SYNOPSIS

The challenge of access to justice features prominently where rights of women are concerned. Though national and international legislative framework may offer protection to women’s rights, there may be failure in the legislation to recognize structural inequalities that place women at less than equal footing with men. African norms are characterized by deeply patriarchal values that manifest in most relationships, the effect of which may not adequately addressed legislation. However, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereafter ‘Maputo Protocol’) comes in to alleviate these barriers. Litigation in national courts is one of the ways that the provisions of the Protocol can be realized for it calls on state parties to take specific measures to address existing inequalities. For litigation to result in actual gains for women, it must be undertaken with a creative approach so that the spirit of the Protocol is upheld and the rights are eventually realized. However, in states where the Protocol is yet to be ratified, litigation can be designed to rely on other instruments that uphold its spirit.

Women’s rights litigation as an avenue to realization of the protection offered by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa *Jane Serwanga

The Maputo Protocol takes into consideration special circumstances on the African continent and the effect that these have on the experience of women. It supplements the provisions of the African Charter on Human and Peoples’ Rights (hereafter ACHPR) and accordingly must be hailed for taking a bold step to address the realities in the life of the African women. It offers an explicit definition to discrimination against women; it makes provision for criminalization of violence against women; it calls for elimination of harmful; it promotes equal rights in marriage; it prescribes safe medical abortion services in specified circumstances. Undoubtedly, these very provisions have and will continue to draw resistance from some quarters. This should come as no surprise, given that these Protocol provisions challenge the status quo where its purpose and effect subjugates the lot of women. The Protocol creates an avenue for redress in situations of rights violations. One of the ways this has been done is by the use of litigation. Specifically, reliance on the Protocol in public interest litigation can be used as a tool to offer respite. In this way, the situation of a single woman can, through litigation, be used to seek accountability, offer redress for the individual but also speak to the issue in question as it affects women generally.

As African states commemorate the first decade since the adoption of the Maputo Protocol, it will be useful to consider the potential of litigation in national courts as a tool to realize the spirit of the Protocol. Favorable decisions must be celebrated and lessons drawn from them so as to guide further litigation and inform advocacy. Less than favorable court decisions must also be interrogated and specific gains and lessons teased out. In any event, it must be remembered that generally gains in public interest litigation are not only the final decision, but also in the fact that the decisions often highlight social mischief that can be dealt with in subsequent interventions. This profiling together with post judgment advocacy strategies can create opportunities for change that is in consonance with the spirit of the Maputo Protocol. What follows is a look at select decisions from national courts so that there is an appreciation of the potential that the Protocol holds.

Court upholds customary law that denies women’s rights to succeed to chieftainship Litigation that challenges deep seated cultural norms and practice can be particularly challenging in the quest for realization of Protocol provisions. This is evident in the decision of the Court of Appeal of Lesotho in Masupha v The Senior Resident Magistrate for the Subordinate Court of Berea and Others. This challenged section 10(2) of Lesotho’s Chieftainship Act of 1968, which provides for only male succession to chieftainship. The Constitution on its part prohibits discrimination but permits it in customary matters. The Petitioner instituted the suit after the position of chieftaincy was contested by the Petitioner’s uncle and her half-brother, to her exclusion. As the first born child of her deceased father, (who until his death was the chief), she challenged the action. Her claim was based on the fact that she ought to succeed to chieftainship as the first-born child. Her claim was dismissed and the discriminatory provisions of Lesotho’s Chieftaincy Act upheld. It is notable that Lesotho is party to the Maputo Protocol, which calls for elimination of discrimination against women. The Court of Appeal in dismissing the claim also dismissed the import of regional and international instruments as ‘… aids to interpretation, [and] not the source of rights enforceable by Lesotho citizens.’ It is curious that the court failed to recognize the import of the Maputo Protocol and other instruments that prohibit discrimination. This may be an opportunity to advocate for the alignment of national legislation to regional and international instruments that Lesotho is party to, including the Maputo Protocol. Even though in this case the court was dealing with a deeply entrenched cultural practice, sanctioned even by the statute, it missed an opportunity to pronounce itself on state obligations that arise from these. If it had mooted this point, then it is possible that this would have gone a long way in expanding the space of realization of women’s rights even through other non-litigation strategies.

The Masupha decision marks a departure from the trend elsewhere in Africa. Increasingly, courts have ruled against unfair and discriminatory cultural practices that hold back gender equality as was the case in Botswana where the court in Mmusi and others vs. Attorney General of Botswana (2012) found that customary laws that prioritized inheritance by males worked against the spirit of equality. Reliance was placed on broad equality provisions of the Constitution of Botswana and the ACHPR (for Botswana is not party to the Maputo Protocol) and a decision made to strike down a customary law rule that hitherto denied women the right to inherit the family home. The four daughters who filed the suit alleged that the customary law rule was a violation of their right to equality. Elsewhere, the Supreme Court of Ghana in Mensah v Mensah (2012) relied on among others the provisions of the national Constitution to find that the principle of equality is applicable in cases where of division of matrimonial property upon divorce.

However, it will be noted from the latter two decisions, there was no reliance on the Maputo Protocol. The case of Botswana stems from the fact that Botswana is yet to ratify the Protocol. Still the lesson here to human rights defenders is this; where a state is yet to ratify the Protocol, the case for women’s rights can be advanced in litigation by use of existing national legislation, the ACHPR and international human rights instruments to which the state is a party. Alongside, efforts can be made to make the case for ratification. The situation in Mensah v. Mensah points to a different scenario for it involves a state that is party to the Protocol. The situation highlights the need for creation of awareness of the Protocol among stakeholders. Simplistic as this may seem, it must be done and the potential for its use in litigation should be stressed. However, the question as to whether a state requires domestication of the Protocol before its implementation should also be considered.
Ultimately, claims before national courts should be founded on provisions of national law and complemented by Protocol provisions. In this way, protection offered by the Protocol can be pleaded and argued at the earliest stage. Additionally, in cases where litigation continues beyond national courts to the regional mechanisms, the foundation for use of the Protocol will already have been set.

Court considers the protection to survivors of sexual and gender based violence The all-important issue of sexual and gender based violence together with that of reproductive health rights of women was raised in the Supreme Court of Zimbabwe. It paid cognizance to protection offered by the Maputo Protocol in Mildered Mapingure v. Min of Health and Others (2014). The Petitioner, a survivor of rape presented a claim owing to the lack of due diligence on the part of state officials given the manner they treated her. She sought the assistance of the police and medical personnel so as to prevent conception following the rape attack. However, owing to lack of due diligence on the part of the state officials, the preventive medication was not administered and she conceived. As soon as she learnt of this, she sought termination of pregnancy in line with the Termination of Pregnancy Act. Due to continued failure on part of the same state officials (medical & police) the requisite Court Order that would enable her obtain the termination of pregnancy was obtained rather late in the day. At this point, it was not feasible for the termination to be undertaken. She carried the pregnancy to term. Her claim to the court was first, for damages for pain and suffering arising from the failure to prevent the pregnancy and secondly, maintenance for the child. The Supreme Court noted the special protection offered to survivors of sexual violence under the Maputo Protocol and other instruments. It went on to find that there was indeed lack of due diligence on the part of the state officers in their failure to administer preventive medication. This part of the claim was upheld and damages awarded. However, court even though it noted failure of state officers and though it noted lack of clarity in the Termination of Pregnancy Act, dismissed her claim for maintenance. This decision has been received with a measure of concern. While court made key pronouncements with respect to treatment of survivors of sexual violence, there seems to be hesitation in dealing with the manner in which the termination of pregnancy was dealt with. A reading of the judgment reveals that there was extensive reliance to applicable law, including the Maputo Protocol. Thus it is unclear how certain state officials escaped liability. Still, this very decision points to opportunities for further advocacy and possibly litigation given that the court did point out omissions on the part of the state officers and also pointed to lack of clarity in the Termination of Pregnancy Act.

Realization of rights in the Maputo Protocol can be implemented in part through litigation in national courts. Where courts uphold claims as a result of violations, a strong message is sent out that the provisions of the Protocol are to be upheld. After all, provisions of most national Constitutions echo what is in the Protocol and other international human rights instruments. Litigation must be seen to rely on the complementary role of the national instruments and the Protocol. Where the local legislation is contradiction to the Maputo Protocol, litigation must be designed to challenge domestic legislation, to the extent its result is a violations of Protocol Rights. Litigation can thus be a tool to influence legislative change.
It is upon human rights defenders engaging in this sort of litigation to ensure that the Protocol is not viewed as an instrument for use only before the regional and international bodies. Indeed, it must be viewed as playing a complementary role to the national Constitutions and other substantive law. The task then is to ensure that these broad provisions translate into actual gains from proper interpretation and ultimately successful implementation of orders that are granted by the courts.
 

*Jane Serwanga is an advocate of the High Court of Kenya and is currently a consultant at Equality Now.

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