The Emperor Is Still Naked: Why the Protocol on the Rights of Women in Africa Leaves Women Exposed to More Discrimination

Article excerpt

ABSTRACT

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its object and purpose. This Note contends that certain language is too narrow, creating an over-specificity that will deter necessary countries from joining. However, this Note also asserts that certain aspirational provisions of the Protocol are overly broad, creating legal obligations that States Parties will be unable to meet. Ultimately, African countries with questionable women's rights records will refuse to sign--States Parties will either be unable or unwilling to protect women to the extent required, leaving women in the same position as before. Worse yet, some States Parties may implement extreme measures that could increasingly disadvantage women over time. By relying on Western ideas of women's rights and without explicitly determining how or if customary law will be considered in implementation, the Protocol faces serious obstacles on the domestic level. This Note concludes by asserting that unless States Parties consider a more grassroots, community-oriented approach to implementing the Protocol, the instrument's requirements will remain unrealized, and women in Africa will remain marginalized.

TABLE OF CONTENTS

  I. INTRODUCTION

 II. THE EMPEROR'S OLD WARDROBE: THE PROTOCOL
     AND ITS ENTOURAGE
     A. The African Union
     B. The African Charter on Human and
        Peoples' Rights
     C. The African Commission on Human and
        Peoples' Rights and the African Court on
        Human and Peoples' Rights
     D. Other International Human Rights
        Instruments
     E. The Development of the Protocol

III. FULLY CLOTHED OR STILL NAKED: WHAT THE
     PROTOCOL FALLS TO COVER
     A. Targeting Women and Africa-Specific
        Practices
     B. Which Law Governs Implementation?
        1. Statutory Law
        2. Customary Law
        3. Living Law
     C. When Implementation Does Not Occur
     D. When Implementation Does Occur, but Is
        Ineffective, Counter-Productive or
        Not Enforced
        1. Article 9: Affirmative Action, Negative
           Reaction
        2. Women Do Not Have to Speak with
           a Unified Voice

 IV. IT'S TIME TO DROP THE IMAGINARY MANTLE:
     HOW TO FIX THE PROTOCOL
     A. Failing to Look in the Mirror: The
        Status Quo
     B. Women's Rights Education Programs
        and Advocacy Conferences: The
        Ministers' Opinions
     C. Listening to the Child in the Crowd: The
        Grass Roots Approach
     D. Knowing When to End the Parade: Other
        Useful Revisions to the Protocol

  V. CONCLUSION

   An emperor who cared too much for clothes hired two men who
   promised him the finest suit from the most beautiful cloth. This
   cloth. they told him, was magical and invisible to anyone who was
   either ignorant or not fit for his position. The Emperor, nervous
   because he could not see the cloth himself, sent his ministers to
   view it. They too saw nothing, yet praised the cloth. When the
   swindlers reported that the suit had been fashioned, the Emperor
   allowed himself to be dressed in their creation for a procession
   through town. During the procession, the crowd "oohed" and "aahed,"
   until a small child cried out, "He has nothing on!" The crowd
   realized the child was telling the truth and began laughing. The
   Emperor realized that the people were right as well, but could not
   admit it. …