Protocol to the African Charter on Human and Peoples’ Rights
Author: Womens UN Report Network
Date: January 15, 2006
AFRICA: AFRICAN PROTOCOL ON RIGHTS OF WOMEN ENTERS INTO FORCE – FOR IMMEDIATE RELEASE – October 27, 2005
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.
- include in their national constitutions and other legislative
- 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;
- enact and enforce laws to prohibit all forms of violence against women
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.
- eliminate all forms of discrimination against women and guarantee equal
- 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.
- provide adequate, affordable and accessible health services, including
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.
- ensure greater participation of women in the planning, management and
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
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