The gender responsiveness of the African commission on human and peoples’ rights

Abstract

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) provides extensive protection to women’s rights concerns. Through its provisions, it exhibits an African fingerprint that engenders its prospects of redressing the key concerns women in Africa face. Yet, the African human rights system is characterised by a significant schism between its normative robustness, on the one hand, and the poor situation of women’s rights, on the other. Using the yardstick of ‘gender responsiveness’, this thesis accordingly examines the role played by the African Commission on Human and Peoples’ Rights (African Commission), a key African Union human rights body, in redressing this discrepancy. The concept ‘gender responsiveness’, defined as the extent to which norms and procedures effectively address the main concerns of women in Africa, is in this thesis for the first time used as the framework of analysis for an African human rights institution. The concept is understood as comprising four elements: the imperative of substantive equality in favour of women; the necessity for women’s inclusion; the recognition of women’s intersectional identities; and the need for a contextual African response to women’s issues. Diverse and overlapping factors influence the extent of the Commission’s gender responsiveness. For instance, this thesis finds that before the entry of the Maputo Protocol, the Commission’s outputs were less gender responsive, as the African Charter on Human and Peoples’ Rights offers scant normative prospects to the redress of women’s rights violations. Accordingly, the Commission has taken to rectifying this initial normative lapse through the development of an elaborate canvas of women’s rights norms as exemplified by its involvement in the development of the Maputo Protocol, and in the adoption of soft law instruments such as General Comments and guidelines. At the same time, this normative strength fails to improve the situation of women’s rights in Africa. While this failure is not solely attributable to the Commission, this thesis finds that the Commission does not pay equal attention in the popularisation and enforcement of women’s rights laws and standards thereby heightening the de jure and de facto inconsistency complained of. The thesis finds that while there is a progressive increase in attention to women’s rights concerns, the Commission’s endeavours infrequently resulted in substantive equality. In particular, the Commission greatly underutilises its protective mandate to advance women’s rights. Women’s rights adjudication is minimal and has failed to lead to the transformation of women’s lived realities. This thesis also finds that, while the Commission develops norms that recognise women’s intersectional identities, in practice it fails to apply these norms towards alleviating women’s vulnerabilities that result in intersectional discrimination. Women’s inclusion at the Commission has delivered mixed results. The Commission’s favourable gender composition has failed to bring about significantly enhanced gender responsiveness. Conversely, NGOs exerted far-reaching influence on the Commission’s promotional mandate, and through their inclusion contributed to women-focused outcomes, such as General Comments. African Union human rights treaties are premised on the promise of delivering human rights in an autochthonous manner. This thesis finds that the Commission often recognises the concerns that women in Africa face, but does not as frequently address itself to the enhancement of the cultural context, and the related issue of the legitimacy of women’s human rights in Africa. In its overall assessment of the Commission’s execution of its mandate, the study reveals a progressive trend in the Commission’s endeavours towards the greater protection and promotion of women’s rights, particularly when contrasted to its earlier days. However, serious shortcomings and missed opportunities prevented the Commission from having achieved a more favourable impact. To the extent that the Commission’s practice does not reveal a gender responsive approach, the study examines the potential and makes recommendations towards improving gender responsiveness in the future. Drawing on the findings and emerging questions in this study, areas of further research are identified.