COMPARISONBETWEENTHEMAPUTOPROTOCOL

ANDTHECONVENTIONONELIMINATIONONALL
FORMSOFDISCRIMINATIONAGAINSTWOMEN.

REGARDS: FLB 318 - GENDER AND THE LAW (MUSOL)

THE MAPUTO PROTOCOL
The Maputo Protocol commonly known by the name the Protocol to the African
Charter on Human and Peoples Rights on Womens Rights[1] in Africa is a widely
commemorated and internationally accepted and most progressed treaty that champions
on womens rights. The protocol exemplifies a focus on African women and driven
framework for comprehensive human rights which brings out a clear implication that
African has the capacity to determine, lead and innovate itself.
The Maputo Protocol is a treaty instrument that is binding on all countries that
ratify it. It went into effect in November 2005, after the minimum 15 of the 53 African
Union member countries ratified it. As of June 2009, according to the African Union, 45
nations had signed it and 28 had formally ratified it: (Angola, Benin, Burkina Faso, Cape
Verde, Cameroon, Cape Verde, Comoros, Democratic Republic of Congo, Djibouti,
Ghana, Gambia, Guinea Bissau, Libya, Lesotho, Liberia, Malawi, Mali, Mozambique,
Mauritania, Namibia, Nigeria, Rwanda, South Africa, Senegal, Seychelles, Tanzania,
Togo, Zambia and Zimbabwe).[2] Those who ratify the treaty are called States Parties.
Proponents of the Maputo Protocol present it as a method of combating female
genital mutilation in Africa, where it is more common than elsewhere. It is estimated that
this harmful practice is performed on approximately two million women a year
worldwide. Pro-Protocol forces often try to portray opponents of the Protocol as callous
toward womens rights, even though Maputo Protocol is not principally aimed at
eradicating female genital mutilation.
Key points of the Maputo Protocol
Guarantees for and recognition of the civil, political, economic and cultural rights of
women (Articles 8, 9, 12, 13, 17)
Assurance of all basic, internationally recognized human rights for women (Articles 2,
3, 4)
Protection from traditional practices that is harmful to health, such as female genital
mutilation (Article 5)
The right to peace and special protection for women during armed conflicts (Articles
10, 11)
The right to health and reproductive rights, the right to food (Articles 14, 15, 18)
Equal treatment of women and men under the law, with equal legal protection and equal
access to justice (Articles 2, 8)
Protection of women from exploitation and degradation (Articles 2, 3, 4)

 Consideration of women in the enactment of legislation pertaining to marriage,

particularly regarding polygamy, forced marriage, early marriage and the rights of
widows (Articles 6,
7, 20, 21)
CRITICS OF THE MAPUTO PROTOCOL
1. False Advertising: The Maputo Protocol is Not Primarily About Female Genital
Mutilation (FGM). The Maputo Protocol is being sold throughout Africa and the world as
primarily an instrument to combat FGM in Africa. Yet the document with 23 substantive
pages, mentions FGM in only one sentence. That sentence does not appear until Article 5,
Section b on page 7 of the protocol and is not highlighted as especially important. Article
5 (called Elimination of Harmful Practices), Section b insists on the prohibition
through legislative measures backed by sanctions, of all forms of female genital
mutilation, scarification, medicalization and para-medicalization of female genital
mutilation and all other practices in order to eradicate them.
2. Death for the Unborn: The Maputo Protocol Demands Total Abortion
Legalization.Article 14, Health and Reproductive Rights, calls for the legalization of
what would be in effect abortion-on-demand in Africa. As typically interpreted by
international jurists and Western courts, the language of the Maputo Protocol would
legalize any abortion for any woman at any point in pregnancy, even in the ninth month.
All effective restrictions on abortion would be abolished by the Protocol. It also demands
the governments promote other policies that Catholics and others believe to be immoral.
3. Culture War: The Maputo Protocol is About the Eradication of Traditional African
Family Cultures. In contrast to its passing mention of FGM, the Maputo Protocol is full
of radical feminist language about the complete transformation of African cultures into a
Western, Marxist-style genderless utopia. The Maputo Protocol is a blueprint aimed a
Africa for continent-wide feminist social transformation that, like all radical leftist
transformations, will destroy families, lessen community, uproot tradition, and enhance
the power of ruling governmental elites.
RECOMMENDATIONS ON THE MAPUTO PROTOCOL
(1) We recommend that the African nations which have not yet ratified the Maputo Protocol
refuse to ratify this document.
(2) If preventing ratification is not possible, States should make formal reservations to the
pro-abortion language in article 14 and anti-family provisions in other parts of the
Protocol.
(3) African nations, especially health ministers, should resist anti-life policy changes
coming from the Maputo Plan of Action which calls for policies and legal frameworks to
reduce the incidence of unsafe abortion, training service providers in the provision of
comprehensive abortion care services where national law allows, and implementation of
safe abortion services to the fullest extent of the law.
CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (CEDAW)

It was Adopted and opened for signature, ratification and accession by General
Assembly
Resolution 34/180 of 18 December 1979 that entered into force 3 September 1981, in accordance with
article 27(1). 96 countries have ratified or acceded to CEDAW, including nations with significant Muslim
populations and traditions such as Algeria, Egypt, Indonesia, Iraq, Jordan, Morocco and Yemen.

The charter of the UN reaffirms faith in fundamental human rights, in the dignity
and worth of the human person and in the equal rights of men and women. It contains 30
articles.

CEDAW outlines important aspects of the rights of women. These include:

Voting, being elected to political office - Article 2a provides a view about
theConstitution that States Parties condemn discrimination against women in all its
forms, agree to pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake: To embody the principle of the
equality of men and women in their national constitutions or other appropriate legislation
if not yet incorporated therein and to ensure, through law and other appropriate means,
the practical realization of this principle;

Participating in public life (Article 7c) Womens participation in NGOs and in politics. States
Parties shall take all appropriate measures to eliminate discrimination against women in the
political and public life of the country and, in particular, shall ensure to women, on equal terms
with men, the right: To participate in non-governmental organizations and associations concerned
with the public and political life of the country.

Equal access to quality education (Articles 10a & 10b)

Proper nutrition and healthcare including reproductive rights
Equal employment opportunities and fair pay
economic rights including access to bank loans
right to participate in cultural activities and sports
equality in civil matters including contracts and property ownership
freedom of movement and residence (Article 15.4)
freedom in entering into marriage and choosing a spouse
equal guardianship rights to children
temporary special measures to achieve equality (Article 4.1)
participation at the international level (Article 8)
equal involvement in rural development (Articles 14.2a, 14.2b & 14.2f)

COMPARISON BETWEEN MAPUTO AND CEDAW

Compared to the CEDAW the MAPUTO protocol provides in greater detail for the
protection of women In armed conflict[3] and reiterates the need to accord women
refugees the protection under international law[4].
Under the MAPUTO protocol the girl-child may in particular, not be recruited or take a
direct part in hostilities.[5]
The scarcity of copious reservations that marks the Maputo Protocol is in stark contrast
to the CEDAW, which is presumably the human rights instrument with the highest

number of reservations. It is conceivable that the low occurrence of reservation in the

Maputo Protocol may be seen as signaling heightened conscientiousness and deliberative
adoption in a manner that may actually offer partial explanation for a gap in ratification.
Africas reservations formalistically aimed to preclude the risk of compromising
favorable national laws that were perceived as superior affirmations of the protocols
ideals. Again, if the incidence and nature of reservations is a measure of favorable human
rights bias, we proffer that African states generally exhibit patterns that intimate a
friendly predisposition towards human rights. Incidentally, only a few African states
ratified the CEDAW with reservations and the number of reservations entered against the
Maputo Protocol is even more negligible; as of 2007, only South Africas ratification was
encumbered with reservations.
Under the protocol, state parties must set the minimum age of marriage at 18, and all
marriages must be recorded in writing.[6]
Compared to the CEDAW, the MAPUTO protocol provides specificity where vagueness
prevailed, a good example being where it clarifies that positive African cultural
values[7] are those that are based on the principles of equality, peace, freedom, dignity,
justice, solidarity and democracy.[8]
The MAPUTO protocol also spells out the scope of socio-economic rights in greater
detail than the CEDAW, which limited some socioeconomic rights to rural women[9]
Under the MAPUTO protocol, women have the right to food security,[10] and
adequate housing.[11]
The MAPUTO protocol also adds that the state parties must reduce military spending In
favor of social spending, particularly on women.[12]
The protocol also reflects on various precarious position of groups of women that have
rendered particularly vulnerable due to loss of a spouse,[13] old age[14], disability,
[15]and poverty[16].
While CEDAW contains a generic provision allowing for temporary special measures
aimed at accelerating de facto equality between men and women[17], the MAPUTO
protocol reiterates the need for positive measures by locating them in different contexts.
The protocol insists on states adopting measures that favor women above men such as
electoral quotas for women in order to ensure substantive equality.[18]
It may be argued that the differences between the protocol and CEDAW are more
apparent than real because in the general comments, resolutions, concluding
observations, and findings, the CEDAW committee has expanded the scope of the
relevant treaties. The clarifications however despite their considerable persuasive weight
do not lead to binding obligations. The MAPUTO protocol has advanced an undeniable
normative step further over the CEDAW by making those clarifications unequivocally
binding and by supplementing them.
The protocol has addressed some positive action required with regard to discrimination
in law[19], illiteracy and education.[20]
Compared to CEDAW, the MAPUTO protocol speaks in clearer voice about issues of
particular concern to African women, locates CEDAW in African reality, and returns into
its fold some casualties of quests for global consensus, resulting from the adoption of

CEDAW. More specifically, the protocol expands the scope of protected rights beyond
those provided for under the CEDAW and it deals with rights already covered in CEDAW
with greater specificity. Importantly it emphasizes the private sphere as an important
domain in which are to be realized and it underlines the need for positive action.[21]
The protocol expands the protective scope of womens rights by addressing numerous
issues of particular concern to African women that were not included in CEDAW. The
womens protocol is the first treaty to provide for the right to circumscribed medical
abortion.[22] It is the first binding treaty to provide for the right of woman to be
protected against HIV infection and to know the HIV status of her sexual partner.[23]
The drafting history of the protocol testifies to the contentious nature of polygamy.
Although initial drafts called for its abolition, the protocol places an obligation on state
parties to encourage monogamy.[24]
The protocol requires domestic violence legislation and the criminalization or rape in
marriage as a necessary implication of targeting violence against women and unwanted
or forced sex in the private sphere.[25] States are therefore under an obligation to enact
and enforce laws that prohibit domestic violence.[26]
However, in favor of the CEDAW, The Maputo protocol has been named a clear Trojan
horse in that it appears to be one thing a gift to the African people but is actually
another thing which is far deadlier. The Maputo Protocol is the ideal instrument to
legalize abortion all over Africa. The Protocol allegedly is an instrument to fight female
genital mutilation (FGM), but in all of its 23 pages, it mentions FGM in only one
sentence. However, Article 14 (2) (c) of the Maputo Protocol reveals what the true
objective of the document really is. It states plainly that States Parties shall take all
appropriate measures to... protect the reproductive rights of women by authorizing
medical abortion in cases of sexual assault, rape, incest, and where the continued
pregnancy endangers the mental and physical health of the mother or the life of the
mother or the fetus. The World Health Organization has defined health as A state of
complete physical, mental, and social well-being and not merely the absence of disease or
infirmity.

References
1. An introduction to the protocol to the African Charter on Human and Peoples Rights on
the Rights of Women in Africa, Frans Viljoen
2. A guide to using the protocol on the rights of women in Africa for legal action.