Access to resources, knowledge, legal aid and proficient legal representation are other major hurdles to women’s access to justice domestically and regionally.
Also, there is no specialised women’s rights institution in Africa that can put the spotlight on issues of women and bring their claims of human rights violations to the forefront.
The UN’s Committee on the Elimination of all Forms of Discrimination Against Women (Cedaw) stipulates that the right of access to justice for women is a fundamental element of the rule of law and essential to the realisation of women’s human rights.
The right to access to justice is multidimensional and encompasses justiciability, availability, accessibility, good quality and accountability of justice systems, and the provision of remedies for victims.
Unfortunately, the rule of law, understood as the observance of good laws, containing within it the core values of human rights, is not a complete remedy for the compounded problems of the women of this continent.
As pointed out by Cedaw, one important aspect of women’s access to justice is the implementation of international instruments and decisions from international and regional justice systems related to women’s rights.
In line with this focus, Cedaw urges states to individually, or through international or regional co-operation, establish credible monitoring mechanisms for the implementation of international law.
One such mechanism is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, otherwise known as the Maputo Protocol.
Adopted by the Assembly of the African Union (AU) in 2003 and entered into force in November 2005, the Maputo Protocol is a comprehensive treaty that prohibits all forms of discrimination, harmful cultural practices and domestic violence against women and girls. It also prescribes rights to property and inheritance and contains civil and political, as well as socio-economic rights.
To date, it has been ratified by 39 of the 55 AU member states and has been in force for 10 years or longer in 24 of these states.
Even though the ratification of the Maputo Protocol has been relatively successful, the invisibility of women’s rights in the decisions and judgments of the treaty bodies set up to protect women’s rights in Africa is glaring.
The Maputo Protocol contains no reference to a specialised monitoring body (Committee on the Rights of Women in Africa).
Thus, there is no specialised women’s rights institution on the African continent able to draw women’s issues into what is arguably still a patriarchal system.
Instead, the Maputo Protocol relies on an existing mainstream human rights structure, created by the African Charter - that is, the African Commission and the African Court as founded by the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights (Court Protocol).
Despite the Cedaw committee and other legal instruments such as the Maputo Protocol, women’s rights are not properly implemented.
It’s clear that there is a need for a specialised committee to monitor the application of the Maputo Protocol in the protection of women’s rights and to address the marginalisation of women in Africa and to strengthen the rule of law. This will help to remove the barriers that impede women’s rights litigation in the regional domain.
A specialised women’s rights institution would serve as a receiver of litigation and as a driver of implementation, with the potential of increasing women’s access to justice and providing important insight into the Maputo Protocol.
However, for treaty bodies to be able to interpret and apply women’s human rights law, women must have reasonable access to these bodies.
Establishing a Committee on the Rights of Women in Africa would strengthen the protection of the rights in the Maputo Protocol.
A specialised institution with equal powers, modelled on Cedaw, would honour women’s right to equality and non-discrimination in the same manner as the children’s committee honours the best interests of the child, arguably all important aspects of the rule of law.
Access to regional justice through institutional structures such as the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights could be altered or improved to support the domestic implementation and enforcement of the Maputo Protocol and the rule of law. This would also help to improve access to regional justice for many women.
As the AU currently places much emphasis on women’s rights, it would be prudent to not only continue to push states to make good on the promises in the AU Gender Policy, to achieve full ratification and enforcement of the Maputo Protocol, but to also combine this with an effective enforcement structure, ultimately strengthening the rule of law for all.
* Professor Annika Rudman is the chairperson of the Department of Public Law at Stellenbosch University. This is a shortened version of an article published recently in the African Human Rights Law Journal.
** The views expressed here are not necessarily those of Independent Newspapers.