“The regressive draft African Charter on Family
Sovereignty and Values is yet another assault on sexual and
reproductive health rights and justice, as well as bodily
autonomy and human rights in general. More importantly, this
draft Charter urges African governments to withdraw from
progressive and rights- and evidence-based agreements,
including the historic and legally binding Maputo Protocol
of 2003, which has been playing a defining role in promoting
gender equality, as well as protecting reproductive and
health rights of women and girls in Africa. Among growing
global anti-rights and anti-gender pushbacks, this draft
Charter is an additional attack which is attempting to
backslide progress made on gender equality and human rights
to health,” said Dr Tlaleng Mofokeng,
United Nations (UN) Special Rapporteur on the Human Right To
Health.
“This draft Charter is the first African
continent-wide patriarchal push to dislodge human rights and
replace rights with so-called ‘moralistic’ viewpoints.
We cannot undo progress made by years of dedication and
decades of struggle, which have resulted in strong and
legally binding commitments, such as those enshrined in
Maputo Protocol. Governments need to disengage with this
draft Charter and instead honour and deliver on the promises
they have made on gender equality and human rights to
health, where no one is left behind,” stressed UN Special
Rapporteur on Right To Health Dr Mofokeng. She was
delivering her opening address at the June session of SHE
& Rights hosted by Global Centre for Health Diplomacy
and Inclusion (CeHDI), International Planned Parenthood
Federation (IPPF), Asian-Pacific Resource and Research
Centre for Women (ARROW), Asia Pacific Media Alliance for
Health, Gender and Development Justice (APCAT Media) and
CNS.
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“Gender justice and human rights to
health are not negotiables. Rather, these are
essential bedrock for human development, for sustainable
peace and security,” concluded Dr Mofokeng.
An
analysis of the draft done by Initiative for Strategic
Litigation in Africa (ISLA) shows that this draft Charter is
not merely conservative, but it constitutes a sinister
restructuring of rights through legal distortion. The rights
language is retained in form, but the rights protection is
weakened in substance. Sovereignty is used to resist
accountability, and family protection is used to justify
exclusion. Culture is invoked to limit equality protections
and human rights is reframed as a foreign
ideology.
The draft charter defines family through the
lens of a marriage between a man and woman. “This directly
conflicts with established international and regional human
rights laws and jurisprudence. The practical implication is
profound because family recognition determines access to
inheritance, housing, custody, migration status, social
protection and legal recognition before the state. The draft
Charter frames the family as a primary unit for policy
design, governance and service delivery. It prioritises
family welfare, family cohesion and family authority above
individual consideration. This becomes especially dangerous
when families themselves are sites of violence, coercion,
discrimination or unequal power relations. The draft Charter
provides no safeguards to ensure that prioritising family
cohesion cannot override women’s rights, children’s
rights, bodily autonomy, or protection from abuse. It also
introduces a ‘family impact lens’ requiring laws and
policies to be evaluated according to their impact on family
stability, cohesion and family values”, said
Sibongile Ndashe, Executive Director,
Initiative for Strategic Litigation in Africa
(ISLA).
Ndashe was speaking at the SHE & Rights
session on ‘Protecting Maputo Protocol is critical to
resist anti-rights pushbacks and advance gender equality and
right to health’).
Agrees Letlhogonolo
Mokgoroane, South African legal practitioner
(barrister): “The draft charter excludes protection
related to gender identity and sexual orientation. What it
does to gender diverse persons is erasure – legal,
political, and physical. It defines gender as limited to
male and female erasing the existence of intersex and gender
diverse persons. It defines family exclusively through
heterosexual marriage and biological parenthood, excluding
same-sex families, single parent families, and chosen
families from any legal recognition or protection. It makes
no recognition of gender diverse families, gender diverse
parents or gender diverse children. In a ‘world’ the
draft Charter wishes to construct, these people do not
exist, and when the law says you do not exist the
consequences are not abstract.”
“The draft Charter
also rejects comprehensive sexuality education – the very
education that evidence has shown leads to better sexual and
reproductive health outcomes, lower rates of HIV
transmission, lower rates of unintended pregnancies, and
lower rates of gender-based violence. The draft Charter
replaces evidence with ideology and public health with
moralism.”
Sovereignty versus the
individual
ILSA’s Ndashe rightly points out that
the draft Charter expands sovereignty to justify extensive
state control over morality, health, education, sexuality
and family life.
For Famia Nkansa,
Communications Lead, at Purposeful – a feminist hub rooted
in Sierra Leone, “This draft charter is dangerous because
it frames sovereignty as something that the state is
entitled to versus the individual. When they portray gender
equality as a threat to ‘social stability’, when they
portray sexual and reproductive rights as ‘foreign
agendas’, when they mobilise fears about social change and
then present themselves as ‘defenders’ of ordinary
people against elites, it is not accidental. This family
values draft Charter is attempting to substitute a frame
from autonomy, equality, dignity, and bodily integrity to
sovereignty, parental authority, tradition, and cultural
preservation. The draft Charter wants to reframe human
rights protections as ‘foreign impositions’ rather than
African aspirations.”
Why protect the Maputo
Protocol?
The Maputo Protocol is a legally binding
human rights treaty adopted by the African Union in 2003 to
guarantee comprehensive rights for women and girls across
Africa. It has been ratified by 46 of the 55 African Union
member states.
In the words of Letlhogonolo
Mokgoroane: “It is one of the most widely accepted and
most progressive human rights instruments on the African
continent. It prohibits discrimination against women;
guarantees the right to dignity, including protection from
all forms of violence; guarantees the right to life,
dignity, and security; calls for elimination of harmful
practices, including female genital mutilation and forced
marriages. Its Article 14 guarantees women’s rights to
health, including sexual and reproductive health. It obliges
governments to authorise medical abortion in cases of sexual
assault, rape, incest, and where continued pregnancy
endangers the mental and physical well-being of the life of
the mother or the foetus. Feminist advocates have reaffirmed
the Maputo protocol as what it is, a weapon of resistance,
solidarity and accountability.”
Famia Nkansa argues
that “Maputo Protocol is significant not only because of
its legal protections, but because of what it symbolises. It
demonstrates that gender equality and women’s rights are not
external concepts that were imposed on Africa, but they are
principles that African governments themselves negotiated
and adopted. African women activists, policy makers, legal
experts, governments played a central role in shaping the
Protocol.”
Growing global backlash against gender
rights
Nkasa sees “a narrative shift that will
eventually land us in a place where rights are rolled back
on an unprecedented scale. We need to fight it with
everything we have because they are coming for everything we
have.”
Agreeing that the draft African Charter will
take us in the reverse direction, Dr Pam
Rajput, Professor Emeritus, Panjab University; and
former Chairperson of Government of India’s High-Level
Committee on the Status of Women, fears that this
anti-rights pushback is not an issue for Africa alone.
“Patriarchy is transnational and so are all anti-rights
movements. The question is not what does the draft Charter
mean to Africans. The question is what it means for the
future of women’s rights everywhere. This issue is not only
regressive, but also contagious. The anti-rights narrative
travels quickly through transnational conservative networks.
Rollback of rights in one region can become a precedent
elsewhere.”
How do we counter the anti-rights
pushes and advance gender equality and right to
health?
For Letlhogonolo Mokgoroane, “The movement
to defend gender diverse lives on the African continent is
not asking for special treatment. It is asking for the right
to exist, to be recognised, and to be protected. The draft
Charter’s answer is ‘No’. Our answer must be a louder
YES. Let us protect the Maputo Protocol. Let us defeat the
draft Charter. Let us hold our states (governments) to
account. Let us insist with every tool available to us –
legal, political, moral – that gender equality and the right
to health are not negotiable, not reversible and not
foreign. They are constitutional. They are human rights and
they are ours”.
Dr Pam Rajput calls for adding all
global voices in favour of the Maputo Protocol and against
the proposed draft African Charter. “We must resist
collectively and the feminist solidarity must be global. In
1993, Vienna Declaration adopted by consensus had declared
that women’s rights are human rights. It serves as a
universal blueprint for strengthening human rights,
declaring that all human rights are universal, indivisible
and interdependent and interrelated. Human dignity and human
rights are not divisible by geography. Human rights cannot
be selectively applied or culturally withdrawn at the will
of some people. We need to challenge anti-rights narratives
and build cross-regional alliances to reaffirm universality
of rights.”
Letlhogonolo reminded that South Africa
and Mozambique were the two nations that abstained from
supporting the regressive draft Charter. South Africa said
that it cannot support provisions that conflict with its
constitutional framework and legal obligations… But
abstinence is not resistance. We need South Africa to move
from a constitutional objection to an active continental
objection to lead a coalition of states that reject this
draft Charter outright and campaign against its adoption at
the African Union.”
Only 54 months left to deliver
on gender equality (SDG-5) and health (SDG-3)
“Only
54 months are left to deliver on the promise of gender
equality, the SDG-5, and health and wellbeing, which is
SDG-3 by 2030. But the sense of urgency and purpose is
missing. If we recognise that the world is not on track to
deliver on either of these goals, instead of going forward,
in many instances we are slipping backwards. Gender equality
and human rights to health are fundamental human rights, and
both are indivisible or inseparable. But despite this,
anti-rights and anti-gender pushbacks have been growing,
stalling and, at times, trying to reverse whatever progress
has been made on gender and health rights, especially for
girls and women and gender diverse communities,” said
Shobha Shukla, SHE & Rights
Coordinator.
