Published On: 7th October 2026
Authored By: Oladejo Morayo Amarachi
Lead City University
ABSTRACT
Although the African Charter on Human and People’s Rights guarantees fundamental rights and prohibits discrimination, its provisions are expressed largely in general terms and do not acknowledge the specific forms of discrimination, violence and disadvantage faced by women in Africa. The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) sought to address this gap by establishing more specific and substantive protections for women. This Paper critically examines the Maputo Protocol as a legal instrument for the protection of the rights of women in Africa. It evaluates the extent to which the Maputo Protocol has transformed the regional human rights framework for women in Africa by providing specific legal guarantees addressing the distinct forms of discrimination and disadvantage experienced by women in Africa. The Protocol provides a myriad of protections for African women but for the purpose of this paper, the focus will be on four main clusters which include elimination of discrimination against women, protection from violence and harmful practices, protections in relation to marriage and family life, as well as health and reproductive rights.
INTRODUCTION
The Maputo Protocol represents a significant regional legal instrument protecting the rights of women in Africa. It provided protections specifically tailored to African Women and moved beyond the general provisions laid out in the African Charter to provide a legal instrument delineating that reflect the reality of African women. Its key guarantees can be seen to be elimination of discrimination against women, protection from violence and harmful practices, protections in relation to marriage and family life, as well as health and reproductive rights and its significance and impact will be evaluated in light of these protections.
KEYWORDS: Maputo Protocol, African human rights law, women’s rights, gender equality.
THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
The African Charter is the key regional treaty on human rights in Africa. It was adopted on June 27, 1981, by the Organisation of African Unity and enforced on October 21, 1986. The Charter provides for civil and political rights, economic, social and cultural rights as well as peoples’ and group rights. It outlined the rights of all persons in the African continent providing that these rights must be applied devoid any form of discrimination. The Charter ensured that the same rights and privileges were accorded to all persons irrespective of sex or gender.
It is pertinent to note that the Charter explicitly states that every individual shall be entitled to the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.[1] Furthermore, another provision in the same Charter is that, the State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.[2] Hence, from these provisions, it can be seen that the African Charter protects the rights of women. Nevertheless, the Charter lacked specific protections tailored to African women.
THE SIGNIFICANCE AND IMPACT OF THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA (MAPUTO PROTOCOL).
Following the recognition that women’s rights were often marginalised in the context of human rights, a meeting organised by Women in Law and Development in Africa(WiLDAF) in March 1995, in Lomé, Togo, called for the development of a specific protocol to the African Charter on Human and Peoples’ Rights to address the rights of women. The protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa better known as the Maputo protocol is an international human rights instrument adopted by the African Union in Maputo, Mozambique, in 2003 in the form of a protocol to the ACHPR that went into effect in 2005. It guarantees comprehensive rights to women including the right to take part in the political process, to social and political equality with men, improved autonomy in their reproductive health decisions and an end to female genital mutilation.[3]
The significance of the Maputo Protocol lies not merely in its recognition of women’s rights, but in the breadth and specificity of the obligations it imposes on States Parties. Unlike the more general protections contained in the African Charter, the Protocol addresses particular manifestations of gender inequality and establishes obligations aimed at securing substantive protection for women. This development is particularly evident in the specific protections it provides which include:
- Elimination of Discrimination and Promotion of Equality:
The Maputo protocol provides that States Parties shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures.[4] It further provides that States Parties shall commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.[5] In Article 2, the Maputo protocol guarantees the protection of women from all forms of discrimination in public and private places. It urges governments to include the principle of equality between men and women, if not already done, in their national constitutions and other legislative instruments and ensure its effective application. Additionally, State Parties are required to remedy any existing discrimination in the civil, political, economic, social and cultural contexts.[6]The provision of this article is important because it moves beyond merely prohibiting discrimination to placing a positive obligation on States to fight against discrimination through the adoption of appropriate legal instruments and institutional mechanisms as well as the amendment of certain social and cultural patterns of both sexes through public sensitization and education in order to eliminate existing social norms and cultural traditions that perpetuate the discrimination of women.
The Practical significance of this obligation is illustrated by Senate Masupha and Others v Kingdom of Lesotho. This case concerned a rule under Lesotho’s Chieftainship Act which excluded first-born daughters from succession to chieftainship, while permitting first-born sons to inherit. Senate Masupha, together with FIDA-Lesotho and the Southern Africa Litigation Centre, challenged the rule before the African Commission on Human and Peoples’ Rights, arguing that the exclusion violated, among other provisions, Article 2 of the Maputo Protocol. The Commission found that the exclusion of first-born daughters constituted differential treatment on the basis of sex and violated some provisions of the African Charter as well as the Maputo Protocol. It concluded that this law was in violation of the African Charter and Maputo Protocol and consequently directed Lesotho to reform the relevant succession law. This case is particularly significant because it demonstrates in practice, that the Protocol applies not only to discriminatory provisions of statutes but also differential customary laws and traditional practices. This serves as an example of the fact that the Protocol obligates States Parties to eradicate local laws and practices that differentiate between men and women without any legitimate justification. Nevertheless, the case also exposes an important limitation of the Maputo protocol. The fact that such a discriminatory customary law remained operative until legally challenged shows that the combating of gender inequality and implementation of the Protocol depends largely on the compliance of States Parties.
- Protection from Violence and Harmful Practices:
The Maputo Protocol provides a specific framework for the safeguard of women from all forms of violence and practices that may pose harm to them as opposed to the general provisions of the African Charter. The Protocol recognises every woman’s right to life and the integrity and security of her person as well as the prohibition of all forms of exploitation, cruel, inhuman and degrading punishment and treatment of women.[7] The Protocol further provides that States Parties shall take appropriate and effective measures to prohibit, prevent and punish all forms of violence perpetrated against women.[8] This demonstrates the Protocol’s commitment to protection of women and ensuring that they do not become victims of violence. The Maputo protocol does not look at the issue of gender-based violence as one of non-interference by the State. Rather, it urges States Parties to enact laws, prosecute offenders and perpetrators of gender-based violence. This can be seen from the Case of J (Represented by the Initiative for Strategic Litigation in Africa(ISLA) & Kenya Legal and Ethical Issues Network on HIV& AIDS(KELIN) v Namibia.[9] In this Case, the victim applied for an online job in Windhoek, Namibia through a fake job listing. Upon arrival, she was held captive, physically abused, and forced into sexual exploitation for three months before escaping to a local police station. Instead of receiving help, the police accused her of being an illegal immigrant, locked her up for four weeks, threatened her, and denied her access to consular help. The African Commission found Namibia responsible for the violation of Article 2 and 4(2)(g) of the Maputo Protocol among other provisions. The Commission specifically ordered Namibia to investigate, prosecute and punish the perpetrators and to adopt legislative and other measures addressing trafficking in persons, particularly women and children trafficked for sexual exploitation. This Case demonstrates the fact that the obligations of States Parties under the Maputo Protocol does not end merely by enacting laws criminalising gender-based violence but they must also take such steps to ensure the investigation of cases of gender-based violence as well as the prosecution and punishment of perpetrators. At the same time, the fact that the case arose shows the continuing gap between the existence of legal obligations and their effective implementation.
Furthermore, the Protocol also protects women from harmful practices providing that States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards and States Parties shall take all necessary legislative and other measures to eliminate such practices.[10] This provision is particularly significant in relation to female genital mutilation requiring States Parties to prohibit and eradicate such practice through legislative measures backed by sanctions. The African Commission has itself recognised the continuing importance of this obligation, adopting Resolution ACHPR/Res. 493 (LXIX) 2021 on the Development of a General Comment on the Prohibition of Female Genital Mutilation in Africa and expressly recalling that Article 5(b) of the Maputo Protocol prohibits all forms of Female Genital Mutilation. More recently, the ECOWAS Community Court of Justice demonstrated the practical significance of Article 5 in Forum Against Harmful Practices and Others v Republic of Sierra Leone. The Court found Sierra Leone responsible for failing to criminalise female genital mutilation as well as failing to investigate and remedy the harm suffered by the victim. It held that the State’s obligations under the Maputo Protocol include the prohibition and investigation of cases of female genital mutilation as well as the provision of effective remedies to victims of female genital mutilation. This case demonstrates the significance of the Maputo Protocol in ensuring State accountability for gender-based violence. Nevertheless, the continued need for regional litigation on issues of gender-based violence raises an important question on the extent to which the Maputo Protocol has been truly transformative.
- Marriage and Family Rights:
The Maputo Protocol also represents a significant development in relation to the rights of women regarding marriage and family life. It provides that States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall enact appropriate national legislative measures to guarantee that, no marriage shall take place without the free and full consent of both parties and the minimum age of marriage for women shall be 18 years.[11] The significance of this provision is that it urges States to take appropriate measures to prevent and prohibit child and forced marriages. The protocol obligates States Parties to enact relevant laws on the prohibition of underage marriage. This can be seen in the case of Association pour le Progres et la Defense des Droits des Femmes Maliennes(APDF) and Institute for Human Rights and Development in Africa(IHRDA) v Republic of Mali,[12] where the Court ruled that Mali’s Persons and Family Code violated the provisions of Maputo Protocol and African Charter for failing to set the minimum age for marriage at 18 and having provisions that allowed traditional and customary practices to override a person’s free and full consent to marry. The Court ordered Mali to revise and amend the Code to align with international human rights standards as well as inform and educate the public about these rights and legal obligations. This case reflects the practical relevance of the Maputo Protocol requiring States to abolish laws that perpetrate child and forced marriages. Moreover, apart from marriages, the protocol also recognises the rights of women in relation to separation and dissolution of marriages. It provides that States Parties shall enact appropriate legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage.[13] This ensures that both women and men have the right to initiate a separation, divorce or annulment of a marriage.
The Maputo Protocol has undoubtedly created a regional legal instrument governing women’s position in marriage and family life in Africa. It sets the minimum age for marriage at 18, requires free and full consent for marriage and recognises women as equal partners in marriage. Nevertheless, its practical transformative effect depends on the willingness of States to reform discriminatory family laws and ensure that customary and traditional practices align with regional human rights standards.
- Health and Reproductive Rights:
The Maputo Protocol makes an important contribution to the health of African women by expressly recognising the right of women to sexual and reproductive health. It provides that States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted including the right to control their fertility, to decide whether or not to have children and the number and spacing of the children, to choose any method of contraception, and to be protected against sexually transmitted infections.[14]The protocol further requires State Parties to take all appropriate measures to provide adequate, affordable and accessible health services, to women especially those in rural areas, establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding and protect the reproductive rights of women by authorising 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 foetus.[15]
Thus, the Protocol provides rights recognising the peculiar circumstances faced the women in relation to sex and reproduction. It gives cognizance to the fact that women bear the pain and discomfort that comes with child bearing so it is rational that they should have autonomy over decisions relating to the birthing of their children. Also, it recognises the right of women to exercise control over their fertility and to use any method of contraception as they deem fit. It acknowledges that the burden of reproduction is placed on women and offers certain protections to reduce this burden. It also places obligations on States Parties to ensure that women have affordable and equal access to healthcare particularly women in rural areas who have limited or no access to healthcare and this extends to the provision of healthcare and nutritional services to women during pregnancy, delivery and while they are in post-partum period and the authorisation of abortion in special circumstances and cases where it is medically necessary thus advocating for women to have control over their bodies and identifying special situation where women may become pregnant under less ideal circumstances to terminate said pregnancy.
This demonstrates that the Protocol has substantially transformed women’s rights in Africa, particularly by recognising reproductive autonomy as an express component of women’s rights. Nevertheless, its practical impact depends upon domestic implementation and willingness of States to recognise these protections and eliminate barriers.
CONCLUSION
From the foregoing, it is evident that the Maputo Protocol has transformed the legal framework for the protection of women’s rights in Africa by providing distinct and detailed protections addressing the reality faced by women in Africa. Nonetheless, while it has transformed the human rights framework for women in Africa. Its practical impact remains largely dependent upon the will of States to implement these protections.
REFERENCES
[1] African Charter on Human and Peoples’ Rights(ACHPR), adopted June 27, 1981, enforced October 21, 1986, art 2.
[2] ACHPR, art 18(3)
[3]`Maputo Protocol’(Wikipedia), https://en.wikipedia.org accessed 17 August, 2026.
[4] The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) adopted on July 11, 2003, enacted on November 25, 2005, art 2(1).
[5] Maputo protocol, art 2(2).
[6] AfricanLii `Elimination of discrimination against women(africanlii.org), https://africanlii.org accessed 17 August, 2026.
[7] Maputo Protocol, art 4(1).
[8] Maputo Protocol, art 4(2).
[9] Communication 734/19, African Commission on Human and Peoples’ Rights, [2024] ACHPR 11 (8 March 2024).
[10] Maputo Protocol, art 5.
[11] Maputo Protocol, art 6(a) and (b).
[12] Application No 046/2016, African Court on Human and Peoples’ Rights, [2018] AfCHPR 9(11 May 2018).
[13] Maputo Protocol, art 7.
[14] Maputo Protocol, art 14(1).
[15] Maputo Protocol, art 14(2).
