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AFRICA: Maputo Protocol a Work in Progress

NAIROBI, Aug 20 2010 (IPS) - Kenyans are still euphoric over the referendum endorsing a progressive new constitution; but the heat generated by its opponents around their main rallying point – abortion rights – is a reminder of the wide gap between law and implementation in Africa, particularly when it concerns women’s rights.

Article 26, clause 4 reads: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.”

Those opposed to Kenya’s new constitution, including the National Council of Churches in Kenya and some prominent serving and retired politicians, were united on the premise that the clause is an assault on family and morality.

Abortion was not mentioned in the draft constitution until the No Campaign scored an early, pyrrhic victory in persuading the Parliamentary Select Committee to add text defining life as beginning at conception, and limit abortion to cases where a physician feels the mother’s life is in danger.

The Committee of Experts charged with the final drafting sighed, and delicately expanded the definition in line with the country’s commitments under the 2003 Maputo Protocol, the African Union treaty dealing with women’s rights.

The Maputo Protocol

Forty-six African governments have signed the Maputo Protocol - properly known as the Protocol to the African Charter on Human and Peoples’ Rights on Women in Africa.

Kenya signed in 2005, but the government has delayed ratification, citing reservations over the clause specifying that women and men will enjoy equal rights and be regarded as equal partners in marriage. The abortion clause has emerged as a second stumbling block.

The Maputo Protocol guarantees a host of rights to the continent’s women, including equality and non-discrimination on the basis of gender; protection from harmful cultural practices and domestic violence; as well as equal pay and spousal benefits, recognition of the value of women's work in the home, and paid maternity leave.

Reluctant to ratify

It came into force in November 2005, after the required 15 member states ratified it, but to date only 28 of the continent’s 53 states have completed ratification. Kenya’s twin objections are a good indicator of the reasons for the delay elsewhere.

In Sudan, a broad spectrum of government and civil society actors are opposed to sections of the protocol.

“Some provisions of the protocol such as the issue of equality, equality before the law and in inheritance, control of fertility are still debatable among legislators, religious leaders and policy makers. Even some women groups are having some reservations,” said Sidiga Washi, a former president of the Babiker Badri Scientific Association for Women Studies, which works for the empowerment of rural women in Sudan.

Washi supports ratification, saying the delay affects the work of Sudanese women’s organisations, particularly on reproductive health rights, legal discrimination and violence against women.

“It also contributes to lowering the visibility of the women’s rights issues provided for in the Protocol and discourages women who are willing to seek justice [from doing so].”

In Mali – which has ratified the Protocol – conservative Muslim clerics organised mass protest against a new family law that granted women and men equal inheritance rights (in Mali’s Muslim tradition, a woman is entitled to only half the share given to her brothers).

The new law also entitled Malian women to work without requesting their husband’s permission and removed references to wives obeying their husbands, replacing this, attractively, with the statement that, “Spouses owe each other fidelity, protection, relief and assistance. They commit themselves to the community of life on the basis of affection and respect.”

Rwanda shares Kenya’s reservations over the Protocol’s Article 14 on reproductive rights.This is seen as opening the door to “encouraging immoral behaviour”.

“It would be a tragedy to officially legalise activities which involve the termination of a pregnancy,” the permanent secretary in the ministry of health, Agnes Binagwaho, told IPS.

“Endorsing the right to abortion in the case of rape has several risks as regards to the family planning in Rwanda,” she said, without specifying these.

Zaina Nyiramatama, the executive secretary of Haguruka, a local NGO advocating the rights of women and children, told IPS the focus must be on greater use of family planning.

“It is important to emphasise the use of contraceptive methods rather than abortion, in order to avoid the risk of unintended pregnancy,” she said.

Family planning vital

But Kenyan advocates of expanded access to abortion agree. “We are not proponents of abortion,” Dr Koki Muli-Kinangwa, a member of the Kenya Medical Women’s Association, told a July press conference.

Kenya’s obstetricians and gynecologists agree that the focus should be on preventing unwanted pregnancy and expanding family planning services. But pointing to a 2004 study estimating that 300,000 abortions take place in Kenya every year, they are trying to avoid 20,000 women ending up in hospital after who end up hospitalised after seeking an illegal abortion.

“Abortion cannot be alleviated through punitive action or denial of proper healthcare services and education,” said Muli-Kinangwa.

Dr Joachim Osur, a Kenyan reproductive health expert, says those who see the Protocol’s – or the constitution’s – provisions as merely expanding access to abortion are missing the broader picture.

“People seem to think the health of a woman is not a priority. While Kenya signed the Protocol, it is clear they have no intention of ratifying it, which is a backlash against women’s rights,” says Osur.

He says the Protocol seeks to address a broad range of problems women face.

Grace Maingi the executive director of Federation of Women Lawyers-Kenya, says the Protocol is the first African treaty which specifically addresses the issues of the contemporary African woman, including conflict, displacement, land rights and inheritance, but she fears its ratification by Kenya is still some way off.

“Based on the fierce resistance that was witnessed and the heightened temperatures when debating those issues [in the constitutional context], those pushing for the country to ratify the Maputo Protocol have an uphill task,” Maingi says.

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