2. The above provisions are however not adequate to address women's Rights as Human Rights. The history of patriarchy and systematic discrimination of women as a vulnerable group warrants that something more be done to promote and protects the rights of women in Africa.

3. Article 66 of the African Charter on Human and People's Rights provides for the establishment of Protocols and agreements if necessary, to supplement the provisions of the Charter. This provisions gave impetus for the consideration and subsequent formulation of the Protocol to the African Charter on Human and People's Right on the Rights of women.

4. The Charter also authorises the establishment of the African Court on Human and People's Rights (the Court).

5. The objective of the Court is to complement and reinforce the functions of the African Commission on Human and People's Rights.

6. 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 4(j) (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).

7. It is understood that at the Executive Council (Ministerial Meeting) of the African Union 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 Members States then agreed to recommend that the Assembly adopt the Protocol as is. The Assembly endorsed this view and adopted and opened the Protocol for signature.

8. The provisions in Article 31 seeks to regulate the relationship between, in the first place, this Protocol and other international agreements (whether global, continental or regional in nature) and which is not of relevance here, and secondly, between the Protocol and the national legislation of a State Party.

9. The effect of the provision contained in Article 31 will be that more favourable protection provisions contained in the national law of States Parties to the Protocol shall prevail over the provisions of the Protocol, and by implication, the provisions of the Protocol will prevail over less favourable provisions in national law.

10. It should be borne in mind that this provision of the Protocol can only have an effect in the national law of a State Party once it has been incorporated into its national law, in South Africa in terms of national legislation pursuant to Section 231(4) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996). (It remains a moot question what the status of a provision of this nature of an international agreement, incorporated into South African law, will be, bearing in mind that specific rules of interpretation of legislation apply within the South African domestic jurisdiction). However, as pointed out, if more favourable provisions relating to the rights of women exist in the Protocol than in South African national law, they will have no effect in national law until and unless the Protocol is incorporated by legislation, despite the injunction contained in Article 31.

11. The Protocol contains no provision on the limitation of the rights contained therein; in contrast, the South African Constitution contains both a general limitation clause applicable to all rights of the Bill of Rights (Section 36), and a specific limitation clause, concerning a state of emergency where specific limitation provisions apply to particular rights under specific circumstances (Section 37). This is a normal state of affairs in modern society: most modern bills of rights expressly provide for the limitation of rights and where there is not express provisions in this regard, the courts of states have developed criteria for the limitation of rights. The underlying philosophy is that there can be no order in any society if individual rights can be exercised without limitation at all times (see Rautenbach, I.M. & E.F.J. Malherbe, Constitutional Law, Third Ed, p.345).

12. As pointed out before, if the Protocol is not incorporated into South African law, and a limitation of a right takes place in South Africa by means of an interpretation by the Courts, and a similar right exists in the Protocol and remains unlimited, there will exist no conflict in terms of South African law. However, in terms of international law a state must give effect to its international law obligations, and this is not affected by the fact that such obligation does not manifest itself in national law: "The fact that municipal courts must pay primary regard to municipal law in the event of a conflict with international law, in no way affects the obligations of the state concerned to perform its international obligations" (Starke, J.G., Introduction to International Law, 1989, p. 88). Consequently, States Parties to the Protocol will be expected to abide by the rights contained in the Protocol without any limitations.

13. In cases where there exist uncertainty as to the meaning and effect of a particular provision of a treaty or where the potential of a conflict between a State's international obligations and its national law exists, States have often made interpretative declarations expressing the interpretation favoured by it. It has been defined as: "a unilateral declaration, however phrased or named, made by a State or by an international organisation, whereby that State or that international organisation purports to clarify the meaning or scope attributed by the declaration to the treaty or to certain of its provisions" (Aust, A., Modern Treaty Law and Practice, 2000, p.102). Should other Parties not object to it, which very rarely happens, they may be regarded as having tacitly accepted it.

14. The purpose of an interpretative declaration is therefore very often to establish an interpretation of the treaty which is consistent with the domestic law of the state concerned (Aust, op cit).

15. As regards the relationship between the provisions of Article 31 and the limitations provisions of the Constitution, an interpretative declaration could be made stating that the fact that the South African Constitution contains a clause providing for the potential limitation of rights, should not be considered as effecting a less favourable protection regime in South African national law, in view of the high level of rights protection offered by the Constitution and the fact that its limitation of rights accords to accepted international practice. Such a declaration will not undermine the principles of the Protocol but rather reflect the wide and progressive practice of limitations of rights in the domestic jurisdictions of states. As the African Charter system and the Republic's constitutional system for the protection of human rights are complementary, they will mutually reinforce and influence one another. The South African Constitutional Court is compelled, in terms of section 39(1)(b), when interpreting the Bill of Rights, to consider international law; in this regard the decisions of the African Court will have an influence on the Constitutional Court's jurisprudence, while the African Court will in terms of the accepted practice of international tribunals be influenced by the pronouncements of South African courts. In this way the existence of limitation provisions in the South African Constitution and the way it is interpreted and applied by the South African courts will have a positive influence on, and enhance, the African system, thereby contributing to the further development of human rights jurisprudence on the continent. It is also the practice of international human rights tribunals to apply limitations when necessary, even where the relevant treaties do make provision in this regard.

16. As already pointed out, during the negotiations for the Protocol South Africa entered a verbal reservation on Article 4(j) which provides that States Parties shall ensure that "in these countries where the death penalty exists, not to carry out death sentences on pregnant and nursing women.". (Article 4 deals with the "Rights to Life, Integrity and Security of the Person").

17. While it is a fact that the death penalty is applied by a number of countries, this provision acknowledges and verifies a punishment that has been found unconstitutional by the Constitutional Court (S v Makwanyana 1995(3) SA 391 (CC)).

18. The Constitutional Court found the rights to life and dignity to be "the most important of all human rights" and to be unqualified. These rights further vest in all persons, regardless of their actions. The right to life is therefore fundamental to the South African constitutional dispensation.

19. Besides acknowledging the practice of the death penalty, Article 4(j) is also discriminatory in its effect on different categories of women as it provides for a stay of execution for pregnant and nursing women.

20. Against this background, and in view of the recent finding of the Constitutional Court that the exercise of all public power, including powers exercised in the field of foreign relations, must be exercised in a manner consistent with the Constitution (S Kaunda and Others v President of the Republic of South Africa) the question is raised whether the ratification of a treaty such as the Protocol, which in certain respects may be inconsistent with the values and provisions of the Constitution, will not be an unconstitutional act as such (despite the fact that ratification as such will not have legal effects in South African law). In this regard the injunction in section 2 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), namely that the Constitution of the Republic of South Africa is the supreme law of the Republic and that any law or conduct inconsistent with it is invalid, is relevant. This is the approach followed by the Constitutional Court in Mohamed v President of the Republic of South Africa 2001(3) SA 893 (CC) on acts by the executive that have human rights implications beyond the Republic's borders. The Court held that such acts by the executive fall within the ambit of the Constitution.

21. As pointed out earlier in par. 7, the States Parties agreed on the option of reservations. Notwithstanding that, it is accepted customary international law that unless a treaty prohibits the entering of reservations, State Parties may seek to adjust the way in which a treaty will apply to them by means of reservations; provided that such reservations are not incompatible with the object and purpose of the treaty.

22. A reservation is defined in Article 2(1)(d) of the Vienna Convention on the Law of Treaties as:

23. In practice, reservations to treaties often stipulate an exemption from one or more of the provisions of a treaty, or the modification of provisions or of their effect. Reservations can therefore be used to ensure that the treaty provisions that they apply to, will have no legal consequences for and will not be applicable with regard to the State Party entering the reservation.

24 While reservations are sometimes made during the negotiations phase of a treaty, the principle is that reservations be formalised and confirmed during the ratification or accession process. In terms of Article 23 of the Vienna Convention on the Law of Treaties, 1969, such confirmation must be reflected in the subsequent instrument of ratification.

25. The reservations made by South Africa during the negotiations phase relating to Article 6(d) and (h), should also formalised.

26. As pointed out, reservations that are not incompatible with the object and purpose of a treaty, are acceptable in terms of customary international law. The proposed reservations will not offend the object and purpose of the treaty, but will be made in a spirit of achieving a higher level of protection of human rights, and consequently will serve to enhance and strengthen the human rights protection on the continent

The definition of 'discrimination against women is couched in the following terms:

"Definition of 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."

International convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination in article 1(1) as any distinction, exclusion, restriction or preference based on race colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

Similarly, article 1 of the Convention on the Elimination of All Forms of Discrimination against Women provides that "discrimination against women" shall men any distinction, exclusion or restriction made on the basis of sex which has the effect o purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

In contrast to this definition, discrimination in the Promotion of Equality and the Prevention of Unfair Discrimination Act, 2000 (Act No. of 2000) is defined as follows:

"Discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly –

(a) imposes burdens, obligations or disadvantage on, or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds." The two definitions are clearly different in a number of ways, namely:-

In the Promotion of Equality and Prevention of Unfair Discrimination Act, it is provided that in determining whether the respondent has proved that the discrimination is fair or not the following factors need to be considered:

(a) The context.

(b) The factors referred to in subsection (3).

Subsection (3) provides as follows:

"(3) The factors referred to in subsection (2)(b) include the following:

1. Whether the discrimination impairs or is likely to impair human dignity;
2. the impact o likely impact o the discrimination on the complainant;
3. the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
4. the nature and extent of the discrimination;
5. whether the discrimination is systemic in nature;
6. whether the discrimination has a legitimate purpose;
7. whether and to what extent the discrimination achieves its purpose;
8. whether there are less restrictive and less disadvantageous means to achieve the purpose;
9. whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to-

The protocol definition is therefore generally not in keeping with our Constitution. Our courts also have had an opportunity to consider the issue of discrimination in the context of our Constitution. The courts have always been guided by section 9 of the Constitution. In the case of the President of the Republic of South Africa v Hugo 1997 4 SA 1 [CC], the respondent and others complained that they have been discriminated against on the basis of their sex as the President was not releasing them even if they were also parents of children under the age of 12 as the female prisoners who were being released on the same basis. The court found that even if there was discrimination between the female and male prisoners as the latter were being disadvantaged because of the measure the President had taken, such a measure did not limit their rights in any permanent manner. The discrimination did not limit their freedom but that their freedom was curtailed by their conviction and not by the President’s act. The discrimination was not unfair in the circumstances but justifiable in the circumstances.

In the recent decision of Van Heerden v Minister of Finance the test used by court to determine whether measure talk within section 9 is threefold. The first is whether the measure targets persons or categories of persons who have been disadvantaged in the past (by unfair discrimination). The second is whether the measure is designed to protect or advance such persons or categories of persons and thirdly whether the measure promotes the achievement of equality. In this case the government took the steps to achieve equality between the old and new members of Parliament. These measures were ‘manifestly not directed at impairing the dignity of the old members of Parliament.’ The impugned rules did not constitute unfair discrimination. [par 131]. The court further pointed out, per Moseneke J. that:

"I cannot accept that our Constitution at once authorises measures aimed at redress of past inequality and disadvantage but also able them as presumptively unfair. Such an approach, at the outset, tags section 9(2) measures as a suspect category that may be permissible only if shown not to discriminate unfairly. Secondly, such presumptive unfairness would unduly require the judiciary to second guess the legislature and the executive concerning appropriate measures to overcome the effect of unfair discrimination. "[par 33]

The court in this case decided that the differentiation made with the purpose of diminishing the inequality which existed between the old and new parliamentarians did not constitute unfair discrimination.

These provisions are also a clear illustration as to how the concept of discrimination should be approached when interpreted in our domestic law.

Therefore, there is clearly a difference in the way discrimination has been dealt with by our statute law and constitutional jurisprudence and the definition as set out in the protocol.

The Protocol provides for certain rights that are not contained in our domestic law.

The difference between the position in our domestic law and certain provisions of the Protocol could systematically be summarised as follows: