Op-Ed: Is the Maputo Protocol Still Useful for Promoting Women’s Rights in Africa?

Developed by African women for African women and taking into consideration African religious and cultural contexts, the Maputo Protocol was a landmark progressive agreement to ensure that the rights of African women across the continent would be promoted and upheld.

Ratified by 45 States after being negotiated for almost 20 years, it addressed issues of reproductive health and became the first legal instrument to prohibit entrenched harmful practices like Female Genital Mutilation (FGM), breast ironing, and child marriage.

Two decades later, the world is once again shifting towards conservative right-wing politics, and the anti-gender movement in particular is working hard to roll back these hard-won progressive gains.

Nigeria has a femicide problem it refuses to acknowledge, Kenyan marchers against femicide are met with police violence, and Tunisia’s LGBTQ+ communities are being subjected to conservative crackdowns. Between gender-based violence (GBV) and increasing anti-gay laws, Africa keeps failing its women and girls.

Even when legal protections exist on paper, they often fail to translate into real change. A recent study by Equality Now and Tadwein for Gender Studies gives hope that Sudanese displacement to Egypt might help end FGM, a practice that has persisted despite being unlawful in both countries.

Similar to the laws banning FGM, the Maputo Protocol has not yet achieved what it was intended to do. If laws cannot protect women, should we continue to pursue legal frameworks that are set up by institutions or governments that many Africans have long lost faith in, or is it time to change strategy?

“Twenty-two years is really a short term in the life of an international instrument. The Universal Declaration of Human Rights was adopted in 1948, and we cannot say that countries across the world have fully implemented the provisions of the Universal Declaration of Human Rights,” Deborah Nyokabi, a legal equality expert at Equality Now, tells OkayAfrica.

“Largely, [the Maputo Protocol] has made its strides while still having gaps here and there,” she continues. “It has been useful in enacting anti-GBV laws across the continent, and a lot of African countries have incorporated gender quotas in their parliamentary and executive systems.”

One example is Namibia. Earlier this year, newly elected President Netumbo Nandi-Ndaitwah appointed the world’s first women-majority cabinet.

Nyokabi is convinced that the Maputo Protocol remains an important tool for African feminists to build on. “It stands as a binding obligation to African governments,” she asserts. “It is a record that our rights as women are non-negotiable.”

One of the protocol’s key challenges is countries’ reservations on certain articles that they claim infringe on their national sovereignty.

For example, most member states have placed reservations on Articles 6 and 16, which address equality in marriage and the family. The anti-gender movement is also focusing its attacks on these domains.

In May, Nairobi’s 2nd Pan-African Conference on Family Values was dominated by white evangelical male speakers from the U.S., declaring that only patriarchal, heteronormative, nuclear family structures should be recognized as families.

“There can be no equality in society if there is no equality in the family,” says Nyokabi. “It’s really concerning. Why are we having people from outside define what the family is for us?”

The success of the Maputo Protocol requires several steps: ratification by the government; domesticating its laws to fit the local context; and implementing these laws in courts and the cultural sphere.

Nyokabi mentions State reporting as one of the mechanisms that monitor this process. Each state that has ratified the protocol is supposed to present a report on how it is implementing the protocol every two years. Once a state submits its report, civil society actors have an opportunity to present a shadow report.

While it is debatable whether a dialogue between the African Commission on Human and Peoples’ Rights and the State about a negative report will change discrimination, there are opportunities for civil society and women’s rights organizations to hold courts accountable. Indeed, laws are often only words on paper, but the Maputo Protocol still gives them legal ammunition.

“Coalition and movement building have to be at the center of this,” says Nyokabi, who has no illusions that a law can protect the most vulnerable people who might not even know about its existence. Most importantly, they need to be empowered to know and claim their rights.

These rights need to be ensured through the protocol and taught by translating it into local languages.

“Who's going to suffer most? It's a woman who cannot access maternal health care because her government declined to spend on reproductive health rights of women, and that means a woman will die in a hospital giving birth, or she'll have permanent immobility, because the right economic resources and hospital infrastructure for maternal health care are not there,” says Nyokabi. “We really need to center these realities of the women at the remotest places in our continent.”

In this effort, Nyokabi believes that the Maputo Protocol is a crucial document to support grassroots feminist activism. “It is approaching its adolescence,” she says. “This is the time when it needs the most guidance and protection.”