The Trouble with Policy Development: A Case for an Indigenised Maputo Protocol

Abstract

Introduction

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’) celebrated its twentieth anniversary in 2023, but women on the African continent still struggle to access the rights enshrined therein. The Protocol faces various challenges, including a lack of sufficient funding for effective implementation of the Protocol. Additionally, historical and contemporary factors—such as colonial legacies, ongoing conflict, economic recessions and public health crises like the recent COVID-19 pandemic—hinder progress of its implementation.

Another significant challenge is the persistent perception of women as inferior. African women, in particular, often experience what has been described as ‘double patriarchy‘. This is experienced by those who straddle two (or more) cultural contexts—such as Western and Eastern, or African and Western. The concept of double patriarchy comes both from coloniality and within women’s own cultures. The first stems from cultural norms and practices within their own communities, often reinforced through family dynamics, community, and religious customs. This form of patriarchy is typically more localised and traditional. The second originates from formal, often Westernised social institutions such as schools, workplaces, and places of worship. It may also manifest through globalised norms and systems. These patriarchies often bleed into each other, even when they clash with each other, and they create deeper layers of complexity when it comes to women’s rights. These and many other political, social and global reasons are all valid considerations as to why the Maputo Protocol has struggled to deliver on its promises.

This paper focuses on the Protocol’s emphasis on universality at the expense of indigenisation. Such universality is evidenced in several ways; for example, the document is available only in colonial languages: English, French and Portuguese. This point is important to underscore, because language has long been a barrier to accessibility and inclusion on the continent. Few solutions have been offered to address the language challenge, and the diversity of African languages is often cited as an economic barrier to translating policies and important resources. However, many African languages share similar dialectics, meaning people across countries and regions can understand each other. In theory, this linguistic overlap could allow states to share the costs of translation and public education on important resources like the Maputo Protocol, while also strengthening their relations.

Women are further isolated from policies like the Maputo Protocol as a result of language barriers. In many communities, it is often men and young boys who are given the opportunity to go to school, where they may learn and master colonial languages. Women, by contrast, may struggle with sometimes legal and technical language required to read, interpret and advocate for their rights. Yet, women remain the primary bearers and teachers of indigenous languages, playing a crucial role in resisting the colonial erasure of African linguistic heritage. Legal and policy documents such as the Maputo Protocol should be made available in indigenous languages to support the epistemological and revivalist efforts led by African women. Language is also a tool of power and control, and power dynamics between the speakers are actualised. Ali Al’amin Mazrui suggests that language is a gradual process through which communities construct their shared worldview. Prioritising Western languages in legal settings not only alienates Africans from important policies, structures and social institutions, but it also reinforces the idea that African languages, the people who speak them and their associated worldviews are inferior.

The Maputo Protocol also reveals its colonial influence by placing most of the control in the hands of the state. This presents several challenges in the African context, particularly given that the state itself is often a highly contested and sometimes unstable structure that has been informed by the West. At the same time, the West continues to undermine African states, keeping them in an infant-like position, unable to act on key policies without external involvement. Some argue that policymaking and implementation should instead be overseen by non-state actors, such as the African Union or regional bodies such as the Southern African Development Community. However, this would require individual states to give up some degree of their sovereignty—a difficult prospect considering Africa’s colonial history, which stripped people of their independence.

The COVID-19 pandemic further illustrated these ongoing challenges. At different points, African states were compelled to act in accordance with directives from the World Health Organization or Western countries, even when such actions threatened state sovereignty, local economies or citizen welfare.

Beyond the African context, the very idea of the modern state is deeply patriarchal. It is often rooted in violence, war and conquest, which often violate women’s rights, police their dress and bodies and exclude them from participation in public life. It is a striking contradiction that the same institutions now responsible for protecting the rights of women are the very ones that had to oppress them in order to rise to power. Many state leaders, and leaders of various social institutions across the African continent and beyond, are men who remain either unwilling or unable to adequately protect women’s rights, often due to their own toxic masculinities.

Finding Solutions in African Women’s Lived Experiences

I want to be careful in suggesting African women, their strength and their resilience are the key. This is because two seemingly contradictory things can be true: African women are disempowered and oppressed, and at the same time, their resilience and lived experiences are central to their own emancipation.

In South Africa and across the continent, women often turn to informal labour when the colonial, patriarchal, capitalist economy fails them—marginalising them on the grounds of race, gender and socioeconomic status. They navigate the paradox of being othered and marginalised, while still being responsible for the survival and wellbeing of their families and communities, by extension. The village of Umoja in Kenya offers a powerful case study of what community-driven, and womanist-led social development and human rights protection could look like. Established in 1990 by fifteen women as a refuge from male violence and abuse, Umoja is a women’s only village that prioritises education, womanist freedom and self-reliance. The village addresses many of the goals outlined in the Maputo Protocol that states often struggle to meet—such as access to the communally shared land, a right enshrined in Article 19 on the right to sustainable development. The community also provides protection from harmful social and cultural practices and abuse, which align with several articles of the Protocol, including the rights to life, dignity, separation and the elimination of discrimination.

Umoja empowers women economically and their right to food security through small-scale farming and their arts and crafts which they sell locally and abroad. A portion of the money they make is sent back to support families in the communities they left behind. While state involvement remains important for policy implementation, it often overlooks the efforts of communities like Umoja and the lessons such communities offer for addressing similar challenges elsewhere. Much of Umoja’s success is rooted in the revival and preservation of indigenous knowledge, which helps the women to solve even some of their modern-day challenges.

Sabelo Ndlovu-Gatsheni argues that mothers and women are the primary educators—we learn language from them, and they also share knowledge of the world through storytelling and everyday practices. In precolonial Africa, they were the main custodians of knowledge. Ndlovu-Gatsheni suggests that overlooking this fact is one of the missing links in both decolonial discourse and the current social order.

The lack of meaningful recognition of African women’s positionality in leadership and public life—especially within a framework of pluriversality—is one of the many reasons why the continent’s development remains stalled. Women occupy only 24% of parliamentary seats in Africa, despite the fact that many of the challenges facing African countries disproportionately affect women. This underrepresentation suggests that women are excluded from decision-making processes that directly impact their lives. The contributions of rural women, such as those in the Umoja village, are even more overlooked, despite their resistance and resilience offering hope and practical solutions for the harsh realities that women face daily.

Conclusion

Policymakers and those tasked with implementing gender-responsive policies must ask how these seemingly small, grassroots strategies with big impact can be multiplied, while ensuring that women remain the agents of their own empowerment. They also reflect on how they can remove the systemic obstacles in women’s paths, even through smaller actions like more regulatory leniencies for informal workers, most of whom are women. These efforts must be supported by broader macro-level efforts and initiatives; this discussion does not suggest we do away with them. But for many women, it is the ‘smaller‘ efforts that plunge them deeper into poverty or places their lives at risk. New regulations frequently hinder their ability to work or continue utilising strategies that have ensured their survival or success.

This is especially the case for women who make a living as street vendors, waste pickers, recyclers and in other informal, yet equally important, work. Removing the barriers they face is what many of them need, rather than Western-backed, patriarchal notions of what their empowerment should look like. The state plays a critical role in ensuring this and enforcing important policies like the Maputo Protocol, but in the face of leaders and states who lack the political will to protect their people, the experiences of women in communities like Umoja offer crucial lessons. The innovative ways that these women generate income and support their communities, especially when the future seems bleak, offer valuable lessons in how ordinary people respond to state failures and work to advance human rights and development.