Abstract
Jamil Ddamulira Mujuzi notes that, at the time of ratifying the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (“the Protocol”), South Africa made several reservations and interpretive declarations. The reservations related to the imposition of the death penalty on pregnant and nursing mothers, the registration of customary marriages (article 6(d)) and the nationality or citizenship of children born of alien parents. The interpretive declarations related to Article 1(f), which defines “discrimination against women”, and Article 31, dealing with the question whether the South African Constitution offers more favourable human rights protection than the Protocol. Against the background of a general discussion of reservations and interpretive declarations in international law, the author considers the legal implications of South Africa’s reservations and interpretative declarations. The reservation to article 6(d), he suggests, is in conflict with South Africa’s international treaty obligations under the Protocol with regard to the marriage of girl children and the interpretive declaration to Article 1(f) is vague. However, the article highlights that the other reservations and interpretive declaration further the protection of women’s rights in South Africa. Several recommendations are made on how South Africa can better comply with its obligations under the Protocol.
Highlights
South Africa ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa on 17 December 2004 and deposited its Instrument of Ratification with the Chairperson of the Commission of the African Union on 14 January 20051 as required by Article 28 of the Protocol
The fact that the apartheid government was in a class of its own in violating human rights has been documented sufficiently in law reports, human rights reports, journal and newspaper articles, textbooks, Organisation of African Unity resolutions,2 and United Nations resolutions
Dugard reviews various judgments in which South African courts have referred to international treaties and to decisions of international and regional human rights bodies or tribunals
Summary
South Africa ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Protocol) on 17 December 2004 and deposited its Instrument of Ratification with the Chairperson of the Commission of the African Union on 14 January 20051 as required by Article 28 of the Protocol. The discussion is structured in the following order: the status of international law in South Africa is appraised; the drafting history of the Protocol follows; an outline of the articles in the Protocol is done (a detailed discussion of these rights falls outside the scope of this article but references are given on each provision for further reading by those interested in in-depth discussions of individual provisions); this is followed by a detailed discussion of the meaning of reservations and interpretative declarations under international law; South Africa’s reservations and interpretative declarations to the Protocol and their legal implications are analysed; lastly, conclusions and recommendations are made
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