PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES'

RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA

1. The Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa ("the Protocol") was negotiated during a Ministerial Meeting in Addis Ababa on 27 and 28 March 2003. Concern on the side of the South African delegation about provisions that clashed with domestic law resulted in South Africa making two verbal reservations, relating to the provision in Article 41 (The Right to Life, Integrity and Security of the Person) dealing with death sentences with regard to pregnant or nursing women, and Article 6 (Marriage) where the reservations related to Article 6(d) (requirement that every marriage be recorded in writing) and 6(h) (the conditions that equal rights to women and men with respect to the nationality of their children be made subject to national legislation or national security interests).
2. It is understood that at the Executive Council (Ministerial Meeting) held in Maputo from 4 to 12 July 2003, differences on the provisions of the Draft Protocol between Member States resulted in the view that in order to take the process forward, Member States were free to lodge reservations, which would be duly noted during the ratification process by individual Member States.

THE STATUS OF THE PROTOCOL IN TERMS OF SOUTH AFRICAN LAW

RATIFICATION

3. S231 (2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) provides that "an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces." South Africa must then deposit an instrument of ratification/accession in terms of Article 28(2) of the Protocol with the Chairperson of the Commission of the The Protocol shall enter into force 30 days after the deposit of the fifteenth instrument of ratification, for the States Parties that have ratified it. This means that South Africa will have a legal obligation in terms of international law vis-a-vis the other States Parties that have ratified the Protocol. Such States Parties will then have a concomitant legal remedy against any State Party that did not implement its obligations to implement the Protocol. By way of relief in international law one State Party can for example lodge a complaint against another State Party with the African Court on Human and People's Rights, as provided for in Article 5(1)(b) of the Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court of Human and People's Rights (access to the Court takes place though the African Commission on Human and People's Rights). In this way, one State Party can seek relief against another State Party on the basis that the treatment of the latter's nationals does not accord to the obligations set in an international human rights instrument, thereby offering indirect relief to such nationals. However, due to the reality of inter-state relations, this is very unlikely to happen.
4. The judgement of an international tribunal like the African Court on Human and People's Rights in such a case also has only effect in international law and will not have a direct effect in the domestic law of the State Party against which a finding is made - the State Party concerned is itself required to give effect hereto (see Article 30 of the African Human Rights Court Protocol).
5. In order for the Protocol to have effect in South Africa domestic law it must be enacted into law by national legislation (S231 (4) of the Constitution). In this way it will become directly applicable to South Africans, insofar as it is not inconsistent with the Constitution as the supreme law of the Republic (S2 of the Constitution). As South African law, the provisions of the Protocol will be justiciable in the South African Courts, of which the Constitutional court is the highest authority with regard to matters of a constitutional nature.

REFERAL OF A MATTER TO A SUPRA-NATIONAL JUDICIAL ORGAN

6. The Protocol provides that the African Court of Human and Peoples' Rights shall be seized with matters of interpretation arising from the Protocol's application or interpretation (Art 27). Pending establishment of the Court, the African Commission on Human and People's Rights shall be seized with matters of interpretation arising from the Protocols’ application and interpretation (Art 32).
7. South African has intimated in terms of Section 34(6) of the Protocol on the African Court on Human and Peoples' Rights, that NGOs and individual can only institute cases directly before it, I so allowed by Government. However, in terms of the African Charter on Human and Peoples' Rights, to which South Africa is a party, the African Commission on Human and Peoples' Rights can receive communications in terms of Article 55 from individuals, if a number of conditions have been satisfied, amongst others that local remedies must have been exhausted. For the interim period until the establishment of the African Court on Human and Peoples' Rights, appeals by South African nationals to the African Commission will be possible.
8. An individual will therefore be able to refer a communication on an alleged violation of a right contained in the Protocol to the African Commission for "an interpretation arising from the application and implementation" of such right. In practice, the matter should first have been considered by the South African courts, including the Constitutional Court. This "exhaustion of remedies" rule means that the human right in question should have been justiciable in South Africa. In the case of litigation in South Africa regarding any rights contained in the Protocol that are in conflict with the Constitution (and hence not part of South African law) or have a different content from a similar right contained in South African law, it can be expected that such litigation would fail.
9. Due to the fairly wide formulation of Article 56 of the African Charter, which provides for the Commission to receive "communications relating to human and peoples' rights", it is possible that unsuccessful litigation may be followed by a communication to the African Commission.
10. In this regard it needs to be emphasised that neither judgements by the African Court or findings by the African Commission have any legal status in terms of South African law. These instruments have not been incorporated into South African domestic law. In terms of international law their provisions require states to give effect to judgements/findings, but that does not translate into domestic law where the South African courts enjoy supremacy. At most, in legal terms, such judgements and findings will have persuasive value in the South African courts, while a conflicting situation may of course also be politically embarrassing.
11. In practical terms, however, the possibility of conflicting judgements/findings between the domestic courts and the supranational African institutions is limited. Direct access by individuals to the African Court on Human and People’s Rights will be controlled by Government. Interpretations by the African Commission will only take place until the African Court on Human and People's Rights is in operation. Once that has happened the only way in which a case can be lodged before the Court without the Government's permission, will be if another State Party brings it (highly unlikely) or if the Commission brings it in terms of Art 5(1)(a), after having been approached by an individual (a long process that must pass a number of hurdles).