An Evaluation of the Role of the African Court on Human and Peoples’ Rights in the Protection of Women's Rights Under the Maputo Protocol

Abstract

This study investigates the extent to which the African Court has protected the rights of women and girls as enshrined in the Maputo Protocol. Despite the fact that in theory, the Court is empowered to interpret the application and implementation of the Maputo Protocol, nevertheless, in practice, it has adjudicated on a minimal number of women's rights cases. This study argues that this is because of three key reasons. First is that the writers of the Protocol establishing the African Court did not envision women’s rights as beneficiaries of the Court. Second, historically, women were left out of the law-making process, and therefore, the development of human rights treaties and instruments were male-centric and did not provide for women's rights, which came much later after agitation by women’s rights advocates. Third, founded on the principle of complementarity, the Court was founded on the assumption that it would complement the local mechanisms of African States, which themselves jeopardise the justiciability of women's rights under their domestic courts. This study employs doctrinal research methodology to illustrate the disparity between the Court's mandate and role regarding women’s rights and its minimal adjudication on women’s rights issues. By reviewing case law, the legislative and institutional framework and the historical development of the Court, it demonstrates that not only was the all-powerful court with broad jurisdiction destined to be weak from the beginning, but that women were not the intended litigants or meant to benefit from its processes. This study adds to the body of knowledge on the human rights system in Africa and on women’s rights. Using a feminist approach to international law, it uncovers problematic assumptions, structural biases and blind spots that existing approaches ignore. These include the apparent gender- blind and gender- neutral establishment of the African Court and its mandate, while the reality and effect of its workings and structure disproportionately impact women.