54
Chekera-Radu/Women’s land and property rights
On the basis of this assertion he argues that the wording of article
18(3) makes it possible to allow interpretation of equality as substantive
as has been done by other treaty bodies.
The African Women’s Rights Protocol ‘completes, develops and
specifies the gender equality and non-discrimination contained in the
African Charter.’61 It contains several provisions guaranteeing the
formal equality by requiring laws and practices that guarantee equal
treatment between women and men. Article 8 of the African Women’s
Rights Protocol guarantees women and men equality before the law and
equal protection of the law. The African Women’s Rights Protocol, like
its counterpart CEDAW, is also more expansive in the adoption of
substantive equality in its provisions. The provision on elimination of
discrimination in article 2 by requiring from states the effective
application of the principle of equality, obliging states to ‘take
corrective and positive action in those areas where discrimination
against women in law and in fact continues to exist’, and requiring
modification of social and cultural patterns of conduct of women and
men accord with the conception of substantive equality. In this way the
African Women’s Rights Protocol acknowledges that women and men
are not starting at the same point and the effect of other factors in the
realisation of women’s equality.
Further, the text in the provisions of the African Women’s Rights
Protocol have been very specific in calling on states to address
imbalances fostering inequality that exist within the home and family
setting. In particular article 16 addresses a number of factors that are
causes of power imbalances within the family. The provisions such as
article 5 calling for the elimination of cultural practises and stereotypes
based on the superiority or inferiority of the different sexes, article 5(1)
calling for the family education on maternity as a social function, attest
to the recognition of factors that infringe on equality. In addition, other
provisions such as article 9 providing for participative governance and
women’s governance in national politics, article 12 and article 13
obliging states to guarantee equal opportunities in education and
employment resonate with the objectives of substantive equality.
Similarly, there are two bodies that have the mandate to interpret
provisions of African Charter and the African Women’s Rights Protocol.
The African Charter makes provision for the establishment of the
African Commission as a quasi-judicial body tasked with monitoring
implementation of the African Charter’s provisions and in article 45(3),
and mandates the body with the interpretation of the Charter’s
provisions. On the other hand, the Protocol to the African Charter on
Human and Peoples’ Rights on the Establishment of an African Court
on Human and Peoples’ Rights (African Court Protocol) establishes the
African Court on Human and Peoples’ Rights (African Court) to
strengthen the protective mandate of the African Commission. The
jurisdiction of this court includes the interpretation and application of
61
Buckley et al (n 53 above) 203.