Book Review: The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: A Commentary, edited by Prof. Annika Rudman, Dr. Celestine Nyamu Musembi, and Prof. Trésor Muhindo Makunya, Pretoria, Pretoria University Law Press (9781920538985), 2023, 574 pp.
The Maputo Protocol: A Revolution for Women’s Rights in Africa?
The Heads of State and Government of the African Union adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa in Maputo (the Maputo Protocol) on 11 July 2003. The treaty will mark its 22nd anniversary on July 2025.
The question is whether the Maputo Protocol is a genuine revolutionary landmark for women’s rights in Africa. The answer depends on how we conceive of differences and diversity in Africa, especially normalization of cultural values in particular African communities. This short reflection aims to answer this question based on the commentary of the Maputo Protocol, which is the first book of its kind delving into this human rights instrument, published in Africa by the Pretoria University Law Press in 2023.
Point of Departure
Women are human, and as such, their rights are already protected by previous global and regional human rights treaties, including the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and the African Charter on Human and Peoples’ Rights (ACHPR). The book argues that the Maputo Protocol was adopted because of the inability of these instruments to curb violations of women’s rights in Africa. There was an eventual consensus that new rights must be incorporated, ones which take into account the vulnerabilities of African women within their respective communities so as to release them from inequality, discrimination, and harmful practices. It is a classical but crucial book that helps one better understand the content and scope of the Maputo Protocol, significantly contributing to the dissemination of human rights knowledge in Africa. Importantly, the book also contributes to the very sensitive debate about transforming Africa, with its complex customs and cultural diversity, through innovative legal devices, rules, and mechanisms that are designed to normalize human values across the continent.
From an academic point of view, this is not new. Promoting transformative law to build a more inclusive society for marginalized people is all about legal activism. This approach is at the heart of the Maputo Protocol, and constitutes an international public policy to transform the lives of African women. In my view, the book does not adequately address the legitimacy of this approach in the African context. Yet if transforming Africa through legal devices is quite a normal objective, cautiousness is warranted, as the Maputo Protocol questions fundamental elements of organization and stability of the social order in place of African communities that have been established through centuries-old ancestral and religious practices. Therefore, an alternative reading of the narratives on women’s rights in Africa is necessary in order to read the Maputo Protocol, as it stems from the commentary more critically.
Alternative reading of narratives on women’s rights in Africa
The book gives the impression that the Maputo Protocol is more a product of an international campaign for women’s rights in Africa and across the world, rather than a legal instrument that is a real response to the demands and needs of marginalized African women. It is not clear, from the drafting process, whether African women were consulted or even demanding the kind of change promoted by the Protocol. There is no indication that sociological and anthropological research was conducted in different African States to guarantee the treaty would reflect the interests of those who are concerned, and their respective communities. In this regard, the Maputo Protocol looks like an instrument that seeks to force change where no demand has come from the ground upwards. It is an elitist and bureaucratic law that hangs in the air. Such bureaucratic law is difficult to comply with or apply. Resistance from Mali, for instance, has largely been invoked, and is striking before being outlawed by the African Court on Human and Peoples’ Rights in its judgment on 11 May 2018.1
The book itself points out that cases based on the Maputo Protocol are rare, even twenty years after its adoption. People will continue to live according to their conservative traditions and customs, not caring about the Protocol or simply ignoring its potential to trigger change. We can further see this with respect to practices of bride price across the continent for a man to get the hand of his wife. These practices prevail even in countries such as Uganda, where the Supreme Court held in a judgment, on 6 August 2015, that the payment of bride price is a condition precedent to a valid customary marriage. It also confirmed seeing the refund as a condition precedent to the dissolution of a customary marriage, which has been demanded by a woman’s parents and/or relatives, undermining the dignity and status of women, and, therefore, unconstitutional.2
Another issue of legitimacy relates to the originality of the Maputo Protocol with respect to the new and additional rights it creates for women: reproductive rights, marriage-related rights, inheritance rights, the right to the elimination of traditional and religious harmful practices, the right to a positive cultural context, etc. The commentary does not systematically enforce much attention to these rights in a more critical manner. This is due to the nature of the book and the lack of a comprehensive introduction on the matter. The primary concern is the lack of discussion on differences in Africa: between men and women, and between different African communities. The Protocol aims to normalize women’s rights in Africa by negatively affecting the cultural diversity of the continent, including various communities, based on difference. There is a stereotype that cultural differences automatically translates to inequality against women, and so traditions and customs that embody it must be abolished. This equates to an instrumentalization of the principle of equality, which runs against the African Charter on Human and Peoples’ Rights, which is grounded in a community spirit and of which Article 18, Paragraph 2 protects, especially diversity of African cultural values and traditions (particularly in the family sector). In this sense, there is no continuity between the African Charter and the Maputo Protocol, which is supposed to be complementary to it.
Concluding remarks
Contrary to claims made about the diversity of Africa, the majority of contributors to the edited work are based in South Africa or were educated at South African universities. Moreover, they come from the same common law legal tradition. This is a shortcoming: the book does not encompass the diversity of views from the perspectives of different legal traditions in Africa, notably civil law, customary law, and Islamic laws. It looks as if contributors from the same legal tradition are speaking to themselves from the same framework or model of analysis. Therefore, an important book like the one edited by Maurice Kamto in French, “A Commentary on the African Charter and the Protocol on the African Court on Human and Peoples’ Rights,”3 is not mentioned on the list of previous work of this kind in Africa.
The book notably does not have a concluding chapter. Yet this conclusion is necessary for summarizing the main thoughts and lessons that emanate from the preceding chapters of the book. It could have been a summary for anyone who is not in a position to read the entire commentary. The conclusion could also raise the debate on the future of the Maputo Protocol. Due to its conceptual shortcomings, the Protocol is not at all a revolutionary landmark for women’s rights in Africa. More research and field work needs to be done within African communities in order to gather and analyze information and data from the ground, to see the extent to which the Protocol should be revised and adapted to fit the real African context.
Endnotes
- African Court on Human and Peoples’ Rights. Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v. Republic of Mali. Judgment of May 11, 2018. https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/8dc/052/5f58dc0524fd2724950589.pdf.
- Mifumi (U) Ltd & Others v. Attorney General Kenneth Kakuru. Uganda Supreme Court. https://www.jurisafrica.org/wp-content/uploads/2021/07/pdf_supreme-court-upholds-bride-price.pdf.
- Makau Mutua, ed. La Charte africaine des droits de l’homme et des peuples et le protocole y relatif portant création de la Cour africaine des droits de l’homme. Brussels: Larcier, 2008. https://www.decitre.fr/livres/la-charte-africaine-des-droits-de-l-homme-et-des-peuples-et-le-protocole-y-relatif-portant-creation-de-la-cour-africaine-des-droits-de-l-homme-9782802728696.html.
