Background
The purpose of the international law is to authorize states to identify and accept human rights, incorporate them into their national laws and constitutions, and respect the rights. The state parties must ensure that the rights are enjoyed by the nationals through their national institutions and incorporate them into their national ways of life. In 1986, the African Charter on Human and People’s Rights (African Charter) was enforced and the 2003 Protocol to the African Charter on the Rights of Women in Africa (Maputo Women’s Protocol) was adopted as a response to the non-implementation of the African Charter and other relevant legal international instruments with respect to the rights of women. However, even after 10 years of the African Charter and 8 years of the Women’s Protocol, majority of people within the African continent are not even aware of the existence of these instruments. Taking Nigeria, as the case study, this research aims at assessing the impact of these legal instruments on the Nigerian people whose interests are purported to be served by these international legal instruments.
The reason behind taking Nigeria as the case study is twofold. Firstly, Nigeria is one of the founding state parties to the African Charter and the Women’s Protocol and is apparently the only Anglophone African state that has directly domesticated the African Charter. Secondly, Nigeria comprises 20 percent of the African population, which implies that the African Charter and the Women’s Protocol affects the 20 percent of the African people.
According to Smith (2018) the human right treaties is said to have an impact at two levels. Firstly, it may have an impact through the individual complaints and state reporting with respect to the domestic enforcement of the international human rights standards. Secondly, it may have an impact through the internalization of international human rights rules or standards at the domestic level. McCorquodale (2017) states that it is essential to assess the extent to which human rights treaties have been successful at the domestic level to serve the interests of the nationals. This is because it shall enable the country to determine the progress that the country had undergone which will further assist in determining the potential challenges and roles of the human right treaties in the future.
The thesis statement of this research paper relates to the consequence of the implementation of the African Charter and the Women’s Protocol in Africa, focusing mainly on Nigeria, as it is one of the founding State parties to the Charter as well as the Protocol and the only country to incorporate the charter into its domestic law. The Women’s Protocol was implemented to compensate inadequacy in the Africa Charter with respect to women’s rights. Although the African Charter has been domesticated as African Charter Act but the Women’s Protocol is yet to be domesticated due to lack of concrete efforts.
Objectives
The aim and objectives of the research are as follows:
- To examine the impact assessment of the adoption of the African Charter and the Women’s Protocol;
- To recognize the governmental policies that have been reviewed or adopted to implement the Protocol or Charter;
- To assess and identify judicial references to the Protocol, Charter and consequences of such references on the human rights system in Nigeria;
The research questions are as follows:
- What is impact assessment of the adoption of the African Charter and the Women’s Protocol in Africa, especially Nigeria?
- What are the governmental policies that have been reviewed or adopted to implement the Protocol or Charter?
- What are the judicial references to the Protocol, Charter and consequences of such references on the human rights system in Nigeria?
The study shall be based on the domestic impact assessment of the African Charter and the Women’s Protocol on Nigeria. It is essential to assess the impact of the legal instruments as it determines the failure or success of any international human rights system, which is dependent on the impact the legal instrument makes on the domestic system at the country level. The research focuses on Nigeria, as it is one of the founding signatories to the African Charter and the Women’s Protocol, which is also the only country to incorporate the African Charter in its domestic legislatures. Consequently, the high-level engagement of the Nigerian civil society organizations with the Africa Charter System implies that the African Commission’s jurisprudence is more associated with Nigeria compared to any other African state party to the Protocol or the Charter. The assessment of the impact is much broader than the implementation of the legal instrument and the compliance-based approach towards such instruments. For the purpose of the study, the research concentrates on all forms of effect and influence that the legal instruments exert on state institutions, civil society in Nigeria and non-state actors.
The African Charter and the Women’s Protocol have inspired the development of several policies in Nigeria. These policies seek to safeguard the human rights of the particular group of people or in general. Unlike the legislations, the policies are more comprehensive, goal-oriented and flexible in nature and though they do not have a binding effect, they provide moral basis for legal actions, such as the National Action Plan [NAP] for the Promotion and Protection of Human Rights in Nigeria be developed. It includes rights that have been drawn from regional, domestic and international human rights instruments and has been significantly influenced by the African Charter. The National Gender Policy is associated with the provisions of major international instrument on women’s right including the Women’s Protocol.
The ultimate objective of the international human rights system is to ensure that states must abide by the provisions of the human treaties within the territories. Under the African human rights system, it lacks effective mechanism for ‘direct enforcement’ of treaty rules, hence, effectiveness of human rights treaties in Africa depends on the incorporation of the rules into the domestic laws. The assessment of the impact of the treaties on domestic legislations commences with the Constitution being the legal basis of the legal system as well as of the inter-governmental relations more so in Nigeria where the Constitution has adopted dualist system.
Research Questions
The African Charter has influenced the Legislative outcomes in Nigeria in two significant ways as there are cases of direct causality and instances of correspondence in norms.
Direct causality:
After the adoption of the African Charter, the Nigeria National Assembly passed the Africa Charter (Ratification and Enforcement) Act, which led to the incorporation of the Charter into the Nigerian legal system.
Correspondence in norms:
Although several human rights related legislations have been adopted such as Child Rights Act 2003, Trafficking Persons Prohibition Act 2003, etc which were not related to the African Charter neither the Women’s Protocol. However, only two legislations were identified to be associated with the African Charter, which includes National Human Rights Commission (Amendment) Act 2010 and the Treaty to Establish the African Union (Ratification and enforcement) Act 2003. However, these legislations did not include any references about Women’s Protocol.
Although, the Women’s Protocol was not domesticated, several state legislative assemblies have adopted laws relating to provisions of the Women’s Protocol like trafficking in women, gender equality, domestic violence, harmful customary practices, reproductive health rights, etc. Therefore, even though the domestic laws of the country do not refer to the Women’s Protocol or the African Charter, there is a significant compliance between the rules entailed in these domestic legislations and the rules stipulated in the Charter and the Protocol.
The research shall be qualitative in nature and data for this research shall be collected using the secondary resources. Secondary data resources include articles, journals, books, etc. While conducting the data analysis, the study shall use information about the impact assessment of the African Charter and the Women’s Protocol on Nigeria and other developing countries shall be used from existing studies. This will provide assurance about consistency in depth and scope and will ensure authenticity of the information. The researcher will maintain confidentiality of the information, thus, ensuring ethical means used to retrieve information through secondary sources.
The researcher will use thematic analysis method to deal with the aims and objectives of the research paper. The researcher shall be using thematic analysis to analyze the information obtained through secondary sources. This form of analysis shall include several themes based on the research topic for which, detail explanation shall be provided in the research paper.
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