Since 1945, the United Nations has promoted human rights as essential to individual liberty, international peace and

development. Major human rights treaties and documents which include the following: The International Covenant on Civil and Political Rights (ICCPR), The International Covenant on Economic, Social and Cultural Rights (ICESCR), The Convention on the Rights of the Child (CRC), The Convention against Torture and Other Cruel, Inhuman or Degrading Punishment, and The Convention on the elimination of All Forms of Discrimination against Women (CEDAW).

which has centred on the protection of civil, political, economic, social and cultural rights; the rights to equality and non-discrimination, freedom of expression, liberty, life, privacy, education, a clean environment, bodily integrity, religious and political beliefs, freedom from torture, degrading or inhuman treatment, freedom of movement, association, etc. The above human rights documents, including CEDAW, are legally binding under international law. However, unlike treaties or conventions, reports produced by conferences are considered consensus documents or soft law, as they only express political will but are not legally binding. In 1994, the International conference on population and Development (ICPD) acknowledged sexual health stating that people are able to have satisfying and safe sexual life. The document conservatively bases its rights in a heteronormative and reproductive context. However, this document fails to address:o The issue of sexual pleasure o Freedom of sexual expression and sexual orientations In Africa the struggle to legally recognise sexual rights as human rights. PROBLEMS It is a struggle to incorporate gender issues into international and regional agreements In as much as the law tries to impose gender equality regime, there is however, a hidden male bias in the regime. For those women who fail to comply to the male standard are denied the fruits of equality. CEDAW was adopted, various issues such as gender equality became firmly entrenched. However, this document did not address the sexual health and rights of African Women. To address this problem, the African Charter and later on the African Protocol (also known as the Maputo Protocol) was created.

AFRICAN CHARTER It has been demonstrated and made part of many African municipal laws including Nigeria. Every country in Africa has ratified the charter. In the charter, it deals specifically with gender issues and prohibits discrimination on grounds of sex. In the charter, it guarantees the equal rights of women by expecting the states to eliminate any form of discrimination against women and to protect womens rights enumerated in international human rights instruments. PROBLEMS WITH THE CHARTER 1. 2. Its provisions on womens rights are largely seen as ineffective and inadequate Only one out of the more than 60 articles in the African Charter makes specific reference to women. 3. 4. 5. It fails to explicitly define discrimination against women It lacks guarantee for the rights to consent to marriage and equality in marriage It emphasizes on traditional values and practice that have long impeded the advancement of womens rights in Africa. A case to illustrate this is the case is Magaya v Magaya, 1999 (1) ZLR 100 (S) where the Supreme court held that domestic laws (that discriminated against women) carried greater weight than international instruments that protect women from discrimination. In considering whether a woman could inherit her fathers estate, the court relied on traditional conceptions of the family and the male patriarch as stipulated under the African Charter, rather than on the rights and standards guaranteed under international law. With this is mind, The Protocol to the African Charter on Human and Peoples Rights (ACHPR) on the Rights of Women in Africa was drafted in Lom, Togo in March 1995 and eight years later it was adopted in Maputo in July 2003. THE AFRICAN PROTOCOL (MAPUTO PROTOCOL) Before entering into force, the Protocol required ratification in fifteen member countries (Article 29). On 26 October 2005, Togo became the fifteenth country to ratify and deposit the Protocol before the Commission of the African Union. The Protocol entered into force a month later on 25 November 2005. Kenya, however, has not ratified the document but it is a signatory of it.

The protocol has the following articles which deal with the following aspects
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Elimination of Discrimination Against women Right to Dignity The Rights to Life, Integrity and Security Elimination of Harmful Practices Marriage Separation, Divorce and Annulment of Marriage Access to Justice and Equal Protection before the Law Right to Participation in the Political and Decision-Making Process Right to Peace Protection of Women in Armed Conflicts Right to Education and Training Economic and Social Welfare Rights Health and reproductive rights Right to food security Right to adequate housing Right to positive cultural context Right to a healthy and sustainable environment Right to sustainable development Widows rights Special protection of the elderly women Special protection of women with disabilities Special protection of women in distress With these major points in the article, we will look at some of the key articles which have been integrated in the constitution and how they work hand in hand with the African Protocol Elimination of Discrimination Against women This article basically means that when one wants to write or propose a village development plan, a proposal for the economic or social improvement of the village, or if the Parliamentarians want to vote on a law, the view of women should be sought and their
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opinions taken into account. In section 27(iii) of the constitution, it states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. In the era where the old constitution was in use, there were many loopholes which were left open making a lee way for discrimination. An example to illustrate this is section 83(4) of the old constitution.

Right to Dignity In the constitution section 28 states that person has inherent dignity and the right to have that dignity respected and protected. The Rights to Life, Integrity and Security nobody can attack or injure a womans body and a woman shall not be excised or suffer female genital mutilation, no part of her genitals shall be removed or be sold for sex or forced to engage in prostitution. In relation to the rights of life, the constitution in article 26(i) stipulates that Every person has the right to life. In relation to the aspect of security, article 29 retaliates this issue. It states that Every person has the right to freedom and security of the person, which includes the right not to be (a) deprived of freedom arbitrarily or without just cause; (b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58; (c) subjected to any form of violence from either public or private sources; (d) subjected to torture in any manner, whether physical or psychological; (e) subjected to corporal punishment; or (f) treated or punished in a cruel, inhuman or degrading manner.

Elimination of Harmful Practices. It may concern physical suffering or moral or psychological suffering; The society is to be educated on peaceful means of dealing with conflict and settling matters to eliminate all the negative beliefs and violent practices used against women. They should be arrested and tried in a court of law, where if found guilty they may be sentenced to prison terms or fines. In cases in a refugee camp, the fact that the husband is not recognised as a refugee should not mean that the wifes status as a refugee is automatically denied. Document processing officers should consider the documents of each person whether it is a man or woman. Every
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female refugee shall enjoy the same rights as a male refugee. Train people who will then go from village to village to inform diverse population groups on the negative consequences of excision or female genital mutilation, forced marriage and widowhood practices that humiliate women.

Marriage Forced marriage is prohibited. Parents cannot compel their daughter to marry a man against her will. The minimum age of marriage in the African Protocol for women shall be 18 years. This is echoed in section 15 of the Children Act (2001) in the Laws of Kenya.

Separation, Divorce and Annulment of Marriage In this regard, the State Parties shall ensure that:

a) Separation, divorce or annulment of a marriage shall be pronounced by a judge;

b) Women and men shall have the same rights to seek separation, divorce or annulment of a marriage;

c) In the case of separation, divorce or annulment of marriage, women and men shall have equal rights and duties towards each other and the children. In all cases the interests of the children shall be paramount.

d) In the case of separation, divorce or annulment of marriage, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage. Currently, matrimonial property is owned on 50-50 basis. A case to illustrate this is the case of Karanja V Karanja(1976) KLR 307

Access to Justice and Equal Protection before the Law Women and men are equal before the law and shall have the right to equal protection and benefit of the law. States Parties shall take all appropriate measures to ensure the promotion of the right of women to seek justice in the cities and villages throughout country and continent.
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Right to Participation in the Political and Decision-Making Process States Parties shall take specific positive action such as enacting laws that clearly stipulate and encourage the participation of women in the political life of their countries on equal footing with men. These affirmative actions, national legislation and other measures should ensure that: women participate without any discrimination in all elections;

Right to Education and Training This means that within a family, the father and the mother shall enrol all their children at school regardless of their sex. Parents should ensure that each of their children is provided with the means to succeed at school by paying school fees, buying books and other educational materials for each child, and by ensuring that household chores are evenly divided in order to give girls and boys an equal amount of time for studying their lessons. Health and reproductive rights. In this protocol, women are entitled to proper health care and entitled to contraceptives and abortions in cases where the pregnancy is as a result of rape, incest or the pregnancy will cause physical and mental danger to the mother or both the mother and the child. Widows rights No member of the husbands family or her family shall compel a woman to marry another man against her wishes. Children from this marriage will be under the custody of the women in cases where the husband dies and is entitled to property which was owned by the husband. IMPLEMENTATION OF THE PROTOCOL This protocol is implemented at national level and periodic updates are sent to the African Commission on human and Peoples rights. Protocol shall be open for signature, ratification and accession by the State and it shall enter into force 30 days after the deposit of the 15th instrument CRITISMS OF THE PROTOCOL The most debatable thing in this protocol is Article 14 where it creates a leeway for legalisation of abortion. Critics say that it is a clear objective of the Maputo Protocol is to
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force abortion on every country in Africa. They say that if the purpose of the Maputo Protocol is to fight FGM, then it should do just that, and not drag other issues like abortion and family planning into it as they strongly believe that Africans have always treasured life and family. CONCLUSION In relation to this, we, the group members agreed that the Maputo protocol should be implemented after the amend Article 14. REFERENCES a) The additional protocol to the African Charter on Human and Peoples Rights: indications of capacity for African municipal systems by NKOLIKA IJEOMA ANIEKWU (Department of Public Law, University of Benin)

b) Promotion of human rights of women in Kenya a comparative review of the domestic laws by United Nations Development Fund for women. (UNIFEM)

c) The African protocol(The Maputo protocol)

d) The Kenyan Constitution