DRAFT PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES´ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA
|DRAFT PROTOCOL TO THE AFRICAN CHARTER ON |
HUMAN AND PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA
THE STATES PARTIES TO THIS PROTOCOL:
The States Parties to this Protocol,
CONSIDERING that Article 66 of the African Charter on Human and Peoples' Rights provides for special protocols or agreements, if necessary, to supplement the provisions of the African Charter, and that the Assembly of Heads of State and Government of the Organization of African Unity meeting in its Thirty-first Ordinary Session in Addis Ababa, Ethiopia, in June 1995, endorsed by resolution AHG/Res.240 (XXXI) the recommendation of the African Commission on Human and Peoples' Rights to elaborate a Protocol on the Rights of Women in Africa;
CONSIDERING that Article 2 of the African Charter on Human and Peoples' Rights enshrines the principle of non-discrimination on the grounds of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status;
FURTHER CONSIDERING that Article 18 of the African Charter on Human and Peoples' Rights calls on all States Parties to eliminate every discrimination against women and to ensure the protection of the rights of women as stipulated in international declarations and conventions;
NOTING that Articles 60 and 61 of the African Charter on Human and Peoples' Rights recognise regional and international human rights instruments and African practices consistent with international norms on human and peoples' rights as being important reference points for the application and interpretation of the African Charter;
RECALLING that women's rights have been recognised and guaranteed in all international human rights instruments, notably the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol, the African Charter on the Rights and Welfare of the Child, and all other international and regional conventions and covenants relating to the rights of women as being inalienable, interdependent and indivisible human rights;
NOTING that women's rights and women's essential role in development, have been reaffirmed in the United Nations Plans of Action on the Environment and Development in 1992, on Human Rights in 1993, on Population and Development in 1994 and on Social Development in 1995;
RECALLING ALSO United Nations Security Council’s Resolution 1325 (2000) on the role of Women in promoting peace and security;
REAFFIRMING the principle of promoting gender equality as enshrined in the Constitutive Act of the African Union as well as the New Partnership for Africa’s Development, relevant Declarations, Resolutions and Decisions, which underline the commitment of the African States to ensure the full participation of African women as equal partners in Africa’s development;
FURTHER NOTING that the African Platform for Action and the Dakar Declaration of 1994 and the Beijing Platform for Action of 1995 call on all Member States of the United Nations, which have made a solemn commitment to implement them, to take concrete steps to give greater attention to the human rights of women in order to eliminate all forms of discrimination and of gender-based violence against women;
RECOGNISING the crucial role of women in the preservation of African values based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy;
BEARING IN MIND related Resolutions, Declarations, Recommendations, Decisions, Conventions and other Regional and Sub-Regional Instruments aimed at eliminating all forms of discrimination and at promoting equality between women and men;
CONCERNED that despite the ratification of the African Charter on Human and Peoples' Rights and other international human rights instruments by the majority of States Parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices against women, women in Africa still continue to be victims of discrimination and harmful practices;
FIRMLY CONVINCED that any practice that hinders or endangers the normal growth and affects the physical and psychological development of women and girls should be condemned and eliminated;
DETERMINED to ensure that the rights of women are promoted, realised and protected in order to enable them to enjoy fully all their human rights;
HAVE AGREED AS FOLLOWS:
Article 1: Definitions
For the purpose of the present Protocol:
a) "African Charter" means the African Charter on Human and Peoples' Rights;
b) "African Commission" means the African Commission on Human and Peoples' Rights;
c) "Assembly" means the Assembly of Heads of State and Government of the African Union;
d) “AU” means the African Union;
e) ‘‘Constitutive Act’’ means the Constitutive Act of the African Union;
f) "Discrimination against women" means any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life;
g) "Harmful Practices" means all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity;
h) ‘‘NEPAD’’ means the New Partnership for Africa’s Development established by the Assembly;
i) "States Parties" means the States Parties to this Protocol;
j) "Violence against women" means all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war;
k) “Women” means persons of female gender, including girls;
Article 2: Elimination of Discrimination Against Women
1. States Parties shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures. In this regard they shall:
a) include in their national constitutions and other legislative instruments, if not already done, the principle of equality between women and men and ensure its effective application;
b) enact and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women;
c) integrate a gender perspective in their policy decisions, legislation, development plans, programmes and activities and in all other spheres of life;
d) take corrective and positive action in those areas where discrimination against women in law and in fact continues to exist;
e) support the local, national, regional and continental initiatives directed at eradicating all forms of discrimination against women.
2. States Parties shall commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.
Article 3: Right to Dignity
1. Every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights;
2. Every woman shall have the right to respect as a person and to the free development of her personality;
3. States Parties shall adopt and implement appropriate measures to prohibit any exploitation or degradation of women;
4. States Parties shall adopt and implement appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence.
Article 4: The Rights to Life, Integrity and Security of the Person
1. Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.
2. States Parties shall take appropriate and effective measures to:
a) enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public;
b) adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women;
c) identify the causes and consequences of violence against women and take appropriate measures to prevent and eliminate such violence;
d) actively promote peace education through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women;
e) punish the perpetrators of violence against women and implement programmes for the rehabilitation of women victims;
f) establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women;
g) prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk;
h) prohibit all medical or scientific experiments on women without their informed consent;
i) provide adequate budgetary and other resources for the implementation and monitoring of actions aimed at preventing and eradicating violence against women;
j) ensure that, in those countries where the death penalty still exists, not to carry out death sentences on pregnant or nursing women 1.
k) ensure that women and men enjoy equal rights in terms of access to refugee status, determination procedures and that women refugees are accorded the full protection and benefits guaranteed under international refugee law, including their own identity and other documents;
Article 5: Elimination of Harmful Practices
States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including:
a) creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes;
b) prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them;
c) provision of necessary support to victims of harmful practices through basic services such as health services, legal and judicial support, emotional and psychological counselling as well as vocational training to make them self-supporting;
d) protection of women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance.
Article 6: Marriage
States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall enact appropriate national legislative measures to guarantee that:
a) no marriage shall take place without the free and full consent of both parties;
b) the minimum age of marriage for women shall be 18 years;2
c) monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships are promoted and protected;
d) every marriage shall be recorded in writing and registered in accordance with national laws, in order to be legally recognised 3 ;
e) the husband and wife shall, by mutual agreement, choose their matrimonial regime and place of residence;
f) a married woman shall have the right to retain her maiden name, to use it as she pleases, jointly or separately with her husband's surname;
g) a woman shall have the right to retain her nationality or to acquire the nationality of her husband;
h) a woman and a man shall have equal rights, with respect to the nationality of their children except where this is contrary to a provision in national legislation or is contrary to national security interests 4 ;
i) a woman and a man shall jointly contribute to safeguarding the interests of the family, protecting and educating their children;
j) during her marriage, a woman shall have the right to acquire her own property and to administer and manage it freely.
Article 7: Separation, Divorce and Annulment of Marriage
States Parties shall enact appropriate legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage. In this regard, they shall ensure that:
a) separation, divorce or annulment of a marriage shall be effected by judicial order; 5
b) women and men shall have the same rights to seek separation, divorce or annulment of a marriage;
c) in case of separation, divorce or annulment of marriage, women and men shall have reciprocal rights and responsibilities towards their children. In any case, the interests of the children shall be given paramount importance;
d) in case of separation, divorce or annulment of marriage, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage 6 .
Article 8: Access to Justice and Equal Protection before the Law
Women and men are equal before the law and shall have the right to equal protection and benefit of the law. States Parties shall take all appropriate measures to ensure:
a) effective access by women to judicial and legal services, including legal aid;
b) support to local, national, regional and continental initiatives directed at providing women access to legal services, including legal aid;
c) the establishment of adequate educational and other appropriate structures with particular attention to women and to sensitise everyone to the rights of women;
d) that law enforcement organs at all levels are equipped to effectively interpret and enforce gender equality rights;
e) that women are represented equally in the judiciary and law enforcement organs;
f) reform of existing discriminatory laws and practices in order to promote and protect the rights of women.
Article 9: Right to Participation in the Political and Decision-Making Process
1. States Parties shall take specific positive action to promote participative governance and the equal participation of women in the political life of their countries through affirmative action, enabling national legislation and other measures to ensure that:
a) women participate without any discrimination in all elections;
b) women are represented equally at all levels with men in all electoral processes;
c) women are equal partners with men at all levels of development and implementation of State policies and development programmes .
2. States Parties shall ensure increased and effective representation and participation of women at all levels of decision-making.
Article 10: Right to Peace
1. Women have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace.
2. States Parties shall take all appropriate measures to ensure the increased participation of women:
a) in programmes of education for peace and a culture of peace;
b) in the structures and processes for conflict prevention, management and resolution at local, national, regional, continental and international levels;
c) in the local, national, regional, continental and international decision making structures to ensure physical, psychological, social and legal protection of asylum seekers, refugees, returnees and displaced persons, in particular women;
d) in all levels of the structures established for the management of camps and settlements for asylum seekers, refugees, returnees and displaced persons, in particular, women;
e) in all aspects of planning, formulation and implementation of post conflict reconstruction and rehabilitation.
3. States Parties shall take the necessary measures to reduce military expenditure significantly in favour of spending on social development in general, and the promotion of women in particular.
Article 11: Protection of Women in Armed Conflicts
1. States Parties undertake to respect and ensure respect for the rules of international humanitarian law applicable in armed conflict situations which affect the population, particularly women.
2. States Parties shall, in accordance with the obligations incumbent upon them under the international humanitarian law, protect civilians including women, irrespective of the population to which they belong, in the event of armed conflict.
3. States Parties undertake to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction 7.
4. States Parties shall take all necessary measures to ensure that no child, especially girls under 18 years of age, take a direct part in hostilities and that no child is recruited as a soldier.
Article 12: Right to Education and Training
1. States Parties shall take all appropriate measures to:
a) eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training;
b) eliminate all stereotypes in textbooks, syllabuses and the media, that perpetuate such discrimination;
c) protect women, especially the girl-child from all forms of abuse, including sexual harassment in schools and other educational institutions and provide for sanctions against the perpetrators of such practices;
d) provide access to counselling and rehabilitation services to women who suffer abuses and sexual harassment;
e) integrate gender sensitisation and human rights education at all levels of education curricula including teacher training.
2. States Parties shall take specific positive action to:
a) promote literacy among women;
b) promote education and training for women at all levels and in all disciplines, particularly in the fields of science and technology;
c) promote the enrolment and retention of girls in schools and other training institutions and the organisation of programmes for women who leave school prematurely.
Article 13: Economic and Social Welfare Rights
States Parties shall adopt and enforce legislative and other measures to guarantee women equal opportunities in work and career advancement and other economic opportunities. In this respect, they shall:
a) promote equality of access to employment;
b) promote the right to equal remuneration for jobs of equal value for women and men;
c) ensure transparency in recruitment, promotion and dismissal of women and combat and punish sexual harassment in the workplace;
d) guarantee women the freedom to choose their occupation, and protect them from exploitation by their employers violating and exploiting their fundamental rights as recognised and guaranteed by conventions, laws and regulations in force;
e) create conditions to promote and support the occupations and economic activities of women, in particular, within the informal sector;
f) establish a system of protection and social insurance for women working in the informal sector and sensitise them to adhere to it;
g) introduce a minimum age for work and prohibit the employment of children below that age, and prohibit, combat and punish all forms of exploitation of children, especially the girl-child;
h) take the necessary measures to recognise the economic value of the work of women in the home;
i) guarantee adequate and paid pre and post-natal maternity leave in both the private and public sectors;
j) ensure the equal application of taxation laws to women and men;
k) recognise and enforce the right of salaried women to the same allowances and entitlements as those granted to salaried men for their spouses and children;
l) recognise that both parents bear the primary responsibility for the upbringing and development of children and that this is a social function for which the State and the private sector have secondary responsibility;
m) take effective legislative and administrative measures to prevent the exploitation and abuse of women in advertising and pornography.
Article 14: Health and Reproductive Rights
1. States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes:
a) the right to control their fertility 8 ;
b) the right to decide whether to have children, the number of children and the spacing of children 9 ;
c) the right to choose any method of contraception; 10 ;
d) the right to self protection and to be protected against sexually transmitted infections, including HIV/AIDS;
e) the right to be informed on one's health status and on the health status of one's partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognised standards and best practices;
g) the right to have family planning education.
2. States Parties shall take all appropriate measures to:
a) provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas;
b) establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding;
c) protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the unborn child.11
Article 15: Right to Food Security
States Parties shall ensure that women have the right to nutritious and adequate food. In this regard, they shall take appropriate measures to:
a) provide women with access to clean drinking water, sources of domestic fuel, land, and the means of producing nutritious food;
b) establish adequate systems of supply and storage to ensure food security.
Article 16: Right to Adequate Housing
Women shall have the right to equal access to housing and to acceptable living conditions in a healthy environment. To ensure this right, States Parties shall grant to women, whatever their marital status, access to adequate housing.
Article 17: Right to Positive Cultural Context
1. Women shall have the right to live in a positive cultural context and to participate at all levels in the determination of cultural policies.
2. States Parties shall take all appropriate measures to enhance the participation of women in the formulation of cultural policies at all levels.
Article 18: Right to a Healthy and Sustainable Environment
1. Women shall have the right to live in a healthy and sustainable environment.
2. States Parties shall take all appropriate measures to:
a) ensure greater participation of women in the planning, management and preservation of the environment and the sustainable use of natural resources at all levels;
b) promote research and investment in new and renewable energy sources and appropriate technologies, including information technologies and facilitate women's access to, and participation in their control;
c) protect and enable the development of women’s indigenous knowledge systems;
c) regulate the management, processing, storage and disposal of domestic waste;
d) ensure that proper standards are followed for the storage, transportation and disposal of toxic waste.
Article 19: Right to Sustainable Development
Women shall have the right to fully enjoy their right to sustainable development. In this connection, the States Parties shall take all appropriate measures to:
a) introduce the gender perspective in the national development planning procedures;
b) ensure participation of women at all levels in the conceptualisation, decision-making, implementation and evaluation of development policies and programmes;
c) promote women’s access to and control over productive resources such as land and guarantee their right to property;
d) promote women’s access to credit, training, skills development and extension services at rural and urban levels in order to provide women with a higher quality of life and reduce the level of poverty among women;
e) take into account indicators of human development specifically relating to women in the elaboration of development policies and programmes; and
f) ensure that the negative effects of globalisation and any adverse effects of the implementation of trade and economic policies and programmes are reduced to the minimum for women.
Article 20: Widows' Rights
States Parties shall take appropriate legal measures to ensure that widows enjoy all human rights through the implementation of the following provisions:
a) that widows are not subjected to inhuman, humiliating or degrading treatment;
b) a widow shall automatically become the guardian and custodian of her children, after the death of her husband, unless this is contrary to the interests and the welfare of the children; 12
c) a widow shall have the right to remarry, and in that event, to marry the person of her choice.
Article 21: Right to Inheritance
1. A widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it.13
2. Women and men shall have the right to inherit, in equitable shares, their parents' properties.
Article 22 : Special Protection of Elderly Women
The States Parties undertake to:
a) provide protection to elderly women and take specific measures commensurate with their physical, economic and social needs as well as their access to employment and professional training;
b) ensure the right of elderly women to freedom from violence, including sexual abuse, discrimination based on age and the right to be treated with dignity.
Article 23: Special Protection of Women with Disabilities
The States Parties undertake to:
a) ensure the protection of women with disabilities and take specific measures commensurate with their physical, economic and social needs to facilitate their access to employment, professional and vocational training as well as their participation in decision-making;
b) ensure the right of women with disabilities to freedom from violence, including sexual abuse, discrimination based on disability and the right to be treated with dignity.
Article 24: Special Protection of Women in Distress
The States Parties undertake to:
a) ensure the protection of poor women and women heads of families including women from marginalized population groups and provide the an environment suitable to their condition and their special physical, economic and social needs;
b) ensure the right of pregnant or nursing women or women in detention by providing them with an environment which is suitable to their condition and the right to be treated with dignity.
Article 25: Remedies
States Parties shall undertake to:
a) provide for appropriate remedies to any woman whose rights or freedoms, as herein recognised, have been violated;
b) ensure that such remedies are determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by law.
Article 26: Implementation and Monitoring
1. States Parties shall ensure the implementation of this Protocol at national level, and in their periodic reports submitted in accordance with Article 62 of the African Charter, indicate the legislative and other measures undertaken for the full realisation of the rights herein recognised.
2. States Parties undertake to adopt all necessary measures and in particular shall provide budgetary and other resources for the full and effective implementation of the rights herein recognised.
Article 27: Interpretation
The African Court on Human and Peoples' Rights shall be seized with matters of interpretation arising from the application or implementation of this Protocol.
Article 28: Signature, Ratification and Accession
1. This Protocol shall be open for signature, ratification and accession by the States Parties, in accordance with their respective constitutional procedures.
2. The instruments of ratification or accession shall be deposited with the Chairperson of the Commission of the AU.
Article 29: Entry into Force
1. This Protocol shall enter into force thirty (30) days after the deposit of the fifteenth (15) instrument of ratification.
2. For each State Party that accedes to this Protocol after its coming into force, the Protocol shall come into force on the date of deposit of the instrument of accession.
3. The Chairperson of the Commission of the AU shall notify all Member States of the coming into force of this Protocol.
Article 30: Amendment and Revision
1. Any State Party may submit proposals for the amendment or revision of this Protocol.
2. Proposals for amendment or revision shall be submitted, in writing, to the Chairperson of the Commission of the AU who shall transmit the same to the States Parties within thirty (30) days of receipt thereof.
3. The Assembly, upon advice of the African Commission, shall examine these proposals within a period of one (1) year following notification of States Parties, in accordance with the provisions of paragraph 2 of this article.
4. Amendments or revision shall be adopted by the Assembly by a simple majority.
5. The amendment shall come into force for each State Party, which has accepted it thirty (30) days after the Chairperson of the Commission of the AU has received notice of the acceptance.
Article 31: Status of the Present Protocol
None of the provisions of the present Protocol shall affect more favourable provisions for the realisation of the rights of women contained in the national legislation of States Parties or in any other regional, continental or international conventions, treaties or agreements applicable in these States Parties.
Article 32: Transitional Provisions
Pending the establishment of the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights shall be the seized with matters of interpretation arising from the application and implementation of this Protocol.
1 South Africa entered a reservation. Botswana entered a reservation on the notion of nursing women.
2 Reservation of Tunisia and Sudan.
3 Reservation by Kenya, Namibia and South Africa.
4 Reservation by South Africa and Zambia
5 Reservation by Egypt, Libya and Sudan
6 Egypt entered a reservation.
7 Libya entered a reservation.
8 Sudan entered a reservation
9 Burundi,, Senegal and Sudan entered a reservation.
10 Sudan entered a reservation.
11 Libya, Rwanda and Senegal entered a reservation.
12 Egypt and Sudan entered reservation.
13 Egypt entered reservation.