A Feminist Reading of the Emerging Jurisprudence of the African and ECOWAS Courts Evaluating their Responsiveness to Victims of Sexual and Gender-Based Violence
Author: Annika Rudman
Affiliations: LLB LLM PhD, Professor, Faculty of Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 424 – 454
For progressive women’s rights treaties, such as the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol), to be meaningful, institutions established to interpret such treaties must assist in transforming international law into action on the domestic level. An important mechanism through which international human rights law becomes operative and accessible, as suggested in this article, is through the interpretation and application of the law by continental and regional human rights courts. What these courts do, and how they do it, send an important message to the collective of African states as to how they should fulfil their legal obligations to protect women against sexual and gender-based violence (“SGBV”). This article does not suggest that the enforcement of international human rights law by human rights courts such as the African Court on Human and Peoples’ Rights and the ECOWAS Court of Justice constitutes a “silver bullet” in ending SGBV. Instead, the analysis proposes that such courts have an important role to play in superimposing the enforcement of continental laws outlawing SGBV in all its different forms, which is one component of the larger fight against the endemic impunity from liability in cases of SGBV. This article purposely focuses on the mandate created in tandem between the Maputo Protocol and the treaties constituting the African and ECOWAS Courts. Through a feminist reading of the emerging jurisprudence, this article analyses the responsiveness of these courts in holding member states accountable for acts of SGBV under the Maputo Protocol, focusing specifically on different ways of redressing such violations. In this regard, this article emphasises that both direct state actions, where the state itself commits acts of SGBV against women through its agents, and acts that are committed by private parties necessitate the activation of the principle of due diligence to justify state responsibility.