Human Rights of Women: National and International Perspectives

11. Toward a More Effective Guarantee of Women's Rights in the African Human Rights System

Chapter 11 Toward a More Effective Guarantee of Women's Rights in the African Human Rights System Chaloka Beyani Introduction This chapter is intended to contribute modestly toward the effective protection of the rights of women under the African Charter of Human and Peoples' Rights 1981 (the African Charter).1 This Charter was adopted under the auspices of the Organization of African Unity in 1981, and came into force in 1986. It establishes human rights standards of regional application and a machinery for the protection of human rights in Africa. A notable significance of the adoption of the Charter by African states is that human rights isnot a foreign concept in Africa. Moreover, as a human rights instrument, the Charter contains regional standards of conduct by African states in the matter of human rights. By establishing human rights standards relating to the performance of African domestic legal systems, the essence of the Charter is that the relationship between African states and populations within their territories is not an exclusive function of domesticjurisdiction. The latter is a relative concept fettered by international standards of human rights, both of regional and international scope. Some aspects of the Charter provide evidence of acceptance of general human rights standards in Africa, This is true where the Charter embodies standards2 which are also contained in other human rights instruments, especially those of general international scope. The fact that such standards are carried in several instruments denotes that they are generally accepted and may have a particular status within general international law. In the context of the rights of women, such stan- 286 Chaloka Beyanl dards include nondiscrimination, fundamental freedoms, and liberties . However, in examining the protection of rights of women generally , it should be acknowledged that the claims of women to adequate protection of their interests, and to equalityof treatment, are centered on human rights and pose a challenge regarding application of human rights standards to women as a specific category. The approach adopted by this chapter is to seek to unravel the content of the standards of the African Charter which directly bear on the status of women, in particular, certain aspects of the Charter that reflect conceptions of human rights standards which are purportedly unique to Africa. Such standards supposedly underpin what is seen as cultural diversity in the conception of human rights. So far as such standards are relevant to the status of women in Africa, the Charter raises the delicate issue of relative diversity versus universality in the protection of human rights of women. Thus provisions in the Charter concerning traditional valuesbear adverse consequences for the status and protection of rights of women if they are applied on a prima facie basis. The argument for cultural relativity or cultural diversity cannot be used to undermine or evade human rights obligations. Rules governing state responsibility in international law require that the propriety of government acts in the performance of international obligations must satisfy international standards, including those of human rights, notwithstandinga state's internal deficiencies.Asfar as international law is concerned, it matters less that the deficiency results from the municipal legal system or culture, or both. Consequently, certain standards of the African Charter pertaining to culture or traditional values must thus be applied constructivelyand in accordance with the fundamental obligation to respect and observe human rights for all. This is the framework within which this chapter sets out to discuss the effective protection of the rights of women in the African human rights system. The chapter will first place the relevant standards of the African Charter in the context of those of general application to women. The Convention on the Eliminationof All Forms ofDiscrimination Against Women (the Women's Convention) is taken to provide evidence of human rights standards that are specifically applicable to women on a general basis. Particular attention will be paid to the effect of human rights on traditional valuesand custom in Africa, with a view to enhancing the protection of rights of women under the African Charter. The chapter will then examine the conformity of domesticlaw to international standards of human rights relating to women in Africa. Finally, it will explore the role the African Commission can exert in protecting rights of women under the African Charter of Human and Peoples' Rights. A More Effective Guarantee In the African System 287 The African Charter and the Rights of Women in InternationalLaw In general terms, the...