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Violence Against Women in Africa: A Human Rights Violation Necessitating Criminal Accountability

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Violence Against Women and Criminal Justice in Africa: Volume I

Part of the book series: Sustainable Development Goals Series ((SDGS))

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Abstract

The United Nations Sustainable Development Goals envisage that by 2030, all forms of violence against women in both the private and public sector will have been eliminated. At the African Union level, both Agenda 2063 and the Agenda for Children 2040 envisage similar goals. These goals cannot be attained without understanding the forms of violence women experience as states need to know what it is that they are eliminating. Therefore, this chapter discusses the various expressions of violence against women in Africa. It conceptualises freedom from violence as a human right with corresponding obligations including the duty to protect and punish those responsible for violence. Punishment is administered through the criminal justice system; thus, the chapter positions criminal justice within the broader framework of a multi-sectoral approach to elimination of violence against women. The chapter concludes by raising questions about the future of access to justice for women in Africa.

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Notes

  1. 1.

    United Nations, Violence Against Women ‘Most Shameful’, Pervasive Human Rights Violation, Says Secretary-General in Remarks on International Women’s Day (March 9, 1999), https://www.un.org/press/en/1999/19990308.sgsm6919.html#:~:text=It%20knows%20no%20boundaries%20of,We%20have%20made%20some%20advances.

  2. 2.

    Ibid.

  3. 3.

    Human Rights Watch, Submission to the UN Special Rapporteur on Violence Against Women (May 22, 2020), https://www.hrw.org/news/2020/05/22/human-rights-watch-submission-un-special-rapporteur-violence-against-women., Office of the High Commissioner for Human Rights, Violence Against Women, https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/VAW.aspx, Amnesty International, South Africa: Gender-Based Violence and Femicide Offenders Must Face Justice (September 6, 2019), https://www.amnesty.org/en/latest/news/2019/09/south-africa-gender-based-violence-and-femicide-offenders-must-face-justice/.

  4. 4.

    United Nations, Ending violence against women (2006) 28.

  5. 5.

    African Union, A Multilateral Response to Eliminate All Forms of Violence Against Women & Girls (May 7, 2020), https://au.int/en/pressreleases/20200507/multilateral-response-eliminate-all-forms-violence-against-women-girls.

  6. 6.

    World Health Organisation, Changing cultural and social norms that support violence (2009) 1–18.

  7. 7.

    Ibid.

  8. 8.

    United Nations General Assembly, Declaration on the Elimination of Violence against Women, preamble (1993).

  9. 9.

    Ibid., 1.

  10. 10.

    Ibid., Preamble.

  11. 11.

    CEDAW Committee, General Recommendation No. 35 on Gender-Based Violence Against Women, Updating General Recommendation No. 19 July 26, 2017 CEDAW/C/GC/35 paragraph 9.

  12. 12.

    The Maputo Protocol, Article 1(j).

  13. 13.

    The Maputo Protocol, Article 1(k).

  14. 14.

    United Nations, International Day for the Elimination of Violence Against Women (November 25, 2019), https://www.un.org/en/events/endviolenceday/.

  15. 15.

    Ibid.

  16. 16.

    World Health Organisation, Injuries and Violence: The Facts (2014) 1–20, https://apps.who.int/iris/bitstream/handle/10665/149798/9789241508018_eng.pdf?sequence=1.

  17. 17.

    Ibid.

  18. 18.

    World Health Organisation, Understanding and Addressing Violence Against Women: Health Consequences (2012) 1–8.

  19. 19.

    World Health Organisation, Understanding And Addressing Violence Against Women: Female Genital Mutilation (2012) 1–8.

  20. 20.

    Masresha Andarge, The Difficulties of Ending Female Genital Mutilation (FGM): Case of Afar Pastoralist Communities in Ethiopia (2014) 32, https://www.ohchr.org/Documents/Issues/Women/WRGS/FGM/NGOs/ActionForIntegratedSustainableDevelopmentAssociation.pdf.

  21. 21.

    Bakken I. Vik and Siri A. Rustad, Conflict Trends in Africa 1989–2017 (2018), https://reliefweb.int/report/world/conflict-trends-africa-1989-2017.

  22. 22.

    Maguire Sebastian, ‘The Human Rights of Sexual Minorities in Africa’ 35 California Western International Law Journal (2004): 1–52; Muthien Bernedette, ‘The Status of Sexual Minorities in Southern Africa’ (2009): 1–29, https://www.oxfam.de/system/files/The_status_of_sexual_minorities_in_Southern_Africa_--_FINAL.pdf.

  23. 23.

    See, e.g., the Penal Code Act of Uganda Chapter 120, Sect. 145 and the Malawian Penal Code Chapter 7, Sects. 156 & 157. These laws criminalise vague conduct such as unnatural sexual practices and indecent practices which have been vaguely interpreted to the detriment of women who engage in activities such as sex work. While these codes do not explicitly criminalise sexual orientation, they have been relied on to harass women on account of their sexual orientation. On this, see, e.g., Ugandan cases of Victor Juliet Mukasa and Yvonne Oyo v The Attorney General of Uganda, Misc. Cause No. 247 (2006).

  24. 24.

    Ibid.

  25. 25.

    World Bank, Poverty in a Rising Africa: Africa Poverty Report (2016) 5, http://documents.worldbank.org/curated/en/949241467996692059/pdf/103948-PUB-POVERTY-AFRICA-Box394870B-PUBLIC.pdf.

  26. 26.

    Ibid.

  27. 27.

    World Health Organisation, Understanding and Addressing Violence Against Women: Human Trafficking (2012) 1–8.

  28. 28.

    Masresha Andarge, The Difficulties of Ending Female Genital Mutilation (2014) 32,

    https://www.ohchr.org/Documents/Issues/Women/WRGS/FGM/NGOs/ActionForIntegratedSustainableDevelopmentAssociation.pdf.

  29. 29.

    Ibid.

  30. 30.

    United Nations Population Fund, Millions at Risk of Gender-Based Violence if COVID-19 Pandemic is Prolonged, May 26, 2020, https://www.cfr.org/blog/millions-risk-gender-based-violence-if-covid-19-pandemic-prolonged.

  31. 31.

    United Nations, Facts and Figures: Ending Violence Against Women (2019), https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

  32. 32.

    The United Nations Population Fund, Gender-Based Violence: What Do We Do (2020), https://esaro.unfpa.org/en/topics/gender-based-violence.

  33. 33.

    Muluken Dessalegn Muluneh, Virginia Stulz, Lyn Francis and Kingsley Agho, ‘Gender Based Violence Against Women in Sub-Saharan Africa: A Systematic Review and Meta-Analysis of Cross-Sectional Studies’ 17 International Journal of Environmental Research and Public Health (2020): 1–21.

  34. 34.

    History, Feminism’s Long History (2019), https://www.history.com/topics/womens-history/feminism-womens-history.

  35. 35.

    Ibid.

  36. 36.

    Ibid.

  37. 37.

    Ibid.

  38. 38.

    Mahnaz Afkhami, Yakın Ertürk and Ann Elizabeth Mayer (eds) Feminist Advocacy, Family Law and Violence Against Women (2019) 1–259.

  39. 39.

    United Nations Convention on the Elimination of all forms of Discrimination Against Women (1979).

  40. 40.

    United Nations Declaration on Elimination of all forms of Violence Against Women (1993).

  41. 41.

    United Nations General Assembly Resolution, Strengthening Crime Prevention And Criminal Justice Responses to Violence Against Women (2011).

  42. 42.

    United Nations General Assembly Resolution, Taking Action Against Gender-Related Killing of Women and Girls (2014).

  43. 43.

    Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (2003).

  44. 44.

    African Union Commission, Agenda 2063: The Africa We Want (2015) 2.

  45. 45.

    Ibid., Aspirations 3 and 6.

  46. 46.

    African Committee of Experts on the Rights and Welfare of the Child, Agenda 2040: Fostering an Africa fit for children (2016), Aspiration 7.

  47. 47.

    Ibid.

  48. 48.

    United Nations, Sustainable Development Goals (2015).

  49. 49.

    Website of the United Nations, The Foundation of International Human Rights Law (2020), https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html.

  50. 50.

    Universal Declaration of Human Rights (1948), Article 1.

  51. 51.

    The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted in 1966, together with the UDHR, are considered as the International Bill of Rights.

  52. 52.

    Dubravka Šimonvić, ‘Global and Regional Standards on Violence Against Women: The Evolution and Synergy of the CEDAW and Istanbul Conventions’ 36 Human Rights Quarterly (2014): 590.

  53. 53.

    See generally Rashida Manjoo, ‘Normative Developments on Violence Against Women in the United Nations System’ in Rashida Manjoo and Jackie Jones (eds), The Legal Protection of Women from Violence: Normative Gaps in International Law (2018); Elizabeth Evatt, ‘Finding a Voice for Women’s Rights: The Early Days of CEDAW,’ 32 The George Washington International Law Review (2002): 543; Jane Roberts Chapman ‘Violence against women as a violation of human rights’ 17 Social Justice: Criminality, Imprisonment and Women’s Rights in the 1990s (1990): 54.

  54. 54.

    United Nations, Report of the World Conference of the United Nations Decade for Women: Equality, Development and Peace, Copenhagen A/CONF.94/35 (14 to 30 July 1980).

  55. 55.

    United Nations, Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace Nairobi A/CONF.116/28/Rev.1 (July 15–26 1985) Paragraph 231.

  56. 56.

    Office of the High Commissioner for Human Rights, Violence Against Women, https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/VAW.aspx.

  57. 57.

    Elizabeth Evatt supra note 59, 544–545.

  58. 58.

    Ibid.

  59. 59.

    CEDAW Committee, General Recommendation No 12: Violence Against Women adopted during its eighth session 1989.

  60. 60.

    CEDAW Committee, General Recommendation No 19: Violence Against Women adopted during its 11th session in 1992.

  61. 61.

    Ibid paragraph 1.

  62. 62.

    Ibid paragraph 6.

  63. 63.

    Ibid.

  64. 64.

    Ibid paragraph 4.

  65. 65.

    Ibid paragraph 7.

  66. 66.

    Ibid paragraphs 10 to 23.

  67. 67.

    Ibid paragraph 9.

  68. 68.

    Adopted by the World Conference on Human Rights in Vienna on June 25, 1993.

  69. 69.

    Vienna Declaration and Programme of Action Paragraph 18.

  70. 70.

    Vienna Declaration and Programme of Action Paragraph 38.

  71. 71.

    United Nations General Assembly, Declaration on the Elimination of Violence against Women (1993).

  72. 72.

    United Nations General Assembly, Declaration on the Elimination of Violence against Women, Preamble.

  73. 73.

    United Nations General Assembly, Declaration on the Elimination of Violence against Women, Preamble.

  74. 74.

    Ibid.

  75. 75.

    United Nations General Assembly, Declaration on the Elimination of Violence Against Women Articles 1 and 2: see Sect. 1 above.

  76. 76.

    CEDAW Committee, General Recommendation No 19: Violence Against Women Paragraph 7(f).

  77. 77.

    United Nations General Assembly, Declaration on the Elimination of Violence against Women Article 3(b).

  78. 78.

    CEDAW Committee, General Recommendation No 19: Violence Against Women Paragraph 7(c).

  79. 79.

    United Nations General Assembly, Declaration on the Elimination of Violence against Women Article 3(e).

  80. 80.

    Office of the High Commissioner for Human Rights, Question of integrating the rights of women into the human rights mechanisms of the United Nations and the elimination of violence against women, 1994/1945 (1994) paragraph 6.

  81. 81.

    Fourth World Conference on Women, Beijing Declaration and Platform for Action (September 4–15, 1995).

  82. 82.

    CEDAW Committee General Recommendation No. 35 on gender-based violence against women, updating General Recommendation No. 19 26 July 2017 CEDAW/C/GC/35.

  83. 83.

    CEDAW Committee General Recommendation No. 35 paragraph 2.

  84. 84.

    CEDAW Committee General Recommendation No. 35 paragraph 7.

  85. 85.

    Richard B Bilder, ‘Beyond Compliance: Helping Nations Cooperate’ in Dinah Shelton (ed) Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (2000) 71–72.

  86. 86.

    Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo May 28, 2014 (A/HRC/26/38) Paragraph 10.

  87. 87.

    Ronagh McQuigg, ‘Is it time for a UN Treaty on Violence Against Women?’ 22 International Journal of Human Rights (2018): 305–324.

  88. 88.

    Aisha K Gill, ‘Introduction: Violence Against Women and the Need for International Law’ in Rashida Manjoo and Jackie Jones (eds), The Legal Protection of Women from Violence: Normative Gaps in International Law (2018).

  89. 89.

    Human Rights Council, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rashida Manjoo May 28, 2014 (A/HRC/26/38) Paragraph 10.

  90. 90.

    Ronagh McQuigg, ‘Is it Time for a UN Treaty on Violence Against Women?’ International Journal of Human Rights 22, (2018): 319–322.

  91. 91.

    See generally Nicholas Wasonga Orago and Maria Nassali, ‘The African human rights system: Challenges and potential in Addressing Violence Against Women in Africa’ in Rashida Manjoo and Jackie Jones (eds) The Legal Protection of Women from Violence: Normative Gaps in International Law (2018).

  92. 92.

    Mutua Makau, ‘The construction of the African human rights system: Prospects and pitfalls’, in Power S and Allison G (eds) Realising human rights: Moving from inspiration to impact (2000) 143–166, 145.

  93. 93.

    Viljoen Frans, ‘Africa’s contribution to the development of international human rights and humanitarian law’ African Human Rights Law Journal (2001):18–39.

  94. 94.

    African Charter, Article 30.

  95. 95.

    African Charter, Articles 60 and 61.

  96. 96.

    Egyptian Initiative for Personal Rights and Interights versus Arab Republic of Egypt African Commission December 16, 2011 Communication No. 323/2006.

  97. 97.

    Egyptian case, paragraphs 5–7, 9 11, 14, 17–18 and 22.

  98. 98.

    Egyptian case, paragraph 87.

  99. 99.

    Egyptian case paragraph 119.

  100. 100.

    Egypt had not yet ratified the Maputo Protocol at the time of the facts.

  101. 101.

    Egyptian case paragraphs 120–123.

  102. 102.

    Egyptian case paragraphs 142–154.

  103. 103.

    African Charter, Article 66.

  104. 104.

    Maputo Protocol, Preamble.

  105. 105.

    Maputo Protocol, Article 1(f): ‘Discrimination against women’ means any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life.’.

  106. 106.

    See above.

  107. 107.

    Maputo Protocol, Article 5(d).

  108. 108.

    Maputo Protocol, Article 11(3).

  109. 109.

    Maputo Protocol, Articles 22 and 23.

  110. 110.

    Adopted in 1990.

  111. 111.

    African Children’s Charter, Article 2: applies to ‘every human being below the age of 18 years’; Article 3 provides for non-discrimination on the basis of sex in the implementation of the provisions of the African Children’s Charter.

  112. 112.

    African Children’s Charter, Article 4.

  113. 113.

    African Children’s Charter. Articles 3 and 26.

  114. 114.

    African Children’s Charter, Article 16.

  115. 115.

    African Children’s Charter, Article 21.

  116. 116.

    African Children’s Charter, Article 27.

  117. 117.

    African Children’s Charter, Article 29.

  118. 118.

    Adopted in 2016.

  119. 119.

    Adopted in 2018.

  120. 120.

    Older Persons’ Protocol, Article 3.

  121. 121.

    Older Persons’ Protocol, Article 8.

  122. 122.

    Older Persons’ Protocol, Article 9.

  123. 123.

    African Disability Protocol, Article 3.

  124. 124.

    African Disability Protocol, Articles 9, 10, 11, 28 and 30.

  125. 125.

    African Disability Protocol, Article 27.

  126. 126.

    African Commission General Comments No.1 on Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2012, paras 3, 7, 11 and 29; African Commission General Comment No.2 on Article 14.1 (a), (b), (c) and (f) and Article 14.2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2014; African Commission General Comment No.3 On the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4) 2015 para 39; African Commission General Comment No.4: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment.

    or Treatment (Article 5) 2017 paras 18, 57–61, and 79(VII); Joint General Comment of the African Commission and African Children’s Committee Ending Child Marriage 2017 paras 12, 32, 42 and 58; African Commission Guidelines on Combatting Sexual Violence and Its Consequences in Africa 2017.

  127. 127.

    CEDAW Committee, General Recommendation 19 paragraph 9; Article 4 of the Declaration on the Elimination of Violence Against Women; CEDAW Committee General Recommendation 35 paragraph 24(b); and Beijing Declaration and Platform for Action paragraph 124(b).

  128. 128.

    General Recommendation 19 of the CEDAW Committee paragraph 9.

  129. 129.

    CEDAW Committee, General Recommendation No.28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All forms of Discrimination Against Women 2010 (CEDAW/C/GC/28) paragraph 13.

  130. 130.

    General Recommendation 35 of the CEDAW Committee, paragraph 24(b).

  131. 131.

    Ibid.

  132. 132.

    Ibid.

  133. 133.

    Maputo Protocol, Article 2.

  134. 134.

    African Court on Human and Peoples’ Rights, Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and The Institute for Human Rights and Development in Africa (IHRDA) v Republic of Mali May 11, 2018: The African Court held that Mali was in violation of the Maputo Protocol and the CEDAW since the provisions of its Family Code violated their provisions concerning discrimination against women, child marriage, harmful practices and inheritance.

  135. 135.

    Maputo Protocol, Article 2(2).

  136. 136.

    Maputo Protocol, Article 8.

  137. 137.

    See also, Maputo Protocol, Article 26(2).

  138. 138.

    United Nations General Assembly Resolution, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) paragraph 1.

  139. 139.

    Article 8 of the Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (2003).

  140. 140.

    United Nations General Assembly, Transforming our world: The 2030 Agenda for Sustainable Development (2015) Target 16.

  141. 141.

    The Constitution of the Republic of South Africa (1996), Sect. 34.

  142. 142.

    United Nations Convention on the Elimination of all forms of Discrimination Against Women (1979), Article 2.

  143. 143.

    Committee on the Elimination of Discrimination against Women, General recommendation on women’s access to justice (2015).

  144. 144.

    Committee on the Elimination of Discrimination against Women, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (2017) paragraph 26.

  145. 145.

    United Nations General Assembly, Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) 1.

  146. 146.

    Ibid paragraph 3.

  147. 147.

    Maputo Protocol, Article 8.

  148. 148.

    Ashley v White 1703 92 ER 126, 136. In this dictum, the Court ruled that ‘it is a vain thing to imagine a right without a remedy.’ The African Commission on Human and Peoples’ Rights has also pronounced itself on the issue of the right to a remedy. See, e.g., African Charter on Human and Peoples’ Rights, General Comment No. 4 on the right to redress for victims of torture and other cruel, inhuman or degrading punishment or treatment (2015).

  149. 149.

    African Commission on Human and Peoples’ Rights, 111 Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence (2007).

  150. 150.

    Trial Chamber VI’s judgement in the case of The Prosecutor v Bosco Ntaganda, issued 8 July 2019, in which the ICC convicted former Congolese rebel commander, Ntaganda Bosco, on counts of war crimes and crimes against humanity. Amongst the war crimes and crimes against humanity he was convicted of was sexual violence. While the conviction has been appealed, the fact that courts are now entertaining cases of gender-based violence is itself a milestone.

  151. 151.

    For commentary on this in the context of South Africa, see Ramadimetja S. Mogale, Kathy K. Burns and Solina Richter, ‘Violence Against Women in South Africa: Policy Position and Recommendations,’ 18 Violence Against Women (2012): 580–594.

  152. 152.

    United Nations Office on Drugs and Crime, The work of UNODC on violence against women (2019) paragraph 3, https://www.unodc.org/documents/commissions/CCPCJ/CCPCJ_Sessions/CCPCJ_28/Brown-bag-lunches/Brown_bag_Swen_Pfeiffer.pdf.

  153. 153.

    Ibid.

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Authors and Affiliations

  1. Faculty of Law, Rhodes University, Grahamstown, South Africa

    Emma Charlene Lubaale

  2. Faculty of Law, University of Pretoria, Pretoria, South Africa

    Ashwanee Budoo-Scholtz

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  1. Emma Charlene Lubaale
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  2. Ashwanee Budoo-Scholtz
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Correspondence to Emma Charlene Lubaale .

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  1. Faculty of Law, Rhodes University, Grahamstown/Makhanda, South Africa

    Emma Charlene Lubaale

  2. Faculty of Law, Centre for Human Rights, University of Pretoria, Pretoria, Hatfield, South Africa

    Ashwanee Budoo-Scholtz

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Lubaale, E.C., Budoo-Scholtz, A. (2022). Violence Against Women in Africa: A Human Rights Violation Necessitating Criminal Accountability. In: Lubaale, E.C., Budoo-Scholtz, A. (eds) Violence Against Women and Criminal Justice in Africa: Volume I. Sustainable Development Goals Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-75949-0_2

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