Home > Event > Thematic Workshop on Article 14 of the Maputo Protocol: 22-23 June
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22 June, 2015
0800
Johannesburg, South Africa,

22-23 June, Johannesburg South Africa

We have partnered with the Community Law Centre, University of the Western Cape, to jointly convene a workshop focusing on the two general recommendations recently adopted by the African Commission. The workshop aims to facilitate a conversation based on the content of the general recommendations with the aim of encouraging strategic litigation. Participants are drawn from academia, legal practices, NGOs and NHRIs.

Most of our events are by invitation only. We do however reserve five seats for individuals who can demonstrate the importance and value of attending the events.

Contact us for more information

Colloquium on Advancing Sexual and Reproductive Health and Rights in Africa Through Strategic Litigation

The adoption by the African Union of the Protocol to the African Charter on the Rights of Women in 2003 sets the stage for the realisation of women’s rights, particularly sexual and reproductive health and rights in Africa. The African Women’s Protocol has been celebrated and acclaimed as one of the most radical human rights instrument that explicitly addresses the health needs of women. For the first time in the history of any human rights instruments the Protocol contains provisions relating to the sexual and reproductive health and rights of women, protect women’s rights in the context of HIV, and allows for abortion on limited grounds. The African Women’s Protocol supplements the African Charter and compliments CEDAW on matters relating to the protection and recognition of women’s rights. Both the Charter and the Women’s Protocol draw inspiration from international human rights law. African leaders recognized the need for appropriate change in order to protect, promote, respect and fulfil women’s rights including sexual and reproductive health and rights in Africa.

Numerous provisions of the African Women’s Protocol, including article 14 are ground- breaking in so many ways. For instance, the Protocol safeguards women’s right to inheritance, protection from harmful cultural practices, political participation, economic development and empowerment and to sexual and reproductive rights autonomy, including right to seek abortion on limited grounds. Thus, the foregoing makes the Women’s Protocol one of the few important human rights instruments -internationally and regionally- that specifically give recognition to the sexual and reproductive health and rights of women. It remains one of the most radical and progressive human rights instruments in the context of sexual and reproductive health and rights (Banda 2006; Center for Reproductive Rights 2006). Indeed, the Protocol is the only international human rights instrument that makes specific references to sexual health and rights. Its counterpart at the international level, CEDAW, does not contain specific provisions affirming women’s rights to sexual and reproductive health as a human right nor does it contain a specific provision protecting women’s rights in the context of HIV. Therefore, it has been rightfully stated that Article 14 blazed a trail in terms of explicit recognition of sexual and reproductive rights of women (Banda 2006; Durojaye 2009). This is significant in the African context where the existence of a domain of women’s sexuality that is distinct from the reproductive role is generally contested.

As a way of further clarifying some of the contents of article 14 of the Protocol the African Commission on Humana and Peoples’ Rights has issued two important General Comments in this regard. For the first time in the history of the Commission a General Comment on article 14 (1) (d) and (e) of the African Women’s Protocol was issued in October 2012 to clarifying the nature of state’s obligations contained therein. In this General Comment, the African Commission explains that while the African Women’s Protocol distinguishes between the right to self-protection and the right to be protected from HIV in Article 14 (1) (d), this provision is interpreted to refer to states’ overall obligation to create an enabling, supportive, legal and social environment that empowers women to be in a position to fully and freely realise their right to self-protection and to be protected. According to the General Comment, the right to be informed on one’s health status includes the rights of women to access adequate, reliable, non-discriminatory and comprehensive information about their health. The right to self-protection and to be protected includes women’s rights to access information, education and sexual and reproductive health services. The right to self- protection and the right to be protected are also intrinsically linked to other women’s rights including the right to equality and non-discrimination, life, dignity, health, self-determination, privacy and the right to be free from all forms of violence.

In its second General Comment, the African Commission focuses provisions in the Protocol dealing with women’s reproductive self-determination as stipulated in Article 14.1 (a), (b), (c) and (g) and Article 14.2 (a) and (c). In this regard the Commission explains that reproductive self-determination encompasses women’s rights to make autonomous and voluntary decisions concerning their reproductive health and being able to fulfil those decisions. According to the Commission, social  norms  and structures  which  promote and  sustain gender-based inequality must be addressed and transformed in order for women to meaningfully claim and enjoy their reproductive freedom and rights. These General Comments serve as authoritative interpretation of the provisions of the African Women’s Protocol that should guide states in realising their obligations under the instrument. It is expected that states will take them seriously.

However, the usefulness and relevance of these General Comments will be defeated if they are not put into proper use. Experience has shown that most policy makers and government institutions, including human rights institutions officials at the national level are often ignorant of policy documents emanating form the African Commission.

Until recently, the foremost human rights body, the African Commission has not had the opportunity to deliver a judgment specifically focusing on sexual and reproductive health and rights of women in Africa. The near absence of communications over the years dealing with issues affecting the sexual and reproductive health and rights of women testifies to a lack of capacity or expertise in this area. Experience has also shown that National Human Rights Institutions play important role in advancing human rights in general and sexual and reproductive rights at the national level. Against this backdrop, the Community Law Centre at the University of the Western Cape and Initiative for Strategic Litigation in Africa (ISLA) propose a workshop for lawyers, academics and –personnel of regional human rights bodies and national human rights institutions (NHRIs) on the continent. This will be our inaugural workshop and if it is successful in meeting its objectives, we hope to proceed and have similar convenings in other parts of the continent.

Goal: To advance sexual and reproductive health and rights through strategic litigation in Africa.

Objectives

  •  To build capacity of lawyers of and personnel of regional human rights bodies and national human rights institutions to adopt strategic litigation as a tool for advancing sexual and reproductive health and rights
  • To educate lawyers, academics and researchers on the continent about the relevance of the article 14 of the African Women’s Protocol and the General Comments adopted by the African Commission explaining this provision.
  • To stimulate debate and discussion on sexual and reproductive health and rights provisions of the African Women’s Protocol among lawyers and personnel of and personnel of regional human rights bodies and NHRIs on how these can be put into better use.

Strategies

2- day Workshop on litigating sexual and reproductive health and rights

This workshop will bring together lawyers, academics and personnel of regional human rights bodies and NHRIs across Africa with a view to fostering a conversation on how strategic litigation on issues relating to sexual and reproductive health and rights guaranteed in the African Women’s Protocol can be pursued. The workshop will explore the provisions of article 14 of the African Women’s Protocol and the two General Comments adopted by the African Commission in this regard and the challenges and opportunities to litigating these rights. The workshop will also have a session on demystifying litigation before the regional human rights systems.

Thus, discussion will focus on the following issues:

a. Understanding reproductive health and rights and sexual health and rights: To have a conversation about the normative content and scope of these rights with a view to thinking about the specific standards that should be developed by courts. We will also look at the international and regional frameworks for sexual and reproductive health and rights

b. The link between human rights principles and sexual and reproductive health: To have a conversation about the evolution and incorporation of sexual and reproductive health into the human rights discourse with a view to understanding and identifying the multiple ways in which sexual and reproductive health and rights are violated.

c. Strategic litigation: To have a discussion on the use of strategic litigation on sexual and reproductive health in the continent, focusing on standing, development of the jurisprudence, enforcement and impact. We will also invite experts from the European and Inter-American human rights systems to share their experiences of litigating in this area.

d. Litigation before the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights: There is a need to demystify litigation before the regional human rights systems by providing information to practitioners on the requirements for submitting a case before the regional human rights systems particularly the requirement for exhausting domestic remedies.

e. Strategies for the first cases: There is a need to think through strategies for the first cases on sexual health and reproductive rights and/or women’s rights to be submitted before the African Court and the Commission. We would like to have a conversation on the issues that we should focus on when seeking to formulate the first cases before the African Court and the Commission.

f. Develop a strategy balancing important “easy win” cases with cases that will be complicated procedurally and substantively to litigate.

i. While there is a full range of jurisprudence – easy and tough – to develop, we would be seeking to focus on those issues that need more careful argument and approach before national courts and the other regional mechanisms.

ii. Are there particular “easy” cases that we might bring to get some quick wins to embolden women’s rights advocates about the possibilities of litigation?

iii. What are the most important complicated cases that will require the biggest investment of time or expertise?

g. Partnerships are critical to strategic litigation, and there is a need to find strong local partners to identify cases, exhaust domestic remedies and provide support to the complainant during international litigation.

i. Given that strong local partners are central to litigation work, we are concerned with identifying appropriate partners and ensuring their capacity. We are conscious of the fact that a number of organisations working on women’s rights litigation provide volume or repeat litigation therefore it becomes difficult to find local partners who consistently work on strategic litigation. We are interested in exploring the role that NHRIs and other actors could explore in enabling litigation.

ii. We are also aware of the fact that domestic litigation is rarely conducted with international and comparative law in mind and therefore the incorporation of international human rights standards in pleadings before domestic courts rarely happens timely and thus become difficult to introduce new issues on appeal.

Approximately 20 lawyers and personnel of regional human rights bodies and NHRIs will participate in this 2-day workshop. It is hoped that at the end of this workshop test cases on sexual and reproductive health and rights will be increased in Africa in general and SADC region in particular. The workshop will adopt an interactive approach involving highly regarded faculty people leading the discussions.

Providing technical support for lawyers to litigate on Sexual and Reproductive health and rights In addition to providing training and workshop for lawyers to develop litigation strategies on sexual and reproductive health and rights, this project will render technical assistance to lawyers involved in litigation on sexual and reproductive health and rights. This will be in form of conducting research and assisting in drafting litigation documents at national and regional levels.