Maputo Protocol: Advancing African Women's Rights
By Darius Spearman (africanelements)
Support African Elements at patreon.com/africanelements and hear recent news in a single playlist. Additionally, you can gain early access to ad-free video content.
The Maputo Protocol: A Foundation for Women's Rights
The Maputo Protocol, officially known as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, stands as a vital regional agreement for promoting women's rights across the continent (ipas.org). Adopted in Maputo, Mozambique, in 2003, its primary goal is to safeguard, advance, and fulfill the rights of women in Africa. This includes fostering their economic and political empowerment, improving their health, and enhancing their overall well-being (ipas.org).
The Protocol is a legally binding instrument that builds upon the African Charter on Human and Peoples' Rights, specifically addressing the unique challenges faced by women in Africa (tandfonline.com). It covers a broad spectrum of rights, including the right to dignity, the right to life, integrity and security of the person, the right to participate in the political process, and economic and social welfare rights (tandfonline.com). The Protocol also includes specific provisions on sexual and reproductive health rights, aiming to ensure women's control over their bodies and reproductive decisions (tandfonline.com).
Sexual and Reproductive Health Rights (SRHR)
Sexual and Reproductive Health Rights (SRHR) are fundamental human rights that ensure individuals can make autonomous decisions about their sexual and reproductive lives (reproductiverights.org). These rights encompass a range of human rights related to sexuality and reproduction, including the right to make free and informed decisions about one's body, sexuality, and reproduction, free from discrimination, coercion, and violence. Furthermore, SRHR includes access to comprehensive sexual education, contraception, maternal healthcare, and safe abortion services (reproductiverights.org).
Article 14 of the Maputo Protocol specifically recognizes a discrete right to abortion, dictating that governments have a legal obligation to “protect the reproductive rights of women by authorizing medical abortion in cases of rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother” (ipas.org). This article is significant as it provides a legal framework for access to safe abortion services in specific circumstances within the African context (tandfonline.com). General Comment 2 of the Protocol further states that “women must not be subjected to criminal proceedings and should not incur any legal sanctions for having benefited from health services reserved to them, such as abortion and post-abortion care,” which is considered robust language for advocating the full decriminalization of abortion (ipas.org).
Understanding Decriminalization of Abortion
Decriminalization of abortion means removing abortion from criminal law, treating it as a health matter rather than a criminal offense. This aims to reduce unsafe abortions by encouraging women to seek medical care from trained professionals in safe environments, rather than resorting to dangerous “backstreet” procedures due to fear of legal repercussions.
Challenges to Implementation in East Africa
Despite the Maputo Protocol's clear directives, many East African countries face significant challenges in implementing its provisions, especially concerning sexual and reproductive health rights (ipsnews.net). This often leads to contradictions between national laws and policies. For instance, Uganda has experienced a decline in access to sexual and reproductive health and rights for girls and women, which is a core pillar of the Maputo Protocol (cehurd.org).
While the Maputo Protocol allows for the termination of pregnancy, the enforcement of this provision is split across the East African region. Some countries have ratified the protocol, others have not, and some have ratified it with reservations (ipsnews.net). When countries ratify an international treaty with reservations, they formally declare that they do not agree to be bound by certain specific provisions of the treaty (pmc.ncbi.nlm.nih.gov). These reservations often relate to articles that conflict with national laws, cultural norms, or religious beliefs, particularly concerning sensitive issues like abortion or the age of consent (pmc.ncbi.nlm.nih.gov). This weakens the Protocol's overall impact and creates inconsistencies in its application across the continent (tandfonline.com).
The Impact of Colonial-Era Laws
Many of the restrictive laws that hinder SRHR implementation are inherited from colonial powers. These colonial-era laws often criminalize certain sexual and reproductive health services, with penal codes broadly criminalizing abortion and being interpreted narrowly in many African countries (ipsnews.net). These legal frameworks reflected the social, moral, and religious values of the colonizers rather than the indigenous populations (tandfonline.com). They persist today due to a lack of comprehensive legal reform after independence or because they have been maintained by conservative elements within society (tandfonline.com).
In Uganda, for example, 16 women are reportedly dying each day due to a lack of services in public health facilities, and others are dying in communities due to unsafe abortions (ipsnews.net). Outdated colonial policies prevent health workers from providing life-saving services (ipsnews.net). While Uganda’s Ministry of Health has guidelines allowing safe abortions in cases of defilement, rape, and incest, these guidelines are often not implemented in practice (ipsnews.net). Health workers are hesitant to provide abortion services due to fear of legal repercussions, as Uganda’s constitution states that no one can take the life of an unborn child except in exceptional circumstances (ipsnews.net).
Age of Consent and Third-Party Requirements
The “age of consent” in the context of SRHR refers to the minimum age at which an individual is legally considered capable of consenting to sexual activity or medical treatment, including reproductive health services, without parental or guardian permission (pmc.ncbi.nlm.nih.gov). “Third-party requirements” mean that an adolescent needs the approval or involvement of another person, such as a parent, guardian, or spouse, to access certain SRHR services (pmc.ncbi.nlm.nih.gov). These requirements are restrictive because they can create significant barriers for adolescents seeking confidential and timely care, especially for sensitive services like contraception or abortion (bmcpublichealth.biomedcentral.com).
In Malawi and other countries in the region, there are anomalies regarding the age of consent, where an 18-year-old boy can be charged for having sex with a 17-year-old girl, despite them being peers (ipsnews.net). These restrictions can lead to delays in seeking care, unsafe practices, or complete denial of services, particularly for vulnerable adolescents who may fear parental disapproval or lack supportive adult figures (bmcpublichealth.biomedcentral.com).
Adolescent Pregnancy Rates in East Africa
The Crisis of Teenage Pregnancy and Expulsion
Teenage pregnancy and its complications remain a significant public health issue in East Africa (ipsnews.net). The overall prevalence of adolescent pregnancy in East Africa was 54.6 percent, according to the most recent Demographic and Health Survey (DHS) datasets of 12 East African countries (ipsnews.net). In Kenya, the teenage pregnancy and motherhood rate stands at 18 percent, meaning about one in every five teenage girls between 15 and 19 years has either had a live birth or is pregnant with their first child (ipsnews.net). The rate of teenage pregnancy in Uganda has stagnated for over a decade, at 25 percent in 2006, 24 percent in 2011, and now showing trends of rising at 25 percent (ipsnews.net). In Tanzania, 22 percent of women aged 15-19 have been pregnant, according to a 2022 Tanzania Demographic and Health Survey (ipsnews.net).
Pregnant students in Uganda and other East African countries continue to face expulsion, forced school dropout, and stigma in both public and private educational institutions (ipsnews.net). This widespread practice reflects deep-seated systemic discrimination and patriarchal control over young women’s bodies and futures (ipsnews.net). Many young women resort to deadly “backstreet” abortions in an effort to return to school or higher learning institutes, as abortion is still outlawed in Uganda, Kenya, and Tanzania (ipsnews.net). “Backstreet abortions” refer to illegal and unsafe abortion procedures performed by untrained individuals in unhygienic conditions, typically outside of formal healthcare settings (tandfonline.com). The risks associated with these procedures are severe and include incomplete abortion, excessive bleeding, infection, uterine perforation, and damage to other internal organs, often leading to long-term health complications, infertility, or even death (tandfonline.com).
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC)
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) is a body established under the African Charter on the Rights and Welfare of the Child (reproductiverights.org). Its primary role is to monitor the implementation of the Charter by State Parties, interpret its provisions, and consider communications (complaints) from individuals or groups alleging violations of children's rights (reproductiverights.org). In 2020, the ACERWC ruled against Tanzania, finding that its policy of expelling pregnant schoolgirls violated the African Charter on the Rights and Welfare of the Child, specifically the rights to education, health, dignity, and non-discrimination (ipsnews.net).
ACERWC has the authority to issue decisions and recommendations to State Parties, urging them to take specific actions to uphold children's rights (reproductiverights.org). Its rulings are significant as they provide authoritative interpretations of children's rights within the African context and can exert pressure on governments to reform policies and practices that violate these rights (reproductiverights.org).
Rwanda's Progressive Model for SRHR
Rwanda has made significant progress in reforming its laws and policies to improve sexual and reproductive health rights, offering a potential model for other East African countries (ipsnews.net). The nation embarked on reforms since 2009, laying the groundwork for a flexible system regarding sexual and reproductive health (ipsnews.net). Rwanda’s Parliament recently passed a new law granting adolescent girls the right to access Sexual and Reproductive Health (SRH) services, particularly family planning, without requiring parental consent (ipsnews.net).
The legal age to access contraceptives in Rwanda has been lowered from 18 to 15 (ipsnews.net). Furthermore, Rwanda modified its new penal code by eliminating the court’s requirement for an abortion and explicitly including sexual reproductive health rights (ipsnews.net). It is now a crime under Rwanda’s penal code if a woman is denied access to contraceptives, and there are fewer restrictions on safe abortion following the removal of the court order requirement (ipsnews.net). Rwanda’s ministerial order on abortion defines the right to health more broadly, incorporating the scope outlined by the WHO, which includes availability, accessibility, acceptability, and quality (ipsnews.net).
Maputo Protocol Ratification Progress
The Path Forward for Women's Rights in Africa
The Maputo Protocol should be used to protect women and girls’ reproductive health rights, and member states should remove laws that fail to protect these rights (globalissues.org). There is a need for the remaining countries that have not ratified the Maputo Protocol to do so, and for more states to implement provisions that support women and girls’ rights, including access to quality reproductive healthcare (aphrc.org). South Sudan is the 44th country out of 55 African countries to adopt the protocol, highlighting its importance in advancing women’s rights in Africa (cehurd.org).
Governments should address barriers to realizing women’s and girls’ sexual and reproductive rights, such as criminalizing traditional and harmful practices like female genital mutilation and child marriages (aphrc.org). The Maputo Protocol also advocates for the passing of family laws to protect women’s rights before, during, and after marriage, and the establishment of special courts to deal with complex marriage issues (globalissues.org). The protocol includes the empowerment of women and girls to realize their sexual and reproductive health rights through awareness campaigns delivered in communities and schools (globalissues.org). Menstrual hygiene management should be incorporated into national legal frameworks through awareness-raising activities from more actors, especially parliamentarians (globalissues.org). The Protocol offers concrete suggestions for women’s health and rights advocates and provides detailed information to help African women use the protocol to exercise their reproductive rights (oursplatform.org).
ABOUT THE AUTHOR
Darius Spearman has been a professor of Black Studies at San Diego City College since 2007. He is the author of several books, including Between The Color Lines: A History of African Americans on the California Frontier Through 1890. You can visit Darius online at africanelements.org.
