Protocol to the
African Charter on Human and Peoples' Rights on the Rights of Women in Africa
[français]
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:
- "African Charter" means the African Charter
on Human and Peoples' Rights;
- "African Commission" means the African
Commission on Human and Peoples' Rights;
- "Assembly" means the Assembly of Heads of
State and Government of the African Union;
- "AU" means the African Union;
- "Constitutive Act" means the Constitutive Act
of the African Union;
- "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;
- "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;
- "NEPAD" means the New Partnership for
Africa's Development established by the Assembly;
- "States Parties" means the States Parties to
this Protocol;
- "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;
- "Women" means persons of female gender,
including girls;
Article 2 :
Elimination of Discrimination Against Women
- States Parties shall combat all forms of discrimination
against women through appropriate legislative, institutional and other
measures. In this regard they shall:
- 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;
- 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;
- integrate a gender
perspective in their policy decisions, legislation, development plans,
programmes and activities and in all other spheres of life;
- take corrective and
positive action in those areas where discrimination against women in law
and in fact continues to exist;
- support the local,
national, regional and continental initiatives directed at eradicating
all forms of discrimination against women.
- 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
- 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;
- Every woman shall have the right to respect as a person
and to the free development of her personality;
- States Parties shall adopt and implement appropriate
measures to prohibit any exploitation or degradation of women;
- 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
- 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.
- States Parties shall take appropriate and effective
measures to:
- 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;
- 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;
- identify the causes and
consequences of violence against women and take appropriate measures to
prevent and eliminate such violence;
- 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;
- punish the perpetrators
of violence against women and implement programmes for the rehabilitation
of women victims;
- establish mechanisms
and accessible services for effective information, rehabilitation and
reparation for victims of violence against women;
- prevent and condemn
trafficking in women, prosecute the perpetrators of such trafficking and
protect those women most at risk;
- prohibit all medical or
scientific experiments on women without their informed consent;
- provide adequate
budgetary and other resources for the implementation and monitoring of
actions aimed at preventing and eradicating violence against women;
- ensure that, in those
countries where the death penalty still exists, not to carry out death
sentences on pregnant or nursing women.
- 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:
- creation of public awareness in all sectors of society
regarding harmful practices through information, formal and informal
education and outreach programmes;
- 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;
- 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;
- 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:
- no marriage shall take place without the free and full
consent of both parties;
- the minimum age of marriage for women shall be 18
years;
- 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;
- every marriage shall be recorded in writing and
registered in accordance with national laws, in order to be legally
recognised;
- the husband and wife shall, by mutual agreement, choose
their matrimonial regime and place of residence;
- 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;
- a woman shall have the right to retain her nationality
or to acquire the nationality of her husband;
- 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;
- a woman and a man shall jointly contribute to
safeguarding the interests of the family, protecting and educating their
children;
- 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:
- separation, divorce or annulment of a marriage shall be
effected by judicial order;
- women and men shall have the same rights to seek
separation, divorce or annulment of a marriage;
- 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;
- 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.
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:
- effective access by women to judicial and legal
services, including legal aid;
- support to local, national, regional and continental
initiatives directed at providing women access to legal services,
including legal aid;
- the establishment of adequate educational and other
appropriate structures with particular attention to women and to sensitise
everyone to the rights of women;
- that law enforcement organs at all levels are equipped
to effectively interpret and enforce gender equality rights;
- that women are represented equally in the judiciary and
law enforcement organs;
- 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
- 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:
- women participate
without any discrimination in all elections;
- women are represented
equally at all levels with men in all electoral processes;
- women are equal
partners with men at all levels of development and implementation of
State policies and development programmes .
- States Parties shall ensure increased and effective
representation and participation of women at all levels of
decision-making.
Article 10 : Right
to Peace
- Women have the right to a peaceful existence and the
right to participate in the promotion and maintenance of peace.
- States Parties shall take all appropriate measures to
ensure the increased participation of women:
- in programmes of
education for peace and a culture of peace;
- in the structures and
processes for conflict prevention, management and resolution at local,
national, regional, continental and international levels;
- 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;
- 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;
- in all aspects of
planning, formulation and implementation of post conflict reconstruction
and rehabilitation.
- 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
- 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.
- 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.
- 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.
- 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
- States Parties shall take all appropriate measures to:
- eliminate all forms of
discrimination against women and guarantee equal opportunity and access
in the sphere of education and training;
- eliminate all
stereotypes in textbooks, syllabuses and the media, that perpetuate such
discrimination;
- 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;
- provide access to
counselling and rehabilitation services to women who suffer abuses and
sexual harassment;
- integrate gender
sensitisation and human rights education at all levels of education
curricula including teacher training.
- States Parties shall take specific positive action to:
- promote literacy among
women;
- promote education and
training for women at all levels and in all disciplines, particularly in
the fields of science and technology;
- 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:
- promote equality of access to employment;
- promote the right to equal remuneration for jobs of
equal value for women and men;
- ensure transparency in recruitment, promotion and
dismissal of women and combat and punish sexual harassment in the
workplace;
- 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;
- create conditions to promote and support the
occupations and economic activities of women, in particular, within the
informal sector;
- establish a system of protection and social insurance
for women working in the informal sector and sensitise them to adhere to
it;
- 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;
- take the necessary measures to recognise the economic
value of the work of women in the home;
- guarantee adequate and paid pre and post-natal maternity
leave in both the private and public sectors;
- ensure the equal application of taxation laws to women
and men;
- 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;
- 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;
- take effective legislative and administrative measures
to prevent the exploitation and abuse of women in advertising and
pornography.
Article 14 : Health
and Reproductive Rights
- States Parties shall ensure that the right to health of
women, including sexual and reproductive health is respected and promoted.
This includes:
- the right to control
their fertility;
- the right to decide
whether to have children, the number of children and the spacing of
children;
- the right to choose any
method of contraception;
- the right to self protection
and to be protected against sexually transmitted infections, including
HIV/AIDS;
- 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;
- the right to have
family planning education.
- States Parties shall take all appropriate measures to:
- provide adequate,
affordable and accessible health services, including information,
education and communication programmes to women especially those in rural
areas;
- establish and
strengthen existing pre-natal, delivery and post-natal health and
nutritional services for women during pregnancy and while they are
breast-feeding;
- 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 foetus.
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:
- provide women with access to clean drinking water,
sources of domestic fuel, land, and the means of producing nutritious
food;
- 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
- Women shall have the right to live in a positive
cultural context and to participate at all levels in the determination of
cultural policies.
- 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
- Women shall have the right to live in a healthy and
sustainable environment.
- States Parties shall take all appropriate measures to:
- ensure greater
participation of women in the planning, management and preservation of
the environment and the sustainable use of natural resources at all
levels;
- 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;
- protect and enable the
development of women's indigenous knowledge systems;
- (c. sic.) regulate the
management, processing, storage and disposal of domestic waste;
- (d. sic.) 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:
- introduce the gender perspective in the national
development planning procedures;
- ensure participation of women at all levels in the
conceptualisation, decision-making, implementation and evaluation of
development policies and programmes;
- promote women's access to and control over productive
resources such as land and guarantee their right to property;
- 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;
- take into account indicators of human development
specifically relating to women in the elaboration of development policies
and programmes; and
- 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:
- that widows are not subjected to inhuman, humiliating
or degrading treatment;
- 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;
- a widow shall have the right to remarry, and in that
event, to marry the person of her choice.
Article 21 : Right
to Inheritance
- 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.
- 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:
- 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;
- 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:
- 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;
- 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:
- 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;
- 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:
- provide for appropriate remedies to any woman whose
rights or freedoms, as herein recognised, have been violated;
- 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
- 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.
- 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
- This Protocol shall be open for signature, ratification
and accession by the States Parties, in accordance with their respective
constitutional procedures.
- The instruments of ratification or accession shall be
deposited with the Chairperson of the Commission of the AU.
Article 29 : Entry
into Force
- This Protocol shall enter into force thirty (30) days
after the deposit of the fifteenth (15) instrument of ratification.
- 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.
- 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
- Any State Party may submit proposals for the amendment
or revision of this Protocol.
- 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.
- 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.
- Amendments or revision shall be adopted by the Assembly
by a simple majority.
- 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.
Adopted by the 2nd Ordinary Session of the Assembly of the Union
Maputo, 11 July 2003