ARTICLES

The SADC protocol on Gender and Development: Duplication or complementarity of the African Union protocol on women's rights?

Malebakeng Forere^I; Lee Stone^II

^ILecturer, University of KwaZulu-Natal, Durban, South Africa
^IISenior Lecturer, University of KwaZulu-Natal, Durban, South Africa; Attorney of the High Court of South Africa

SUMMARY

This paper is written from the perspective that universal human rights treaties provide minimum standards and that any subsequent regional instruments must not provide for anything less than what was already envisaged in universal treaties. With regard to the protection of women's rights, at the global level, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination Against Women. However, this instrument is inadequate when it comes to the protection of women's rights in Africa. Consequently, the African Union adopted the Protocol to the African Charter on the Rights of Women to cater for prejudices peculiar to African women. In 2008, SADC adopted a Protocol on Gender and Development, to some extent duplicating the AU Protocol on the Rights of Women. The paper seeks to ascertain whether the SADC Protocol on Gender and Development complements or duplicates the AU Protocol on the Rights of Women. It is argued that SADC, in its efforts to pursue regional integration and the consolidation of all instruments that protect women, duplicated the AU Protocol on the Rights of Women. While the SADC Protocol on Gender and Development does introduce some new rights and state obligations, its overall effect is that these rights and state obligations do not serve to dramatically enhance the regime for the protection of the human rights of women in the SADC sub-region and, in fact, either merely maintain the status quo or undermine some of the achievements of the AU Protocol and CEDAW. The paper finally suggests that SADC could have adopted a plan of action or adopted robust implementation strategies to give meaningful effect to the imperative of securing the rights of women and the thus far-neglected theme of gender, rather than formulating and adopting a protocol, since the process of adopting a protocol is very costly, especially given the fact that a comprehensive instrument that safeguards the rights of women in Africa already exists.

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* BA, LLB (Lesotho), LLM (Essex); Forere@ukzn.ac.za. I am grateful to Ibrahima Kane, for believing in me, for it is through him that I was able to put this article together. My involvement in the drafting of the SADC Gender and Development Protocol, as well as deliberations around the Protocol by delegates from SADC states, indicated to me that there is a misunderstanding or under-estimation of the extent of integration in Africa, and as such prompted me to carry out this work.
** LLB (Free State), LLM (Human Rights and Democratisation in Africa) (Pretoria); Stonel@ukzn.ac.za
1 United Nations Charter, 26 June 1945, 59 Stat 1031, TS 993, 3 Bevans 1153, 24 October 1945, art 1(3).
2 Vienna Declaration of the World Conference on Human Rights, 1993,         [ Links ] in recognising cultural relativism out of universality of human rights provided in its art 5 that '[a]ll human rights are indivisible, universal, independent and interrelated. The international community must treat human rights globally ... While the significance of national and regional particularities and various historical cultural and religious backgrounds must be borne in mind, it is the duty of the states, regardless of their political economic and cultural systems, to promote and protect all human rights and fundamental freedoms.'
3 See eg Universal Declaration of Human Rights, GA Res 217 (III), UN GAOR , 3rd session, Supp 13, UN Doc A/810 (1948) 71; International Covenant on Civil and Political Rights, 16 December 1976, 993 UNTS 3, 3 January 1976; International Covenant on Economic, Social and Cultural Rights, 16 December 1976, 993 UNTS 3, 3 January 1976.
4 Eg, the African Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, (1982) 21 International Legal Materials 58, entered into force 21 October 1986; Arab Charter on Human Rights, 22 May 2004, reprinted in (2005) 12 International Human Rights Reports 893, entered into force 15 March 2008; European Convention on the Protection of Human Rights and Fundamental Freedoms (ETS No 005) 1950 Strasbourg, entered into force 3 September 1953; Inter-American Convention on Human Rights, OAS Treaty Series 36, 1144 UNTS 123, entered into force 18 July 1978. All these instruments have specifically indicated in their respective preambular paragraphs that they drew their inspiration from the Universal Declaration of Human Rights and other UN human rights documents.
5 Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331, entered into force 27 January 1980, arts 19(c), 26 & 27.
6 Constitutive Act of the African Union, accepted in Lomé, Togo, July 2000, entered into force May 2001, art 3(h).
7 These bodies include the African Commission on Human and Peoples' Rights, the African Committee of Experts on the Rights and Welfare of the Child and the African Court of Justice and Human Rights (which represents the merged African Court on Human and Peoples' Rights and the African Union Court of Justice).
8 Such as the Special Rapporteur on the Rights of Women in Africa.
9 See eg Southern African Development Community Treaty (SADC Treaty) adopted in Windhoek, Namibia, August 1992, as amended in 2001, art 4(c).
10 See eg Treaty Establishing the African Economic Community, signed on 3 June 1999, Abuja, Nigeria, entered into force 12 May 1994, art 6(d); Treaty Establishing the Economic Community of West African States adopted in Cotonou, 24 July 1993, entered into force 1994, art 4(g). SADC is so far the only REC which does not make explicit reference to the African Charter. However, it mentions human rights in the Preamble to its Treaty, namely, '[m]indful of the need to involve the people of the region centrally in the process of development and integration, particularly through the guarantee of democratic rights, observance of human rights and the rule of law'. The SADC Treaty does not oblige judges of the tribunal to invoke the African Charter in the interpretation and adjudication of disputes. Art 16 of the SADC Treaty provides as follows: 'The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.'
11 SF Musungu 'Regional integration and human rights in Africa: A comment on conceptual linkages' (2003) 3 African Human Rights Law Journal 93.
12 See C Ryngaert 'Horizontal complementarity' paper submitted to the Research Conference on the ICC and Complementarity: From theory to practice, Grotius Centre for International Legal Studies, 15-16 September 2009; http://www.grotiuscentre.org/com/doc.asp?DocID=463 (accessed 19 September 2009).
13 C Ng'ong'ola 'Regional integration and trade liberalisation in the Southern Africa Development Community' (2000) 3 Journal of International Economic Law 485.
14 African Development Bank, African Development Report 2000: Regional Integration in Africa (2000) 152.
15 As above.
16 The Declaration and SADC Treaty (n 9 above).
17 n 9 above, art 5.
18 The SADC Protocol on Gender and Development was signed in August 2008 but has yet to enter into force as not a single SADC member state has ratified the Protocol.
19 Adopted by the 2nd session of the AU Assembly, CAB/LEG/66.6 (13 September 2000), entered into force on 25 November 2005.
20 SADC Gender Protocol (n 18 above) art 3(a).
21 SADC Gender Protocol (n 18 above) art 3(b).
22 SADC Gender Protocol (n 18 above) art 3(c).
23 SADC Gender Protocol (n 18 above) art 3(d).
24 SADC Gender Protocol (n 18 above) art 3(e).
25 SADC Gender Protocol (n 18 above) art 3(f).
26 CEDAW was adopted on 18 December 1979, 1249 UNTS 13, entered into force 3 September 1981.
27 Eg, genital mutilation, scarification and inheritance.
28 African Charter, art 60.
29 (2001) AHRLR 75 (ACHPR 2001).
30 AH Jallow The law of the African (Banjul) Charter on Human and Peoples' Rights (2007) 93.
31 P Zirima 'SADC Protocol: From commitments to action' Southern African News Features 9(4) January 2009, http://www.sardc.net/Editorial/Newsfeature/09040109.htm (accessed 20 September 2009).
32 SADC Gender Protocol (n 18 above) art 4(1).
33 SADC Gender Protocol (n 18 above) arts 4 & 5. 34
34 African Women's Protocol (n 19 above) arts 1(a) & (b).
35 SADC Gender Protocol (n 18 above) arts 6 & 7.
36 SADC Gender Protocol (n 18 above) art 6(d).
37 African Women's Protocol (n 19 above) art 8(a).
38 SADC Gender Protocol (n 18 above) art 6(2)(c).
39 African Women’s Protocol (n 19 above) art 8(d).
40 SADC Gender Protocol (n 18 above) art 15.
41 African Women's Protocol (n 19 above) art 9.
42 African Women's Protocol (n 19 above) art 2(2).
43 SADC Gender Protocol (n 18 above) art 14.
44 SADC Gender Protocol (n 18 above) art 8.
45 African Women’s Protocol (n 19 above) art 6(a).
46 African Women's Protocol (n 19 above) art 6(b).
47 African Women's Protocol (n 19 above) art 6(d).
48 African Women's Protocol (n 19 above) art 6(f).
49 African Women's Protocol (n 19 above) art 7(c).
50 African Women's Protocol (n 19 above) art 7(d).
51 African Women's Protocol (n 19 above) art 6(g).
52 African Women's Protocol (n 19 above) art 10.
53 SADC Gender Protocol (n 18 above) art 14(1).
54 SADC Gender Protocol (n 18 above) art 16.
55 SADC Gender Protocol (n 18 above) art 18.
56 SADC Gender Protocol (n 18 above) art 20.
57 African Women's Protocol (n 19 above) art 19(c).
58 African Women's Protocol (n 19 above) art 19(d).
59 African Women's Protocol (n 19 above) art 15(a).
60 SADC Gender Protocol (n 18 above) art 21.
61 SADC Gender Protocol (n 18 above) art 20.
62 African Women's Protocol (n 19 above) art 14(c).
63 African Women's Protocol (n 19 above) art 4(g).
64 SADC Gender Protocol (n 18 above) art 33.
65 SADC Gender Protocol (n 18 above) art 15(1).
66 Art 5 of the SADC Gender Protocol goes further to unequivocally provide for affirmative action measures.
67 SADC Gender Protocol (n 18 above) art 28.
68 SADC Gender Protocol (n 18 above) art 1 (definitions).
69 SADC Gender Protocol (n 18 above) Preamble.
70 African Women's Protocol (n 19 above) Preamble and arts 5 & 6; SADC Gender Protocol (n 18 above) art 3(a).
71 Arrican Women's Protocol (n 19 above) art 25; SADC Gender Protocol (n 18 above) art 32.
72 African Women's Protocol (n 19 above) arts 5, 24, 22 & 14(b).
73 African Women's Protocol (n 19 above) art 9.
74 The omission of specific protection of women in the informal sector is a huge oversight, given that most women find themselves employed in the informal sector and invariably fall outside the protection of labour laws.
75 African Women's Protocol (n 19 above) art 10(3).
76 African Women's Protocol (n 19 above) arts 12(1)(c) & 13(g).
77 African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.9/49 (1990), entered into force 29 November 1999.
78 Angola, Democratie Republic of the Congo, Swaziland and Zimbabwe.
79 African Women's Protocol (n 19 above) art 9(2).
80 SADC Gender Protocol (n 18 above) art 18(1).
81 SADC Gender Protocol (n 18 above) art 18(1)(c).
82 The statistics show that, with regard to fixed-line telephones and mobile phone subscriptions as of 2000, in every 1 000, Botswana had 396; Democratic Republic of Congo (DRC) had 37; Lesotho had 109; Mozambique had 206; South Africa and Swaziland had no data; Zambia had 34; and Zimbabwe had 55. Regarding the number of people with personal computers, in every 1 000 people, Botswana had 45; there was no data with DRC and Lesotho; and Mauritius had only six people, while Mozambique had 109; South Africa had 82; Swaziland had 32; Zambia had 10; and Zimbabwe had 77. In relation to the number of people who use the internet, in every 1 000 persons, Botswana and Swaziland had 32; DRC had no data; Lesotho with 24 persons; Mauritius with a total of 7; Mozambique had 37; South Africa had 78; Zambia had 20; and Mozambique had 63. These figures are far too low, and need attention, given the usefulness of communication and technology in the world today.
83 SADC Gender Protocol (n 18 above) art 5.
84 SADC Gender Protocol (n 18 above) art 26.
85 SADC Gender Protocol (n 18 above) art 4(c).
86 SADC Protocol on Health, adopted in Maputo, Mozambique, 1999.
87 SADC Gender Protocol (n 18 above) art 29.
88 African Women's Protocol (n 19 above) arts14(1)(c) & (b).
89 Art 26(a) of the SADC Gender Protocol sets the very ambitious target of reducing maternal mortality by 75% by 2015. The provision on reducing maternal mortality is extremely vital, particularly because of 529 000 maternal deaths, 95% of this number occurred in Africa and Asia as of the year 2000. More shocking is the fact that, while women in developed countries have a one in 2 800 chance of dying during childbirth, women in Africa have one in 20 chance; therefore, given these statistics, there is nothing as important as aiming to reduce maternal mortality in Southern Africa.
90 SADC Gender Protocol (n 18 above) art 30.
91 UNAIDS, 2007 AIDS epidemic update, accessible at http://www.unaids.org/en/KnowledgeCentre/HIVData/EpiUpdate/EpiUpdArchive/2007/ (accessed 7 July 2008).
92 SADC Gender Protocol (n 18 above) art 31.
93 SADC Gender Protocol (n 18 above) art 3(e).
94 UN Charter (n 1 above) arts 55 & 56; ICCPR (n 3 above) arts 22 & 23; OHCHR General Comment 3 (n 3 above) para 38.
95 M Wandia 'Ratification of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: Ethiopia and the Comoros lead the way' http://old.apc.org/english/capacity/policy/mmtk_ictpol_humanrights_ African_Charter_protocol.doc (accessed 20 September 2009).
96 African Women's Protocol (n 19 above) arts 26(1) & (2).
97 SADC Gender Protocol (n 18 above) art 3(d).
98 SADC Gender Protocol (n 18 above) art 39(3).
99 SADC Gender Protocol (n 18 above) art 16(1).
100 SADC Protocol on Tribunal and Rules of Procedure thereof, adopted in Windhoek, Namibia, 7 August 2000, art 3(1).
101 CA Odinkalu 'Complementarity, competition or contradiction: The relationship between the African Court on Human and Peoples' Rights and Regional Economic Courts in East and Southern Africa' 10 http://www.africacourtcoalition.org/content_files/files/ChidionComplementarity.doc (accessed 12 June 2008).
102 SADC, Biographies of SADC Tribunal Judges, http://www.sadc.int/content/english/tribunal/docs/Biodata%20for%20SADC %20Tribunal%20Members%20and%20Staff.pdf (accessed 6 July 2008).
103 African Women’s Protocol (n 19 above) art 3(a).
104 African Women's Protocol (n 19 above) art 5(b).
105 African Women's Protocol (n 19 above) art 11(3).
106 African Union, Status of Women's Protocol http://www.africaunion.org/root/au/Documents/Treaties/List/Protocol%20on %20the%20Rights%20of%20Women.pdf (accessed 20 September 2009).
107 Constitutive Act of the African Union, accepted in Lomé, July 2000, entered into force May 2001, arts 3(c) & (I).
108 Constitutive Act of the African Union (n 107 above) art 3(l).
109 The Treaty Establishing the African Economic Community, adopted in Abuja, Nigeria, 3 June 1991, entered into force 12 May 1994, art 4(1).
110 Economic Community for Africa Assessing regional integration in Africa (2004) 33.
111 SADC Treaty (n 9 above) art 5(k).
112 Trade, Development and Co-operation between EU and South Africa, OJ L 311, Vol 42, 4 December 1999 http://eur-lex.europa.eu/JOIndex.do?year=1999&serie=L&textfield2=311&Submit= Search&_submit=Search&ihmlang=en (accessed: 13 October 2009).