African Human Rights Yearbook
Annuaire africain des droits de l'homme
Anuário Africano dos Direitos Humanos
الكتاب السنوي لحقوق الانسان في افريقيا
Volume 8 (2024)

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African Human Rights Yearbook
Annuaire africain des droits de l'homme

Volume 8 (2024)

PULP

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African Human Rights Yearbook
Volume 8 (2024)

The three institutions making up the African regional human rights system, the African Court on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights, and the African Committee of Experts on the Rights and Welfare of the Child, decided to jointly publish the *African Human Rights Yearbook*, to spearhead studies on the promotion and protection of human rights, and to provide a forum for constructive engagement about the African human rights system with academics and other human rights commentators on the continent. Volume 8 of the *Yearbook*, published in 2024, contains 23 contributions by scholars from Africa and beyond.

Annuaire africain des droits de l'homme
Volume 8 (2024)

Les trois institutions qui composent le système régional africain des droits de l'homme, la Cour africaine des droits de l'homme et des peuples, la Commission africaine des droits de l'homme et des peuples et le Comité africain d'experts sur les droits et le bien-être de l'enfant ont décidé de publier conjointement *l'Annuaire africain des droits de l'homme* pour encourager les études sur la promotion et la protection des droits de l'homme et offrir un forum d'interaction constructive sur le système avec les universitaires et observateurs du continent. Le Volume 8 de *l'Annuaire*, publié en 2024, contient 23 contributions de chercheurs du continent et d'ailleurs.

Pretoria University Law Press
PULP
www.pulp.up.ac.za

ISSN: 2523-1367
African Human Rights Yearbook

Annuaire africain des droits de l'homme
Anuário Africano dos Direitos Humanos

الكتاب السنوي لحقوق الانسان في افريقيا

2024 (Volume 8)

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Pretoria University Law Press
PULP

2024
**_African Human Rights Yearbook (AHRY)_**

**Published by:**

**Pretoria University Law Press (PULP)**

The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

The articles in this *Yearbook* were peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za

**Printed and bound by:**

Pinetown Printers, Durban, South Africa

**To order, contact:**

PULP
Centre for Human Rights
Faculty of Law
University of Pretoria
South Africa
0002
E-mail: pulp@up.ac.za
www.pulp.up.ac.za

**Cover:**

Yolanda Booyzen, Centre for Human Rights

ISSN: 2523-1367

© 2024

**THIS YEARBOOK SHOULD BE CITED AS (2024) 8 AHRY**

The *African Human Rights Yearbook* publishes peer-reviewed contributions dealing with the aspects of the African human rights system covering its norms, the operation of its institutions, and the connection between human rights and the theme of the African Union for the year of publication, which in 2024 is 'Educate an African fit for the 21st Century'.

The *Yearbook* appears annually under the aegis of the African Commission on Human and Peoples' Rights, the African Court on Human and Peoples' Rights and the African Committee of Experts on the Rights and Welfare of the Child. The *Yearbook* is an open access online publication, see www.ahry.up.ac.za

OPEN™ ACCESS

Copyright vests with the authors of the articles.

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Centre for
Human Rights

UNIVERSITY OF PRETORIA
Annuaire africain des droits de l'homme (AADH)

Publié par :

Pretoria University Law Press (PULP)

Pretoria University Law Press (PULP) est une maison d'édition basée à la Faculté de Droit de l'Université de Pretoria en Afrique du Sud. Elle œuvre à publier et à rendre accessible des productions universitaires innovantes et de grande qualité. PULP publie également une série de collections de documents juridiques relatifs au droit public en Afrique de même que ouvrages académiques au profit de pays autres que l'Afrique du Sud. Les articles contenus dans cet Annuaire ont été soumis à un processus de relecture avant leur publication. Pour de plus amples informations concernant PULP, voir www.pulp.up.ac.za

Imprimé et relié par :

Pinetown Printers, Durban, Afrique du Sud

Pour toute commande, veuillez contacter :

PULP
Centre for Human Rights
Faculté de droit
Université de Pretoria
Afrique du Sud
0002
pulp@up.ac.za
www.pulp.up.ac.za

Conception de la couverture :

Yolanda Booyzen, Centre for Human Rights

ISSN: 2523-1367

© 2024

CITATION (2024) 8 AHRY

L'Annuaire africain des droits de l'homme publie des contributions relues portant sur les aspects du système africain des droits de l'homme touchant à ses normes et au fonctionnement de ses institutions ainsi qu'aux relations entre les droits de l'homme et le thème de l'Union africaine pour l'année de publication qui est, pour 2024 «Éduquer une Afrique digne du 21e siècle».

L'Annuaire paraît une fois par an sous l'égide de la Commission africaine des droits de l'homme et des peuples, de la Cour africaine des droits de l'homme et des peuples et du Comité africain d'experts sur les droits et le bien-être de l'enfant. L'Annuaire est une publication d'accès libre en ligne, veuillez consulter www.ahry.up.ac.za

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Les droits d'auteur sont détenus par les auteurs des articles.

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Centre for
Human Rights

UNIVERSITY OF PRETORIA
**International advisory board**
**Comité consultatif international**

**Rafaà Ben Achour**

Judge of the African Court on Human and
Peoples' Rights
Juge à la Cour africaine des droits de
l'homme et des peuples

**Emmanuel Decaux**

Professor of Law, University of Panthéon-
Assas
Professeur de droit, Université Panthéon-
Assas

**Solomon A Dersso**

Commissioner, African Commission on
Human and Peoples' Rights
Chairperson of the Working Group on
Extractive Industries, the Environment and
Human Rights Violations
Membre de la Commission africaine des
droits de l'homme et des peuples
Président, Groupe de travail sur les
industries extractives, l'environnement et les
violations des droits de l'homme

**Robert Dossou**

Former President of the Constitutional Court
of Benin
Former Minister of Foreign Affairs
Former Honourary Dean of the Faculty of
Law, Abomey-Calavi University
Ancien Président de la Cour constitutionnelle
du Bénin
Ancien Ministre des affaires étrangères
Ancien Doyen Honoraire de la Faculté de
droit, Université d'Abomey-Calavi

**Maya Sahli Fadel**

Former Vice-Chairperson of the African
Commission on Human and Peoples' Rights
(2021-2023)
Ancienne Vice-Presidente de la Commission
africaine des droits de l'homme et des
peuples (2021-2023)

**Patricia Kameri-Mbote**

Advocate of the High Court
Professor of Law, School of Law, University
of Nairobi
Avocate à la Cour supreme
Professeure de droit, Faculté de droit,
Université de Nairobi

**Joseph Ndayisenga**

Former Chairperson of the African
Committee of Experts on the Rights and
Welfare of the Child
Ancien Président, Comité africain d'experts
sur les droits et le bien-être de l'enfant

**Maurice Kamto**

Professor of Public Law, School of Law,
University of Yaoundé II
Agrégé de droit public, Professeur de droit
Faculté de droit, Université de Yaoundé II

**Tiyanjana Maluwa**

Professor of Law, School of Law, H Laddie
Montague Chair in Law, Pennsylvania State
University
Professeur de droit, Faculté de droit;
H Laddie Montague Chaire de Droit,
Université de Pennsylvanie

**Modibo Sacko**

Vice President of the African Court on
Human and Peoples' Rights
Vice Président de la Cour africaine des droits
de l'homme et des peuples

**Robert Nanima**

Member of the African Committee of Experts
on the Rights and Welfare of the Child
Associate Professor, University of the
Western Cape
Membre du Comité africain d'experts sur les
droits et le bien-être de l'enfant
Professeur agrégé, Université de
Western Cape

**Rachel Murray**

Professor of International Law, Centre for
Human Rights Implementation, University of
Bristol
Professeure de droit international, Human
Rights Implementation Centre, Université de
Bristol
Editors
Éditeurs

**Convening editor/Editeur-délégué:**

**Frans Viljoen**

Professor, Centre for Human Rights, Faculty
of Law, University of Pretoria

Professeur, Centre for Human Rights,
Faculté de Droit, Université de Pretoria

**Co-editors/Co-éditeurs:**

**Janet Gbam**

Doctoral student, Centre for Human Rights,
Faculty of Law, University of Pretoria

Doctorante, Centre for Human Rights,
Faculté de Droit, Université de Pretoria

**Trésor Muhindo Makunya**

Associate Professor, University of Goma &
Extraordinary Lecturer, University of Pretoria

Professeur associé, Université de Goma &
Enseignant-chercheur visiteur, Université de
Pretoria
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Contents
Table des matières

Acknowledgments / Remerciements

xi

Editorial / Éditorial

xiii

I

ARTICLES FOCUSED ON ASPECTS OF THE AFRICAN HUMAN RIGHTS SYSTEM AND AFRICAN UNION HUMAN RIGHTS STANDARDS

ARTICLES PORTANT SUR LES ASPECTS DU SYSTÈME AFRICAIN DES DROITS DE L'HOMME ET LES NORMES DES DROITS DE L'HOMME DE L'UNION AFRICAINE

The legal protection of boys and men against terrorism and banditry in Africa

3

Agada, Joseph N., Imosemi, Adekunbi & Olugasa, Olubukola

Exploring the potential of the dominance feminist approach in interpreting socio-economic rights in the Maputo Protocol

28

Amin, Anneth

The right to adequate housing under African regional human rights law: exploring the extent of protection accorded to refugees

59

Ashenafi, Abiy

A critical appraisal of the national institutional mechanisms for the prevention of torture in Nigeria

93

Ayo-Ojo, Bayode Sunday

La spécificité africaine du droit international des investissements: allégorie d'un paradigme régional de promotion des droits humains?

123

Bouyayachen, Sanae

L'indépendance personnelle des juges de la Cour africaine des droits de l'homme et des peuples

182

Dare, Benjamin Gbandi & Tiehi, Elisée Judicaël
The African Court on Human and Peoples' Rights: assessing its effectiveness

206 Tufa, Girma Gadisa

Implementation of article 30 of the African Charter on the Rights and Welfare of the Child: a decade of progress and challenges since the adoption of General Comment 1

230 Manjang, Hussienatou

Developing quasi-criminal review in Africa: lessons from the Inter-American Court of Human Rights

252 Maphosa, Ropafadzo

An exposition of Africa's regional environmental laws, policies and systems for safeguarding the human rights to a clean, healthy and secured environment

275 Mike, Jennifer Heaven

From Kenya to Tanzania through Mauritania, Cameroon and Sudan: the approach of the African Children's Committee to the principle of non-discrimination in selected communications

307 Nanima, Robert

A promise fulfilled? African human rights system and West African state mechanisms in the protection of domestic child workers

Lalude, Olalekan
Moyosore,

Idowu, Oladimeji
Ifedayo &

Olodude, Rufus
Adeoluwa

339

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

361 Salau, Aaron Olaniyi

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

387 Songa, Andrew &
Tessema, Makda M

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

412 Wa Nciko, Laetitia
Nabintu
## II

### SPECIAL FOCUS ON THE AFRICAN UNION'S THEME FOR 2024: EDUCATE AN AFRICAN FIT FOR THE 21ST CENTURY – BUILDING RESILIENT EDUCATION SYSTEMS FOR INCREASED ACCESS TO INCLUSIVE, LIFELONG, QUALITY, AND RELEVANT LEARNING IN AFRICA

### FOCUS SPÉCIAL SUR LE THÈME DE L'UNION AFRICAINE POUR L'ANNÉE 2024 : ÉDUQUER UNE AFRIQUE DIGNE DU 21E SIÈCLE : CONSTRUIRE DES SYSTÈMES ÉDUCATIFS RÉSILIENTS POUR UN ACCÈS ACCRU À UN APPRENTISSAGE INCLUSIF, TOUT AU LONG DE LA VIE, DE QUALITÉ ET PERTINENT EN AFRIQUE

Zimbabwe's educational curriculum reforms from 2015 to 2024: human rights implications to learners, educators, parents and guardians

437

Mazambani, Delis & Tapfumaneyi, Nicol Tinashe

Le droit à l'éducation des personnes handicapées: analyse à l'aune du Protocole à la Charte africaine des droits de l'homme et des peuples relatif aux droits des personnes handicapées en Afrique

458

Balole, Christian Via, Centwali, Guillain Cirhuza & Birindwa, Pacifique Cirhuza

## III

### CASE COMMENTARIES

#### COMMENTAIRES DE DECISIONS

The first decision of the African Commission on maternal mortality: Community Law Centre and Others v Nigeria

483

Durojaye, Ebenezer & Murungi, Nkatha

Case discussion of Mornah v Benin and 7 Others: is the African Court on Human and Peoples' Rights prevented from implementing the right of self-determination?

505

Izuora, Ozioma
L'arrêt Ligue ivoirienne des droits de l'homme (LIDHO) et autres c. Côte d'Ivoire: une mutation complexe du contentieux environnemental *Trafigura*

523

Kpla, Koffi Arnaud

Tanzania and the African Court spar over the mandatory death penalty and hanging: *Kambole v Attorney General* (Tanzania Court of Appeal, 2022), *Ally Rajabu v Tanzania* and fourteen other African Court decisions

540

Novak, Andrew

Hazardous waste and the right to a healthy environment: reflections on the *LIDHO* decision of the African Court on Human and Peoples' Rights

554

Waswa, Simon

Vers une approche intégrée des droits à la santé et à l'éducation des populations autochtones: perspectives de l'affaire *Batwa c. RDC* devant la Commission africaine

580

Sindani, Jonas
Kakule
Acknowledgments
Remerciements

The support of the following persons in the process of publishing this Yearbook
is acknowledged with much appreciation:

La contribution des personnes ci-après à la facilitation du processus de
publication de cet Annuaire est fortement appréciée:

**Dr. Robert Eno**

Registrar, African Court on Human and Peoples' Rights

Greffier, Cour africaine des droits de l'homme et des peuples

**Ms. Grace Wakio Kakai**

Deputy Registrar, African Court on Human and Peoples' Rights

Greffier Adjoint, Cour africaine des droits de l'homme et des peuples

**Dr. Sègnonna Horace Adjolohoun**

Principal Legal Officer and Acting Head of Legal Division, African Court on
Human and Peoples' Rights

Juriste Principal en Chef et Chef intérimaire de la Division Juridique, Cour africaine des droits de l'homme et des peuples

**Dr. Mwiza Jo Nkhata**

Principal Legal Officer, African Court on Human and Peoples' Rights

Juriste Principal en Chef, Cour africaine des droits de l'homme et des peuples

**Ms. Abiola Idowu-Ojo**

Executive Secretary, African Commission on Human and Peoples' Rights

Secrétaire exécutive, Commission africaine des droits de l'homme et des
peuples

**Ms. Anita Bagona**

Senior Legal Officer, African Commission on Human and Peoples' Rights

Juriste Principal, Commission africaine des droits de l'homme et des peuples

**Ms. Estelle Nkounkou**

Legal Officer, African Commission on Human and Peoples' Rights

Juriste, Commission africaine des droits de l'homme et des peuples

**Ms. Catherine Wanjiru Maina**

Officer in Charge, Secretariat of the African Committee of Experts on the Rights
and Welfare of the Child

Responsable du Secrétariat, Comité africain d'experts sur les droits et le bien-
être de l'enfant

**Mr. Ayalew Getachew Assefa**

Senior Child Protection Officer, Secretariat of the African Committee of Experts
on the Rights and Welfare of the Child

Juriste Principal Chargé de Protection, Secrétariat, Comité africain d'experts sur les droits et le bien-être de l'enfant
**Mr. Philippe Sekone**

Child Rights Officer, Secretariat of the African Committee of Experts on the
Rights and Welfare of the Child

*Responsable des droits de l'enfant, Secrétariat, Comité africain d'experts sur les droits et le bien-être de l'enfant*

**Ms. Lizette Hermann**

Manager of the Pretoria University Law Press (PULP), for her immeasurable
patience and professionalism in making the manuscript print-ready

*Responsable de la Pretoria University Law Press (PULP), pour sa patience et son professionnalisme incommensurables dans la mise en forme et la préparation du manuscrit à l'impression*

The editors thank the following reviewers for their invaluable assistance in
ensuring the quality of the *Yearbook*:

*Les éditeurs de l'Annuaire africain des droits de l'homme expriment leur profonde gratitude aux chercheurs suivants pour leur précieuse contribution en tant que pairs-réviseurs:*

Prudence Acirokop; Michael Addaney; Jegede Ademola; Avitus Agbor; Ernest Yaw Ako; Chika Charles Aniekwe; Carlson Anyangwe; Cecil Aptel; Evelyn Asaala; Victor Ayeni; Seun Bakare; Elsabe Boshoff; Jason Brickhill; Mercy Bwanaisa; Ashwanee Budoo-Scholtz; Chika Aniekwe Charles; Lucy Claridge; Rebecca Cook; Cristiano d'Orsi; Henrietta Ekefre; Fabrice Endoh; Precious Eriamiatoe; Elvis Fokala; Hajer Gueldich; David Ikpo; Balingene Kahombo; Jonathan Kabré; Jimmy Kamunga; Mariam Kamunyu; Sanwé Médard Kienu; Magnus Killander; Pierre Kilele; Lassane Kone; Patient Lwango; Abelungu Mumbala; Kazadi Mpiana; Tarisai Mutangi; Satang Nabaneh; Michael Nyarko; Lutz Oette; Kerigo Odada; Chairman Okoloise; Konanani Raligilia; Ayo Sogunro; Lee Stone; Ziona Tanzer; Sâ Benjamin Traoré; Nsongurua Udombana; and Ikechukwu Umoza.
On 21 October 2024, the African Union celebrated African Human Rights Day, marking 34 years since the entry into force of the first African human rights treaty, which was adopted in 1981 and entered into force in 1987. The treaty is the African Charter on Human and Peoples' Rights (African Charter), whose implementation mechanism is the African Commission on Human and Peoples' Rights (African Commission).

Additional human rights treaties followed. These include the African Charter on the Rights and Welfare of the Child, which entered into force on 29 November 1999, establishing an African Committee of Experts on the Rights and Welfare of the Child (Committee), and the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (Ouagadougou Protocol), in force since 25 January 2004, establishing the African Court on Human and Peoples' Rights (Court).

This normative-institutional architecture is proof of continental adherence to the ideals of human rights, which was to materialise in the alignment of national laws and legal systems.

The underlying idea was that adherence to human rights would facilitate good governance and the advent of democracy, and that once established everywhere, the latter would help political leaders to limit the concentration, or even confiscation, of power, and would qualitatively and positively change the destiny of our continent.

Since its inception, the African Commission has worked to advance adherence to human rights principles and the enjoyment of the rights guaranteed by the African Charter. It has set up 12 subsidiary or special mechanisms, held 81 ordinary sessions that have created platforms for deliberation on relevant human rights issues with states, human rights stakeholders and human rights defenders.

It has adopted several legal instruments, which may not be legally binding, but whose 'recommendatory value' nonetheless obliges governments to accept a certain form of 'implementation obligation' to guide the decisions and choices they make in the management of public affairs. States have a legal obligation, a binding obligation, so to speak, to apply the Charter. The Commission makes recommendations for implementing these legal obligations. Herein lies the small but salvific nuance, imperceptible to many.

In 2022, the Commission facilitated the adoption by the African Union of the Protocol on Citizens' Rights to Social Protection and Social Security. In 2024, it did the same for the Protocol to the African Charter on Human and Peoples' Rights on Statelessness and Nationality. It also contributed to the drafting of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older Persons (which
came into force on 6 November 2024). It is also behind the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities, which has entered into force in 2024.

In addition, the three human rights institutions – the Commission, the Committee and the Court – working together with other human rights key players in the African Union, have continued to convene under the African Governance Architecture (AGA), on various human rights issues, and have made much progress in synergising and collaborating in various activities that sensitise and encourage human rights stakeholders, especially states, on their obligations to protect and promote human rights in the continent. The *African Human Rights Yearbook* project is a central element in the collaborative efforts of the three institutions.

Although the debate on human and peoples' rights continues to progress, stakeholders at the national level are concerned about socio-economic inequalities, the persistence of harmful cultural practices, gender discrimination, the ongoing criminalisation of vulnerable groups and the insufficient integration of human rights principles into national development plans on the continent.

It is also a concern that armed conflicts involving child soldiers, civilian deaths, enforced disappearances and gender-based violence are on the increase. In addition, restrictions on freedom of expression through harassment of national and international human rights organisations, corruption, harsh prison conditions, the food crisis and climate change continue to have a devastating impact on human rights. In this context, we must not forget the widespread restriction of the civic space, as well as threats and reprisals against human rights defenders.

All these challenges show how important it is for Africa to integrate human rights into its education systems, and to strengthen its mechanisms for protecting and promoting human rights by providing them with sufficient resources and adhering to their recommendations. We are still a long way from achieving this.

This edition of the *Yearbook* addresses various aspects of the journey so far in the protection of human and peoples' rights, such as the legal protection of boys and men against terrorism and banditry in Africa, the integration of a gender perspective in the teleological interpretation of socio-economic rights in the Maputo Protocol, the right to adequate housing under African regional human rights legislation, the African specificity of international investment law. The protection of women's and children's rights, analysis and commentary on the human rights implications of selected African Court rulings, and much more.

It also reflects on the African Union Theme for 2024 which focuses on 'Building resilient education systems for increased access to inclusive, lifelong, quality, and relevant learning in Africa'. Papers on this theme include the human rights implications to learners, educators, parents and guardians, and the right to education for people with disabilities in the light of the Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Persons with Disabilities in Africa.

We are confident that the ideas expressed here will not go unheeded. They should inspire readers, decision-makers and researchers to formulate further thoughts that will improve the quality of life within communities, to the great benefit of individuals.

Very few people are aware that there is now a veritable 'human rights economy' on the continent, which the *African Human Rights Yearbook* is helping to establish. It has done so in four ways. In the first, that of human rights savings, by revealing year after year the essentials of the rights preserved, conserved, saved and protected through these instruments. In the second, that of the production of thoughts related to human rights. In the third, the distribution of human rights by conveying these thoughts throughout the continent in both soft and hard formats. The fourth, and final, path is that of consumption, when national laws and practices are aligned with African standards and communities or individuals demand the materialisation of the ideas expressed therein. I fundamentally believe in this.

Rémy Ngoy Lumbu

Chairperson, African Commission on Human and Peoples' Rights
Le 21 octobre 2024, l'Union africaine a célébré la Journée africaine des droits de l'homme, marquant les 34 ans de l'entrée en vigueur du premier traité africain relatif aux droits de l'homme adopté en 1981, et entré en vigueur en 1987. Il s'agit de la Charte africaine des droits de l'homme et des peuples (Charte africaine), dont le mécanisme de mise en œuvre institué est la Commission africaine des droits de l'homme et des peuples (Commission africaine).

D'autres traités relatifs aux droits de l'homme ont suivi. Il s'agit de la Charte africaine des droits et du bien-être de l'enfant, devenue opérationnelle le 29 novembre 1999 instituant un Comité africain d'experts sur les droits et le bien-être de l'enfant (Comité), et le Protocole à la Charte africaine des droits de l'homme et des peuples portant création d'une Cour africaine des droits de l'homme et des peuples, en vigueur depuis le 25 janvier 2004 mettant en place la Cour africaine des droits de l'homme et des peuples (Cour).

Cette architecture normativo-institutionnelle est la preuve d'une adhésion continentale aux idéaux des droits de l'homme qui devait se matérialiser par un alignement des lois nationales et systèmes juridiques nationaux.

L'idée à la base était que l'adhésion aux droits de l'homme faciliterait la bonne gouvernance et l'avènement de la démocratie, et qu'une fois installée partout, cette dernière aiderait les dirigeants politiques à limiter la concentration, voire la confiscation, du pouvoir et changerait qualitativement et positivement le destin de notre continent.

Depuis sa création, la Commission africaine a déployé des efforts pour faire progresser l'adhésion aux principes des droits de l'homme et la jouissance des droits garantis par la Charte africaine. Elle a mis en place 12 mécanismes subsidiaires ou mécanismes spéciaux, a tenu 81 sessions ordinaires qui ont créé des plateformes de délibération sur des questions pertinentes relatives aux droits de l'homme avec les États, les parties prenantes aux droits de l'homme et les défenseurs des droits de l'homme.

Elle a adopté de nombreux instruments juridiques, non juridiquement contraignants certes, mais dont la «valeur recommendatoire» oblige tout de même à une certaine forme d'«obligation implementationnelle» consentie et voulue par les gouvernements en vue d'orienter les décisions et les choix que prennent les Etats dans la gestion de la chose publique. Le Etats ont l'obligation juridique, l'obligation contraignante pour ainsi dire, indubitable d'appliquer la Charte. La Commission formule des recommandations pour mettre en œuvre ces obligations juridiques. C'est là que loge la petite nuance salvatrice imperceptible pour plusieurs.

En 2022, la Commission a facilité l'adoption par l'Union africaine du Protocole sur les droits des citoyens à la protection sociale et à la sécurité sociale. En 2024, elle a fait de même pour le Protocole à la Charte africaine des droits de l'homme et des peuples sur l'apatridie et la nationalité. Elle a également contribué à l'élaboration du Protocole à la Charte africaine des droits de l'homme et des peuples relatif aux droits des personnes âgées (entrée en vigueur le 6 novembre 2024). Elle
est aussi à l'origine du Protocole à la Charte africaine des droits de l'homme et des peuples relatif aux droits des personnes handicapées, qui est entré en vigueur en 2024.

En outre, les trois institutions des droits de l'homme de l'Union africaine (UA) – la Commission, le Comité et la Cour – en collaboration avec d'autres acteurs clés de l'UA, ont continué à se réunir dans le cadre de l'architecture africaine de gouvernance (AGA), sur diverses questions relatives aux droits de l'homme, et ont réalisé des progrès considérables en matière de synergie et de collaboration dans le cadre de diverses activités visant à sensibiliser et à encourager les acteurs des droits de l'homme, en particulier les États, sur leurs obligations de protéger et de promouvoir les droits de l'homme sur le continent. Le projet d'Annuaire africain des droits de l'homme est un élément central qui matérialise les efforts de collaboration des trois institutions.

Bien que le débat sur les droits de l'homme et des peuples continue de progresser, les parties prenantes au niveau national s'inquiètent des inégalités socio-économiques, de la persistance de pratiques culturelles néfastes, de la discrimination fondée sur le genre, de la criminalisation continue des groupes vulnérables et de l'intégration insuffisante des principes des droits de l'homme dans les plans de développement nationaux sur le continent.

Il est également préoccupant de constater que les conflits armés impliquant des enfants soldats, la mort de civils, des disparitions forcées et des violences basées sur le genre sont en hausse. En outre, les restrictions à la liberté d'expression par le harcèlement des organisations nationales et internationales de défense des droits de l'homme, la corruption, les conditions de détention difficiles, la crise alimentaire et le changement climatique continuent d'avoir un impact dévastateur sur les droits de l'homme. Dans ce contexte, il convient de ne pas oublier la restriction partout de l'espace civique, ainsi que les menaces et les représailles qui pèsent sur les défenseurs des droits de l'homme.

Tous ces défis montrent à quel point il est important que l'Afrique intègre les droits de l'homme dans ses systèmes éducatifs et renforce ses mécanismes de protection et de promotion des droits de l'homme en les dotant de ressources suffisantes et en adhérant aux recommandations qu'elles formulent. Nous en sommes encore loin.

Cette édition de l'Annuaire aborde divers aspects du chemin parcouru jusqu'à présent dans la protection des droits de l'homme et des peuples, tels que la protection juridique des garçons et des hommes contre le terrorisme et le banditisme en Afrique, l'intégration d'une perspective de genre dans l'interprétation téléologique des droits socio-économiques dans le protocole de Maputo, le droit à un logement adéquat en vertu de la législation régionale africaine sur les droits de l'homme, la spécificité africaine de la législation internationale sur l'investissement : la protection des droits des femmes et des enfants, l'analyse et les commentaires sur les implications en matière de droits de l'homme de certains arrêts de la Cour africaine, et bien d'autres choses encore.
Il réfléchit également sur le thème de l'Union africaine pour 2024 à savoir «Construire des systèmes éducatifs résilients pour un accès accru à un apprentissage inclusif, tout au long de la vie, de qualité et pertinent en Afrique», en regard des implications du thème en matière de droits de l'homme pour les apprenants, les éducateurs, les parents et les tuteurs, en particulier le droit à l'éducation pour les personnes handicapées à la lumière du Protocole à la Charte africaine des droits de l'homme et des peuples relatif aux droits des personnes handicapées en Afrique.

Nous osons espérer que les idées y exprimées ne resteront pas lettre morte. Elles ne doivent en aucun cas être considérées comme de la matière inerte. Elles devraient inspirer les lecteurs, les décideurs, les chercheurs à formuler d'autres pensées qui permettront d'améliorer la qualité de vie au sein des communautés, au grand bénéfice des particuliers.

Très peu le savent, il existe désormais une véritable «économie des droits de l'homme» sur le continent que l'Annuaire africain des droits de l'homme contribue à mettre en place. Ce, par quatre voies. En la première, celle de l'épargne des droits de l'homme, en dévoilant année après année l'essentiel des droits préservés, conservés, épargnés et protégés au travers de ces instruments. En la seconde, celle de la production des pensées en rapport avec les droits de l'homme. En troisième, celle de la distribution des droits de l'homme en véhiculant ces pensées partout sur le continent sous les formats soft et hard. En quatrième, et dernière voie, celle de la consommation lorsque les lois et les pratiques nationales sont alignées aux standards africains et les communautés ou particuliers réclament la matérialisation des idées y exprimées. J'y crois fondamentalement.

Rémy Ngoy Lumbu

Président de la Commission Africaine des Droits de l'Homme et des Peuples
# I

## ARTICLES FOCUSED ON ASPECTS OF THE AFRICAN HUMAN RIGHTS SYSTEM AND AFRICAN UNION HUMAN RIGHTS STANDARDS

## ARTICLES PORTANT SUR LES ASPECTS DU SYSTEME AFRICAIN DES DROITS DE L'HOMME ET LES NORMES DES DROITS DE L'HOMME DE L'UNION AFRICAINE
<figure><img src="image_8.png" /></figure>
# The legal protection of boys and men against terrorism and banditry in Africa

Joseph N. Agada*

https://orcid.org/0000-0003-3459-8154

Adekunbi Imosemi**

https://orcid.org/0000-0003-2690-4242

Olubukola Olugasa***

https://orcid.org/0000-0002-1763-2026

**ABSTRACT:** Terrorism and banditry are two closely related crimes that involve the engagement of arms in violent attacks calculated to threaten, kill, destroy and annihilate a part or unit of a population with the intent to create a general atmosphere of fear and insecurity. There could be intimidation to achieve economic, religious and or political objectives. These violent crimes have resulted in the death of millions across the globe and caused untold hardship and instability in affected countries especially in Africa. The number of refugees arising from terrorism and banditry in Africa is taking astronomical dimensions even as governments are increasingly helpless. It would appear that the more commonly discussed victims of terrorism and banditry have been the girls and women considered the most and disproportionately vulnerable. Utilising the doctrinal research methodology, this article examines how these violent crimes affect boys and men in Africa by way of physical harms, psychological trauma and other life disruptions. It investigates the adequacy or otherwise of the legal protection in the hope of suggesting a sustainable and inclusive legal framework that factors the peculiarity of vulnerabilities of boys and men, especially in conflict-prone parts of Africa and ensuring their access to justice, rehabilitation and empowerment.

## TITRE ET RÉSUMÉ EN FRANÇAIS

### La protection juridique des garçons et des hommes contre le terrorisme et le banditisme en Afrique

**RÉSUMÉ:** Le terrorisme et le banditisme, deux formes de criminalité intrinsèquement liées, se caractérisent par l'usage d'armes et d'actes de violence systématiques visant à intimider, tuer, détruire ou anéantir des segments de population. Ces crimes, souvent motivés par des objectifs économiques, religieux ou politiques, génèrent une atmosphère de peur et d'insécurité généralisée. En Afrique, leur impact est particulièrement dévastateur, ayant entraîné des millions de décès, d'importants déplacements de populations, et une instabilité socio-économique accrue. Alors que les filles et les femmes sont fréquemment identifiées comme les principales victimes en raison de leur vulnérabilité perçue, les garçons et les hommes, souvent négligés dans les discours sur les conséquences de ces crimes, subissent également des

<footnote>* LLB (Olabisi Onabanjo University), BL (Nigerian Law School), LLM (Olabisi Onabanjo University), PhD (Babcock University), Lecturer Department of Jurisprudence and Public Law, Babcock University, Ilishan-Remo, Ogun State, Nigeria; agadaj@babcock.edu.ng, agada4christ@yahoo.com</footnote>

<footnote>** LLB, LLM, PhD (University of Ibadan), Professor of Criminal Law and Criminal Justice Administration, Babcock University; imosemia@babcock.edu.ng</footnote>

<footnote>*** BA (OSUA), MA, LLB (UNILAG), BL (NLS), LLM (UI), PhD2 (BU), Professor of Law and Technology, Babcock University; olugasao@babcock.edu.ng</footnote>
préjudices graves. Ceux-ci incluent des blessures physiques, des traumatismes psychologiques, la conscription forcée, et des perturbations de leur rôle familial et social. En adoptant une méthodologie fondée sur le positivisme juridique, cet article examine l'impact spécifique du terrorisme et du banditisme sur les garçons et les hommes en Afrique. Il évalue l'efficacité des dispositifs juridiques actuels pour répondre à leurs besoins particuliers et explore les insuffisances d'un cadre de protection trop souvent focalisé sur d'autres catégories de victimes. L'étude propose des recommandations en vue d'un cadre juridique inclusif et durable, prenant en compte les vulnérabilités propres aux garçons et aux hommes, notamment dans les zones de conflit. Elle plaide pour des mesures qui garantissent leur accès à la justice, leur réhabilitation, et leur autonomisation, tout en renforçant les obligations des États africains à travers des réformes législatives, des mécanismes de protection spécifiques, et une meilleure prise en charge psychosociale des victimes masculines de ces crimes.

**KEY WORDS:** terrorism and banditry; insecurity; hostage; kidnapping; armed violence; forced recruitment; sexual violence; economic crimes; access to justice; Africa

## CONTENT:

<table><tr><td>1</td><td>Introduction</td><td>4</td></tr><tr><td>1.1</td><td>Perspectives of terrorism and banditry in Africa</td><td>5</td></tr><tr><td>1.2</td><td>Banditry</td><td>8</td></tr><tr><td>1.3</td><td>Why do people join terrorism and banditry?</td><td>9</td></tr><tr><td>1.4</td><td>Types/forms of terrorism</td><td>10</td></tr><tr><td>1.5</td><td>Africa's active terror groups and their country distributions</td><td>11</td></tr></table>

<table><tr><td>2</td><td>Boys and men as victims of terrorism and banditry</td><td>13</td></tr></table>

<table><tr><td>3</td><td>Theories of terrorism</td><td>15</td></tr><tr><td>3.1</td><td>Political theory</td><td>15</td></tr><tr><td>3.2</td><td>Economic theory</td><td>16</td></tr><tr><td>3.3</td><td>Religious theory</td><td>16</td></tr><tr><td>3.4</td><td>Rational choice theory</td><td>17</td></tr><tr><td>3.5</td><td>Incidents of terror attacks on boys and men across some jurisdictions in Africa</td><td>17</td></tr></table>

<table><tr><td>4</td><td>The legal framework for the protection of boys and men in Africa</td><td>19</td></tr><tr><td>4.1</td><td>The United Nations Convention on the Right of the Child</td><td>20</td></tr><tr><td>4.2</td><td>African Charter on the Rights and Welfare of the Child</td><td>21</td></tr><tr><td>4.3</td><td>The Child Rights Act 2003</td><td>21</td></tr><tr><td>4.4</td><td>Legal framework for the protection of men against terrorism and banditry in Africa</td><td>22</td></tr></table>

<table><tr><td>5</td><td>Findings, conclusions and recommendations</td><td>24</td></tr></table>

# 1 INTRODUCTION

The word ‘terrorism’ was noticeably used in the early 1790s to describe the terror approach employed by the French revolutionaries against their perceived enemies.<fnref n="1" /> The word has been associated with all kinds of negative references and meanings.<fnref n="2" /> Many times, even freedom fighters like Nelson Mandela have been tagged terrorists by the political class. While the United States of America had witnessed a series of domestic and international terrorism attacks, the commitment to

<footnote n="1">1 JP Jenkins 'Terrorism' Britannica on politics, governance and law https://www.britannica.com/topic/terrorism (accessed 27 August 2022).</footnote>

<footnote n="2">2 A Silke, 'The study of terrorism and counter terrorism' available at https://www.researchgate.net/publication/326849404_The_Study_of_Terrorism_and_Counterterrorism/link/5b6968f9a6fdcc87df6d6a52/download (accessed 8 August 2022).</footnote>
prevent such re-occurrence did not emerge until after the 11 September 2001 attack.³

Not all African countries suffer from terrorism and banditry, but many countries on the continent are affected. The affected countries include Nigeria, Burkina Faso,⁴ Algeria, Tunisia, Libya, Egypt, Somalia, Kenya and Mali.⁵ Others are Niger, Cameroon, Chad, Democratic Republic of Congo, Tanzania, Burundi, Uganda, Togo, Rwanda, Morocco, Ethiopia, Rwanda, Benin, Sudan, South Africa, Mauritania, Angola, Gabon and Côte d'Ivoire.⁶ Sudan, Gabon and Angola are the least affected countries.⁷ It is important to mention that countries such as Ghana, Malawi, Madagascar, Guinea, Sierra Leone, Zambia, South Sudan, Botswana, Liberia, Namibia, Lesotho, The Gambia, Zimbabwe, and Equatorial Guinea are currently free from terrorism.⁸ This article aims to provide a comprehensive analysis of the legal frameworks and protections available to boys and men in Africa who are affected by terrorism and banditry. It will delve into the specific challenges and vulnerabilities faced by this demographic, examining how existing laws and policies address their needs. It is structured into perceptions of terrorism and banditry.

## 1.1 Perspectives of terrorism and banditry in Africa

Several definitions have been propounded on terrorism. James Poland stated that the confusion over an acceptable definition is 'the most confounding problem in the study of terrorism'.⁹ According to Shafritz, Gibbons and Scott in the early 1990s, 'it is unlikely that any definition will ever be generally agreed upon'.¹⁰

3. JW Maze 'With liberty and justice for all: An examination of the United States' compliance with rule of law as it relates to domestic and international terrorism' Masters thesis, Wright State University (2018) 36.

4. Studies have shown that Burkina Faso's government only controls 60% of the country's territory and the rest 40% is under the control of terrorists and bandits. See Mahamadou Issoufou, former president of Niger who was appointed by ECOWAS as a mediator to Burkina Faso, Al Jazeera news of 18 June 2022. Reuters https://www.aljazeera.com/news/2022/6/18/state-controls-only-60-per-cent-of-burkina-faso-mediator (accessed 14 September 2022).

5. Africa Centre for Strategic Studies referred to by Bridget Boakye, 'Terrorism in Africa: 21 active militant groups on the continent in 2018' https://face2faceafrica.com/article/terrorism-in-africa-21-active-militant-groups-on-the-continent-in-2018 (accessed 30 August 2022).

6. Satista 'Terrorism index in African countries as of 2021' https://www.statista.com/statistics/1197802/terrorism-index-in-africa-by-country/ (accessed 13 September 2022).

7. As above.

8. As above.

9. J Poland *Understanding terrorism: groups, strategies, and responses* (1988).

10. JM Shafritz, E Gibbons & G Scott (eds) *Almanac of modern terrorism* (1991).
Many researchers indicated to have accepted the assessment by Shafritz.<fnref n="11" /> While the debate rages on, researchers have learnt to by-pass the definition problem and focus their attention on other topics other than definition. Notwithstanding the inability of researchers of this topic to reach an acceptable definition, researchers have agreed that they cannot totally ignore the definition question. Adams Roberts agreed with this position when he stated:<fnref n="12" />

> I do not share the academic addiction to definitions. This is partly because there are many words that we know and use without benefit of definition. 'Left' and 'right' are good examples, at least in their physical meaning. I sympathise with the dictionary editor who defines 'left' as 'the opposite of right' and then obliges by defining 'right' as 'the opposite of left'. A more basic reason for aversion to definitions is that in the subject I teach, international relations, you have to accept that infinite varieties of meaning attach to the same term in different countries, cultures and epochs. It is only worth entering into definitions if something hangs on them. In this case (terrorism), something does.

Roberts's position was right. The definition of terrorism is important to the entire study of the topic. An acceptable definition will allow researchers to develop shared views, methods, and approaches to the study and will help them to make recommendations on curbing the crime. In the absence of an agreeable definition, the study of the topic will be uncoordinated, fragmented, and unrealistic.<fnref n="13" />

Legally speaking, not all jurisdictions have definitions for terrorism. There are across jurisdictions what is referred to as shared features on the subject some of which are: the use of or threat of violence, creation of fear that is not limited or restricted to the immediate victims, but a larger population, use of arms et cetera. The extent to which it employs fear as a tool distinguishes banditry and terrorism from historically known war. However, this article considers terrorism from a legal perspective. It perceives terrorism strictly as a crime against the sovereignty of the state or states.

Terrorism can be said to be a violent crime involving the use of arms calculated to kill, destroy and annihilate a marked set or portions of a population of a state with the intention of creating a general climate of

<footnote n="11">11 The assessment and or position is to the effect that rather than dissipate energies on the seemingly unresolvable issue of definition, researchers should pay more attention to the other issues involved in the study of terrorism and how the crime affects humanity. This way, they can make recommendations on how to stop the menace. It is taken that certainly within each society people have an idea of conducts or acts that are categorised as terrorism. The sense often is that while one might not be able to define the term terrorism absolutely, he/she has an idea of what it is and can recognise it when seen.</footnote>

<footnote n="12">12 As quoted in A Roberts, 'Can we define terrorism?' *Oxford Today*, http://www.oxfordtoday.ox.ac.uk/archive/0102/14_2/04.shtml (accessed 29 August 2022)</footnote>

<footnote n="13">13 A Merari 'Academic research and government policy on terrorism' (1991) 3 *Terrorism and Political Violence* 88-102. She argued that repeated occurrences of the same phenomenon are the basis of scientific research. In the case of terrorism, however, there is hardly a pattern which allows generalizations. Clearly, the heterogeneity of the terroristic phenomena makes descriptive, explanatory and predictive generalizations, which are the ultimate products of scientific research, inherently questionable</footnote>
fear, insecurity, intimidation and failure in governance in an attempt to achieve economic, religious and or political objectives. Where it is for political objectives, it includes an attempt to topple the incumbent government or a radical change in the type or form of government.

Terrorism may mean the act of perpetuating violent crime either by an individual or a group of persons usually bonded by an ideology of the general public with the intention to create fear and send a message to the government.<fnref n="14" /> As stated earlier, the general aim of terrorists when they attack is to show not just their presence but their capacity and seriousness to the government. This accounts for why they usually will claim responsibility for their attacks afterwards.<fnref n="15" />

According to the Terrorism Act of the United Kingdom,<fnref n="16" /> terrorism is defined as '[t]he use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public, or any section of the public for political, religious or ideological ends'. This definition is similar to that of the US. The US Federal Bureau of Investigation (FBI) defines terrorism as '[t]he unlawful use of force or violence against persons or property to intimidate or coerce a government or civilian population in furtherance of political or social objectives'.

The Nigerian Terrorism (Prevention) Act,<fnref n="17" /> as amended by the Terrorism (Prevention) Amendment Act,<fnref n="18" /> defines terrorism as an act committed with malice and intent to cause serious harm or damage to a country or international organisation. Such intent includes actions aimed at pressuring governments or international bodies to take or refrain from certain actions, intimidating populations, destabilizing or destroying fundamental structures, or influencing governments through intimidation or coercion. It also specifies that terrorism involves or causes attacks on people's lives or kidnappings.<fnref n="19" />

Somalia's 'Terrorist Act' adopted the 1999 International Convention for the Suppression of the Financing of Terrorism and its annexure. Terrorism in Somalia therefore means any act which constitutes an offence as involving any actions detailed in the treaties included in its annex. It also encompasses any acts intended to injure or kill civilians or non-combatants during armed conflict, with the aim of instilling fear in the populace or coercing a government or international organisation to either take a specific action or abstain from one.<fnref n="20" />

In like manner, Burkina Faso's Repression of Acts of Terrorism 2015 shared the definitive view of the Nigerian Legislation. From the above definitions, it is clear that globally, there is an increasing

<footnote n="14">14 https://byjus.com/free-ias-prep/terrorism/ (accessed 30 August 2022).</footnote>

<footnote n="15">15 As above.</footnote>

<footnote n="16">16 See secs 1 & 2 of the UK Terrorism Act 2000.</footnote>

<footnote n="17">17 Terrorism (Prevention) Act 2011.</footnote>

<footnote n="18">18 Terrorism (Prevention) Amendment Act 2022.</footnote>

<footnote n="19">19 See sec 1(2) of the Act.</footnote>

<footnote n="20">20 See Part 1 Anti-Money Laundering and Countering the Financing of Terrorism Act, 2016.</footnote>
awareness on what terrorism means. This position is buttressed by the
fact that the UK, USA, Somalia, Burkina Faso, Nigeria and a host of
other states have all proscribed virtually the same class of conducts and
groups.<fnref n="21" />

The Global Terrorist index (GTI) report released towards the end of 2019 ranked Nigeria, for the fifth time running, since 2015, as the third most impacted by terrorism, globally and the most terrorised African country. However, Nigeria moved from being the most terrorised state followed by Somalia and Egypt in 2019,<fnref n="22" /> to being the third in 2021 and 2022 respectively.<fnref n="23" /> The implication of this is that Africa is terribly terrorised.

1.2 Banditry

On its part, Banditry can be said to mean the ‘actual or threatened use of arms (any instrument of force/coercion/violence) to dispossess people of their material belongings’.<fnref n="24" /> According to Ahmed, Tanimu Mahmoud, it means:

The occurrence or prevalence of armed robbery or violent crime. It involves the use of force, or threat to that effect, to intimidate a person with the intent to rob rape or kill. Banditry is a crime against persons. It has been a common genre of crime, as well as cause violence in contemporary African societies.<fnref n="25" />

Banditry in Africa has metamorphosed into an advanced continental security.<fnref n="26" /> Some organised criminals have seen banditry as a means of livelihood. In the same vein, terrorists often resort to banditry in an attempt to raise funds for their operations to gain advantageous bargaining positions. Kidnapping has become the usual and regular acts of bandits in modern day Africa.<fnref n="27" />

<footnote n="21">21 See sec 2 of the Nigerian Terrorism (Prevention) Act, sec 3 and Schedule 2 of the UK Terrorism Act, American Domestic Terrorism Prevention Act of 2022</footnote>

<footnote n="22">22 Global Terrorism Index: 'Top 20 most terrorised countries in Africa, 2018' available at https://talkafricana.com/global-terrorism-index-top-20-most-terro rised-countries-in-africa-2018/ (accessed 29 August 2022).</footnote>

<footnote n="23">23 Global Terrorism Index available at https://moroccantelegraph.com/news/global -terrorism-index-2022-morocco-among-the-least-affected (accessed 29 August 2022).</footnote>

<footnote n="24">24 AC Okoli & A Ugwu 'Of marauders and brigands: scoping the threat of rural banditry in Nigeria's North West' (2019) 4(8) *Brazilian Journal of African Studies* 201-222.</footnote>

<footnote n="25">25 See AT Mahmoud ‘Banditry dynamism and operating pattern of crime in northwest Nigeria: a threat to national security’ available at https://www.researchgate.net/publication/358398187iel Of Banditry and Human Rustling_ The Scourge of Kidnapping in Northern Nigeria/link/62006375702c892ce foba4db/download (accessed 29 August 2022). See also IM Abbas ‘No retreat no surrender conflict for survival between Fulani pastoralists and farmers in Northern Nigeria’ (2013) 8 *European Scientific Journal* 17-18.</footnote>

<footnote n="26">26 Goodluck Jonathan Foundation (2021). Terrorism and banditry in Northern Nigeria: the nexus (Katsina, Niger, and Zamfara States context. Abuja: Goodluck Jonathan Foundation).</footnote>

<footnote n="27">27 C Okoli ‘Of banditry and human rustling: the scourge of kidnapping in Northern Nigeria’ (2022) 11 *African Journal on Terrorism*.</footnote>
Terrorist groups engage in banditry and kidnapping for ransom while terrorism is ideologically motivated, banditry is often driven or motivated by economic considerations. Akogwu has argued that:

> While the term ‘terrorism’ entails the premeditated use of violence by an ideologically motivated individual or group to create a general climate of fear in a population with the intention of bringing about a particular political objective, ‘banditry’ refers to economically motivated armed violence perpetrated by gangs driven primarily by the intention to extort, dispossess or plunder their targets – individuals, groups or communities.<fnref n="28" />

Secondly, while the primary goal of terrorists is to kill and destroy properties with the aim of sending a signal of insecurity and vulnerability, bandits operate for the immediate gain of the crime and use it as a means of extortion of citizens.

Bandits are less likely by their *modus operandi* to carry out targeted killings which are intentional targets of and strategies of terrorists. While terrorists have a broader leadership and organisational base with international synergies, bandits are often localised and operate in clusters.<fnref n="29" /> Furthermore, bandits have limited knowledge and interest in the use of sophisticated weapons while terrorists engage in military training of their members and increased sophistry of weaponry and theatre actions.<fnref n="30" /> While bandits are not known for using suicide bombing tactic, it is a usual signature of terrorists.<fnref n="31" /> While bandits do not operate media outfits, terrorist organisations usually have well organised and managed media outfits for propaganda and strategy.<fnref n="32" />

The above position and differences notwithstanding, it has been argued by some that there is no difference between terrorism and banditry as both crimes are often committed by the same set of criminals.<fnref n="33" /> Be that as it may, we believe that there are differences between terrorism and banditry.

## 1.3 Why do people join terrorism and banditry?

One of the reasons why many people voluntarily go into terrorism and banditry is to vent their grievance against the system. It could be the political or economic system. Peter Tosh, a Reggae artist in his song ‘Justice’ said that asking for peace where there is no justice is needless

<footnote n="28">28 JC Akogwu ‘From terrorism to banditry: Mass abductions of schoolchildren in Nigeria’ Accord 19 August 2022 https://www.accord.org.za/conflict-trends/from-terrorism-to-banditry-mass-abductions-of-schoolchildren-in-nigeria/ (accessed 14 September 2022).</footnote>

<footnote n="29">29 Politics and lifestyle, ‘Check out the 15 differences between terrorists and bandits as highlighted by Senator Sheu sanni’, https://ng.opera.news/ng/en/politics/18 (accessed 13 September 2022).</footnote>

<footnote n="30">30 As above.</footnote>

<footnote n="31">31 As above.</footnote>

<footnote n="32">32 As above.</footnote>

<footnote n="33">33 See Politics and lifestyle, ‘Check out the 15 differences between terrorists and bandits as highlighted by Senator Sheu sanni’ https://ng.opera.news/ng/en/politics/18 (accessed 13 September 2022).</footnote>
and that once there is justice, every crime present in the society will vanish in a short while. It has been shown that many young people who leave Europe to fight as insurgents are youths who for one reason or the other, are unhappy with the governments.<fnref n="34" /> For this group, there are no economic considerations, but a chance to avenge a perceived injustice.

For some others, it is because they are disillusioned and have lost self-belief, confidence and courage. Consequently, they are constantly in search of what will fill the void of self-esteem and lack of courage.<fnref n="35" /> This is one of the reasons why many youths join cult groups too. They are in search of self-esteem, security and protection.

Some people join terrorists and bandits mainly for economic gains. Some see it as a way of catering for their families and meeting personal needs. A research conducted in Somalia showed that those recruited into terrorist organisations particularly from the local communities join them mainly for economic benefits. 27 per cent of the respondents said they joined al Shabab for financial reasons. 15 per cent said their reason was religious and 13 per cent said they were forced into it.<fnref n="36" />

For yet others, the only motivation is the belief God-imposed a duty to defend their religion against other religions or influences considered taboo or alien to the terrorists' religion.<fnref n="37" /> The quest for power and control forms the basis for why some other persons venture into terrorism. A typical case is the situation in Afghanistan where the terror groups have indulged in and fought for control of the country for decades and finally succeeded in what is currently referred to as the rule of terrorists in the country.

## 1.4 Types/forms of terrorism

Study subjects like terrorism are better classified based on observed typologies.<fnref n="38" /> One of the popular bases for classification recognises three basic types of terrorism namely: revolutionary terrorism, sub-revolutionary terrorism, and establishment terrorism. Although this

<footnote n="34">34 See https://balkaninsight.com/2024/10/14/reversing-youth-exodus-from-western-balkans-will-be-hard-report-warns/ (accessed 20 October 2024), https://youth.europa.eu/news/eu-youth-strategy-2019-2027-proves-effective-addressing-young-peoples-concerns_en (accessed 20 October 2024).</footnote>

<footnote n="35">35 T Hartsoe 'Why people join terrorist groups' *Duke Today* 23 January 2018 https://today.duke.edu/2018/01/why-people-join-terrorist-groups (accessed 13 September 2022).</footnote>

<footnote n="36">36 European Institute of Peace, 'why do people join terrorist organisations?' 29 June 2015 https://www.eip.org/why-do-people-join-terrorist-organisations/ (accessed 13 September 2022).</footnote>

<footnote n="37">37 SB Grant 'The understanding of evil: a joint quest for criminology and theology' in R Chairs & B Chilton (eds) *Star Trek visions of law & justice* (2003).</footnote>

<footnote n="38">38 G Martins 'Types of terrorism' available at https://www.researchgate.net/publication/316220694 (accessed 28 August 2022). Terrorism typologies refer to shared characters or traits exhibited by the terror groups involved in these violent crimes.</footnote>
classification has been challenged, it is helpful in the understanding
and evaluation of terrorism.<fnref n="39" />

Revolutionary terrorism is the most common form of terrorism. Here the terrorists' goal is the complete abolishment of the political order and to replace the same with the system that agrees with the ideology.<fnref n="40" /> Sub-revolutionary terrorism is not so common.<fnref n="41" /> The terrorists here do not seek a total change or abolishment of the existing system or order, but a modification. An example of this type of terrorism is the case of ANC and its campaign to end apartheid in South Africa which was tagged terrorism by the white rulers.

Establishment terrorism also referred to as state or state-sponsored terrorism is used by governments — or more often by factions within a conflicting system of government.<fnref n="42" /> One clear feature of establishment terrorism, unlike others, is secrecy. Governments that perpetuate this type of terrorism, keep their plans away from their citizens to avoid regional and international sanctions.<fnref n="43" />

There is another popular typology which deals with the classification of terrorism by their operational level rather than their goals.<fnref n="44" /> Under this heading, there are mainly four types of terrorism and banditry namely: State-sponsored terrorism, dissident terrorists, international terrorists, and terrorism for religious purpose.<fnref n="45" />

**1.5 Africa's active terror groups and their country distributions**

It has been posited that across the African continent, there are 21 terror groups with presence in 54 countries that are very active with well published activities, namely:

Al-Qaeda in the Islamic Maghreb (AQIM), Ansaroul Islam, Jamaat Nusrat Al-islam Wal Muslimeen, the Movement for Monotheism and Jihad in West Africa (MUJAO), Islamic State in the Greater Sahara, Boko Haram, Islamic State West Africa, Okba Ibn Nafaa Brigade, Shabab Al-tawhid, Soldiers of the Caliphate, Ansar Al-Sharia (Derna), Ansar Al-Sharia (Benghazi), Wilayat Barqa, Wilayat Fezzan, Wilayat Tarabulus, Ansar Bait

<footnote n="39">39 As above.</footnote>

<footnote n="40">40 J Fallows, P Bergen, B Hoffman & S Simon 'Al Qaeda then and now' in KJ Greenberg (ed) *Al Qaeda now: understanding today's terrorists* (2005) 3-26.</footnote>

<footnote n="41">41 PS Fosl 'Anarchism and authenticity, or why SAMCRO shouldn't fight history' In G A Dunn & JT Eberl (eds) *Sons of anarchy and philosophy: brains before bullets* (2013) 201-214.</footnote>

<footnote n="42">42 AH Cordesman *Terrorism, asymmetric warfare, and weapons of mass destruction: defending the US homeland* (2002) referred to by Martins (n 38).</footnote>

<footnote n="43">43 As above.</footnote>

<footnote n="44">44 See 'Terrorism' referred to by Nicole Gutierrez, available at https://www.fbi.gov/investigate/terror (accessed 27 August 2022).</footnote>

<footnote n="45">45 N Gutierrez 'Four types of terror 1' available at https://www.academia.edu/41467283/FOUR_types_of_terror_1 (accessed 30 August 2022).</footnote>
Al-Maqdis, Al Shabaab, Islamic State in Somalia, Al Hijara, Al Muhajiroun, Jahba East Africa.⁴⁶

The above terror groups and their country distributions are as shown in the distribution map below with the exception of Mozambique where the complexity of the conflict has made it difficult to identify others apart from the main ISIS-Mozambique, also known as al-Shabaab:⁴⁷

<figure><img src="image_9.png" /></figure>

46 Africa Centre for Strategic Studies referred to by Bridget Boakye, 'Terrorism in Africa: 21 active militant groups on the continent in 2018' https://face2faceafrica.com/article/terrorism-in-africa-21-active-militant-groups-on-the-continent-in-2018 (accessed 30 August 2022).

47 See The Global Terrorism Index: https://www.economist.com/middle-east-and-africa/2022/03/05/the-worlds-centre-of-terrorism-has-shifted-to-the-sahel (accessed 20 October 2024); The United Nations Counter-Terrorism Office: https://www.un.org/counterterrorism/ (accessed 20 October 2024).
## 2 BOYS AND MEN AS VICTIMS OF TERRORISM AND BANDITRY

Among writers, there has been a consensus on violence targeted at a particular gender,<fnref n="48" /> evidence exists that men and women have been specifically selected as targets of terrorism because of their gender for various reasons.<fnref n="49" /> For example, reports have shown that men and boys have been murdered in their numbers, females and even girl children have been the victims of terrorism and banditry too,<fnref n="50" /> and both genders have come face to face with gender based violence.<fnref n="51" /> The question therefore is why are terrorists and bandits choosing boys and men as victims of their crimes? Some of the reasons are as follows.

Enemy boys and men can be selected for abuse and terror attacks as a way to end the group's heritage and future.<fnref n="52" /> Boys and men can also be targeted by terror groups in an attempt to leave the entire population vulnerable, weak and defenceless against future attacks and to make eventual total take-over of the affected territory less combative.<fnref n="53" /> Using this approach, terrorist groups have taken over several territories with the men and male children annihilated, leaving no room for any revolt in the nearest future. The women and girls are at the mercy of such terror groups.<fnref n="54" />

Another reason why boys and men may be specifically targeted by terrorists is to immortalise the legacy of the terrorists by raising generations of terrorists after them. With this philosophy in mind, terrorists embark on kidnapping and forced recruitments of boys and young men.

Teens are particularly vulnerable to this approach of extremists using mails that promise to meet a variety of needs by the young ones it is targeted at. It could be financial, psychological, or religious needs. ISIS and al-Qa'ida have repeatedly adopted this method of recruitment to woo minors using online platforms. For instance, in the month of October 2018 al-Abd al-Faqir Media Foundation, a pro-ISIS media

<footnote n="48">48 A Berko & E Erez 'Gender, Palestinian women, and terrorism: women's liberation or oppression?' (2017) 30 *Studies in Conflict & Terrorism* 511.</footnote>

<footnote n="49">49 A Speckhard & K Akhmedova 'The new Chechen jihad: militant wahhabism as a radical movement and a source of suicide terrorism in post-war Chechen society' (2006) 2 *Democracy and Security* 110.</footnote>

<footnote n="50">50 EC Gentry & L Sjoberg *Beyond mothers, monsters, whores: thinking about women's violence in global politics* (2015) 2.</footnote>

<footnote n="51">51 As above.</footnote>

<footnote n="52">52 T Agara 'Gendering terrorism: women, gender, terrorism and suicide bombers' (2015) 5 *International Journal of Humanities and Social Science* 116.</footnote>

<footnote n="53">53 A Schmid & A Jongman *Political terrorism* (1988) 53; J Poland *Understanding terrorism: groups, strategies, and responses* (1988).</footnote>

<footnote n="54">54 G Ammerdown 'Rethinking security: a discussion paper' (2016) https://www.rethinkingsecurity.org.ukCurott (accessed 1 September 2022).</footnote>
outfit — launched its first Arabic-language magazine titled ‘Youth of the
Caliphate’, aimed at young supporters who may share ISIS ideology.<fnref n="55" />

The next question to be answered is how are boys and men victims of terrorism? These can happen in several ways, namely: through targeted elimination or annihilation by terror groups. This can be done with several reasons in mind as explained earlier. The second way in which men and boys can and have become victims of terrorism is through forced recruitment into terror armies. There have been stories about many terrorists confessing upon arrest that they were coerced into the terror groups at the risk of being killed. A report titled ‘How Boko Haram is Forcefully Recruiting Cameroonian Boys’<fnref n="56" /> showed how militants of the dreaded Boko Haram group snatch young boys in Cameroon, from across the border with Nigeria, to force them into the sect. According to the report, numerous villages in the area were cleared out and schools torched by the terrorists even despite the presence of security operatives. Some residents recounted how Boko Haram raided villages during the daytime. Indoctrination is a strong tool at the hands of the terrorists against their coerced victims.<fnref n="57" />

In furtherance of its position against terrorism, the International Criminal Court in the Hague has proscribed the engagement of minors particularly persons who have not attained the age of 15 into the army or making them engage in armed conflict as a crime. The UN Convention on the Rights of the Child provides that all parties should ensure to guide against the engagement or combat use of minors.<fnref n="58" /> The above position notwithstanding, the recruitment of boys and men into terror groups have continued unabated. One of the ways by which this is done is by deceiving their victims into believing that they are going for Islamic training.<fnref n="59" /> Evidence showed that between 2005 and 2020,

<footnote n="55">55 Joint Counter Terrorism Team ‘Involvement of minors in acts of terrorism’, available at https://www.dni.gov/files/NCTC/documents/jcat/firstr corresponders toolbox/62us--Involvement-of-Minors-in-Terrorist-Plots-and-Attacks-Likely-To-Endure-survey.pdf (accessed 30 August 2022).</footnote>

<footnote n="56">56 http://img.naij.com/n/03/8/cameroon_bir.jpg (accessed 1 September 2022).</footnote>

<footnote n="57">57 As above.</footnote>

<footnote n="58">58 A Al-Bahri 'How terror group recruits and lures children to specialized fighting camps' https://abcnews.go.com/International/terror-group-recruits-lures-child ren-specialized-fighting-camps/story?id=24430928 (accessed 1 September 2022).</footnote>

<footnote n="59">59 'When I arrived at the camp, fighters and religious teachers from the organization supervised our training' Mohammed says. 'The training was divided into two parts. In religious classes, they taught us their version of Islam, the extremist methods they follow, and the necessary foundations of creating an Islamic caliphate state – their ultimate goal. They also try to convince us of jihadist ideology, like the greatness of martyrdom.'</footnote>

<footnote>The second part of training is for combat. 'They trained us very harshly,' he said. 'They trained us to deal with being tired and to face hardship. They also trained us to use arms'. Yasser's father said officials from the militant group had tricked him into bringing his son to the camp by telling him it was merely for studying the Quran and foundations of Islam. But when his son arrived, 'It turned out to be a camp to recruit children to be a new generation of extremists. They were trying to prepare children to carry out martyr bombings on behalf of the organization. I did not accept that and tried to pull Yasser out of the camp, but they refused and</footnote>
more than 93 000 children were recruited into all kinds of armed groups including terror groups.<fnref n="60" />

# 3 THEORIES OF TERRORISM

## 3.1 Political theory

Under this theory, the main consideration for the terrorist groups is the quest to gain political power or control over territories.<fnref n="61" /> A ready example is the case of Afghanistan where the militants fought the US and its incumbent government with the aim of wresting power from them and achieved it in 2021 with the exit of American forces. The militants currently run the government of the country with tails of woes.<fnref n="62" />

Many times, terror groups have argued that their decision to take up arms against the government is their way of protesting against misrule and corruption by government officials and undue foreign interest in the natural resources of their countries among others.<fnref n="63" /> It has been argued that Anarchism was the ideology that gave rise to political agitations.<fnref n="64" /> For example, the theory teaches the six steps to undermining the ‘social structure for revolutionary change’.<fnref n="65" /> states: ‘Wipe out the intelligent and the vigorous persons of the society then, abduct the wealthy community for ransom for your financial strength, join the group of politicians and take out their secrets, help the criminals of that society to make your own militants …’ Carlo Pisacane propounded the idea of bombing and using propaganda to achieve political goals. Karl Heinzen and Johann Most on their part consented

prevented me from seeing him. They even threatened to execute me for attempting to prevent jihad.' Abou al-Ghanem, an ISIS fighter who trains children in the camps, says that his organization creates them merely 'to fulfill the duty upon us all to fight the enemy and learn the foundations of jihad and the true teachings of Islam'. He stated further 'We are teaching children who are less than 15 years old how to fight and use arms in order to build a generation of strong fighters who follow the righteous path' he says. 'That's why we created these camps'.

<footnote n="60">60 UNICEF document https://www.unicef.org/protection/children-recruited-by-armed-forces (accessed 1 September 2022).</footnote>

<footnote n="61">61 I Afshan Abbasi & M Kumar Khatwan 'An overview of the political theories of terrorism' (2014) 19 *OSR Journal of Humanities and Social Science* 103-107.</footnote>

<footnote n="62">62 CP Blamires & P Jackson (eds) *World fascism: a historical Encyclopedia Volume 1:A-K* (2006): D Rapoport 'Fear and trembling: terrorism in three religious traditions' (1984) 78 *American Political Science Review* 668-672.</footnote>

<footnote n="63">63 D Rapoport & A Yonah (eds) *The morality of terrorism: religious and secular justification* (1982); G Caforio *Handbook of the sociology of the military, handbooks of sociology and social research* (2006) 12.</footnote>

<footnote n="64">64 A Zalman 'History of terrorism: anarchism and anarchist terrorism, about news' http://terrorism.about.com/od/originshistory/a/Anarchism.htm (accessed 1 September 2022).</footnote>

<footnote n="65">65 M Banuin, quoted by I Abbasi & M Kumar Khatwani in 'An overview of the political theories of terrorism' (2014) 19 *IOSR Journal of Humanities and Social Science* 103-107.</footnote>
to the employment of weapons capable of wrecking massive damage to
lives and property for the same purpose while Claudius Konigstein
agreed with the teaching that innocent persons, crowded places and
economic infrastructures be targeted to achieve a violent revolutionary
goal.<fnref n="66" />

3.2 Economic theory

The position of this theory is that one principal motivation of terrorism is the economic gains. There abound instances where alleged terrorists have confessed that they decided to join the terror groups because they were promised good financial gains which will in turn allow them to take care of their families and meet personal needs. For the proponents of this theory, if the state wants to curb terrorism, it should concern itself primarily with ensuring a good economy and equal economic opportunities for its citizens.<fnref n="67" /> Here, the state should pursue economic policies that are capable of giving the people economic prosperity and sustainable development. While it is the position of this paper that a country's economic state should not be a ground for commission of crime, it is common knowledge that involvement in crime has often been motivated by these factors.

3.3 Religious theory

The link between religious discipline and extremism is a strong one. About half of all the deadly terror sects across the world have religious ideologies.<fnref n="68" /> They see the armed conflict particularly terrorism as a way of homage to God and defending their allegiance. They believe it is jihad (holy war) which they must fight for God and be ready to die for if they truly love and believe in God. To them, it is a demand placed on them by God and for which they shall be rewarded heavily in this world and the world after.<fnref n="69" /> Influenced by this indoctrination that comes through a system of education, they can gladly engage in suicidal terror attacks using bombs and other weapons against other religions and

<footnote n="66">66 Blamires & Jackson (n 62); D Rapoport & A Yonah (eds) *The morality of terrorism: religious and secular justifications* (1982).</footnote>

<footnote n="67">67 J Placzek defines the concept of economic security of a state as '[...] such a state of development of the national economic system that ensures high efficiency of its functioning and the ability to effectively oppose external pressures that may lead to disturbances to its development. It aims to protect economic development'. Vide: J. Placzek, the place and role of economic security in the security system of a state, in: TJemiło, sc. superv., Zarządzanie bezpieczeństwem narodowym [Managing national security], part 1, Warsaw 2006, p. 113.</footnote>

<footnote n="68">68 SB Grant 'The understanding of evil: a joint quest for criminology and theology' in R Chairs & B Chilton (eds) *Star Trek visions of law & justice* (2003).</footnote>

<footnote n="69">69 M Juergensmeyer *Terror in the mind of God: the global rise of religious violence* (2001) 12.</footnote>
governments.<fnref n="70" /> These terrorists see religious secularism, modernisation and westernisation including western education as vices and enemies that must be defeated at all cost. This is the case of Boko Haram in Nigeria and ISIS.

## 3.4 Rational choice theory

From this perspective, terrorism is a calculated violence in pursuit of certain objectives considered rational and justifiable when compared with the risks involved. Terrorism has been known to have some political undertone with goals<fnref n="71" /> including the removal of a regime<fnref n="72" /> or national independence.<fnref n="73" />

## 3.5 Incidents of terror attacks on boys and men across some jurisdictions in Africa

It was reported that Boko Haram insurgents murdered no less than 43 farmers who were working on a rice farm in Maiduguri on Saturday the 28 November 2020. The terrorists bound their victims and slit their throats with knives. 43 dead bodies were recovered, along with six others with fatal injuries. More bodies were recovered later raising the death toll.<fnref n="74" />

A truck bomb attack in Mogadishu capital of Somalia on Sunday the 15 October 2017 claimed at least 500 casualties and over 300 deaths involving mainly men and who were out to fend for their families.<fnref n="75" /> The scale of the attack made it a matter of grave concern and one that the world will not forget in haste.<fnref n="76" />

In Algeria, while the government appears to be doing so much and is fully committed to the fight against terrorism, there are still reports of attacks here and there with casualties. On 14 October 2021, there was a report of the murder of a soldier with use of an improvised explosive device (IED) whilst the soldiers were on patrol duty at Tlemcen. On 6 August 2021, two military men were also murdered with the use of

<footnote n="70">70 S McGraw-Hill ‘Anarchism, terrorism studies and Islamism’ (2010) 1 *Global Discourse* 66-85; see also RB Fowler ‘The anarchist tradition of political thought’ (1972) 25 *Western Political Quarterly* 743-744.</footnote>

<footnote n="71">71 The case of al Qaeda and the USA in Afghanistan.</footnote>

<footnote n="72">72 As seen in Israel.</footnote>

<footnote n="73">73 The Assassination of Lord Mountbatten by IRA, ‘Facts and ...’ https://www.history.com/news/mountbatten... (accessed 1 September 2022).</footnote>

<footnote n="74">74 *The Guardian* online news of 28 November 2020, ‘Boko Haram kill dozens of farm workers in Nigeria’ available at https://www.theguardian.com/world/2020/nov/28/boko-haram-reported-to-have-killed-dozens-of-farm-workers-in-nigeria (accessed 1 September 2022).</footnote>

<footnote n="75">75 *The Guardian* news ‘At least 300 people killed and hundreds seriously injured in attack blamed on militant group al-Shabaab’ https://www.theguardian.com/world/2017/oct/15/truck-bomb-mogadishu-kills-people-somalia (accessed 1 September 2022).</footnote>

<footnote n="76">76 As above.</footnote>
IED while on a mop up duty in Ain Defla. Two soldiers were also killed on 2 January 2021 while on duty at Tipasa and several other reports.<fnref n="77" />

According to a report published in March 2019 by the UN High Commissioner for Refugees (UNHCR)<fnref n="78" /> continuous conflict has resulted in the displacement of about 115 310 persons internally in Burkina Faso alone. The regions most affected include the Sahel, Centre-Nord, Nord, and East regions, where the terrorists have concentrated their attacks. This shows that the impact of terrorism and banditry on boys and men are not just in their coerced recruitment and killing, but in injury and displacement and several other ways.

On 3 June 2022, it was reported that at least 50 persons were killed in an attack linked to al-Qaeda and ISIL (ISIS) in Northern Burkina Faso. The attackers were said to have struck at night in the province of Seno.<fnref n="79" /> Again on 10 June 2022, it was reported that 11 Burkinabe military policemen were murdered in northern Burkina Faso by terrorists after their base came under heavy attack.<fnref n="80" />

In Sudan, on 9 December 2014 it was reported that a gun man later identified as a member of an Islamic militant group referred to as Takfir wal Hijra, walked into the mosque in the village of Garaffa, outside Omdurman, the twin city of the capital Khartoum during prayers, and opened fire on the worshippers using an automatic rifle killing tens of worshipers. He was later killed after all treaties to him to surrender proved abortive.<fnref n="81" /> The Sudanese Prime Minister, Abdalla Hamdok, was said to have survived a terror attack at the capital on 9 March 2020.<fnref n="82" />

There is no recent data of terror attack on Angola.<fnref n="83" /> The last terror attack in Angola appears to be the train attack of 2001 where a train was derailed and 250 persons on the train were killed.<fnref n="84" />

<footnote n="77">77 See UK Foreign Travel Advice, https://www.gov.uk/foreign-travel-advice/algeria/terrorism (accessed 14 September 2022).</footnote>

<footnote n="78">78 UNHCR (March 2019). 'Country operation update - Burkina Faso'. UNHCR available at https://www.hrw.org/report/2019/03/22/we-found-their-bodies-later-day/atrocities-armed-islamists-and-security-forces (accessed 1 September 2022).</footnote>

<footnote n="79">79 *Aljazeera News* 3 June 2022 https://www.aljazeera.com/news/2022/6/13/at-least-50-killed-in-burkina-faso-rebel-attack-government (accessed 14 September 2022).</footnote>

<footnote n="80">80 Sophie Garcia, *Aljazeera News* 10 June 2022, https://www.aljazeera.com/news/2022/6/10/attackers-kill-11-military-police-in-burkina-faso (accessed 14 June 2022).</footnote>

<footnote n="81">81 Global fight against terrorism, 'Gunman kills at least 20 people at Sudan mosque' https://www.gfatf.org/archives/gunman-kills-least-20-people-sudan-mosque/ (accessed 14 September 2022).</footnote>

<footnote n="82">82 Global Fight Against Terrorism, 'Sudan PM says survived terror attack in capital' https://www.gfatf.org/archives/survived-terror-attack-capital/ (accessed 14 September 2022).</footnote>

<footnote n="83">83 UK Gov, 'Foreign travel advice Angola' https://www.gov.uk/foreign-travel-advice/angola/terrorism (accessed 14 September 2022).</footnote>

<footnote n="84">84 As above; Land Mine and Munition Monitor http://archives.the-monitor.org/index.php/publications/display?url=lm/2002/angola.html (accessed 13 September 2022).</footnote>
For banditry, data showed that from 2011 to 2020, persons in Nigeria paid not less than US$18.34 million (7 billion) ransom to bandits for the release of their loved ones.<fnref n="85" /> In the first half of 2021, a total of 2 371 persons were reportedly taken hostage and the sum of about US$23.84 million (N10 billion) demanded for their release in Nigeria.<fnref n="86" /> A latest report has shown that the sum of N653.7 million ($1.2 million) was paid as ransom for kidnapping in Nigeria between July 2021 and June 2022.<fnref n="87" /> Banditry is thriving in Nigeria more than any other African country.<fnref n="88" />

# 4 THE LEGAL FRAMEWORK FOR THE PROTECTION OF BOYS AND MEN IN AFRICA

While one may not be able to point to a law that specifically designed in its entirety to solely protect boys and men against terrorism and banditry in Africa, there are laws whose provisions protect boys and men across various jurisdictions. These include the bill of rights in national constitutions, national, regional and international human rights instruments, and the African Youth Charter among others. Additionally, there are laws with general provisions for the protection of citizens against terrorism and banditry. For example, the Anti-Terrorism Act of Uganda,<fnref n="89" /> the Somalian Anti-Money Laundering and Countering the Financing of Terrorism Act,<fnref n="90" /> Burkina Faso's Repression of Acts of Terrorism,<fnref n="91" /> the Nigerian Terrorism (Prevention) Act 2022 and other legislations against terrorism in Africa, all have general provisions protecting citizens including boys and men. The laws all made general provisions for the protection of the citizens of each country against acts of terrorism. We shall proceed to consider some of the laws with provisions protecting boys and men against violent crimes and recruitment into armies and armed conflicts.

<footnote n="85">85 SBM Intelligence 2020, 'The Economics of the Kidnap Industry in Nigeria, Lagos', https://www.sbmintel.com/wp-content/uploads/2020/05/202005_Nigeria-Kidnap.pdf (accessed 14 September, 2022).</footnote>

<footnote n="86">86 U William 'Insecurity: N10 billion demanded in kidnapping ransoms in H1 2021-SBM', Naira Metrics, 12 July 2021, https://nairametrics.com/2021/07/12/insecurity-n10-billion-demanded-in-kidnapping-ransoms-in-h1-2021-sbm (accessed 14 September 2022).</footnote>

<footnote n="87">87 D Daniel 'Kidnapping grows as Nigerians pay N650 million ransom in 1 year' https://www.naijaloaded.com.ng/news/kidnapping-grows-as-nigerians-pay-n650-million-ransom-in-1-year (accessed 13 September 2022).</footnote>

<footnote n="88">88 CA Odinkalu 'Banditry in Nigeria - a brief history of a long war' International Centre for Investigative Reporting 27 December 2018 https://www.icir.nigeria.org/banditry-in-nigeria-a-brief-history-of-a-long-war/ (accessed 14 September 2022).</footnote>

<footnote n="89">89 Anti-Terrorism Act of Uganda 2002.</footnote>

<footnote n="90">90 Anti-Money Laundering and Countering the Financing of Terrorism Act, 2006 of Somalia.</footnote>

<footnote n="91">91 Repression of Acts of Terrorism 2015 of Burkina Faso.</footnote>
4.1 The United Nations Convention on the Right of the Child

The United Nations Convention on the Right of the Child (the Convention) was adopted and opened for signature, ratification and accession by the General Assembly Resolution 44/25 of 20 November 1989. It entered into force on 2 September 1990 in accordance with the provision of article 49.

Article 1 of the Convention defines a child to mean ‘every human being below the age of 18 years’. This definition accords with the position under the Nigerian Child Rights Act and that of other African countries.

Article 3 of the Convention provides that ‘in all actions in relation to a child in any member state the best interest of the child shall be primary consideration’.<fnref n="92" /> Article 6(1) provides that ‘States Parties recognise that every child has the inherent right to life’. Article 6(2) provides for the ‘child’s right to survival’. Consequently, any act of terrorism or banditry that negatively impacts a child’s right to life and survival is a violation. Article 9(1) states:

> States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

This Article serves to protect the child against any act including terrorism and banditry that is capable of causing an unlawful separation between the minor and his/her parents.

Article 13(1) envisages a situation where a child is kept in custody on the allegation of wrongs and provides that the child must be given right to fair hearing before any decision is taken.

Apart from the right to fair hearing discussed above, the child by virtue of articles 14, 15, 16 and 17, is guaranteed the rights to freedom of thought and religion, right to peaceful assembly, right to private and family life. All these serve to protect the child from all forms of violent acts or crimes. Specifically, article 19(1) protects the child against all forms of physical or mental violence, exploitation, abuse and injury.<fnref n="93" /> Taking this further, article 38(3) provides against the recruitment of

<footnote n="92">92 Art 3 specifically states: 'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'.</footnote>

<footnote n="93">93 It provides: 'States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child'.</footnote>
children below the age of 15 into the armed forces by states. The article
provides:

States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. In recruiting among those persons who have attained the age of 15 years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

This provision aligns with the position of the International Criminal Court stated earlier. The direct implication of this is that the engagement of minors by terror groups and bandits is a violation of this Convention.

## 4.2 African Charter on the Rights and Welfare of the Child

The African Charter on the Right and Welfare of the Child was adopted in Addis Ababa, Ethiopia, in July 1990, and became effective on 29 November 1999. The Charter is a working document among African nations. By virtue of article 1, the Charter places responsibility on all parties to do all within their constitutional powers to protect the child in their various states.

Just like the UN Convention on the Right of the Child, the Charter defines a child in article 2 as ‘... every human being below the age of 18 years’. Article 4 affirms that ‘the best interests of the child shall be the primary consideration’ when dealing with any issue involving a child. This provision runs through virtually all statutory documents on ‘the right of the child’ across the world.

Article 22(1)-(3) seeks to protect the child from every form of armed conflict. It frowns at the recruitment of children into the army or any armed conflict. This necessarily will include terror groups and banditry.

Articles 27 and 28 protect the child from ‘sexual and drug abuse’. In other words, no child should be subjected to any form of sexual and drug abuse. These are common habits of terrorists and bandits who recruit children into their groups.

## 4.3 The Child Rights Act 2003

This is a Nigerian legislation on the rights of the child. The Act opened in section 1 with a categorical provision to the effect that in all situations when an action is to be taken in relation to a child, ‘the best interest of the child shall be the consideration’.<fnref n="94" />

<footnote n="94">94 See sec 1 of the Act which states: 'In every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration'.</footnote>
Section 3 of the Act applies the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to the Child Rights Act and every child. This means that every child in Nigeria is entitled to all the rights enshrined in chapter 4 of the Constitution. This is a laudable provision shared by this Act with the UN Convention on the Right of the Child and the African Charter on the ‘Right and Welfare of the Child’. In addition, section 4 bestows on every child the right to survive and develop.

Sections 21-23 of the Act prohibit child marriage or betrothal of any kind. This is another protection of the child both male and female from being forced or coerced into such unions like we see and read about terrorist organisations who forcefully marry out minor captives who are then subjected to all kinds of sexual abuses like the case of Chibok girls who returned from captivity with babies and pregnancies.

Section 26(1) and (2) of the Act titled ‘Use of children in other criminal activities’ provides:

No person shall employ, use or involve a child in any activity involving or leading to the commission of any other offence not already specified in this Part of the Act. A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to imprisonment for a term of fourteen years.

This is an outright criminalisation of the recruitment of children whether boys or girls into any criminal act including terrorism and banditry. Section 34 prohibits the recruitment of children into the army.⁹⁵ Section 27 went on to criminalise the removal of any child from the lawful custody of his/her parents with various sanctions depending on the intention of the criminal.

## 4.4 Legal framework for the protection of men against terrorism and banditry in Africa

As stated earlier, a study of the anti-terrorism laws of African countries show that there are no laws with specific provisions protecting men against terrorism and banditry. However, the laws of the various African states on terrorism and other violent crimes have provisions for the protection of the citizens generally. The provisions of the laws notwithstanding, men and children have continued to be forcefully recruited by various terrorist groups. Many of these forcefully recruited men and children have been killed by either the terrorists, bombs strapped to their bodies or as a result of confrontation with state forces.

The Act in article 7 punishes acts of terrorism with imprisonment for life. Article 14(7) criminalises the recruitment outside of the authority of the state to form armed groups other than the army and police. This Article can be taken to protect boys, girls, men and women against being recruited into any terror group in the country. It is the
argument of this paper that the capital punishment imposed by article 7 will serve the purpose of deterrence in the fight against terrorism and banditry.

The Uganda Anti-Terrorism Act, 2002 passed on 21 May 2002, which took effect on 7 June 2002, provides insight into this discussion. The law in an attempt to curb terrorism imposes sanctions on anyone who publicly professes, instigates, supports, finances or executes acts of terrorism. The law also imposes sanctions on anyone who convenes or attends any meeting intended to serve a terrorist purpose. To this effect, the law authorises the interception of the correspondence of and the surveillance of persons suspected to be involved in acts of terrorism.

Consequently, section 7 punishes terrorism with the death penalty. The jurisdiction of the court is as defined in section 4 of the Act. The second schedule to the Act proscribes ‘the Lords’ Resistance Army, the Lords’ Resistance Movement, Allied Democratic Forces and Al-qaeda’ as terrorist organisations in the country.

Legislation in Nigeria is the Terrorism (Prevention and Prohibition) Act, 2022. Section 1 of the Act set out its objectives in paragraphs (a) to (f). Sections 11-24 of the Act spells out the various acts that amount to terrorism and their sanctions ranging from 20 years imprisonment to death depending on whether death occurred in the course of the crime.<fnref n="96" />

Noticeably, section 24(1) and (2) provides: The implication of the above is that hostage taking which is a crime of both terrorists and bandits is also punishable under the Act.<fnref n="97" />

In our opinion, seeking special legal protection for women and children (boys and girls) against terrorism and banditry, seem logical, but to argue that men especially the healthy and strong deserve any special legal protection against terrorism and banditry other than what is provided generally in the law, will amount to begging the question of legal protection. How can such an argument fly in the face of the contest that terrorists and bandits are usually men?<fnref n="98" /> Our study showed that despite the efforts of the International Criminal Court and the UN's Convention on the rights of the child, none of the legislations has any particular provision to protect the children and women. The Terrorism (Prevention) Act,<fnref n="99" /> (just like the laws across the other jurisdictions), made various provisions with respect to terrorism including hostage taking in line with section 24 pointed out earlier.<fnref n="100" />

<footnote n="96">96 See secs 11 to 23 of the Act.</footnote>

<footnote n="97">97 By virtue of sec 2, where death occurred in the course of the hostage taking, the crime shall be punishable with death.</footnote>

<footnote n="98">98 M Melnick ‘Why are terrorists so often young men?’ https://www.huffpost.com/entry/terrorists-men-violent-biology-boston-marathon_n_3117206 (accessed 1 September, 2022) See also T Tsarnaev ‘Why are terrorists so often men?’ available at https://www.salon.com/2013/04/25/why_are_terrorists_so_often_men/ (accessed 1 September 2022).</footnote>

<footnote n="99">99 Terrorism (Prevention) Act 2011.</footnote>

<footnote n="100">100 Sec 11. This section deals directly with instances of banditry as we have it today in Nigeria and across other African countries. This provision further buttresses our</footnote>
Despite the existing legal frameworks, governments of various countries in Africa are working using administrative instruments to equally combat the scourge of terrorism and banditry across Africa. Their efforts include the purchase of more weapons in the fight against these crimes, training and retraining of officers fighting these crimes, gathering of community intelligence etc. While countries like Angola, South Africa, Libya and a host of others affected by terrorism and banditry appear to be doing so much and recording successes, the same may not be said of the Nigerian government which has been accused severally of complacency on the issue of terrorism and banditry in Nigeria.<fnref n="101" /> The truth is that Nigeria needs to do much more to truly defeat insurgency.

5 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

This paper finds that boys and men are direct victims of terrorism and banditry across African states either as persons killed, injured or rendered orphans and widowers or victims by way of coerced recruitment into terrorism and banditry.<fnref n="102" /> 11,000 men were reported killed in Zamfara state by armed bandits alone as at the first quarter of 2019. Several women were widowed due to the killing of their husbands, who served as the breadwinners of their families.<fnref n="103" /> It is our finding that despite the precarious position of boys with respect to terrorism and banditry there is no particular legal protection for them against the crimes the stand of the International Court of Justice and United Nations notwithstanding.

It further finds that there are a number of factors that fuel terrorism and banditry across Africa. Such factors include bad governance, external political influence, bad or poor economy, brazen corruption by leaders, religious extremism and indoctrination among others,

argument earlier that banditry which is akin to hostage taking is a shade or arm of
terrorism. Evidence has shown from the accounts of victims of banditry or
kidnapping that just like the terrorist, the bandits/kidnappers are usually armed
with sophisticated weapons, kill, destroy properties of their victims like cars and
gadgets, threaten and have severally told their victims that they are terrorists from
one camp or the other.

<footnote n="101">101 US Department of States ‘Country reports on terrorism 2020: Algeria’ https://www.state.gov/reports/country-reports-on-terrorism-2020/algeria/ (accessed 15 September 2022), see also Tony Nyiam ‘Why Nigerian armed forces can’t fight terrorism’ *Vanguard News* 8 August 2020 https://www.vanguardngr.com/2020/08/why-nigerian-armed-forces-cant-fight-terrorism-tony-nyiam/ (accessed 1 September 2022).</footnote>

<footnote n="102">102 International Crisis Group ‘Violence in Nigeria’s north west: rolling back the mayhem’ 18 May 2020, referred to by JS Ojo and others ‘Forces of terror: armed banditry and insecurity in North-west Nigeria’ (2023) 19 *Journal of Democracy and Security 4*.</footnote>

<footnote n="103">103 *The Punch*, Bandits killed 11 000 men, orphaned 44 000 in Zamfara-Marafa, 6 May 2019; *PM News* 2019. ‘Zamfara under pressure from bandits for more than 10 years – SSG’ 25 April 2019.</footnote>
This article examines the concept of terrorism and banditry and how they affect boys and men in Africa considering the strategic roles that boys and men play in the safety and perpetuation of societies. The various theories of terrorism and banditry were examined along with the legal framework on the subject matter. The paper argued that there are no specific legislations solely dedicated to the legal protection of boys and men against terrorism and banditry in Africa. This, the article posits, is rightly so because the existing legislations and conventions have provisions for the protection of citizens (including boys and men) against terrorism and banditry. The paper further argued that while there may be no particular need for any special provision in our laws to protect boys and men against terrorism other than the general provisions in the law, the position of the International Court of Justice and the United Nations calling for heavier sanctions for persons who recruit or encourage the recruitment of minors into terrorist groups or as bandits should be adopted by all African countries and reflected in the laws.

Towards better legal protection of boys against acts of terrorism and banditry, this article makes the following recommendations:

Rather than the current situation in which governments across Africa are negotiating with terrorists and bandits or criminals which step is unrealistic and only temporary, the governments should ensure that the illiterate citizens are educated, and that jobs are created to engage the unemployed youths. This follows the backdrop that illiteracy and youth unemployment coupled with poverty have been at the centre of banditry and terrorism. Here in Nigeria, we have heard the accounts of young men who are recruited into banditry and terrorism with a promise of what an average citizen will consider ridiculous. The victims have taken such offers and have become tools for hostage taking and wanton destruction of lives and properties. Some suspects who have been caught have confessed to receiving as low as N20 000 for their involvement in banditry.

As aptly suggested by the International Court of Justice and the United Nations, there should be copious provisions in the laws across Africa to impose heavier sanctions on persons who recruit or encourage the recruitment of minors into terrorism and banditry or any criminal set whatsoever. It is the belief of this paper that heavier sanctions will serve the purpose of deterrence and discourage those who are planning to go into banditry or terrorism. African states must be seen to be serious and intentional about curbing the scourge of banditry and insurgency without any element of political colouration. African leaders need courage, equity and fairness as some essential steps that are needed to be taken to end the glaring security challenges in the nation.

This article further recommends that the intentional neglect of borders, towns or communities in the provision of socio-economic infrastructures should be replaced with actual development of the communities and effective security presence and occupation along the
borders and forests and reserves. As posited by John Sunday Ojo and others¹⁰⁴ weak border security and the existence of ungoverned spaces have contributed to the rise of banditry and insurgency in Africa. The governments must ensure that no part of their territories including forests is left in the hands of bandits and terrorists. There should be constant security patrol along the borders. There should be provision of security around schools knowing fully well that they have become soft targets for both terrorists and bandits to either make a statement or raise money from ransom. The governments across Africa should have verifiable security plans for the protection of lives and properties which are the basic responsibilities of any government.

Governments in Africa should address the issues of injustice by strengthening the administration of the justice system. This way, citizens will have more confidence in the systems and desists from self-help as a means of addressing injustice. Lately in Nigeria, the politicians have become so emboldened and quick to ask citizens who complain of injustice in the electoral system to go to court. Many have argued that this is so because the politicians have compromised the judiciary. This accounts for why the judiciary has lost the trust of the people who have resorted to self-help in many instances or forget about the matter all-together. This does not work any good for a state as it will encourage all forms of unrest including banditry and insurgency.

The governments should ensure the constant training and retraining of the officers engaged in the fight against insurgency and banditry. The Law enforcement agencies should be encouraged to engage in more detailed community intelligence gathering to help frustrate attacks rather than the current reactive measures. From the experience here in Nigeria, our law enforcement agents are more reactive than preventive in their fight against banditry and insurgency. The place of intelligence gathering in curbing banditry and insurgency cannot be overemphasised. The welfare of the security agents involved in the fight against banditry and terrorism should equally be taken seriously by the government officials and the heads of the various security agencies.

There should be state policies and legislations monitoring religious institutions and their teachings to guide against indoctrination and extremist tendencies. Drawing inspiration from Kenya, religious institutions should be regulated by the government to guide against indoctrination of its adherents. One recalls that what is today known as Boko Haram insurgency in Nigeria, started as a religious gathering organised by a self-acclaimed Islamic cleric who used the illiteracy and poverty of the people who gullibly followed him to indoctrinate them. Religion has become a tool used for recruiting unsuspecting adherents into crime and it should be checked. The governments of various African states should develop strategies and programmes that will disarm terrorists and change their ideologies without necessarily offering them amnesty. The current practice where terrorists are given amnesty and even recruited into the military as we see in Nigeria, is not
safe for national security. There should be well intended programmes targeted at reorienting arrested terrorists and a massive campaign against the crimes in the domains where they are perpetuated to discourage others from joining the crime.

African leaders should evolve themselves and be given to good governance. They should shun the attitude and quest to remain in power till death and encourage youth participation in government across board. The unbridled quest by African leaders to remain in office till death has led to various uprising and security threats in the continent. African leaders should learn to respect the constitutions of their various countries and ensure smooth transitions whenever their tenure laps.

Negotiation and payment of ransom to bandits and terrorists should be criminalised across Africa. This recommendation is coming on the hills of the fact that banditry is growing daily across Africa because of the payment of ransom. It has been repeatedly shown that the payment of ransom to bandits and terrorists has further enhanced their operations and given them access to more alms. It has equally led to the rising of other groups of terrorists and bandits who now see the crimes as highly profitable ventures. In Nigeria, banditry and hostage taking is on the rise because of the humongous ransoms that are paid to bandits on daily bases. Several bandits suspects have confessed that they formed their own kidnapping gangs when they were told of the amounts being collected as ransoms by other groups and the ease with which the ransoms are collected.

Governments across Africa should be bold to proscribe any criminal groups using the modus operandi of terrorists like the bandits in Northern Nigeria. In Northern Nigeria, there are various groups overseeing and levying several communities. They dictate to the farmers when the farmers can go to their farms and when they should remain indoors. They charge various sums and until they are paid, such communities are held under siege. The same thing applies in South Eastern Nigeria where some militias have designated Monday as a sit-at-home day and those who go out to work have been killed and maimed. Several law enforcement agents have been killed without provocation. It is the position of this paper that the government should have no difficulty whatsoever designating such groups as terrorist organisations.
Exploring the potential of the dominance
feminist approach in interpreting socio-
economic rights in the Maputo Protocol

Anneth Amin*

https://orcid.org/0000-0002-4626-5827

**ABSTRACT:** Africa's women have continued to be victims of violations of their rights including socio-economic rights simply by being women. The Maputo Protocol entrenches, among other rights, a comprehensive set of socio-economic rights. Though this inclusion is commendable, interpreting these rights plays a significant role in engendering them and eliminating discrimination against women. A general argument has been made for teleological interpretation of the Maputo Protocol, as it is with other human rights instruments. Considering that the Maputo Protocol is a specific treaty for women's rights, this article argues for a teleological interpretation of the socio-economic rights that integrates a gender perspective for effective protection and engendering of these rights. The article explores the potential of the dominance feminist approach for a gendered teleological interpretation. The article shows that the dominance approach is not alien to the Maputo Protocol; it is included in the Protocol's objective and purpose, socio-economic rights provisions, and other related provisions. Moreover, the article shows that the dominance feminist approach gels with substantive equality entrenched in the socio-economic rights provisions. The article also develops a methodological model for the proposed gendered teleological interpretation.

TITRE ET RÉSUMÉ EN FRANÇAIS

Repenser l'interprétation des droits socio-économiques: l'apport d'une
approche féministe dans le cadre du Protocole de Maputo

RÉSUMÉ: Les femmes africaines continuent de subir des violations de leurs droits, notamment socio-économiques, en raison de leur statut de femmes. Le Protocole de Maputo garantit un éventail complet de droits socio-économiques, mais leur pleine réalisation dépend largement de l'interprétation qui en est faite. Si une interprétation téléologique est généralement préconisée pour les instruments relatifs aux droits de l'homme, cet article soutient qu'une approche téléologique spécifiquement basée sur le genre est essentielle pour garantir l'effectivité des droits consacrés par le Protocole de Maputo et pour éliminer les discriminations systémiques à l'égard des femmes. Cet article examine le potentiel de l'approche féministe de la dominance comme cadre pour une interprétation téléologique genrée des droits socio-économiques dans le Protocole de Maputo. Il démontre que cette approche est intrinsèquement alignée avec l'objectif et le but du Protocole, notamment en ce qui concerne les dispositions sur les droits socio-économiques et les principes connexes. L'analyse révèle également que l'approche féministe de la dominance concorde avec le concept d'égalité matérielle inscrit dans le Protocole,

<footnote>* LLB (Hons) (University of Dar-es-Salaam, Tanzania), LLM and LLD (Stellenbosch); Lecturer in Law, Institute of Judicial Administration – Tanzania; annethmnzava11@gmail.com</footnote>
favorisant ainsi une interprétation qui transcende les inégalités structurelles et les formes de domination patriarcale. Enfin, l'article propose un modèle méthodologique pour guider l'application d'une interprétation téléologique genrée dans le cadre des droits socio-économiques.

**KEY WORDS:** dominance feminist approach; socio-economic rights; Maputo Protocol; teleological interpretation; substantive equality

**CONTENT:**

1 Introduction ..................................................................................................................29

2 Theoretical framework for a thorough understanding of socio-economic rights lived reality of Africa's women ..................................................................................................................32

2.1 Concrete socio-economic rights lived reality of Africa's women ..................................................32

2.2 Dominance feminist approach ..................................................................................................................35

2.3 Teleological interpretation ..................................................................................................................40

2.4 Substantive equality ..................................................................................................................43

2.5 Application of the dominance-oriented teleological interpretation: methodological model ..................................................................................................................45

3 Analysis of selected socio-economic rights in the Maputo Protocol in light of the dominance-oriented teleological interpretation ..................................................47

3.1 Right to marriage..................................................................................................................48

3.2 Right to education and training ..................................................................................................................51

3.3 Right to health including sexual and reproductive health .................................................................54

4 Conclusion..................................................................................................................................................57

# 1 INTRODUCTION

Equality of access to, and enjoyment of socio-economic rights is vital for socio-economic development and power of both genders in Africa. However, women are culturally marginalised and systematically denied socio-economic power and intellectual recognition.<fnref n="1" /> It is a regrettable reality that the mere fact of being a woman implies various degrees of discrimination in these matters essential to life.<fnref n="2" /> Women's ability to access socio-economic rights is also shaped by the gendered nature of social institutions, including legal, cultural, customary, and traditional factors.<fnref n="3" />

Patriarchal practices and male dominance in Africa have excluded women from effective access to, and enjoyment of their socio-economic rights. Patriarchy in Africa is much embedded and enshrined in the mindset of men starting from childhood through socialisation.<fnref n="4" /> Nigeria, for example, is noted to be a strongly patriarchal society that subjects women to male dominance and female subservience.<fnref n="5" /> Women are seen as belonging to the home and as incapable of making sound decisions.<fnref n="6" /> Patriarchy gives men the power to prevail over women⁷ in the socio-economic sphere. Socio-economic rights field was, and

<footnote n="1">1 ATO Emordi and others 'Women, marginalisation, and politics in Africa and Asia' (2021) 2 *Integrity Journal of Arts and Humanities* 27-28.</footnote>

<footnote n="2">2 MA Moreno 'Women's rights and international dialogue' (1997) 16 *Penn State International Law Review* 193.</footnote>

<footnote n="3">3 S Fredman 'Engendering socio-economic rights' (2009) 25 *South African Journal on Human Rights* 415.</footnote>

<footnote n="4">4 Emordi (n 1) 29.</footnote>

<footnote n="5">5 As above.</footnote>

<footnote n="6">6 As above.</footnote>
continues to be, dominated by men, who only rarely demonstrate an appreciation for women's experiences as they relate to human rights.<fnref n="8" /> The African Commission on Human and Peoples' Rights (Commission)<fnref n="9" /> has also noted this exclusion and stated:<fnref n="10" />

> Women on the continent find themselves in a vulnerable status in terms of the enjoyment of their socio-economic rights on an equal basis as men. They have limited access to and enjoyment of ... rights. Unequal power dynamics in the relations between the sexes, discriminatory social and cultural structures and practices, and women's lack of economic empowerment, among others, are key factors that affect women's rights ...

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)<fnref n="11" /> protects, among other rights, socio-economic rights. It aims to improve the reality of women's lives.<fnref n="12" /> Though the inclusion of these rights in the Maputo Protocol is commendable, extending socio-economic rights to women is not sufficient. Little is done to address the gendered nature of social institutions and structures.<fnref n="13" /> Interpretation of these rights plays a huge role in the elimination of discrimination against women. A general argument has been made for teleological interpretation of the Maputo Protocol as it is with other human rights instruments. While noting that the teleological interpretation is itself inherently satisfactory, the effective approach to interpreting the Maputo Protocol requires an integration of a feminist perspective in the teleological interpretation. The argument for a gendered teleological interpretation takes into account the understanding that though the Maputo Protocol extensively protects specific rights of women; it still needs to be interpreted in a manner that entrenches a gender perspective for the effective elimination of discrimination against women. Most feminist theories agree on the importance of highlighting the lack of equality for women and viewing international problems and events through women's eyes.<fnref n="14" /> Fredman noted that the Maputo Protocol comes a step closer to fully engendering human rights ... but it, too, needs to be

<footnote n="7">7 G Robbertze & G Muller 'Conceptualising the home in law and gender' (2020) *De Jure Law Journal* 341.</footnote>

<footnote n="8">8 L Farha 'Is there a woman in the house – re/conceiving the human right to housing' (2002) 14 *Canadian Journal of Women and the Law* 120.</footnote>

<footnote n="9">9 The African Commission was established in terms of art 30 of the African Charter.</footnote>

<footnote n="10">10 General Comment 6 on the Protocol to the African Charter on Human and Peoples' Right on the Rights of Women in Africa (Maputo Protocol): The Right to Property During Separation, Divorce or Annulment of Marriage (art 7(d)) (General Comment 6), adopted during the 27th extraordinary session of the African Commission held in Banjul, The Gambia in February 2020 para 1.</footnote>

<footnote n="11">11 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa 11 July 2003, CAB/LEG/66.6.</footnote>

<footnote n="12">12 F Viljoen & M Kamunyu 'The interpretive mandate under the Maputo Protocol' in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: a commentary* (2023) 569.</footnote>

<footnote n="13">13 Fredman (n 3) 410.</footnote>

<footnote n="14">14 RC Preston & RZ Ahrens 'United Nations convention documents in light of feminist theory' (2001) 8 *Michigan Journal of Gender & Law* 4.</footnote>
interpreted to advance the envisaged equality.<fnref n="15" /> Considering that the Maputo Protocol in its elimination of the discrimination clause obliges states to integrate a gender perspective in their legislation and other measures taken to combat discrimination against women,<fnref n="16" /> it is imperative for interpretation that addresses discrimination and harmful practices against women to also integrate an appropriate gender perspective.

The article explores the potential of the dominance feminist approach (dominance approach) for a gendered teleological interpretation of the socio-economic rights in the Maputo Protocol. However, arguing for the integration of dominance perspective does not necessarily mean that other feminist perspectives are irrelevant. The article only demonstrates that among several feminist approaches, the dominance perspective has the greatest effect. Examining the influence of the feminist theories on the United Nations human rights instruments Preston and Ahrens argue that although UN human rights instruments demonstrate the influence of various feminist theories, the dominance theory has the greatest impact.<fnref n="17" /> This gendered teleological interpretation will enable the interpretive organs to interpret the object and purpose of the Maputo Protocol in a manner that identifies, takes into account, and criticises women's socio-economic lived inequality reality exacerbated by discriminatory laws, policies, and societal harmful practices. It will also help them engage in the interpretative process, appropriate approaches, including substantive equality that women employ to end discrimination practices. Arguing in the context of the housing rights for women, Chenwi and McLean note:<fnref n="18" />

> A gendered, or feminist, perspective on women and housing focuses on the lived reality of poor women and women-headed households, and the survival strategies employed by these women. It also provides a critique of how existing laws, policies, and social practices perpetuate their situation.

Apart from this introductory part, part two provides the context of Africa's women's concrete socio-economic rights reality and theories applied in this article for a gendered interpretation of the socio-economic rights in the Maputo Protocol. The aims of this analysis are four-fold: first, to unpack women's lived reality; second, to analyse the teleological approach, that aims at achieving substantive equality, and demonstrate the need to engender it through the dominance approach; third, to analyse the dominance approach, which has the potential to address the socio-economic lived reality of Africa's women, and to identify the elements of the dominance approach in the provisions of the socio-economic rights in the Maputo Protocol as a proof that this approach is not alien to the Maputo Protocol and in its object and purpose; and, finally, to develop the methodological model for the application of a dominance-oriented teleological approach. Part 3

<footnote n="15">15 Fredman (n 3) 438.</footnote>

<footnote n="16">16 Art 2(1)(c) of the Maputo Protocol.</footnote>

<footnote n="17">17 Preston & Ahrens (n 14) 6.</footnote>

<footnote n="18">18 L Chenwi & K McLean 'A woman's home is her castle – poor women and housing inadequacy in South Africa' (2009) 25 *South African Journal on Human Rights* 517.</footnote>
analyses the socio-economic rights in the Maputo Protocol and the relevant jurisprudence and show how to apply the dominance approach to build on the meaning of substantive equality. Part 4 concludes the article.

## 2 THEORETICAL FRAMEWORK FOR A THOROUGH UNDERSTANDING OF SOCIO-ECONOMIC RIGHTS LIVED REALITY OF AFRICA'S WOMEN

### 2.1 Concrete socio-economic rights lived reality of Africa's women

Africa's women have been experiencing discrimination and widespread socio-economic inequality from their male counterparts, simply by being women. Their oppression is caused by social and cultural arrangements, which require women to submit to men because of their sex.<fnref n="19" /> As a result of male dominance, Africa's women's socio-economic rights reality is covered with stories of violations, discrimination, exclusion, illiteracy, and deep patterns of poverty.

Male dominance is prevalent in women's rights to marriage and family. It includes child marriage, virginity testing, widowhood practices, witchcraft, extreme dietary restrictions (forced feeding, food taboos- including during pregnancy), binding, breast ironing, beading and son preference and its implications for the status of the girl child.<fnref n="20" /> While in marriage, women exercise limited or no economic decision-making power in the household. Where much of their contribution comes from their household and reproductive roles, neither these roles are taken as having economic value nor any account is given to the economic values of these roles.<fnref n="21" />

Male dominance is also predominant in women's right to property and related land rights. The Commission noted that some legislation and customary norms as well as patriarchal practices entrench gender inequality in the enjoyment of property rights.<fnref n="22" /> In many parts of Africa, women's contribution in the acquisition of marital property has been consistently undermined through, among others:

(a) Gender discriminatory registration laws and practices, which in effect prohibit or discourage women from owning housing, land and property jointly with their spouse, or which give preference for registration of housing, land and property in the name of the male spouse only; (b) The

<footnote n="19">19 K Mahoney 'Theoretical perspectives on women's human rights and strategies for their implementation' (1996) 21 *Brooklyn Journal of International Law* 814.</footnote>

<footnote n="20">20 S Nabaneh 'Elimination of harmful practices' in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples' Rights on Women in Africa: a commentary* (2023) 118-119.</footnote>

<footnote n="21">21 General Comment 6 (n 10) para 2.</footnote>

<footnote n="22">22 General Comment 6 (n 10) para 4.</footnote>
application of the concept of marital power, which grants power to only
the husband to administer his wife's property and/or their jointly owned
property; (c) Gendered responsibilities dictating that women use their
resources for the upkeep of the family and maintaining the home while
men use theirs for the acquisition of properties; and (d) The application of
negative customary norms and religious practices.<fnref n="23" />

Relating to male-oriented dominance of property rights, Banda notes another emerging issue, which is the growth in land leasing where sovereign funds are used to purchase vast tracts of land from which the locals are excluded and removed from arable land. Women are the most affected; they are disproportionately responsible for sourcing and growing food for family consumption. Land is linked to the right to housing. If the land resource base shrinks, women will get even less.<fnref n="24" />

In Tanzania for example, agriculture is a principal source of
livelihood. It provides more than two-thirds of employment and almost
half of Tanzania's GDP.<fnref n="25" /> Women play an essential role in agricultural
production. Despite the essential role that women in Tanzania play in
smallholder agriculture, and the importance of land ownership to
agricultural development, women seldom own the land they cultivate,
and they own less land than men when they do own land.<fnref n="26" />

Women's experience in enjoyment of their right to education is not
any better. Girls suffer the highest levels of exclusion from formal
education, 'exacerbated by poverty and economic crises, gender
stereotyping in curricula, textbooks, and teaching processes, violence
against girls and women in and out of school and structural and
ideological restrictions to their engagement in male-dominated
academic and vocational fields'. These, in turn, reproduce multiple,
often intergenerational inequities at individual and societal levels.<fnref n="27" />
There is evidence pointing to the harmful effects of stereotyping on
girls. For example, by promoting images of girls and women as the
"weaker" sex, they 'contradict values of gender equality and non-
discrimination, and dampen girls' career aspirations and self-esteem'.
Further, research has drawn a connection between early socialisation
into gender stereotypical roles and careers and 'girls' interest,
engagement and achievement in science, technology, engineering, and
mathematics (STEM).<fnref n="28" />

<footnote n="23">23 General Comment 6 (n 10) para 5.</footnote>

<footnote n="24">24 F Banda ‘African gender equality’ in RJ Cook (ed) *Frontiers of gender equality: transnational legal perspectives* (2023) 274.</footnote>

<footnote n="25">25 MK Leavens and others 'Gender and agriculture in Tanzania' EPAR brief No 134 Evans School of Public Affairs, University of Washington April 2011 p 1.</footnote>

<footnote n="26">26 Leavens and others (n 25) 2.</footnote>

<footnote n="27">27 CP Wamahiu & CN Musembi 'The right to education' in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: a commentary* (2023) 261.</footnote>

<footnote n="28">28 Wamahiu & Musembi (n 27) 267.</footnote>
In Africa, women also experience a wide range of violations of their economic and social welfare rights in public and private spheres. 'Calculations using the UNDP gender indices indicate notable gender inequality in almost every African country.'<sup>29</sup> Gender gaps in income and non-income dimensions result in lower human development by females compared to males.<sup>30</sup> There are still sectors of the economy that are largely closed to women.<sup>31</sup> For instance, the mining industry has historically been seen as a masculine occupational culture, despite technological advances that have redefined the nature of minework.<sup>32</sup> There are also fields of education in which women are under-represented, for example, in STEM.<sup>33</sup> This significantly diminishes their earning potential.<sup>34</sup> Furthermore, the economic contribution of most African women is not recognised in national statistics because it is largely in the informal agricultural and domestic sectors.<sup>35</sup> As such, African women's economic contribution in agriculture, entrepreneurship, and other related economic sectors is not documented.<sup>36</sup> Women's work such as subsistence agriculture, household maintenance, voluntary work, and other related unpaid services, are excluded from economic measurement.<sup>37</sup> The invisibility of women's work translates into exclusion from social security and control over resources.<sup>38</sup>

On health and reproductive rights, women experience a wide range of inequalities, including a lack of decision-making power on several children they should have and their spacing. Others include lack of power on the use of contraceptives and self-protection against sexually transmitted infections.

29 AA Mnzava 'Economic and social welfare rights' in A Rudman et al (eds) *The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: a commentary* (2023) 287.

30 United Nations Development Programme, Africa Human Development Report 2016: Accelerating Gender Equality and Women's Empowerment in Africa 4 https://www.afdb.org/fileadmin/uploads/afdb/Documents/AEC/2016/AfHDR_Summary_highres_EN.pdf (accessed 16 May 2023).

31 Mnzava (n 29) 287.

32 D Botha 'Women in mining: an assessment of workplace relations struggles' (2016) 46 *Journal of Social Science* 252.

33 C Hill and others 'Why so few? Women in science, technology, engineering, and mathematics' 5-9. A report published by AAUW in 2010.

34 Mnzava (n 29) 288.

35 As above.

36 African Union 'African Union set to launch the "What African Women Want" Campaign to rally more action on women's empowerment on International Women's Day' (2022) https://au.int/en/pressreleases/20220307/african-union-set-launch-what-african-women-want-campaign-rally-more-action#:~:text=The %20%E2%80%9CWhat%20African%20Women%20Want%E2%80%9D%20cam campaign%20will%20be%20launched%20on,for%20the%20implementation%20of%20programmes (accessed 23 June 2023).

37 M Waring 'The invisibility of women's work: the economics of local and global "bullshit"' (1997) 17 *Canadian Woman Studies* 31.

38 J Meeker & D Meekers 'The precarious socio-economic position of women in rural Africa: the case of the Kaguru of Tanzania' (1997) 40 *African Studies Review* 35.
Access to housing is an integral part of an adequate standard of living.<fnref n="39" /> This right entails access to a 'safe and secure home and community in which to live in peace and dignity'.<fnref n="40" /> In reality, however, many women live in squalor.<fnref n="41" /> While inadequate housing affects many people living in poverty, there is a clear gender dimension.<fnref n="42" />

Harmful cultural and religious practices have resulted in restrictions on women's rights to inheritance, access to health, education, and work. Trends in terms of labour migration, influenced by rapidly changing economic opportunities, have been implicated in new forms of exploitation and risk to women.<fnref n="43" />

## 2.2 Dominance feminist approach

Considering the above-analysed Africa's women lived socio-economic reality, it is imperative to analyse theoretical approaches relevant for interpreting socio-economic rights in the Maputo Protocol that aims at eliminating such unequal socio-economic reality. The analysis begins with the dominance approach that uses the notion 'as a woman' to explain women's lived reality of socio-economic inequality and suggest ways of addressing and transforming such reality.

We who work with the law need to be about the business of articulating the theory of women's-practice women's-resistance, visions, consciousness, injuries, notions of community, and experience of inequality.<fnref n="44" />

MacKinnon develops the dominance theory, which takes into account women's socially constructed inequality.<fnref n="45" /> It considers women as victims of a male-dominated system.<fnref n="46" /> It recognises and challenges a pervasive system of gender hierarchy. It critically examines, rather than obtain, the status quo.<fnref n="47" /> It recognises that women's inequality is not theoretical or abstract, but rather real and concrete.<fnref n="48" /> The dominance approach articulates the unrecognised pervasiveness of male domination in many facets of women's lives.<fnref n="49" /> The dominance

<footnote n="39">39 M Killander 'Right to adequate housing' in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: a commentary* (2023) 346.</footnote>

<footnote n="40">40 Killander (n 39) 346.</footnote>

<footnote n="41">41 As above.</footnote>

<footnote n="42">42 As above.</footnote>

<footnote n="43">43 Report issued by the Association for Women's Rights in Development (AWID) on achieving women's economic and social rights: Strategies and lessons from experience 2006 at p 6.</footnote>

<footnote n="44">44 CA MacKinnon 'From practice to theory, or what is a white woman anyway?' (1991) 4 *Yale Journal of Law and Feminism* 14.</footnote>

<footnote n="45">45 KRL Rand 'Making a real difference: the dominance approach in the opinions of Justice Beryl J. Levine' (1996) 72 *North Dakota Law Review* 1031-1032.</footnote>

<footnote n="46">46 AJ Albert 'The use of MacKinnon's dominance feminism to evaluate and effectuate the advancement of women lawyers as leaders within large law firms' (2006) 35 *Hofstra Law Review* 310.</footnote>

<footnote n="47">47 Rand (n 45) 1031.</footnote>

<footnote n="48">48 As above.</footnote>

<footnote n="49">49 Albert (n 46) 311.</footnote>
approach argues that women know things from their life experiences. Women are in confrontation with the realities of male dominance. This subordination of women to men is socially institutionalised, cumulatively and systematically shaping access to human dignity, respect, resources, physical security, credibility, membership in the community, speech, and power.<fnref n="50" /> As such, dominance theory is a theory of women's practice that identifies and critiques social practices of subordination and makes tools for women's consciousness and resistance that further a practical struggle to end inequality.<fnref n="51" />

The dominance approach considers women's subordination to men as exclusively based on their sex 'as women'. It uses the notion 'as a woman' as the practice which makes the concept of discrimination "based on sex" a legal theory. As such, the dominance approach investigates how the realities of women's experiences of sex inequality in the world have shaped some contours of sex discrimination in the law.<fnref n="52" /> It uses 'discrimination based on sex' as a cause of action. Therefore, the ability of women to translate their experiences of sex inequality is of paramount importance.<fnref n="53" /> It bases its argument on the understanding that women are subordinate to men because of their status as women.<fnref n="54" /> The dominance approach argues that, comprised of all its variations, the group of women can be seen to have a collective social history of disempowerment, exploitation, and subordination extending to the present. To be treated 'as a woman' in this sense is to be disadvantaged in these ways.<fnref n="55" /> To speak of social treatment 'as a woman' is to refer to this diverse and pervasive concrete material reality of social meanings and practices.<fnref n="56" /> To speak of being treated 'as a woman' is to make an empirical statement about reality.<fnref n="57" /> To speak of being treated 'as a woman' is to describe the realities of women's situation.<fnref n="58" />

The dominance approach considers women's experience in a collective form rather than in an individual form. The experience of an individual woman is considered to be the experience of almost all women. It, therefore, takes up the notion 'as a woman' to consider an individual woman's experience as an experience of women in a collective form. It treats women not as uniform or homogeneous, but as interrelated in their common experiences of inequality and powerlessness.<fnref n="59" /> It is a feminist approach based on women's shared suffering; in practice, it therefore aspires to eradicate the validation of

<footnote n="50">50 MacKinnon (n 44) 15.</footnote>

<footnote n="51">51 MacKinnon (n 44) 14.</footnote>

<footnote n="52">52 As above.</footnote>

<footnote n="53">53 Albert (n 46) 311.</footnote>

<footnote n="54">54 Rand (n 45) 1033.</footnote>

<footnote n="55">55 MacKinnon (n 44) 15.</footnote>

<footnote n="56">56 MacKinnon (n 44) 14.</footnote>

<footnote n="57">57 As above.</footnote>

<footnote n="58">58 As above.</footnote>

<footnote n="59">59 Albert (n 46) 311.</footnote>
women's subjugation in every culture, society, and institution.<fnref n="60" /> The dominance approach focuses on group experiences because understanding the individual suffering of women in this regard 'does not improve one's ability to analyse hierarchy as socially constructed'.<fnref n="61" /> Women's reality outside the courtroom benefits not only the woman named in a particular case caption but all women.<fnref n="62" /> 'Given that women are not situated similarly to men, but rather are socially unequal, looking at women one at a time rather than as women ensures that it is only the exceptional woman who escapes gender inequality enough to be able to claim she is injured by it.<fnref n="63" />

Furthermore, the dominance approach centres on the argument that women's subordination to men leaves women with no power [powerless] in all aspects of life, including socio-economic power. It focuses on the differences in power between men and women. It critiques not only physical power, but social, economic, and sexual power as well. It finds that women are oppressed because they are subject to social and sexual mores, which require them to submit to men.<fnref n="64" /> Dominance feminism attributes women's inferior societal position to men's concerted effort to subordinate and control women. It holds that men wield power over women through social, sexual, and physical domination.<fnref n="65" /> Physically, men control women by wielding the threat of violence, or by practicing domestic abuse or other forms of battery. Socially, men control women on a small scale by exerting patriarchal control over them or by objectifying them. On a large scale, men control women by perpetuating a legal system that reinforces gender inequality and wage discrimination, keeping women financially and legally powerless. Men dominate women sexually by wielding the threat of sexual violence over women and by using cat-calls, sexual advances in the workplace, rape, and pimping, to name a few examples. To a dominance feminist, these long-standing practices have resulted in systematic male dominance of any sexually feminine individual.<fnref n="66" /> The dominance approach is an approach of how the erotisation of dominance and submission creates gender and creates women and men in the social form in which we know them. It identifies the problem as not that the sexes have been treated differently, but that one group (men) has dominated the other (women). The recognition that men and women occupy unequal positions of power in society, is the fundamental underpinning of the dominance approach.<fnref n="67" /> Women will never be able to enjoy freedom as long as men's power and sexuality define the basis of women's existence.<fnref n="68" />

<footnote n="60">60 Albert (n 46) 311.</footnote>

<footnote n="61">61 As above.</footnote>

<footnote n="62">62 Rand (n 45) 1031.</footnote>

<footnote n="63">63 Rand (n 45) 1033.</footnote>

<footnote n="64">64 Preston & Ahrens (n 14) 9-10.</footnote>

<footnote n="65">65 A Mazingo 'The intersection of dominance feminism and stalking laws' (2014) 9 *Northwestern Journal of Law & Social Policy* 337-338.</footnote>

<footnote n="66">66 Mazingo (n 65) 338.</footnote>

<footnote n="67">67 Rand (n 45) 1035.</footnote>

<footnote n="68">68 Preston & Ahrens (n 14) 9-10.</footnote>
The dominance approach rejects formal equality feminism, which seeks formal legal equality and equal access to traditionally male privileges for women.<fnref n="69" /> The dominance approach argues that instead of using the male norm to decide discrimination questions, the inquiry should be whether the policy or practice in question integrally contributes to maintaining an underclass or a deprived position because of gender status. The use of this test would require the law to take systematic sex subordination into account and support freedom from it, making it a qualitatively different approach from formal equality which does not even acknowledge that sex-based subordination exists.<fnref n="70" /> This test requires two things: first, the impact of laws and policies rather than on intention, second, the context of the plaintiff rather than comparison to a male norm.<fnref n="71" />

The dominance approach is critical of 'reality' and tries to challenge and change it. That reality is male dominance that sets the standards by which one succeeds (or just survives) in society.<fnref n="72" /> Women's situation combines unequal pay with the allocation of disrespected work, sexual targeting for rape, domestic battering, sexual abuse, and systematic sexual harassment; depersonalisation demeaned physical characteristics, use in denigrating entertainment, deprivation of reproductive control, and forced prostitution.<fnref n="73" /> The dominance approach would move the law further, in the direction of gender equality.<fnref n="74" />

Preston and Ahrens argue that dominance approach is not concerned with theoretical equality or rights guaranteed on paper. It is not enough for women to have the same potential opportunities as men. Women are not equal unless they can take advantage of those opportunities, define them outside the male paradigm, and thereby obtain real power. Dominance approach demands actual social, legal, and economic equality, not just the vague assurance of equal opportunity. The theory argues women break free of the male-dominated system 'with their knowledge and power'. The dominance approach focuses on reproductive capacity, violence against women, and traditional institutional power structures.<fnref n="75" />

Furthermore, the dominance approach emphasises power imbalance underlying the issues relating to women's sexuality and reproductive capability. Dominance Feminists view female reproductive capacity as a symbol of male domination. Traditional male views of women as sources of childbearing, child-rearing, breastfeeding, and sexual pleasure are oppressive because these viewpoints keep women from achieving equal economic, social, and

<footnote n="69">69 Mazingo (n 65) 337.</footnote>

<footnote n="70">70 Mahoney (n 19) 815.</footnote>

<footnote n="71">71 See also: Mahoney (n 17) 816.</footnote>

<footnote n="72">72 Rand (n 45) 1035.</footnote>

<footnote n="73">73 Rand (n 45) 1036.</footnote>

<footnote n="74">74 Rand (n 45) 1039.</footnote>

<footnote n="75">75 Preston & Ahrens (n 14) 10.</footnote>
political power with men'.<fnref n="76" /> The dominance approach rejects the use of women's reproductive capacity to subordinate women to men. It seeks to eliminate the traditional gender stereotypes that bind women to the home and make them the chief caretakers of children because such stereotypes prevent women from gaining power. The dominance approach, therefore, argues that governments should enact laws such as mandatory paid leave and child care which allow women both to have children and to pursue similar activities as men.<fnref n="77" />

Importantly, the dominance approach considers violence and sexual harassment against women as a form of male domination. This is another way in which the dominance approach seeks to raise a new feminist consciousness by critically evaluating violence inflicted upon women. The dominance approach identifies violence against women as a means by which men keep women from attaining power. Pornography, rape, sexual harassment, and physical abuse are all forms of male dominance that, until recently, have been widely accepted. Until violence against women is eliminated, women will never be equal because men are not affected by systematic violence in the same way as women. Dominance theory focuses on each of these issues and can largely take credit for increased social awareness and action taken to remedy them.<fnref n="78" />

Finally, the dominance approach argues for the transformation of the current international legal, cultural, and social systems. Their envisioned transformation will result in women obtaining actual power. In this regard, the dominance approach argues for quotas, affirmative action, and strong government involvement in increasing the opportunities for women to obtain that power.<fnref n="79" /> The dominance theory calls for social protections to guarantee rights protecting women's interests. Dominance feminists believe that the envisioned transformation of society can be achieved by seeking control through current systems.<fnref n="80" />

The dominance approach helps the interpretive machinery to have an in-depth understanding that women's access and enjoyment of their socio-economic rights is hampered by systemic inequality and discrimination practices. This hierarchy of discrimination favours men rather than women. It considers women as inferior compared to their male counterparts.<fnref n="81" /> It helps the interpretive machinery to address the inequality in question and develop appropriate ways of encountering it effectively.<fnref n="82" /> Concerning the right to work, for example, the dominance approach offers such institutions an opportunity to recognise the dominance of male-worker norms inherent in the established criteria

<footnote n="76">76 Preston & Ahrens (n 14) 11.</footnote>

<footnote n="77">77 Preston & Ahrens (n 14) 11-12.</footnote>

<footnote n="78">78 Preston & Ahrens (n 14) 12.</footnote>

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

<footnote n="80">80 Preston & Ahrens (n 14) 13.</footnote>

<footnote n="81">81 See also: Albert (n 46) 291.</footnote>

<footnote n="82">82 As above.</footnote>
for promotion and to rectify the resulting structural impediments that
presents to the advancement of women.<fnref n="83" />

The dominance approach has the potential to address the inequality and patriarchal practices women in Africa experience. Inequality and discriminatory patriarchal practices are experienced in various socio-economic settings including, employment rights, health rights, and property rights. About property rights, the Commission in its General Comment 6 noted:<fnref n="84" />

In particular, the prevalence of discriminatory laws and legal processes resulting in property rights violation during separation, divorce or annulment of marriage in Africa and the impacts thereof on women are a major concern on the African continent. Although a number of legislations in different African States guarantee the right to equality, non-discrimination and property, other legislations and customary norms as well as patriarchal practices entrench gender inequality in this regard.

Dominance approach with its approach of women as a collective is significant in that it has the potential of looking at and addressing the challenges of women in their collective capacity rather than in their individual capacity. Challenges women face in their individual capacity represent challenges many women face in different areas.

The tenet ‘as a woman’ used in the dominance theory is key in addressing male dominance practices and discrimination practices done to women as a woman and nothing else. They are raped as women, they are denied access to employment as women, they are denied property and land rights as women, they are denied certain job positions as women, they are sexually harassed at work as women, they are denied a promotion at workplaces or paid less as women, they are denied maternity leave as women, they are subjected to early marriages as women, they are denied access to education as women, they are denied carrier development as women, they are denied managerial positions as women, leviratic marriages (the practice of inheriting a wife) i.e. they are forced to marry their late husbands’ relatives as women, they are denied inheritance of their husbands or late fathers as women, etc.

## 2.3 Teleological interpretation<fnref n="85" />

The main argument in this article is to use the dominance approach to engender the teleological approach, which is appropriate for interpreting human rights treaties. The application of the teleological

<footnote n="83">83 Albert (n 46) 291.</footnote>

<footnote n="84">84 General Comment 6 (n 10) para 4.</footnote>

<footnote n="85">85 I have analysed the teleological approach and its relevance in interpreting socio-economic rights in various writings: See A Amin ‘A teleological approach to the interpretation of socio-economic rights in the African Charter on Human and Peoples’ Rights’ unpublished LLD thesis, University of Stellenbosch, 2017 (Amin 2017); A Amin ‘Assessing violations of states’ socio-economic rights obligations in the African Charter: towards a model of review grounded in the teleological approach (2020) 4 *African Human Rights Yearbook* 16-42 (Amin 2020); A Amin</footnote>
approach helps interpretive organs to develop the meaning, scope, and
content of socio-economic rights in line with the object and purpose of
the Maputo Protocol.

The teleological approach, sometimes referred to as purposive interpretation,<fnref n="88" /> considers the object and purpose<fnref n="87" /> of a treaty as the main element in its interpretation.<fnref n="88" /> An inquiry into the object and purpose of a treaty is vital in generating the meaning, scope, and content of the treaty's provisions in question.<fnref n="89" /> The teleological approach and its notion of object and purpose are endorsed in the Vienna Convention on the Law of Treaties (Vienna Convention)<fnref n="90" /> through its single authoritative rule of interpretation in article 31 and 32 respectively. Through article 31, the Vienna Convention requires a treaty to be 'interpreted in good faith, following the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'.

The object and purpose of a treaty are found through a recourse to
a wide range of interpretative tools including the treaty's historical
background and its preparatory work, the circumstances at the time of
the adoption of the treaty, any change in these circumstances that the
parties sought to effect, and the conditions prevailing at the time the
treaty is interpreted.<fnref n="91" /> It also includes a treaty's preamble at both its
interpretive and binding characters,<fnref n="92" /> the subsequent practice of the

'The potential of African philosophy in interpreting socio-economic rights in the African Charter on Human and Peoples' Rights' (2021) 5 *African Human Rights Yearbook* 23-50 (Amin 2021a); A Amin 'A teleological approach to interpreting socio-economic rights in the African Charter: appropriateness and methodology' (2021) 21 *African Human Rights Law Journal* 209 (Amin 2021b); A Amin Teleological interpretation in the emerging socio-economic rights jurisprudence of the African Court: *African Commission on Human and Peoples' Rights v Kenya* (2022) 14 *African Journal of Legal Studies* 45-67 (Amin 2022).

<footnote n="86">86 TS Bulto 'The emergence of the human right to water in international human rights law: invention or discovery?' (2011) 12 *Melbourne Journal of International Law* 299. See also: Viljoen & Kamunyu (n 12) 549.</footnote>

<footnote n="87">87 J Klabbers 'Some problems regarding the object and purpose of treaties' (1999) 8 *Finnish Yearbook of International Law* 138, quoted in SA Yeshanew *The justiciability of economic, social and cultural rights in the African regional human rights system: theories, laws, practices and prospects* (2013) 45. Klabbers identifies the object and purpose of a treaty as a 'comprehensive blanket term' referring to the 'aims, nature and end' of a treaty. It applies to a treaty 'as a whole rather than to its parts or articles'. In addition to Klabbers's definition, this article considers the 'object and purpose' of a treaty as a single concept (rather than two distinct concepts) that requires a general meaning rather than a specific fixed meaning. For a thorough discussion, see Amin (n 85) 43-49; see also Amin 2021b (n 85) 209.</footnote>

<footnote n="88">88 Amin 2017 (n 85); Amin 2022 (n 85) 3.</footnote>

<footnote n="89">89 GG Fitzmaurice 'The law and procedure of the International Court of Justice: treaty interpretation and certain other treaty points' (1951) 28 *British YB of Intl Law* 1, 1-2 (1951 Interpretations).</footnote>

<footnote n="90">90 The Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entered into force 27 January 1980, 8I LM 679.</footnote>

<footnote n="91">91 'Art 19(a) of the Draft Convention on the Law of Treaties' (1935) 29 *American Journal of International Law* Supp 971.</footnote>

<footnote n="92">92 Fitzmaurice '1951 Interpretations' (n 89) 10.</footnote>
parties to a treaty<fnref n="93" /> (including, the decisions of the interpretive organs,<fnref n="94" /> and the rules of procedure formulated by these interpretive organs to interpret the treaty);<fnref n="95" /> and the principle of effectiveness,<fnref n="96" /> which is embodied in all tenets of the teleological approach.<fnref n="97" />

The principle of effectiveness posits that provisions of a treaty are formulated to fulfil a specific effect. Accordingly, they should be interpreted to make them effective rather than ineffective.<fnref n="98" /> The principle, in its general dimension, interprets the text in light of the declared or apparent object and purpose of the treaty. The principle of effectiveness gives such a text its effective meaning consistent with the words used to formulate it and with the other provisions of the treaty.<fnref n="99" /> To assign effective meaning to the text, the principle of effectiveness allows the interpretive organs to consider and apply different possibilities of interpretation, which will safeguard the effectiveness of the text.<fnref n="100" /> As such, in its substantive dimension, it requires interpretive organs to interpret the rights enshrined in a treaty broadly.<fnref n="101" /> It also requires the limitations of such rights to be interpreted narrowly.<fnref n="102" /> In its temporal dimension,<fnref n="103" /> the principle of effectiveness considers a treaty as a living instrument.<fnref n="104" /> The systemic dimension consists of both the internal and external coherence dimensions.<fnref n="105" /> The internal coherence dimension emphasises a form of interpretation that reads the treaty as a whole, in a manner that advances internal consistency and harmony among the various provisions of the treaty.<fnref n="106" /> Concerning external coherence, the principle of effectiveness focuses on interpreting a treaty through other comparative legal sources.

The overall object and purpose of the Maputo Protocol is articulated in its Preamble, which is to ensure that the rights of women are promoted, realised, and protected.<fnref n="107" /> The Preamble elaborates that the Maputo protocol aims to eliminate discrimination, harmful

<footnote n="93">93 Fitzmaurice, ‘1951 Interpretations’ (n 89) 9.</footnote>

<footnote n="94">94 As above.</footnote>

<footnote n="95">95 As above.</footnote>

<footnote n="96">96 GG Fitzmaurice ‘The law and procedure of the International Court of Justice: treaty interpretation and certain other treaty points’ (1957) 33 *British Yearbook of International Law* 203, 211 (1957 Interpretations).</footnote>

<footnote n="97">97 Fitzmaurice, ‘1957 Interpretations’ (n 96).</footnote>

<footnote n="98">98 Fitzmaurice, ‘1951 Interpretations’ (n 89) 8.</footnote>

<footnote n="99">99 Fitzmaurice, ‘1957 Interpretations’ (n 96) 211.</footnote>

<footnote n="100">100 D Rietiker ‘The principle of “effectiveness” in the recent jurisprudence of the European Court of Human Rights: Its different dimensions and its consistency with public international law – no need for the concept of treaty *sui generis*’ (2010) 79 *Nordic Journal of International Law* 256.</footnote>

<footnote n="101">101 Rietiker (n 100) 259.</footnote>

<footnote n="102">102 As above.</footnote>

<footnote n="103">103 Rietiker (n 100) 261.</footnote>

<footnote n="104">104 As above.</footnote>

<footnote n="105">105 Rietiker (n 100) 267-275.</footnote>

<footnote n="106">106 Rietiker (n 100) 267.</footnote>

<footnote n="107">107 Preamble to the Maputo Protocol para 14.</footnote>
practices, and gender-based violence against women.<fnref n="108" /> The Preamble also emphasises equality between men and women.<fnref n="109" /> Imperatively, the Preamble recognises the African values of equality, peace, freedom, dignity, justice, solidarity, and democracy.<fnref n="110" /> It also recognises the crucial role of women in the preservation of these values.<fnref n="111" /> The Preamble also notes the states' commitment to ensure the full participation of African women as equal partners in Africa's development.<fnref n="112" /> The Preamble also notes the relevance of other regional and international human rights sources for the protection of women's rights.<fnref n="113" /> Significantly, the Preamble recognises the principles of inalienability, interdependence, and indivisibility of rights.<fnref n="114" /> All these Preambular statements elaborate the object and purpose of the Maputo Protocol. Accordingly, all interpretations of the Protocol must necessarily pursue this objective.<fnref n="115" />

## 2.4 Substantive equality

The preceding part has shown that teleological approach, through object and purpose of the Maputo Protocol, emphasises on equality. This sub-part analyses substantive equality as a form of equality envisaged by the teleological approach.

Traditionally, equality has been understood in formal terms, requiring simply that likes be treated alike.<fnref n="116" /> Formal equality has been of central importance for women, particularly in achieving equality before the law, whether in terms of equal suffrage, equal right to own property, or other similar limitations.<fnref n="117" /> Formal equality requires that all persons who are in the same situation be accorded the same treatment and that people should not be treated differently because of arbitrary characteristics such as gender.<fnref n="118" /> The focus on the sameness between women and men is the flaw of formal equality as it fails to consider the male-dominated practices that discriminate against women. Even when women are equal before the law, they lag behind in social and economic terms, and this is the major weakness of formal equality.<fnref n="119" /> Equality in its formalistic form, arguably does very little to change the position of women in an overwhelmingly patriarchal

<footnote n="108">108 Preamble to the Maputo Protocol paras 2-3, 9 & 13.</footnote>

<footnote n="109">109 Preamble to the Maputo Protocol para 11.</footnote>

<footnote n="110">110 Preamble to the Maputo Protocol para 10.</footnote>

<footnote n="111">111 As above.</footnote>

<footnote n="112">112 Preamble to the Maputo Protocol para 8.</footnote>

<footnote n="113">113 Preamble to the Maputo Protocol paras 4-6 & 8-9.</footnote>

<footnote n="114">114 Preamble to the Maputo Protocol para 5.</footnote>

<footnote n="115">115 Viljoen & Kamunyu (n 12) 550.</footnote>

<footnote n="116">116 S Fredman 'Women and poverty – A human rights approach' (2016) *African Journal of International and Comparative Law* 505.</footnote>

<footnote n="117">117 As above.</footnote>

<footnote n="118">118 A Smith 'Equality constitutional adjudication in South Africa' (2014) 14 *African Human Rights Law Journal* 611; see also Mnzava (n 27) 291.</footnote>

<footnote n="119">119 Fredman (n 116) 505.</footnote>
context.<fnref n="120" /> The CEDAW Committee notes that purely formal equality is not sufficient to achieve equality for women.<fnref n="121" /> It is not enough to guarantee women treatment that is identical to that of men. Biological, social, and culturally constructed differences between women and men must be taken into account.<fnref n="122" /> Women must be given an equal start and they should be empowered by an enabling environment to achieve substantive equality.<fnref n="123" />

Substantive equality was developed to address the limitations of formal equality.<fnref n="124" /> The Commission states that substantive equality:

refers to the form of equality that requires the adoption of measures that go beyond formal equality and seek to redress existing disadvantage; remove socio-economic and sociocultural impediments for equal enjoyment of rights; tackle stigma, prejudice, and violence; leading to the promotion of participation and achievement of structural change of social norms, culture and law.

Substantive equality is concerned to ensure outcomes that are equal in substance, not just on paper. It refers to 'equality in distribution of economic and social power and of opportunities for people to experience self-realisation'.<fnref n="125" /> Substantive equality takes cognisance of existing patterns of inequality, taking economic and social conditions into account. The aim is to enable women to realise their full potential as equal members and actors in society. This aim is elaborated in Fredman's four features and dimensions of substantive equality.<fnref n="126" /> Substantive equality is asymmetric in that it distinguishes between different treatment that causes detriment and different treatment that redresses past disadvantages to improve the disadvantaged group's position.<fnref n="127" /> It moves away from relative equality – the assumption of conformity to a male norm. Rather, it takes differences into account when difference matters. Substantive equality is inherently transformative; it seeks to change existing structures.<fnref n="128" /> Moreover, it insists on levelling up rather than down.<fnref n="129" /> Finally, it entails a positive

<footnote n="120">120 A Rudman ‘Access to justice and equal protection before the law’ in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: a commentary* (2023) 183.</footnote>

<footnote n="121">121 CEDAW General Recommendation 25, on art 4(1) of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures (CEDAW GR 25) para 8.</footnote>

<footnote n="122">122 As above.</footnote>

<footnote n="123">123 As above.</footnote>

<footnote n="124">124 Fredman (n 116) 505.</footnote>

<footnote n="125">125 K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 *South African Journal on Human Rights* 153-154; see also Mnzava (n 27) 291.</footnote>

<footnote n="126">126 Fredman (n 116) 505-506. See also R Holtmaat ‘The CEDAW: a holistic approach to women’s equality and freedom’ in A Hellum & HS Aasen (eds) *Women’s human rights: CEDAW in international, regional and national law* (2013) 106; see also Mnzava (n 27) 291.</footnote>

<footnote n="127">127 As above.</footnote>

<footnote n="128">128 As above.</footnote>

<footnote n="129">129 As above.</footnote>
responsibility to bring about change, regardless of whether individual
culpritability or violation has been established.<fnref n="130" />

The dimensions of substantive equality are four-fold. First, it concentrates on remedying disadvantage rather than achieving gender neutrality. It redresses the gendered context, including women's subordinate position in areas such as the workplace. Second, it aims to redress stigma, stereotyping, humiliation, and violence on grounds of gender. The third-dimension entails recognition of how the structures of society entrench women's disadvantage. Instead of requiring women to conform to male norms, substantive equality requires the transformation of existing male-oriented institutions and structures. The final dimension of substantive equality is that it attaches importance to women's agency and voice in engendering the socio-economic rights necessary for women's empowerment.<fnref n="131" /> These dimensions are vital in understanding the socio-economic provisions of the Maputo Protocol.

## 2.5 Application of the dominance-oriented teleological interpretation: methodological model

### 2.5.1 Introduction

The methodological model for the application of a dominance- oriented teleological approach in interpreting the socio-economic rights does not just require reference to the tenets of the teleological approach but also it requires the engagement of dominance approach, to build on substantive equality, in interpreting socio-economic rights in the Maputo Protocol. It should be noted that in *Social and Economic Rights Action Centre (SERAC) v Nigeria (SERAC)*<fnref n="132" /> the Commission did apply the teleological approach but it did not address effectively gender implications on violations of a myriad of socio-economic rights including, the right to property, health, food, water, housing, and dignity. Though commended for its application of the teleological approach in interpreting these rights, the Commission's legally neutral gender analyses were an opportunity missed. The Commission did not pay attention to the gendered impact of the oil spills, which included ill health and the depletion of food reserves because of the inability to fish, which impacted women disproportionately.<fnref n="133" /> The Commission could have further elaborated on the impact of the violations by noting that economic violence against a community impacts psychological health and can lead to physical violence, with women being disproportionately

<footnote n="130">130 As above.</footnote>

<footnote n="131">131 As above.</footnote>

<footnote n="132">132 *Social and Economic Rights Action Centre (SERAC) v Nigeria* Communication no 155/96 (2001) AHRLR 60 (ACHPR 2001).</footnote>

<footnote n="133">133 F Banda 'African gender equality' in RJ Cook (ed) *Frontiers of gender equality: transnational legal perspectives* (2023) 274.</footnote>
impacted. As dignity is rooted in equality, the failure to address the discriminatory impacts of socio-economic violations leads to a pervasive form of gendered discrimination and violence against women.<fnref n="134" />

Therefore, the methodology that integrates the dominance approach in the teleological approach is significant in five ways. First, it can guide the interpretive organs to apply the teleological approach and infuse in it the dominance approach to engender the interpretation. Second, it can help the interpretive organs to interrogate issues of women's lived reality and analyse them appropriately. Third, the methodology will help the interpretive machinery to critique legal, socio-economic, traditional, and sexual discriminatory practices against women. Fourth, the methodology will enable the interpretive machinery to practically reform inequality. Fifth, the methodology can help the interpretive organs to justify their decisions. As Tobin rightly observes, the appropriate application of the interpretive approach renders the interpretative process legitimate.<fnref n="135" /> As such the article adopts a methodology of application that is in four interrelated stages as elaborated in the ensuing sub-parts.

### 2.5.2 Reference to the object and purpose of the Maputo Protocol

To interpret socio-economic rights through a teleological interpretation requires firstly, the interpretive organs to start with an inquiry into the object and purpose of the Maputo Protocol in relation to the socio-economic rights in question. The object and purpose of a treaty are established through a wide range of other significant intrinsic and extrinsic elements of the treaty in question.<fnref n="136" /> Secondly, the interpretive organs must constantly engage the elements of the dominance approach in the inquiry of the object and purpose through all these tenets of the teleological approach. Women’s narrative of their experience is vital to help interpretive organs identify and criticise the legal, social, economic, traditional, and sexual practices that violate women’s socio-economic rights. The infusion of the tenets of the dominance approach is justified with the teleological approach that interprets a treaty in its context.

### 2.5.3 Principle of effectiveness

The principle of effectiveness as elaborated upon should be integrated throughout the interpretative process. This engagement is useful in ensuring that all interpretive aids referred to by interpretive organs assist in attaining the practical and effective meaning of the provisions

<footnote n="134">134 Banda (n 133) 274-275.</footnote>

<footnote n="135">135 J Tobin ‘Seeking to persuade: a constructive approach to human rights treaty interpretation’ (2010) 23 *Harvard Human Rights Journal* 3-4.</footnote>

<footnote n="136">136 For a methodology for the application of the teleological approach see generally: Amin 2017 (n 85).</footnote>
being interpreted. Constant engagement of the principle of effectiveness ensures the effectiveness of treaty provisions. The effectiveness of the provisions implies that the rights are broadly interpreted, and their restrictions are interpreted narrowly. Moreover, the principle of effectiveness ensures consistency and uniformity in the interpretation of the treaty. This principle also guarantees an interpretation of a treaty that addresses the conditions prevalent at the time of interpretation. In this regard, all four dimensions of this principle should be engaged in the entire interpretative process.¹³⁷

### 2.5.4 Substantive equality

The interpretive organs should engage the notion of substantive equality and its all dimensions should be engaged throughout the interpretative process. Engagement of substantive equality ensures four key elements. First, remedy disadvantage in question; second, redress stigma, stereotyping, humiliation, and violence on grounds of gender; third, identify the manner in which societal structures embody women's disadvantage; finally, advance women's participation in engendering socio-economic rights in question.

### 2.5.5 Dominance approach

Like the principle of effectiveness, the dominance approach as elaborated upon should be integrated throughout the above-mentioned interpretative process. The inquiry should be: What is women's lived reality to the socio-economic rights in question?; does the law, policy, or practice discriminate against women; Do these sources keep and strengthen women's exclusion from accessing and enjoying their socio-economic rights? As such, the interpretative process should be guided with above-mentioned guiding key informative questions. The interpretive organs should be mindful of the fact that the victims are women or on behalf of women, as such women victims should be provided with an opportunity to narrate their lived reality concerning socio-economic rights in question.

## 3 ANALYSIS OF SELECTED SOCIO-ECONOMIC RIGHTS IN THE MAPUTO PROTOCOL IN LIGHT OF THE DOMINANCE-ORIENTED TELEOLOGICAL INTERPRETATION

The analysis in this part aims at showing how the dominance approach can build on the teleological interpretation and substantive equality to develop the envisaged meaning of the socio-economic rights in the Maputo Protocol. The analysis focuses on selected socio-economic rights in the Maputo Protocol and relevant jurisprudence. The selected
rights are: right to marriage, right to education, and the right to health and reproductive health. The reasons for this selection are two-fold: first, these rights contain a wide range of concepts that are explicitly or implicitly relevant in other socio-economic provisions. As such the analysis will be useful for the interpretation of other socio-economic rights not covered in this part. Second, there is available jurisprudence by the African Court on Human and Peoples' Rights (African Court),<fnref n="138" /> and Commission relating to these rights that is potential to demonstrate how the dominance approach can be applied by the interpretive organs.

## 3.1 Right to marriage

Marriage is a formal and informal union between men and women<fnref n="139" /> recognised under any system of law, custom, society or religion.<fnref n="140" /> The article dealing with marriage in the Maputo Protocol is article 6. The main paragraph of article 6 sets the equality standard and the rest of the paragraphs establish the content to the right. The right to marriage obliges states to ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. These provisions give an impression that they are framed within the concept of formal equality. The dominance approach becomes useful as it rejects formal equality, which requires equal rights between women and men in marriage. Dominance approach helps the interpretive machinery to inquire whether equality in article 6 integrally contributes to maintaining women's inequality in marriage. The inquiry will help to understand the impact of article 6 on women, and the context of a woman in marriage rather than comparison to a male counterpart.

Furthermore, the right to marriage imposes upon states an obligation to ensure that no marriage takes place without ‘free and full consent’ of both parties.<fnref n="141" /> The concept of ‘free and full consent’ entails a non-coercive agreement to the marriage with full understanding of the consequences of giving consent.<fnref n="142" /> The dominance approach through the notion ‘as a woman’ is relevant to elaborate on discriminatory practices and prevalent male-domination that render women powerless and unable to give a free and full consent to marriage. Free and full consent is negated by practices such as arranged marriage (betrothal), forced marriage or forced remarriage, and when women

<footnote n="138">138 The African Court is established by art 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights OAU Doc.OAU/LEG/EXP/AFCHPR/PROT (III), adopted on 9 June 1998 and entered into force on 25 January 2004.</footnote>

<footnote n="139">139 Art 1(k) of the Maputo Protocol defines ‘women’ to include girls.</footnote>

<footnote n="140">140 Joint General Comment of the African Commission on Human and Peoples' Rights and the African Committee of Experts on the Rights and Welfare of the Child on Ending Child Marriage (Joint General Comment), adopted at the 29th session of the African Committee on the Rights and Welfare of the Child 2-9 May 2017 in Maseru, Lesotho para 6.</footnote>

<footnote n="141">141 Art 6(a) of the Maputo Protocol.</footnote>

<footnote n="142">142 Joint General Comment (n 140) para 6.</footnote>
subject themselves to marriage in search of financial security.<fnref n="143" /> In *Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v Mali (IHRDA)*,<fnref n="144" /> the African Court regarding article 6 of the Maputo Protocol,<fnref n="145" /> noted that the manner in which a religious marriage takes place in Mali poses serious risks that may lead to forced marriages and perpetuate traditional practices that violate international standards that define conditions regarding age of marriage and consent of parties in marriage.<fnref n="146" /> Practices that allow application of religious and customary laws on the consent to marriage were held to be inconsistent with article 6 of the Maputo Protocol.<fnref n="147" /> While the decision is commendable, application of the dominance approach through “as a woman” tenet would have helped the African Court to engender its reasoning by considering that free and full consent was denied to women by simply being women. Significantly, the Maputo Protocol stipulates 18 years as the minimum age of marriage for women.<fnref n="148" /> These provisions are instrumental in ensuring that the rights of girls are protected from the practice of child marriage.<fnref n="149" /> Child marriage is a marriage in which either one of the parties, or both, is or was a child under the age of 18 at the time of union.<fnref n="150" /> In *IHRDA* the African Court held that article 6(b) of the Maputo Protocol imposes upon states the obligation to take all appropriate measures to abolish negative practices customs, and practices discriminatory to children born out of wedlock for reasons of their gender, especially measures to guarantee the minimum age for marriage at 18 years.<fnref n="151" /> This reasoning resonates with the dominance approach through its emphasis for transformation of the international legal, cultural, and social systems that do not address women's inequality lived reality effectively. This way the dominance approach gels with substantive equality dimension on transformation.

In the *Attorney General v Rebeca Z. Gyumi* (Gyumi),<fnref n="152" /> the Court of Appeal of Tanzania had an opportunity to address equality of a girl-child in relation to child marriage and the concept of free and full consent. Gyumi was an appeal from the decision of the High Court regarding the constitutionality of sections 13 and 17 of the Tanzania's Law of Marriage Act (LMA) respectively. At the High Court the

<footnote n="143">143 CN Musembi ‘Marriage’ in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: a commentary* (2023) 139.</footnote>

<footnote n="144">144 *Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v Mali*, Application 46 of 2016.</footnote>

<footnote n="145">145 APDF (n 144) para 90.</footnote>

<footnote n="146">146 APDF (n 144) para 94.</footnote>

<footnote n="147">147 APDF (n 144) para 95.</footnote>

<footnote n="148">148 Art 6(b) of the Maputo Protocol.</footnote>

<footnote n="149">149 RD Nanima ‘The ACHPR and ACERWC on ending child marriage: revisiting the prohibition as a legislative measure’ (2019) 20 *ESR Review* 11.</footnote>

<footnote n="150">150 Joint General Comment (n 140) para 6.</footnote>

<footnote n="151">151 APDF (n 144) para 75.</footnote>

<footnote n="152">152 *The Attorney General v Rebeca Z. Gyumi*, civil appeal no 204 of 2017.</footnote>
respondent challenged the constitutionality of sections 13 and 17 of the LMA. The challenged provisions require consent of parents or courts for girls below 18 years before marriage. At the same time section 13(1-2) of the LMA allows a girl to get married only upon 15 years and a male person to get married only upon attaining the age of 18 years. The respondent asked the High Court to declare the said provisions null and void and be expunged from the LMA, and 18 years should remain the minimum age of marriage until the Government amends the law.<fnref n="153" /> The High Court was satisfied that the provisions are discriminatory as they uphold different treatment to persons of similar situations hence offending the constitutional principle of equality in articles 12(1) and 13(1) of Tanzania's Constitution. The High Court directed the Government to amend the law within one year and put 18 years as the eligible age for marriage for both boys and girls. The applicant appealed to the Court of Appeal.<fnref n="154" /> Referring to article 6 of the Maputo Protocol, the Court of Appeal held that this provision only allows men and women of 18 years to marry. Persons below 18 years lack the capacity to enjoy the right to marriage. It held further that persons who enter into marriage must pass the test of free and full consent.<fnref n="155" />

Furthermore, article 6(c) obliges states to promote and protect the rights of women in marriage and family, including polygamous marital relationships.<fnref n="156" /> Polygamous marriage is a form of marriage that allows a man to have more than one wife.<fnref n="157" /> Considering the non-recognition of the rights of women in a polygamous marriage, these provisions of article 6(c) cannot be overstated. Dominance approach that is critical of reality and tries to change can be applied to transform the discriminatory practices facing women in polygamous marriage. Article 6(c) has potential to be protective of women who willingly or unwillingly find themselves in a polygamous marriage.<fnref n="158" /> The right to marriage also includes a woman's right to choose a matrimonial regime and place of residence.<fnref n="159" /> Other rights include a woman's right to retain and use her maiden name;<fnref n="160" /> the right to retain her nationality. Article 6 also protects the right of a woman to acquire her property during her marriage.<fnref n="161" /> This clause was necessitated by the reality of formal and

<footnote n="153">153 Gyumi (n 152) 1-2.</footnote>

<footnote n="154">154 Gyumi (n 152) 3-5.</footnote>

<footnote n="155">155 Gyumi (n 152) 30-31.</footnote>

<footnote n="156">156 Art 6(c) of the Maputo Protocol.</footnote>

<footnote n="157">157 EM Baloyi 'Critical reflections on polygamy in the African Christian context' (2013) 41 *Missionalia* 165. It should be noted that neither the Maputo Protocol nor any other African regional human rights in Africa has defined polygamous marriage.</footnote>

<footnote n="158">158 Banda (133) 264.</footnote>

<footnote n="159">159 Art 6(e) of the Maputo Protocol.</footnote>

<footnote n="160">160 Art 6(f) of the Maputo Protocol.</footnote>

<footnote n="161">161 Art 6(j) of the Maputo Protocol.</footnote>
informal restrictions on women's legal capacity to enter into transactions.<fnref n="162" /> Article 6(d) requires all marriages to be recorded in law and registered to acquire legal status. However, only civil and religious marriages respectively are registered, customary marriages are not registered.<fnref n="163" /> Unregistered marriages pose challenges in the distribution of matrimonial property during separation, divorce, or annulment of marriage.<fnref n="164" /> Since the dominance approach takes into account structural inequalities such as omission of the existing laws to address registration of customary marriage, which many women in Africa are in. Application of the dominance approach will give recognition of customary marriage a gender perspective. As such, non-recognition will be considered a violation of women's right to marriage and related rights such as right to property, inheritance etc.

## 3.2 Right to education and training

Article 12 of the Maputo Protocol protects the right to education and training. Education plays a pivotal transformative and women's empowerment role.<fnref n="165" /> Education entails all types and levels of education and includes access to education, the standard and quality of education, and the conditions under which it is given.<fnref n="166" /> Types and levels of education include pre-school, primary, secondary, tertiary, and adult education, and vocational training.<fnref n="167" /> Significantly the right to education encompasses three dimensions namely: access to education, rights within education, and rights through education.<fnref n="168" /> Access to education refers to participation, particularly the extent to which girls/boys, and women/men are equally represented, as well as adequate infrastructure.<fnref n="169" /> Rights within education refer to substantive gender equality in education.<fnref n="170" /> Rights through education define ways in which schooling shapes gender equality in other spheres of life.<fnref n="171" /> These three dimensions are embedded in the 4As framework: availability, accessibility, adaptability, and affordability.<fnref n="172" />

<footnote n="162">162 CN Musembi ‘Marriage’ in A Rudman and others (eds) *The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: a commentary* (2023) 146.</footnote>

<footnote n="163">163 General Comment 6 (n 10) para 19.</footnote>

<footnote n="164">164 As above.</footnote>

<footnote n="165">165 Committee on the Elimination of Discrimination against Women. General recommendation 36 on girls' and women's right to education (CEDAW GR 36), CEDAW/C/CG/36, adopted on 16 November 2017 para 1.</footnote>

<footnote n="166">166 Article 2 of Convention against Discrimination in Education (CADE), adopted by the General Conference at its eleventh session, Paris, 14 December 1960. It should be noted that the Maputo Protocol does not provide the definition of education.</footnote>

<footnote n="167">167 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights, 24 October 2011 (Principles and Guidelines) para 70.</footnote>

<footnote n="168">168 CEDAW GR 36 (n 165) para 14.</footnote>

<footnote n="169">169 CEDAW GR 36 (n 165) para 15.</footnote>

<footnote n="170">170 CEDAW GR 36 (n 165) para 16.</footnote>

<footnote n="171">171 CEDAW GR 36 (n 165) para 17.</footnote>

<footnote n="172">172 CEDAW GR 36 (n 165) para 14.</footnote>
Importantly, the right to education requires states to eliminate all forms of discrimination against women, and guarantee equal opportunity and access in the sphere of education and training.173 Dominance approach is relevant here as it emphasises on the elimination of direct and indirect discriminatory practices in all spheres of life including the public and private sphere under the definition of discrimination in article 1(f) of the Maputo Protocol, and article 1(1) of the Convention against Discrimination in Education (CADE).174 States should also eliminate stereotypes in textbooks, syllabuses, and the media, which perpetuate discrimination.175 Stereotypes operate to attribute generalised behaviours, abilities, interests, values, and roles to a person or group of persons on the basis of their sex, gender, ethnicity, religion, social class, disability, or the intersection of these, or roles to people based on their membership in an identified group.176 These provisions entrench the language of dominance approach in the right to education and training. The application of dominance approach that uses women's experience of stereotypes and exclusion in education can be applied to help a better understanding of the right to education and training in relation to these matters. Moreover, the dominance approach that strives to transform women's inequality into reality in education becomes useful to engender the right to education and advance its object and purpose to women.

Furthermore, states are obliged to protect women and girls from all forms of abuse, including sexual harassment in schools and other educational institutions, and provide for sanctions against the perpetrators of such practices. The Maputo Protocol does not explicitly define the phrase sexual harassment.177 However, the meaning of sexual harassment can broadly be construed through the provisions of article 1(j) on violence against women178 that define violence against women to mean

all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peacetime and during situations of armed conflicts or war.179

The prohibition of sexual harassment must be observed from the enrolment of students until the completion of education and training. It is also vital that women victims of sexual harassment are provided

<footnote n="173">173 Art 12(a), Maputo Protocol.</footnote>

<footnote n="174">174 Convention against Discrimination in Education, adopted by the General Conference at its eleventh session, Paris, 14 December 1960.</footnote>

<footnote n="175">175 Art 12(1)(b), Maputo Protocol.</footnote>

<footnote n="176">176 Wamahiu & Musembi (n 27) 267.</footnote>

<footnote n="177">177 Mnzava (n 29) 296.</footnote>

<footnote n="178">178 As above.</footnote>

<footnote n="179">179 Art 1(j), Maputo Protocol. See also: African Commission on Human and Peoples' Rights, 'Guidelines on Combating Sexual Violence and Its Consequences in Africa' (Guidelines), adopted on 22 May 2017 para 3.1. See also CEDAW General Recommendation 19.</footnote>
with access to counselling and rehabilitation services.<fnref n="180" /> States should also integrate gender sensitisation and human rights education at all levels of education curricula including teacher training.<fnref n="181" />

The application of the dominance approach that considers violence and sexual harassment against women as a form of male domination can help the interpretive organs to evaluate sexual harassment and violence inflicted on women and girls in schools. It can be applied to elaborate, through women and girls experience on sexual harassment in schools, how men use sexual harassment to keep women from attaining power and therefore render them powerless socially, economically, and politically.

Aspects of sexual harassment and gender-based violence appeared in *Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt (Egyptian)*,<fnref n="182" /> whereby the Commission found it imperative to define discrimination and its relationship with gender-based violence.<fnref n="183" /> It referred to the provisions of article 1(f) and 1(j) of the Maputo Protocol, article 1 of CEDAW, and paragraph 6 of the General Recommendation 19 of CEDAW.<fnref n="184" /> The Commission found that verbal assault used against the victims such as ‘slut’, and ‘whore’ is not usually used against men. They are generally meant to degrade and rip off the integrity of women who refuse to abide by traditional religious, and even social norms.<fnref n="185" /> The Commission found that the physical assaults against the victims in this case are gender-specific in the sense that the victims were subjected to acts of sexual harassment and physical violence, including breast fondling, and touching or attempting to touch private and sensitive parts, that can only be directed to women.<fnref n="186" /> It also held that threats against some of the victims who were accused of practicing prostitution when they refused to withdraw their complaints could also be classified as being gender specific.<fnref n="187" /> The Commission held that incidents alleged took place in the form of a systematic sexual violence targeted at the women participating or present in the scene of the demonstration. It therefore held that the type of violence used during the demonstrations was perpetrated based solely on the sex of the persons at the scene of the demonstration. In other words, the violence was gender-specific and discriminatory by extension.<fnref n="188" /> Although the Commission did not state it explicitly, it applied the tenet ‘as a woman’ to determine the *Egyptian* case.

<footnote n="180">180 Art 12(d), Maputo Protocol.</footnote>

<footnote n="181">181 Art 12(e), Maputo Protocol.</footnote>

<footnote n="182">182 *Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, Communication 323/06*.</footnote>

<footnote n="183">183 *Egyptian* (n 182) para 120.</footnote>

<footnote n="184">184 *Egyptian* (n 182) para 120-123.</footnote>

<footnote n="185">185 *Egyptian* (n 182) para 143.</footnote>

<footnote n="186">186 *Egyptian* (n 182) para 144.</footnote>

<footnote n="187">187 *Egyptian* (n 182) para 145.</footnote>

<footnote n="188">188 *Egyptian* (n 182) paras 152-153.</footnote>