The African Commission on Human and Peoples’ Rights (ACHPR) of a new General Comment to the Maputo Protocol on the Rights of Women in Africa

After years of advocacy, a key achievement for GI-ESCR in 2020 was the adoption by the African Commission on Human and Peoples’ Rights (ACHPR) of a new General Comment to the Maputo Protocol on the Rights of Women in Africa.

This General Comment ‘on women’s rights to property in cases of separation, divorce, or annulment of marriage’ acknowledges the blatant discrimination women are subjected to and calls on States to enforce equal rights in marital property.

Since its adoption, GI-ESCR has disseminated the General Comment widely, including through a high-level panel at the ACHPR with the participation of Mayra Gómez, former Co-Executive Director of GI-ESCR, in acknowledgement of GI-ESCR’s tremendous advocacy work on this issue.

At its 27th Extraordinary Session held from 19 February to 4 March 2020 in Banjul, The Gambia, the African Commission on Human and Peoples’ Rights (ACHPR) took a major step forward regarding women’s rights to property in cases of separation, divorce, or annulment of marriage by adopting a new General Comment (GC No. 6) on art. 7(d) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). This new General Comment, welcomed by women’s rights advocates across the world, as a landmark text for the rights of women across Africa, acknowledges the blatant discrimination women are subject to and calls on States to enforce equal rights in marital property.

"The African Commission on Human and Peoples' Rights has ushered in a landmark norm for the rights of women across Africa with the adoption of this General Comment. This Commission has sent a clear message that African women cannot be discriminated against at the time of divorce or separation and that they have an equal right to marital property” highlighted Mayra Gomez, former Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR).

Article 7 (d) of the Maputo Protocol – dwells specifically on women’s rights to property in cases of separation, divorce or annulment of marriage. Women’s rights organizations, globally and throughout Africa, advocated in support of this General Comment as a key step towards ending women’s discrimination across the continent.

The General Comment recognizes that separation, divorce, or annulment of marriage, have specific economic consequences for women, and that many countries in Africa continue to apply discriminatory laws, policies and practices which continue to systematically place women at a disadvantaged position.

The General Comment also clarifies that African States shall interpret the notion of ‘equitable sharing’ as equal sharing of marital property, in a manner fully consistent with the notion of substantive equality between women and men. It explicitly urges African States to recognize community of property as the default marital property regime, as well as the right to joint administration of marital property. In addition, States are required to enact appropriate legislation to this effect, and immediately rescind and repeal any contrary legislation.

“Some countries have double standards when it comes to the division of property in cases of divorce or dissolution, and even in those cases where ‘community of property’ is the default property regime, this often applies only to officially registered marriages, leaving women in customary or polygamous marriages outside the scope of protection. Having legal clarity on these issues and the legal obligations of States now helps to establish a Continent-wide standard based on human rights principles”, said Sylvia Noagbesenu of the Initiative for Gender Equality and Development in Africa (IGED-Africa).

“These General Comments on Article 7 (d) are meant to clarify various legal issues pertaining to women’s property rights in marriage and the notion of ‘equitable sharing’. This issue is a major concern for women across Africa because some countries maintain regressive standards when it comes to defining ‘equitable share,’ and in many cases women are not able to enjoy equal marital property rights in practice”, highlights Sibongile Ndashe, from the Initiative for Strategic Litigation in Africa (ISLA).

The General Comment itself could not have been achieved without the ongoing commitment and perseverance of a range of partners and women's rights advocates, specifically, Global Initiative for Economic Social and Cultural Rights, (GI-ESCR), Initiative for Gender Equality and Development in Africa (IGED-Africa), Initiative for Strategic Litigation in Africa (ISLA), Kenya Human Rights Commission (KHRC), FIDA-Kenya and Centre for Human Rights, University of Pretoria and others from across the Continent. It took literally years of dedicated work. It is our sincere intention that African women, and African girls born today and into the future, will have a brighter future because of this watershed achievement.

Here you may find the full text of the General Comment in the following languages:

English, French, Portuguese, and Arabic.

The General Comment was launched on Saturday 14 November 2020 at a a high-level panel convened by the Special Rapporteur on the rights of women in Africa and gathering State Delegates, NHRIs, civil society organisations, media and academics.

The event particularly aimed at raising awareness generally on the rights of women as provided under the Maputo Protocol, publicizing the immense contribution of the Commission in this regard including the development of soft law instruments including General Comment No. 6, and encouraging all stakeholders to make effective use of General Comment No. 6 and other soft law instruments developed by the Commission on the Rights of Women.

The panelists/speakers will make brief presentations touching on various aspects relating to the history, process, output and content of the final product. This will be followed by an interactive discussion on the General Comment. Thereafter, the participants will be invited to join the Commission in launching General Comment No. 6.

What are General Comments?

General Comments are used by human rights treaty bodies to interpret the provisions of relevant international legal instruments, with a view to assisting States to fulfill their obligations under such instruments. The competence of the African Commission on Human and Peoples’ Rights (the African Commission) to adopt General Comments is derived from Article 45 (1) (b) of the African Charter on Human and Peoples’ Rights (the African Charter), which authorizes the African Commission to “formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights.” As a complementary legal instrument to the African Charter, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Protocol) by necessary implications falls within the Commission’s interpretative scope.