Litigating the Maputo Protocol A Compendium of Strategies and Approaches for Defending the Rights of Women and Girls in Africa Edited by: K. Kanyali Mwikya Carole Osero-Ageng’o Esther Waweru Litigating the Maputo Protocol A Compendium of Strategies and Approaches for Defending the Rights of Women and Girls in Africa Edited by: K. Kanyali Mwikya Carole Osero-Ageng’o Esther Waweru Copyright © 2020 Equality Now www.equalitynow.org All rights reserved. The content in this publication may only be reproduced with express permission in writing from Equality Now. Table of Content Acknowledgements VII Foreword IX Chapter 1 Litigating the Maputo Protocol: An Introduction 1 K Kanyali Mwikya Chapter 2 Litigating Gender-Based Violence and Discrimination - The Dorothy Njemnze Case 9 Osia Ojigho Chapter 3 Strategic Litigation as a Tool to Implement Constitunional Protections of Abortion: The Kenyan Case Study 35 Evelyne Opondo & Martin Onyango Chapter 4 Confidentiality or Secrecy? Interpretation of Article 59, and Implications for Advocacy on Pending Communications before the African Commission 47 Dr Ruth Nekura & Sibongile Ndashe Chapter 5 Litigating the Rights of Women at the ECOWAS Court 61 Oludayo Fagbemi Chapter 6 Advancing Sexual Reproductive Health Rights of Women and Girls through Strategic Litigations: The Impact of the Sexuality Education Case in Uganda 73 Specioza Avako Chapter 7 Realising the right to Menstrual Health and Hygiene in Sub-Saharan Africa 93 Gicuku Karugu Chapter 8 A Quest for Justice: Pursuing the Right to Maternal Health Services in Uganda 117 Susan Murungi V Chapter 9 Strategic Litigation: A Tool for Promoting and Protecting the Rights of Women and Girls in The Gambia 132 Janet Ramatoulie Sallah Njie Chapter 10 Analyzing the Effectiveness of Strategic Litigation on Reproductive Rights: A Case of Abortion Laws in Malawi 146 Alfred Majamanda Chapter 11 Policy Practice Divide: Examining the State Obligation to Protect Women and Girls from Sex Trafficking in Kenya 160 Anita Nyanjong' Chapter 12 An Appraisal of the Legal Framework on Sexual Harassment at the Place of Work and Schools in Cameroon 172 Gladys Fri Mbuya Chapter13 Examining the Role of the South Sudan Judiciary in Advancing the Rights of Women and Girls Enshrined in Article 6(b) of the Maputo Protocol 185 Josephine Chandiru Drama Chapitre 14 L’efficacité de l’utilisation des litiges pour la promotion et la réalisation des droits des femmes garantis par le Protocole de Maputo 195 Claire-Lise HENRY Chapter 14 The Effective Use of Litigation for the Promotion and Realization of the Rights of Women Enshrined in the Maputo Protocol 210 Claire-Lise HENRY Contributor Bios 223 Editor Bios 227 VI Acknowledgements Equality Now would like to acknowledge the enormous team effort that went into making the publication of this Compendium possible. We are sincerely grateful to the authors of the papers that form this Compendium for their immense contributions, and to scholarship on the rights of women and girls in Africa. When we embarked on a series of training for African lawyers we were cognizant of the fact they were a critical stakeholder in giving life to the Maputo Protocol by virtue of their profession to ensure justice for women and girls. And this Compendium was conceived with a view to capturing their experiences in applying the Maputo Protocol in their legal actions in the pursuit of justice for women and girls. We hope others will find this rich experience useful and applicable in their contexts. We recognize the great contribution and work of Equality Now staff and consultants for conceptualizing, reviewing and editing the papers that form this Compendium. In particular, we acknowledge the contribution of K Kanyali Mwikya, Esther Waweru and Carole Osero-Ageng’o, who conceptualized, coordinated and oversaw the implementation of this project and provided editorial support for the Compendium. We also appreciate the input from Antonia Kirkland, Caroline Lagat, Flavia Mwangovya and Joy Awich who reviewed abstracts and first drafts of the papers submitted in French. We also appreciate the invaluable input received from Carole Osero-Ageng’o who led the audit on the impact of the lawyers’ training exercises that Equality Now carried out over the past 11 years. Carole Osero-Ageng’o was instrumental in the compilation of the Compendium and ensured that its aims, objectives and intended effect of demonstrating the improved scholarship and enhanced advocacy and litigation on the rights of women and girls in Africa on account of the lawyers’ training exercises by Equality Now and its partner organisations were met. We would also like to acknowledge our academic peer reviewers who worked tirelessly to ensure that the papers accepted as part of the Compendium adhered to a high level of research and editorial standards and integrity. VII Equality Now is grateful to our long term anonymous donor and the Sigrid Rausing Trust for their support towards the publication of this Compendium, as well as supporting the audit on the impact of the lawyers’ training exercises carried out by Equality Now, the SOAWR Coalition and its partners over the past 11 years. Faiza Jama Mohamed Director, Africa Office Equality Now VIII Foreword As the immediate former Special Rapporteur on the Rights of Women in Africa, the full ratification, domestication and implementation of the Maputo Protocol is foremost on my mind as I write this foreword. The adoption and coming into effect of the Maputo Protocol was almost entirely to the credit of African wom- en’s rights activists and organisations that worked tirelessly to lobby the African Union to draft the Protocol as well as their own countries to sign and ratify the treaty. Today, organisations such as Equality Now and the Solidarity for African Women’s Rights (SOAWR) Coalition, continue this continent wide struggle for the full ratification, domestication and implementation of the Maputo Protocol, advocating that no African woman or girl is left behind or denied their rights. “Litigating the Maputo Protocol: A Compendium of Strategies and Approaches for Defending the Rights of Women and Girls in Africa” is a testament to the con- tinuation of the work of advocates for the rights of women and girls in Africa and their innovative approaches when it comes to the implementation of this treaty at the national level. The papers contained in this Compendium highlight the rightful place of litigation in holding states accountable for the commitments they made under the Maputo Protocol, as well as other regional, continental and international human rights treaties with provisions aimed at promoting and protecting the rights of women and girls in Africa. Although the Maputo Proto- col was one of the fastest African human rights treaties to ever come into force, its domestication and implementation has been plagued by a set of challenges, including the lack of political will by governments to make good on their com- mitments under the treaty, such as legislative reforms and executive action. Strategic and public interest litigation at the national, regional and continental levels have been instrumental in pushing for the most urgent reforms aimed at protecting the rights of women and girls in Africa. Activists and advocates who fought so hard for the passing of this treaty have been keen to see the standards contained in the Maputo Protocol become a lived reality for women and girls. Drafted by some of the leading experts on the intersection of scholarly work and advocacy for the rights of women and girls in Africa, this compendium is a won- derful resource for students, scholars, litigators, legislative actors, policymakers and judicial actors. IX Now, as ever, the moment of turning words into reality for women and girls by implementing the Protocol through law, policy and progressive jurisprudence is upon us. I would like to thank the contributing authors to this compendium, and everyone who worked on it to make this publication a success, for their addition to research and scholarship on such an important issue. Honourable Lucy Asuagbor, Retired Judge of the Supreme Court of Cameroon and Special Rapporteur on the Rights of Women in Africa (2015 to 2020) X Chapter 1 Litigating the Maputo Protocol: An Introduction K Kanyali Mwikya Background The coming into force in 2005 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol, was the culmination of years of advocacy by women’s rights organisations across the continent, including Solidarity for African Women Rights (SOAWR), a coalition of women’s and girls’ rights organisations pushing for the treaty’s development and adoption. Since the Maputo Protocol’s coming into force, the SOAWR Coalition, of which Equality Now is a founding member and serves as its Secretariat, has advocated for the universal ratification, domestication, and implementation of the treaty. Although most African countries have either signed or ratified the Maputo Protocol, its implementation and application in national, regional and continental litigation is far from becoming a reality. The latter was of notable concern as many women’s and girls’ rights litigators, civil society organisations and other actors, were missing a crucial opportunity to reference provisions of the Maputo Protocol in cases designed for the treaty’s intervention. This knowledge gap, the fact that legal sector actors such as judges, prosecutors, litigators and litigants had little awareness of the Maputo Protocol or its provisions prompted Equality Now, the SOAWR Coalition, and like-minded organisations to establish a training programme aimed at building the capacities of legal practitioners to utilise and apply international human rights norms and standards reflected in the Maputo Protocol as an important avenue for advancing the rights of women and girls in Africa. Between 2019 to 2020, Equality Now undertook an impact assessment of all of the lawyers’ training exercises it conducted between 2011 and 2018.