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Of the Women’s Rights Jurisprudence of the ECOWAS Court: The Role of the Maputo Protocol and the Due Diligence Standard

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Abstract

The Maputo Protocol, adopted in 2003, was intended to counterbalance the normative deficiencies of the African Charter with respect to women’s rights. However, 15 years down the line, there is not much case law on the Protocol. The ECOWAS Court made its first pronouncement on the Protocol in 2017 in Dorothy Njemanze & 3 Others v. The Federal Republic of Nigeria. This paper analyses three gender-based violence decisions by the Ecowas Court: Dorothy Njemanze, Aminata Diantou Diane and Mary Sunday cases. The paper examines the potential of the Protocol and the due diligence principle in influencing the Ecowas Court’s jurisprudence on women’s rights and makes recommendations.

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Notes

  1. ECW/CCJ/JUD/08/17.

  2. ECW/CCJ/JUD/14/18.

  3. ECW/CCJ/JUD/11/18.

  4. A few examples are the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, International Covenant on Economic, Social and Cultural Rights 1966, African Charter on Human and People’s Rights 1981, Convention on the Elimination of All Forms of Discrimination Against Women 1979, Convention on the Political Rights of Women 1952, and Declaration on the Elimination of Violence Against Women 1993.

  5. See preamble of the Maputo Protocol. Ebeku (2004, 130) argues that introducing a regional instrument that mostly replicates existing international laws “would not necessarily give it a better legal validity or force”. Cerna (1994) also asserted that, there is no such thing as regional human rights norms.

  6. The preamble to the Maputo Protocol reveals the concern of states parties that despite ratifying the African Charter and other international human rights instruments “and their solemn commitment to eliminate all forms of discrimination and harmful practices against women, women in Africa still continue to be victims of discrimination and harmful practices”. According to Viljoen (2009) this statement in the Protocol should not only be viewed as correcting deficiencies but also as a response to the lack of implementation.

  7. Prior to adopting the Maputo Protocol, there were counter arguments that under the African Charter, “everyone is a rights-bearer, not every man” thus, the problem was not with the provisions of the Charter, rather the failure of women to use the Charter (Viljoen 2009, 18).

  8. Article 2 of the Charter guarantees all rights provided to all persons without discrimination of any kind including sex. Article 5 upholds the dignity of every individual by virtue of being human. Article 13 accords every citizen the right to participate freely in the government of their country and enjoy equal access to public services and property.

  9. Out of 32 articles, only eight do not place obligations on the state. These are articles 1, 21 and 27–32.

  10. Inter-American Court of Human Rights (29 July 1988) Ser. C No. 4.

  11. The original judgment was in delivered in French. The paper uses the English translation.

  12. The original judgment is in French. The paper uses the English translation obtained by the author from International Human Rights and Development in Africa (IHRDA) one of the organisations who filed the action on behalf of Mary Sunday.

  13. In the Fernandes case, there was evidence in form of statistical reports to show that the unresponsiveness of the Brazilian justice system to domestic violence against women was systematic.

References

  • Abebe, Daniel. 2017. Does international human rights law in African courts make a difference? Virginia Journal of International Law 56(3): 527–583.

    Google Scholar 

  • Adjolohoun, Horace S. 2013. The ECOWAS Court as a human rights promoter? Assessing five years’ impact of the Koraou slavery judgment. Netherlands Quarterly of Human Rights 31(3): 342–371.

    Article  Google Scholar 

  • African Union. 2019. Draft concept note-high level consultation on accelerating ratification, domestication and implementation of the protocol to the African Charter on human and peoples’ rights on the rights of women in Africa (Maputo Protocol) and the 15th anniversary celebrations of the Maputo Protocol. https://au.int/sites/default/files/newsevents/conceptnotes/35336-cndraft_concept_note_maputo_protocol.pdf. Accessed 14 March 2019.

  • African Union. 2003. Protocol to the African Charter on human and people’s rights on the rights of women in Africa 2003.

  • Aminata Diantou Diane v. République du Mali ECW/CCJ/JUD/14/18.

  • Amnesty International. 2003. Africa Union: Adoption of the protocol on the rights of women -positive step towards combating discrimination and violence against women.

  • Ayeni, Victor O. 2016. Introduction and preliminary overview of findings. In The impact of the African Charter and the Maputo Protocol in selected African states, ed. Victor O. Ayeni, 1–15. Pretoria: Pretoria University Law Press.

    Google Scholar 

  • Banda, Fareda. 2006. Blazing a trail: The African protocol on women’s rights comes into force. Journal of African Law 50: 72–84.

    Article  Google Scholar 

  • Banda, Fareda. 2008. Protocol to the African Charter on the rights of women in Africa. In The African Charter on human and peoples’ rights: The system in practice 1986–2006, ed. Malcolm Evans and Rachel Murray, 441–474. Cambridge: Cambridge University Press.

    Google Scholar 

  • Cerna, Christina M. 1994. Universality of human rights and cultural diversity: Implementation of human rights in different socio-cultural context. Human Rights Quarterly 16: 740–752.

    Article  Google Scholar 

  • Chirwa, Danwood. 2004. The doctrine of state responsibility as a potential means of holding private actors accountable for human rights. Melbourne Journal of International Law 5: 1–36.

    Google Scholar 

  • Cook, Rebecca. 1993. Women’s international human rights law: The way forward. Human Rights Quarterly 15(2): 230–261.

    Article  Google Scholar 

  • Coomaraswamy, Radhika. 1996. Report of the special Rapporteur on violence against women, its causes and consequences. U.N. Doc E/CN.4/1996/53.

  • Cuenca, Enarna C. 2015. Gender mainstreaming and human rights. Journal of Literature and Art Studies 5(10): 917–929.

    Google Scholar 

  • Dorothy Chioma Njemanze & 3 Others v. The Federal Republic of Nigeria. ECW/CCJ/JUD/08/17.

  • Ebeku, Kaniye S.A. 2004. A new dawn for African women? Sri Lanka Journal of International Law 16: 83–137.

    Google Scholar 

  • Ebenezer, Durojaye, and Lucyline N. Murungi. 2014. The African women’s protocol and sexual rights. The International Journal of Human Rights 18(7–8): 881–897.

    Google Scholar 

  • Ebobrah, Solomon T. 2010. Critical issues in the human rights mandate of the ECOWAS Court of justice. Journal of African Law 54(1): 1–25.

    Article  Google Scholar 

  • Equality Now. 2003. African Union adopts protocol on the rights of African women: Right to abortion articulated for the first time in international law. https://www.pambazuka.org/gender-minorities/african-union-adopts-protocol-rights-african-women. Accessed 14 March 2019.

  • Ertrük, Yakin. 2006. Integration of the human rights of women and the gender perspective: Violence against women- the due diligence standard as a tool for the elimination of violence against women. E/CN.4/2006/61.

  • French, Duncan, and Tim Stephens. 2014. ILA Study Group on Due Diligence in International Law, First Report. International Law Association.

  • Goldscheid, Julie, and Debra J. Liebowitz. 2015. Due diligence and gender violence: Parsing its power and its perils. Cornell International Law Journal 48: 301–345.

    Google Scholar 

  • Manjoo, Rashida. 2013. Report of the special rapporteur on violence against women, its causes and consequences. A/HRC/23/49.

  • Maria de Penha Maia Fernandes v. Brazil Inter-American Commission on Human Rights, 2000. Case 12.051, I Am Comm of HR, Report No. 54/01, OEA/Ser.L/V/II.111 Doc.20 Rev 704.

  • Marshall, Jill. 2008. Positive obligations and gender based violence judicial developments. International Communications Law Review 10: 143–169.

    Article  Google Scholar 

  • Mary Sunday v. Federal Republic of Nigeria. ECW/CCJ/JUD/11/18.

  • Meyersfeld, Bonita. 2016. A theory of domestic violence in international law. JSD thesis, Yale Law School.

  • Musembi, Celestine N. 2013. Pulling apart? Treatment of pluralism in the CEDAW and the Maputo Protocol. In Women’s human rights: CEDAW in international, regional and national law, ed. Anne Hellum and Henriette Sinding Aasen, 183–214. Cambridge: Cambrdige University Press.

    Chapter  Google Scholar 

  • Nsibirwa, Martin S. 2001. A brief analysis of the draft protocol to the African Charter on human and peoples’ rights on the rights of women. African Human Rights Law Journal 1: 40–49.

    Google Scholar 

  • Organization of African Unity. 1981. African Charter on human and peoples’ rights.

  • Omondi, Scholastica, Esther Waweru, and Divya Srinivasan. 2018. Breathing life into the Maputo Protocol: Jurisprudence on the rights of women and girls in Africa. Nairobi: Crimson Communications Ltd.

    Google Scholar 

  • Stefiszyn, Karen, and Alex Prezanti. 2009. The impact of the protocol on the rights of women in Africa on violence against women in six selected southern African countries: An advocacy tool. Cape Town: ABC Press.

    Google Scholar 

  • Stephens, Tim, and Duncan French. 2016. ILA Study Group on Due Diligence in International Law, Second Report, July. International Law Association, London.

  • Stoyanova, Vladislava. 2020. Due diligence versus positive obligations. In International law and violence against women: Europe and the Istanbul convention, eds J Niemi, L Peroni and V Stoyanova, Routledge. https://ssrn.com/abstract=3384607. Accessed 17 February 2020.

  • Supplementary Protocol Amending the Preamble and Articles 1, 2, 9 and 30 of Protocol (A/P.1/7/91) Relating to the Community Court of Justice and Article 4 Paragraph 1 of the English Version of the Said Protocol Jan. 19, 2005, A/SP1/01/05.

  • Van Leeuwen, Fleur. 2013. Women’s rights are human rights: The practice of the United Nations Human Rights Committee and the Committee on economic, social and cultural rights. In CEDAW in international, regional and national law, ed. Anne Hellum and Henriette Sinding Aassen, 242–291. Cambridge: Cambridge University Press.

    Google Scholar 

  • Velasquez Rodriguez v. Honduras Inter-American Court of Human Rights (29 July 1988) Ser. C No. 4.

  • Viljoen, Frans. 2009. An introduction to the protocol to the African Charter on human and peoples’ rights on the rights of women in Africa. Washington & Lee Journal of Civil Rights & Social Justice 16(1): 11–46.

    Google Scholar 

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Acknowledgements

The author thanks Oludayo Fagbemi and Eric Bizimana, both of the Institute for Human Rights and Development in Africa (IHRDA), a pan African NGO based in The Gambia, for providing me with the full judgments of two out of the three cases analysed in this article. The said judgments were not readily available online at the time I was working on this paper. The author is also grateful to Ellen Arkoh, a French major student at Kwame Nkrumah University of Science and Technology for her assistance in translating one of the judgments delivered in French into English.

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  1. University of Cape Town, Cape Town, South Africa

    Maame Efua Addadzi-Koom

  2. Kwame Nkrumah University of Science and Technology, Kumasi, Ghana

    Maame Efua Addadzi-Koom

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Correspondence to Maame Efua Addadzi-Koom.

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Addadzi-Koom, M.E. Of the Women’s Rights Jurisprudence of the ECOWAS Court: The Role of the Maputo Protocol and the Due Diligence Standard. Fem Leg Stud 28, 155–178 (2020). https://doi.org/10.1007/s10691-020-09432-4

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