Exploring the potential of the dominance feminist approach in interpreting socioeconomic rights in the Maputo Protocol

2.1 Concrete socio-economic rights lived reality of Africa’s women

Africa’s women have been experiencing discrimination and widespread socio-economic inequality from their male counterparts, simply by being women. Their oppression is caused by social and cultural arrangements, which require women to submit to men because of their sex.19 As a result of male dominance, Africa’s women’s socio-economic rights reality is covered with stories of violations, discrimination, exclusion, illiteracy, and deep patterns of poverty.

Male dominance is prevalent in women’s rights to marriage and family. It includes child marriage, virginity testing, widowhood practices, witchcraft, extreme dietary restrictions (forced feeding, food taboos- including during pregnancy), binding, breast ironing, beading and son preference and its implications for the status of the girl child.20 While in marriage, women exercise limited or no economic decision-making power in the household. Where much of their contribution comes from their household and reproductive roles, neither these roles are taken as having economic value nor any account is given to the economic values of these roles.21

Male dominance is also predominant in women’s right to property and related land rights. The Commission noted that some legislation and customary norms as well as patriarchal practices entrench gender inequality in the enjoyment of property rights.22 In many parts of Africa, women’s contribution in the acquisition of marital property has been consistently undermined through, among others:

(a) Gender discriminatory registration laws and practices, which in effect prohibit or discourage women from owning housing, land and property jointly with their spouse, or which give preference for registration of housing, land and property in the name of the male spouse only; (b) The application of the concept of marital power, which grants power to only the husband to administer his wife’s property and/ or their jointly owned property; (c) Gendered responsibilities dictating that women use their resources for the upkeep of the family and maintaining the home while men use theirs for the acquisition of properties; and (d) The application of negative customary norms and religious practices.23

Relating to male-oriented dominance of property rights, Banda notes another emerging issue, which is the growth in land leasing where sovereign funds are used to purchase vast tracts of land from which the locals are excluded and removed from arable land. Women are the most affected; they are disproportionately responsible for sourcing and growing food for family consumption. Land is linked to the right to housing. If the land resource base shrinks, women will get even less.24

In Tanzania for example, agriculture is a principal source of livelihood. It provides more than two-thirds of employment and almost half of Tanzania’s GDP.25 Women play an essential role in agricultural production. Despite the essential role that women in Tanzania play in smallholder agriculture, and the importance of land ownership to agricultural development, women seldom own the land they cultivate, and they own less land than men when they do own land.26

Women’s experience in enjoyment of their right to education is not any better. Girls suffer the highest levels of exclusion from formal education, ‘exacerbated by poverty and economic crises, gender stereotyping in curricula, textbooks, and teaching processes, violence against girls and women in and out of school and structural and ideological restrictions to their engagement in male-dominated academic and vocational fields’. These, in turn, reproduce multiple, often intergenerational inequities at individual and societal levels.27 There is evidence pointing to the harmful effects of stereotyping on girls. For example, by promoting images of girls and women as the “weaker” sex, they ‘contradict values of gender equality and non-discrimination, and dampen girls’ career aspirations and self-esteem’. Further, research has drawn a connection between early socialisation into gender stereotypical roles and careers and ‘girls’ interest, engagement and achievement in science, technology, engineering, and mathematics (STEM).28

In Africa, women also experience a wide range of violations of their economic and social welfare rights in public and private spheres. ‘Calculations using the UNDP gender indices indicate notable gender inequality in almost every African country.29 Gender gaps in income and non-income dimensions result in lower human development by females compared to males.’30 There are still sectors of the economy that are largely closed to women.31 For instance, the mining industry has historically been seen as a masculine occupational culture, despite technological advances that have redefined the nature of minework.32 There are also fields of education in which women are under-represented, for example, in STEM.33 This significantly diminishes their earning potential.34 Furthermore, the economic contribution of most African women is not recognised in national statistics because it is largely in the informal agricultural and domestic sectors.35 As such, African women’s economic contribution in agriculture, entrepreneur-ship, and other related economic sectors is not documented.36 Women’s work such as subsistence agriculture, household mainte-nance, voluntary work, and other related unpaid services, are excluded from economic measurement.37 The invisibility of women’s work translates into exclusion from social security and control over resources.38

On health and reproductive rights, women experience a wide range of inequalities, including a lack of decision-making power on several children they should have and their spacing. Others include lack of power on the use of contraceptives and self-protection against sexually transmitted infections.

Access to housing is an integral part of an adequate standard of living.39 This right entails access to a ‘safe and secure home and community in which to live in peace and dignity’.40 In reality, however, many women live in squalor.41 While inadequate housing affects many people living in poverty, there is a clear gender dimension.42

Harmful cultural and religious practices have resulted in restrictions on women’s rights to inheritance, access to health, education, and work. Trends in terms of labour migration, influenced by rapidly changing economic opportunities, have been implicated in new forms of exploitation and risk to women.43

2.2 Dominance feminist approach

Considering the above-analysed Africa’s women lived socio-economic reality, it is imperative to analyse theoretical approaches relevant for interpreting socio-economic rights in the Maputo Protocol that aims at eliminating such unequal socio-economic reality. The analysis begins with the dominance approach that uses the notion ‘as a woman’ to explain women’s lived reality of socio-economic inequality and suggest ways of addressing and transforming such reality.

We who work with the law need to be about the business of articulating the theory of women’s-practice women’s-resistance, visions, consciousness, injuries, notions of community, and experience of inequality.44

MacKinnon develops the dominance theory, which takes into account women’s socially constructed inequality.45 It considers women as victims of a male-dominated system.46 It recognises and challenges a pervasive system of gender hierarchy. It critically examines, rather than obtain, the status quo.47 It recognises that women’s inequality is not theoretical or abstract, but rather real and concrete.48 The dominance approach articulates the unrecognised pervasiveness of male domination in many facets of women’s lives.49 The dominance approach argues that women know things from their life experiences. Women are in confrontation with the realities of male dominance. This subordination of women to men is socially institutionalised, cumulatively and systematically shaping access to human dignity, respect, resources, physical security, credibility, membership in the community, speech, and power.50 As such, dominance theory is a theory of women’s practice that identifies and critiques social practices of subordination and makes tools for women’s consciousness and resistance that further a practical struggle to end inequality.51

The dominance approach considers women’s subordination to men as exclusively based on their sex ‘as women’. It uses the notion ‘as a woman’ as the practice which makes the concept of discrimination “based on sex” a legal theory. As such, the dominance approach investigates how the realities of women’s experiences of sex inequality in the world have shaped some contours of sex discrimination in the law.52 It uses ‘discrimination based on sex’ as a cause of action. Therefore, the ability of women to translate their experiences of sex inequality is of paramount importance.53 It bases its argument on the understanding that women are subordinate to men because of their status as women.54 The dominance approach argues that, comprised of all its variations, the group of women can be seen to have a collective social history of disempowerment, exploitation, and subordination extending to the present. To be treated ‘as a woman’ in this sense is to be disadvantaged in these ways.55 To speak of social treatment ‘as a woman’ is to refer to this diverse and pervasive concrete material reality of social meanings and practices.56 To speak of being treated ‘as a woman’ is to make an empirical statement about reality.57 To speak of being treated ‘as a woman’ is to describe the realities of women’s situation.58

The dominance approach considers women’s experience in a collective form rather than in an individual form. The experience of an individual woman is considered to be the experience of almost all women. It, therefore, takes up the notion ‘as a woman’ to consider an individual woman’s experience as an experience of women in a collective form. It treats women not as uniform or homogeneous, but as interrelated in their common experiences of inequality and powerlessness.59 It is a feminist approach based on women’s shared suffering; in practice, it therefore aspires to eradicate the validation of women’s subjugation in every culture, society, and institution.60 The dominance approach focuses on group experiences because understanding the individual suffering of women in this regard ‘does not improve one’s ability to analyse hierarchy as socially constructed’.61 Women’s reality outside the courtroom benefits not only the woman named in a particular case caption but all women.62 ‘Given that women are not situated similarly to men, but rather are socially unequal, looking at women one at a time rather than as women ensures that it is only the exceptional woman who escapes gender inequality enough to be able to claim she is injured by it.63

Furthermore, the dominance approach centres on the argument that women’s subordination to men leaves women with no power [powerless] in all aspects of life, including socio-economic power. It focuses on the differences in power between men and women. It critiques not only physical power, but social, economic, and sexual power as well. It finds that women are oppressed because they are subject to social and sexual mores, which require them to submit to men.64 Dominance feminism attributes women’s inferior societal position to men’s concerted effort to subordinate and control women. It holds that men wield power over women through social, sexual, and physical domination.65 Physically, men control women by wielding the threat of violence, or by practicing domestic abuse or other forms of battery. Socially, men control women on a small scale by exerting patriarchal control over them or by objectifying them. On a large scale, men control women by perpetuating a legal system that reinforces gender inequality and wage discrimination, keeping women financially and legally powerless. Men dominate women sexually by wielding the threat of sexual violence over women and by using cat-calls, sexual advances in the workplace, rape, and pimping, to name a few examples. To a dominance feminist, these long-standing practices have resulted in systematic male dominance of any sexually feminine individual.66 The dominance approach is an approach of how the erotisation of dominance and submission creates gender and creates women and men in the social form in which we know them. It identifies the problem as not that the sexes have been treated differently, but that one group (men) has dominated the other (women). The recognition that men and women occupy unequal positions of power in society, is the fundamental underpinning of the dominance approach.67 Women will never be able to enjoy freedom as long as men’s power and sexuality define the basis of women’s existence.68

The dominance approach rejects formal equality feminism, which seeks formal legal equality and equal access to traditionally male privileges for women.69 The dominance approach argues that instead of using the male norm to decide discrimination questions, the inquiry should be whether the policy or practice in question integrally contributes to maintaining an underclass or a deprived position because of gender status. The use of this test would require the law to take systematic sex subordination into account and support freedom from it, making it a qualitatively different approach from formal equality, which does not even acknowledge that sex-based subordination exists.70 This test requires two things: first, the impact of laws and policies rather than on intention, second, the context of the plaintiff rather than comparison to a male norm.71

The dominance approach is critical of ‘reality’ and tries to challenge and change it. That reality is male dominance that sets the standards by which one succeeds (or just survives) in society.72 Women’s situation combines unequal pay with the allocation of disrespected work, sexual targeting for rape, domestic battering, sexual abuse, and systematic sexual harassment; depersonalisation demeaned physical charac-teristics, use in denigrating entertainment, deprivation of reproductive control, and forced prostitution.73 The dominance approach would move the law further, in the direction of gender equality.74

Preston and Ahrens argue that dominance approach is not concerned with theoretical equality or rights guaranteed on paper. It is not enough for women to have the same potential opportunities as men. Women are not equal unless they can take advantage of those opportunities, define them outside the male paradigm, and thereby obtain real power. Dominance approach demands actual social, legal, and economic equality, not just the vague assurance of equal opportunity. The theory argues women break free of the male-dominated system ‘with their knowledge and power’. The dominance approach focuses on reproductive capacity, violence against women, and traditional institutional power structures.75

Furthermore, the dominance approach emphasises power imbalance underlying the issues relating to women’s sexuality and reproductive capability. Dominance Feminists view female reproductive capacity as a symbol of male domination. Traditional male views of women as sources of childbearing, child-rearing, breastfeeding, and sexual pleasure are oppressive because these viewpoints keep women from achieving equal economic, social, and political power with men’.76 The dominance approach rejects the use of women’s reproductive capacity to subordinate women to men. It seeks to eliminate the traditional gender stereotypes that bind women to the home and make them the chief caretakers of children because such stereotypes prevent women from gaining power. The dominance approach, therefore, argues that governments should enact laws such as mandatory paid leave and child care which allow women both to have children and to pursue similar activities as men.77

Importantly, the dominance approach considers violence and sexual harassment against women as a form of male domination. This is another way in which the dominance approach seeks to raise a new feminist consciousness by critically evaluating violence inflicted upon women. The dominance approach identifies violence against women as a means by which men keep women from attaining power. Pornography, rape, sexual harassment, and physical abuse are all forms of male dominance that, until recently, have been widely accepted. Until violence against women is eliminated, women will never be equal because men are not affected by systematic violence in the same way as women. Dominance theory focuses on each of these issues and can largely take credit for increased social awareness and action taken to remedy them.78

Finally, the dominance approach argues for the transformation of the current international legal, cultural, and social systems. Their envisioned transformation will result in women obtaining actual power. In this regard, the dominance approach argues for quotas, affirmative action, and strong government involvement in increasing the opportunities for women to obtain that power.79 The dominance theory calls for social protections to guarantee rights protecting women’s interests. Dominance feminists believe that the envisioned transformation of society can be achieved by seeking control through current systems.80

The dominance approach helps the interpretive machinery to have an in-depth understanding that women’s access and enjoyment of their socio-economic rights is hampered by systemic inequality and discrimination practices. This hierarchy of discrimination favours men rather than women. It considers women as inferior compared to their male counterparts.81 It helps the interpretive machinery to address the inequality in question and develop appropriate ways of encountering it effectively.82 Concerning the right to work, for example, the dominance approach offers such institutions an opportunity to recognise the dominance of male-worker norms inherent in the established criteria for promotion and to rectify the resulting structural impediments that presents to the advancement of women.83

The dominance approach has the potential to address the inequality and patriarchal practices women in Africa experience. Inequality and discriminatory patriarchal practices are experienced in various socio-economic settings including, employment rights, health rights, and property rights. About property rights, the Commission in its General Comment 6 noted:84

In particular, the prevalence of discriminatory laws and legal processes resulting in property rights violation during separation, divorce or annulment of marriage in Africa and the impacts thereof on women are a major concern on the African continent. Although a number of legislations in different African States guarantee the right to equality, non- discrimination and property, other legislations and customary norms as well as patriarchal practices entrench gender inequality in this regard.

Dominance approach with its approach of women as a collective is significant in that it has the potential of looking at and addressing the challenges of women in their collective capacity rather than in their individual capacity. Challenges women face in their individual capacity represent challenges many women face in different areas.

The tenet ‘as a woman’ used in the dominance theory is key in addressing male dominance practices and discrimination practices done to women as a woman and nothing else. They are raped as women, they are denied access to employment as women, they are denied property and land rights as women, they are denied certain job positions as women, they are sexually harassed at work as women, they are denied a promotion at workplaces or paid less as women, they are denied maternity leave as women, they are subjected to early marriages as women, they are denied access to education as women, they are denied carrier development as women, they are denied managerial positions as women, leviratic marriages (the practice of inheriting a wife) i.e. they are forced to marry their late husbands’ relatives as women, they are denied inheritance of their husbands or late fathers as women, etc.

2.3 Teleological interpretation 85

The main argument in this article is to use the dominance approach to engender the teleological approach, which is appropriate for interpreting human rights treaties. The application of the teleological approach helps interpretive organs to develop the meaning, scope, and content of socio-economic rights in line with the object and purpose of the Maputo Protocol.

The teleological approach, sometimes referred to as purposive interpretation,86 considers the object and purpose87 of a treaty as the main element in its interpretation.88 An inquiry into the object and purpose of a treaty is vital in generating the meaning, scope, and content of the treaty’s provisions in question.89 The teleological approach and its notion of object and purpose are endorsed in the Vienna Convention on the Law of Treaties (Vienna Convention)90 through its single authoritative rule of interpretation in article 31 and 32 respectively. Through article 31, the Vienna Convention requires a treaty to be ‘interpreted in good faith, following the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.

The object and purpose of a treaty are found through a recourse to a wide range of interpretative tools including the treaty’s historical background and its preparatory work, the circumstances at the time of the adoption of the treaty, any change in these circumstances that the parties sought to effect, and the conditions prevailing at the time the treaty is interpreted.91 It also includes a treaty’s preamble at both its interpretive and binding characters,92 the subsequent practice of the parties to a treaty93 (including, the decisions of the interpretive organs,94 and the rules of procedure formulated by these interpretive organs to interpret the treaty);95 and the principle of effectiveness,96 which is embodied in all tenets of the teleological approach.97

The principle of effectiveness posits that provisions of a treaty are formulated to fulfil a specific effect. Accordingly, they should be interpreted to make them effective rather than ineffective.98 The principle, in its general dimension, interprets the text in light of the declared or apparent object and purpose of the treaty. The principle of effectiveness gives such a text its effective meaning consistent with the words used to formulate it and with the other provisions of the treaty.99 To assign effective meaning to the text, the principle of effectiveness allows the interpretive organs to consider and apply different possibilities of interpretation, which will safeguard the effectiveness of the text.100 As such, in its substantive dimension, it requires interpretive organs to interpret the rights enshrined in a treaty broadly.101 It also requires the limitations of such rights to be interpreted narrowly.102 In its temporal dimension,103 the principle of effectiveness considers a treaty as a living instrument.104 The systemic dimension consists of both the internal and external coherence dimensions. 105The internal coherence dimension emphasises a form of interpretation that reads the treaty as a whole, in a manner that advances internal consistency and harmony among the various provisions of the treaty.106 Concerning external coherence, the principle of effectiveness focuses on interpreting a treaty through other comparative legal sources.

The overall object and purpose of the Maputo Protocol is articulated in its Preamble, which is to ensure that the rights of women are promoted, realised, and protected.107 The Preamble elaborates that the Maputo protocol aims to eliminate discrimination, harmful practices, and gender-based violence against women.108 The Preamble also emphasises equality between men and women.109 Imperatively, the Preamble recognises the African values of equality, peace, freedom, dignity, justice, solidarity, and democracy.110 It also recognises the crucial role of women in the preservation of these values.111 The Preamble also notes the states’ commitment to ensure the full participation of African women as equal partners in Africa’s development.112 The Preamble also notes the relevance of other regional and international human rights sources for the protection of women’s rights.113 Significantly, the Preamble recognises the principles of inalienability, interdependence, and indivisibility of rights.114 All these Preambular statements elaborate the object and purpose of the Maputo Protocol. Accordingly, all interpretations of the Protocol must necessarily pursue this objective.115

2.4 Substantive equality

The preceding part has shown that teleological approach, through object and purpose of the Maputo Protocol, emphasises on equality. This sub-part analyses substantive equality as a form of equality envisaged by the teleological approach.

Traditionally, equality has been understood in formal terms, requiring simply that likes be treated alike.116 Formal equality has been of central importance for women, particularly in achieving equality before the law, whether in terms of equal suffrage, equal right to own property, or other similar limitations.117 Formal equality requires that all persons who are in the same situation be accorded the same treatment and that people should not be treated differently because of arbitrary characteristics such as gender.118 The focus on the sameness between women and men is the flaw of formal equality as it fails to consider the male-dominated practices that discriminate against women. Even when women are equal before the law, they lag behind in social and economic terms, and this is the major weakness of formal equality.119 Equality in its formalistic form, arguably does very little to change the position of women in an overwhelmingly patriarchal context.120 The CEDAW Committee notes that purely formal equality is not sufficient to achieve equality for women.121 It is not enough to guarantee women treatment that is identical to that of men. Biological, social, and culturally constructed differences between women and men must be taken into account.122 Women must be given an equal start and they should be empowered by an enabling environment to achieve substantive equality.123

Substantive equality was developed to address the limitations of formal equality.124 The Commission states that substantive equality:

refers to the form of equality that requires the adoption of measures that go beyond formal equality and seek to redress existing disadvantage; remove socio-economic and sociocultural impediments for equal enjoyment of rights; tackle stigma, prejudice, and violence; leading to the promotion of participation and achievement of structural change of social norms, culture and law.

Substantive equality is concerned to ensure outcomes that are equal in substance, not just on paper. It refers to ‘equality in distribution of economic and social power and of opportunities for people to experience self-realisation’.125 Substantive equality takes cognisance of existing patterns of inequality, taking economic and social conditions into account. The aim is to enable women to realise their full potential as equal members and actors in society. This aim is elaborated in Fredman’s four features and dimensions of substantive equality.126 Substantive equality is asymmetric in that it distinguishes between different treatment that causes detriment and different treatment that redresses past disadvantages to improve the disadvantaged group’s position.127 It moves away from relative equality - the assumption of conformity to a male norm. Rather, it takes differences into account when difference matters. Substantive equality is inherently transformative; it seeks to change existing structures.128 Moreover, it insists on levelling up rather than down.129 Finally, it entails a positive responsibility to bring about change, regardless of whether individual culpability or violation has been established.130

The dimensions of substantive equality are four-fold. First, it concentrates on remedying disadvantage rather than achieving gender neutrality. It redresses the gendered context, including women’s subordinate position in areas such as the workplace. Second, it aims to redress stigma, stereotyping, humiliation, and violence on grounds of gender. The third-dimension entails recognition of how the structures of society entrench women’s disadvantage. Instead of requiring women to conform to male norms, substantive equality requires the transformation of existing male-oriented institutions and structures. The final dimension of substantive equality is that it attaches importance to women’s agency and voice in engendering the socio-economic rights necessary for women’s empowerment.131 These dimensions are vital in understanding the socio-economic provisions of the Maputo Protocol.

2.5 Application of the dominance-oriented teleological interpretation: methodological model

3.1 Right to marriage

Marriage is a formal and informal union between men and women139 recognised under any system of law, custom, society or religion.140 The article dealing with marriage in the Maputo Protocol is article 6. The main paragraph of article 6 sets the equality standard and the rest of the paragraphs establish the content to the right. The right to marriage obliges states to ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. These provisions give an impression that they are framed within the concept of formal equality. The dominance approach becomes useful as it rejects formal equality, which requires equal rights between women and men in marriage. Dominance approach helps the interpretive machinery to inquire whether equality in article 6 integrally contributes to maintaining women’s inequality in marriage. The inquiry will help to understand the impact of article 6 on women, and the context of a woman in marriage rather than comparison to a male counterpart.

Furthermore, the right to marriage imposes upon states an obligation to ensure that no marriage takes place without ‘free and full consent’ of both parties.141 The concept of ‘free and full consent’ entails a non-coercive agreement to the marriage with full understanding of the consequences of giving consent.142 The dominance approach through the notion ‘as a woman’ is relevant to elaborate on discriminatory practices and prevalent male-domination that render women powerless and unable to give a free and full consent to marriage. Free and full consent is negated by practices such as arranged marriage (betrothal), forced marriage or forced remarriage, and when women subject themselves to marriage in search of financial security.143 In Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v Mali (IHRDA),144 the African Court regarding article 6 of the Maputo Protocol,145 noted that the manner in which a religious marriage takes place in Mali poses serious risks that may lead to forced marriages and perpetuate traditional practices that violate international standards that define conditions regarding age of marriage and consent of parties in marriage.146 Practices that allow application of religious and customary laws on the consent to marriage were held to be inconsistent with article 6 of the Maputo Protocol.147 While the decision is commendable, application of the dominance approach through “as a woman” tenet would have helped the African Court to engender its reasoning by considering that free and full consent was denied to women by simply being women. Significantly, the Maputo Protocol stipulates 18 years as the minimum age of marriage for women.148 These provisions are instrumental in ensuring that the rights of girls are protected from the practice of child marriage.149 Child marriage is a marriage in which either one of the parties, or both, is or was a child under the age of 18 at the time of union.150 In IHRDA the African Court held that article 6(b) of the Maputo Protocol imposes upon states the obligation to take all appropriate measures to abolish negative practices customs, and practices discriminatory to children born out of wedlock for reasons of their gender, especially measures to guarantee the minimum age for marriage at 18 years.151 This reasoning resonates with the dominance approach through its emphasis for transformation of the international legal, cultural, and social systems that do not address women’s inequality lived reality effectively. This way the dominance approach gels with substantive equality dimension on transformation.

In the Attorney General v Rebeca Z. Gyumi (Gyumi),152 the Court of Appeal of Tanzania had an opportunity to address equality of a girl-child in relation to child marriage and the concept of free and full consent. Gyumi was an appeal from the decision of the High Court regarding the constitutionality of sections 13 and 17 of the Tanzania’s Law of Marriage Act (LMA) respectively. At the High Court the respondent challenged the constitutionality of sections 13 and 17 of the LMA. The challenged provisions require consent of parents or courts for girls below 18 years before marriage. At the same time section 13(1-2) of the LMA allows a girl to get married only upon 15 years and a male person to get married only upon attaining the age of 18 years. The respondent asked the High Court to declare the said provisions null and void and be expunged from the LMA, and 18 years should remain the minimum age of marriage until the Government amends the law.153 The High Court was satisfied that the provisions are discriminatory as they uphold different treatment to persons of similar situations hence offending the constitutional principle of equality in articles 12(1) and 13(1) of Tanzania’s Constitution. The High Court directed the Government to amend the law within one year and put 18 years as the eligible age for marriage for both boys and girls. The applicant appealed to the Court of Appeal.154 Referring to article 6 of the Maputo Protocol, the Court of Appeal held that this provision only allows men and women of 18 years to marry. Persons below 18 years lack the capacity to enjoy the right to marriage. It held further that persons who enter into marriage must pass the test of free and full consent.155

Furthermore, article 6(c) obliges states to promote and protect the rights of women in marriage and family, including polygamous marital relationships.156 Polygamous marriage is a form of marriage that allows a man to have more than one wife.157 Considering the non-recognition of the rights of women in a polygamous marriage, these provisions of article 6(c) cannot be overstated. Dominance approach that is critical of reality and tries to change can be applied to transform the discriminatory practices facing women in polygamous marriage. Article 6(c) has potential to be protective of women who willingly or unwillingly find themselves in a polygamous marriage.158 The right to marriage also includes a woman’s right to choose a matrimonial regime and place of residence.159 Other rights include a woman’s right to retain and use her maiden name;160 the right to retain her nationality. Article 6 also protects the right of a woman to acquire her property during her marriage.161 This clause was necessitated by the reality of formal and informal restrictions on women’s legal capacity to enter into transactions.162 Article 6(d) requires all marriages to be recorded in law and registered to acquire legal status. However, only civil and religious marriages respectively are registered, customary marriages are not registered.163 Unregistered marriages pose challenges in the distribution of matrimonial property during separation, divorce, or annulment of marriage.164 Since the dominance approach takes into account structural inequalities such as omission of the existing laws to address registration of customary marriage, which many women in Africa are in. Application of the dominance approach will give recognition of customary marriage a gender perspective. As such, non-recognition will be considered a violation of women’s right to marriage and related rights such as right to property, inheritance etc.

3.2 Right to education and training

Article 12 of the Maputo Protocol protects the right to education and training. Education plays a pivotal transformative and women’s empowerment role.165 Education entails all types and levels of education and includes access to education, the standard and quality of education, and the conditions under which it is given.166 Types and levels of education include pre-school, primary, secondary, tertiary, and adult education, and vocational training.167 Significantly the right to education encompasses three dimensions namely: access to education, rights within education, and rights through education.168 Access to education refers to participation, particularly the extent to which girls/boys, and women/men are equally represented, as well as adequate infrastructure.169 Rights within education refer to substantive gender equality in education.170 Rights through education define ways in which schooling shapes gender equality in other spheres of life.171 These three dimensions are embedded in the 4As framework: availability, accessibility, adaptability, and affordability.172

Importantly, the right to education requires states to eliminate all forms of discrimination against women, and guarantee equal opportunity and access in the sphere of education and training.173 Dominance approach is relevant here as it emphasises on the elimination of direct and indirect discriminatory practices in all spheres of life including the public and private sphere under the definition of discrimination in article 1(f) of the Maputo Protocol, and article 1(1) of the Convention against Discrimination in Education (CADE).174 States should also eliminate stereotypes in textbooks, syllabuses, and the media, which perpetuate discrimination.175 Stereotypes operate to attribute generalised behaviours, abilities, interests, values, and roles to a person or group of persons on the basis of their sex, gender, ethnicity, religion, social class, disability, or the intersection of these, or roles to people based on their membership in an identified group.176 These provisions entrench the language of dominance approach in the right to education and training. The application of dominance approach that uses women’s experience of stereotypes and exclusion in education can be applied to help a better understanding of the right to education and training in relation to these matters. Moreover, the dominance approach that strives to transform women’s inequality into reality in education becomes useful to engender the right to education and advance its object and purpose to women.

Furthermore, states are obliged to protect women and girls from all forms of abuse, including sexual harassment in schools and other educational institutions, and provide for sanctions against the perpetrators of such practices. The Maputo Protocol does not explicitly define the phrase sexual harassment.177 However, the meaning of sexual harassment can broadly be construed through the provisions of article 1(j) on violence against women178 that define violence against women to mean

all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peacetime and during situations of armed conflicts or war.179

The prohibition of sexual harassment must be observed from the enrolment of students until the completion of education and training. It is also vital that women victims of sexual harassment are provided with access to counselling and rehabilitation services.180 States should also integrate gender sensitisation and human rights education at all levels of education curricula including teacher training.181

The application of the dominance approach that considers violence and sexual harassment against women as a form of male domination can help the interpretive organs to evaluate sexual harassment and violence inflicted on women and girls in schools. It can be applied to elaborate, through women and girls experience on sexual harassment in schools, how men use sexual harassment to keep women from attaining power and therefore render them powerless socially, economically, and politically.

Aspects of sexual harassment and gender-based violence appeared in Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt (Egyptian),182 whereby the Commission found it imperative to define discrimination and its relationship with gender-based violence.183 It referred to the provisions of article 1(f) and 1(j) of the Maputo Protocol, article 1 of CEDAW, and paragraph 6 of the General Recommendation 19 of CEDAW.184 The Commission found that verbal assault used against the victims such as ‘slut’, and ‘whore’ is not usually used against men. They are generally meant to degrade and rip off the integrity of women who refuse to abide by traditional religious, and even social norms.185 The Commission found that the physical assaults against the victims in this case are gender-specific in the sense that the victims were subjected to acts of sexual harassment and physical violence, including breast fondling, and touching or attempting to touch private and sensitive parts, that can only be directed to women.186 It also held that threats against some of the victims who were accused of practicing prostitution when they refused to withdraw their complaints could also be classified as being gender specific.187 The Commission held that incidents alleged took place in the form of a systematic sexual violence targeted at the women participating or present in the scene of the demonstration. It therefore held that the type of violence used during the demonstrations was perpetrated based solely on the sex of the persons at the scene of the demonstration. In other words, the violence was gender-specific and discriminatory by extension.188 Although the Commission did not state it explicitly, it applied the tenet ‘as a woman’ to determine the Egyptian case.

3.3 Right to health including sexual and reproductive health

The Maputo Protocol covers the right to health including sexual and reproductive health in article 14. States are obliged to ensure the right to health of women, including sexual and reproductive health is respected and promoted. The right therefore entails obligations to respect, protect and fulfil women’s health including sexual and reproductive health. This main clause of article 14 is framed within the principle of substantive equality. As such, substantive equality is embedded in all provisions of article 14 including the right to control fertility; the right to decide whether to have children, the number of children and spacing of children; the right to choose any method of contraception; right to self-protection and to be protected against sexually transmitted infections including HIV; right to be informed on one’s health status and on the health status of one’s partner; and right to have family planning education.189 The General Comment 2 on article 14(1)(a), (b), (c), and (f) and article 14(2)(a) and (c) of the Maputo Protocol (General Comment 2) explains that these rights are inextricably linked, interdependent and indivisible.190 They are also interlinked with the rights to dignity, non-discrimination, and life.191 The right to family planning education incorporates in it an obligation upon states to provide complete and accurate information necessary for enjoyment of health, including the choice of contraceptive methods.192 The African Commission’s Principles and Guidelines on the Implementation of economic, social and cultural rights in the African Charter on Human and Peoples’ Rights demonstrate that access to health-related education and information, control over one’s own body and health, including sexual and reproductive freedom are the vital components of the right to health.193

Despite the above promising analysis that gives hope regarding the protection of the right to health and reproductive health the Commission issued a regressive decision recently in Community Law Centre and three Others (on behalf of the Five Victims) v Nigeria (Community Law Centre).194 In this communication the complainants submitted to the African Commission on Human and Peoples’ Rights complaints on behalf of five (5) women in Nigeria (the victims) who suffer from lifelong injuries such as obstetric fistulas, haemorrhage, and those who have died as a result of complications related to pregnancy or childbirth.195 The Complainants argued that the Respondent State failed to provide adequate access to maternal health care services. They alleged the violation of the right to health and reproductive health in article 14, and the right to life in article 4 respectively.196

The Commission noted that though the complainants identified the violation of certain provisions of the Maputo Protocol they failed to elaborate on or show what the violation was.197 It held that it could not find a basis for a decision on whether the said provisions have been violated or not.198 On the right to life, it held that the right is a significant component of the right to sexual and reproductive health but the complainant’s submissions did not show how maternal deaths were the result of a failure by the respondent state to take necessary measures to prevent such deaths. The Commission further stated that in particular, the respondent state has sufficient resources to prevent maternal deaths and, more importantly, that despite the existence of resources, it has failed to take necessary steps to ensure the continuous and sustainable improvement of the right to maternal health. Surprisingly, it stated that the complainants failed to demonstrate that the respondent state has promoted or adopted measures that undermine access to health care or social security benefits, including laws, policies or practices that have discriminatory effects. The Commission concluded that due to the absence of such explanation, the right to life in article 4 was not violated.199

Regarding the violation of the right to health, and sexual and reproductive health in article 14(1)(a), (b), (c), (f), and 2(a) and (c), the Commission held that the complainants had failed to demonstrate the causal link between the facts described and the mentioned provisions of article 14 on how the facts impeded the victims’ personal decision-making of the right to exercise control over their fertility, on the right to decide on the number of children and the spacing of births, or on family planning in general. The Commission concluded therefore, that article 14 of the Maputo Protocol was not violated.200

Concerning the right to equality and non-discrimination relating to the right to health and reproductive health, the Commission held that article 2 of the Maputo Protocol exclusively focuses on non-discrimination on the basis of sex through the phrase ‘discrimination against women’.201 As such, in the context of article 2 of the Maputo Protocol differential treatment must be based on the sole ground of sex. In particular, law must guarantee the equality of women and men.202 While noting the complainants’ argument that the patriarchal system and adherence to cultural practices subject women to daily discriminatory practices concerning maternal health, the Commission held that the Complainants failed to show the kind of discriminatory treatment the victims had been subjected to. It further held that the Complainants failed to demonstrate how the patriarchal system and cultural practices had caused differential treatment of the victims compared to the treatment accorded to other similar categories in the same situation as the victims.203

Regarding the right to information as a component of the right to health and reproductive health in article 14(1) the Commission noted that the right to information is a gateway to all other human rights, including the right to health and reproductive health.204 The Commission noted further that the right to health and reproductive health impose upon states an obligation to provide complete and accurate information necessary for the respect, protection, and enjoyment of health, including contraceptive methods.205 However, the Commission held that the Complainants had failed to demonstrate how the ignorance of Nigerian women about contraception had contributed to maternal mortality and, more importantly, how the respondent state had played a passive role in providing family planning education. The Commission was of the view that the Complainants failed to establish a causal link between family planning education and maternal mortality.206 Based on this reasoning, the Commission found that there was no violation of the right to information in article 14(1)(f) of the Maputo Protocol.207

The Commission could have benefited from the application of the dominance approach and avoid the regressive decision it arrived at. This is a good decision where the Commission applied the teleological approach but missed an opportunity to engender it. The application of the dominance approach would have allowed the Commission to use the argument that women are denied their right to health including sexual and reproductive health based on their sex ‘as women’. The Commission could also apply the tenet ‘as a woman’ to find that women’s experiences of sex inequality have shaped contours of sex discrimination. This line of reasoning would have helped the Commission to establish the violation of the right to equality and non-discrimination relating to the right to health and reproductive health.

The Commission could use the dominance approach argument that emphasises power imbalance underlying issues relating women’s sexuality and reproductive health. This power imbalance tenet would have enriched the Commission’s reasoning by considering that male-dominated practices view women’s reproductive capacity as a symbol of male domination. This discriminatory practice is oppressive, as it perceives women as sources of childbearing, child rearing, breast-feeding, and sexual pleasure. As a result women’s health and life is put in danger. This reasoning would have helped the Commission avoid the regressive decision it arrived at in relation to the relationship between health and reproductive rights and right to life.

The Commission could apply the argument of the dominance approach that men dominate women socially by perpetuating a legal system that reinforces gender inequality. The application of this tenet would help to show the respondent state’s promotion or adoption of measures that undermine access to health care or social security benefits, including laws, policies or practices that have discriminatory effects.

Moreover, the Commission could have applied the dominance approach’s argument that women’s subordination to men leaves women powerless. This could be applied by the Commission as a causal link between the facts of this case and their implication on women’s decision-making regarding rights in article 14. Generally, male domination affects women’s personal decision-making of the right to exercise control over fertility, the right to decide on the number of children and the spacing of births, or on family planning. This reasoning could have assisted the Commission to establish the violation of article 14 on the right to health including sexual and reproductive health.