BRIEFING TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON
JUSTICE AND CONSTITUTIONAL DEVELOPMENT BY AMBASSADOR JNK
MAMABOLO, DEPUTY DIRECTOR-GENERAL:AFRICA

THE DRAFT PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND
PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA

The Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa must be seen against the background from which it emanates. Africa is a rich mixture of historical, social, cultural and religious practices. It is these ancient practices that have dominated the lives of its people in rural villages and in urban communities, giving rise to their particular identities. As the world becomes a global village, and as first world values encroach especially on developing countries, the people of these developing countries see their interwoven web of historical, cultural, social and religious norms and practices torn apart. As the threads of their ancient practices become unwoven by modern conceptualisations of democracy, human rights, economic rights, etc. there is bound to be fear and resistance to this change, which undermines the very fabric of their everyday lives. Central to this fear of change, is the elevated role of women in the family and in the community, not as subservient creatures created from the rib of man to serve man, but rather as human beings - equal and integral partners of man in the human race.

The Protocol before you represents a strand of the web that covers Africa, and also other developing nations, which is becoming unraveled. We in Africa, through the African Union, have decided that the web should be untangled - slowly but surely, to ensure that Africans move towards a culture of democracy and human rights for all. A culture that will be applicable to all African states and their people.

In doing so we must take cognizance of the fact that not all Africans will allow or accept that generations of historical, cultural, social and especially religious beliefs, be swept away by a legal Protocol, even if the eventual outcome of the Protocol will be for the common good of its people, and especially the common good of the people most maligned by these traditional practices.

We must expect resistance to change - that has always been the way of man, but we must persevere for the common good of all, for slowly but surely, we will move forward. However, foremost in our minds must be the need for sensitivity, respect and understanding of the various cultures of the people of Africa, and these values must be the key words in our march forward to equality for all.

The Protocol before you is but a step in the right direction taken by the African Union, to ensure that women gain parity with men in all spheres of our lives - economically, socially and culturally. I must emphasize that the Protocol before you is not a perfect document and it does not go so far as we would like it to go, especially in light of our domestic law.

However, ladies and gentlemen, the Protocol is a step that South Africa is taking in joining hands with the rest of Africa, in acknowledging that we have a problem in the way we as Africans, treat our women. The Protocol before you is a compromise document. It is the best document that we, as Africans, can put together at this stage of our history - to acknowledge the suffering of our women and their inadequate legal rights, and to inculcate the rectification of some of these inequalities in a legal document for African member States.

Fifty-three African member states, divergent in traditional, cultural, social and religious practices coming together to produce this Protocol, is a feat in itself. Deeply ingrained social practices, cultures and religions, such as Sharia law, prevent us from achieving more at this stage.

The Protocol must therefore be seen for what it is-a step towards the ultimate goal of parity between the men and women of Africa - a conciliatory document that will enable us to use it is as a building block - a foundation - as layer by layer - we move towards total human for all women in Africa.

BACKGROUND TO THE DRAFT PROTOCOL

Since its inception in 1963, the role and function of the OAU was primarily to promote unity and solidarity among the Peoples of Africa. Another important principle was to ensure absolute dedication to the total emancipation of the African territories, which were still under colonial domination. Through the years, it has made important contributions to the continent, especially in bringing to an end the colonial dispensations in Africa.

In 1979, the organisation took its first courageous step in adopting a positive approach towards recognising and respecting human rights in Africa. At its 16^th Ordinary Session, the OAU Assembly of Heads of State and Government Meeting in Liberia, requested the Secretary General of the OAU to convene a meeting of government experts to prepare a preliminary draft of an African Charter on Human and Peoples' Rights providing, inter alia, for the establishment of bodies to promote and protect human and peoples' rights.

The African Charter on Human and Peoples' Rights was adopted by the 18th Assembly of Heads of State and Government in June 1981 in Nairobi, Kenya, and came into force on 21 October 1986. Currently all 53 Member States of the OAU have ratified the African Charter.

The African Charter, with all its shortcomings, has played a major role in creating a culture of human rights on the continent and made political leaders in Africa more aware of the existence of human rights.

However, the Charter is a regional human rights instrument and human rights' lawyers and activists have long regarded the provisions of the African Charter as inadequate to address the rights of women.

The concept of "women's rights' refers to both the rights of women as human beings i.e. human rights, and to the rights of women as women.

In other words, and as was so concisely summed up in the final declaration of the All-Party Burundi Women's Peace Conference held in Arusha, from 17-20 July 2000: "women's rights are human rights".

The idea of a Protocol on the Rights of Women in Africa was introduced at a seminar held in Lome, Togo in March 1995. The seminar was held by the African Commission on Human and Peoples' Rights (ACHPR) in collaboration with civil society (Women in Law and Development in Africa (WILDAF); the African Centre for Democracy and Human Rights Studies (ADCHRS) and the International Commission of Jurists (ICJ).

The delegates submitted various recommendations to the ACHPR, including suggestions for the framework of the Protocol. The ACHPR approved these recommendations, which were submitted and approved by the OAU Heads of State and Government at the 31^st Ordinary Session, which took place in June 1995, in Addis Ababa.

While the ACHPR was in the process of drafting the Protocol, the Inter-Africa Committee on Traditional Practices Affecting the Health of Women and Girls (IAC) also initiated a Draft Convention on traditional practices affecting the fundamental rights of women and girls.

The Secretary General of the OAU decided that the Draft Protocol and the Draft Convention should be merged into one document.

A meeting of the ACHPR, IAC and the Women's Unit took place from 24 to 26 July 2000, in Addis Ababa. The outcome of this meeting is the merged document entitled "The Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa".

The above-mentioned Draft Protocol was first discussed at a Meeting of Experts, which was held from 12 to 16 November 2000 in Addis Ababa. The Meeting of Experts adopted almost 90°/o of the provisions of the Draft Protocol. Only a few issues, notably those regarding polygamy and the monitoring and enforcement of the Protocol remained contentious issues.

There was no movement concerning this matter and Experts Meetings to discuss the issue further was postponed on numerous occasions by the OAU. The Draft Protocol was revived and a Ministerial Meeting convened in Addis Ababa from 27 - 28 March 2003 under the auspices of the African Union.

In preparation for this Meeting, the Department of Foreign Affairs participated in a workshop on the Draft Protocol at the Centre for Human Rights in Pretoria. Post-graduate students from Pretoria University, academics, a wide representation of NGO's and Civil Society, Dr Barney Pityana (a then serving Commissioner at the ACHPR), the Office of the Status of Women and Government Departments took part in panel discussions on the Draft Protocol. Meetings held by NGO's at other venues were also attended by the Department of Foreign Affairs. The views expressed at these meetings, and especially of civil society, were examined by the Departments of Justice, Foreign Affairs and the Office of the State Law Adviser of Foreign Affairs. The substance of the document was measured and assessed against international norms and values. The Draft Protocol was perceived by South Africa as being weak but as 90% of the document had already been accepted by Member States at the Meeting of Experts held from 12 to 16 November 2000 in Addis Ababa, South Africa knew that it would need to attempt to re-open certain controversial clauses such as polygamous marriages and relationships, the minimum age of marriage, the compulsory registration of marriages, the imposition of the death penalty in terms of Shariah laws and the inheritance laws.

The Deputy Minister for Justice and Constitutional Development, Cheryl Gillwald, led the South African delegation, composed of officials from the Office on the Status of Women, the Commission on Gender Equality, the Departments of Foreign Affairs and Justice, as well as academics and members of civil society, to the March 2003 Ministerial meeting in Addis Ababa. Forty-four AU Member States and various NGOs and International Organisations were present at the meeting.

The Department of Foreign Affairs, with substantial input from the Deputy Minister of Justice, reported to Cabinet on the outcomes of the Ministerial meeting on 5 June 2004. The South African delegation's view was that the issues at the meeting were debated on regional perceptions. In essence, the debate appeared to take place along cultural and religious lines. The dichotomy was characterised by participating blocks of countries espousing support for Sharia Law (Arabic and Francophone countries) and Anglophone countries (including the SADC) that proposed a more Common- or Civil law-based approach to the process.

In terms of the substance of the Draft Protocol, the delegation of South Africa did succeed in getting a number of issues included in the Draft Protocol. There are, however, issues that still need to be addressed.

The Ministerial Meeting decided that its decisions on the Draft Protocol would be adopted on the various Articles through consensus. In the event that consensus was not reached, the text submitted by experts would be endorsed and delegations would be free to enter reservations on the said text.

South Africa entered the following reservations:

Article 4: The Right to Life, Integrity and Security of the Person.

South Africa entered a reservation on Article 4(j), which states that "in those countries where the death penalty exists, not to carry out death sentences on pregnant and nursing women". The reason for the reservation was that the Article contradicts Article 30 (e) of the African Charter on the Rights and Welfare of the Child, which stipulates that a death sentence shall not be imposed on expectant mothers and mothers of infants and young children. The proposal by South Africa was that these two Articles be harmonised to ensure that the death penalty not be imposed on expectant mothers and mothers of infants and young children, let alone be carried out as set out in Article 4(j), in particular, since the Charter on the Rights and Welfare of the Child has already entered into force and therefore constituted the position of the Continent on the issue. The proposal was intended to avoid two conflicting positions on this issue. Due to a lack of consensus the South African position was not adopted.

Article 6: Marriage.

South Africa entered reservations on Article 6 (d) and (h).
Article 6(d) requires every marriage to be recorded in writing and to be recorded in accordance with national laws in order to be recognised. The South African proposal to add: "However, non-registration shall not be considered a reason for non-recognition" was not accepted.

South Africa's reasoning was that Section 4(9) of the Recognition of Customary Marriages Act No 120 of 1998 provides as follows: "Failure to register a customary marriage does not effect the validity of that marriage".

South Africa also entered a reservation on Article 6 (h), which provides equal rights to women and men with respect to the nationality of their children. The reservation was in respect of the last part of the paragraph, which makes the provision subject to national legislation or national security interests. The reservation by South Africa was noted.

Article 14: Health and Reproductive Rights.

Although South Africa did not enter a reservation, discussion around this Article was very passionate.

Several delegations proposed that the rights conferred on women in (a), (b) and (c) be exercised in partnership with the spouse. South Africa and others argued that the intention of Article 14 was to establish the individual right of a woman to make decisions about her health and reproductive rights, and that these could therefore not be subject to the spouse's approval. In any event, these rights did not preclude discussion between the spouses.

There was also the argument that the Article be harmonised with provisions of the Convention on the Elimination of Discrimination Against Women (CEDAW). It emerged during discussions that the provisions referred to in CEDAW related to Marriage and not the Reproductive Health of Women.

Article 21: Right to inheritance.

Although various countries indicated that Article 21 was already adopted at the previous meeting, South Africa argued that the Ministerial Meeting is not under any obligation to accept decisions of the Meeting of Experts, and that the last sentence of Article 21(1), which reads as follows, be deleted:
"In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it". Due to a lack of consensus the suggested deletion was not adopted.

Article 27: Interpretation.

The debate on this Article centered around whether or not the African Court on Human and Peoples' Rights or the Commission on Human and Peoples' Rights should have the competence to interpret the Protocol. The latter was confirmed. The Draft Protocol as agreed to by the Ministerial Meeting in Addis Ababa was referred to the African Union Summit in Maputo, 4-12 July 2003.

As stated aforesaid, on 5 June 2003 a Cabinet Memorandum was prepared reporting on the Ministerial Meeting in Addis Ababa, and recommending that the Draft Protocol (with South Africa's reservations) be used as a basis for South Africa's position at the coming AU Summit in Maputo.

In preparation for the Summit, the Department of Foreign Affairs sought the legal opinions of the Legal Advisers of the Departments of Foreign Affairs (International Law) and Justice (Domestic Law), as we were concerned that certain provisions which were contained in the Draft Protocol, such as the imposition of the death penalty, marriage, etc. clashed with certain provisions of our domestic law and public international law. We also queried the validity of the reservations lodged by South Africa during the Ministerial Meeting in Addis Ababa.

The legal opinions rendered by the Department of Foreign Affairs and Justice did not find any contradiction with current international or our domestic law. (See Legal opinions marked Annexures 1 & 2 in file).

The 3^rd Ordinary Session of the Executive Council met in Maputo, Mozambique from 4 -8 July 2003. A Report by the Interim Chairperson on the Proceedings of the Ministerial Meeting on the Draft Protocol to the African Charter on Human and Peoples' Rights relating to the Rights of Women presented a report (Annexure 5 in file) which was adopted by the Executive Council. While this report captured the outcomes of the African Union Executive Council Meeting, there was fierce debate on the provisions of the Draft Protocol by Member States. At the instance of Minister Dlamini Zuma, Member States were made to realise that while the gap between Northern and Southern African countries was a wide one representing totally diverging cultural, religious and social practices, if any Draft Protocol were to be signed at this stage of Africa's development, compromises would have to be made by Member States. Member States were free to lodge their reservations as South Africa had done. This would be duly noted during the ratification process by individual Member States. Due to the dire need for an African Protocol to protect, at least to some degree, the legal, social and cultural rights of women. Member States agreed to recommend that the Assembly adopt the Protocol as is.

The 2^nd Ordinary Session of the Assembly that met from 10- 12 July 2003, in Maputo, adopted the Draft Protocol as agreed by Member States in Addis Ababa and "appeals to all Member States to sign and ratify this important instrument in order to ensure its speedy entry into force". The Assembly opened the Protocol for signature by Member States.

Cabinet approved the recommendations made in the Cabinet Memorandum dated 5 June
2003 retrospectively on 22 October 2003 and also, inter alia, approved that the Protocol be submitted to Parliament.

Presidential Minute 181 dated 10 March 2004 authorized Minister Dlamini Zuma to sign the Protocol. The Minister signed the Protocol on 16 March 2004.

In preparation for the Tabling of the Draft Protocol by Parliament, legal opinions were once again sought from the Legal divisions of the Departments of Foreign Affairs and Justice confirming that the provisions of the Draft Protocol (with its reservations) did not conflict with South African domestic or public international law. The Legal advisors of both Departments once again confirmed that there were no contradictory provisions. (Annexures 6 & 7 in file).

In tabling our documents before Parliament, it will be noted from the Explanatory Memorandum that South Africa's reservations were noted and clearly spelt out so that Parliament would be made aware of the importance of same.

As we understand it, Parliament now needs to recommend that South Africa lodge its Instrument of Ratification, with its appropriate reservations, with the AU in Addis Ababa. It is also our understanding that South Africa can add to the reservations already made at the Maputo Summit.

CONCLUSION
The Draft Protocol as it stands is a foundation for future building blocks for the realisation of women's rights on the Continent. It is by no means the end of African endeavours to meet the needs of its women - merely the beginning. Continental and regional organisations such as the African Union and SADC are mainstreaming the promotion of gender equality in their programmes, structures and institutions. Article 62 of the African Charter on Human and Peoples' Rights requires States Parties to report every two years on the legislative and other measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed by the Charter. It will also be required that such reports on the present Protocol to the Charter be submitted. The Protocol will therefore remain under constant scrutiny by Member States and opportunities to call for its further amendment will arise.