hoped
In the case of Nancy Kachingwe and that in the future, superior courts in
Another v Minister of Home Affairs and Zimbabwe will apply the African Char-
Another,14 the ZSC made extensive ter and the Maputo Protocol to protect
reference to the African Charter, the rights more robustly and achieve justice
ICCPR and the European Convention for all. The current jurisprudence has
on Human Rights. In that case, the
applicants challenged the conditions of
police cells and alleged that they consti- 15 Communication 225/95 Huri-laws v Nigeria;
Communication 222/99 Civil Liberties
Organisation v Nigeria 151/96 and
Communication 232/99 John D Ouko v
13 SC136/02. Kenya.
14 SC145/04. 16 SC137/02.
 Impact of the African Charter and the Maputo Protocol in selected African states 287

shown glaring paucity in the application have been decided on the merits and
of these important regional human often against Zimbabwe.18 This goes a
rights instruments. However, with the long way to showing that the African
advent of section 46 of the 2013 Consti- Charter and Maputo Protocol are right
tution, the interpretation clause which at the core of these internationally
enjoins courts to prefer interpretations focused programmes and projects.
consistent with international law, it is
anticipated that more reliance will be Both organisations have submitted
placed by courts on authoritative inter- shadow reports most notably in 2006
pretation of international human rights when Zimbabwe submitted her inaugu-
instruments. Further, section 326 of the ral and combined report to the African
Constitution now requires courts to Commission. The ZLHR worked tire-
prefer interpretations that are consistent lessly in terms of preparing a shadow
with customary international law, to the report that was submitted parallel to
extent that it is not contrary to the 2013 Zimbabwe’s inaugural Universal Peer
Constitution. Review (UPR) in 2011. Although this is
before a United Nations mechanism, it
7 Awareness and use by civil indicates the extent to which some
17
society17 NGOs are reaching out in terms of
utilising regional and international
standards and human rights protection
The African Charter and Maputo Proto-
mechanisms.
col are very well known in the NGO
sector especially with respect to NGOs Other organisations such as the
that have international human rights Zimbabwe Women Lawyers Associa-
programmes. For instance, Zimbabwe tion (ZWLA) are increasingly getting
Lawyers for Human Rights (ZLHR) has involved in utilising the African Charter
an international litigation project and the Maputo Protocol in their
through which they engage international projects and programmes especially
human rights institutions and proce- after having been accorded observer
dures. They have observer status before status by the African Commission.19
the African Commission hence orient Although they have been engaging and
some of their projects around this area. utilising mainly national mechanisms
and laws, observer status is clear testi-
On its part, the Zimbabwe Human
mony of their growing involvement in
Rights NGO Forum focuses on ending
human rights dialogue at the interna-
impunity in the context of torture. After
failing to secure effective remedies at
national levels, the Forum has on sever- 18 Zimbabwe Human Rights NGO Forum v
al occasions approached regional mech- Zimbabwe (2006) AHRLR 128 (ACHPR
2006).
anisms such as the African Commission 19 Catholic Commission for Justice and Peace
for relief. It has accordingly filed a in Zimbabwe, African Bar Association,
Southern African Research and Documenta-
number of communications before the tion Centre (SARDC), Zimbabwean Human
African Commission, many of which Rights Association (ZIMRIGHTS), Legal
Resources Foundation (LRF), Human
Rights Trust of Southern Africa, Zimbabwe
Human Rights NGO Forum, Media Moni-
17 Information gathered from interviews held toring Project, Zimbabwe Lawyers for
with personnel from the NGO sector Human Rights (ZLHR), Zimbabwe Associa-
especially Zimbabwe Lawyers for Human tion of Doctors for Human Rights (ZADHR)
Rights and the Zimbabwe Human Rights and Zimbabwe Women Lawyers Associa-
NGO Forum. tion.
288 Zimbabwe

tional level. One has to bear in mind tion to issues of international concern.
that the African Commission is the Instruments such as the UDHR, the
oversight institution monitoring imple- African Charter and the ICCPR are
mentation of the Maputo Protocol commonly cited and utilised as resource
hence such organisations are drawing material in such workshops. For exam-
near this Commission to influence its ple, between 24 and 27 June 2015, the
role in monitoring national implementa- LSZ convened a workshop for lawyers
tion. on economic, social and cultural rights
where such rights in the African Charter
8 Awareness and use by practising were analysed from the perspective of
and other lawyers20 African women, amongst other objec-
tives. The approach ensured that dele-
The Law Society of Zimbabwe (LSZ), gates made use of the Maputo Protocol
to which every practising lawyer manda- to the extent that it represents the
torily registers, oversees the legal profes- context of an African woman in relation
sion in Zimbabwe especially through to some aspects of socio-economic and
enforcing ethical conduct as well as cultural rights.
negotiating for legal fee tariffs for vari-
As regards reliance by lawyers on
ous legal services. However, since the
the African Charter and Maputo Proto-
early 2000s with the deteriorating
col in litigation, it has come up very
human rights situation and disregard for
clearly that only very few lawyers are
rule of law on issues such as the land
aware of the existence of the African
reform programme, the LSZ has
human rights system or any other
increasingly been involved in advocacy
human rights system in the world. The
and litigation with an international
root of this problem goes back to the
flavour around these issues. This means
fact that human rights as a module have
that advocacy programmes initiated by
only been recently introduced in univer-
the LSZ together with continuing educa-
sities’ curricula in Zimbabwe. Even so,
tion initiatives for LSZ members, are
the module remains elective and hence
now being punctuated with reference to
tends to slip through the fingers of many
regional and international human rights
lawyers. The interviews conducted in
instruments and institutions.
this area revealed that many lawyers do
Illustratively, the LSZ now teams not take human rights as a career possi-
up with prominent NGOs in the human bility on its own hence they leave it to
rights sector in providing national work- human rights NGOs and activist
shops on human rights litigation at the lawyers.
national level targeting upcoming
lawyers to consider human rights litiga- 9 Higher education and academic
tion as a career. A close look at the writing
content of these workshops has shown
that there is a deliberate intention to There are only three law schools in
introduce young lawyers to internation- Zimbabwe. The most established one is
al human rights law, processes and at the Faculty of Law, University of
procedures in a bid to draw their atten- Zimbabwe. The other ones, and relative-
ly new, are at Midlands State Universi-
20 Based on information provided from the
ty, Gweru, Zimbabwe and the Great
LSZ advocacy and policy department.
 Impact of the African Charter and the Maputo Protocol in selected African states 289

Zimbabwe University in Masvingo. The and the Maputo Protocol among other
law schools offer a module in human instruments.
rights as an elective at the University of
Zimbabwe and compulsory at Midlands 10 National human rights
State University. It remains to be seen at institutions21
21
Great Zimbabwe University, which only
enrolled its inaugural group of law The Zimbabwe Human Rights Commis-
students in 2015. The content of the sion (ZHRC), created in terms of Chap-
module includes the national bill of ter 12 of the 2013 Constitution, was first
rights, the African human rights system established in 2009 following the adop-
and the United Nations system for the tion of the Constitution of Zimbabwe
promotion and protection of human Amendment 19. In 2012, the ZHRC
rights. As a result, there is deliberate was operationalised when Parliament
inclusion of the African Charter and the adopted the Zimbabwe Human Rights
Maputo Protocol as part of the sources Commission Act. Notwithstanding
of the catalogue of rights protected financial challenges facing the institu-
therein. tion, it now has a full complement of
secretariat to implement its
In September 2015, the Midlands
programmes. In 2015, the ZHRC
State University launched a master of
conducted the very first baseline survey
laws programme entitled LLM in
of the human rights situation in Zimba-
Constitutional Law and Human Rights.
bwe in order to inform its Strategic Plan
One of the core-modules of the degree
going forward.
programme is Advanced Human Rights.
The curriculum discusses the Maputo Bearing in mind that the ZHRC
Protocol extensively under the legal must still fully open its doors to the
framework of the African human rights public, in terms of involvement in a
system. Further, one of the electives of variety of complaints, it is premature to
the degree programme is a module on discuss the content of its programmes in
Women’s Law in which the Maputo as much as they relate or make reference
Protocol is exclusively relied upon in the to the African Charter or the Maputo
African context. Protocol. However, one can conclude
that the ZHRC will most likely engage
There is no evidence of formal
these international human rights instru-
academic publications in Zimbabwe,
ments in view of the provisional refer-
except for Zimbabwean authors who
ence in its 2015 Strategic Plan to
tend to publish in international journals
‘international human rights’ ratified and
for lack of publishing opportunities in
domesticated in Zimbabwe. Now,
the country. The Midlands State
taking into account that the African
University has recently launched an
Charter is already part and parcel of the
online law review known as Midlands
Zimbabwean legal system and the
State University Law Review, which
ZHRC’s proposed mandate of assisting
focusses on legal issues of relevance to
Zimbabwe. This is a platform on which
21 This part of the report was prepared from the
many local lawyers and authors have information gathered from interviews with
started to share ideas. Invariably, such UNDP Zimbabwe officials, which
organisation is involved in capacity building
discussions include the African Charter initiatives with the Human Rights
Commission in order to adequately prepare
as it looks ahead to commence its mandate.
290 Zimbabwe

in the preparation of state reports, one servants represent these government

can only hope that both instruments will ministries and departments in the Inter-
play a central role in the ZHRC's ministerial Committee.
programmes.
Using the last state party report that
11 State reporting Zimbabwe submitted to the African
Commission as an example, the process
of preparing state reports is initiated by
In 1994, the government of Zimbabwe
the IMC Secretariat which is hosted by
established the Inter-ministerial
the Ministry of Justice. The secretariat
Committee on Human Rights and
produces a first draft which is then
Humanitarian Law (IMC) with the
shared with the entire IMC. The IMC is
mandate to carry out various human
organised through sub-committees with
rights functions on behalf of the govern-
various expertise and knowledge on
ment. Amongst its responsibilities are
different issues. It is the responsibility of
the writing of state party reports to
these sub-committees to give further
different treaty monitoring bodies,
details, analysis and information includ-
dissemination of concluding observa-
ing statistics from different government
tions and following up on recommenda-
ministries and departments on each of
tions of treaty bodies as well as advising
the issues under the African Charter that
government on which human rights
the government will be reporting on.
instruments to accede to.22 The IMC is
Once a substantive first draft has been
comprised of 22 government ministries
developed, the report is shared with
and departments and is hosted by the
members of civil society and other
Department of Policy and Legal
government departments that are not
Research under the Ministry of Justice
involved in the preparation of the draft
and Legal Affairs which is its secretari-
as well as independent bodies and
at. Important and relevant departments
commissions. The sharing of the report
such as the army, police, security,
is the beginning of a consultative
gender, health, the ombudsman and
process where the Inter-ministerial
justice are part of the Committee. The
Committee will hold meetings with
setting up of the IMC was applauded by
different stakeholders to seek their input
various treaty monitoring bodies that
and in some cases written submissions
Zimbabwe reports to such as the
are made by stakeholders.
Committee on the Rights of the Child,
Committee on the Elimination of Racial
Based on the input from stakehold-
Discrimination and the Committee on
ers, further drafts of the report are
the Elimination of all Forms of Discrim-
prepared until a final draft is passed on
ination against Women.23 Senior civil
to Cabinet through the channels of the
Ministry of Justice for approval before
22 Zimbabwe reported on the setting up of this
Committee to the African Commission on submission to the African Commission.
Human and Peoples’ Rights in its Second The final report is shared with civil soci-
report submitted in 1997 http://www. achpr.
org/english/Archives/State%20reports/eng ety to enable them to prepare their shad-
/Zimbabwe/Zimbabwe_2_eng.pdf. ow reports.
(accessed 26 November 2015).
23 Concluding observations for each of these
treaty bodies applauding Zimbabwe on the The state through the relevant
creation of the Inter-ministerial Committee department in the Ministry of Justice
are available at http://www.ohchr.org/EN/
countries/AfricaRegion/Pages/ZWIndex and Legal Affairs disseminates the
.aspx. (accessed 26 November 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 291

concluding observations. The main on Preventing and Combating Corrup-

targets for dissemination are members of tion.
the IMC and relevant government
departments and ministries with a The African Commission recom-
responsibility to implement, take action mended the government of Zimbabwe
or make follow ups on the concluding to incorporate socio-economic rights in
observations and recommendations of its constitution. As discussed above, this
the African Commission. There seems feat has since been achieved following
to be no set out process by civil society adoption of the 2013 Constitution.
or government to disseminate the Through the Government of National
concluding observations to the general Unity, steps are now being taken to
public. amend the media laws in Zimbabwe
and in particular the Access to Informa-
The government of Zimbabwe has tion and Protection of Privacy Act as
received several Concluding Observa- well as security laws such as the Public
tions based on the three periodic reports Order and Security Act. This forms part
that it has submitted so far to the Afri- of an on-going legislative reform and
can Commission. This section looks at review process in the aftermath of the
some of the concluding observations 2013 Constitution.
issued by the African Commission in
respect of the second periodic report Overall, some of the concluding
which was presented and considered in observations of the African Commission
2007. Steps have been taken to give relate to legislative and institutional
effect to some of the observations reforms which still remain contentious
although no measures have been taken issues within the political context of the
in respect of the others. country. As a result of disagreement, the
never ending impasse and horse trading
In respect of the recommendation to between parties has stalled a number of
expedite the establishment of a human reforms that could see an improvement
rights commission, Zimbabwe passed a in human rights, rule of law and inde-
constitutional amendment legislation in pendence of the judiciary.
2009 creating the ZHRC. Commission-
ers for the human rights body were 12 Communications
appointed in May 2010. However, the
enabling legislation, the Zimbabwe From around 2000, there has been an
Human Rights Commission Bill, has upsurge of communications filed against
still not yet been passed into law due to Zimbabwe because of the deteriorating
disagreements on some of the provisions human rights situation in the country. A
between the two feuding political parties total of seven communications were
in the Unity Government. filed and decided upon between 2002
and 2011.24 In four of these communi-
Zimbabwe ratified the Maputo
cations, the African Commission found
Protocol in 2008, in response to the
that the government of Zimbabwe had
African Commission’s concluding
violated provisions of the African Char-
observations. However, the country has
ter and recommendations were made for
still not acceded to other key instru-
ments such as the Protocol establishing
the African Court and the Convention 24 Index to the African Human Rights Law
Reports.
292 Zimbabwe

redress including payment of compensa- recommendations has been implement-

tion and repeal or amendment of laws. ed.
The findings and recommendations of
the African Commission have not been In the case of Zimbabwe Lawyers for
widely publicised beyond a few reports Human Rights & Associated Newspapers of
in the media and dissemination within Zimbabwe v Republic of Zimbabwe,26 the
the circle of human rights organisations. African Commission found the state to
The cases and their findings are not be in violation of articles 9(2), 14 and 15
widely known within broader Zimba- of the African Charter and recommend-
bwean civil society. ed the government of Zimbabwe to
provide adequate compensation to the
The Ministry of Justice and the complainants for losses incurred due to
Attorney General’s department repre- the violations. In another case, Scanlen
sent the state in communications. When & Holderness,27 the African Commission
findings and recommendations are found Zimbabwe to be in violation of
made against the state, the Ministry of several articles of the African Charter
Justice submits these to the relevant and recommended that the government
government ministry or department take several actions amongst them being
affected by the decision. There is no (i) repealing sections 79 and 80 of the
wide publication or dissemination of the Access to Information and Protection of
findings and recommendations broadly Privacy Act (AIPPA); (ii) decriminalis-
within government beyond the ing offenses relating to accreditation and
concerned departments. the practice of journalism; (iii) adopting
legislation providing a framework for
While several recommendations self-regulation by journalists; and
have been made, few steps have been (iv) bringing AIPPA in line with article
taken to give effect to these. For exam- 9 of the African Charter and other prin-
ple in the case of Zimbabwe Lawyers for ciples and international human rights
Human Rights and the Institute for Human instruments.
Rights Development (on behalf of Andrew
Barclay Meldrum) v Republic of Zimba- In the fourth case of Zimbabwe
bwe,25 the African Commission in 2009 Human Rights NGO Forum v Zimbabwe,28
found Zimbabwe to be in violation of the African Commission held that
articles 1, 2, 3, 7(1)(a) and (b), 9, 12(4) Zimbabwe was in violation of articles 1
and 26 of the African Charter. The Afri- and 7(1) of the African Charter and
can Commission recommended recommended the establishment of a
amongst other things that the govern- commission of inquiry to investigate the
ment of Zimbabwe should rescind the causes of the violence which took place
deportation orders against Mr Andrew from February to June 2000. It further
Meldrum, and ensure that the Supreme recommended bringing those responsi-
Court finalises the determination of the ble for the violence to justice, and identi-
application by Mr Meldrum on the deni- fying victims of the violence in order to
al of accreditation as a journalist. provide them with just and adequate
However, none of these findings and compensation. The author is aware that
the government of Zimbabwe neither

25 Communication 294/2004. Article 19 and 26 Communication 284/2003.

Others v Zimbabwe (2010) AHRLR 126 27 Communication 297/2005.
(ACHPR 2010). 28 Communication 245/2002.
 Impact of the African Charter and the Maputo Protocol in selected African states 293

established a commission of inquiry into Since the Mission, Zimbabwe has

the violence nor took other steps to taken some measures to restore inde-
redress the human rights violations that pendence of the judiciary and respect for
took place during that time. In fact, an the rule of law, though these measures
amnesty law for perpetrators of the have not been adequate to instil public
political violence which was passed in and stakeholder confidence at national,
2000 remains in force in the form of regional and international levels. In
Clemency Order 1 of 2000. 2006, the Minister of Justice, Chief
Justice of Zimbabwe and other senior
13 Special mechanisms and judges of the Supreme and High Courts
promotional visits of African met with members of civil society
Commission including the LSZ for the first time since
2000 to discuss issues of the rule of law
and the impasse between the civil socie-
In 2002, the African Commission sent a
ty and the judiciary. Between 2006 and
special fact finding mission to Zimba-
2007, the Judiciary and the Ministry of
bwe to investigate the cases of human
Justice were part of a UNDP – Zimba-
rights abuses after the holding of Presi-
bwe ‒ lead process to assess the capacity
dential elections which were marred
needs of the Judiciary in Zimbabwe and
with high levels of political violence.29
an analysis of the issues of rule of law
The purpose of the mission was to gath-
and independence of the judiciary.
er information on the state of human
Government showed goodwill in agree-
rights in Zimbabwe. The Mission report
ing to table and discuss these issues with
noted the flurry of repressive legislation
stakeholders. Though this was a positive
such as the Public Order and Security
response to the recommendations of the
Act of 2002 (POSA) and the Access to
Mission and other regional and interna-
Information and the Protection of Priva-
tional bodies, other challenges in this
cy Act of 2002 (AIPPA), both of which
area have continued, such as the selec-
stifled democratic space and freedom of
tive application of law which saw many
expression in Zimbabwe. Based on these
opposition party leaders arrested,
and other observations on the rule of
detained and tried. Political gatherings
law and independence of the judiciary,
of the opposition party were not allowed
the Mission report made several recom-
under POSA and were often disrupted.
mendations to the government of
Zimbabwe.30 Through Constitutional Amend-
ment 19 of 2009, Zimbabwe ultimately
established two significant independent
29 The Fact Finding Mission was from 24-28 bodies which are the Zimbabwe Elector-
June 2002 after a decision was made by the
African Commission to undertake this al Commission and the ZHRC. This
mission at its 29th Ordinary Session which came almost three years after the recom-
was held in Tripoli in April of the same year.
30 Working on national dialogue and mendations of the fact finding mission
reconciliation across the political divides; and in the context of further highly
Creation of an environment conducive for
democracy and human rights through contested elections of 2008, the creation
repealing of the AIPPA and POSA and of the Unity government and increasing
abiding by court judgments; Restoring rule
of law and respect of independence of the
judiciary; Establishment of an independent
human rights body and an Independent 30 Zimbabwe was behind in terms of its
Electoral Commission in the place of the reporting obligations and was reminded to
Electoral Supervisory Commission, which submit outstanding reports under the African
was viewed as highly compromised; Charter.
294 Zimbabwe

national, regional and international Fact-finding Mission to Zimbabwe

pressure for legislative and institutional between 30 June and 4 July 2005. This
reform. Mission was not carried out after failure
of negotiations with the Zimbabwe
The increased cases of human rights government. The Ministry of Foreign
abuses and violations in Zimbabwe Affairs in Zimbabwe requested the
especially between the period 2000 and Special Rapporteur to leave the coun-
2008 attracted both international and try.32
regional attention. Civil society in
Zimbabwe worked hard to highlight In December 2005, the African
these abuses and bring attention as well Commission passed a resolution on the
as remedies. One of the forums and human rights situation in Zimbabwe
mechanisms that was widely utilised urging the government of Zimbabwe to
was the African Commission. As a implement the recommendations in the
result of this, the African Commission July 2005 Report of the UN Special
attempted during this period to engage Envoy on Human Settlement Issues, in
its special mechanisms on Zimbabwe, particular to ensure full and unimpeded
though with limited success. For exam- access for the provision of aid and
ple, after operation Murambatsvina (a protection to the victims of the forced
government clean-up exercise to rid the evictions and demolitions by impartial
major cities of illegal vendors, buildings national and international humanitarian
and squatters amongst others) in June agencies and human rights monitors,
2005, the African Commission’s Special and to ensure that those responsible for
Rapporteur on Refugees, Asylum Seek- the violations are brought to justice
ers and Internally Displaced Persons, without delay. The 2005 resolution also
Commissioner Nyanduga issued a state- called on the government of Zimbabwe
ment, expressing his concerns on the to respect human rights by repealing or
operation. He urgently appeal to the amending repressive legislation, such as
government of Zimbabwe the Access to Information and Protec-
tion of Privacy Act, the Broadcasting
To halt the eviction and demolition exer- Services Act and the Public Order and
cise, and assist the victims of the opera-
Security Act.
tion, by providing them with
humanitarian assistance in the form of
temporary shelter, accommodation, In June of 2007, the Special Rappor-
water, food, medicines and other forms teur of the African Commission on
of assistance, while looking for an Human Rights Defenders in Africa, Ms
amicable solution to the illegal settle- Reine Alapini-Gansou issued a press
ments and squatter problem in a manner
statement in which she expressed
that upholds the dignity of the individu-
als and the families, which have become particular concern around the alleged
victims of the ... operations.31 acts of violence and harassment of
human rights defenders in Zimbabwe.
As a follow up to this action, the Special Her press statement was in particular
Rapporteur was then requested by the reference to the unlawful arrest and
African Commission to undertake a detention of members of the Women of
Zimbabwe Arise grouping. The Special
31 Nineteenth activity report of the African Rapporteur urged the Zimbabwean
Commission (2005) 12 http://www.chr.
up.ac.za/test/images/files/documents/ahrd
d/theme02/african_commission_19th_activi
ty_report.pdf (accessed 1 October 2015). 32 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 295

authorities to take all necessary meas- cal rights as provided for in the 2013
ures to guarantee the freedom of human Constitution. The human rights situa-
rights defenders in Zimbabwe to carry tion in the country has not improved
out their work as human rights defend- since the record low attained at the turn
ers. of the millennium. Freedoms such as
expression including artistic expression
In addition to these special mecha- and association continue to be muzzled
nisms’ engagements, the African by repressive laws that criminalise utter-
Commission has issued several resolu- ances regarded as undermining govern-
tions on the human rights situation in ment, police or the President’s
Zimbabwe. The following are only a authority.
few examples. In and around the period
of the highly contested presidential elec- The adoption of the Maputo Proto-
tion in Zimbabwe in 2008, the Commis- col in the National Gender Policy
sion passed statements and resolutions heralds improvement in the impact of
expressing its concerns over the human this instrument. Women’s rights are
rights violations occasioned by the regarded as the least contentious in
violence that followed the March 2008 Zimbabwe; hence their realisation is
elections.33 Prior to these highly contest- often supported even by politicians. On
ed elections, the Commission passed a their part, women’s rights based organi-
resolution in which it urged the govern- sations as well as UN Women continue
ment to ensure the holding of a free and to provide technical and in some cases
fair election.34 financial support to the government to
meet its obligations regarding gender
14 Factors that may enhance or mainstreaming in the work place as well
impede the impact of the as society at large.
African Charter, the Maputo
On its part, the African Commission
Protocol and the African suffers from the general negative atti-
Commission tude of government towards internation-
al institutions. This attitude of resenting
Many of the factors affecting the impact international oversight is reflected in the
of the two instruments as well as the government of Zimbabwe's treatment of
African Commission have been the SADC Tribunal and its unwilling-
discussed in other parts of this report. ness to ratify the Protocol on the Afri-
As stated earlier, many of the obliga- can Court. It then follows that unless
tions contained in the African Charter this attitude changes, it would be critical
have been domesticated through the Bill for interventions to utilise other options
of Rights of the 2013 Constitution of engaging the state to ensure that
except the right to asylum. By and large, provisions of the African Charter and
the government still struggles in ensur- Maputo Protocol are given effect in
ing that all citizens enjoy civil and politi- Zimbabwe.

33 See African Commission Resolution 132 15 Conclusion

adopted at the 43rd ordinary session of the
African Commission, Ezulwini, Swaziland;
7-22 May 2008.
34 See African Commission Resolution 128 By and large, the African Charter and
adopted at the 42nd ordinary session of the Maputo Protocol are popular interna-
African Commission in Brazzaville,
Republic of Congo, 2007. tional human rights instruments in
296 Zimbabwe

Zimbabwe. Their impact is low but the

instruments continue to take root in the
legal system through the efforts of influ-
ential partners such as development
agencies and civil society organisations.
The 2013 Constitution is a timely contri-
bution to this process, to the extent that
it provides for a robust approach to
human rights and makes radical changes
to the legal framework. The Bill of
Rights is central to all decision-making
and legislative interpretation. Gender
mainstreaming in all spheres of life is
now a national objective. All these
changes can only result in better protec-
tion of human rights through the Afri-
can Charter and Maputo Protocol.
 CONCLUSION, SUMMARY OF FINDINGS AND
RECOMMENDATIONS

Victor Oluwasina Ayeni*

1 Introduction effect in all states. Rather, their effects

have been conditional on a combination
This book is a modest contribution of of factors, including state level charac-
the Centre for Human Rights, through teristics, the nature of the treaty and the
its alumni network, to the debate on the level of interaction, persuasion and pres-
domestic impact of regional human sure applied on state actors by domestic
rights treaties in Africa. Given the sheer and international compliance partner-
number of regional human rights instru- ships.
ments in Africa and the practical and
logistical challenges of undertaking a With regard to the theory of compli-
continent-wide study, the book assesses ance with international law that best
the impact and effectiveness of only two explains the domestic effects of the Afri-
regional human rights instruments – the can Charter and Maputo Protocol in the
African Charter and the Maputo Proto- 17 selected states, evidence from the
col – in 17 African countries, namely, country chapters tends towards modern
Burkina Faso, Cameroon, Côte d’Ivoire, constructivism, a synthesis of traditional
Ethiopia, The Gambia, Ghana, Kenya, normative theory and rational choice
Lesotho, Malawi, Mauritius, Nigeria, models.1 Each of the studied states
Sierra Leone, South Africa, Swaziland, demonstrates a normative sense of obli-
Tanzania, Uganda and Zimbabwe. gation to abide by the provisions of the
African Charter and the Maputo Proto-
Evidence obtained from the 17 col yet some willingness to exploit vari-
countries suggests that the African Char- ous instrumental and cost-saving
ter and the Maputo Protocol have had a options to comply as little as possible.2
modest yet significant impact in each of In addition to material inducements,
the selected countries. The two instru- normative considerations – such as the
ments, however, do not have the same persuasive power of human rights obli-

1 See ES Bates ‘Sophisticated constructivism in

human rights compliance theory’ (2015) 25
European Journal of International Law 1170.
2 See A von Staden ‘Rational choice within
* LLB (Akungba-Akoko), BL (Abuja), LLM normative constraints: compliance by liberal
HRDA (Pretoria), doctoral candidate, Centre democracies with the judgments of the
for Human Rights, University of Pretoria. European Court of Human Rights’ SSRN
Email: victorayeni7@gmail.com. eLibrary, 6 February 2012.

297
298 Conclusion

gations imposed by the two instruments, One of the major findings of this
repeated transnational interactions, study is that it is insufficient to create
argumentation and continuous exposure awareness about the African Charter or
to international human rights norms – the Maputo Protocol or to translate
sometimes play a significant role in provisions of these instruments into
cases where effect was given to provi- local languages. The African Charter
sions of the African Charter and the and the Maputo Protocol have maximal
Maputo Protocol in the selected states. impact when policy makers, legislators,
judges and members of civil society
The evidence in this book supports organisations are aware of the jurispru-
at least three major theories of compli- dence of the African Commission and
ance with international law: the domes- other human rights bodies in respect of
tic politics theory, transnational legal these instruments and know how to
process theory and the ‘spiral model of demand and apply relevant provisions
human rights change’ as developed by in their own contexts. The jurisprudence
Risse, Ropp and Sikkink.3 Domestic of monitoring bodies breathes life into
actors – policy makers, legislators, judg- human rights provisions.
es and domestic civil society organiza-
tions – are the primary drivers of impact Findings from the various country
of the African Charter and the Maputo chapters point to at least one conclusion
Protocol in all the selected states. – that awareness is central to improving
Repeated interaction between state and the impact of the African Charter and
non-state actors in domestic and inter- the Maputo Protocol at the domestic
national fora is responsible for height- level. More than anything else, ‘bring-
ened treaty impact in all the 17 studied ing’ the African Charter or the Maputo
states. Protocol ‘home’ requires taking it to the
people for whose benefit the instruments
Evidence from most of the country were adopted. It is not all right to
chapters also reveals that the African complain that governments are not
Charter and the Maputo Protocol have implementing decisions of the African
their greatest impact during political Commission when the people who have
transition, especially in new democra- the power to challenge governments are
cies. The findings of this study are also not empowered with the requisite
consistent with the view of Murray and knowledge and skill to do so. The gap
Long that human rights treaties will between the promise of the African
have their most significant impact if Charter and the Maputo Protocol on the
they have ‘added value’,4 that is, if one hand and government’s perfor-
recourse to them will provide a remedy mance on the other hand will be filled
that cannot otherwise be realised only through knowledge-based and skill-
through a domestic human rights frame- driven awareness programmes. Aware-
work. ness has the ability to put international
human rights on ‘auto-pilot:’ when citi-
zens are well-informed, they will go to
3 T Risse, SC Ropp & K Sikkink The persistent
parliament to domesticate treaties and
power of human rights (2013); T Risse, SC Ropp incorporate treaties in judicial decisions.
& K Sikkink The power of human rights (1999).
4 See R Murray & D Long The implementation of
the findings of the African Commission on Human One of the country chapters reports
and Peoples’ Rights (2015) 10-26; BA Simmons an instance where a member of the
Mobilising for human rights (2009) 125.
 Impact of the African Charter and the Maputo Protocol in selected African states 299

Constitution Review Committee in Sier- should not remain subordinate to

ra Leone admitted ignorance of the Afri- national constitutions. The judiciary,
can Charter and the Maputo Protocol not parliament, is the most likely place
prior to being appointed to the commit- for these transformative thoughts to
tee. In another instance, a judge in Ethi- begin.
opia also admitted to not having used
the African Charter in over two decades 2 Summary of study findings
of judicial service. These are not isolated
examples; they are a representative (a) Ratification
sample of the level of awareness of the
African Charter, Maputo Protocol and In all the countries studied, the Presi-
jurisprudence of the African Commis- dent is responsible for negotiating, sign-
sion. However, these instruments and ing and ratifying international human
jurisprudence are popular with civil rights treaties on behalf of the state.
society organisations working in the Ratification of international treaties is a
field of human rights and also, although two-stage process. It has both external
less so, among policy makers, legislators and internal dimensions.5 While the
and ordinary citizens. internal dimension depends on national
processes, the international dimension
In the years to come, the judiciary
involves the transmission of the instru-
remains the most important state institu-
ment of ratification.6 In some countries,
tion for the internalisation of human
such as Nigeria and Lesotho, the
rights norms. The chances of getting
processes are merged into one and
parliaments in every country to directly
carried out by the President or any other
domesticate each and every human
officer duly designated for that
rights instrument is quite slim, and the
purpose.7 In all monist states, and in
probative value of a blanket ‘constitu-
some dualist states, such as Ethiopia,
tional’ domestication (as is the case in
Mauritius, South Africa, Tanzania,
Kenya and many monist states) has not
Zimbabwe and Swaziland, external rati-
been tested empirically. In order to put
fication by the President must be preced-
the judiciary in a position where it can
ed by an ‘internal process of ratification’
freely internalise international human
by parliament. In other word words,
rights norms, there is a need for African
ratification of international treaties must
countries to borrow a leaf from South
be approved by parliament before the
Africa and Côte d’Ivoire. Following the
instrument of ratification is transmitted
example of South Africa, national
to the relevant international organisa-
constitutions in every country in Africa
tion.
should impose an obligation on courts
to consider international law when There is wisdom in involving parlia-
interpreting bills of rights. In Côte ment in the process of treaty ratification.
d’Ivoire, ratified international treaties The traditional role of the executive arm
have a higher status than the constitu- of government is to implement laws
tion. It is also recommended that courts
in Africa should revisit the supremacy 5 F Viljoen International human rights law in
arguments earlier advanced by Nigerian Africa (2012) 24.
courts. Duly ratified treaties should be 6 As above.
7 It must be noted that the Nigerian
superior to domestic laws, and princi- government is currently reviewing her laws to
ples of international human rights law involve the parliament formally in the process
of treaty ratification.
300 Conclusion

while a parliament makes law. It would (b) Designation of government

amount to usurpation of legislative func- focal points
tion if ‘rule-making’ treaties, ratified
solely by the executive arm of govern- The African Commission, at its 13th
ment, are made part of the national law ordinary session, recommended to the
without passing through legislative OAU Assembly of Heads of States and
process. In order to make treaties direct- Governments (now the AU Assembly)
ly applicable at the domestic level, it is that all state parties to the African Char-
fundamental that parliament should be ter designate high ranking officials in
involved prior to ratification. This is the their respective countries to act as Focal
only legitimate way to break the dualist Points in the relations between the Afri-
tradition. can Commission and state parties.10
The OAU Assembly approved this
In all Francophone countries select- recommendation at its 29th ordinary
ed for the study, parliamentary internal session in 1993,11 and since then, sever-
ratification processes are complemented al state parties have designated focal
by a compatibility analysis carried out points. The focal point for the African
by the apex court before the executive Charter in the majority of countries
arm of government can proceed with studied is the Ministry of Justice, while
external ratification. For example, a the Ministry of Women's Affairs is
compatibility study was carried out in usually responsible for the Maputo
Burkina Faso prior to ratification of the Protocol. However, in Burkina Faso,
Maputo Protocol in 2006. A process the Ministry of Justice is responsible for
close to a compatibility study was both the Charter and the Protocol. In
undertaken prior to ratification of the Cameroon, Ethiopia and Ghana, the
Maputo Protocol in South Africa.8 Ministry of Foreign Affairs is the focal
point for both instruments while in Côte
The official reason for ratification of
d’Ivoire, a fully-fledged ministry has
the African Charter was not publicly
been dedicated for human rights. This
available in all the countries studied.
ministry handles communication
However, what is clear is that African
between Côte d’Ivoire and the African
states, most of which were under dicta-
Commission.
torial regimes at the time, ratified the
African Charter and other international
human rights instruments as a result of
international pressure demanding
domestic reform.9 Since the adoption of
the Maputo Protocol is more recent, a
10 Sixth Activity Report of the African
few governments have publicly provided Commission (1992-1993) 105-106; See
their reasons for ratifying the Protocol. VO Ayeni ‘Domestic impact of the African
Charter on Human and Peoples’ Rights and
For instance, the government of Burkina the Protocol on the Rights of Women in
Faso claimed it ratified the Maputo Africa: a case study of Nigeria’ unpublished
LLM Dissertation, University of Pretoria
Protocol ‘to advance women’s rights’. 2011 23.
11 Resolution on the African Commission on
Human and Peoples' Rights, Twenty-Ninth
Ordinary Session of the Assembly of Heads of
State and Government of the Organization of
8 https://pmg.org.za/committee-meeting/101 African Unity, 28-30 June 1993, Cairo, Egypt
81/ (accessed 31 August 2015). available at http://www1.umn.edu/human
9 See KO Kufuor The African human rights rts/africa/resafchar29th.html (accessed
system: Origins and evolution (2010). 28 November 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 301

(c) Domestication countries guarantee basic civil and polit-

ical rights. In most cases, constitutional
Domestication of international human guarantees are co-extensive with provi-
rights treaties may take place at two sions of the African Charter on civil and
levels: directly through incorporation or political rights, although some notable
indirectly through transformation.12 inconsistencies exist. For instance, the
While incorporation is the wholesale Constitution of Lesotho does not
enactment of the provisions of a treaty, expressly recognise the right to dignity.
usually with specific reference to the In Mauritius, there is no constitutional
treaty being incorporated,13 transforma- protection of the right to integrity and
tion occurs where treaty norms influ- security of the person and freedom from
ence a legislative enactment or cruel punishment, among others. Only
amendment without explicit reference to South Africa and Kenya have justiciable
the treaty.14 socio-economic rights in their Bills of
Rights. In Nigeria, Lesotho, and Sierra
Nigeria is the only Anglophone Leone, socio-economic rights are under
state under study to have directly the Directive Principles of State Policy.
domesticated the African Charter.15 The The rights of peoples to self-determina-
African Charter and the Maputo Proto- tion, development, culture and language
col are part of the domestic law in are constitutionally recognised and
Burkina Faso, Cameroon, Côte d’Ivoire guaranteed only in Ethiopia.
and Kenya. Technically, these countries
do not require domestication for duly In Côte d’Ivoire, the African Char-
ratified international treaties to be appli- ter, Maputo Protocol and other duly
cable within their territories. Although ratified international treaties have a
the constitutions of the four countries higher status than the constitution. Trea-
listed above stipulate the monist ties have a status higher than ordinary
approach to domestic application of legislation, though equal to the constitu-
international treaty standards, a deep tion, in Ethiopia. In Nigeria, duly rati-
culture of dualism prevails in practice in fied treaties are superior to ordinary
those countries. legislation but lower in status than the
constitution. In South Africa, national
With the exception of Kenya, and to laws are superior to international law.
some extent, Nigeria, all dualist coun- An argument was made in respect of
tries in the study followed the path of Nigeria where the author noted that in a
indirect domestication with regard to limited number of cases, it is possible for
the African Charter and the Maputo provisions of duly ratified international
Protocol. Indirect domestication, other- treaties to be directly applicable in Nige-
wise referred to as ‘transformation’, ria prior to domestication.
occurs where treaty norms influence a
legislative enactment or amendment (d) Legislative reform and
without explicit reference to the treaty. adoption
The constitutions of most of the studied
No compatibility studies were reported
12 J James-Eluyode ‘Enforcement of interna- to have been carried out in any country
tional humanitarian law in Nigeria’ (2003) 3
African Human Rights Law Journal 266. prior to adoption of the African Charter.
13 Viljoen (n 4 above) 536. However, more recently, laws in Burki-
14 As above.
15 Viljoen (n 4 above) 529. na Faso, Cameroon and Côte d’Ivoire
302 Conclusion

require the apex courts of those coun- Rights. For instance, the provisions of
tries to undertake a compatibility analy- the African Charter which relate to pres-
sis before a treaty can be ratified. As ervation of family values were cited
such, the constitutional court of Burkina often.
Faso issued a legal opinion in 2006
confirming that the Maputo Protocol The provisions of the African Char-
was in conformity with the country’s ter and the Maputo Protocol did not
constitution. A process close to a influence the constitution or subsequent
compatibility study was undertaken amendments, to date, in South Africa.
prior to ratification of the Maputo None of the seventeen Constitutional
Protocol in South Africa.16 Amendment Acts adopted since the
1996 Constitution came into force have
Legislative reform to give effect to altered the provisions of the Bill of
the African Charter and the Maputo Rights. However, during public hearings
Protocol are mostly implicit. However, on the Women Empowerment and
direct causal relationships were estab- Gender Equality Bill in 2014, civil socie-
lished in a number of instances between ty organisations in South Africa request-
the African Charter and the Maputo ed that the Maputo Protocol be included
Protocol on the one hand and some under the bill’s objectives.17 Equality
domestic legislative and policy reform provisions of the Maputo Protocol were
on the other. For instance, in Nigeria, also invoked during public hearings on
decisions of the African Commission the Traditional Courts Bill, in Septem-
were used by civil society organisations ber 2012, to challenge certain discrimi-
and other activist forces to pressure natory provisions.18
government to repeal or amend some
military decrees which violated provi- In The Gambia, the long title of the
sions of the African Charter. A letter Women’s Act states that it was enacted
written to the Speaker of the Burkinabe to incorporate and give effect to the
Parliament by Salamata Sawadogo, a provisions of CEDAW and the Maputo
Burkinabe who was then the Chairper- Protocol.19 There is also strong evidence
son of the African Commission, was pointing to the fact that the Legal Aid
reported to have played a significant Act of The Gambia was enacted to give
advocacy role in the adoption of legisla- effect to the African Charter. The
tion allocating gender-based quotas for Maputo Protocol played a crucial role
parliamentary and local elections in during the formulation of gender
Burkina Faso. justice laws in Malawi. A Bill to
domesticate articles 1-24 of the Maputo
Paragraph 8 of the Preamble to the Protocol in Nigeria was being debated
Constitution of Burkina Faso expressly
refers to the African Charter as an inte-
gral part of the constitution. During the
review process that led to the adoption 17 https://pmg.org.za/tabled-committee-report
/2202/ (accessed 31 August 2015). See also
of the Kenyan Constitution in 2010, the http://pmg-assets.s3-website-eu-west-1.ama
African Charter is reported as featuring zonaws.com/140129cals.pdf (accessed
13 September 2015).
prominently in discussions on the Bill of 18 Report of the Select Committee on Security
and Constitutional Development on the
Traditional Courts Bill (2012); https://
pmg.org.za/tabled-committee-report/286/
16 https://pmg.org.za/committee-meeting/101 (accessed 31 August 2015).
81/ (accessed 31 August 2015). 19 See Long Title, Women’s Act of 2010.
 Impact of the African Charter and the Maputo Protocol in selected African states 303

in parliament as at the time of compiling Populations and Communities22 to

this report.20 develop strategies for the public health
needs of marginalised and vulnerable
(e) Policy reform groups in Kenya. The African Charter is
also reported to have played a role in
While a number of national policies the formulation of the National HIV/
have been adopted and give effect to the AIDS Policy in Malawi. Similarly, the
provisions of the African Charter and National Gender and Empowerment
the Maputo Protocol across all 17 states Policy Framework of The Gambia
under study, these policies seldom refer- expressly referenced the Maputo Proto-
ence either the African Charter or the col and the National Gender Policy of
Maputo Protocol specifically. However, Swaziland also articulates that its
in Nigeria and Zimbabwe, direct influ- contents were guided by provisions of
ence of the African Charter is noted in the African Charter and Maputo Proto-
the National Action Plan for the Promo- col.23
tion and Protection of Human Rights as
well as in the National Gender Policy. (f) Judicial decisions
The Nigerian National Action Plan and
Gender Policy make reference to the Researchers were unable to find refer-
African Charter and the Maputo Proto- ences to the African Charter or Maputo
col several times. Most of the countries Protocol in decisions of domestic courts
studied have policies on poverty reduc- in Cameroon, Côte d’Ivoire, Burkina
tion and HIV/AIDS prevention and Faso and Mauritius. The jurisprudence
treatment, among others. Côte d’Ivoire of the African Commission has also not
went as far as appointing a government been used or referred to in any court
minister for HIV/AIDS. The Draft decision in Francophone Africa. The
White Paper on Remand Detention African Charter, Maputo Protocol and
Management of the Department of jurisprudence of the African Commis-
Correctional Services in South Africa sion have been most impactful on judi-
makes reference to articles 4, 5, 6 and 7 cial activities in Anglophone Africa,
of the African Charter.21 particularly, Ghana, Kenya and Nigeria.

The Ministry of Public Health and Courts in Nigeria and Kenya have
Sanitation in Kenya is reported to have directly invoked article 24 of the African
used the report of the African Commis- Charter to protect citizens against envi-
sion’s Working Group on Indigenous ronmental pollution. Kenyan courts
have also made reference to the African
Commission’s Guidelines on Fair Trial
20 See Nigeria’s Fourth Periodic Country as an authoritative interpretation of the
Report: 2008-2010 on the implementation of
the African Charter on Human and Peoples’ obligations of Kenya under the African
Rights in Nigeria (2011) 5; Nigeria’s Fifth
Periodic Country Report: 2011-2014 on the
implementation of the African Charter on
Human and Peoples’ Rights in Nigeria (2014)
ii & 2. 22 African Commission ‘Report of the African
21 Department of Correctional Services ‘Draft Commission on Human and Peoples’ Rights
White Paper on Remand Detention Manage- Working Group of Experts on Indigenous
ment in South Africa’ 2013. http://www.dcs. Populations/Communities’.
gov.za/docs/landing/White%20paper%20on 23 http://www.undp.org/content/dam/swazila
%20Remand%20Detention%20in%20SA%20 nd/docs/publications/UNDP_SZ_Gender
Draft%20Final.pdf (accessed 13 September _SwazilandNational Gender Policy2010.pdf
2015). (accessed 25 August 2105).
304 Conclusion

Charter.24 In Rono v Rono, the Court of Action Campaign30 and Mazibuko,31 the
Appeal of Kenya held that customary Constitutional Court failed to cite rele-
laws of intestate succession, which vant provisions of the African Charter
disinherited women, contravene article or the socio-economic rights jurispru-
18 of the African Charter. In Nigeria, dence of the African Commission.32
the African Charter has been referenced South African courts have a duty to
in more than 70 decided cases, often25 consider international law, including
as a basis for remedy, interpretive guid- African regional human rights instru-
ance or as a legal source of legitimacy. ments, when interpreting the Bill of
Rights.
The South African Constitutional
Court in National Commissioner of the In the Swaziland case of Fakudze v
South African Police Service v Southern Afri- The Director of Public Prosecutions,33 the
can Litigation Centre and Others,26cited domestic court referred to the Principles
article 5 of the African Charter and the and Guidelines on the Right to a Fair
African Commission’s interpretation of Trial, adopted by the African Commis-
that article in the case of Huri-Laws v sion, and relied on it as an interpretative
Nigeria.27 South African courts have guide. While interpreting the right to
relied most heavily on the African Char- legal representation in the case of DPP v
ter’s provisions relating to rights and Sole,34 a Lesotho court made reference
duties in the context of the family. In to article 7(1) of the African Charter as
part, this is because the South African interpretive aid.35 In Judicial Officers
Constitution has no provisions on the Association of Lesotho v The Prime Minis-
right to freely marry and raise a fami- ter,36 a Lesotho court referred to article
ly.28 It is, however, unfortunate that in 7 and 26 of the African Charter. While
most of the landmark socio-economic interpreting the right to freedom of
rights decisions handed down in South expression in Ousman Sabally v IGP, The
Africa, such as Grootboom,29 Treatment Gambian Supreme Court referred to the
decision of the African Commission in
Constitutional Rights Project, Civil Liberties
24 African Commission on Human and Peoples' Organization and Media Rights Agenda v
Rights ‘Principles and Guidelines on the
Rights to a fair Trial and Legal Assistance in
Nigeria.37
Africa’ http://www.achpr.org/english/decla
rations/Guidelines_Trial_en.html (accessed Unlike the African Charter, the
10 October 2011).
25 The list of these cases is on file with the Maputo Protocol has not enjoyed a
author. great deal of judicial use at the domestic
26 [2014] ZACC 30; 2015 (1) SA 315 (CC).
27 Communication 225/98, HURILAWS v level. This perhaps is due to the fact that
Nigeria 13th Annual Activity Report para 39. the Maputo Protocol is relatively recent
28 See the South African chapter. See also
O Motlhasedi & L du Toit ‘The impact of the and some state parties to the African
African Charter and the Maputo Protocol in
South Africa’ in this book. See also Dawood
and Another v Minister of Home Affairs and 30 2002 (5) SA 721 (CC).
Others consolidated with Shalabi and Another v 31 2010 (4) SA 55 (CC).
Minister of Home Affairs and Others and Thomas 32 See Motlhasedi & Toit (n 28 above).
and Another v Minister of Home Affairs and 33 (237/08) [2008] SZHC 161 http://www.
Others [2000] ZACC 8; 2000 (3) SA 936 at swazilii.org/files/sz/judgment/high-court/
para 29; Volks NO v Robinson and Others and 2008/161/SZHC_237_2008.pdf (accessed
most recently, in DE v RH [2005] ZACC 2 8 August 2008).
para 82. 34 [2001] LSHC 101 (unreported).
29 See the South African chapter. See also 35 See also Judicial Officers Association of Lesotho v
Government of the Republic of South Africa and The Prime Minister [2006] LSHC.
Others v Grootboom and Others [2000] ZACC 36 [2006] LSHC.
19; 2001 (1) SA 46 (CC). 37 (2000) AHRLR 227 (ACHPR 1999).
 Impact of the African Charter and the Maputo Protocol in selected African states 305

Charter are yet to ratify the Maputo Uganda (1) and Zimbabwe (4).42 To
Protocol. However, in Kishindo v Kishin- date, Malawi is the only country to have
do,38 a Malawian court referred to arti- submitted a specific report in the appro-
cle 4 of the Maputo Protocol when priate form (Part B) on the Maputo
distributing marital property following Protocol.
the dissolution of a marriage. In the
Kenyan case of KELIN & Others v In most countries, the Ministry of
Medicins Sans Frontiere and Others, peti- Justice is responsible for preparing state
tioners cited the provisions of the Afri- report, although the ministry of foreign
can Charter and the Maputo Protocol affairs (MoFA), women affairs and
among other human rights instruments other relevant government departments
to argue against the forced and coerced are sometimes involved. In Mauritius,
sterilization of women living with the process is led by the Human Rights
HIV.39 The Court of Appeal of Lesotho Unit in the Office of the Prime Minister
in the celebrated case of Molefi Ts’epe v but the final report is submitted by the
The Independent Electoral Commission and MoFA. In Burkina Faso, the state report
Others also referred to several undomes- is compiled by the Ministry of Justice
ticated treaties, including the Maputo and Human Rights but the actual
Protocol and article 18(4) of the African submission and presentation is done by
Charter.40 In most cases, domestic the MoFA. There is limited civil society
courts cite the Maputo Protocol as one involvement in the reporting process in
of the numerous human rights instru- Cameroon and Mauritius.
ments protecting a particular women’s
right. Generally, concluding observations
of the African Commission are not
widely disseminated by states, except in
(g) State reporting
Kenya where it was reported that the
government usually organises ‘dissemi-
Only four countries – Burkina Faso,
nation workshops’ after receiving copies
Ethiopia, Kenya and Nigeria – out of
of concluding observations from the
the 17 countries selected for this study
African Commission. The government
are up to date in their reporting obliga-
of Zimbabwe ratified the Maputo Proto-
tion under the African Charter.41 The
col following a concluding observation
other 13 countries have the following
of the African Commission.
number of overdue reports: Cameroon
(1), Côte d’Ivoire (1), The Gambia (11), One of the clearest demonstrations
Ghana (9), Lesotho (7), Malawi (1), of the potential impact of the state
Mauritius (4), Sierra Leone (1), South reporting procedure is documented in
Africa (5), Swaziland (7), Tanzania (4), the Côte d’Ivoire chapter. The country
hosted the 52nd ordinary session of the
38 [2014] MWHC 2.
African Commission in 2012 where it
39 Constitutional Petition No 605 of 2014. See submitted its first ever state report under
also Muigai v John Bosco Kariuki & Another the African Charter. In its concluding
(2014).
40 See the South African chapter. See also Ts’epe observations, the African Commission
v The Independent Electoral Commission and requested the government of Côte
Others (2005) AHRLR 136 (LeCA 2005). See
also Security Lesotho v Moepa Constitutional d’Ivoire to: (i) first, ratify the following
Case No 12 of 2014.
41 African Commission ‘State reporting’
available at http://www.achpr.org/states/
(accessed 14 December 2015). 42 As above.
306 Conclusion

human rights instruments: the Conven- The evidence in this book also
tion for the Protection and Assistance of shows that states tend to give greater
Internally Displaced Persons in Africa; priority to reporting under the UN than
the African Charter on Democracy, the African human rights system. This is
Elections and Good Governance; and very clear in the case of The Gambia,
the Protocol to International Covenant which has submitted up to date state
on Civil and Political Rights (ICCPR) reports with some human rights mecha-
on the abolition of death penalty; and nisms but whose most recent report to
(ii) secondly, make the article 34 (6) the African Commission was in 1994.
Declaration pursuant to the Protocol to Reasons for delay in submitting state
the African Charter on the Establish- reports to the African Commission
ment of the African Court. The African include lack of competent personnel,
Commission also used the platform of conflicting reporting obligations and
making concluding observations to spot- political instability.
light the lack of specific legislation
protecting human rights defenders, the (h) Individual communications
presence of discriminatory provisions
against women in national legislation, From 1987, when the African Commis-
the presence of harmful traditional prac- sion was inaugurated, to November
tices that affect women, and the low 2015, the African Commission has
level of resources dedicated to imple- found violations in 83 communications,
mentation of Resolution 1325 on involving 27 states that are party to the
women, peace and security, among African Charter.44 Nigeria has the high-
others. est number of violation cases followed
by Cameroon and Zimbabwe. The Afri-
It is interesting to note that subse- can Commission found violations of the
quent to these recommendations, the African Charter in the following number
government of Côte d’Ivoire made the of communications relating to the
article 34(6) Declaration. The Declara- following countries selected for this
tion was deposited on 23 July 2013. In study: Burkina Faso (1), Cameroon (6),
June 2014, the country adopted Law Ethiopia (1), The Gambia (2), Ghana
2014-388 on the protection and promo- (2), Kenya (3), Malawi (2), Nigeria (20),
tion of human rights defenders. It also Sierra Leone (1), Swaziland (1), Uganda
adopted a National Action Plan on UN
Security Council Resolution 1325 on
women, peace and security. It is also 44 See African Commission on Human and
People’s Rights, ‘Communications’, available
believed that the visits of Commissioner at http://www.achpr.org/communications/
Reine Alapini-Gansou to Côte d’Ivoire, (accessed 26 August 2015); IHRDA, African
human rights case law analyser http://
in 2014 and 2015, as Special Rapporteur caselaw.ihrda.org/body/acmhpr/ (accessed
on Human Rights Defenders, played a 26 August 2015). In its 32nd and 33rd (joint)
activity report adopted by the Executive
role in the adoption of the law on Council of the AU in January 2013, the
human rights defenders in Côte Commission reported that since inception, it
has handled a total of 426 Communications
d’Ivoire.43 and concluded 210 Communications. As at
December 2014, the Commission had 89
pending communications. See Statement by
the Chairperson of the African Commission
on Human and Peoples’ Rights on the human
43 http://ci-ddh.org/2015/01/visite-de-la-rapp rights situation in Africa (28th Session of The
orteure-speciale-des-defenseurs-des-droits-de- United Nations Human Rights Council),
lhomme-aupres-de-la-cadhp/ (accessed available at http://www.achpr.org/news/
13 September 2015). 2015/04/d171 (accessed 8 September 2015).
 Impact of the African Charter and the Maputo Protocol in selected African states 307

(2) and Zimbabwe (6).45 So far, the Afri- cations submitted against this country at
can Commission is yet to make a find- the ECCJ.
ing of violation against Côte d’Ivoire,
Lesotho, Mauritius, South Africa and (i) Awareness and use of the
Tanzania, despite allegations of serious African Charter and the
human rights violations taking place in Maputo Protocol by civil
these countries. society, practising lawyers,
academics and NHRIs
The African Court has found two
countries, namely Burkina Faso and One challenge identified in all the
Tanzania, to be in violation of the Afri- reports is the low level of awareness and
can Charter in two cases respectively. use of the African Charter and the
Nigeria and The Gambia have also been Maputo Protocol amongst lawyers and
found to be in violation of the African domestic judges. Lawyers generally do
Charter and other international human not consider the African Charter or the
rights instruments by the ECOWAS Maputo Protocol as a main source of
Community Court of Justice (ECCJ) in reference in their submissions. Even in
a total of eight cases: five in the case of Nigeria and Kenya, where these two
Nigeria and three in the case of The instruments are directly applicable, they
Gambia.46 Measures to implement these are most often than not cited only as
decisions are few and far between. Some subsidiary sources. One interesting
cases of full and partial compliance were example is given in the Ethiopia chap-
however recorded in Cameroon, The ter, in which a judge admitted that he
Gambia, Kenya and Nigeria. has not used the African Charter in
almost two decades of judicial service.
There has been a noticeable
This example, which is likely not limit-
decrease in terms of the number of
ed to Ethiopia, is typical of the experi-
communications submitted against
ence and familiarity of judges across
Nigeria since the country returned to
Africa of these two instruments. It raises
civil rule in 1999. For instance, informa-
legitimate questions about the extent to
tion on the website of the African
which governments have trained local
Commission shows that only one
judges on the use of duly ratified human
communication has been submitted or
rights treaties.
decided against Nigeria since 1999.47
During this period however, there has The various chapters in this book
been a rise in the number of communi- report limited use of the African Charter
and the Maputo Protocol by civil society
organisation. Evidence suggests that
civil society engagement is crucial to the
45 African Commission ‘Communications’
available at http://www.achpr.org/communi modest yet significant impact of the
cations/ (accessed 15 December 2015). African Charter and the Maputo Proto-
46 HS Adjolohoun ‘Giving effect to the human
rights jurisprudence of the Court of Justice of col in the selected countries. In 2012,
the Economic Community of West African three civil society organisations – name-
states: compliance and influence’
unpublished LLD Thesis, University of ly the Centre for Democracy and
Pretoria 2013 13 &376. See also http://www. Human Rights, the Institute for Human
courtecowas.org/ (accessed 15 December
2015). Rights and Development in Africa and
47 African commission ‘Nigeria’ http://www. the Centre for Human Rights at the
achpr.org/states/nigeria/ (accessed
15 December 2015). University of Pretoria – received the
308 Conclusion

African Commission’s awards for their ment to the promotion and protection of
commitment to the promotion and human rights.51
protection of human rights in Africa.48
Academic writing focusing on the
All the countries selected for this African Charter and the Maputo Proto-
study, with the exception of Lesotho col is generally scarce. However, exten-
and The Gambia, have NHRIs. Many sive academic writing on the African
of these institutions attend sessions of Charter and the Maputo Protocol is
the African Commission regularly and reported in South Africa, Nigeria, Ugan-
make statements about the human rights da and Lesotho. It is impossible to fully
situations in their countries. They partic- discuss the impact of the African Char-
ipate in the process of generating state ter and the Maputo Protocol in South
reports and sometimes use provisions of Africa without mentioning the role of
the African Charter and the Maputo two academic institutions, namely the
Protocol in their advocacy activities. Centre for Human Rights (CHR) based
Although Côte d’Ivoire, Ghana, Mala- at the University of Pretoria and the
wi, Swaziland and Zimbabwe have Dullah Omar Institute (formerly the
NHRIs, these institutions are yet to Community Law Centre) based at the
obtain affiliate status with the African University of the Western Cape. The
Commission. NHRIs in Burkina Faso, work of these research centres, and espe-
Cameroon, Ethiopia, Kenya, Mauritius, cially the CHR’s Master of Laws (LLM)
Nigeria, Sierra Leone, South Africa, in Human Rights and Democratisation
Tanzania and Uganda have affiliate in Africa (HRDA), the African Human
status with the African Commission. Rights Law Journal (AHRLJ) and the
The South African Human Rights African Human Rights Law Reports
Commission (SAHRC) has a good (AHRLR), represent among the most
record in respect of using the African tangible impact of the African Charter
Charter and the Maputo Protocol. The and the Maputo Protocol in any institu-
SAHRC makes reference to provisions tion of learning in Africa. It is also
of the African Charter and also to the important to mention the African
jurisprudence of the African Commis- Human Rights Moot Competition, an
sion in its programmes on the Right to event which has been described as the
Food in South Africa.49 The SAHRC largest annual gathering of law students
considers the African Charter as estab- and lecturers of law in Africa.52 Since
lishing the relevant legal framework for the inaugural edition in 1992, the
the recognition of right to food.50 In programme, which is organised by the
2012, the SAHRC and the national Centre for Human Rights, has hosted
human rights commissions of Came- more than 1071 teams from over 146
roon and Uganda received the African universities in Africa.53 Each year,
Commission’s award for their commit- participants argue one hypothetical case
based on alleged violations of African
48 SAHRC ‘SAHRC receives African Com
regional human rights instruments,
mission Award for its commitment to the
realisation of human rights’ available at http:/
/www.sahrc.org.za/home/index.php?ipkMe
nuID=91&ipkArticleID=139 (accessed
15 December 2015). 51 SAHRC (n 49 above).
49 http://www.sahrc.org.za/home/index.php? 52 http://www.chr.up.ac.za/index.php/moot-
ipkArticleID=270 (accessed 10 September court-2015.html (accessed 28 November
2015). 2015).
50 As above. 53 As above.
 Impact of the African Charter and the Maputo Protocol in selected African states 309

especially the African Charter and the Sierra Leone and Côte d’Ivoire, political
Maputo Protocol. instability was identified as a major
factor that has limited the impact of the
(j) Limiting and enhancing factors African Charter and the Maputo Proto-
col. Traditional practices which discrim-
Ignorance about the provisions and inate against women and entrench
potential uses of the African Charter patriarchy also limit the domestic effects
and the Maputo Protocol is the number of the African Charter and especially the
one factor impeding the impact of the Maputo Protocol.
two instruments at the domestic level.
All the chapters report that there is a In all the selected countries, there
general lack of awareness about the are no legal frameworks in place spell-
African Charter and the Maputo Proto- ing out the procedures for implementa-
col by cabinet members, legislators, tion of decisions of the African
judges, lawyers, academics, members of Commission, the African Court or other
the press, and members of the public, regional human rights monitoring
especially women, youth and children. bodies in Africa. The lack of a law
It is impossible for citizens to agitate for reform commission in Swaziland was
their rights if they are not aware such also identified as a factor that impedes
rights exist or do not know the remedial legislative reform in line with the Afri-
systems in place at the supranational can Charter and the Maputo Protocol.
level to secure them where domestic The political arrangements in some
remedies become unavailable. states which practice federalism has
been identified as yet another factor that
There is also a lack of political will limits the impact of the African Charter
by top-level political actors and a gener- and the Maputo Protocol at the sub-
al lack of human rights culture in many national level. This is particularly the
of the selected states. It should be case in Nigeria. For instance, while the
recalled that in 2005, Zimbabwe’s national government in Nigeria is taking
Ministry of Foreign Affairs requested some steps to bring its laws into
the African Commission’s Special conformity with the Maputo Protocol,
Rapporteur on Refugees, Asylum Seek- these laws when finally adopted will not
ers and Internally Displaced Persons to have any effect at the sub-national level
leave the country. Non-domestication of unless sub-national governments adopt
the African Charter and the Maputo specific legislation to that effect.
Protocol in Anglophone and Franco-
phone countries alike affects the impact It was also reported that conflicting
of these instruments. In Mauritius, the reporting obligations to UN and AU
Maputo Protocol is yet to be ratified. human rights bodies hampers some
This contributes to the neglect of the states from keeping up to date with their
Maputo Protocol by courts and civil state reports under the African Charter
society organisations in Mauritius. and the Maputo Protocol. As a result of
conflicting reporting timelines, states
Poverty and high level of illiteracy, tend to give priority to their reporting
coupled with political instability in obligation at the UN level at the
many of the countries studied for this expense of their regional reporting obli-
book impede the impact of the African
Charter and the Maputo Protocol. In
310 Conclusion

gations. This practice was reported in cial activism, academic writing and the
Lesotho54 as well as in The Gambia. overall international and domestic
contexts. In South Africa, the most
The non-binding nature of the Afri- significant enhancing factor is the value
can Commission’s decisions sometimes which the African Charter, the Maputo
creates room for states to consider ignor- Protocol and the jurisprudence of the
ing the African Commission’s decisions African Commission add to the domes-
without legal consequence. In this tic legal framework in the areas of the
regard, it may be that the African right to family life, right to food and the
Commission has also contributed to the protection of women, coupled with the
limited impact of the African Charter by existence of strong civil society and
making recommendations and remedial research institutions. In Ethiopia, the
orders that are often vague. In some translation of the African Charter into
cases, the African Commission did not Amharic was reported as a major
make any recommendation for states to enhancing factor. Political transition in
implement. South Africa, Kenya, Sierra Leone and
Côte d’Ivoire, among others has also
Limited media coverage of the work provided vital opportunities for the
of the African Commission and the Afri- internationalisation of the African Char-
can Court also hamper the domestic ter and the Maputo Protocol in those
effects of the African Charter and the countries.
Maputo Protocol. It is significant to
mention that some positive factors actu- The development of citable jurispru-
ally impede the impact of the African dence on the African Charter and the
Charter and the Maputo Protocol. In Maputo Protocol in Kenya and Nigeria
South Africa, for instance, the relatively has greatly enhanced the impact of the
progressive nature of the Bill of Rights African Charter and the Maputo Proto-
and the transformative mindedness of col in the two countries. It is important
the South African Constitutional Court not to lose sight of the decisions of the
have rendered the African human rights ECOWAS Community Court of Justice
system less appealing to civil society (ECCJ), the East African Court of
organisations and litigants. Justice (EACJ) and the Southern Afri-
can Development Commission (SADC)
Speaking specifically of factors that Tribunal which have held that several
have enhanced the impact of the African states have been in violation of the Afri-
Charter, high levels of civil society can Charter. It is also important to
engagement top the list, although this is mention the collaboration and support
not the case across all countries. In of international partners, without which
Nigeria, the most important enhancing many major activities of the African
factor is the direct domestication of the Commission and civil society organisa-
African Charter. Other factors which tions would be impossible.
have enhanced the impact of the African
Charter and the Maputo Protocol in
3 Recommendations
Nigeria include strong civil society, judi-
In order to improve the impact of the
54 See Report of the promotional mission to the
Kingdom of Lesotho (2006) paras 129-136 African Charter and the Maputo Proto-
www.achpr.org/english/Mission/Lesotho/ col in the selected states and in other
Mission%20Report_Lesotho.pdf (accessed
9 September 2011). African states in general, the following
 Impact of the African Charter and the Maputo Protocol in selected African states 311

suggestions are made first to state nalisation of international human

parties of the two instruments, then to rights norms in Africa.
civil society and finally to the African (iii) Steps should be taken in every
Commission: state to directly domesticate the
African Charter and the Maputo
(a) State parties Protocol. This may be done by
following the Kenyan or Nigerian
(i) Governments should raise aware- examples. In Kenya, the Constitu-
ness about the African Charter tion provides that all duly ratified
and the Maputo Protocol among treaties are directly applicable and
cabinet members, legislators, judg- form part of the domestic law. In
es, lawyers, academics, civil socie- Nigeria, the entire African Char-
ty and members of the public ter was incorporated into domes-
especially women, youth and chil- tic law through an Act of
dren. State officials may borrow a parliament. At the very least,
leaf from Mauritius by translating states should borrow a leaf from
provisions of the African Charter South Africa where the Constitu-
and the Maputo Protocol into tion imposes an obligation on
local languages and ensuring that courts to consider international
these documents are disseminated law when interpreting the Bill of
not only in urban areas but also in Rights. It is also suggested that in
rural communities. This is an future, political bodies within the
important step for social internali- African Union should consider
sation of the norms of the African the possibility of making domesti-
Charter and the Maputo Protocol. cation of duly ratified treaties
(ii) Adequate budgetary provision obligatory for all state parties to
should be made for the periodic regional human rights instruments
training and capacity building of in Africa. States that have incor-
civil servants whose line of duty porated the African Charter and
relates to the protection of human the Maputo Protocol in their
rights at the domestic level. This domestic law should raise aware-
includes staff of NHRIs, minis- ness about these treaties and
tries of justice, gender and foreign encourage citizens to use them
affairs offices and other relevant interchangeably with domestic
government departments. The laws.
African Commission should (iv) The practice of stifling democratic
engage state delegations during space and restricting civil society
presentation of state reports on operations should be discouraged.
steps taken to train top-level Specifically, the government of
government officials, such as cabi- Ethiopia should consider abolish-
net members, legislators and judg- ing the policy which requires civil
es, on use of the African Charter, society organisations to generate
the Maputo Protocol and other 90 percent of their funding from
regional human rights instruments local sources.
in Africa. This is an important
(v) There is a need for state parties to
step for political and legal inter-
the African Charter to ratify other
regional human rights instruments
312 Conclusion

in Africa that may help to government of Swaziland is

advance the objects of the African encouraged to set up a law reform
Charter and the Maputo Protocol. commission. The lack of a law
The African Court Protocol and reform commission in Swaziland
African Charter on Democracy, has been identified as one of the
Elections and Good Governance, factors that impede legislative
among others are examples of reform in line with the African
such treaties. Along this line, the Charter and the Maputo Protocol.
government of Mauritius is (x) Curricula of educational institu-
encouraged to ratify the Maputo tions should be revisited to incor-
Protocol. States that are yet to porate elements of the African
make the article 34(6) Declaration human rights system in relevant
under the African Court Protocol academic disciplines. This is
should also urgently do so. important for the training of
(vi) Measures should be taken by lawyers and also for the continu-
national governments, with the ous legal education of members of
support of development partners, the bar and the bench.
to reduce the rate of poverty and (xi) The regional human rights
illiteracy, and to improve the master’s programme, the African
overall socio-economic conditions Human Rights Moot Competi-
of people in Africa. Poverty, high tion, the African Human Rights
levels of illiteracy and poor socio- Law Journal (AHRLJ) and the
economic conditions significantly African Human Rights Law
impede the domestic impact and Report (AHRLR) should all be
effectiveness of human rights trea- encouraged and supported.
ties in Africa.
(xii) Judges and legislators at the
(vii) Traditional practices which domestic level should deploy the
discriminate against women and African Charter and the Maputo
entrench patriarchy should be Protocol in their work. The devel-
proscribed. Governments are opment of citable jurisprudence
encouraged not to stop at making on the African Charter and the
laws which prohibit these practic- Maputo Protocol in Kenya and
es but, at the same time, must Nigeria has greatly enhanced the
ensure that the laws are effectively impact of these instruments in
implemented. those countries.
(viii) Legal mechanisms should be put (xiii) Provision should be made in the
in place prescribing procedures for national budgets of every state for
the implementation of decisions of the implementation of decisions of
the African Commission and the relevant international, human
African Court at the domestic rights tribunals.
level. An institutional mechanism
should also be created to coordi-
(b) Civil society organisations
nate this process.
(ix) Law reform commissions should (i) Civil society organisations should
be established in states that are yet comply with their reporting obli-
to have them. Along this line, the gations by virtue of their observer
 Impact of the African Charter and the Maputo Protocol in selected African states 313

status with the African Commis- Commission on their follow up

sion. It is reported in the various activities.
chapters that civil society organi- (v) NGOs and other civil society
sations that enjoy observer status organisations should explore
with the African Commission do options outside the African
not submit their activity reports as Commission and African Court in
required by the Commission’s their attempts to ‘bring home’ the
Resolution on the Criteria for benefits of the African Charter
Granting and Enjoying Observer and the Maputo Protocol. The
Status to Non-Governmental ECOWAS Community Court of
Organizations Working in the Justice, for example, and more
field of Human and Peoples’ recently the East African Court of
Rights. Justice have become viable alter-
(ii) Civil society organisations should natives for enforcing provisions of
monitor the process of state the African Charter.
reporting; submit shadow reports
where appropriate, ensure easy (c) African Commission
access to state reports and
concluding observations, help (i) The African Commission should
with the dissemination of create a special mechanism on
concluding observations and law reform to monitor and to
follow up on their implementa- liaise with states in the process of
tion. transition to democracy. In addi-
(iii) Civil society organisations have tion, such a mechanism could be
generally taken the lead in creat- deployed to assist states that are
ing awareness about the African reviewing their constitutions or
Charter and the Maputo Protocol adopting important legislative
through advocacy and promotion- instruments or amendments.
al activities. However, they often States are generally more recep-
fail to involve the media in these tive to human rights norms during
activities. The use of the media to political transition and evidence
promote the African Charter and from this study shows that if there
the Maputo Protocol should not is effective engagement with rele-
be left to state actors alone. vant domestic actors during politi-
cal transition, and prior to the
(iv) During submission of individual
adoption of national constitutions
communications, civil society
or important domestic legislation,
organisations assisting complain-
there is a higher likelihood that
ants should ensure that communi-
human rights instruments will
cations submitted to the African
have an impact on legislative
Commission include very specific
outcomes and processes at the
relief. This will assist the African
domestic level.
Commission in formulating
specific recommendations at the (ii) It is submitted that the African
conclusion of the case. They Commission would do well to
should also follow up on states’ ensure that its recommendations
implementation of these decisions are more specific. It may not be
and report to the African helpful to ask a state to bring all
314 Conclusion

its laws into conformity with the its fifth state report, for instance,
African Charter, without specify- should not be reminded of recom-
ing in the remedial order what mendations or concluding obser-
specific laws, or even what provi- vations issued during
sions of those laws, should be consideration of the first or
brought in line with the African second state report. This approach
Charter. Vague recommendations should also be adopted for recom-
have been shown to be difficult to mendations arising from previous
implement and follow up. mission reports and decisions of
(iii) The African Commission might the African Commission.
consider the possibility of (vi) Media coverage of the work of the
persuading more states to host its African Commission and of the
ordinary sessions. This could decisions of the African Court
greatly improve the level of should be intensified. Special
awareness and the overall impact training programmes should also
of the African Charter and the be organised, under the auspices
Maputo Protocol in those states. of the African Commission, for
Significant impact was recorded, members of the press to sensitise
for example, when Côte d’Ivoire the media about the African Char-
hosted the 52nd ordinary session ter, the Maputo Protocol and
of the African Commission. other regional human rights trea-
(iv) There is a need for the African ties in Africa.
Commission to consider the possi-
bility of adopting more model
laws on critical human rights
issues in Africa. Following the
many success stories of the Model
Law on Access to Information in
Africa, coupled with the advocacy
undertaken by the Special
Rapporteur on Freedom of
Expression to promote that law,
adoption of model laws may be an
area the African Commission
should look into in future. The
Model Law on Access to Informa-
tion in African has been applaud-
ed within and outside Africa for
its significant impact on access to
information legislation in Africa.
(v) The African Commission should
also build on its previous recom-
mendations, and keep following
up on those recommendations
that have not been fully or effec-
tively implemented. There is no
reason why a country submitting
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 QUESTIONNAIRE USED FOR THE STUDY

The following questionnaire was used by researchers to carry out the study at the country level:

(i) Introduction

• Brief background and context of human rights in the country

• Overview of the status of women’s rights in the country

(ii) Ratification of African Charter and the Maputo Protocol

• Have the countries ratified the African Charter and the Maputo Protocol? If so, when? Were
any reservations entered? If yes, give reasons entered for reservations and whether they were
later withdrawn. Provide reasons for withdrawal. If not withdrawn yet, is this issue being
discussed or considered?
• What is the process of ratification: Role of Parliament or the Executive?
• What were the reasons for the ratification of the two instruments – were any reasons
articulated in parliamentary debates or elsewhere? Please identify sources.

(iii) Identify government focal point

• Establish which department, person or ‘bench’ is the ‘focal point’ of the state’s response and
responsibilities on the African Charter and the Maputo Protocol. While so doing, the
researchers must take into account the following:
• Are there different focal points?
• What are their views about the channel of communication with the African Commission and
the institutionalisation of the state’s responsibilities in relation to the African Charter and the
Maputo Protocol?

(iv) Domestication or incorporation

• What is the constitutional status of the African Charter and the Maputo Protocol? (between
the African Charter, the Maputo Protocol and the constitution or other legislation, which
prevails?)
• To what extent do the African Charter and the Maputo Protocol rights correspond to the
domestic Bill of Rights? Are the African Charter and the Maputo Protocol rights included in a
justiciable Bill of Rights? Has the Bill of Rights been changed after the state becoming a party
to the Charter?
• Has the African Charter or the Maputo Protocol been domesticated or ‘incorporated’ into
ordinary legislation?

329
330 Questionnaire

• Which domestic legislation refers to the provisions of the African Charter and the Maputo
Protocol?

(v) Legislative reform or adoption

• Was a compatibility study of domestic law with the African Charter and the Maputo Protocol
undertaken before ratification of the two instruments? If yes, what were the findings of the
study?
• Has any implicit or explicit legislation been amended or adopted to give effect to the African
Charter and the Maputo Protocol?

(vi) Policy reform or formulation

• Has any government policy (HIV/AIDS Strategy, Poverty Reduction Strategy Paper (PRSP),
plan of action, white paper, codes, etc.) been adopted or amended to give effect to the African
Charter and the Maputo Protocol? (explicit or implicit)
• To what extent do government policies reflect the provisions of the general comments of the
African Commission concerning women’s human rights?

(vii) Court judgments

• Have the African Charter, the Maputo Protocol, case-law by the African Commission or
Resolutions or General Comments adopted by the African Commission been referred to as an
interpretive source in any judgment by any of the domestic courts? If so, what was the effect on
the judgment?
• Have domestic courts used any provision of the African Charter or the Maputo Protocol as a
basis of a remedy (as self-executing)? If so, describe.

(viii) Awareness and use by civil society

• What is the extent of awareness of the African Charter and the Maputo Protocol among civil
society organisations?
• To what extent have NGOs used the African Charter and the Maputo Protocol in their work?
Advocacy, promotional tools, policy reviews, litigation, law reform, etc. (explicit or implicit?)
Also, do they use concluding observations issued after state reports and other reports or
resolutions of Commission, etc.?
• Have NGOs with observer status submitted shadow reports to the Commission?

(ix) Awareness and use by lawyers and judicial officers (law societies and
other practising lawyers)

• What is the extent of awareness of the African Charter and the Maputo Protocol among
lawyers and the law society?
• To what extent have lawyers used the African Charter and the Maputo Protocol in their
arguments before courts?
• To what extent do judicial officers demonstrate awareness or lack thereof of the African
Charter and the Maputo Protocol?

(x) Higher education and academic writing

• Do the curriculum of law schools and other higher education institutions/ university faculties
include the African Charter and the Maputo Protocol? If so, when was it introduced; what is
its content?
• To what extent do academics (especially in law) refer to or discuss the African Charter and the
Maputo Protocol in academic writing? If so, what views are expressed?
 Impact of the African Charter and Women’s Protocol in selected African states 331

(xi) National human rights institutions (NHRIs, Ombudsman offices, etc.)

• Do these institutions include reference to the African Charter and the Maputo Protocol in their
programmes?
• Do these institutions follow up on the implementation of concluding observations and/or
decisions of the African Commission?
• Are they involved in the submission of state reports to the African Commission?

(xii) State reporting

• Which department(s) is responsible for state reporting under the African Charter and the
Maputo Protocol?
• Describe the process of preparing a report (inclusion of women, civil society; cross-
departmental).
• How many state reports have been presented to the African Commission?
• Were the reports submitted within the time frame? If not, what were the reasons for the delay?
• Who constituted the government delegation during the presentation of the state report? Were
there women? Are concluding observations disseminated (by state, civil society)?
• What were the pertinent concluding observations?
• Has the government taken any steps to give effect to concluding observations? What steps? If
no steps were taken, why not?

(xiii) Communications

• If any communication has been decided against the state, what exposure has been given to this
finding?
• Has the government taken any steps to give effect to this finding?
• If no communication has ever been presented, do NGOs and civil society consider taking cases
to the African Commission? If not, why not?

(xiv) Special mechanisms - promotional visits of the African Commission

• Has a promotional, protective or fact-finding visit by the African Commission taken place to
the country? If so, what has the effect been and has any recommendation been given effect to
by government? Has a special mechanism of the Commission visited the country and made
recommendations to the country concerning women’s human rights? What has its effect been?

(xv) Factors that may impede or enhance the impact of the African Charter,
the Maputo Protocol and the African Commission

• What are the factors that impede or enhanced the ‘impact’ of the African Charter in your
country?
• Consider whether a session of the African Commission has ever taken place in your country,
and, if so, what its role was.
• Consider whether a national has been a member of the African Commission and, if so, what
role this factor played.
• Consider the role of the media.