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By:Anne Mugo Aug. 1, 2023

On the 11th of July 2023, African nations commemorated two decades since the inception of the Maputo Protocol, a meaningful and progressive legal framework for women's rights, widely regarded as one of the most significant of its kind worldwide. However, despite this milestone, the expected progress has eluded us, and instead of celebrating two decades of advancements toward gender equality and the fulfillment of women's rights, I, as an African woman, find myself compelled to reflect on the multitude of broken promises made by our leaders in 2003. The Maputo Protocol, also known as the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, emerged as an international treaty adopted by the African Union (AU) in 2003. Following its inauguration in Maputo, Mozambique, it gained force in 2005 after ratification by 15 AU member states. At its core, the Maputo Protocol seeks to champion and safeguard women's rights throughout Africa, striving to establish gender equality and eradicate all forms of discrimination against women. This comprehensive protocol addresses a wide array of crucial issues, encompassing Women's Rights, Violence Against Women, Child Marriage, Reproductive Rights, and women's Participation in Politics.

Looking at the comprehensive report, that was jointly prepared by the Solidarity for African Women’s Rights Coalition (SOAWR), Equality Now, and Make Every Woman Count (MEWC), bears the title '20 Years of the Maputo Protocol: Where are we now?' we still have a long way to go. This assessment brings to light both the strides made and the persistent gaps in the implementation of the Maputo Protocol to date as follows;

In the twenty years since the adoption of the Maputo Protocol, Article 6 has sought to address the critical issue of child marriage by stipulating the minimum age for marriage as 18 years. Despite the existence of this progressive legislation, the reality is disheartening. In 2018, young girls from Africa constituted a staggering quarter of the 75 million reported child brides worldwide, as revealed by the United Nations. Even more concerning is the fact that some African countries have managed to circumvent the intent of the Maputo Protocol by creating laws that permit marriage under the age of 18. Disturbingly, 11 countries, including Cameroon, Seychelles, Sudan, South Africa, Burkina Faso, Gabon, Guinea-Bissau, Mali, Niger, Senegal, and Tanzania, currently allow girls below the age of 18 to enter into marriage.

A multi-pronged approach is essential to fulfill the Maputo Protocol's ambitious goal of eradicating child marriage. Firstly, there should be a committed move towards the criminalization of all marriages involving individuals under the age of 18 across Africa. This step is crucial to discourage the practice and ensure the protection of young girls from early and forced marriages. Additionally, a comprehensive review and amendment of existing laws that permit marriage under the age of 18 are imperative. By closing these legal loopholes, African nations can reinforce their commitment to safeguarding the rights and well-being of girls. Furthermore, addressing the root causes of child marriage is crucial. This includes investing in education, providing economic opportunities, and promoting gender equality. Empowering girls and young women can pave the way for a brighter and more equitable future for all.

Under Article 14 of the Maputo Protocol, African States “shall ensure that the right to health of Women, including sexual and reproductive health, are respected and promoted.” In Kenya, the Protocol was signed and ratified in October 2010, effectively becoming a part of Kenya's legal framework in accordance with Articles 2(5) and 6 of the 2010 Constitution of Kenya. It is crucial to note that while ratifying the Protocol, Kenya appended a reservation to article 14(2) (c), which pertains to women's reproductive rights. This reservation relates explicitly to authorizing medical abortion in cases of sexual assault, rape, incest, or when the continued pregnancy poses risks to the mental and physical health of the mother or the life of the mother or the fetus. This unfortunate reality highlights that when Kenyan leaders were presented with a crucial opportunity to safeguard women’s bodily autonomy and empower them, they chose to avert their gaze and be guided solely by their personal beliefs.

Furthermore, we have continued to see worrying statistics that highlight the poor state of sexual and reproductive health rights in Kenya. Last year, the Ministry of Health shared statistics that in 2021, Kenya had the third-highest teenage pregnancy rate worldwide; 98 new HIV infections were recorded every week among adolescents of age 10-19 years, and adolescents aged 10 -19 accounted for 53 % of all sexual gender-based violence cases. These heartbreaking statistics are not what Article 14 of the Maputo Protocol envisioned. The report further highlights that while many countries across Africa have adopted laws that address the treatment, detection, and prevention of HIV, many of these laws also include provisions that criminalize the non-disclosure, exposure, or transmission of HIV. In recent years, the over-criminalization of HIV has been identified as creating barriers to accessing prevention, treatment, and care services.

The Vision of the Maputo Protocol, which was to set African women and girls free from all the harmful beliefs, practices, and laws that take away their human rights, will only be a reality if African Countries are intentional about using the Maputo Protocol to protect women's and girls’ rights. For the countries that are yet to sign and ratify the Protocol, they need to urgently realize that they have women in their countries and hence need to protect their rights. Meanwhile, for the countries that have ratified the Protocol but have not taken substantial action toward its implementation, it is essential to acknowledge that women are still waiting for the promises made to them upon ratification to be fulfilled. Mere endorsement without meaningful action denies women the transformative impact the Protocol can bring to their lives. By embracing, ratifying, and diligently implementing the Protocol, African countries can pave the way for a brighter, more equitable future where women and girls can lead lives of dignity, autonomy, and empowerment.