Introduction to the African Charter
The African Charter on Human and Peoples’ Rights (African Charter) is an international treaty aimed at human rights protection across the African continent. It enjoys wide-range acceptance with its ratification by 54 out of the 55 member states of the African Union (AU) in the continent. It came into force in October 1986. Article 18(3) of the African Charter provides for the non-discrimination of women. This provision places an obligation on states parties to ensure that all forms of discrimination against women are eliminated. It is the primary document which the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, otherwise referred to as the Maputo Protocol, supplements.
Introduction to the Maputo Protocol
The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa is otherwise referred to as the 'Maputo’ Protocol because it was adopted in Maputo, Mozambique. The Maputo Protocol is a comprehensive document that seeks to improve the status and lives of all women and girls in Africa. The Maputo Protocol is a regional human rights treaty that was adopted on 11 July 2003 and came into force on 25 November 2005.
The Maputo Protocol addresses gender inequality and abuse against African women comprehensively. It includes legal and other measures to protect women from violence, inequality in marriages and divorce, discrimination in education and the workplace, and denial of inheritance rights, harmful practices including child marriages and Female Genital Mutilation (FGM). Innovatively, it is the first international legally binding instrument to address sexual and reproductive health rights including explicit reference to protection from HIV and the right to safe and legal abortion under qualified circumstances.
The Maputo Protocol is a key tool in addressing gender inequality and advancing women’s rights in Africa if only state parties fulfill the rights enshrined in it. As of 1 March 2020, the Maputo Protocol has been ratified by 42 African States. These 42 states have agreed and consented to ensure that every woman enjoys the human rights provided for in the Protocol. The African Commission has an integral role in monitoring the compliance of states with the Maputo Protocol primarily through state reporting, issuing of concluding observations and considering complaints of human rights violations.
The African Commission appointed the Special Rapporteur on the Rights of Women in Africa in 1999 to serve as a focal point for the protection and promotion of women and girls rights in Africa. Part of her mandate is to define guidelines for state reporting to ensure that member states adequately address women's rights issues in their reports to the African Commission.
Introduction to State Reporting
The state reporting process is a fundamental component in monitoring the implementation of a treaty or human rights instrument. African states that have ratified the Maputo Protocol have an obligation to report to the African Commission on Human and Peoples’ Rights (African Commission). Article 62 of the African Charter and Article 26 (1) of the Maputo Protocol obligates states parties to submit state reports every two years indicating legislative and other measures undertaken towards the full realisation of the rights enshrined in the Maputo Protocol.
State reporting serves a number of important functions including but not limited to: stock-taking of measures undertaken by States parties towards compliance with their obligations under the Maputo Protocol; identifying problems and obstacles to the full implementation of the Maputo Protocol and providing an opportunity for constructive engagement with the African Commission in order that States parties may benefit from their concrete recommendations.
Without an enforcement mechanism, the state reporting process is the strongest means through which the African Commission can monitor state compliance with regional treaty obligations and to engage in constructive dialogue with states towards recommendations for concrete actions at the national level to domesticate the Maputo Protocol.
States parties that have ratified the African Charter, as well as the Maputo Protocol, have given their consent to submit one state report every two years to the African Commission outlining the human rights situation in their countries. The report must contain comprehensive information on the legislative, policy, and other measures the state party has taken to ensure that all persons in its country enjoy the rights guaranteed in the instruments.
Importantly this one report must be in two parts. The report must have a Part A that reports on the rights in the African Charter and then a Part B that deals with the rights in the Maputo Protocol.
Why is State Reporting needed?
State reporting is necessary to ensure greater implementation and compliance by state parties in Africa, with the rights and obligations as provided under the Maputo Protocol. African women will benefit in the long term from legal and other measures undertaken by states to uphold and guarantee the rights enshrined in the Maputo Protocol. The state reporting process will monitor and guide state action in this respect.
Furthermore, state reporting is needed to evaluate the human rights situation and development of countries in the African continent; as well as to analyse the progress and challenges of these countries. State reporting to the African Commission is fundamental to the rights of women in Africa.
In addition, these reports provide an opportunity to engage constructively with the African Commission. After consideration of these reports, the African Commission issues concluding observations and recommendations which the State Parties are expected to act on.
What is the role of NGOs and civil society in the state reporting process?
Article 45 (1)(c) of the African Charter grants the African Commission an opportunity to co-operate with other African and international organisations with the mandate to protect and promote human rights across the globe. This opportunity inspired the granting of ‘observer’ status to Non-Governmental Organisations (NGOs) and civil society organisations upon due application and consideration. The African Commission’s resolution 30(5) stipulates that an advantage that NGOs and civil society organisations derive from such ‘observer status’ is the preparation of ‘shadow’ reports on the human rights situation in their countries.
A shadow report is usually an organised and independent body of information compiled by NGOs and civil society organisations detailing the human rights situation in a particular country. A shadow report is expected to provide an accurate and comprehensive account of the human rights situation specifically explaining measures that the government has taken but importantly not taken (which it is legally bound by ratification to take) in implementing the provisions of a treaty. The report could be employed as an instrument for monitoring the progress made by governments on the human rights situation of respective states.
The shadow report could serve two important purposes
- The shadow report provides a means through which the African Commission can get a reliable and impartial picture of the human rights situation in a country.
- The shadow report assists the African Commission in its constructive engagement and dialogue with states parties upon consideration of reports.
Shadow and Alternative Reports are often used interchangeably. The distinction is that the African Commission recognises a shadow report when it is submitted as a parallel report to ‘shadow’ or to supplement a state report by providing information that is not reported or under-reported. However, the African Commission is yet to recognise the report as an alternative report that is submitted when/if a particular state party/ government is either late or fails to submit its state report.
The State Reporting Process in Brief
The reporting process usually involves the following stages:
STAGE 1 - Ratification
What do we mean by ratification?
Ratification is an expression of consent and acceptance by a state to implement and fulfil the rights that are contained in a treaty. When a state ratifies the Maputo Protocol, the state is consenting to be bound by the obligations that are outlined and set out in the Maputo Protocol.
- For an overview of the number of states that have ratified the Maputo Protocol, download the Ratification Status Table.
STAGE 2 - Submission of the initial state report or periodic report(s)
What is an Initial State Report and a Periodic State Report?
An initial report is the first report that a state party submits after the ratification of a treaty, while the periodic report(s) usually refers to the subsequent report(s) that are submitted thereafter.
For the Maputo Protocol, states parties are required to submit an initial report two years after its ratification of the instrument and a periodic report every two years thereafter. In submitting a periodic report, a state must take into consideration the previous concluding observations that the African Commission issued to the state. It is usually expected that the state outlines the steps that it has taken to implement the African Commission’s observations and recommendations.
- For a guide on how to report and the contents of an initial report and a periodic report, download the Reporting Guidelines on the Maputo Protocol.
STAGE 3 - Issuing of the African Commission’s list of issues and questions
What do we mean by the African Commission’s list of issues and questions?
The African Commission experts usually present the state party with a list of issues and questions in advance of its consideration of the state party’s report. The list of issues and questions are usually based on concerning issues either from the state report or concerns that have raised in shadow reports prepared by NGOs and CSOs. It provides the opportunity for the African Commission experts to request for additional information and/or clarification that may be considered essential before the state report is formally examined. In addition, the list of issues and questions can be useful as a guide to allow the state party representatives a sneak peek into what the line of questioning could be and to be adequately prepared.
- For the Maputo Protocol, the Special Rapporteur on the Rights of Women in Africa may decide to send the state party a list of issues and questions particularly in relation to the implementation of the Maputo Protocol in the state
STAGE 4 - Government’s written replies
What do we mean by Government’s written replies?
After a Government has received the African Commission’s list of issues and questions, the Government may decide to respond in writing. This written response is then treated as additional or supplement information to the information contained in the state report. The Government's written replies are particularly useful when there has been an extensive delay between when a state report was submitted and when it is formally considered.
STAGE 5 - Constructive dialogue
What do we mean by constructive dialogue?
When a state report is due for consideration at an ordinary session of the African Commission, the state usually sends a Government delegation to take part in a constructive dialogue with the African Commission’s experts. This constructive dialogue could include where the Government delegation responds to questions, provide clarification and additional information on the steps that have been taken to implement the provisions of the treaty. The dialogue should not be seen as a means to embarrass the state or its Government. As the term constructive dialogue suggests, it is a means through which the African Commission can encourage Governments to ensure the provisions of the treaty are implemented in the state.
For the Maputo Protocol, for instance, the Special Rapporteur on the Rights of Women in Africa is usually given the opportunity to engage and dialogue constructively with the Government delegation on the steps it has taken to ensure the implementation of the provisions of the Maputo Protocol specifically and the realisation of the human rights of women.
STAGE 6 - Issuing Concluding Observations and Recommendations
The African Commission’s examination of a state report usually ends in the issuing or adoption of concluding observations and recommendations. States are required to publicise and disseminate the concluding observations and recommendations issued by the African Commission within the country which is a form of feedback within the country to raise awareness and strengthen the implementation of the treaty. The completion of the African Commission’s examination of a state report in the form of concluding observations does not end the reporting process.
STAGE 7 - Implementation of concluding observations and recommendation by the state and the submission of the next periodic report
After receiving the African Commission’s concluding observations and recommendation, the reporting process does not end. The state is expected to take continuous steps to ensure the realisation and implementation of the treaty, through the implementation of the concluding observations and recommendations.
STAGE 8 - The process starts again in a circular fashion from Stage 2
The state party is expected to submit a periodic report every two years detailing the implementation of the concluding observations and recommendations and any other developments in the implementation of the treaty