The African Women's Protocol and HIV : delineating the African Commission's General Comment on articles 14(1)(d) and (e) of the Protocol

Abstract

Articles 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa specifically provide for women’s sexual and reproductive health rights in the context of HIV. In spite of this unique attribute, the provisions themselves are ambiguous and require further elaboration in order to give effect to their meaning. The article therefore builds upon the recent adoption of a General Comment by the African Commission on Human and Peoples’ Rights which seeks to clarify the content of the rights set out in articles 14(1)(d) and (e) of the Protocol. The article aims to provide an expansive and purposive meaning to the above-mentioned articles, and also sets out the research and thinking that went into the drafting of the General Comment prior to its adoption. In highlighting the above, the article is structured as follows: First, it provides an introductory overview of the African Women’s Protocol in the context of women’s sexual and reproductive health. Second, the article motivates why it is crucial to have a strong legal framework on women’s rights in the context of HIV, by taking into account the actual realities faced by African women and the limitations of the current legal framework in addressing such realities. Third, the article examines the need for the adoption of the General Comment as opposed to a resolution or guidelines, as has often been the practice of the African Commission. Lastly, the article sets out the specific state obligations arising out of articles 14(1)(d) and (e), which were drafted through guidance from international best practices and standards whilst also bearing in mind the practical difficulties facing women in the African context.