RECENT DEVELOPMENTS

 

Towards the adoption of guidelines for state reporting under the African Union Protocol on Women's Rights: A review of the Pretoria Gender Expert Meeting, 6-7 August 2009

 

 

Japhet Biegon

Researcher and LLD candidate, Centre for Human Rights, University of Pretoria; Advocate of the High Court of Kenya

 

 

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SUMMARY

The article examines the results of and insights from the Pretoria Gender Expert Meeting which was convened with the primary purpose of developing state reporting guidelines under the African Women's Protocol. The focus of the article is the draft guidelines that were adopted at the end of the meeting, and the process and deliberations that yielded that draft. The Pretoria Draft Guidelines clears up the uncertainty regarding how a report under the Protocol should be grafted into a report under the African Charter in terms of article 26 of the Women's Protocol. As a set of guidelines, it seeks to achieve clarity and precision in three ways: by requiring states to report in terms of a list of measures of implementation; by drawing a clear distinction in the nature of information required in respect of first and subsequent reports; and by grouping the provisions of the Protocol into thematic clusters for reporting purposes. In the final analysis, it is concluded that the Pretoria Draft Guidelines provide a promising platform for the invigoration of the African Commission's state reporting mechanism and, by extension, the promotion and protection of women's rights in Africa. However, it has been noted that the effectiveness and impact of the reporting guidelines (and that of the reporting system as a whole) will depend on at least three other factors: the effective dissemination of the guidelines; the harmonisation of reporting guidelines; and the general reform of the African Commission's reporting mechanism.

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* LLB (Hons) (Moi), Post Grad Diploma in Law (Kenya School of Law), LLM (Human Rights and Démocratisation in Africa) (Pretoria); tehpajia@yahoo.com. The author was a joint Rapporteur of the Gender Expert Meeting on State Reporting on the Protocol on the Rights of Women in Africa, 6-7August 2009, Pretoria, South Africa.
1 F Banda 'Blazing a trail: The African Protocol on Women's Rights comes into force' (2006) 50 lournal of African Law 72 84.         [ Links ]
2 African Women’s Protocol, art 26.
3 United Nations United Nations action in the field of human rights (1988) 313-314.         [ Links ]
4 M Nowak CCPR commentary (2005) 713-714.         [ Links ]
5 J Symonides Human rights: International protection, monitoring, enforcement (2003) 59.         [ Links ]
6 State reporting is a mandatory requirement of the nine core UN human rights treaties. Each of these treaties requires states to submit initial reports, to be followed by periodic reports, indicating the measures they have taken to implement the rights enumerated in the treaties. See generally United Nations Manual on human rights reporting (1997).         [ Links ]
7 See P Alston 'The purposes of reporting' in United Nations (n 6 above) 19-20.
8 On regional human rights systems, see D Shelton (ed) Regional protection of humanrights (2008).         [ Links ]
9 According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), human rights treaty bodies adopt guidelines on the form and content of state reports 'in order to ensure that reports contain adequate information to allow the committees to do their work'. See OHCHR The United Nations human rights treaty system: An introduction to the core human rights treaties and the treaty bodies (2005) 18.         [ Links ]
10 In its Consolidated Guidelines for State Reports under the International Covenant on Civil and Political Rights, the UN Human Rights Committee notes that compliance with the guidelines 'will reduce the need for the Committee to request further information when it proceeds to consider a report; it will also help the Committee to consider the situation regarding human rights in every state on an equal basis'.
11 Alston (n 7 above) 20.
12 F Viljoen International human rights law in Africa (2007) 37.         [ Links ]
13 C Heyns 'The African regional human rights system: In need of reform?' (2001) 1 African Human Rights Law Journal 155 156.         [ Links ]
14 Art 62 of the African Charter does not expressly confer on the African Commission the duty of receiving and examining state reports under the Charter. Its authority to do so was entrusted on it by the Organisation of African Unity Assembly of Heads of State and Government after the African Commission submitted to it a resolution asserting itself as the appropriate organ capable of examining state reports under the African Charter. See Second Annual Activity Report of the African Commission (1988-1989) 20.         [ Links ]
15 For an elaborate exposition of the African Commission's state reporting procedure, see A Danielsen The state reporting procedure under the African Charter (1994);         [ Links ] M Evans & R Murray 'The state reporting mechanism of the African Charter' in M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights: The system in practice, 1986-2006 (2008) 49.         [ Links ]
16 See African Commission on Human and Peoples' Rights State reporting procedure: Information sheet No 4.         [ Links ]
17 Viljoen (n 12 above) 379, observing that 'the procedure adopted by the Commission is also hardly conducive to true dialogue. A series of questions is posed in quick succession by each of the 11 commissioners, followed by responses to some of these questions by an often-bewildered representative. The process is more akin to a series of critical statements, followed by a statement in defence of the report.'
18 It was at its 9th session in March 1991 that the African Commission considered its first batch of state reports from the states of Libya, Rwanda and Tunisia.
19 See African Commission Second Annual Activity Report 1988-1989 ACHPR/RPT/2nd. The Guidelines are reprinted in C Heyns (ed) Human rights law in Africa (2004) 507-524.
20 The 1989 Guidelines, para 2 under the 'general guidelines regarding the form and contents of reports from states on civil and political rights'.
21 As above.
22 The 1989 Guidelines, para 2 under 'Introduction'.
23 Viljoen (n 12 above) 373.
24 G Mugwanya 'Examination of state reports by the African Commission: A critical appraisal' (2001) 1 African Human Rights Law Journal 268 279.         [ Links ]
25 F Viljoen 'State reporting under the African Charter on Human and Peoples' Rights: A boost from the South' (2000) 44 Journal of African Law 110 111.         [ Links ]
26 K Quashigah 'The African Charter on Human and Peoples' Rights: Towards a more effective reporting mechanism' (2002) 2 African Human Rights Law Journal 261.         [ Links ]
27 Danielsen (n 15 above) 49.
28 Viljoen (n 12 above) 372.
29 'Guidelines for periodic reporting under article 62 of the African Charter on Human and Peoples' Rights' by UO Umozurike, adopted at the African Commission's 23rd session (1998), Doc/OS/27(XXIII); reprinted in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2007) 169.         [ Links ]
30 The 1998 Guidelines, Preamble.
31 Viljoen (n 12 above) 373. In addition to the 1998 Guidelines, there is in existence an undated third set of guidelines prepared by Commissioner Dankwa. These guidelines are essentially an elaboration of the 1998 Guidelines and they are usually sent out to governments together with the 1998 Guidelines. These Guidelines, however, have never been officially adopted by the Commission and the status of the Guidelines is therefore unclear. See 'Simplified Guidelines for State Reporting under article 62 of the African Charter on Human and Peoples' Rights' printed in Viljoen (n 25 above) 112-113.
32 Evans & Murray (n 15 above) 63.
33 Quashigah (n 26 above) 264.
34 The South African initial report and the Zimbabwean report are lauded as among the few reports that have complied with the 1998 Guidelines. See Viljoen (n 25 above).
35 Evans and Murray (n 15 above) 62-63.
36 J Biegon & M Killander 'Human rights developments in the African Union during 2008' (2009) 9 African Human Rights Law journal 295 300.         [ Links ]
37 2 6th Activity Report of the African Commission, EX CL/529(XV), para 134.
38 As above.
39 As above.
40 Shelton (n 8 above) 544.
41 African Women's Protocol, art 6(c).
42 Art 14(2)(c).
43 Art 4(2).
44 Arts 14(1)(d) & (e).
45 See Banda (n 1 above); D Chirwa 'Reclaiming (wo)manity: The merits and demerits of the African Protocol on women's rights' (2006) LIII Netherlands International Law Review 63.         [ Links ]
46 The African Commission has adopted the following resolutions touching on women's rights: Resolution on maternal mortality; Resolution on the right to a remedy and reparation for women and girl victims of sexual violence; Resolution on the health and reproductive rights of women; Resolution on the situation of women in the Democratic Republic of Congo; Resolution on the status of women in Africa and the entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa; and Resolution on the situation of women and children in Africa.
47 See generally R Murray 'The Special Rapporteurs in the African system' in Evans & Murray (n 15 above) 344.
48 These states are Benin, Libya, Nigeria, Rwanda, Tanzania, Zambia and Zimbabwe. The Republic of Seychelles, whose report was examined in 2006, has been excluded from this list because its report had been prepared and submitted to the African Commission long before the country had ratified the Protocol and before the Protocol had come into force.
49 Centre for Human Rights 'Background paper: Towards the adoption of reporting guidelines under the African Women's Protocol' http://www.chr.up.ac.za/centre_projects/gender/docs/Background-paper-protocol-29July2009.doc (accessed 18 October 2009).         [ Links ]
50 Centre for Human Rights 'Concept note for Gender Expert Meeting on 6 and 7 August at the Farm Inn, Pretoria, South Africa' http://www.chr.up.ac.za/centre_projects/gender/docs/concept%20note%20(2).doc (accessed 18 October 2008).         [ Links ]
51 Centre for Human Rights (n 49 above).
52 The commissioners who participated in the meeting are Commissioner Soyata Maiga (Special Rapporteur on the Rights of Women in Africa), Commissioner Pansy Tlakula (Special Rapporteur on Freedom of Expression and Access to Information in Africa) and Commissioner Dupe Atoki (Chairperson of the follow-up committee on the Robben Island guidelines). The full list of participants is available at http://www.chr.up.ac.za/centre_projects/gender/docs/participants.doc (accessed 18 October 2008).
53 ACHPR/Res 62 (XXXII) 02, adopted during the African Commission's 32nd ordinary session, Banjul, The Gambia, from 17 to 23 October 2002; reprinted in Heyns & Killander (n 29 above) 279-283.
54 ACHPR/Res 61 (XXXII) 02, adopted during the African Commission's 32nd ordinary session, Banjul, The Gambia, from 17 to 23 October 2002; reprinted in Heyns & Killander (n 29 above) 284-288.
55 Adopted during the African Commission's 33rd ordinary session, Niamey, Niger, 15-29 May 2003; reprinted in Heyns & Killander (n 29 above) 288-311.
56 Draft Principles and Guidelines on Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights http://www.achpr.org/english/other/Draft_guideline_ESCR/Draft_Pcpl20&%20Guidelines.pdf (accessed 19 October 2009).         [ Links ]
57 Guidelines for initial reports of state parties to the African Charter on the Rights and Welfare of the Child, Cmttee/ACRWC/2 II Rev 2, para XI, provision 24.
58 F Viljoen 'Introduction to the African Commission and the regional human rights system' in C Heyns (ed) Human rights law in Africa (2004) 385.         [ Links ]
59 As above.
60 General guidelines regarding the form and content of periodic reports to be submitted by state parties under art 44, para 1(b) of the Convention, CRC/C/58/Rev 1, para 3.
61 Guidelines for initial reports of state parties, Commttee/ACRWC/2 II Rev 2, para 7.
62 See J Sloth-Nielsen & B Mezmur 'Out of the starting blocks: The 12th and 13th sessions of the African Committee of Experts on the Rights and Welfare of the Child' (2009) 9 African Human Rights Law Journal 336 342-346.         [ Links ]
63 Save the Children Sweden & Plan International Advancing children's rights: A guide to civil society organisations on how to engage with the African Committee of Experts on the Rights and Welfare of the Child (2009), cited in Sloth-Nielsen & Mezmur (n 62 above) 344.
64 Sloth-Nielsen & Mezmur (n 62 above) 342.
65 The 1989 and the 1998 Guidelines do not set a limit on the number of pages. As a consequence, reports submitted to the African Commission have varied vastly in length, ranging from reports of less than 10 pages to those that run into hundreds of pages.
66 Decision 5 (2002) CRC/C/148.
67 As above.
68 Harmonised Guidelines on Reporting under the International Human Rights Treaties, including Guidelines on a Core Document and Treaty-Specific Documents, HRI/ GEN/2/Rev 5, para 19.
69 Evans & Murray (n 15 above) 64.
70 Viljoen (n 12 above) 415-416.
71 Evans & Murray (n 15 above) 64.
72 Evans & Murray (n 15 above) 62-63.
73 Evans & Murray (n 15 above) 63.
74 Final report on enhancing the long-term effectiveness of the United Nations human rights treaty system, E/CN 4/1997/74, para 48.
75 Rules of Procedure of the African Commission, 1995, Rule 2(1).
76 F Seidensticker Examination of state reporting by human rights treaty bodies: An example of follow-up at the national level by national human rights institutions (2005).         [ Links ]
77 Seidensticker (n 76 above) 11.
78 Seidensticker (n 76 above) 16.

 

 

Annexure: The Pretoria Draft Guidelines

Guidelines for state reporting under the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa

Pursuant to article 26 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the Protocol), read together with article 62 of the African Charter on Human and Peoples' Rights (the African Charter), each state party to the Protocol has agreed to submit every two years, from the day the Protocol comes into force, a report on the legislative, judicial, administrative and other measures taken with a view to ensure full realisation of the rights and freedoms contained in the Protocol.

A state party to the African Charter and the Protocol must submit its report in two parts: Part A, dealing with the rights in the African Charter, and Part B, dealing with the rights in the Protocol. A state's first report under Part B must, preferably, not exceed 50 pages and subsequent reports should not exceed 30 pages. In the preparation of Part B, state parties should follow the following guidelines:

First reports

When states report for the first time under the Protocol, they must provide the following:

Process of preparation

1 To what extent was civil society, in particular individuals and organisations working on gender issues, involved in the preparation of the report?

Background information

1 A brief description of the state's overall legal framework as it relates to women's rights (such as the Constitution, other laws, policies and programmes).

2 An explanation as to whether the Protocol is directly applicable before national courts or if it is incorporated into domestic law. Information on whether in practice the provisions of the Protocol have been invoked before national courts and tribunals (with some examples of the most important cases).

3 If the state has entered any reservations to the Protocol, it should provide an explanation indicating the effect of the reservation(s) on the enjoyment of the Protocol rights.

4 A brief description of state institutions, if any, relevant to the Protocol and information on their budgetary allocation.

5 General information on gender budgeting.

6 Information on gender mainstreaming, including any policy and capacity-building efforts.

7 Information on any gender audit of laws or legal reform efforts undertaken from a gender perspective (attach relevant documents).

Specific provisions of the Protocol

In respect of each of the provisions of the Protocol (which have been thematically structured below), states should explain the measures of implementation that they have undertaken with regard to the following:

a Legislation (What legislative measures has the state taken to give effect to the particular right guaranteed in the Protocol?)

b Administrative measures (What administrative measures, including budgetary allocations, has the state taken to give effect to the particular right guaranteed in the Protocol?)

c Institutions (What institutional mechanisms are in place to ensure that the particular right guaranteed in the Protocol is given effect?)

d Policies and programmes (What policies and programmes has the state adopted in order to give effect to the right in question?)

e Public education (What public education and awareness-raising activities has the state undertaken with respect to the right?)

f Any other measures (What other general measures, which are not covered in the points above, has state adopted to ensure the protection of the particular right?)

g Remedies (judicial and administrative (extra-judicial)) (What are the available avenues for redress in the event of a breach of the particular right provided in the Protocol? Have any cases been decided in respect to each of the right; and if so, have these decisions been implemented?)

h Challenges experienced (What are the challenges that the state has faced in the implementation of the particular right, and what steps have been taken to overcome these challenges?)

i Accessibility (Is the particular right accessible to all women, especially rural/impoverished women?)

j Disaggregated statistics (Where relevant, the state should provide relevant data and statistics disaggregated by gender in so far as the right in question is concerned.)

With reference to the measures of implementation above, states must report on all the provisions of the Protocol, preferably as grouped under the following eight (8) themes:

1 Equality/Non-discrimination

1.1 Elimination of discrimination (article 2)

1.2 Access to justice, including legal aid and the training of law enforcement officials (article 8)

1.3 Political participation and decision-making (article 9)

1.4 Education (article 12)

2 Protection of women from violence

2.1 Bodily integrity and dignity, including sexual violence, trafficking of women and medical and scientific experimentation (article 3 & 4)

2.2 Practices harmful to women, including female genital mutilation (article 5).

2.3 Female stereotypes (article 4(2)(c))

2.4 Sexual harassment

2.5 Domestic violence (article 4(2)(a))

2.6 Support to victims of violence, including heath services and psychological counselling (article 5(c))

3 Rights relating to marriage (articles 6-7)

3.1 Marriage and its effect on property relations, nationality, name (article 6(e) to (j))

3.2 Minimum age of marriage (article 6(b))

3.3 Registration of marriages (article 6(d))

3.4 Protection of women in polygamous marriages (article 6(c))

3.5 Protection of women during separation, divorce or annulment of marriage (article 7)

3.6 Protection of children in the family (article 6(i)

4 Health and reproductive rights

4.1 Access to health services (article 14(2)(a))

4.2 Reproductive health services, including the reduction of maternal mortality (article 14(1)(a) & (b))

4.3 Provision for abortion (article 14(2)(c))

4.4 HIV/AIDS (article 14(1)(d))

4.5 Sex education (article 14(1)(g))

5 Economic, social and cultural rights

5.1 Economic and welfare rights (article 13)

5.2 Right to food security (article 15)

5.3 Right to adequate housing (article 16)

5.4 Right to positive cultural context (article 17)

5.5 Right to a healthy and sustainable environment (article 18)

5.6 Right to sustainable development, including the right to property; access to land and credit (article 19)

6 Right to peace (article 10)

6.1 Women's participation in peace and conflict prevention and management (article 10(1)) and in all aspects of post-conflict reconstruction and rehabilitation (article 10(2)(e))

6.2 Reduction of military expenditures in favour of social spending (article 10(3))

7 Protection of women in armed conflicts (article 11)

7.1 Indicate measures of protection for asylum seekers, refugees, internally displaced women and ensure the punishment of all violators of such protection (article 11(1) - (3)).

7.2 Protection that no child especially girls take a direct part in hostilities and no child is recruited as a solider (article 11(4))

8 Rights of specially protected women's groups

8.1 Widows, including their inheritance rights (articles 20 & 21)

8.2 Elderly women (article 22)

8.3 Women with disabilities (article 23)

8.4 Women in distress (article 24)

Subsequent reports

Subsequent reports should cover the following:

• Measures taken to implement recommendations in the concluding observations of the Commission emanating from the examination of the previous report.
• Measures taken to publicise and disseminate the concluding observations adopted after the examination of the previous report.
• Progress made in the implementation of the Protocol since the last report.
• The challenges faced in the implementation of the Protocol since the last report, and steps taken to address these challenges.
• Future plans in regard to the implementation of the Protocol.