# Women's right to sexual and reproductive health information: The Gambia's fix for female genital mutilation

Aaron Olaniyi Salau*

https://orcid.org/0000-0002-6703-7794

**ABSTRACT:** This article argues that the African Union's theme for 2024, 'Educate an African fit for the 21st century', provides an avenue to galvanise support for the protection of women's right to sexual and reproductive health information (women's right to SRHI) considering the power of knowledge and information to foster socio-cultural transformation and sustainable development. The right protects women's sexuality, reproductive health and well-being and is a precondition for substantive equality between men and women. The provision of comprehensive information and education in schools and in public on women's rights to sexual and reproductive autonomy can drive the transformation of harmful cultural practices and historical discriminations against African women in reproductive healthcare. In Africa, as elsewhere, despite legislation and policies against gender-based violence and discrimination, the prevalence of female genital mutilation (FGM) disempowers women from attaining their sexual and reproductive health. The rise in FGM during the COVID-19 pandemic and recent attempts to overturn its ban in The Gambia portray the danger of possible reversal of the previous gains of FGM ban. This article therefore makes the case for the express recognition of women's right to SRHI. In doing this, it draws from empirical, legal and health literature and policy documents to re-conceptualise women's right to SRHI based on substantive equality, and examines the merits of the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) and related instruments to safeguard women's access to comprehensive information and education on sexual and reproductive health and rights. The article reveals gaps between policy and women's lived experiences regarding access to SRHI and concludes by encouraging the African Union and development partners to support The Gambia and other African states to prioritise access to culturally sensitive sexuality information and education.

## TITRE ET RÉSUMÉ EN FRANÇAIS

### Le droit des femmes à l'information sur la santé sexuelle et reproductive : l'approche de la Gambie face aux mutilations génitales féminines

**RÉSUMÉ:** Cet article soutient que le thème de l'Union africaine pour 2024, intitulé «Éduquer une Afrique adaptée au XXIe siècle», offre une opportunité cruciale pour promouvoir le droit des femmes à l'information sur la santé sexuelle et reproductive. Ce droit, indispensable à la protection de la sexualité, de la santé reproductive et du bien-être des femmes, constitue une pierre angulaire pour parvenir à l'égalité réelle entre les hommes et les femmes. L'accès à une information complète et à une éducation publique sur les droits des femmes à l'autonomie sexuelle et reproductive est essentiel pour transformer les pratiques culturelles néfastes et les discriminations

* PhD (Cape Town), LLM LLB (OAU, Ile Ife); Reader and Coordinator of Clinical Legal Education, Faculty of Law, Department of Jurisprudence & International Law, Olabisi Onabanjo University, Ago-Iwoye, Ogun State, Nigeria; Barrister & Solicitor of the Supreme Court of Nigeria; aaron.salau@ouagoiwoye.edu.ng or niyisalau@yahoo.co.uk
historiques. En Afrique, malgré l'existence de législations et de politiques visant à lutter contre la violence et la discrimination fondées sur le genre, la prévalence des mutilations génitales féminines (MGF) continue de compromettre gravement le droit des femmes à la santé sexuelle et reproductive. L'augmentation des cas de MGF pendant la pandémie de COVID-19 et la tentative récente de révoquer leur interdiction en Gambie illustrent les risques de recul dans la lutte contre ces pratiques. L'article plaide pour une reconnaissance explicite du droit des femmes à la santé sexuelle et reproductive, en s'appuyant sur des analyses empiriques, juridiques et politiques. Il reconceptualise ce droit à travers le prisme de l'égalité réelle et évalue le rôle des instruments juridiques régionaux, notamment le Protocole de Maputo, dans la protection et la promotion de l'accès des femmes à une information et une éducation complètes en matière de santé sexuelle et reproductive. En révélant les écarts persistants entre les politiques adoptées et les expériences vécues par les femmes, l'article souligne l'urgence pour l'Union africaine et ses partenaires de développement de soutenir des États comme la Gambie dans leurs efforts pour prioriser l'accès à une éducation sexuelle adaptée, respectueuse des cultures et intégrée aux politiques de santé publique. L'article conclut en appelant à un engagement renouvelé pour garantir que ces droits fondamentaux soient au cœur du développement durable et des transformations socioculturelles en Afrique.

**KEY WORDS:** Maputo Protocol; sexual and reproductive health and rights; women's right to sexual and reproductive health information and education; sexuality education; FGM

## CONTENT:

1 Introduction..................................................................................................................362

2 Re-conceptualising women's right to SRHI.................................................................366

2.1 Substantive equality and women's right to SRHI..................................................366

2.2 Women's right to SRHI as a substantive right.................................................................369

3 Women's right to SRHI: international and regional standards and consensus documents ..................................................................................................................374

3.1 International and regional treaties and consensus documents..................................................375

3.2 African regional treaty bodies and jurisprudence.................................................................378

4 FGM and women's right to SRHI in The Gambia.................................................................382

4.1 Constitutional and socio-cultural background to FGM prevalence in The Gambia..................................................................................................................382

4.2 The gap in the legal protection of women's rights in The Gambia........................................383

4.3 Women's right to SRHI and ongoing constitutional review in The Gambia.................384

5 Conclusion .................................................................................................................................385

# 1 INTRODUCTION

Women's (including girls') right to sexual and reproductive health information (women's right to SRHI) is vital to the realisation of sexual and reproductive health and rights (SRHR) such as the right to health, right to life, non-discrimination, freedom from torture, right to education, and is an essential pre-condition for substantive equality between men and women.<fnref n="1" /> This means that states have an overarching obligation to provide appropriate information and educational measures to address all discriminatory norms that hinder women's enjoyment of SRHR on equal basis with men. This would require 'saving' women's right to SRHI from its current fragmentation under international human rights law or, as it were, 'from the shadows': a task of re-conceptualisation. Also, women's right to SRHI suffers from

<footnote n="1">1 RJ Cook & MF Fathalla 'Advancing reproductive rights beyond Cairo and Beijing' (1996) 22 *Comment* 119.</footnote>
multiple conceptualisations which tends to unnecessarily confuse its normative content and ultimate realisation whereby a conceptual overload could 'imply that access to information plays a subordinate role to the right that it is facilitating'.² Most importantly, any attempt to anchor a human right from multiple sources implies a rudimentary perception of the right considering that governments are required to respect, protect, promote and fulfil every human right.³ Conversely, religious and traditional misconceptions and misinformation underlie female genital mutilation (FGM), which is the partial or total removal of the external female genitalia or other injury to the female organs for non-medical reasons, making it a violation of women's SRHR.⁴ Though it is not ordinarily done with the intention of inflicting harm, but driven and reinforced by patriarchy, FGM seriously affects women of reproductive age (between 15-49 years) and has an insidious connection with early/child marriage.⁵ Furthermore, FGM deprives women and girls of making choices and decisional autonomy over their reproductive health and well-being free of coercion and violence. The procedure is usually performed by traditional practitioners actively supported by parents, elderly women, and religious leaders whereby it constitutes girls' rite of passage, indicative virginity, and marriageability.⁶ FGM results in death, infant mortality and life-long mental and physical health challenges.⁷ An estimated 230 million plus women and girls are FGM victims globally over 144 million of whom are in Africa and where FGM is concentrated across not less than 27 countries.⁸ Nigeria has the world's third largest number of FGM victims while countries in North Africa and the horn of Africa have about 95 and 98 per cent of the women as victims respectively.⁹ Whilst not less than 24 African countries had prohibited FGM as of 2020 and ratified the Protocol to the African Charter on Human and Peoples' Rights on

2 CA Bishop 'Internationalizing the right to know: conceptualizations of access to information in human rights law' PhD dissertation, University of North Carolina, 2009 37.

3 Vienna Conference on Human Rights 1993.

4 Department of Women's Health, Family and Community Health, World Health Organization 'a systematic review of the health complications of female genital mutilation including sequelae in childbirth WHO/FCH/WMH/00.2' (2000) 11.

5 UNICEF 'Understanding the relationship between child marriage and female genital mutilation: a statistical overview of their co-occurrence and risk factors' (2021) 7-42, http://data.unicef.org/resources/understanding-the-relationship-between-child-marriage-and-fgm/ (accessed 20 October 2024); World Vision UK 'Exploring the links: female genital mutilation/cutting and early marriage' (2014) 7-13, http://Exploring_the-links_FGM_cutting_and_early-marriage.pdf (accessed 20 October 2024).

6 UNICEF 'Female genital mutilation/cutting: a global concern' (2016) 2, ttps://data.unicef.org/resources/female-genital-mutilationcutting-global-concern/ (assessed 15 August 2024); A Kaplan and others 'Health consequences of female genital mutilation/cutting in The Gambia, evidence in action' (2001) 8 *Reproductive Health* 1; K Nakamura and others (eds) *Female genital mutilation/cutting: global zero tolerance policy and diverse responses from African and Asian Local Communities* (2023) 5.

7 As above.

8 UNICEF Data 'Female genital mutilation (FGM)', https://data.unicef.org/topic/child-protection/female-genital-mutilation/#_edn1 (assessed 15 August 2024).

9 As above.
the Rights of Women in Africa (African Women’s Protocol or Maputo Protocol) 2003, secretive practices of FGM persist. Significant reductions only occurred in states that carried out public awareness and comprehensive sanctions.<fnref n="10" /> Even where there is enforcement of legal sanctions, some religious hardliners still display open resistance to FGM eradication as happened recently in The Gambia.

In The Gambia, there is a heightened concern over the health risks that the prevalence of FGM poses to women who constitute 50.6 per cent of the 2.3 million population.<fnref n="11" /> While 75 per cent of women and girls between the ages of 15 and 19 have undergone various forms of FGM,<fnref n="12" /> three in four girls and women of reproductive age have undergone the procedure.<fnref n="13" /> Moreover, infants as young as 5 months old are not spared from the FGM violence.<fnref n="14" /> FGM not only constitutes gender-based discrimination and violence under the international human rights obligations undertaken by The Gambia,<fnref n="15" /> it also violates Gambian laws and policies established to eradicate gender discrimination.<fnref n="16" /> Violence against women was prohibited<fnref n="17" /> and FGM criminalised including failure to report preparatory, contemporaneous or past acts thereof since 2015,<fnref n="18" /> but victims of FGM or their families hardly ever lodge official complaints and so prosecutions are not

<footnote n="10">10 United Nation's Office of the Human Commissioner for Human Rights (OHCHR) 'Women's Rights in Africa 37.</footnote>

<footnote n="11">11 *Countrymeters*, 'Gambia population' https://countrymeters.info/en/Gambia (accessed 12 January 2020); T Manuh & A Biney 'Exploring intersections between gender-based violence and adolescent sexual and reproductive health and rights in West Africa: A review of the literature produced in the sub-region' (2021) 25 *African Journal of Reproductive Health* 126.</footnote>

<footnote n="12">12 United Nations Population Fund 'Female Genital Mutilation Dashboard (FGM) - Gambia', https://www.unfpa.org.data.fgm (assessed 20 October 2024); United Nations International Children Emergency Fund, 'Gambia: Statistical Profile on Female Genital Mutilation' (2019) 2.</footnote>

<footnote n="13">13 B Mboge and others 'Female genital cutting in The Gambia: can education of women bring change?' (2019) 43(2) *Journal of Public Health* 398.</footnote>

<footnote n="14">14 UNFPA (12).</footnote>

<footnote n="15">15 The Gambia must respect and protect women's right to SRHI in terms of human rights treaties it has signed, ratified and/or acceded. These include the Convention on the Elimination of all forms of Discrimination against Women 1979, and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa.</footnote>

<footnote n="16">16 See Gender and Women's Empowerment Policy 2010-2020 revised in 2017; National Action Plan on the Implementation of the United Nations Security Council Resolution (UNSCR 1325); National Population Policy (geared towards the empowerment of women and girls, fundamental rights protection and access to sexual and reproductive health information); National Child Protection Strategy 2016-2020; National Social Protection Policy (NSPP) 2015-2025; National Health Policy 2015-2025; National Reproductive Maternal, New born, Child and Adolescents Health Policy 2017-2026; National Action Plan on FGM/C 2013-2018. See The Gambia National Report on the Five-Year Review of the Implementation of the Addis Ababa Declaration on Population and Development Beyond 2014, The Gambia & UNFPA (2018) 9-10.</footnote>

<footnote n="17">17 See Domestic Violence Act 2013.</footnote>

<footnote n="18">18 Women's (Amendment) Act 2015, sec 32B (a culpable defendant is liable on conviction to three years' imprisonment or to a fine of Fifty Thousand Dalasis or both).</footnote>
common.¹⁹ In fact, the first criminal indictment and convictions for FGM involving three women only took place in 2023.²⁰ The health and human rights-related complications of FGM are also well documented,²¹ but the majority Muslim population, many Christians, elderly women and even educated Gambians see nothing wrong with it based on traditional and religious prejudices since it is believed to prevent promiscuity in women.²² Hence, state-sponsored manipulation of health-related information,²³ discriminatory cultural norms and patriarchal attitudes that engender the stereotyping of women and girls persist. Moreover, the Constitution of The Republic of The Gambia 1977 (CRG 1977) (as amended) has no provision on the right to health. Rather, it protects several rights including cultural rights²⁴ while section 28 thereof protects women's 'equal dignity of the person with men' under which women's right to SRHI could be implicitly derived.

Based on the foregoing, this paper argues that the realisation of women's right to SRHI makes it imperative to end FGM,²⁵ and makes the case for The Gambia and other African countries to re-invigorate sexuality and reproductive health education in school curricula to protect and promote women's right to SRHI. In doing so, part 1 of the paper introduces the subject. Part 2 re-conceptualises women's right to SRHI while part 3 appraises the international human rights standards, the African Women's Protocol and related consensus documents on women's right to SRHI. Part 4 undertakes a case study of how the practice of FGM violates women's right to SRHI in The Gambia. Part 5 concludes and makes suggestions for the way forward.

19 See S Mutambasere, A Budoo-Scholtz & D Murden (eds) *The impact of the Maputo Protocol in selected African states* (2023) 118.

20 F Baldez & S Birchinger 'Keeping up the ban against FGM/C: a strong signal for reproductive health and rights from The Gambia to the World PRIF Blog, https://blog.prif.org/2024/08/08/keeping-up-the-ban-against-fgm-c-a-strong-signal-for-reproductive-health-and-rights-from-the-gambia-to-the-world/ (accessed 20 October 2024).

21 Such as infections, urinary incontinence, infertility, emotional trauma, maternal deaths, childbirth complications and other health, see PD Mitchum 'Slapping the hand of cultural relativism: female genital mutilation, male dominance, and health as a human rights framework' (2013) 19 *William & Mary Journal of Race, gender and Social Justice* 585, 591-592; Kaplan and others (n 6) 1-6.

22 AK Marcusán and others 'Female genital mutilation/cutting: changes and trends in knowledge, attitudes, and practices among health care professionals in The Gambia' (2016) 8 *International Journal of Women's Health* 103-117; Kaplan and others (n 6).

23 SI Bosha and Others 'The impact of the presidential alternative treatment program on people living with HIV and The Gambian HIV response' (2019) 21 *Health and Human Rights Journal* 239, 240 (former President Jammeh's fraudulent scheme to cure HIV and AIDS).

24 CRG 1997, sec 32.

25 See Sustainable Development Goals Goal 5 which aims to end FGM by 2030.
## 2 RE-CONCEPTUALISING WOMEN'S RIGHT TO SRHI

Women and girls have specific healthcare needs which must be met to enable them to live meaningful and dignified lives as autonomous human beings. In many societies, gender-based assumptions, stereotypes and women's subordination to men fuel violations of SRHR. While states might have adopted legal and policy measures to eliminate discrimination against women in healthcare, such have been patronising while systematically excluding vulnerable and voiceless adolescent girls, rural women, women living with aids, etc., to whom the state is accountable. Women's right to SRHI obligates states to provide access to comprehensive and appropriate goods, information and services including public awareness campaigns for a participatory approach to the advancement of women's SRHR including fertility control, contraception, family planning, etc. This part re-conceptualises women's right to SRHI as a substantive right related to multiple rights that underscore the significance of comprehensive information and education required for women and girls to attain substantive equality within the context of sexual and reproductive self-determination.

### 2.1 Substantive equality and women's right to SRHI

As against formal equality which treats people alike irrespective of their differences, substantive equality aims to achieve a just and egalitarian society by making adjustments and accommodations to eliminate or reverse historical and structural disadvantages among different segments of society.<fnref n="26" /> Accordingly, human rights instruments such as the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the Maputo Protocol protect women and girls from discrimination to reclaim human dignity based on the notion of substantive equality. These human rights treaties mandate states to implement remedial and right-based legal, policy, administrative measures, support women and create public awareness to address these disadvantages.<fnref n="27" /> The consensus documents such as the International Conference on Population and Development (ICPD) and the Fourth World Conference on Women (FWCW) which created the normative background for states' obligation on the right to information and education towards sexual and reproductive well-being of women and

<footnote n="26">26 E Durojaye & Y Owoeye "Equally unequal or unequally equal": adopting a substantive equality approach to gender discrimination in Nigeria' (2017) 17(2) *International Journal of Discrimination and the Law* 4-5.</footnote>

<footnote n="27">27 As above.</footnote>
girls are also grounded in substantive equality.<fnref n="28" /> Moreover, the power of education to transform lives, impart information and instil ideas to create inclusive societies and ‘a just and peaceful world’ and as a source of empowerment for individuals and groups cannot be overemphasised.<fnref n="29" /> This is integral to the Africa Union 2024 theme which aims at building resilient education systems to reverse the negative impact of discrimination and the non-fulfilment of the sexual reproductive and health needs of young people on the enjoyment of the right to education in Africa.<fnref n="30" /> Accordingly, women’s right to SRHI including sexuality education is an essential precondition for the enjoyment of SRHR guaranteed internationally, in regional treaties, and domestic laws, towards gender equality and to enable women and girls to protect their health and plan their families.<fnref n="31" /> However, the realisation of women’s right to SRHI towards the enjoyment of other SRHR and the eradication of harmful cultural and religious practices like FGM can be challenging, particularly in Africa, where sexual and reproductive rights matters are viewed with suspicion due mainly to socio-cultural and religious reservations.<fnref n="32" /> As a result, women and girls are beholden to the horrors of FGM which is prevalent in 35 countries in African, Middle Eastern and Asian communities and among immigrant communities in the Western world.<fnref n="33" /> This makes the link between comprehensive sexuality education (CSE) and women’s right to SRHI crucial by providing adolescent girls with the necessary knowledge and skills to make informed decisions about their bodies, relationships, and reproductive choices, empowering them to exercise their SRHR through access to accurate healthcare-related information regarding their sexuality and reproduction. Essentially, CSE is a key tool of substantive equality to enable women address religious and cultural hindrances such as FGM that prevent the full realisation of their SRHR.

<footnote n="28">28 E Durojaye ‘Realizing access to sexual health information and services for adolescents through the Protocol to the African Charter on the Rights of Women’ (2009) 16 *Washington and Lee Journal of Civil Rights and Social Justice* 162-170; E Durojaye ‘Substantive equality and maternal mortality in Nigeria’ (2012) 44 *The Journal of Legal Pluralism and Unofficial Law* 117-118.</footnote>

<footnote n="29">29 UNESCO ‘UNESCO welcomes ambitious African Union education goals’, ttps://www.unesco.org/en/articles/unesco-welcomes-ambitious-african-union-education-goals (accessed 20 October 2024).</footnote>

<footnote n="30">30 African Union & African Committee of Experts on the Rights and Welfare of the Child ‘Concept Note for the Day of the African Child 2024: ‘Education for all children in Africa: the time is now’ (2024) 5, https://www.acerwc.africa/sites/default/files/2024-03/Concept-Note_Day-of-the-African-Child_2024_ENG.pdf (assessed 20 October 2024).</footnote>

<footnote n="31">31 R Brown and others ‘A sexual and reproductive health and rights journey: from Cairo to the present’ (2019) 27 *Sexual and Reproductive Health Matters* 326; Centre for Reproductive Rights ‘The human right to information on sexual and reproductive health government duties to ensure comprehensive sexuality education’ (2008) 2.</footnote>

<footnote n="32">32 V Balogun & E Durojaiye ‘The African Commission on Human and Peoples’ Rights and the promotion and protection of sexual and reproductive rights’ (2011) 11(2) *African Human Rights Law Journal* 387.</footnote>

<footnote n="33">33 Marcusán (n 22).</footnote>
Incidentally, statistical evidence has shown the correlation between
high exposure to FGM in sub-Saharan Africa and women and girls in
poorest households, the less educated, those with lower access to
media, etc.<sup>34</sup> Relatedly, to transform and revitalise education to achieve
gender equality in Africa demands that women's access to SRHI be
included as part of school curricula of health education considering that
major international and regional consensus documents all speak of
women empowerment through education.<sup>35</sup> Moreover, women's right
to comprehensive SRHI and education is a development of an iterative
process by human rights bodies on the right to health including on
SRHR protected in various formulations in human rights treaties,
health Declarations, and international and regional consensus
documents and policies. These include the Universal Declaration of
Human Rights (Universal Declaration),<sup>36</sup> World Health Organisation
Constitution,<sup>37</sup> CEDAW,<sup>38</sup> the International Covenant on Civil and
Political Rights 1966 (ICCPR),<sup>39</sup> the International Covenant on
Economic, Social and Cultural Rights 1966 (ICESCR),<sup>40</sup> the
Convention against Torture and Other Cruel, Inhuman and Degrading
Treatment, and the Convention on the Rights of the Child (CRC)
1989.<sup>41</sup> This is elaborated upon in paragraph 3.1 below with regards to
access to information and functional sexuality education from the
Concluding Observations, General Comments, and case decisions made

34 UNICEF Data ‘Understanding the relationship between child marriage and female genital mutilation’ https://data.unicef.org/resources/understanding-the-relation ship-between-child-marriage-and-fgm/ (accessed 11 June 2024); BO Ahinkorah and others ‘Socio-economic and demographic determinants of female genital mutilation in sub-Saharan Africa: analysis of data from demographic and health surveys’ (2020) 17 *Reproductive Health* 162.

35 See Sustainable Development Goal (SDG) 2030 goal 5's target to eliminate all harmful practices including FGM by year 2030 and UN Agenda 2030 African Union (2023) Linking Agenda 2063 and the SDGs, https://www.au.int/ agenda2063/sdgs (accessed 31st July 2024); African Union ‘Agenda 2063: the Africa we want’ https://au.int/sites/default/files/documents/33126-doc- framework_document_book.pdf (assessed 20 October 2024); Continental Education Strategy for Africa (CESA 2016-2025), https://www.au-continental- strategy-on-education-for-health-and-well-being-of-young-people-in-africa.pdf (assessed 11 August 2024).

36 Adopted 10 December 1948, UNGA Res 217 A (III), art 25(1) (the right to a standard of living adequate for health and well-being including food, clothing, housing and medical care), art 25(2) (motherhood and childhood are entitled to special care and assistance).

37 Adopted 7 April 1948, 14 UNTS 185 Preamble.

38 Adopted 18 December 1979 entered into force 3 September 1981) GA Res 54/180 UN GAOR 34th session Supp 46, UN Doc A/34/46 (1980) art 10(1)(h) (access to health-specific educational information and on family planning) art 12 (the right to the highest standard attainable of physical and mental health without discrimination and ensure gender equality in access to healthcare), art 14(2)(b) (states' obligation to provide access to family planning information and education) and art 16(1)(e) (right to reproduction choice information).

39 General Assembly Resolution 2200A (XXI) (adopted 16 December 1966 entered into force 3 January 1976).

40 General Assembly Resolution 2200A (XXI) (adopted 16 December 1966 entered into force 3 January 1976) art 12(1) & (2)(a) (states' obligation to take steps to reduce stillbirth and infant mortality).

41 Adopted 1989, entered into force 2 September 1990, UN Doc A/44/49.
at various times by their respective monitoring bodies and special
mechanisms.

2.2 Women's right to SRHI as a substantive right

Several rationales that intertwine with the right to access to
information, freedom of expression, right to health, the right to privacy,
etc.,<fnref n="42" /> could be advanced for women’s right to SRHI. In the same vein,
the Centre for Reproductive Rights asserts that the right, ‘like all
reproductive rights, is firmly rooted in the most basic international
human rights standards, including protections of the rights to life,
health, education, and non-discrimination’.<fnref n="43" /> Consequently, the task of
re-orientating women’s right to SRHI begins with a brief analysis of the
extant ‘conceptualisation literature’. The first one will be referred to as
‘the purist freedom of expression and access to information
conceptualisation’. According to Mendel, freedom of expression and
access to information are intricately linked in that<fnref n="44" />

freedom to receive information prevents public authorities from
interrupting the flow of information to individuals and ... freedom to
impart information applies to communications by individuals. It would
then make sense to interpret the inclusion of freedom to seek information,
particularly in conjunction with the right to receive it, as placing an
obligation on government to provide access to information it holds.

The foregoing exposition of the provisions of the ICCPR, article 19 tallies with all international human rights provisions and soft law developed under the auspices of the United Nations and regional authorities that guarantee the freedom ‘to seek, receive and impart information’<fnref n="45" /> though the extent of information covered may not be conclusively determinable. This conceptualisation would, by implication, impose a negative duty on government in a democratic society of non-interference with information required for effective public participation in addition to a positive obligation to make health governance-related legal, policy level and other information held by public (and some private) bodies feely available to all citizens subject to legitimate exemptions. This is particularly more so because

<footnote n="42">42 Inter-American Commission on Human Rights 'Access to information on reproductive health from a human rights perspective' OEA/Ser.L/VII. Doc.61 (22 November 2011) 1.</footnote>

<footnote n="43">43 Centre for Reproductive Rights (n 31) 3.</footnote>

<footnote n="44">44 T Mendel 'Freedom of information: an internationally protected human right' (2003) 39 *Comparative Media Law Journal* 95, 40; A Roberts 'Structural pluralism and the right to information' (2001) 513 *University of Toronto Law Journal* 243, 260.</footnote>

<footnote n="45">45 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III) (Universal Declaration), art 19; International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 19(1); American Convention on Human Rights, 22 November 1969, OAS Treaty Series No. 36, 1, OAE/Ser. L./V/II.23 doc. Rev. 2, entered into force 18 July 1978 (ACHR) art 13; Declaration of Principles on Freedom of Expression in Africa 2002, African Commission Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res. 62 (XXXII) 2002 (African Declaration 2002) sec 4.</footnote>
information ‘gathered by public officials at public expense is owned by the public’.<fnref n="46" /> Like Mendel, Weeramantry views the right to freedom of expression and information as underpinning the right to health because, as it is with every human right, its enjoyment requires an ‘ancillary’ right necessary for its exercise.<fnref n="47" /> The only drawback which stems from Weeramantry’s conceptualisation is his subordination of access to information to other rights. Second, Coliver, likewise many legal experts conceptualise women’s right to SRHI from a cluster of rights such as freedom of expression and information, equality and non-discrimination, right to life, right to health, right to dignity and the right to private and family life. These latter rights impose both negative and positive obligations on the government to provide ‘information necessary for reproductive health and choice’.<fnref n="48" /> She argues forcefully that the obligation necessary for the protection and promotion of reproductive health and choice includes:<fnref n="49" />

[t]he affirmative obligation to provide information necessary for the protection and promotion of a minimum standard of reproductive health (including information about effective methods of contraception), where women, particularly those at high risk, such as rural women and adolescents, do not otherwise have access to such information.

A third understanding of women's right to SRHI stems from the right to personal information such as medical or clinical records. This one has been invoked from a combination of the right to privacy and freedom of expression.<fnref n="50" /> This is an extension of the right to control information or data about oneself held by public and private entities and to effect corrections thereto or update such information subject to such countervailing interests permissible in a democratic society.<fnref n="51" /> However, even when the rationales for access to SRHI exist in all these conceptualisations, their combined effect is to render the contours of the right more uncertain and at best an instrumental right. Moreover, that all the rationales reference human dignity as their baseline makes the argument for re-conceptualising women's right to SRHI such as this paper aims to be more compelling and helps to denote the right's status in international law.<fnref n="52" /> The concept of substantive equality thus provides the leverage for the understanding of access to information as an enabler of the substantive enjoyment of other rights, especially the

<footnote n="46">46 J Stiglitz ‘On liberty, the right to know, and public disclosure: the role of transparency in public life’ (1999), http://www2.gsb.columbia.edu/faculty/jstiglitz/download/2001-On-Liberty_the_Right_to_Know_and_Public.pdf (accessed 23 January 2020).</footnote>

<footnote n="47">47 CG Weeranmanty ‘Access to information: a new human right, the right to know’ (1994) 4 *Asian Yearbook of International Law* 99, 102.</footnote>

<footnote n="48">48 S Coliver ‘The right to information necessary for reproductive health and choice under international law’ (1995) 44 *The American University Law Review* 1292.</footnote>

<footnote n="49">49 Coliver (n 48) 1280.</footnote>

<footnote n="50">50 Bishop (n 2) 106-107; Inter-American Commission on Human Rights (n 42).</footnote>

<footnote n="51">51 Inter-American Commission on Human Rights (n 42) 29-33.</footnote>

<footnote n="52">52 Weeranmanty (n 47) 99, 111.</footnote>
realisation of socio-economic rights.<fnref n="53" /> Flowing from the foregoing is that the right of access to information in the socio-economic field can serve to equalise the power relations in a polity.<fnref n="54" /> Obviously then, information is both empowering, reassuring and creates awareness, especially government information required to upturn disadvantages in society.<fnref n="55" /> By extrapolation, this resonates for women’s right to SRHI of women and girls whose reproductive rights are in jeopardy from the observance of discriminatory cultural norms. Timely access to healthcare information and services can prevent, alleviate and even obviate the unnecessary reproductive health complications and burdens that adolescents and women in disadvantaged settings bear. In addition, ‘education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any ... prohibited grounds’<fnref n="56" /> to inure in an egalitarian society, and be flexible enough to ‘adapt to the needs of changing societies and communities’.<fnref n="57" /> Moreover, UN human rights bodies, intergovernmental institutions, and policy think-tank have played an activist role in etching out the normative frontiers of sexual and reproductive health and rights (SRHR) pertaining to all individuals, but more so for women.<fnref n="58" /> Since then, gradual progress has been made to seek a more comprehensive approach of reproductive health and rights presumed on the lifecycle from adolescence, reproductive age, midlife to older adulthood with access to education and information required for informed decision-making. This has pushed the recognition of health rights and development at the centre of policies, programmes and implementation plans which emphasise the strategic roles of information, education, community mobilisation and gender equality in the provision and access to quality healthcare.

A comprehensive reproductive health approach not limited to concerns for women of reproductive age but extended to include the lifetime concerns for men and women from birth to old age beginning with the Cairo International Conference on Population and Development (ICPD) in 1994⁵⁹ and the Beijing Fourth World Conference on Women (FWCW) in 1995.<fnref n="60" /> These rights began to

<footnote n="53">53 S Jagwanth 'The right to information as a leverage right' in R Calland & A Tilley (eds) *The right to know, the right to live: access to information and socio-economic justice* (2002) 3.</footnote>

<footnote n="54">54 As above.</footnote>

<footnote n="55">55 Bishop (n 2) 73; RA Wildeman 'Access to information can fundamentally alter society's power relations' (2009) 3.</footnote>

<footnote n="56">56 Bishop (n 2) 86.</footnote>

<footnote n="57">57 Bishop (n 2) 87.</footnote>

<footnote n="58">58 O Gbadamosi *Reproductive health and rights: African perspectives and legal issues in Nigeria* (2007) 20-21.</footnote>

<footnote n="59">59 Report of the International Conference on Population and Development (ICPD) 7, UN Doc A/CONF.171/13 (1994); Balogun & Durojaye (n 32) 374-376.</footnote>

<footnote n="60">60 Fourth World Conference on Women Beijing (FWCW) held on 15 September 1995, A/CONF.177/20.</footnote>
receive a lot of attention in contemporary times,<fnref n="61" /> particularly
paragraph 7(2) of ICPD and as paragraph 94 of FWCW state thus:<fnref n="62" />

Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system ... Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the rights of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice ... and the right of access to appropriate health-care services ... It also includes sexual health [for] ... the enhancement of life and personal relations ...

The 1994 ICPD Programme of Action describes reproductive health as
that which

[c]oncerns the capability to reproduce and the freedom to make informed,
free and responsible decisions. It also includes access to a range of
reproductive health information, goods, facilities and services to enable
individuals to make informed, free and responsible decisions about their
reproductive behaviour.

The foregoing conferences and meanings ascribed to sexual and
reproductive health are integral to the subsequent emergence of
reproductive rights in international human rights instruments<fnref n="63" />
though asymmetrically slanted towards the reproductive than sexual
essence.<fnref n="64" /> Subsequently, sexual health was defined as ‘a state of
physical, emotional, mental and social well-being in relation to
sexuality.’<fnref n="65" /> SRH encompasses child-bearing or reproductive health-
care services, sexuality, sexual education, bodily integrity, consensual
sexual relations and marriage, etc.,<fnref n="66" /> requiring the mastery of the
complex nature of human physiology and related healthcare facilities,
goods, services and conditions. Women’s right to SRHI would therefore
involve mandatory access to or the right to seek, receive and impart all
information relevant to the cyclical enhancement of human life, social
well-being and personal development. In addition, it would entail the
training and equipping of health practitioners with technical capacity
and knowledge to facilitate the dissemination of relevant information.
Relatedly, the New York Law School has determined that health
information has four dimensions, viz; information related to treatment
of diseases in formal settings (professional healthcare information);
information for disease prevention and availability of health services
(health education); information emanating from treatment of diseases
in familial or informal settings (lay healthcare information); and
information required for participatory healthcare decision-making

<footnote n="61">61 Gbadamosi (n 58) 16-22.</footnote>

<footnote n="62">62 FWCW (n 60).</footnote>

<footnote n="63">63 Gbadamosi (n 58).</footnote>

<footnote n="64">64 Balogun & Durojaye (n 32) 376.</footnote>

<footnote n="65">65 CESCR General Comment 22.</footnote>

<footnote n="66">66 World Health Organisation 'Defining sexual health, Report of a technical consultation on sexual health' (2006) 5.</footnote>
(health policy information).<fnref n="67" /> Dytz has also described health information as 'one of the rights of the user of the public health care system'.<fnref n="68" /> Reproductive healthcare would then involve having access to a range of good-quality information and services: family-planning counselling, information, education, including access to safe and effective contraceptive methods; education for prenatal care, safe delivery and post-natal care, infant and women's healthcare. It would also signify: the prevention of unsafe abortion, reproductive tract infections, sexually transmitted diseases (STDs) and other reproductive health conditions; prevention of harmful practices such as FGM/C; and information, education and counselling on human sexuality, reproductive health and responsible parenthood.<fnref n="69" /> However, considering Africa as the world's most youthful continent, the necessity for age-appropriate CSE for adolescents cannot be overemphasised.<fnref n="70" />

Adolescents often engage in risky behaviours but must make decisions vital to their sexual wellbeing with high quality, comprehensive reproductive and sexual health education offering information on reproduction, contraception, STDs, etc. This would help them to understand the importance of their sexuality and the value of equality in gender relations. Incidentally, sexuality education is relatively new and just beginning to take root in Africa.<fnref n="71" /> Since 2013, 21 countries in Eastern and Southern Africa agreed to increase access to sexuality education for the youths in a structured manner<fnref n="72" /> while several West African countries have joined the bandwagon with donor funding.<fnref n="73" /> The basic challenge with extant CSE programmes is their HIV-tilted nature reflecting donor biases.<fnref n="74" /> The Gambia, for instance, has plans for 'age appropriate' comprehensive sexual and reproductive health and rights (SRHR) education and family planning and contraceptive use.<fnref n="75" /> The UNESCO's International Technical Guidance on Sexuality Education proposes the subjects' curricula on key youth-related developmental issues such as interpersonal relationships, life skills, sexual behaviour, culture, etc. While such themes are considered best practices by researchers, the emphasis on gender norms

<footnote n="67">67 New York Law School 'Access to health information under international human rights law' (2012), http://www.hifa2015.org/hifa2015-and-human-rights/ (accessed 14 January 2020).</footnote>

<footnote n="68">68 JLG Dytz 'Right of access to health information' (2004) 57 *Revista Brasileira Enfermagem* 139, 139.</footnote>

<footnote n="69">69 United Nations, Reproductive Health Policies (2017) 1-2.</footnote>

<footnote n="70">70 R Engelman 'Sexuality education begins to take root in Africa' *NewSecurityBeat*, https://www.newsecuritybeat.org/2020/03/sexuality-education-begins-root-africa/ (accessed 15 August 2024).</footnote>

<footnote n="71">71 As above.</footnote>

<footnote n="72">72 As above.</footnote>

<footnote n="73">73 As above.</footnote>

<footnote n="74">74 F Murunga and others 'Comprehensive sexuality education in Sub-Saharan Africa' (2019) 8.</footnote>

<footnote n="75">75 See The Gambia 'Combined report on the African Charter on Human and Peoples' Rights for the period 1994 and 2018 and initial report under the Protocol to the African Charter on the Rights of Women in Africa' (2018) 153, https://www.rightofassembly.info/assets/downloadsReport_of_Gambia_to_the_ACH_PR_(2018).pdf (accessed 20 October 2024).</footnote>
particularly for gay and lesbian young people will surely prove
problematic for African states. Though discussion of topics regarded as
'no-go areas' in African societies are now being opened-up by African
scholars, the dearth of teachers, sex taboos, and the fear of initiation of
adolescents into early sex life and relationships considered immoral or
'unAfrican' will likely hinder CSE implementation without broad-based
education across societal strata.<fnref n="76" /> By analogy, the European Court on
Human Rights, for instance, showed sensitivity to parents' religious
and philosophical convictions though it upheld a compulsory sex
education course 'conveyed in an objective, critical and pluralistic
manner' and does not aim at indoctrination.<fnref n="77" /> Human rights education
stakeholders in African states must assist to find that middle ground in
schools' educational curricula that balances educational needs and
societal norms. An analysis of international human rights treaties and
interpretations as regards women's right to SRHI is further required in
this regard.

3 WOMEN'S RIGHT TO SRHI:
INTERNATIONAL AND REGIONAL
STANDARDS AND CONSENSUS
DOCUMENTS

Women's right to SRHI obligates states to prevent and remedy the
denial of human dignity occasioned through the evisceration of
women's sexual and reproductive health needs and choices.<fnref n="78" /> Women's
right to SRHI also implicates issues of timely access to accurate sexual
and reproductive health information which states have international
human rights obligations to provide to empower vulnerable girls and
disadvantaged women to make informed decisions as regards their
sexuality, bodily integrity, and private and family lives. The emergence
of women's right to SRHI reflects the significance of the international
human rights' normative framework on human dignity, which
particularly underwrites the advancement of rights pertaining to
vulnerable women and girls. Hence, this part clarifies the content,
scope, and status of women's right to SRHI developed under the
auspices of the United Nations, the African Union, comparative

<footnote n="76">76 CK Wangamati 'Comprehensive sexuality education in sub-Saharan Africa: adaptation and implementation challenges in universal access for children and adolescents' (2020) 28 *Sexual and Reproductive Health Matters* 56-61;
MA Adesina & II Olufadewa 'Comprehensive sexuality education (CSE) curriculum in 10 East and Southern African countries and HIV Prevalence among the youth' (2020) 4 *European Journal of Environment and Public Health* 5-6;
FM Wekesah and Others 'Comprehensive sexuality education in Sub-Saharan Africa' (2019) 8-10; *Open Door Counselling and Dublin Well Women Centre v Ireland* (1992) 15 EHRR 244.</footnote>

<footnote n="77">77 *Kjeldsen v Denmark* (1976) 1 EHRR 711 para 53.</footnote>

<footnote n="78">78 Coliver (n 48) 1297.</footnote>
regional bodies, and their monitoring mechanisms, reporting and interpretive frameworks.<fnref n="79" />

**3.1 International and regional treaties and consensus documents**

Women's right to SRHI has emerged from the basic understanding of the principle of substantive equality in treaties and consensus documents and their elaborations by international human rights agencies. These include the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities 2006 (CRPD),<fnref n="80" /> the Convention of the Rights of the Child (CRC),<fnref n="81" /> ICESCR,<fnref n="82" /> CAT, ICCPR, and CEDAW.<fnref n="83" /> The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol or Maputo Protocol) 2003,<fnref n="84" /> and comparative regional human rights authorities<fnref n="85" /> and national constitutions<fnref n="86" /> are also noteworthy. Whether conceived from a narrow position of right to reproductive self-determination and family planning choices-related information<fnref n="87" /> or a wider 'right to' information required to enjoy all human rights,<fnref n="88" /> women's right to SRHI is firmly rooted in the principle of substantive equality.<fnref n="89" /> This principle underlies the pronouncements of UN treaty-based bodies in various reports, Concluding Observations, General Comments and other

<footnote n="79">79 As above.</footnote>

<footnote n="80">80 Art 23(1)(b) (right to age-appropriate reproductive health information).</footnote>

<footnote n="81">81 Art 24(3).</footnote>

<footnote n="82">82 Art 12.</footnote>

<footnote n="83">83 Art 12 (the right to the highest standard attainable of physical and mental health without discrimination and ensure gender equality in access to healthcare).</footnote>

<footnote n="84">84 Adopted 2003 entered into force 25 November 2005, OAU Doc CAB/LEG/66.6) art 2 (states to take positive action to address inequalities between women and men), arts 2(2) & 5(a) (states to provide public information on strategies to eliminate harmful traditions), art 4(1)(h) (prohibition of medical experiment on women without informed consent), art 14(1)(e) (right to information on health status), art 14(2)(a) (rural women's right to reproductive health information).</footnote>

<footnote n="85">85 Eg, the European Court of Human Rights held that the right to life guaranteed under article 2 of the European Charter may be violated if a state fails to prevent unintentional loss of life during pregnancy or childbirth (*Tavares v France* App 16593/90). The principle of extraterritoriality is found in various European legislations pertaining to harmful African practices, such as FGM. The most promising example in this regard is Spain, which under its Constitutional Act 3/ 2005, provides that FGM committed abroad is a crime.</footnote>

<footnote n="86">86 The Constitution of the Republic of South Africa 1996 Act 106 1996 (as amended) art 9(2).</footnote>

<footnote n="87">87 Coliver (n 48) 1285.</footnote>

<footnote n="88">88 See, for instance: freedom of expression – ICCPR, art 19; right to health: Universal Declaration, UN General Assembly Resolution 217 A (III), 10 December 1948 (Universal Declaration) art 25; ICESCR, art 12; CEDAW, arts 12(1)(2)(b) & 14(2); CRC, art 24(1) & (2); right to personal integrity – ICCPR, arts 7& 9(1); right to be free of sexual and gender violence – CEDAW, arts 5 and 6; right to equality and non-discrimination in the area of reproductive health – ICCPR, art 2(1).</footnote>

<footnote n="89">89 See JGD Trimiño 'Reproductive rights, international regulation' (2012) 1-2.</footnote>
documents affirming women's right to SRHI. Article 10(h) of CEDAW requires that women have 'specific educational information to help to ensure the health and well-being of families, including information and advice on family planning'. The CEDAW Committee has issued General Recommendation 24 on Women and Health,<fnref n="90" /> which *inter alia* compels states to ensure the right to sexual health information and education for all women particularly of adolescents and girls on family planning methods.<fnref n="91" /> Also, Recommendation 24 reaffirm women's right to access healthcare services, information, and education based on equality with men under article 12 of CEDAW.<fnref n="92" /> The Committee has emphasised systematic sexuality education programmes as priority for states including specific contents like reproductive rights information, responsible sexual behaviour and parenthood, and sexual and reproductive health (SRH), particularly for boys and girls, while stressing the correlation between STI and teenage pregnancy prevention and family planning.<fnref n="93" />

Similarly, CESCR has encouraged sexual and reproductive health education in school curricula and called for public awareness on these through sexuality education in schools and awareness campaigns to combat maternal and child mortality, while advocating comprehensive sexuality education programmes to eliminate the practice of FGM.<fnref n="94" /> It aims to equip children and young people with knowledge, skills, attitudes and values that empower them to realise their health, well-being and dignity. In General Comment 14,<fnref n="95" /> CESCR, cognisant of the underlying social determinants of health such as freedom to make responsible decisions and choices, freedom from violence, and discrimination concerning one's body and health, interpreted article 12(1)<fnref n="96" /> and (2)(a)<fnref n="97" /> of ICESCR as not just about being healthy. Rather, it conceived the right to health as an inclusive right and an entitlement to accessible and quality health education and information, including on sexual and reproductive health.<fnref n="98" /> Furthermore, CESCR affirmed that the 'realisation of women's right to health requires the removal of

<footnote n="90">90 Women and Health, 11th Session, February 1994, UN Doc HRI/GEN/1/Rev. 1 (29 July 1994).</footnote>

<footnote n="91">91 OA Savage-Oyekunle & A Nienaber 'Adolescents' access to emergency contraception in Africa: an empty promise?' (2017) 17 *African Human Rights Law Journal* 476, 523.</footnote>

<footnote n="92">92 Centre for Reproductive Rights (n 31) 3.</footnote>

<footnote n="93">93 Centre for Reproductive Rights (n 31) 3-4.</footnote>

<footnote n="94">94 Centre for Reproductive Rights (n 31) 8.</footnote>

<footnote n="95">95 The Right to the Highest Attainable Standard of Health, Twenty-second session of the CESCR E/C.12/2000/4 (11 August 2000), http://www.ohchr.org/Documents/Issues/Women/WRGS/Health/GC14.pdf (accessed 28 February 2020).</footnote>

<footnote n="96">96 The right to the enjoyment of the highest attainable standard of physical and mental health.</footnote>

<footnote n="97">97 Obligation of states parties to take steps necessary for the reduction of stillbirth and infant mortality and healthy development of the child.</footnote>

<footnote n="98">98 See also CESCR, General Comment 22 (The right to sexual and reproductive health) (2016) UN Doc E/C.12/GC/22, https://www.escrnet.org/resources/general-comment-no-22-2016-right-sexual-andreproductive-health (accessed 28 February 2020).</footnote>
all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health'.<fnref n="99" />

Allied to the foregoing, the Committee further asserted that the right to seek, receive and impart information on health issues is a component of the general right to health and reproductive health services, especially recommending adolescent or 'youth-friendly' healthcare including information and counselling. The CAT once recommended that a state party must take 'necessary steps to eradicate the practice of female genital mutilation, including through nationwide awareness-raising campaigns'.<fnref n="100" /> Relatedly, HRC in its General Comment 28: 'Equality of Rights Between Men and Women' interpreted the right to equality before the law protected by article 26, as requiring states parties to eliminate discrimination against women in public and private life, including education and service provision while it has requested a state party which removed sexuality education from the school curriculum to reintroduce it in public schools.<fnref n="101" /> Moreover, international human rights law obliges states to respect, protect and fulfil all rights, the right to health not excepted.<fnref n="102" /> The obligation to respect demands that states refrain from censoring, withholding or intentionally misrepresenting health-related information.<fnref n="103" /> Obligations to protect include, *inter alia* measure to ensure that third parties do not limit people's access to health-related information and services.<fnref n="104" /> The obligation to fulfil relates to the dissemination of appropriate information relating to healthy lifestyles, harmful traditional practices and which helps to make informed health choices.<fnref n="105" /> Consequently, states' duty regarding SRHI in CESCR's view presupposes not just a negative freedom of non-interference with information necessary for women's expression of sexuality or bodily autonomy;<fnref n="106" /> it includes a positive obligation to provide information on medical facilities, goods and services related thereto.<fnref n="107" /> Interestingly, regional bodies have followed the example and sometimes performed creditably better than UN bodies on matters pertaining to women's right to SRHI as the African system exemplifies.

<footnote n="99">99 General Comment 14 para 21.</footnote>

<footnote n="100">100 Centre for Reproductive Rights (n 31).</footnote>

<footnote n="101">101 Concluding Observations: The Human Rights Committee, see Centre for Reproductive Rights (n 31) 6.</footnote>

<footnote n="102">102 CESCR General Comment 14 paras 34-7.</footnote>

<footnote n="103">103 CESCR General Comment 14 para 34.</footnote>

<footnote n="104">104 CESCR General Comment 14 para 35.</footnote>

<footnote n="105">105 CESCR General Comment 12: The right to adequate food (art 11 of the Covenant) UN Committee on Economic, Social and Cultural Rights (CESCR) para 37, https://www.refworld.org/docid/4538838c11.html (accessed 25 February 2020).</footnote>

<footnote n="106">106 General Comment 14 paras 4 & 11.</footnote>

<footnote n="107">107 General Comment 14 paras 12(a), (b)(i), (ii), (iii), (iv), 12(c) & 12(d).</footnote>
3.2 African regional treaty bodies and jurisprudence

The African Commission on Human and Peoples’ Rights (African Commission) and the African Court on Human and Peoples’ Rights (African Court) are designated to monitor the implementation of the African Charter on Human and Peoples’ Rights (African Charter)<fnref n="108" /> and interpret other human rights treaties like the Maputo Protocol to which African states are signatory. The African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) monitors the African Convention on the Rights and Welfare of the Child (African Children’s Charter).<fnref n="109" /> The foregoing African regional instruments have received encouraging elaborations and jurisprudential expositions<fnref n="110" /> in terms of international law through their designated treaty bodies and special mechanisms. Article 16 of the African Charter guarantees ‘the right to enjoy the best attainable state of physical and mental health’. The African Commission’s Resolutions and General Comments on the content of the right cut across maternal mortality, access to medicines and reproductive health services and information as human rights. The Maputo Protocol was the first comparative human rights treaty to expressly obligate states to ensure respect for the right of women to sexual and reproductive health.<fnref n="111" /> This right includes the rights such as to family choices,<fnref n="112" /> choice of contraceptive,<fnref n="113" /> self-protection against sexually-transmitted infections,<fnref n="114" /> to be informed of one’s health status and a partner’s, particularly if affected with STDs,<fnref n="115" /> and family planning education.<fnref n="116" /> Furthermore, article 5 of the Protocol enjoins state parties to take legislative and other measures to prohibit FGM in all its ramifications while article 12(1)(c) enjoins state parties to protect women, especially the girl-child from all forms of abuse.<fnref n="117" /> Corroborating Stefiszyn,<fnref n="118" />

<footnote n="108">108 Adopted 27 June 1981, entered into force 21 October 1986, (1982) 21 ILM 58.</footnote>

<footnote n="109">109 OAU Doc CAB/LEG/24.0/49 (1990) (entered into force 29 November 1999).</footnote>

<footnote n="110">110 *Purohit and other v The Gambia* (2003) AHRLR 96 (ACHPR 2003); *Social and Economic Rights Action Centre (SERAC) & Another v Nigeria* (2001) AHRLR 60 (ACHPR 2001); *Government of Namibia v LM and others* (forcible sterilisation without informed consent); *Ahameful e v Imperial Hospital and other* (testing for HIV without consent); *Kingaipe and Another v the Attorney General* (forcible testing for HIV of military personnel in Zambia); E Durojaye *Litigating the right to health in Africa* (2015).</footnote>

<footnote n="111">111 Art 14.</footnote>

<footnote n="112">112 Art 14(b).</footnote>

<footnote n="113">113 Art 14(c).</footnote>

<footnote n="114">114 Art 14(d).</footnote>

<footnote n="115">115 Art 14(e).</footnote>

<footnote n="116">116 Art 14(g).</footnote>

<footnote n="117">117 AO Ayanleye ‘Women and reproductive health rights in Nigeria’ 6 (2013) *OIDA International Journal of Sustainable Development* 9, 13.</footnote>

<footnote n="118">118 K Stefiszyn ‘Adolescent girls, HIV, and state obligations under the African Women’s Protocol’ in E Durojaye, G Mirugi-Mukundi & C Ngwena (eds) *Strengthening the protection of sexual and reproductive health and rights in the African region through human rights* (2014) 163.</footnote>
Mkwananz,¹¹⁹ and Assefa,¹²⁰ the African Commission and the African Children’s Committee recently affirmed the tenure of article 5 on the need for ‘public awareness in all sectors of society regarding harmful practices through information, formal and informal education’ and FGM-related content in formal education towards its eradication.¹²¹ The African Commission adopted General Comment 1 on article 14(1)(d) (the right to self-protection and the right to be protected from HIV and sexually transmitted infections) and 14(e) (the right to be informed on one’s health status and the health status of one’s partner).¹²² The African Commission reckons that the right protected in article 14(1)(d):¹²³

[I]ncludes women's rights to access information, education and sexual and reproductive health services ... are also intrinsically linked to other women's rights including the right to equality and non-discrimination ... [the violations of which] will impact on women's ability to claim and realise ... [her] right to self-protection.

In addition, the African Commission 'recognises that an enabling legal and policy framework [for implementing access to sexual and reproductive health information protected under article 14(1)(d) and (e)] is intrinsically linked to women's right to equality, non-discrimination and self-protection'.¹²⁴ The Commission has issued resolutions relating to topical issues affecting the sexual and reproductive lives of Africans.¹²⁵ The African Commission's also adopted General Comment 2 on the Maputo Protocol which recognises the right to informed consent and states' obligation to provide women and girls with accessible information on abortion, family planning, and maternal health.¹²⁶ Article 14(2)(a) of the Maputo Protocol provides that state parties shall take all appropriate measures to 'provide adequate, affordable and accessible health services, including information, education and communication programmes to women,

119 S Mkwananz 'It takes two to tango!: The relevance and dilemma of involving men in the realization of sexual and reproductive health and rights in Africa' in Durojaye, Mirugi-Mukundi & Ngwena (n 118) 80.

120 AG Assefa 'Monitoring implementation of the sexual and reproductive health and rights of adolescents children: The role of the African Committee of Experts on the Rights and welfare of the Child' in Durojaye, Mirugi-Mukundi & Ngwena (n 118) 231.

121 The African Children's Committee and African Commission 'Joint General Comment on Female Genital Mutilation' (2023) 13, 21.

122 General Comment 1 on article 14 (1) (d) and (e) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (adopted 6 November 2006), achpr_instr_general_commments_art_14Rights_women_2012_eng.pdf (accessed 27 February 2020).

123 General Comment 2 para 11.

124 General Comment 2 para 33.

125 Balogun & Durojaye (n 32) 378.

126 General Comment 2 on art 14(1)(a), (b), (c) and (f) and art 14(2)(a) and (c) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (adopted 28 November 2014) On Article 14(1)(a)(b)(c) and (f), achpr_instr_general_comment2Rights_of_women_in_africa_eng.pdf; https://www.achpr.org/legalinstruments/detail?id=13 (accessed 24 February 2020); Maputo Plan of Action for the implementation of the Continental Guiding Framework and the Abuja Declaration.
especially those in rural areas' on which General Comment 2 also elaborates upon. Commenting on a related instrument, CESCR remarked thus:<fnref n="127" />

> The enjoyment of rights is non-discriminatory and grants gender equality when women are well informed of products, procedures and health services that are specific to them and when they actually have access to the latter ...

By the foregoing, women's right to SRHI has thus received a boost within the African regional human rights system. Furthermore, whilst most African countries might not have explicitly recognised women's right to SHRI as a justiciable right in their constitutional frameworks, the right is embedded within the right to health guaranteed in the numerous human rights treaties and instruments they have ratified.<fnref n="128" /> For instance, in *Purohit and Another v The Gambia*,<fnref n="129" /> the African Commission relied on the ESCR Committee's General Comment 14¹³⁰ to affirm the state's obligation under article 16 of the African Charter to take concrete and targeted steps within available resources to ensure full realisation of the right to health. The African Commission explicitly explained the nature of the right to health in the African Charter as embracing health facilities, goods and services to be guaranteed to all without discrimination of any kind.<fnref n="131" /> The African Commission has interpreted article 14(1)(e) and (2)(a) of the Maputo Protocol which enjoins states to 'take all appropriate measures' to provide adequate and accessible health services, including information and education to women.<fnref n="132" /> The African Commission reasoned that '[t]he right to be informed on one's health status includes the rights of women to access adequate, reliable, non-discriminatory and comprehensive information about their health'.<fnref n="133" /> Hitherto, there was little legal challenge to non-access to sexual and reproductive health services (SRHS) and violence against women despite 'the fact that African women continue to bear the greatest burden of sexual and reproductive ill-health in the world'.<fnref n="134" /> Nowadays, activists and civil society have become more assertive on women's rights before African regional and national judicial bodies. Incidentally, African treaty-monitoring bodies<fnref n="135" /> and special mechanisms are also well-positioned to provide authoritative meaning and interpretive gloss on several aspects of women's SRH.<fnref n="136" />

<footnote n="127">127 General Comment 2 para 31.</footnote>

<footnote n="128">128 See Balogun & Durojaye (n 32) 370, 375-377.</footnote>

<footnote n="129">129 (2003) AHRLR 96.</footnote>

<footnote n="130">130 'The right to the highest attainable standard of health', UN Committee on Economic, Social and Cultural Rights, UN Doc E/C/12/2000/4 para 12.</footnote>

<footnote n="131">131 Balogun & Durojaiye (n 32) 389.</footnote>

<footnote n="132">132 General Comment 2 on art 14(1)(a), (b), (c) and (f) and art 14(2)(a) and (c) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa.</footnote>

<footnote n="133">133 General Comment on art 14(1)(d) and (e) of the Protocol to the African Charter on the rights of women (2014) para 13.</footnote>

<footnote n="134">134 Balogun & Durojaiye (n 32) 386.</footnote>

<footnote n="135">135 African Commission on Human and Peoples' Rights' (African Commission); African Committee of Experts on the Rights and Welfare of the Child (ACERWE).</footnote>

<footnote n="136">136 Balogun & Durojaye (n 32) 394.</footnote>
A 2022 African Children's Committee decision proves invaluable in this regard. In *Legal and Human Rights Centre and Centre for Reproductive Rights (on behalf of Tanzanian girls) v Tanzania (Tanzanian girls' case)*,<fnref n="137" /> the complainants alleged that the Respondent's failure to uphold its obligation to respect, protect, and fulfil the rights of Tanzanian girls to health information and services the deprivation of which results in unwanted pregnancy. It was also alleged that forcing girls to undergo pregnancy testing under similar conditions violated the rights to equality, and non-discrimination, education, RHS, etc., in the African Children's Charter.<fnref n="138" /> The respondent argued that it has the responsibility to promote African morality and that it considered sexual relations among children to be immoral and against African values which must be punished.<fnref n="139" /> Among the issues for determination was whether the alleged absence of access to appropriate information and youth-friendly CSE and SRHS violated the African Children's Charter.<fnref n="140" /> The African Children's Committee found:<fnref n="141" />

Children – when in situations where their health and well-being are implicated – should be provided with adequate and appropriate information to understand the situation and all the relevant aspects concerning their interests, and be allowed, when possible, to give their consent in an informed manner.

Following its Joint General Comment with the African Commission on Ending Child Marriage,<fnref n="142" /> and Africa Commission's General Comment 2, African Children's Committee, boldly asserted: 'The fulfilment of the right to health includes the facilitation of access to information and services'.<fnref n="143" /> The decision serves as a wake-up call for African governments to begin an introspection into African values on sexuality. Incidentally, the Centre for Reproductive Rights in New York had cause to research into the problem of criminalising consensual adolescent sexual intimacy as addressed by national courts in Africa.<fnref n="144" /> The organisation had cause to counsel governments that resort to such punitive measures to rather enhance sexuality education and reproductive health services in ways that conform to the rights of the

<footnote n="137">137 Communication No 0012/Com/001/2019, Decision No 002/2022.</footnote>

<footnote n="138">138 *Tanzanian girls' case* paras 2, 18, 25-26.</footnote>

<footnote n="139">139 *Tanzanian girls' case* para 27.</footnote>

<footnote n="140">140 *Tanzanian girls' case* para 76.</footnote>

<footnote n="141">141 *Tanzanian girls' case* para 71.</footnote>

<footnote n="142">142 Joint General Comment of the African Commission on Human and Peoples' Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWE) on Ending Child Marriage (2017).</footnote>

<footnote n="143">143 *Tanzanian girls' case* paras 78-90, 83. See also ECW/CCJ/JUD/37/19 *Women Against Violence and Exploitation in Society (WAVES) & Child Welfare Society, Sierra Leone (On Behalf of Pregnant Adolescent School Girls in Sierra Leone)* v *Sierra Leone*, para 33 (ECOWAS Court decision on the integration of SRR rights into school curricula).</footnote>

<footnote n="144">144 *Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another* [2013] ZAGPPHC 1, Case No 73300/10 (South Africa, High Court); *Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another* CCT 12/1, [2013] ZACC 35 (South Africa, Constitutional Court).</footnote>
child.<fnref n="145" /> This counsel is applicable to The Gambia, a country caught in the throes of FGM.

## 4 FGM AND WOMEN'S RIGHT TO SRHI IN THE GAMBIA

The constitutional review underway in The Gambia provides the leeway to redress gender-based discrimination since women in The Gambia are disadvantaged by a patriarchal stranglehold which robs them of decision-making power regarding their sexuality and reproductive health.<fnref n="146" /> This part explores how the constitutional moment can be leveraged to address the near relapse of the extant FGM ban.

### 4.1 Constitutional and socio-cultural background to FGM prevalence in The Gambia

The Constitution of the Republic of The Gambia 1997 (as amended) (CRG 1977) embodies a bill of rights.<fnref n="147" /> It guarantees the rights of every person irrespective of race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, subject to respect for the rights and freedoms of others and the public interest. The fundamental rights enshrined shall be respected and upheld by all organs of state, all natural and legal persons, and enforceable by the courts under the Constitution.<fnref n="148" /> However, section 7 of the Constitution preserves customary law applicable to local communities and integrates the application of Sharia law among Muslims as regards matters of marriage, divorce and inheritance into Gambian law. The integration of Sharia precepts into Gambian law of itself is not inherently problematic, but it's rather the societal accretion of traditional practices thereto that perpetuates violence and reinforces discrimination to women and girls such as FGM. FGM is highly prevalent among the Serahuleh, Mandinka, Fula and Jola tribes in the rural hinterland who regard it as a rite of passage from girlhood to womanhood and test of female chastity among the populace under the unifying force of Islam.<fnref n="149" /> Though the combined threat of imprisonment issued by former President Jammeh and the enlightenment crusades led by civil society and women rights activists seriously lowered the practice, FGM has increased since the advent of democracy. The Gambia is a dualist country like all Anglo-phone commonwealth nations whereby international treaties must be

<footnote n="145">145 Centre for Reproductive Rights & Pretoria University Law Press 'Legal grounds reproductive and sexual rights in sub-Saharan African Courts Volume III' (2017) 45, 49, 53.</footnote>

<footnote n="146">146 Kaplan and others (n 6) 4.</footnote>

<footnote n="147">147 CRG 1997 (as amended) Chapter IV.</footnote>

<footnote n="148">148 CRG 1977, sec 17(1).</footnote>

<footnote n="149">149 Kaplan and others (n 6) 5.</footnote>
domesticated to become binding law.<fnref n="150" /> In Gambian jurisprudence, the Supreme Court's approach to domestic application of international human rights treaties tends to be relativist. Since inception in 2017, keen watchers of political events in The Gambia have not failed to observe that the Government of President Adama Barrow has been 'undertaking key constitutional and legal reforms to bring our laws in harmony with our international obligations'.<fnref n="151" />

## 4.2 The gap in the legal protection of women's rights in The Gambia

The Constitution of The Gambia 1977 guarantees several rights protective of women such as the right to life, the right to equal treatment with men, including equal opportunities in political, economic and social activities and prohibition of gender discrimination.<fnref n="152" /> The National Women's Council (NWC) under the NWC Act 1980 is saddled with the mandate to seek the integration and implementation of gender and women's rights initiatives in government activities. The NWC as a representative body is composed of women in all the country's districts to foster women's participatory decision-making. The Child Rights (Amendment) Act 2016 prohibits marriage of any person less than eighteen years old and criminalises child marriage and betrothals. The Women's Act 2010 (amended by Women's (Amendment) Act 2016)<fnref n="153" /> which was passed to advance the rights and welfare of women recognises the right to dignity,<fnref n="154" /> access to justice and equal protection of the law,<fnref n="155" /> prohibition of discrimination,<fnref n="156" /> right to marry,<fnref n="157" /> right to health,<fnref n="158" /> and rights of rural women.<fnref n="159" /> In addition to constitutional provisions, policy initiatives like the National Policy for the Advancement of Gambian Women 2010-2020 aims at gender parity and the optimisation of affirmative action to redress past injustices and discriminatory attitudes against women.<fnref n="160" /> That the sufferings of women and girls subjected to FGM and other forms of gender violence remains unabated

<footnote n="150">150 CRG 1997, sec 79(1)(c); OO Shyllon 'Monism/dualism or self executory: the application of human rights treaties by domestic courts in Africa' (2009) 6-12.</footnote>

<footnote n="151">151 IDEA 'From dictatorship to a new Constitution in The Gambia: issues and concerns', http://constitutionnet.org/news/dictatorship-new-constitution-gambia-issues-and-concerns (accessed 22 January 2020).</footnote>

<footnote n="152">152 See CRG 1977 (as amended) secs 28-33.</footnote>

<footnote n="153">153 Criminalisation of female circumcision under Women's Act 2010 which domesticated The Gambia's ratification of CEDAW and the Maputo Protocol. See S Nabaneh 'The Gambia's political transition to democracy is abortion reform possible?' (2019) 21 *Health and Human Rights* 169-179.</footnote>

<footnote n="154">154 Women's (Amendment) Act 2016, sec 4.</footnote>

<footnote n="155">155 Women's (Amendment) Act 2016, sec 7.</footnote>

<footnote n="156">156 Women's (Amendment) Act 2016, sec 10.</footnote>

<footnote n="157">157 Women's (Amendment) Act 2016, sec 24.</footnote>

<footnote n="158">158 Women's (Amendment) Act 2016, secs 29-30.</footnote>

<footnote n="159">159 Women's (Amendment) Act 2016, sec 33.</footnote>

<footnote n="160">160 The Gambia (n 75) 121.</footnote>
despite these litany of statutory rights makes the constitutional
protection of the right to SRHI imperative in seriously attenuating their
plight. Since CRG 1997 does not contain any definitive pronouncement
on the right, the ongoing constitutional review process provides a rare
opportunity to canvass for its entrenchment.

4.3 Women's right to SRHI and ongoing constitutional review in The Gambia

The recent botched attempt at overturning the FGM ban in The Gambia is a wake-up call to protect women's right to SRHI. Interestingly, The Gambia's Draft Constitution of 2020 provides for socio-economic rights including the right to health and portrays efforts towards a reasoned harmonisation of the customary and Islamic orientations of the people with human rights ethos. According to Maria Dacoster, the Interim President of the National Federation of Gambian Women, though the CRG 1997 accorded significant liberties to women it recognised some discriminatory personal laws which eroded women's rights relating to inheritance, divorce, marriage, etc.<fnref n="161" /> This dilemma resonates for rural and urban women, a matter raised in the 'Issues Document'<fnref n="162" /> of the Constitutional Review Committee (CRC) set up to outline areas for reform of CRG 1977 thus: 'Should specific provision be made in the new Constitution outlining the right to health care service ... in a similar manner as the current Constitution – provides in relation to education?'<fnref n="163" />

The ongoing constitutional review thus provides a historic
opportunity to redress as practicably as possible and ensure more voice
for women in reproductive health decision-making. The Draft
Constitution of the Republic of The Gambia 2019 consists of 20
chapters and some 315 clauses.<fnref n="164" /> The Draft reflects some basic
principles of human rights and the rule of law, religious secularism and
participatory democracy.<fnref n="165" /> Some interesting features of the Draft
Constitution include judicial recourse to human rights treaties to which
The Gambia is signatory as interpretive aids with respect to any
constitutional right<fnref n="166" /> and flexible ‘standing’ rules to aid public interest

<footnote n="161">161 N Sowe 'Women's ministry wants more stake in new draft constitution' *Foroyaa Newspaper* 24 December 2019 https://foroyaa.gm/womens-ministry-wants-more-stake-in-new-draft-constitution/ (accessed 29 February 2020).</footnote>

<footnote n="162">162 Constitutional Review Commission, The Gambia, Constitutional Review Commission of The Republic of The Gambia: possible areas for constitutional reform (Issues Document) (2018) 1-45.</footnote>

<footnote n="163">163 Constitutional Review Commission (n 162) 5.</footnote>

<footnote n="164">164 *The Voice* 'Gambia publishes first draft constitution' https://www.voice.gambia.com/2019/11/16/gambia-publishes-first-draft-constitution/ (accessed 17 February 2020).</footnote>

<footnote n="165">165 *Africanews* 'Gambia close to getting first post-Jammeh constitution', https://www.africanews.com/2019/11/17/gambia-close-to-getting-first-post-jammeh-constitution// (accessed 26 February 2020).</footnote>

<footnote n="166">166 Draft 2019 Constitution, sec 9(3).</footnote>
litigation to enforce fundamental rights.<fnref n="167" /> The Draft affirmed the state's positive obligation to respect constitutional rights,<fnref n="168" /> to respect, protect, promote and fulfil fundamental rights, particularly of vulnerable groups including women,<fnref n="169" /> and non-derogation from the protection from cruel and inhuman treatment.<fnref n="170" /> A host of new rights including right of access to information,<fnref n="171" /> women's rights to equal dignity and treatment with men,<fnref n="172" /> right of children against abuse and violence,<fnref n="173" /> and the justiciability of socio-economic rights (formerly directive principles in the 1997 Constitution) have also emerged.<fnref n="174" /> With this array of rights alone, the recognition of women's right to SRHI will be complementary, but it could be made a subsection of the right to health in the Draft section 60(1)(a). Women must be sufficiently empowered, protected and accorded equality to exercise and enjoy their full rights as citizens. Imprecise or inadequate fundamental rights provisions to protect women's dignity like CRG 1997, section 32, require reform.

## 5 CONCLUSION

There is no gainsaying that women's right to SRHI is among the corpus of the ever-growing international human rights framework based on a major preoccupation among human rights bodies for substantive and gender equality which has led to the introduction of CSE in several African states. However, despite the benefits of CSE: freedom from discrimination, FGM eradication, and respect for equality, human dignity, and overall, of women's sexual and reproductive health well-being, the reality in Africa is that sexuality education is still shrouded in opaque cultural concerns. African governments must therefore ensure to involve adolescents in the development, implementation, monitoring and evaluation of the content of sexuality education and is culturally sensitive. They must also involve religious and community leaders in development of sexuality curricular and decision-making. Since The Gambia is one of the countries with the highest prevalence of FGM and other discriminatory practices that pose negative impacts to women's overall social well-being, it is hereby advocated that a well-structured provision of the women's right to SRHI be entrenched in the Final Constitution which is the expected outcome of the constitutional

<footnote n="167">167 Constitutional Review Committee, 'Explanatory memorandum to the proposed Draft Constitution' (2019) 2; Draft 2019 Constitution, sec 33(2)(c).</footnote>

<footnote n="168">168 Constitutional Review Committee, 'Explanatory memorandum to the proposed Draft Constitution' (2019) 3; Draft 2019 Constitution, sec 32.</footnote>

<footnote n="169">169 Draft 2019 Constitution, sec 32(1) & (3).</footnote>

<footnote n="170">170 Draft 2019 Constitution, sec 69(3)(b).</footnote>

<footnote n="171">171 Constitutional Review Committee, 'Explanatory memorandum to the proposed Draft Constitution' (2019) 3; Draft Constitution, sec 46.</footnote>

<footnote n="172">172 Draft 2019 Constitution, sec 53(1) & (2).</footnote>

<footnote n="173">173 Draft 2019 Constitution, sec 54(c).</footnote>

<footnote n="174">174 Constitutional Review Committee 'Explanatory memorandum to the proposed Draft Constitution' (2019) 3-4; Draft Constitution, chapter VI, Part II (secs 60-66).</footnote>
review process. The AU and its development partners must support African governments, civil society organisations and other stakeholders to advocate for the constitutional entrenchment of women's right to SRHI in other African countries while African states must eliminate barriers to access to sexuality education. This will add to the quality, resilience, inclusive and culturally compliant outlook of Africa's educational system.
# Strengthening democratic governance in Africa through state reporting under the African Charter on Democracy, Elections and Governance: assessing the prospects, challenges and pathways to improved compliance

Andrew Songa*

https://orcid.org/0000-0002-6691-2403

Makda M Tessema**

https://orcid.org/0009-0005-5360-4793

**ABSTRACT:** This article addresses the role of the African Charter on Democracy, Elections and Governance (African Democracy Charter) in strengthening democratic governance in Africa by focusing on the aspect of state reporting as a pathway to improving compliance by state parties. It outlines the existing framework for state reporting under the African Democracy Charter and interrogates how this framework has been operationalised and monitored with a view to identifying existing gaps and challenges. It also locates state reporting of the African Democracy Charter within the wider constellation of state reporting on human rights instruments and explores ways in which improved coherence and coordination can be achieved as states respond to these various obligations. It then explores the role to be played by civil society in enhancing aspects of state compliance with African Democracy Charter principles. It concludes with key lessons learnt from twelve years of the instrument being in force and makes proposals for a strengthened framework on state reporting as an aide to improved implementation at the national level. The article reveals that considerable work remains to be done in the areas of universal ratification, state compliance on reporting, improved coordination of stakeholders at various levels and in enhancing the involvement of civil society to enhance public ownership and engagement. It is based on extensive desk-review and research of the African Democracy Charter, its related policy and programme documents and existing academic literature. It is also informed by deliberations, reports and releases issued by various stakeholders who have engaged in development of the African Democracy Charter as well as in advocacy related to its successful implementation at the continental, regional and national levels.

## TITRE ET RÉSUMÉ EN FRANÇAIS

### Renforcer la gouvernance démocratique en afrique par l'établissement de rapports par les états en vertu de la charte africaine de la démocratie, des élections et de la gouvernance : évaluer les perspectives, les défis et les voies d'une meilleure conformité

<footnote>* Advocate of the High Court of Kenya, Master of Advanced Studies in Transitional Justice, Human Rights and the Rule of Law at the Geneva Academy; andrewsonga84@gmail.com</footnote>

<footnote>** LLM in International Legal Studies from the Georgetown University Law Centre; makdatessema@gmail.com</footnote>
**RÉSUMÉ:** Cet article aborde le rôle de la Charte africaine de la démocratie, des élections et de la gouvernance (Charte africaine de la démocratie) dans le renforcement de la gouvernance démocratique en Afrique en se concentrant sur l'aspect des rapports étatiques comme moyen d'améliorer le respect par les États parties. Il décrit le cadre existant pour les rapports étatiques dans le cadre de la Charte africaine de la démocratie et s'interroge sur la manière dont ce cadre a été opérationnalisé et suivi en vue d'identifier les lacunes et les défis existants. Il situe également les rapports des États sur la Charte africaine de la démocratie dans la constellation plus large des rapports des États sur les instruments relatifs aux droits de l'homme et explore les moyens par lesquels une cohérence et une coordination améliorées peuvent être obtenues à mesure que les États répondent à ces diverses obligations. Il explore ensuite le rôle que doit jouer la société civile dans le renforcement du respect par l'État des principes de la Charte africaine de la démocratie. Il se termine par les principaux enseignements tirés des douze années d'application de l'instrument et formule des propositions pour un cadre renforcé sur les rapports étatiques afin de contribuer à une meilleure mise en œuvre au niveau national. L'article révèle qu'un travail considérable reste à faire dans les domaines de la ratification universelle, du respect par l'État des rapports, d'une meilleure coordination des parties prenantes à différents niveaux et du renforcement de l'implication de la société civile pour renforcer l'appropriation et l'engagement du public. Il est basé sur une étude documentaire et des recherches approfondies sur la Charte africaine de la démocratie, ses documents de politique et de programme connexes et la littérature universitaire existante. Il s'appuie également sur les délibérations, rapports et communiqués publiés par diverses parties prenantes qui se sont engagées dans l'élaboration de la Charte africaine de la démocratie ainsi que dans le plaidoyer lié à sa mise en œuvre réussie aux niveaux continental, régional et national.

**KEY WORDS:** African Charter on Democracy; Elections and Governance; democratic governance; state reporting; compliance

**CONTENT:**

1 Introduction..................................................................................................................389

1.1 The importance of state reporting in fostering compliance with treaty obligations..................................................................................................................389

1.2 Democratic governance as a constitutive element of African shared values..............390

2 An overview of the state reporting mechanism under the African Democracy Charter ..................................................................................................................393

2.1 The African Democracy Charter's legal and institutional framework for reporting ..................................................................................................................393

2.2 Emerging challenges in state reporting under the African Democracy Charter ..................................................................................................................396

3 Improving African Democracy Charter reporting by building synergies with other related reporting obligations under the African Union system ..................................................................................................................399

3.1 Reporting under the African Charter on Human and Peoples' Rights..................400

3.2 Reporting under the African Peer Review Mechanism........................................401

4 Strengthening compliance through regional economic communities and civil society..................................................................................................................403

4.1 The role of regional economic communities................................................................403

4.2 The role of civil society 406

5 Conclusion ....................................................................................................................410
# 1 INTRODUCTION

## 1.1 The importance of state reporting in fostering compliance with treaty obligations

State reporting is considered ‘one of the oldest monitoring instruments in international law’.<fnref n="1" /> It is the process through which a state party to a treaty is required to report to an oversight mechanism periodically, in order to highlight the steps it has taken to comply with its treaty obligations. State reporting promises three major benefits. First, the report development process is a critical self-assessment by a state which reveals the challenges that it is facing in the fulfilment of its treaty obligations and this enables the adoption of policies to improve compliance. Second, state reporting requires a participatory and consultative approach that can foster improved coordination within government while also facilitating public input and partnership with key stakeholders such as civil society. This in turn generates public awareness of the state’s treaty obligations and potentially secures support for state measures aimed at compliance. Third, the state reporting process enables constructive engagement between the state and the oversight mechanism on how to overcome challenges to compliance. It also equips the state with recommendations and opportunities for assistance that can enable it to improve its compliance in future.<fnref n="2" /> Therefore, the general objective of state reporting is to facilitate scrutiny of relevant government policies in order to enable informed and principled policy making towards compliance with treaty obligations.

It is on this basis that the African Charter on Democracy, Elections and Governance (African Democracy Charter) requires state parties at two-year intervals, to submit periodic reports that should enable the African Union (AU) to establish the progress being made towards realising democratic governance as a continentally shared value. The remainder of the introduction section of this article locates democratic governance as a constitutive element of African shared values. The second part of the article provides an overview of the state reporting mechanism under the African Democracy Charter. The third part reflects on the relationship between the African Democracy Charter and other related state reporting obligations under the AU system; in order to draw lessons and explore the prospects for improved coordination between reporting frameworks. The fourth part reflects on the role that Regional Economic Communities can play in improving state compliance with the African Democracy Charter and also reflects on the role to be played by civil society. The article concludes with a

<footnote n="1">1 http://opiniojuris.org/2020/11/27/a-little-less-conversation-a-little-more-action-please-state-reporting-and-the-treaty-body-review-2020/ (accessed 12 June 2024).</footnote>

<footnote n="2">2 OHCHR Reporting to the United Nations Human Rights Treaty Bodies Training Guide: Part I- Manual (2017) 27.</footnote>
series of recommendations aimed at improving state compliance with
the reporting requirements under the African Democracy Charter.

## 1.2 Democratic governance as a constitutive element of African shared values

The African Union (AU) through its Constitutive Act in article 4(m) recognises respect for democratic principles, human rights, the rule of law and good governance as foundational principles for its functions as a union. This is echoed as an aspiration within Agenda 2063, the AU's visionary blueprint for Africa's transformation to a peaceful, secure, stable and well-integrated continent.<fnref n="3" /> Democratic governance is further embedded in the tapestry of the AU as part of the African Shared Values which are defined as follows:<fnref n="4" />

> those norms, principles and practices that have been developed or acquired, which provide the basis for collective actions and solutions in addressing the political, economic and social challenges that impede Africa's integration and development.

An integral step to make these values tangible is the African Democracy Charter. The African Democracy Charter is recognised as the normative instrument that encapsulates these shared values on democratic governance as well as those of human rights, rule of law, peace and security.

Indeed, the African Democracy Charter consolidates the experiences and values extracted from Africa's third wave of democratisation which started in the late 1980s and saw the autocratic regimes that took hold in the continent after independence give way to a fresh democratic wave on the continent.<fnref n="5" /> Illustratively, some of the African Democracy Charter provisions drew their inspiration from and complemented preceding instruments such as the OAU Declaration on Principles Governing Democratic Elections, the New Partnership for Africa's Development (NEPAD) Declaration, the Declaration on Democracy, Political, Economic and Corporate Governance and the African Peer Review Mechanism (APRM) Base Document.<fnref n="6" />

Beyond providing key definitions and an operational framework for its implementation, the African Democracy Charter elaborates on democratic governance values through a series of provisions covering topical issues such as: the objectives and principles of the African Democracy Charter; democracy, rule of law and human rights; the culture of democracy and peace; democratic institutions; democratic

<footnote n="3">3 https://au.int/agenda2063/goals (accessed 12 June 2024).</footnote>

<footnote n="4">4 Africa Governance Institute as cited in FA Agwu 'Shared values in Africa's integration and unity' (2011) 3(1) *Africa Review* at 4.</footnote>

<footnote n="5">5 K Matlosa 'The African Charter on Democracy, Elections and Governance: origin and odyssey' (2018) 5(3) *African Journal of Democracy and Governance* 31.</footnote>

<footnote n="6">6 AM Mangu 'African civil society and the promotion of the African Charter on Democracy, Elections and Governance' (2012) 12(2) *African Human Rights Law Journal* 351-352.</footnote>
elections; sanctions in cases of unconstitutional changes of
government; and political, economic and social governance. It is on this
basis that it has been viewed as an accountability framework. It
provides a benchmark to assess state parties' commitment to
democratic governance values while also enabling comparative analysis
between states and an analysis of governance trends on the continent.<fnref n="7" />
This value proposition of the African Democracy Charter calls attention
to the status of its acceptance by AU member states and whether its
existence has indeed shaped the governance trends on the continent.

February 2022 marked 10 years since the African Democracy Charter came into force and while some gains have been made in the arena of democratic governance, this decade has been described as one of ‘governance progress threatened by worsening security, democratic backsliding, and COVID-19’.<fnref n="8" /> With regard to progress, it is notable that as at July 2024, 39 out of the AU’s 55 member states had ratified the African Democracy Charter while a further seven member states have submitted their signature to the instrument as an integral step towards ratification.<fnref n="9" /> This means that approximately 71 per cent of Africa’s governments are bound by the provisions of the African Democracy Charter as state parties to this instrument while 84 per cent of Africa’s governments by way of signature have at least indicated a willingness to abide by these principles.

This majority embrace of the African Democracy Charter by member states has run in tandem with the progressive deepening of various democratic benchmarks on the continent. Regular and multiparty elections, peaceful transitions of power and the establishment of independent institutions have materialised in high frequency against the backdrop of the African Democracy Charter coming into force. As will be discussed in later sections of this article, the African Democracy Charter has also enabled the strengthening of the AU’s institutional capacity in responding to democratic governance priorities such as election observation, citizen engagement and participation. Furthermore, the African Court on Human and Peoples’ Rights (African Court) has declared the African Democracy Charter to be a human rights instruments and thus made democratic governance principles justiciable by making it ‘incumbent on state parties to ensure that they respect the rule of law, democratic governance and the right to equality before the law’.<fnref n="10" /> This was established in the case of *Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire* when the Court held that the African Democracy Charter is a human rights instrument since its provisions requiring states to establish independent and impartial electoral bodies was in furtherance of the

<footnote n="7">7 https://ecdpm.org/work/guide-african-charter-democracy-elections-and-governance (accessed12 June 2024)</footnote>

<footnote n="8">8 Mo Ibrahim Foundation 2022 *Ibrahim Index of African Governance: Index Report* (January 2023) 14.</footnote>

<footnote n="9">9 https://au.int/en/treaties/african-charter-democracy-elections-and-governance (accessed 12 June 2024).</footnote>

<footnote n="10">10 B Kioko 'The African Charter on Democracy, Elections and Governance as a justiciable instrument' (2019) 63 *Journal of African Law* 61.</footnote>
rights enshrined in article 13 of the African Charter on Human and Peoples' Rights.<fnref n="11" /> That said, this decade of the African Democracy Charter being in force has also witnessed significant setbacks.

While elections have become a frequent occurrence, questions of transparency and credibility have persisted and, in some cases, caused political violence. A 2021 study indicated that in the over 100 elections undertaken in 44 African countries for the period of 2011-2017, some form of electoral violence at some point of the electoral cycle was experienced.<fnref n="12" /> While peaceful transitions of power in Africa have become the norm rather than the exception, episodes of Unconstitutional Changes of Government (UCG) continue to occur. Illustratively, the 2023 Africa Governance Report (AGR) noted that the continent had experienced 18 instances of UCG in the period of 2003-2022; with six of those instances happening between 2019 and 2022.<fnref n="13" />

Beyond the familiar dimension of military coups, the UCGs also entail unconstitutional constitutional amendments;<fnref n="14" /> which are driven by nefarious aims such as subverting the public will and seeking to either eliminate or resist term-limits or see incumbents skew electoral laws in their favour. Indeed, a 2023 study on military coups and the need for democratic renewal in Africa identified constitutional manipulation as a proximate factor leading to UCGs since it causes the deterioration of civic trust in government performance as well as in the very notion of democracy.<fnref n="15" /> Additionally, more than half of African states within the last decade have also registered deterioration in the critical aspects of security and rule of law and on participation, rights and inclusion.<fnref n="16" />

In light of the above catalogue of progress and setbacks, this article focuses on the African Democracy Charter state reporting framework as a way to effectively assess the level of commitment and compliance by member states to this instrument as a manifestation of the African shared values on democratic governance. As Matlosa importantly highlights, 'it is rather the domestication and implementation' of the provisions of the African Democracy Charter that 'speaks volumes'.<fnref n="17" />

<footnote n="11">11 MJ Ayissi 'Actions Pour La Protection Des Droits de l'Homme (APDH) v Republic of Côte d'Ivoire (Afr. Ct. H.P.R.)' (2017) 56(3) *International Legal Materials* 584.</footnote>

<footnote n="12">12 KJ Kewir & N Gabriel *Causes of election violence in Africa* 4.</footnote>

<footnote n="13">13 African Peer Review Mechanism (APRM) and African Governance Architecture (AGA) 'The Africa Governance Report 2023: Unconstitutional Changes of Government in Africa' (2023) 5.</footnote>

<footnote n="14">14 Y Roznai 'Unconstitutional constitutional amendments – the migration and success of a constitutional idea' (2013) 61(3) *The American Journal of Comparative Law* 657–719; https://www.peaceau.org/en/article/declaration-on-unconstitutional-changes-of-government-in-africa (accessed 12 June 2024).</footnote>

<footnote n="15">15 United Nations Development Programme *Soldiers and citizens: military coups and the need for democratic renewal in Africa* (2023) 16.</footnote>

<footnote n="16">16 Mo Ibrahim Foundation (n 8) 16.</footnote>

<footnote n="17">17 K Matlosa 'Governance in Africa: AU achievements, challenges and prospects' in W Okumu & A Atta-Asamoah (eds) *The African Union at 20: African perspectives on progress, challenges and prospects* (Institute for Security Studies 2023) 161.</footnote>
## 2 AN OVERVIEW OF THE STATE REPORTING MECHANISM UNDER THE AFRICAN DEMOCRACY CHARTER

The state reporting, evaluation and monitoring process in the Africa Democracy Charter is designed to foster compliance through cooperation that is based on consultation, analysis and persuasion as opposed to punitive or coercive measures.<fnref n="18" /> In its essence and methodological approach, the state reporting process is established and intended to be a constructive and open dialogue between the state party and the African Governance Platform (AGP) as well as national stakeholders in order to ascertain the status of implementation, existing best practices, the challenges encountered and possible solutions. The intent is to facilitate the progressive realisation of democratic governance principles by African states. This section will first outline the legal and institutional framework for state party reporting under the African Democracy Charter and then proceed to assess its efficacy thus far in order to identify the emerging challenges and enable an inquiry into the roles that various stakeholders can play in resolving these challenges.

### 2.1 The African Democracy Charter's legal and institutional framework for reporting

Operationalising the African Democracy Charter is premised on the commitment of state parties to give effect to its provisions through political will and initiating appropriate legislative, policy and administrative measures at the national level. The African Union Commission (AUC) on its part is required to develop the requisite benchmarks against which the actions of state parties can be evaluated while also offering the states both technical and financial assistance towards a progressively improved rate of compliance.<fnref n="19" /> It is on this basis that a state reporting and monitoring mechanism for the African Democracy Charter arises.

Article 49(1) requires state parties to the Charter to submit reports every two years from the date the Charter came into force. The report is to be submitted to the AUC, which is tasked with coordinating the evaluation process with key organs of the AU that possess mandates around the African Democracy Charter themes as well as with Regional Economic Communities (RECs) and appropriate national-level structures.<fnref n="20" /> The AUC discharges its evaluation role through the African Governance Architecture (AGA) and its institutional

<footnote n="18">18 M Wiebusch and others 'The African Charter on Democracy, Elections and Governance: past, present and future' (2019) 63(S1) *Journal of African Law* 9 at 27.</footnote>

<footnote n="19">19 African Democracy Charter art 44(2)(A)(a).</footnote>

<footnote n="20">20 African Democracy Charter art 45(c).</footnote>
framework, the African Governance Platform (AGP). The AGA is a platform for dialogue that brings together various stakeholders ‘who are mandated to promote good governance and strengthen democracy in Africa, in addition to translating the objectives of the legal and policy pronouncements in the AU Shared Values’.<fnref n="21" />

As the institutional framework, the AGP operates in two concentric circles: the first circle brings together AU organs, institutions and RECs which hold a formal mandate on matters of democracy, governance and human rights.<fnref n="22" /> The second circle brings in continental stakeholders from civil society, the diaspora, the private sector and development partners. It is the first circle of AGP stakeholders that is entrusted with the evaluation of state reports submitted under the African Democracy Charter.<fnref n="23" /> The AGP ultimately evaluates state reports through the coordination function of its African Governance Architecture Secretariat (AGA Secretariat) which is tasked to coordinate the feedback envisioned under article 49(2) of the African Democracy Charter. To achieve the objectives of state reporting, state parties are encouraged to establish a multi-stakeholder national institutional framework to serve as the focal point for the coordination of the monitoring and reporting activities related to this instrument. This should encompass the relevant state and government ministries, departments and agencies as well as non-state actors so as to ensure diversity, effective participation and inclusion.<fnref n="24" />

States are required to prepare either an initial report or a periodic report. The initial report is the first report that the state party is required to submit after ratification of the Charter. The initial report is limited to 80 pages and serves as the baseline for the subsequent periodic reports to be submitted by the state. In terms of structure, the initial report is recommended to be divided into two broad sections which are a section on background information and a section on implementation measures. The background information required includes: information on whether the African Democracy Charter has been domesticated and whether it is justiciable before national courts; an outline of the state institutions relevant to the Charter's implementation and information on their budgetary allocations; the

<footnote n="21">21 https://au.int/en/aga/about (accessed 12 June 2024).</footnote>

<footnote n="22">22 The members include the Peace and Security Council (AU-PSC), the AUC's Department for Political Affairs, Peace and Security (AUC-PAPS), the African Commission on Human and Peoples' Rights (Commission), the African Court on Human and Peoples' Rights (Court), the Pan-African Parliament (PAP), the African Peer Review Mechanism (APRM), the African Union Advisory Board Against Corruption (AUABC), the Economic, Social and Cultural Council (AU-ECOSOCC), the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the African Union Commission on International Law (AUCIL), the African Union Development Agency-NEPAD (AUDA-NEPAD) and all the 8 AU recognised RECs (COMESA, ECCAS, ECOWAS, SADC, EAC, IGAD, UMA, CEN-SAD).</footnote>

<footnote n="23">23 Rules of Procedure of the African Governance Platform (adopted by the Twenty-Eighth Ordinary Session of the Executive Council held in Addis Ababa, Ethiopia on 28 January 2016): Annex – Guidelines for State Parties’ Reports Under the African Charter on Democracy, Elections and Governance Sec II.</footnote>

<footnote n="24">24 Rules of Procedure of the African Governance Platform (n 23) Sec III art 9.</footnote>
status of civic space and related regulatory frameworks; the
constitutional, legislative and other related instruments relevant to the
implementation of the African Democracy Charter; information on the
relevant regional, continental and international instruments ratified by
the state party; the consultation process (which should be multi
stakeholder based) for the development of the initial report; and the
steps undertaken to ensure the content of the African Democracy
Charter is widely disseminated.<fnref n="25" />

With regard to implementation measures, the initial report requires the following information: the legislative as well as administrative measures undertaken to make the state party compliant with the African Democracy Charter; the institutional mechanisms that have either been established or strengthened to enable compliance with the Charter; disaggregated data, statistics and results that can demonstrate implementation of the Charter's provisions; the challenges encountered by the state party in implementation of the Charter and the measures undertaken to overcome them; the gaps and opportunities that exist as well as lessons that other state parties can learn from; and areas on which the state party may require technical support to enable implementation of the African Democracy Charter.<fnref n="26" />

The periodic reports are restricted to a 40-page limit and should be submitted every two years to provide status updates on the progress made towards the implementation of concluding observations and recommendations received by the state party. Notable information to be provided in the periodic report includes: measures undertaken to implement previous recommendations and disseminate them widely; progress made in the implementation of the African Democracy Charter since the previous report; the challenges encountered and how they were overcome; updates on relevant constitutional, legislative and administrative measures since the previous report; the consultations undertaken in the development of the report; gaps, opportunities and lessons; and areas requiring technical support.<fnref n="27" />

Upon receiving a state report, the AGA Secretariat solicits input from AGP members as well as other relevant stakeholders, engages the state party in a dialogue and culminates in the issuance of concluding observations and recommendations. Based on an official request from a state party, the AGA Secretariat can provide training and experience sharing on the state obligations with regard to reporting on the African Democracy Charter. Under article 49(3) of the African Democracy Charter, the AUC is also mandated to prepare a synthesised report on the continental landscape as far as the implementation of the Charter is concerned, with recommendations that the AU Assembly of heads of state and government will be required to act on. The monitoring and implementation framework also envisages coordination and collaboration among the AGP members (including RECs), the national

<footnote n="25">25 Rules of Procedure of the African Governance Platform (n 23) Sec V art 13.</footnote>

<footnote n="26">26 Rules of Procedure of the African Governance Platform (n 23) Sec V art 14.</footnote>

<footnote n="27">27 Rules of Procedure of the African Governance Platform (n 23) Sec VI art 16.</footnote>
focal points within the state parties and the participation of civil society.<fnref n="28" />

## 2.2 Emerging challenges in state reporting under the African Democracy Charter

Despite the elaborate framework outlined in the prior section, an examination of the practice reveals challenges that undermine the objectives of state party reporting under the African Democracy Charter. The challenges addressed in section include a low level of political will for compliance on state reporting, capacity constraints, limited publicity on the reporting process, multiple and overlapping reporting obligations and insufficient harnessing of the potential presented by effective coordination within the AGP.

At the time of writing, the AUC had received only two state reports on the African Democracy Charter; from the Republic of Togo (submitted in 2017) and Republic of Rwanda (submitted in 2019). This is in stark contrast to the number of state parties to the instrument which stands at 39. This low level of state reporting is attributable to several factors. The first is that the lack of reporting points to the absence of or, at best, ambivalent political will towards the implementation of the African Democracy Charter. Where the ratification of the instrument introduces a presumption of political will to adhere to democratic governance principles, the conduct of state parties has frequently pointed to the contrary.

Research has evidenced that state parties ratify the African Democracy Charter as a result of 'concerns about their legitimacy, reputation or esteem', as opposed to actually internalising or institutionalising the norm.<fnref n="29" /> Illustratively, while all states from the Economic Community of West African States (ECOWAS) have ratified the African Democracy Charter, 11 out of 15 UCG incidents recorded on the continent from 2008 (a year into the adoption of the African Democracy Charter) up to 2022 took place in that region.<fnref n="30" /> Furthermore, as already highlighted, more than 50 per cent of African states in the last decade registered a downward trajectory on the critical indicators of participation, rights and inclusion.<fnref n="31" /> This was also echoed in a 2023 study which concluded that the proclamation of democracy in some African states was in fact a façade as the models of governance utilised were exclusionary in nature.<fnref n="32" />

<footnote n="28">28 Rules of Procedure of the African Governance Platform (n 23) Sec XI art 37.</footnote>

<footnote n="29">29 U Engel 'The 2007 African Charter on Democracy, Elections and Governance: trying to make sense of the late ratification of the African Charter and non-implementation of its compliance mechanism' (2019) 54(2) *Africa Spectrum* 136.</footnote>

<footnote n="30">30 African Peer Review Mechanism (APRM) and African Governance Architecture (AGA) (n 14) 5.</footnote>

<footnote n="31">31 Mo Ibrahim Foundation (n 8) 16.</footnote>

<footnote n="32">32 United Nations Development Programme (n 15) 21.</footnote>
Capacity constraints have impacted the AUC and their ability to effectively preside over the state reporting process. Ideally, for an effective state reporting and monitoring process to work, sufficient investments on human and financial capacity need to be made. Practically however, insufficient resources have proven detrimental to the sustainability of the AGA's critical functions such as presiding over the African Democracy Charter state report evaluation process. Indeed, a 2017 study did indicate that sustainable financing was a challenge for AGA and this had undermined the effective implementation of its mandate which includes the African Democracy Charter reporting process.33 This is further evidenced by the fact that despite only two states being compliant, Togo and Rwanda only received the concluding observations to their respective state reports in August 2024.34 This challenge is situated in the larger context of resource allocation within the AU, where the view has been expressed that the AU tends to emphasise spending on peace and security interventions and neglected committing resources towards preventive democratic governance efforts.35

The AGP framework anticipates these challenges and prescribes resolving some of them through the establishment of the African Governance Facility (AGF). The AGF is a resource mobilization mechanism aimed at supporting initiatives that are geared towards promoting good governance and consolidating democracy in Africa. These initiatives include: institutional capacity strengthening and building; dialogues to facilitate citizen engagement in democratic governance processes; and technical support to member states towards the ratification, domestication, implementation and reporting on AU Shared Values instruments.36 The AGF is meant to be jointly owned and resourced by AGP members, AU member states and other stakeholders.

However, the AGF is not operationalised. The AGF would be integral to enabling campaigns on ratification and dissemination of the African Democracy Charter as well as its reporting guidelines to a variety of stakeholders. It would also support state parties to establish national mechanisms for reporting and implementation and strengthen the AGP's coordination towards effective review of reports and monitoring the implementation of concluding observations. Illustratively, the reports by Togo and Rwanda should be amplified by the AUC to harness impetus for compliance by other states and can

<footnote n="33">33 F Aggad & P Apiko 'Understanding the African Union and its Governance Agenda: African Governance Architecture and the Charter for Democracy Elections and Good Governance' (2017) 7.</footnote>

<footnote n="34">34 https://www.peaceau.org:443/en/article/togo-and-rwanda-honored-for-commitment-in-reporting-on-democracy-and-governance (accessed 10 October 2024).</footnote>

<footnote n="35">35 MK Nikodimos 'The Role of the African Governance Architecture (AGA) in the Promotion of Democratic Governance in Africa: The Cases of Egypt-2013 and Burundi-2015' unpublished Master's thesis, Linnaeus University, 2020 at 26 (on file with the author).</footnote>

<footnote n="36">36 https://web.archive.org/web/20160719032912/http://aga-platform.org/index.php/aga-platform/2015-10-20-06-26-7/2015-10-12-11-41-45 (accessed 12 June 2024).</footnote>
serve as instructive case studies for other states on how they can
undertake their own state reporting. Evidently, this work has begun in
the form of workshops aimed at member states within the African
Union Permanent Representatives Subcommittee on Human Rights,
Democracy and Governance (HRDG) in 2022 and 2023.<fnref n="37" /> However,
much more outreach to all state parties is required if the potential for
peer learning is to be fully exploited.

Closely related to resource constraints is the insufficient publicity and dissemination of information on the state reporting process. In fact, unlike other treaty reporting processes such as those of the African Charter and the United Nations human rights system, the African Democracy Charter reporting process does not have a public portal where state reports and other material relevant to their evaluation can be accessed. This limits the possibility for public debates on the recommendations issued to these states as well as extracting best practices to be adopted by the various stakeholders involved in the process. This contrasts with international best practice where it has been established that state compliance with international legal obligations does to some extent rely on public access to information from treaty processes such as state reports and the recommendations issued as a result.<fnref n="38" /> Such access strengthens public participation, transparency and accountability.

Another challenge to state reporting under the African Democracy Charter is the assertion of reporting fatigue by states due to the multiple reporting obligations that run alongside the African Democracy Charter, arising from multiple instruments at the continental and international levels.<fnref n="39" /> Indeed, at the continental level, the major ones along the democratic governance and human rights spectrum in addition to the African Democracy Charter are the African Charter on Human and Peoples’ Rights (African Charter); the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol); the African Charter on the Rights and Welfare of the Child; and the African Union Convention on Preventing and Combating Corruption. There is also the voluntary country review process provided for under the Statute of the African Peer Review Mechanism (APRM). This is further compounded by reporting obligations and related engagements within the United Nations system as well as at the level of RECs.

<footnote n="37">37 https://www.peaceau.org:443/en/article/togo-and-rwanda-honored-for-commitment-in-reporting-on-democracy-and-governance (accessed 15 October 2024)</footnote>

<footnote n="38">38 CD Creamer & BA Simmons ‘The proof is in the process: self-reporting under international human rights treaties’ (2020) 114(1) *American Journal of International Law* 36.</footnote>

<footnote n="39">39 Stakeholders’ seminar on the African Charter on Democracy Elections and Governance: 26-27 July 2022, Addis Ababa, Ethiopia (notes on file with the authors).</footnote>
An analysis of the continued proliferation of reporting mechanisms in the African system concluded that the various mechanisms risked not being impactful due to the unfocused deployment of resources and efforts within the system.<fnref n="40" /> It is on this basis that in 2023, the AGP commenced internal deliberations and also with member states on harmonising state reporting mechanisms in the areas of human rights, democracy and governance. Essentially, this is meant to explore the viability of consolidating the reporting processes of various mechanisms in order to ease the burden of state parties and enhance the prospects of implementation at the national level.<fnref n="41" /> While this remains an evolving discussion in its early stages, an element that can already be capitalised on in the interim is the potential of synergies that can be established among the AGP members who undertake state reviews in line with their respective mandates, a matter that is explored in the next section.

### 3 IMPROVING AFRICAN DEMOCRACY CHARTER REPORTING BY BUILDING SYNERGIES WITH OTHER RELATED REPORTING OBLIGATIONS UNDER THE AFRICAN UNION SYSTEM

The African Democracy Charter implementation and monitoring framework expects the AGP members to work in a coordinated manner to ensure that state parties are effectively evaluated as far as their compliance with and implementation of the instrument's provisions are concerned.<fnref n="42" /> Beyond direct participation in the African Democracy Charter state reporting process, the AGP's coordination aspect opens the door to further linkages between this process and other state reporting obligations that are derived from the mandates of some of the AGP members. This section explores the linkages with reporting under the African Charter and under the APRM. This is essential because the African Commission and APRM processes have higher state compliance rates than the African Democracy Charter reporting process, while also venturing into the similar areas of inquiry and thus can help bridge the gap on democratic governance reporting in the interim. Additionally, the African Commission and APRM processes provide lessons on procedure that would be useful in enlivening the African Democracy Charter reporting process and increasing the prospects for compliance.

<footnote n="40">40 C Heyns 'The African regional human rights system: the African Charter' (2004) 108(3) *Dickinson Law Review* 679, 702.</footnote>

<footnote n="41">41 https://au.int/en/pressreleases/20231201/harmonizing-state-reporting-mechanisms-human-rights-democracy-and-governance (accessed 15 October 2024).</footnote>

<footnote n="42">42 Rules of Procedure of the African Governance Platform (n 23) Sec II, art 5.</footnote>
## 3.1 Reporting under the African Charter on Human and Peoples' Rights

Article 62 of the African Charter and article 26 of the Maputo Protocol require state parties to submit state reports to the African Commission every two years to demonstrate how they have upheld the rights and freedoms guaranteed in those respective instruments. The rights to freedom of association, freedom of assembly, to freely participate in the governance affairs of one's country and to have equal rights to and access to public services which are all covered under the African Charter, means that the African Commission ventures into African Democracy Charter-related obligations when reviewing state reports submitted under the African Charter. Therefore, the Concluding Observations emerging from the African Commission's review should help strengthen state compliance with the African Democracy Charter.

Illustratively, the African Commission's Concluding Observations in relation to Kenya's eighth to eleventh periodic report, commended Kenya for its jurisprudence which safeguarded the right of prisoners to vote and for reforms to its electoral law to enhance the political participation of persons with disabilities (PWDs).43 The African Commission also raised concerns regarding the low representation of women at decision making levels;44 and the lack of formal representation and political participation for indigenous groups such as the Ogiek, Ilchamus and Elmolo.45 In the case of the second and third combined report of Malawi, the African Commission called on the government to challenge societal beliefs and attitudes that inhibited women's appointment in political and public positions as well as implement the affirmative action measures that were required by their law on gender parity.46

Beyond the Concluding Observations issued by the African Commission, there is also much to be derived from the provisions for public engagement within their reporting framework. Under the African Commission rules of procedure, the state reports on African Charter compliance are published on the African Commission website

<footnote n="43">43 Concluding Observations and Recommendations on the 8th to 11th Periodic Report of the Republic of Kenya: Adopted by the African Commission on Human and Peoples' Rights at its 19th Extraordinary Session held from 16 to 25 February 2016 in Banjul, The Gambia 4.</footnote>

<footnote n="44">44 Concluding Observations and Recommendations on the 8th to 11th Periodic Report of the Republic of Kenya (n 43) 11.</footnote>

<footnote n="45">45 Concluding Observations and Recommendations on the 8th to 11th Periodic Report of the Republic of Kenya (n 43) 14.</footnote>

<footnote n="46">46 Concluding Observations and Recommendations on the 2nd and 3rd Combined Periodic Report of the Republic of Malawi on the implementation of the African Charter on Human and Peoples' Rights (2015-2019) and Initial Report on the Protocol to the African Charter on Human and People's Rights on the Rights of Women (2005-2013): Adopted by the African Commission on Human and Peoples' Rights at the 70th Ordinary Session held from 23 February to 9 March 2022 23.</footnote>
when received in order to make them available for public scrutiny.<fnref n="47" />
This in contrast to the prevailing situation under the African
Democracy Charter where the state reports submitted thus far have not
been made publicly available. As already highlighted, such publicity is
instrumental for public participation, transparency and accountability.

In addition to the publication of state reports, the African
Commission allows for the submission of shadow reports from civil
society. Shadow reports refer to the independent and credible
information compiled by civil society organisations with the purpose of
providing parallel or supplementary information to that of state
reports, with regard to the situation of human rights in the country
under review. Practically, the shadow reports are limited to 15 pages
with a maximum of 10 annexes and should be submitted 30 days prior
to a state being reviewed.<fnref n="48" /> As with the state reports, the African
Commission also publishes the shadow reports on its website alongside
information from other stakeholders. While the African Democracy
Charter reporting process anticipates input from stakeholders, there is
no elaborate guidance on how such input should be provided. In this
regard, the African Democracy Charter process should similarly
develop clear guidelines and invite the submission of shadow reports
from civil society organisations.

The examination of state reports at the African Commission is done through an open session, where the state party under consideration participates in an interactive dialogue with the commissioners in the presence of other state party representatives, civil society and national human rights institutions. The concluding observations from the examination are then made public by the African Commission and published on their website. This enables various stakeholders to participate in the efforts to monitor and follow up on the state's implementation of the recommendations issued to them. This contrasts with the experience under the African Democracy Charter thus far, where the examination of state reports has been done in closed sessions and the concluding observations not published on a publicly accessible platform.

## 3.2 Reporting under the African Peer Review Mechanism

Under the APRM state parties voluntarily undergo a review process to
establish progress made on democratic and political governance,
economic governance and management, socio-economic governance

<footnote n="47">47 Rules of Procedure of the African Commission on Human and Peoples' Rights, 2020: Adopted by the African Commission on Human and Peoples' Rights during its 27th Extra-Ordinary Session held in Banjul (The Gambia) from 19 February to 4 March 2020 Rule 79(2).</footnote>

<footnote n="48">48 https://www.chr.up.ac.za/news-archive/2022/3157-guidelines-on-shadow-reports-of-the-african-commission-on-human-and-peoples-rights (accessed 12 June 2024).</footnote>
and corporate governance.<fnref n="49" /> The governance structure of the APRM consists of continental and national structures. The continental structure is headed by the APR Forum which brings together the Heads of State and Government from the AU member states that have accepted to undergo the APRM process. The APR Forum adopts the country review reports that emerge from the process and takes ownership of their implementation. There is also an APR Panel of Eminent Persons that is mandated to provide oversight to the review of a participating member state so as to underwrite the independence, professionalism and credibility of the process. The process is supported technically and coordinated administratively by the APRM Secretariat.

The APRM national structure for the member state undergoing the review should consist of a national focal point (at ministerial level), a national commission to provide strategic policy direction, a national APR secretariat for technical and administrative support, technical research institutions to execute the APRM questionnaire and a budgetary framework for the process. The review process is undertaken through a five step process as follows:<fnref n="50" /> (1) The state under review develops a Country Self-Assessment Report (CSAR) together with a National Plan of Action (NPoA) on the basis of multi-stakeholder participation (2) A country assessment is undertaken by a country review team which is led by a member of the APR panel and consults local stakeholders (3) the government of the state under review receives a Country Review Report (CRR) and proceeds to provide its feedback to the report while also amending its NPoA accordingly (4) the Head of State or Government from the state under review then proceeds to engage in a peer dialogue within the APR Forum that sees the CRR and NPoA discussed (5) the state under review then commits to address the issues arising from the review and to report annually on the progress made while also doing the same at other appropriate platforms such as the PAP or REC.

Based on the shared subject matter of governance as well as a review structure that envisages an interactive dialogue with the state, there is a strong argument for deliberate synergies to be established between the Africa Democracy Charter and APRM state review processes. A first step towards such synergies would be a joint campaign for the universal ratification of the African Democracy Charter and accession to the APRM process in order to ensure that the frameworks become applicable to all AU member states. Where states have ascribed to both processes, the AGA Secretariat and the APRM Secretariat could explore a synchronization of the review calendars for both processes. This would ease the reporting burden for the state under review and consolidate the AU resources that can be dedicated towards evaluating state reports and monitoring implementation of concluding observations. The APRM national structure can also be adopted to cater to both the African Democracy Charter and APRM

<footnote n="49">49 https://aprm.au.int/en/focus (accessed 12 June 2024).</footnote>

<footnote n="50">50 F Aggad & N Tissi 'The road ahead for the African Governance Architecture: an overview of current challenges and possible solutions' SAIIA Occasional Paper (South African Institute of International Affairs (SAIIA) (2014) 13.</footnote>
reporting processes and thereby assuage the issues of reporting fatigue
and capacity constraints.

Such synergies are possible as seen in the development of the African Governance Report (AGR) which is an AGP initiative led by the APRM in collaboration with its fellow AGP members. The AGR serves as a key barometer on the status of various governance themes requiring attention by the AU Assembly of Heads of State and Government; an implementation component required in article 49(3) of the African Democracy Charter. The AGR development process can serve as a foundational template for exploring the integration and synchronization of governance related state reporting obligations in order to achieve improved compliance by AU member states as well as improved coherence in the concluding observations, recommendations and monitoring mechanisms that AGP members put in place.

# 4 STRENGTHENING COMPLIANCE THROUGH REGIONAL ECONOMIC COMMUNITIES AND CIVIL SOCIETY

## 4.1 The role of regional economic communities

The 1991 Treaty Establishing the African Economic Community (Abuja Treaty) recognises RECs as essential pillars for Africa's integration and the AU has recognised eight RECs on the continent.<fnref n="51" /> RECs are valued for the in-depth knowledge they possess with regard to the socio-cultural and political dynamics of their respective regions.<fnref n="52" /> Therefore, RECs can play a foremost role in entrenching at state level, the core tenets of the African Democracy Charter which consist of democracy, good governance, human and peoples' rights, constitutionalism and the rule of law. This is why article 44(2) of the African Democracy Charter requires a framework for cooperation with RECs aimed at enhancing state ratifications of the instrument as well as the designation of focal points to strengthen monitoring and evaluation of state obligations and ensuring effective public participation in implementation initiatives.

In practice, RECs have had varying degrees of success in entrenching the African Democracy Charter's implementation. With regard to norm development, only ECOWAS stands out with the adoption of its 2001 Supplementary Protocol on Democracy and Good Governance which outlines the role of ECOWAS in undertaking

<footnote n="51">51 They are the Arab Maghreb Union (AMU), Community of Sahel-Saharan States (CEN-SAD), Common Market for Eastern and Southern Africa (COMESA), East African Community (EAC), Economic Community of Central African States (ECCAS), Economic Community of West African States (ECOWAS), Intergovernmental Authority on Development (IGAD) and Southern African Development Community (SADC).</footnote>

<footnote n="52">52 Africa Peer Review Mechanism (APRM) and African Governance Architecture (AGA) 'The Africa Governance Report 2019: Promoting African Union Shared Values | African Union' (2019) 82.</footnote>
election monitoring as well as imposing sanctions on a member states for the occurrence of UCGs or massive human rights violations. The East African Community (EAC) has developed a draft protocol on good governance but it has not yet been adopted by its member states.<fnref n="53" /> Outside these two developments, the development of REC level instruments on good governance has not gained much traction.

It is in the arenas of election monitoring and conflict resolution that governance interventions by RECs have featured prominently. RECs such as ECOWAS, EAC, IGAD, SADC and COMESA have frequently deployed election observer missions within their spheres of influence in order to bolster free, fair and credible elections. Such missions have augmented those deployed by the AUC and expanded the platforms for accountability in relation to electoral processes. The election observer reports generated by RECs should greatly inform the evaluation of African Democracy Charter state reports on the aspect of electoral governance and steer concluding observations on electoral reforms where necessary. There are also examples that point to robust interventions by RECs to affirm democratic governance principles, especially when UCGs are likely to or have taken place. ECOWAS has had to intervene severally on this issue, such as in the case of Niger; where the regional body spoke against a July 2023 military coup and resolved to restore constitutional order by all means including through the use of force.<fnref n="54" />

In the recent past, ECOWAS has also intervened in the cases of Burkina Faso, Guinea and Mali, where military coups in these countries have been met with sanctions that include suspension of their membership to the regional body and travel bans on government officials and senior leaders within these regimes.<fnref n="55" /> In Eastern Africa, the EAC has deployed troops to stabilise the Eastern DRC region and restore peace in that country;<fnref n="56" /> while IGAD is spearheading a mediation effort to restore peace in Sudan which descended into its current cycle of conflict in April 2023.<fnref n="57" /> These sanctions and peacekeeping intervention capacities should be viewed as potential instruments of enforcement and implementation of African Democracy Charter related recommendations where relevant.

Such interventions by RECs and the AU on sensitive matters like addressing conflict are guided by adherence to the principles of

<footnote n="53">53 A Songa & M Ronceray 'EAC democracy agenda: channels, lessons and digital technologies for civil society engagement' ECDPM Discussion paper no 354 (2023) 3.</footnote>

<footnote n="54">54 https://ecowas.int/final-communique-fifty-first-extraordinary-summit-of-the-ecowas-authority-of-heads-of-state-and-government-on-the-political-situation-in-niger/ (accessed 12 June 2024).</footnote>

<footnote n="55">55 https://www.facebook.com/FRANCE24.English and https://www.france24.com/en/live-news/20230219-west-african-bloc-maintains-sanctions-on-junta-regimes (accessed 12 June 2024).</footnote>

<footnote n="56">56 https://www.eac.int/statements/2733-status-of-deployment-of-eac-troops-and-verification-mechanisms-in-eastern-drc (accessed 12 June 2024).</footnote>

<footnote n="57">57 https://igad.int/communique-of-the-1st-meeting-of-the-igad-quartet-group-of-countries-for-the-resolution-of-the-situation-in-the-republic-of-sudan/ (accessed 12 June 2024).</footnote>
subsidiarity, complementarity and comparative advantage so as to
strengthen their effective coordination and collaboration.<fnref n="58" /> Therefore,
on this understanding, while RECs have exercised leadership in some
interventions, they have also been led by the AU on a series of
interventions aimed at improving democratic governance situations in
the midst of conflict. Illustratively, while ECOWAS led the intervention
to ensure the peaceful transition of power in the Gambia in 2016;<fnref n="59" /> it
was the AU through the African Union Technical Support Team to The
Gambia (AUTSTG) that led the post-crisis initiatives to help the
Gambia undertake constitutional and security sector reforms.<fnref n="60" /> In the
case of the post-election violence of Zimbabwe in 2008, the AU
defferred to the mediation leadership of SADC to resolve the crisis.<fnref n="61" />
Despite these examples, there are legal loopholes that need to be
addressed in the arenas of distribution of competencies between the AU
and RECs and in clarifying the nature and scope of subsidiarity and
complementarity.<fnref n="62" /> Indeed, some instructive cases such as the
intervention of ECCAS in Chad and the EAC in Burundi have
demonstrated that in the absence of an adequately defined legal
framework the actions of RECs could run counter to those of the AU
and ultimately undermine the shared values that they should
collectively uphold.<fnref n="63" />

Some RECs have also provided pathways to citizen engagement on
governance matters. The EAC has established a Consultative Dialogue
Framework (CDF). The CDF facilitates dialogue between the EAC and
key stakeholders such as civil society and the private sector with a view
to ensuring that 'the integration process proceeds with the involvement
of the citizens of EAC Partner States through multi-stakeholder
partnerships'.<fnref n="64" /> ECOWAS has established relationships with thematic
and strategic civil society networks to advance interactions on
governance and notable networks include: the West Africa Civil Society
Forum (WACSOF), West Africa Network for Peace building (WANEP),
the West Africa Democracy Solidarity Network (WADEMOS) and the
West Africa Civil Society Institute (WACSI). Such multi-stakeholder
frameworks expand spaces for deliberation of pertinent governance
issues and with deliberate collaboration, can be deployed as part of the

<footnote n="58">58 Memorandum of Understanding on Cooperation in the Area of Peace and Security between the African Union, the Regional Economic Communities and the Coordination Mechanisms of the Regional Standby Brigades of Eastern and Northern Africa article IV(iv).</footnote>

<footnote n="59">59 C Hartmann 'ECOWAS and the restoration of democracy in the Gambia' (2017) 52 *Africa Spectrum* 85-99.</footnote>

<footnote n="60">60 https://issafrica.org/pscreport/psc-insights/lessons-from-the-gambia-about-afri
cas-evolving-post-conflict-realities (accessed 12 June 2024).</footnote>

<footnote n="61">61 B Kahombo 'Constitutional crises and the jurisdiction of the African Union' (2022) 25(1) *Recht in Afrika* | *Law in Africa* | *Droit en Afrique* 12 at 28.</footnote>

<footnote n="62">62 T Makunya 'The nexus between constitutionalism, peace and security in the law and practice of the African Union' (December 15, 2022) 25(1) *RiA Recht in Afrika* | *Law in Africa* | *Droit en Afrique* at 82.</footnote>

<footnote n="63">63 T Makunya (n 62) 82.</footnote>

<footnote n="64">64 https://www.eac.int/gender/civil-society/consultative-dialogue-framework
(accessed 12 June 2024).</footnote>
monitoring and evaluation framework for concluding observations that state parties receive under the African Democracy Charter evaluations.

While the potential value addition of RECs is well established, more needs to be done to actualise this potential. Relevantly, the 2019 AGR highlighted the following aspects of the AU-RECs relationship as areas for improvement: (1) ensuring that the RECs are sufficiently aligned with the AU Constitutive Act and Shared Values; (2) a clarified definition and shared understanding of the principle of subsidiarity between the AU and RECs so as to enable an efficient and effective division of labour on matters of democratic governance; and (3) establish a systematic framework for each REC to effectively monitor the implementation of AU Shared Values instruments such as the African Democracy Charter.<fnref n="65" /> The AUC has dedicated an annual engagement with RECs during its mid-year coordination meetings to resolve the above issues and realise synergies. This can be considered an integral step towards meeting the requirements of article 44(2) under the African Democracy Charter but should be followed up with concrete measures of designating focal points within the RECs as well as establishing monitoring and evaluation frameworks in relation to the African Democracy Charter at that level to encourage and strengthen state compliance.

## 4.2 The role of civil society

Civil society is an essential fulcrum to realising the African Democracy Charter article 3(7) principles of effective citizen participation in democratic and development processes as well as governance of public affairs. Furthermore, the state reporting process requires states to involve non-state actors in the development of their reports in order to ensure that the outcome meets the necessary thresholds of diversity, effective participation and inclusivity.<fnref n="66" /> Relatedly, the AGA Secretariat is developing a comprehensive citizen engagement strategy that could be instrumental in deepening the public's understanding of the African Democracy Charter and their potential role in furthering state compliance.<fnref n="67" />

In light of the foregoing, what roles should civil society play in the implementation of the African Democracy Charter and its reporting process? First, because of their ubiquitous and diverse nature, Civil Society Organisations (CSOs) are valuable partners in the awareness raising component of the reporting process and implementation more broadly. CSOs have frequently invested in simplifying provisions of the African Democracy Charter and disseminating it to make the

<footnote n="65">65 Africa Peer Review Mechanism (APRM) and African Governance Architecture (AGA) (n 48) 84.</footnote>

<footnote n="66">66 Rules of Procedure of the African Governance Platform (n 24 Section III Article 9).</footnote>

<footnote n="67">67 https://au.int/en/pressreleases/20220825/citizens-engagement-strategy-will-mainstream-engagement-african-citizens (accessed 12 June 2024).</footnote>
instrument more accessible and understood by the public.<fnref n="68" /> CSOs are also credited for capacity enhancement initiatives through convening dialogue forums and creating learning platforms for persons interested in understanding how the African Democracy Charter can be applicable in their daily lives.<fnref n="69" /> An improved public understanding of the African Democracy Charter will increase the demand for state compliance and harness the impetus to advocate for state reporting.

Based on their competencies and evidence-based research, some think-tanks and CSOs have been able to provide technical assistance to the AU and state parties in the implementation of the AU Shared Values instruments. A recent example is the African Union Network of Think Tanks for Peace (NeTT4Peace) which is aimed at enhancing the ‘relevance and value of the contribution of African knowledge communities’ towards providing evidence-based research that informs AU’s policy making on peace, security and governance matters.<fnref n="70" /> There is also the Pan-African Civil Society Network on Political Affairs, Peace and Security (PANPAPS) which is aimed at strengthening collaboration between civil society and the AU on advancing democratic governance, peace, security and stability on the Continent.<fnref n="71" /> Such technical assistance can also be envisaged in the arena of state reporting, especially in broadening citizen engagement.

With regard to reviewing state compliance to democratic governance principles, some non-state actors have provided strategic technical assistance to strengthen AU organs. The APRM entered into a partnership with the Mo Ibrahim Foundation to collaborate in the areas of knowledge and data sharing; harmonisation of the Ibrahim Index of African Governance (IIAG) with APRM processes, including the representation of APRM on the Advisory Council; capacity support to the continental Secretariat; support of the Mo Ibrahim Foundation to the continental drive for universal accession to the APRM; and participation of the Mo Ibrahim Foundation in APRM Country Review Missions.<fnref n="72" /> The APRM also entered into a partnership with the Open Governance Partnership (OGP) so as to facilitate the implementation of APRM recommendations at state level and foster collaboration between APRM National Structures and OGP National Multi-stakeholder Forums.<fnref n="73" /> These form of partnerships with non-state actors should be explored and harnessed in the context of the multi-

<footnote n="68">68 See for example https://ecdpm.org/work/guide-african-charter-democracy-elections-and-governance (accessed 12 June 2024).</footnote>

<footnote n="69">69 See for example https://mooc.africtivistes.org/en_GB/ (accessed 12 June 2024).</footnote>

<footnote n="70">70 https://www.peaceau.org:443/en/article/au-launches-the-african-network-of-think-tanks-for-peace-nett4peace (accessed 12 June 2024).</footnote>

<footnote n="71">71 https://reliefweb.int/report/world/communique-1161st-meeting-peace-and-security-council-held-6-july-2023-2nd-annual-consultative-meeting-between-peace-and-security-council-economic-social-cultural-council-and-representatives-civil-society-organizations (accessed 12 June 2024).</footnote>

<footnote n="72">72 https://mo.ibrahim.foundation/news/2017/aprm-mif-strengthen-partnership (accessed 12 June 2024).</footnote>

<footnote n="73">73 https://www.opengovpartnership.org/documents framework-of-collaboration-between-the-african-peer-review-mechanism-and-ogp/ (accessed 12 June 2024).</footnote>
stakeholder national institutional framework envisioned within the
African Democracy Charter state reporting process.

CSOs can also provide accountability to the African Democracy Charter reporting process by preparing shadow reports to those submitted by state parties. As previously highlighted, shadow reporting already takes place in the context of African Commission reviews where CSOs with observer status submit shadow reports and disseminate the concluding observations that emerge from the process.<fnref n="74" /> The African Democracy Charter reporting process does anticipate contributions by CSOs who have accreditation from the Economic, Social and Cultural Council (AU-ECOSOCC). Such CSOs are invited to a Pre-Session convened by the AGP where they are expected to provide insights that inform the subsequent dialogue with the state party under review. However, not much is defined in terms of the format for the Pre-Session and whether CSOs can furnish the AGP with written submissions or a shadow report. In light of this, the AGP should elaborate on this provision by inviting CSOs to submit shadow reports modelled along the format adopted by the African Commission for African Charter reporting and also structure the African Democracy Charter's Pre-Session along similar lines to the NGO Forum that accompanies the ordinary sessions of the African Commission.<fnref n="75" />

CSOs could also introduce innovation to the state reporting
process. A potential area for innovation is the use of civic technology.
Civic technology refers to those initiatives that utilise technology to
strengthen democratic processes and promote inclusive decision
making by enhancing the capacities of citizens to actively participate
and possess the tools that empower them to pursue transparency and
accountability on matters of governance.<fnref n="76" /> The civic tech initiatives
deployed by CSOs in this case could be open governance and public
participation tools that demystify governance processes such as law
making or state reviews.<fnref n="77" /> Civic technology can build a continental
constituency for citizen engagement on matters of democratic
governance and enrich the evaluation of state compliance with the
African Democracy Charter. The AU should tap into the potential of
collaborating with CSOs on civic technology through existing initiatives
such as the AU Civic Tech Fund and the AGA Democracy and
Governance in Africa- Youth Innovation Challenge.<fnref n="78" />

Realising these dividends from CSOs requires overcoming various
challenges that inhibit their effective engagement. A key challenge is
the shrinking civic space on the continent. The 2022 Ibrahim Index of
African Governance notes that over a third of Africa's population

<footnote n="74">74 https://achpr.au.int/en/network/ngos (accessed 12 June 2024).</footnote>

<footnote n="75">75 https://www.acdhrs.org/ngo-forum/ (accessed 12 June 2024).</footnote>

<footnote n="76">76 https://ecdpm.org/work/civic-tech-service-democracy-good-governance-africa (accessed 12 June 2024).</footnote>

<footnote n="77">77 https://europeandemocracyhub.epd.eu/assessing-civic-tech-that-works-to-build-theafricawewant-citizen-led-tech-for-impact-that-can-help-african-governments-deliver-better-services/ (accessed 12 June 2024).</footnote>

<footnote n="78">78 https://au.int/en/pressreleases/20201202/innovation-accelerator-stimulate-growth-youth-promoting-democracy-and (accessed 12 June 2024).</footnote>
resides in a country where participation, rights and inclusion has
declined at an accelerating pace since 2017.<fnref n="79" /> AU member states should
be encouraged to preserve civic space as part of fostering public
participation and citizen centred policies.

With regard to CSO accreditation, the eligibility requirement for CSOs to obtain AU-ECOSOC accreditation is currently prohibitive. Article 6(5) of the Statutes of AU-ECOSOCC, requires applying CSOs to demonstrate that 50 per cent of their financial resources are derived from their membership. This is a requirement that numerous CSOs have been unable to fulfil. Consequently, the lack of accreditation impedes the participation of CSOs in the African Democracy Charter reporting process. There are prospects for reform as the AU-ECOSOCC on the basis of a decision by the AU Executive Council is currently working to reform its structure in two ways: the establishment of AU-ECOSOCC national chapters within AU member states as a way of realising the goal of a people-centred union; and the development of a harmonised and clarified criteria for granting CSOs consultative and observer status with the AU.<fnref n="80" />

Key objectives of the harmonised accreditation mechanism are providing a simple, accessible, fair, transparent, inclusive and efficient process for CSOs wishing to engage AU organs and enhancing the ability of AU organs to receive expert information or advice.<fnref n="81" /> Notably, the AU-ECOSOCC proposal on the harmonised accreditation mechanism recommends a two-tiered criteria for CSOs, namely, ‘consultative status’ and ‘observer status’. The proposed consultative status category would not include the stringent funding requirement but would enable CSOs who obtain this status to engage AU member states, attend the public sessions of AU organs, make oral and written statements and be included in a consolidated database of CSOs to be used by AU organs for consultations.<fnref n="82" /> Such a reform measure aimed at broadening CSO inclusion would be welcome in the context of CSO participation in the African Democracy Charter reporting process.

Beyond granting accreditation, the AU-ECOSOCC has also been
instrumental in popularizing the African Democracy Charter across the
Continent by undertaking various citizen engagements and dialogue
forums such as its flagship event, the Citizens Forum. The 2022 edition
of the Citizens Forum focused on democracy and UCGs in Africa and
saw CSOs provide input to an outcome document of recommendations
for onward submission to the AU Assembly. The AU-ECOSOCC has
also used the platforms of its General Assembly and Thematic Clusters
to enumerate the role of CSOs in the ratification, domestication and
implementation of the African Democracy Charter. Notably, the
Citizens Forum and Thematic Clusters are not hinged on accreditation

<footnote n="79">79 Mo Ibrahim Foundation (n 8) 48.</footnote>

<footnote n="80">80 https://au.int/sites/default/files/decisions/31762-ex_cl_dec_873_-_898_xxvii_e.pdf (accessed 12 June 2024).</footnote>

<footnote n="81">81 AU-ECOSOCC stakeholder consultation 8 December 2022 (notes on file with the authors).</footnote>

<footnote n="82">82 AU-ECOSOCC stakeholder consultation 8 December 2022 (notes on file with the authors).</footnote>
and therefore a broad range of civil society organisations are able to
engage with AU-ECOSOCC and by extension, the AGP. Therefore, these
two platforms should be linked to the efforts of broad sensitisation and
dissemination in as far as the public component of African Democracy
Charter reporting is concerned.

5 CONCLUSION

This article has located the African Democracy Charter as an AU Shared Values instrument, expressing the collective commitment by AU member states to uphold the principles of democratic governance. However, this commitment has demonstrably wavered. With only 39 out of 55 possible ratifications, the ACDEG is still some distance from being universally applicable. Furthermore, the current decade is witnessing considerable setbacks in the arena of democratic governance, with the resurgence of UCGs as well as highly fractious electoral contests and full-blown conflicts. These situations have called attention to the implementation frameworks and this article has focused on the reporting framework. While an elaborate framework for state reporting and review is in place, it remains plagued by significant challenges that hinder its true potential. A top priority should be embarking on a campaign that encourages improved state reporting compliance among the state parties to the African Democracy Charter. The outreach targeting the HRDG sub-committee is a welcome start, but it should be escalated to engage all 39 state parties. A campaign for universal ratification of the African Democracy Charter should also be undertaken in order to ensure that the compliance mechanism for the shared value of democratic governance is truly applicable to all AU member states.

The capacity constraints at all levels must be addressed in order to bolster the review aspect of the African Democracy Charter reporting process. A key plank of this would be to operationalise the AGF which would enable the AGP to provide the envisioned technical assistance to state parties as well as activate a robust citizen engagement strategy and follow up mechanism for concluding observations. There is also a need for a deliberate policy dialogue at the AGP level aimed at fostering greater coherence and cohesion with regard to the various state reporting obligations and institutional mechanisms that exist. This will ease the reporting burden on the part of AU member states and the task of evaluation on the part of AU organs. Such coordination will also expand the much-required multi-stakeholder aspect of these processes. It will also serve to ensure that AGP members leverage on each other's strengths, mitigate their respective weaknesses and enhance the accountability of AU member states by streamlining the follow up to concluding observations. This article has identified viable synergies with reporting under the African Democracy Charter, the African Charter and the APRM. It has also suggested lessons and avenues that can be exploited at REC level.

Interventions to address conflict as well as UCGs and the
development of the AGR suggests that improved coordination among
AGP members (including the RECs) is indeed possible. Finally, the CSO engagement pillar and identified aspects of reform centred on enhancing access and facilitating effective participation should be fully actualised. In this regard, the African Democracy Charter reporting process should embrace technology and establish a public portal which demystifies the process and makes relevant documents available. It should also leverage on existing infrastructure such as the African Commission's NGO Forum, the APRM national mechanisms and the emerging ECOSOCC national chapters; as a way of tapping into viable CSO constituencies and establishing best practices which can enrich the Pre-Sessions anticipated in the African Democracy Charter reporting framework. Importantly, the reporting framework should adopt the African Commission's transparent approach of publishing state and shadow reports as well as concluding observations in order to enable all stakeholders to monitor and support implementation efforts. AU member states should also be compelled to preserve civic space and welcome CSO input to governance matters. Such an integrated, consultative and multi-stakeholder framework would enliven the currently sub-optimal reporting compliance levels, raise the prospects for improved compliance with the African Democracy Charter and contribute to the AU goal of a stable, peaceful and sustainably developing continent.
# Implementing provisions of the African Women's Protocol through the Law on Public Financing of Political Parties in the Democratic Republic of the Congo: a case against femocracy

Laetitia Nabintu Wa Nciko*

https://orcid.org/0009-0002-7109-5492

**ABSTRACT:** The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa obliges states to promote, protect and fulfil women's equal participation in politics. The Democratic Republic of Congo (DRC) ratified the Protocol in 2008, aligning with its 2006 Constitution's commitment to women's rights. However, Law 8/005 on Public Financing of Political Parties undermines this commitment, at least in two key ways. First, articles 5 and 9 of the Law allocate annual subsidies for political parties at 0.5 to 1 per cent of the national budget and set electoral campaign funding at 2 per cent of the budget, tied to the national budget law after each election. The lack of implementation of these provisions disproportionately disadvantages women, who often lack the financial resources to sustain party operations or campaigns. Second, its article 7 limits public funding to parties with representation in key government institutions. This marginalises women seeking to lead or establish political parties because their parties will not have had representation in such institutions. Using the Union for Democracy and Social Progress (UDPS) and the Union for the Congolese Nation (UNC) as case studies, this study demonstrates how the failures to revise and implement Law 8/005 violate the Protocol. It argues that this perpetuates femocracy in the two leading political parties. As defined by Amina Mama femocracy is a political system in which elite women, with the backing of powerful men, occupy positions of power and influence but primarily advance their personal or male interests rather than addressing systemic issues affecting ordinary women. This study used key informants to examine the dynamics within the UDPS and UNC. These interviews revealed key challenges faced by women in political leadership.

## TITRE ET RÉSUMÉ EN FRANÇAIS

### L'application du Protocole de Maputo à travers la loi portant financement public des partis politiques en RDC : analyse contre la «féminocratie»

**RÉSUMÉ:** Le Protocole à la Charte africaine des droits de l'homme et des peuples relatif aux droits de la femme en Afrique oblige les États parties à garantir une participation égale des femmes à la vie politique, à travers des mesures effectives de promotion et de protection de leurs droits. Ratifié par la République démocratique du Congo (RDC) en 2008, ce Protocole s'inscrit dans la continuité de l'engagement constitutionnel de 2006 en faveur des droits des femmes. Toutefois, la loi n° 8/005 portant financement public des partis politiques compromet ces objectifs sur deux plans majeurs. Premièrement, les articles 5 et 9 de cette loi prévoient des subventions annuelles aux partis politiques à hauteur de 0,5 % à 1 % du budget national, ainsi qu'un financement

<footnote>* LLB candidate, Kabarak University Law School; Editor, Kabarak University Press, laetitiawanciko@gmail.com</footnote>
des campagnes électorales équivalent à 2 % du budget national. Cependant, l'absence de mise en Hûuvre effective de ces dispositions pénalise disproportionnellement les femmes, qui, en raison d'inégalités économiques structurelles, peinent à mobiliser les ressources nécessaires pour soutenir les activités et campagnes des partis. Deuxièmement, l'article 7 limite l'accès au financement public aux partis représentés dans les principales institutions étatiques. Cette disposition marginalise les femmes qui aspirent à créer ou à diriger de nouveaux partis, souvent exclus de ces instances de pouvoir. À travers les exemples de l'Union pour la Démocratie et le Progrès Social (UDPS) et de l'Union pour la Nation Congolaise (UNC), cette étude démontre que les lacunes dans la révision et la mise en oeuvres de la loi n° 8/005 constituent une violation manifeste des engagements de la RDC au titre du Protocole. L'analyse s'appuie sur la notion de «féminocratie», définie par Amina Mama comme un système où des femmes élites, soutenues par des hommes influents, occupent des positions de pouvoir tout en perpétuant des intérêts masculins ou personnels, sans traiter les problèmes structurels affectant les femmes ordinaires. En s'appuyant sur des entretiens avec des informateurs clés, cette étude met en lumière les défis structurels auxquels sont confrontées les femmes dans les sphères politiques en RDC et appelle à une révision substantielle de la loi pour garantir une mise en Hûuvre cohérente et respectueuse du Protocole de Maputo.

**KEY WORDS:** the Law on Public Financing of Political Parties; femocracy; African Women's Protocol; Democratic Republic of Congo

## CONTENT:

1 INTRODUCTION..................................................................................................................413

2 Congolese women in political parties, public finance of political parties and the African Women's Protocol ..................................................................................................................416

2.1 Congolese women's experiences in UDPDS and UNC .................................................................416

2.2 The Law on Public Finance of Political Parties as a way to promote articles 9(1) and 9(2) of the African Women's Protocol ..................................................................................................................420

3 Not revising and not implementing Law 8/005: a violation of the African Women's Protocol and a promotion of femocracy .................................................................423

3.1 A violation of the African Women's Protocol..................................................................................................................423

3.2 Promotion of femocracy .................................................................................................................................425

4 Way forward: African Women's Protocol's Model Law .................................................................426

5 Conclusion..................................................................................................................................................431

# 1 INTRODUCTION

Discrimination against women in political affairs in the Democratic Republic of Congo (DRC) is not novel. The colonial establishment considered it unwise to have Africans in political positions, fearing that they would turn into agitators demanding the end of colonialism.<fnref n="1" /> In Belgium-Congo, all political decisions did not involve its 'Congolese' subjects, let alone women.<fnref n="2" /> At the time of independence from the Belgians in 1960, women's participation in political decision making was still non-existent.<fnref n="3" /> This state of affairs continued with Mobutu Sese Seko's dictatorship, from 1965 to 1997, under which women were still excluded from political participation in decision making because

<footnote n="1">1 M Ndulo 'Legal education in an era of globalisation and challenge of development' (2014) *Cornell Law School Publications Paper* 957.</footnote>

<footnote n="2">2 United Nations Economic and Social Council 'Economic and Social Affairs Conference' 22 December 2023 99, http://www.esaconf.un.org (accessed 22 December 2023).</footnote>

<footnote n="3">3 A Matundu Mbambi & M-C Faray-Kele 'Gender equality and social institutions in the DRC' (2010) *Peace Women* 3.</footnote>
political power was concentrated in one man.<fnref n="4" /> The country went into civil wars from 1993 to 2003, and a transitional government was established from 2003 to 2006. During this period, political power went from being concentrated in the hands of another male dictator (Laurent Desiré Kabila) to being shared among the heads of rebel groups, all of whom were male and had no consideration for women's participation in political decision making.<fnref n="5" />

It is against this historical backdrop that the Congolese people, in adopting the 2006 Constitution (as revised in 2011), did not hesitate to provide for gender equality.<fnref n="6" /> The aim was to allow Congolese women to participate, among other things, in political life, in the same way as men do. Article 5 of the 2006 Constitution states that without prejudice to other provisions of the Constitution, all Congolese citizens of both sexes, who are at least 18 years of age and enjoy their civil and political rights, are voters and eligible for public office.<fnref n="7" /> Additionally, article 13 complements it by stating that a law or any act of the executive should not discriminate on any ground, including sex, against a Congolese person in matters of accessing public functions.<fnref n="8" /> Furthermore, article 14 guarantees women equitable representation in national, provincial and local institutions, and requires the state to ensure that there is no discrimination in these institutions.<fnref n="9" /> Indeed, articles 5, 13 and 14 place women on equal footing with men. This means that Congolese women are entitled, just as Congolese men are, to run for any 'political decision-making positions' in the government. These articles form the foundation of gender equality in the Congolese legal system. They have contributed to transforming the country from a colonial, dictatorial and civil war-torn culture, which was fundamentally patriarchal and did not allow women to have a say in political decision making. While Articles 5, 13, and 14 of the 2006 Constitution establish the foundation for gender equality in the DRC, this ideal is far from being achieved. Articles 13 and 14 of the Constitution mandate 50/50 political representation between men and women in all government institutions.<fnref n="10" /> However, the 2023 UN Women Africa report shows that Congolese women's political representation has only slightly increased, from 8.4% in 2006 to 10% in 2018 at the national level, 6.8% to 10.2% at the provincial level, and 4.6% to 19% at the senatorial level - falling short of the 50/50 goal.<fnref n="11" /> Additionally, while article 13 of the 2022 Electoral Law incentivises female representation by exempting party lists with 50 per cent women from deposit fees, this has instead made

<footnote n="4">4 F Janyszeck 'The politics of legitimation under Mobutu' (21 January 2019), http://www.innovativeresearchmethods.org/the-politics-of-legitimation-under-mobutu/ (accessed 13 January 2024).</footnote>

<footnote n="5">5 F Reyntjens 'Briefing: Democratic Republic of the Congo political transition and beyond' (2007) 106 *African Affairs* 310.</footnote>

<footnote n="6">6 Matundu Mbambi & Faray-Kele (n 3) 3.</footnote>

<footnote n="7">7 Art 5 Constitution of the Democratic Republic of Congo 2006 (as revised in 2011).</footnote>

<footnote n="8">8 Art 13 Constitution of the Democratic Republic of Congo 2006 (n 7).</footnote>

<footnote n="9">9 Art 14 Constitution of the Democratic Republic of Congo 2006 (n 7).</footnote>

<footnote n="10">10 Art 13, 14 Constitution of the Democratic Republic of Congo 2006 (n 7).</footnote>

<footnote n="11">11 UN Women Africa DRC: *The electoral reform and women's political participation* (2023) 2.</footnote>
women more vulnerable due to economic disparity. Male-dominated
parties add women for financial gain, not empowerment.

To promote substantive equality in political participation, the 2006 Constitution mandates that political parties may receive public funds from the state to finance their electoral campaigns or activities.<fnref n="12" /> This led to the enactment of Law 8/005 of 10 June 2008, on public financing of political parties. Article 5 of this law states that the subsidy allocated each year to finance the functioning of political parties cannot be less than 0,5 per cent or more than 1 per cent of the DRC's national budget.<fnref n="13" /> Additionally, article 9 specifies that the state's contribution to the financing of electoral campaigns should be included in the national budget law of the year following the organisation of each electoral consultation, which is set at 2 per cent.<fnref n="14" /> Sadly, women, particularly those starting new political parties, would not benefit from Law 8/005 as much as men. Article 7 of the law requires that a party must be represented in at least one of several governing bodies to receive public financing,<fnref n="15" /> which inherently discriminates against women, as few women and women-led parties are represented in these positions due to their historical exclusion from political affairs in the DRC. Despite its enactment, Law 8/005 has never been revised and implemented or reflected in national budgets. This article will shortly come back to this.

The article examines whether the DRC government's failure to revise and implement Law 8/005 on Public Financing of Political Parties violates articles 9(1) and (2) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol). Article 9(1) of the Women's Protocol states that states must ensure equal women's participation in politics and governance.<fnref n="16" /> Article 9(2) goes on to state that the states shall ensure increased and effective representation of women in decision-making roles.<fnref n="17" /> This article argues that one consequence of this violation is the promotion of 'femocracy' rather than 'democracy' when one considers the place of Congolese women in political parties and electoral processes.

In part 2, the article examines Congolese women's experiences in two leading political parties, namely, the Union for Democracy and Social Progress (UDPS) and the Union for the Congolese Nation (UNC). It also analyses the extent to which Law 8/005 aligns with articles 9(1) and 9(2) of the African Women's Protocol. Part 3 explores how the non-revision and non-implementation of Law 8/005 violate articles 9(1) and 9(2) of the African Women's Protocol, and how it promotes femocracy. It is important to note at this stage that Mama teaches us

<footnote n="12">12 Art 6 Constitution of the Democratic Republic of Congo 2006 (n 7).</footnote>

<footnote n="13">13 Art 5 Financing of Political Parties Act (Law 8/005 on Public of 2008), Law 8/005 of 10 June 2008 on the Public Financing of Parties Policies (leganet.cd) (accessed 13 January 2024).</footnote>

<footnote n="14">14 Art 9 Financing of Political Parties Act (n 13).</footnote>

<footnote n="15">15 Art 7 Financing of Political Parties Act (n 13).</footnote>

<footnote n="16">16 Art 9(1) African Women's Protocol.</footnote>

<footnote n="17">17 Art 9(2) African Women's Protocol.</footnote>
that femocracy is a system where a small group of elite women, backed
by powerful men, claim to support women's causes but are driven by
their self-interest. Their power is firmly influenced and supported by
powerful men who hold higher political offices and do not care about
the causes of ordinary women. Consequently, ordinary women's causes
are never meaningfully addressed by femocratic women. <fnref n="18" /> In part 4 the
article considers the resolution adopted during the eightieth ordinary
session of the African Commission on Human and Peoples' Rights
(African Commission), mandating the Special Rapporteur on the
Rights of Women in Africa to develop a model law for implementing the
Protocol to the African Charter on Human and Peoples' Rights on the
Rights of Women in Africa (African Women's Protocol). <fnref n="19" /> Additionally,
the article argues that there is no need to wait for a model law to be put
in place. It looks at regional bodies such as the African Commission and
the East African Court of Justice (EACJ) decisions to push the DRC
government to discharge its responsibilities under the African
Women's Protocol.

2 CONGOLESE WOMEN IN POLITICAL PARTIES, PUBLIC FINANCE OF POLITICAL PARTIES AND THE AFRICAN WOMEN'S PROTOCOL

**2.1 Congolese women’s experiences in UDPS and UNC**

This part of the article is based on interviews conducted with both men
and women from the Union for Democracy and Social Progress (UDPS)
and the Union for the Congolese Nation (UNC), two leading political
parties in the DRC, to demonstrate the experience of Congolese women.

UDPS is the oldest political party in the DRC that is still
functioning. It was created in 1982 by Etienne Tshisekedi. As article 9
of the UDPS constitutive document notes, the fundamental values
underlying UDPS are inspired by social democracy.<fnref n="20" /> Today, UDPS is
the leading party in the DRC with Felix Antoine Tshisekedi, son of the
deceased Etienne Tshisekedi, as its national president and as the

<footnote n="18">18 A Mama 'Feminism or femocracy? State feminism and democratisation in Nigeria' (1995) 20 *African Development* 61.</footnote>

<footnote n="19">19 African Commission 'Resolution for the development of a model law on implementation and domestication of African Women's Protocol - ACHPR/Res.592 (LXXX) 2024' (12 August 2024), http://www.achpr.org/RESOLUTION-FOR-THE-DEVELOPMENT-OF-A-MODEL-LAW-ON-THÉ-IMPLEMENTATION-AND-DOMESTICATION-OF-THE-AFRICAN-WOMEN'S-PROTOCOL (accessed 17 August 2024).</footnote>

<footnote n="20">20 Art 9 Statute of the Union for Democracy and Social Progress (2013), Les Statutes - UDPS (accessed 17 August 2024).</footnote>
President of the country.<fnref n="21" /> On the other hand, UNC is a political party founded in 2010 by Vital Kamerhe, who currently is the president of the National Assembly. UNC fights for national unity, economic development and social justice. It advocates policies that promote private sector growth, job creation and poverty reduction, as well as greater transparency and accountability in the government.<fnref n="22" /> UNC has positioned itself as a powerful political party since its creation by standing as a leading opposition party between 2011 and 2018, and by joining UDPS to lead the country since 2018.

It is a fact that women are not represented at the highest decision-making positions, both in UDPS and UNC. Article 22 of the UDPS constitutive document establishes the presidency of the party, which is the highest decision-making body of the party. This presidency has the mandate to represent the party, decide and orient the actions of the party, and supervise and generally coordinate all activities of the party. Article 22 goes on by outlining the composition of the presidency of the party. It is composed of the president of the party, the secretary-general of the party, the national secretaries and heads of departments and, finally the general treasurer of the party.<fnref n="23" />

The absence of women in these highest decision-making positions is due to the fact that men have historically led the UDPS party, and have successfully consolidated power and perpetuated male dominance. José Asuka Emina has been an active member of UDPS since 2006, and the president of the Women Federation of Bukavu (in Eastern DRC) and the advisor of the DRC President on matters concerning work and social purveyance.<fnref n="24" /> In an interview with her she noted that, since the creation of UDPS almost half a century ago, no woman has ever occupied any of the positions available in the presidency of the party as provided for under article 22 of the UDPS constitutive document.<fnref n="25" /> Furthermore, it is difficult for women to hold any of these positions. It is important to note that article 23(4) of the constitutive document gives the president of the party the power to nominate and dismiss any of the members of the presidency of the party.<fnref n="26" /> For Emina, the representation of women in decision-making positions of the political party are a sign of power. She notes that when women choose to engage in a political party, it is to show that they can also start and lead. This is why she highlighted that we must give women space for decisions as stipulated in article 14 of the 2006 Constitution on parity between men and women in leadership positions

<footnote n="21">21 'Felix Tshisekedi steps out of his father's shadow to lead DR Congo' BBC 24 January 2019, http://www.bbc.com/news/world-africa-46929212 (accessed 27 February 2024).</footnote>

<footnote n="22">22 Art 10 Statute of the Union for the Congolese Nation (2018), https://www.bing.com/search?q=le+documnet+constitutive+de+1%27+UNC+en+rdc&qs=n&form=QBRE&sp=-1&lq=0&pq=le+documnet+constitutive+de+1%27+unc+en+rdc&sc=9-41&sk=&cvid=AC051D678F924885861A4018F086D0A1&ghsh=0&ghacc=0&ghpl= (accessed 17 August 2024).</footnote>

<footnote n="23">23 Art 22 Statute (n 20).</footnote>

<footnote n="24">24 Interview with J Emina Asuka on 17 February 2024.</footnote>

<footnote n="25">25 As above.</footnote>

<footnote n="26">26 Art 23(4) Statute (n 20).</footnote>
in society.<fnref n="27" /> Similarly, article 27 of the 2018 constitutive document of UNC establishes the National Political Directorate as the body responsible for coordinating all party activities, ensuring the party's proper functioning, and leading it to achieve its goals.<fnref n="28" /> The directorate is involved in formulating the social project, government programme and political strategies of the party.<fnref n="29" /> According to article 28 of the UNC constitutive document, the members of the national directorate of the party include the president of the party; the advisor to the national president of the party; the secretary-general of the party; the permanent secretary of the party; and the inspector-general of the party.<fnref n="30" /> Once again, as is the case with UDPS, the president of the party has the power to nominate other members of the national directorate, as per article 31 of the UNC constitutive document.<fnref n="31" /> Blandine Banga is the UNC coordinator of women in Eastern DRC. In an interview with her, she noted that UNC has never had a woman member of the national directorate of the party.<fnref n="32" />

It is important to note that in 2018, UNC, led by Vital Kamerhe, held its congress to make significant changes to its constitutive document. One of the key changes concerned the interim period in the event of the absence or incapacity of the national president, Kamerhe himself. The change was that no election of the national president even in the event of a temporary absence. This amendment allows Kamerhe to resume his duties as soon as the circumstances justifying his absence come to an end.<fnref n="35" /> However, a critique may conclude that this amendment to the constitutive document has the potential of strengthening the already-significant power of the male president of the party and shield him from any form of internal challenge or renewal of the leadership. Importantly, it takes away all opportunities for a woman to become the leader of the party.

There are contradictions as to the place of women's ideologies in both UNC and UDPS. The national directorate of UNC is to decide on what should be the agenda of the party at any given moment. This has the effect of rendering women's ideologies in leading the party invisible because, as discussed in the preceding subpart, women do not hold any

<footnote n="27">27 Asuka (n 24).</footnote>

<footnote n="28">28 Art 27 Statute (n 22).</footnote>

<footnote n="29">29 As above.</footnote>

<footnote n="30">30 Art 28 Statute (n 22).</footnote>

<footnote n="31">31 Art 31 Statute (n 22).</footnote>

<footnote n="32">32 Telephone communication with B Banga on 18 February 2024.</footnote>

<footnote n="33">33 G Mpoyo 'DRC: UNC congress amends its statutes to avoid election of a national president during the interim period' (19 August 2023), http://www.libregrandlac.com/drc-unc-congress-amends-its-statutes-to-avoid-election-of-a-national-president-during-the-interim-period (accessed 23 February 2024).</footnote>

<footnote n="34">34 As above.</footnote>

<footnote n="35">35 As above.</footnote>
of the positions available in the national directorate.<fnref n="36" /> Similarly, in
UDPS the presidency of the party is the one vested with the power to
validate which policies to consider as part of the plans of the party. It is
difficult to enhance women's ideologies, as long as women are not
considered the principal actors in implementing feminism conscious-
ness in their agenda.<fnref n="37" /> Therefore, one may say, without fear of
contradiction, that there is a lack of feminist consciousness in both
UNC and UDPS. As noted, feminist consciousness means the struggle
for women's political status, monitoring progress towards gender
equality.

It may be important to note that article 48 of the UDPS constitutive
document establishes the federation of women that deals with women's
emancipation in the political party. Equally important to note is the fact
that article 50 of the UNC constitutive document establishes that the
national women's conference is to be held every year to discuss issues
related to the advancement of women. However, both article 48 of the
UDPS constitutive document and article 50 of the UNC constitutive
document are ill-equipped to bring about a rise of feminist
consciousness in UDPS and UNC respectively. This is because, as
shared by Banga, women have to align with the party interests and the
activities that are selected by the national directorate of the party in the
UNC political party, which is male-dominated.<fnref n="38" /> Francine Tshisungu is
the deputy coordinator of the Federation of UNC Women in Kinshasa.
Her insights reveal that the gender role discrimination present in DRC
society is also reflected within the UNC.<fnref n="39" /> She mentioned that during
the Federation of Women meetings, they focus on teaching women how
to organise their families, develop their political skills and embrace
their roles as guardians of life (mothers of people).<fnref n="40" /> However, she did
not address the importance of women teaching as a means to achieve
autonomy from men or to advance a women's agenda within the party.

During the interview with a UNC male member who has chosen to
remain anonymous, the member shares that nothing stops women
from vying for the highest positions in the party, but the problem is that
women do not vote for women.<fnref n="41" /> However, even if women decide to
vote for women, the president of the party, who is male, still holds the
decision-making power regarding the membership of the national
directorate of the party. For UDPS, we refer to an interview with Elie
Balol'Ebwami. Balol'Ebwami was the president of the Permanent
Electorate Commission of UDPS in 2018 and the coordinator of the
Provincial Electorate Surveillance during the 2018 elections in the
DRC.<fnref n="42" /> He contended that women in UDPS are still struggling to get
to the highest level of decision making in the party, and added that

<footnote n="36">36 Art 27 Statute (n 22).</footnote>

<footnote n="37">37 Art 22 Statute (n 20).</footnote>

<footnote n="38">38 Banga (n 32).</footnote>

<footnote n="39">39 Telephone communication with F Tshisungu on 18 February 2024.</footnote>

<footnote n="40">40 As above.</footnote>

<footnote n="41">41 Telephone communication with anonymous member of UNC on 23 February 2024.</footnote>

<footnote n="42">42 Interview with E Balol'Ebwami on 17 February 2024.</footnote>
The African Women's Protocol mandates states to take specific positive actions to promote participative governance and the equal participation of women in the political life in African countries through affirmative action, enabling national legislation and other measures.<fnref n="47" /> Article 6 of the 2006 Constitution enjoins the African Women's Protocol, allowing men and women to create or join a political party of their choice. It also provides for the financing of political parties' electoral campaigns and other activities under conditions defined by law.<fnref n="48" />

However, in the broader structural context, poverty in the DRC remains a significant barrier to women's political empowerment. This may explain the decline in women's political participation, as shown by statistics from the 2023 UN Women Africa report, which revealed a drop from 13,6 per cent in 2006 to 11,7 per cent in 2018 over the past two elections.<fnref n="49" /> This is evident from the fact that while Congolese women constitute 52 per cent of the DRC's population, approximately 61,2 per cent of these live below the poverty line. They are economically dependent on their male relatives and face challenges in accessing basic needs such as food, water, healthcare, shelter, social services, education and opportunities.<fnref n="50" /> Without economic independence and access to basic needs, the idea of creating a political party or fighting for their empowerment within a political party may prove to be difficult. Furthermore, even of the 38,8 per cent of Congolese women who live above the poverty line, many still face historical and structural barriers that prevent them from accessing the financial support needed to start a political party or fairly compete in elections.

Indeed, it is difficult to discuss promoting women's political participation without addressing the financial support that men predominantly receive. Financial support is crucial in running an election or creating a political party. It enables political parties to maintain their regular administration, disseminate their political programmes, coordinate political actions, and prepare for electoral campaigns. Additionally, it supports the civic and political education of both party members and the general population, while ensuring that women have an equal chance of being eligible alongside men.<fnref n="51" /> These measures, which require significant financial resources, are essential for securing the true independence of both the political party and its members.

Historically, in the DRC political arena, which has been heavily dominated by men, there has been a patriarchal belief that political party finances should prioritise male candidates due to their long-standing dominance in political positions and party leadership. This historical advantage means that men are more likely to win elections,

<footnote n="47">47 Art 9(1) African Women's Protocol.</footnote>

<footnote n="48">48 Art 6 Constitution of the Democratic Republic of Congo 2006 (n 7).</footnote>

<footnote n="49">49 UN Women Africa (n 11) 2.</footnote>

<footnote n="50">50 Femnet 'Document d'orientation sur la participation Politique des Femmes en République Démocratique du Congo (RDC)' 5.</footnote>

<footnote n="51">51 Art 6 Financing of Political Parties Act (n 13).</footnote>