Juliet Kimotho
2023 marks two decades since the adoption of the Maputo Protocol. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) is arguably the most progressive legally binding instrument on women’s and human rights instruments globally. A total of 44 African countries have signed and ratified it. The Maputo Protocol provides for extensive and progressive women’s rights. These include the right to health and reproduction, inheritance, economic and social welfare, education and training, access to justice and equal protection before the law, and elimination of harmful practices. Reproductive health researcher Anthony Ajayi unpacks the significance of the document in women’s lives over the years.
What does it mean for sexual and reproductive rights?
Articles 2 and 14 made specific provisions to protect the sexual and reproductive rights of women and girls.
Article 2 mandates member countries to enact and implement laws and other measures to curb all forms of discrimination, especially harmful practices that endanger health and general well-being.
Advocacy efforts to end child marriage and female genital cutting are anchored on this specific provision. Such efforts have resulted in 43 African countries now having laws that put the minimum age of marriage at 18 years old or above for both girls and boys. While some of these countries have parental consent exceptions and parallel customary marriage laws, the past ten years have seen more countries remove these exceptions. Also, 22 out of 29 African countries practising female genital cutting now have national laws in place banning the practice.
Article 14 mandates member countries to ensure the right to health of women, including sexual and reproductive health. This includes the right to control fertility, decide whether to have children, the number of children and the spacing of children, and choose any method of contraception.
Has it been effective?
Since the inception of the Maputo Protocol, most African countries have removed user fees for maternal health services in government-owned health facilities. This has increased access to quality maternal healthcare services for marginalised women and girls. As a result, maternal deaths have declined markedly.
More countries have broadened their laws to allow access to safe abortion in cases of sexual assault, rape, incest, life-threatening fetal anomalies, and when a pregnancy endangers the woman’s mental and physical health or her life. Between 2000 and 2021, 22 African countries expanded their legal grounds for abortion. Six – Cape Verde, South Africa, Tunisia, Mozambique, São Tomé and Príncipe (up to 10 weeks of gestation in Angola) – permit abortion at the woman’s request during the first trimester of pregnancy. More countries have developed and launched post-abortion care guidelines to expand access for women and girls.
The success of the Maputo Protocol in protecting and guaranteeing the rights of women and eliminating discrimination is quite remarkable. Where the rights of women and girls are violated, the Maputo Protocol has become an instrument for seeking legal redress and a tool for seeking accountability. It was referenced in these examples:
- A court ruling in December 2020 found that the Kenya government violated several human rights instruments, including the Maputo Protocol, for failing to investigate and prosecute cases of sexual and gender-based violence that happened during the post-election violence of 2007. The government was ordered to pay compensation to four of the survivors, amounting to KSh 4 million (about US$40,000) each.
- In December 2019, the ECOWAS Court of Justice found that the ban on pregnant schoolgirls going to school in Sierra Leone was discriminatory and in violation of girls’ right to education, in breach of Articles 2 and 12 of the Maputo Protocol. Since the ruling, the government of Sierra Leone has lifted the ban.
- Article 13 and 17 of Tanzania’s Marriage Act, which set the minimum age of marriage for girls at 15 years and 18 years for boys, was challenged at the appeal court in 2019. Citing the Maputo Protocol, the court upheld the earlier ruling that marriage under the age of 18 was illegal.
- What have its shortcomings been?
Progress in realising women’s and girls’ rights remains uneven within and between countries. Eleven countries haven’t ratified the protocol. Twenty-four haven’t fulfilled their reporting obligation to the African Commission on Human and Peoples’ Rights. Consequently, discriminatory laws persist. And customary, common and civil laws remain in parallel with constitutional provisions. This creates loopholes for the violation of women’s and girls’ rights.
For example, 11 countries (Cameroon, Seychelles, Sudan, South Africa, Burkina Faso, Gabon, Guinea-Bissau, Mali, Niger, Senegal, and Tanzania) permit girls below 18 years to marry. One member state has no minimum age for marriage. But legal reforms are happening in five of these countries.
There’s been improvement in sexual and reproductive health outcomes. But sexual and gender-based violence, child marriage and female genital cutting remain high in most African countries. Maternal deaths and new HIV transmission have declined. But incidences remain relatively high in several countries.
Young people, particularly girls, bear a disproportionate burden of poor sexual and reproductive health outcomes. This hinders their smooth transition into adulthood and affects their immediate and lifelong health (physical and mental) and socioeconomic wellbeing and empowerment.
What more needs to be done?
More advocacy is needed to ensure:
- the remaining 11 countries ratify the protocol
- countries with reservations about some of the articles in the protocol need to address them
- those who have ratified it fully domesticate and implement its provisions.
Such advocacy should be informed by contextually relevant evidence on sexual and reproductive health, including what works in addressing harmful practices, increasing young people’s access to information and services, and reducing new HIV infections and maternal deaths.
The partnership between all actors working to ensure women’s health and reproductive rights are realised should be reinvigorated and sustained to make certain that gains are consolidated and not reversed.
Entrenching a culture of equity around sexual and reproductive rights will also require tailored engagement with community and religious leaders to build their capacity on matters of sexual and reproductive health. Sustained funding of civil society organisations working to ensure women’s rights is also key, and so is the need to bolster the women’s movement on the continent.
Juliet Kimotho, senior advocacy officer at the African Population and Health Research Center, contributed to this article.
The article first appeared in The Conversation.
