WUNRN
AFRICA - USING THE MAPUTO PROTOCOL
TO ADDRESS CHILD MARRIAGE
Direct Link to the 33-Page MAPUTO
PROTOCOL:
Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Women in Africa
Girls Not Brides
Kavinya Makau is Programme Officer at Equality Now’s Nairobi Office and Coordinator of the Solidarity for African Women’s Rights (SOAWR) Campaign. To mark the 10th anniversary of the adoption of the Maputo Protocol, Kavinya spoke to Girls Not Brides about how African civil society can make the most out of this ground-breaking Protocol and its implications for efforts to address child marriage.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol, is a progressive legal instrument that gives a diverse range of rights to African women and girls.
The Protocol was adopted by the African Union (AU) in Maputo, Mozambique, on 11 July 2003. It came into force in November 2005 after it was ratified by 15 AU member states. This is the shortest period from adoption to entry into force of any AU Protocol or Charter.
The Maputo Protocol was born of an African-led and African-driven process. It is progressive because it captures the challenges that African women and girls face everyday. For example, in a continent where women have experienced political volatility and conflict, Article 10 of the Protocol enshrines a woman’s right to live in peace, and the right to participate in the promotion and maintenance of peace. Article 15 talks about women’s right to food security, a huge issue on our continent.
The Protocol’s provisions are diverse. It includes protections for elderly women, women living with disabilities and women living with HIV/AIDS. It also explicitly addresses issues such as violence against women in Article 4 and the right of girls and women to access sexual and reproductive health services, including safe abortion care. These last two are rights that aren’t explicitly mentioned in the Protocol’s international counterpart, The Convention on the Elimination of Discrimination Against Women (CEDAW).
The Protocol also goes further by giving tips to governments on how to breathe life into its provisions. For example, in Article 5 on the elimination of harmful traditional practices, States are urged to take necessary legislative and other measures to address these, including public awareness campaigns in all sectors of society and the provision of comprehensive support for victims.
The Protocol is very specific on this issue. Article 6(c) states that the minimum age of marriage is 18, which effectively rules out the practice of child marriage.
Article 6(a) also states that no marriage should take place without the free and full consent of both parties. When one or both parties is under 18, their circumstances may dictate that they are not in a position to give consent, which is why we assert that child marriage cannot be free and consensual.
It is important to emphasise that child marriage is not something that you look at in a vacuum. It is connected to many other issues and must also be considered in the context of other articles that appear in the Protocol. The preamble of the Protocol is very clear 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.” Article 2 goes further to say that states have a duty to eliminate all forms of discrimination against women.
When someone enters into child marriage, it has serious implications for their education. Article 12 requires that States ensure that women and girls have full access to education and training opportunities. We have to ask ourselves, if someone enters into marriage as a child, are they able to access these opportunities?
What is more, how can child brides participate in political and decision-making spaces, a right that is listed under Article 9? How can they negotiate their health and reproductive rights?
The Maputo Protocol explicitly addresses the issue of culture. It does not deny the importance or relevance of culture in our society, rather Article 17 obliges States to ensure the right of women to live in a “positive cultural context”.
Child marriage stems from culture but culture is not static. Culture evolves and culture takes into consideration our current realities. What is our current reality in Africa today? We are building societies where girls and women are able to participate in all spheres of life – political, social, economic. To do that effectively, you have to do away with the practices – like child marriage – that cause them harm. Therefore, The Maputo Protocol in Article 17 invalidates the argument that child marriage is a cultural practice that we cannot do anything about.
It’s important to remember that legal instruments like the Maputo Protocol mean nothing unless they’re domesticated and fully implemented. Civil society has such a big role to play in keeping governments on their toes and making sure that the protections enshrined in the Protocol are enjoyed by the women who need them the most.
Once States ratify the Protocol, they are obliged to integrate it into national law and policies – in other words to make it accessible to women in their country and to ensure that it addresses the challenges that they face. Even if they are just signatories, they have an obligation not to go against the spirit of the Protocol. There’s no excuse for inaction. Indeed, the Maputo Protocol is unique in that it gives governments specific tips on how to implement it. In reality, however, there’s a disconnect between the Protocol and what is happening on the ground.
Civil society groups have a real role to play in holding governments to account on their obligations. One way is to engage decision makers, to nurture relationships with people at the highest echelons of government, and to constantly remind them of their obligations under the Protocol and discuss how they can implement them.
Strategic litigation is another option for civil society. In other words, instituting legal processes, both nationally and at the regional level, seeking interpretation on specific provisions of the Protocol. The decisions, if positive, can be used as a basis to push for changes in legislation or policy. I would encourage civil society groups to seek out collaborations with organisations that have that kind of legal expertise as it can be very useful in advocacy campaigns.
Finally, I would urge civil society groups to consider how to get involved in shadow reporting processes. If your government is going to report to the African Commission on its compliance with treaties like the Maputo Protocol, find out how you can engage the government, the commission and other civil society organisations to ensure that the matters you want highlighted, like child marriage, are given due attention.
SOAWR is a coalition of 43 organisations across 23 African countries.
Some of the coalition’s achievements are: