The Emperor Is Still Naked: Why the Protocol on the Rights of Women in Africa Leaves Women Exposed to More Discrimination
Davis, Kristin, Vanderbilt Journal of Transnational Law
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. …