Entrenching impunity in the Convention to end Violence against Women and Girls

By Sibongile Ndashe

Welcome to the fourth edition of our newsletter, where we analyse the developments taking place within our organisation, profession, and sector. We have a deliberately narrow mandate that enables us to achieve our goals of developing feminist jurisprudence, cultivating a network of feminist and movement lawyers, and enhancing our partners’ capacity for strategic litigation. Our work is complemented by efforts to ensure that the mechanisms we use to seek justice are functional and capable of delivering justice for victims. When we analyse legal developments, we position ourselves as users operating at the intersection of gender justice and litigation. It is in this context that we have formed an unfavourable view of some aspects of the new African Union (AU) Convention on Ending Violence Against Women and Girls (the Convention).

The adoption of the Convention was intended to be a moment of celebration for those of us advocating for an Africa where women and girls are free from violence, but it raises significant concerns. We are sounding the alarm about an inherent implementation gap in the Convention, the designation of the African Commission on Human and Peoples’ Rights (the Commission) as the implementing and monitoring mechanism of the Convention under Article 14, which entrenches state impunity.

While we commend the establishment of new normative standards, we also know that effective monitoring and enforcement mechanisms are essential to the functioning of international protection systems. These mechanisms provide victims of human rights violations the means to hold states accountable. Article 12 of the new convention affirms access to justice, allowing victims to hold perpetrators accountable and seek redress for the harm they have endured. The principle of due diligence in addressing violence against women requires states to take reasonable steps to prevent, investigate, punish, and provide redress for acts of violence, irrespective of whether state or non-state actors are responsible. If a state fails to act with due diligence, permitting perpetrators to evade accountability, that state can be held responsible for its inaction.

Article 59 of the African Charter on Human and Peoples’ Rights constitutes a historical injustice that denies victims of rights violations access to justice. The article declares that all measures adopted by the Commission are confidential until the heads of state decide otherwise. It also mandates the chairperson of the Commission to publish the activity report of the African Commission after the heads of state have considered the Commission’s report. Over the years, the African Commission has interpreted the provision to impose blanket confidentiality on cases pending before the Commission, infringing on the right to a fair and public hearing. Victims and their advocates are prohibited from disclosing any information about their cases once they are filed with the African Commission, thereby eliminating their opportunity for out-of-court advocacy based on cases pending before the Commission. Litigation processes are often more effective when supported by out-of-court strategies such as legal mobilisation. We conduct strategic litigation to highlight human rights violations, humanise victims, draw attention to the violations, shape public narratives, foster institutional change, and advocate for reforms. The blanket confidentiality restricts the transformative potential of litigation.

The Commission does not publish a list of pending cases, thereby preventing interested groups from intervening as amici curiae, even though the rules of procedure permit this. This deprives the Commission of the expertise that legal experts contribute to the development of jurisprudence by way of amicus briefs. Moreover, under Article 59, victims are prohibited from seeing decisions until they have been considered by the Heads of States, who only consider decisions once a year, at the January African Union Summit. It used to be twice a year, in January and July, until the AU decided to consider the activity reports only once a year.  Consequently, victims can wait up to two years to receive decisions after they have been adopted. Justice delayed is justice denied.

Adding to this injustice, the AU does not consider the Commission’s decisions, as the African Union imposed a ten-page limit on the activity report shared with the AU. The African Commission does not share the decisions when the activity report is submitted to the AU. The activity report does not contain details of the measures adopted in the cases. The African Commission merely observes a symbolic “consideration of the measures” by marking the dates of the African Union summit. Even after the AU summit, decisions are not immediately transmitted to victims or their lawyers. The Commission awaits the AU’s publication of its summit report, stating that the African Commission’s activity report has been adopted. This year, the African Commission transmitted a decision on June 20, more than four months after the conclusion of the January summit of the AU.

Additionally, the African Commission no longer holds hearings to adjudicate cases. The cases are decided based on written submissions. The right to be heard has been reduced to the right to be read. These are some of the deficiencies that we must explain to our clients who trust us to represent them in a system that is supposed to protect their rights. Article 14 entrenches this system and it is the quality of justice that African women and girls are asked to celebrate as a form of progress. Co-signing a new Convention to this mechanism is not what people who care or believe in access to justice would do. Neither is misinforming the public about the consequences of forging ahead to ratification.

As the oldest human rights mechanism on the continent, Article 59 is a product of its time. Subsequent accountability mechanisms, including the African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child, do not have this provision.  There is a recognition that the provision is a violation of human rights protection. Despite years of advocacy by civil society urging the African Commission to adopt a progressive interpretation of this provision in line with international human rights standards, the anomaly remains.

Both the African Commission and the African Union recognise the issue at hand; however, instead of addressing or responding to it, they have chosen to designate the African Commission as the implementing body and are now collectively pursuing a ratification campaign. They have not proposed any solutions to the problem and have largely ignored the criticism. During the drafting process, there was an expressed reluctance to create a new mechanism. It is, however, unclear how the ailing African Commission became the solution and whether any fitness-for-purpose test was applied before it was chosen. We may never know this because we suddenly find ourselves with a convention that lacks travaux préparatoires, the official documents that record the discussions, negotiations, and drafting of a treaty. These are used to interpret treaties and understand the background that informed the provisions. What is known is that both institutions hold potential solutions to the implementation problem. The AU could entirely remove Article 59 of the Charter, as it serves only to create barriers to justice and has no legitimate purpose. This will take time, but it will resolve the issue. Alternatively, the African Commission could progressively interpret this provision, in line with international best practices, as mandated by Article 60 of the Charter.

Some civil society groups are taking a ratification-first and “let’s fix it later” approach, viewing the glass as half-full. After all, human rights treaties are generally intended to strengthen protections, and in some respects, this convention does achieve this goal. While the desire to forge ahead is understandable, the optimism is misplaced because it overlooks a fundamental issue: Article 59 has been a longstanding problem. The African Charter was adopted in 1981, and the African Commission was established in 1987. The underlying issues have always existed and remain unaddressed. Things can only be fixed when there is a genuine intention to resolve the problems. Those of us who work to repair systems that are broken know that this work starts with an acknowledgement of the problem. We are all too aware that in the African Human Rights System, issues are often allowed to fester. We have been seeking member States that are willing to defend the system against attacks and progressive dismantling by rogue member states, and we have not found one. In the absence of an assurance that proponents of the Convention have intentions and a plan to resolve the implementation gap, asking the hard questions is the least we can do. What is the plan to address the implementation gap?

Solutions to the implementation gap exist; what is lacking is the political will and genuine commitment to ending violence against women and girls. It is often stated that Africa has strong laws, but the real issue lies in poor implementation. In this instance, the implementation challenge is embedded in the Convention, as it assigns implementation and monitoring to a specific mechanism that was not designed to ensure access to justice. We urge the African Union and the African Commission on Human and Peoples’ Rights to give this convention a chance and work to address the implementation gap. Inaction is complicity in the denial of access to justice to women and girls. The glass may be half-full, but the water is contaminated.

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