Media Institute of Southern Africa (Windhoek)
Jennifer Mufune
2 June 2005
opinion
As anticipation over the establishment of the African Human Rights Court grows, so does concern over the time it is taking to actually become operational and the impact it will have on the lives of millions of African women who may not even be aware of how the Court could affect them.
The Protocol establishing the African Court on Human and People's Rights was adopted by the then Organisation of African Unity on June 10, 1998 and came into effect on January 15, 2004. In July 2004 the African Union Assembly took a decision to merge the African Court on Human and People's Rights with the Court of Justice of the African Union.
The main purpose of the African Human Rights Court is to compliment and reinforce the functions of the Commission on Human Rights. The Court's authority will extend to all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and People's Rights and any other human rights instruments ratified by African states. State parties may also by a separate declaration accept the competence of the Court to receive complaints from individuals and NGOs. State parties undertake to comply with the judgment of the Court and to guarantee its execution.
While this all sounds really impressive, as a non-legal person, I am concerned as to how exactly the Court will be able to assist the thousands of African women who, on a daily basis are treated as second class citizens by their own governments. These same women suffer discrimination and abuse in their own homes and in public and their national court systems fail to offer them justice and redress.
It is often very difficult for women to access the legal system in their own countries. Various factors such as the insensitivity of court personnel, enforcement agents, cumbersome administrative procedures as well as the threat of withdrawal of emotional and material support all contribute to women's reluctance to seek justice. Their economic realities also mean that they will prioritise buying food and paying for their children's education over legal representation to claim their rights.
Women's status as minors in many parts of Africa means that they are dependent on their male guardians to assist them - even when appearing in court. What do they do and how can they speak when it is that very guardian who is abusing their rights?
I also wonder how the African Court will be different from our legal systems and how it will make state parties comply with its decisions. Some of our governments do not take kindly to being told they are guilty of human rights violations - even when this is obvious. It will be interesting to see how the African Court will deal with such member states and enforce decisions made by the court.
Some of our country's legal systems are still based on laws that perpetuate discrimination and many of these laws need a complete overhaul if they are to work in unison and comply with the African Court system. For the Court to be effective, it will need the member states to seriously review national laws and policies. Given how long it is taking to get the Court operational, it is any one's guess how long meaningful legislative reform will take?
While on the subject of dragging feet, the Protocol on the Rights of Women in Africa has also yet to be ratified. As of March 2005 only 10 countries (Comoros, Djibouti, Libya, Lesotho, Mali, Namibia, Nigeria, Rwanda, South Africa, and Senegal) had ratified the Protocol which requires 15 signatures for ratification.
The Protocol clearly affirms the principles of equality, non-discrimination and guarantees the rights to life and access to justice and equal protection. While the African Court will give added teeth to the Protocol, the lack of information and awareness of the Court is a serious impediment to its success. If women do not know about the routes of redress available to them, then it does not matter how much potential the Court holds as a mechanism to protect their human rights.
Another concern is that of the 20 countries that have ratified the Protocol to establish the Court, only one has made a declaration allowing non-governmental organisations to file complaints. Civil society organisations play a critical role in both monitoring human rights violations as well as protecting the human rights of women and are strategically placed to assist both individual women and communities of women who may have legitimate reasons to seek redress through the court. Given the reasons outlined above, one wonders why more countries have not recognised the need to involve civil society in filing complaints. It begs the question: are our governments really as committed to ensuring that African women are able to realise their rights as they claim?
The African Human Rights Court, as with the Protocol on the Rights of Women in Africa holds great potential to improve the quality of life for African women. But whether this potential will be realised or the Court will become yet another ineffectual mechanism, remains to be seen.
Jennifer Mufune, MISA's Media Support Programme Specialist, based at its regional secretariat in Windhoek, Namibia. This article is part of the Gender Links Gender and Media Opinion and Commentary Service.
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