The jurisprudence of the African Commission on Human
and Peoples’ Rights (ACHPR) has widely provided further
interpretation on the property rights of women in marriage,
particularly, at times of separation, divorce or annulment of a
marriage. The Commission adopted General Comment No.
6 during its 27th Extra Ordinary Session held in Banjul, The
Gambia in February, 2020. This General Comment provides
guidance on the interpretation of the rights to property during
separation, divorce or annulment of marriage, and the extent
to which men and women shall have the right to an equitable
sharing of the joint property deriving from marriage as per
article 7(d) of the Protocol to the African Charter on Human
and Peoples Right on the Rights of Women in Africa (Maputo
Protocol). Specifically, the ACHPR has provided guidance on
how marital property should be shared fairly and in a manner
consistent with the notion of substantive equality between
women and men. It also outlines the overall and specific
obligations of States Parties towards promoting the effective
domestication and implementation of Article 7(d) of the
Maputo Protocol. The text is also available, in the four official
languages of the African Union, on the African Commission’s
website: www.achpr.org
Pretoria University Law Press
PULP
www.pulp.up.ac.za
African Commission on
Human and Peoples’ Rights
GENERAL COMMENT NO. 6 ON THE PROTOCOL TO THE
AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHT
ON THE RIGHTS OF WOMEN IN AFRICA
(MAPUTO PROTOCOL): THE RIGHT TO PROPERTY DURING
SEPARATION, DIVORCE OR
ANNULMENT OF MARRIAGE (ARTICLE 7(D))
General Comment No 6 on Article 7(d) of the
Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of
Women in Africa
Adopted at the 27th Extra Ordinary Session of
the African Commission on Human and
Peoples’ Rights, held from 19 February to
4 March, 2020 in Banjul, Gambia
Table of Contents
Preface.................................................................................. 5
I. OBJECTIVE AND SCOPE OF THIS GENERAL
COMMENT .................................................................. 7
Legal basis for the elaboration of this General Comment....... 10
Definition of key terms ........................................................ 10
II. MARRIAGES AND PROPERTY RIGHTS
REGIMES IN AFRICA .............................................. 12
III. THE NORMATIVE FRAMEWORK .......................... 16
(a) The right to equality and non-discrimination ................. 16
(b) The right to property .................................................... 18
(c) The right to equality in marriage ................................... 18
(d) Equitable sharing.......................................................... 19
(e) Content on equitable sharing of the “joint property
deriving from the marriage” .......................................... 21
(f) Contribution of women to marital property ................... 22
(g) Protecting women’s rights in divorce within plural legal
systems......................................................................... 22
IV. STATE OBLIGATIONS ............................................. 24
(a) Legislative Measures..................................................... 24
(b) Access to justice and remedies....................................... 25
(c) Awareness raising......................................................... 25
(d) Capacity Building and Training..................................... 26
(e) Provision of adequate financial resources ...................... 26
(f) Compliance with the submission of periodic reports by
State parties.................................................................. 26
3
Preface
The African Commission on Human and Peoples’ Rights (the
African Commission) is pleased to adopt this General Comment on
Article 7(d) of the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa (The Maputo
Protocol).
The Maputo Protocol, adopted in 2003 and entered into force in
2005, complements the African Charter on Human and Peoples’
Rights (African Charter) by expanding the substantive protection of
women’s rights in Africa. It does so by explicitly providing for
women’s equal rights to land and property, as well as their equal
rights in marriage.
Under Article 7(d) of the Maputo Protocol, States Parties are
called upon to enact appropriate legislation to ensure that women
and men enjoy the same rights in cases of separation, divorce or
annulment of marriage. In this regard, they shall ensure that “… in
case of separation, divorce or annulment of marriage, women and
men shall have the right to an equitable sharing of the joint property
deriving from the marriage.”
This General Comment provides guidance on the interpretation of
the rights of women during separation, divorce or annulment of marriage, to ascertain that men and women shall have the right to an
equitable sharing of the joint property deriving from the marriage as
per Article 7(d) of the Maputo Protocol as well as outlines the overall
and specific obligations of States Parties towards promoting the effective domestication and implementation of Article 7(d) of the Maputo
Protocol.
The African Commission established different Special Mechanisms to advance specific human rights issues. One of such mechanisms is the Special Rapporteur on the Rights of Women in Africa
(SRRWA). The SRRWA took leadership in the development of this
General Comment pursuant to the adoption of Resolution 262 on
Women’s Right to Land and Productive Resources in 2013 and Resolution 401 on the development of General Comments on Article 7(d)
of the Maputo Protocol.
5
The SRRWA thus worked in consultation with government institutions and other relevant stakeholders who provided invaluable feedback in face-to-face meetings and through electronic contributions.
The African Commission wishes to express its gratitude to all its
partners and other stakeholders who participated so whole-heartedly
in the development of this General Comment.
Commissioner Lucy Asuagbor
Special Rapporteur on the Rights of Women in Africa
6
I.
OBJECTIVE AND SCOPE OF THIS
GENERAL COMMENT
(1)
Women on the continent find themselves in a vulnerable status
in terms of the enjoyment of their socio-economic rights on an
equal basis as men. They have limited access to and enjoyment
of property rights. Unequal power dynamics in the relations
between the sexes, discriminatory social and cultural structures
and practices and women’s lack of economic empowerment,
among others, are key factors that affect women’s rights to
property in Africa.
(2)
Women suffer from unequal rights to property both in time of
marriage and of divorce or separation. While in marriage, they
exercise limited or no economic decision-making power in the
household. Where much of their contribution comes from their
household and reproductive roles, neither these roles are taken
as having economic value nor any account is given to the
economic values of these roles.
(3)
The vulnerable position of women increases at the point of the
breakup of marriage. Women in Africa, as in other parts of the
world, are the most adversely affected by acute discrimination
and inequality in matters of property rights after marriage and
suffer disproportionately from the effects of discriminatory and
oppressive laws, customs, and traditions, especially regarding
access to and control of property such as housing and land.
Traditionally, property rights institutions have favored men
over women. Moreover, property laws in many countries, treat
men as household heads who enjoy complete control of family
property.
(4)
In particular, the prevalence of discriminatory laws and legal
processes resulting in property rights violation during
separation, divorce or annulment of marriage in Africa and the
impacts thereof on women are a major concern on the African
continent. Although a number of legislations in different
African States guarantee the right to equality, nondiscrimination and property, other legislations and customary
norms as well as patriarchal practices entrench gender
inequality in this regard.
7
(5)
In many parts of Africa, women’s contribution in the
acquisition of marital property has been consistently
undermined through, among others:
(a)
Gender discriminatory registration laws and practices, which in
effect prohibit or discourage women from owning housing, land
and property jointly with their spouse, or which give preference
for registration of housing, land and property in the name of the
male spouse only;
(b)
The application of the concept of marital power, which grants
power to only the husband to administer his wife’s property and/
or their jointly owned property;
(c)
Gendered responsibilities dictating that women use their
resources for the upkeep of the family and maintaining the home
while men use theirs for the acquisition of properties; and
(d)
The application of negative customary norms and religious
practices.
(6)
Meanwhile, State parties to the African Charter on Human and
Peoples’ Rights (The African Charter) are obliged under Article
2 and 3 to ensure equality of all persons – men and women and
to guarantee equal protection of their rights. Article 18 of the
African Charter specifically guarantees the elimination of all
forms of discrimination against women and enjoins State
Parties to ensure their protection.
(7)
In a similar vein, Articles 2 and 3 of the Maputo Protocol also
provide protection for women against discrimination. Article 2
establishes that States Parties shall “combat all forms of
discrimination against women through appropriate legislative,
institutional and other measures”. Article 3 establishes that
“every woman shall have the right to dignity inherent in a
human being and to the recognition and protection of her
human and legal rights.”
(8)
Additionally, Articles 6, 7 and 21 of the Maputo Protocol
contain a comprehensive regime of rights to be enjoyed by
women in marriage, including polygamous marriages. The
African Charter also guarantees the right to property, through
Article 14.
(9)
Whereas, Article 6 states that States Parties shall ensure that
“women and men enjoy equal rights and are regarded as equal
8
partners in marriage, Article 7 obliges States Parties to enact
appropriate legislation to ensure that women and men enjoy the
same rights in case of separation, divorce or annulment of
marriage. It further states under Sub-article (d) that they shall
ensure that, In case of separation, divorce or annulment of
marriage, women and men shall have the right to an equitable
sharing of the joint property deriving from the marriage.”
(10) Despite these legal advancements protecting women’s rights,
particularly, the rights during marriage or upon separation,
divorce or annulment of marriage, systematic discrimination
and inequality still prevail against women both in law and
practice.
(11) The aim of this General Comment is to give further
interpretation on the property rights of women in marriage,
particularly at times of separation, divorce or annulment of a
marriage. As such, it provides guidance on the interpretation of
the rights of women during separation, divorce or annulment of
marriage. It in particular seeks to provide content to the novel
protection to the right to an equitable sharing of the joint
property deriving from the marriage as per Article 7(d) of the
Maputo Protocol. It provides guidance on how marital property
should be shared fairly and in a manner consistent with the
notion of substantive equality between women and men.
(12) The General Comment also provides clarity and elaborates on
the legal obligations of States so as to establish a continent-wide
standard based on human rights principles that describes
legislative, institutional and other measures that should be taken
by States Parties to give effect to equitable sharing of marital
property during separation, divorce and annulment of marriage.
State Parties are obliged to effect transformative changes in
social, economic and political structures and relationships in a
manner that deals effectively with the factors which encourage
discrimination, patriarchy and structural inequality impeding
the equitable sharing of marital property to the disadvantage of
women.
9
Legal basis for the elaboration of this General
Comment
(13) Further, the task of interpreting the scope and meaning of
provisions in the Maputo Protocol and the African Children’s
Charter lies, respectively, with the African Commission on
Human and Peoples’ Rights (Commission).1
Definition of key terms
(14) For purposes of the General comment:
“Annulment” of marriage is the invalidation of a marriage to the date
of its formation by a judicial order.
“Divorce” is the termination of a marriage by judicial order under the
state laws.
“Equitable Distribution” is the apportionment of marital property in
excess of half of the property on the basis of awarding material
recognition to both the unequal enjoyment of property rights that the
woman endured during marriage and the non-monetary contribution
of the woman to the household and the family.
“Full community of property” refers to a marital property regime
under which all assets and income brought into the marriage and
acquired during the marriage, become the joint property of the
couple.
“Joint property deriving from the marriage” (“marital assets”) includes
all property acquired during the course of the marriage, regardless of
who holds the title to it. The interpretation of “joint property deriving
from the marriage” should be viewed through the lens of marriage in
community of property marital regime.
“Marriage” means formal and informal unions between men and
women of 18 years and above, recognized under any system of law,
1. Article 45(1)(b) of the African Charter, authorises the Commission to formulate
and lay down principles and rules aimed at solving legal problems relating to
human and peoples’ rights and fundamental freedoms upon which African governments may base their legislation.
10
custom, societal practice or religion.
“Non-monetary contributions” refer to the contributions made to and
during the subsistence of the marriage through non-remunerated
efforts and unpaid care work including but not limited to caring for
minor children, taking care of the family home, cultivation and
improvement of land, or any other non-monetized contribution.
“Separation” is setting apart spouses which does not involve the
dissolution of the marriage, but in which certain arrangements (for
example, for spousal maintenance or custody of children) are ordered
by the court.
“Substantive Equality” refers to the form of equality that requires the
adoption of measures that go beyond formal equality and seek to
redress existing disadvantage; remove socio-economic and sociocultural impediments for equal enjoyment of rights; tackle stigma,
prejudice and violence; leading to the promotion of participation and
achievement of structural change of social norms, culture and law.
11
II. MARRIAGES AND PROPERTY RIGHTS
REGIMES IN AFRICA
(15) There are various factors that create challenges to the full
enjoyment by women of property rights during marriage and at
its dissolution. These include diversity of legal regimes on
marriage and the divergent standards that the different legal
regimes of marriage envisage with respect to the treatment of
women in marriage and at the dissolution of marriage, social
attitudes on the equality of men and women in marriages that
shape institutions that regulate marriage including at the time of
its dissolution and lack of recognition of the material
contribution of the reproductive work women.
(16) Across Africa, different forms of marriages are recognized.
These are marriages under civil law, customary law, marriages
under the Ordinance or the Codes and religious marriages,
mostly under Islamic law. In addition to these, there are couples
who though did not perform marriage rites, cohabit for years
and hold themselves out as husband and wife. Here, some
jurisdictions do not recognize such unions as marriage and
therefore do not offer any form of protection to the extent of any
property rights accruing to them during and after that union.
There are also procedures to be followed for divorce to be given
the legal and formal recognition it deserves.
(17) In most cases, under Ordinance marriages, both parties must at
the time of the marriage have the capacity to be married to each
other. In the event of a divorce, grounds for the divorce and
property sharing arrangements must be in accordance with the
laid down legal procedures. Marriages under Islamic law are
also common on the continent and such marriages can be
potentially polygamous. The social attitudes towards marriage
and particularly the role of women in marriage on which these
civil or religious marriages are founded directly affects the
property rights of women during and at divorce, separation or
annulment of marriage.
(18) In customary marriages, the parties must agree to live together
as man and wife, both families of the parties should consent to
the marriage and the marriage must be consummated.
12
Customary marriages can potentially be polygamous as well.
However customary marriages can be transformed into
Ordinance marriages thereby converting the potentially
polygamous marriage into a monogamous one. When it comes
to divorce, grounds for the divorce may vary depending on the
custom in a particular group and this would entail serious
consequences on the distribution of marital property at the time
of separation, divorce or annulment of the marriage.
(19) Although Article 6(d) of the Maputo Protocol recognises
marriages that are recorded in law, the practice in most African
States shows that predominantly only civil marriages and
religious marriages are registered, yet majority of marriages in
Africa are customary marriages that are not registered. This
presents challenges for regulating and implementing equitable
processes for the distribution of matrimonial property during
separation, divorce, or annulment.
(20) The forms of property regimes in Africa generally appear to be
gender neutral (in the sense that both spouses can own
property). However, implementation within the social and
marital context, against the background of gender roles and
relations within the home, tends to place wives at a greater
disadvantage compared to their husbands. Also, despite the
recognition of a woman’s right to own property in her name,
often at customary law the wife is a dependent of her husband,
is required to work with or for her husband, and property
acquired with such assistance is his individual property. Despite
the change in economic circumstances, existing legal or
customary practices still fail to protect women’s property rights.
Often upon divorce, distribution of marital property is left at the
discretion of the courts or the institutions responsible for the
dissolution of the marriage in a particular country. With these
institutions still steeped in traditional conceptions of marriage
and the role and contribution of women during marriage, they
tend to apply distribution regimes that in most cases
disadvantage women.
(21) Marital property rights cover a vast multitude of rights or
interests conferred by law on persons who occupy the status of
spouse. It refers to the rights spouses enjoy in property
accumulated for the purpose of marriage or during the marriage
13
including for acquiring, using, disposing off, investing,
mortgaging, transferring property. Hence, property acquired
even before marriage by a couple for the purposes of enhancing
their marriage could be considered as marital property. So is
also property acquired during marriage for the use and benefit of
the union.
(22) For women, marital property rights and marital property
regimes are of particular importance during the course of the
marriage and become even more important in the context of
divorce. They are critical for the economic and social wellbeing
of women.
(23) The equitable entitlement to property rights of women are
critical for women not only because of their importance for the
socio-economic wellbeing of women but also because women
deserve them. This has become of great concern now in the
discourse on women’s rights because there is growing
awareness of the need to appreciate women’s contributions in
the house as equivalent to monetary contribution. There is also
an increasing trend whereby women are in the position to earn a
living and contribute substantially to the acquisition of property
and to the economic welfare of the family while still bearing
responsibilities for non-monetary reproductive contribution
they make at the household. It is submitted that as women have
gained the capacity to contribute to the acquisition of property,
what they are entitled to at the time of divorce has become more
relevant.
(24) How property rights are dealt with at the time of divorce,
separation or annulment of marriage is critical. Violations of
property rights of women that result from discriminatory laws
and practices upon separation, divorce or annulment of
marriage can be a precursor to poverty and destitution for many
women. Without adequate legal protections, and clarity on
Article 7(d) of the Maputo Protocol, women’s contributions to
marriage will continuously be rendered invisible, and their
legitimate claims to marital property will continue to be
undermined due to gender-biased norms and practices which
favor males in property allocation decisions.
(25) In the absence of national legislation that is accessible,
14
enforceable and justiciable in order to ensure effective
enjoyment of women’s equal rights under Article 7(d) of the
Maputo Protocol irrespective of the form of marriage and
consistent with the provisions of this General Comment, State
Parties cannot meet their regional and international obligations
to fulfil the rights of women to equality and non-discrimination.
The duties of states under Article 7(d) of the Maputo Protocol to
respect, protect, promote and fulfill require States Parties to take
positive and deliberate action to ensure that women, in times of
separation, divorce or annulment of marriage, enjoy their right
to equitable sharing of the joint property.
15
III. THE NORMATIVE FRAMEWORK
(26) Article 7(d) of the Maputo Protocol is an extension of the
various fundamental rights enunciated in the Maputo Protocol.
These various rights that form the normative foundation of
Article 7(d) of the Maputo Protocol are discussed below.
(a) The right to equality and non-discrimination
(27) The right to equality is provided both in the African Charter and
in the Maputo Protocol. Articles 3 and 18 form the equality
protection provisions of the African Charter. Article 3 of the
African Charter in essence captures equality as its foundation: it
provides for equality of all persons before the law and equal
protection by the law.
(28) The Commission has adopted the view that equal protection of
the law under Article 3 of the African Charter consists of the
right of all persons to have equal access to the law and courts
and to be accorded equal treatment by the law and courts both
procedurally and substantively. While it is akin to the right to
due process of law, Article 3 applies particularly to equal
treatment as an element of fundamental fairness. It is a
guarantee that no person or class of persons shall be denied the
same protection of the laws that is enjoyed by other persons or
other classes in like circumstances in their lives, liberty and
property.2
(29) Article 18 of the African Charter further provides equal
protection by focusing on the protection of the right of the
woman within the family. In particular, Article 18(3) requires
that the State ensures the elimination of every discrimination
against women and also ensure the protection of the rights of
the woman and the child as stipulated in international
declarations and conventions.
(30) The Maputo Protocol elaborates the catalogue of rights that
seek to ensure not only formal equality but also importantly
2. Communication 277/2003 – Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana.
16
substantive equality of women. Accordingly, the Protocol
prescribes wide range of entitlements and protection measures
that states are legally required to guarantee for women for
purposes of both eliminating the conditions that impede the
enjoyment by women of their human rights on an equal basis
with others. The Maputo Protocol under Article 2(1) places an
obligation on State Parties to “combat all forms of
discrimination against women through appropriate legislative,
institutional and other measures.” In this regard they shall
“(a) include in their national constitutions and other legislative
instruments, if not already done, the principle of equality
between men and women and ensure its effective application.
(b) enact and effectively implement appropriate legislative or
regulatory measures, including those prohibiting and curbing all
forms of discrimination particularly those 5 harmful practices
which endanger the health and general well-being of women;
(c) integrate a gender perspective in their policy decisions,
legislation, development plans, programmes and activities and
in all other spheres of life; (d) take corrective and positive action
in those areas where discrimination against women in law and
in fact continues to exist”.
(31) Further, Article 2(2) of the Maputo Protocol obligates State
Parties to prohibit and condemn all forms of harmful practices
which negatively affect the human rights of women and calls for
the elimination of cultural practices and stereotypes based on
the superiority or inferiority of the different sexes. In addition,
other provisions such as Article 9 providing for participative
governance and women’s governance in national politics,
Article 12 and Article 13 obliging states to guarantee equal
opportunities in education and employment resonate with the
objectives of substantive equality.
(32) The Maputo Protocol in Article 2 establishes the right to nondiscrimination and obliges State Parties to take measures to
protect women from discrimination.3 The Commission has
3. The Maputo Protocol defines discrimination against women under Article 1(f) as
“any distinction, exclusion or restriction of any differential treatment based on sex
and whose objectives or effects compromise or destroy the recognition, enjoyment
or the exercise by women, regardless of their marital status, human rights and fundamental freedoms in all spheres of life”.
17
further expounded discrimination as any act which aims at
distinction, exclusion, restriction or preference which is based
on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property,
birth or other status which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise by all
persons, on equal footing, of all rights and freedoms.”4
(b) The right to property
(33) The African Charter guarantees without discrimination the
right to property, through Article 2 and 14, and mandates State
Parties to eliminate all forms of discrimination against women
and to protect women’s rights including to property. Article 19
(c) of the Maputo Protocol obliges all State Parties to promote
women’s access to and control over productive resources and
guarantees their right to property.5
(34) The right to property incorporates not only the right to
ownership but also the right to “access one’s property and
freedom from violation of the enjoyment of such property or
injury to it, but also the free possession and utilization and
control of such property, in a manner the owner deems
adequate”.6 As noted above, this right entails that women are in
a position to exercise decision-making over the use, disposal off,
mortgage or transfer of the property.
(c) The right to equality in marriage
(35)
Article 6 of the Maputo Protocol requires State Parties to
4. Supra note 3.
5. International human right law guarantees women’s right to own and administer
property without discrimination (UDHR; Arts. 2 and 17, CEDAW, Art. 15). The
CEDAW Committee emphasizes that in marriage, both spouses have equal rights
to “own, acquire, manage, administer, enjoy and dispose of property.” Article
15(l) of CEDAW guarantees women equality with men before the law. The rights
provided in this Article overlap with and complement those in Article 15(2) in
which an obligation is placed on States to give women equal rights to enter into
and conclude contracts and to administer property.
6. Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of
Endorois Welfare Council) v Kenya par 46.
18
ensure that women and men enjoy equal rights and are regarded
as equal partners in marriage by enacting appropriate laws to
guarantee, among other things, that the matrimonial regime is
chosen by mutual agreement (Article 6(e)) and that during the
course of the marriage, a woman shall have the right to acquire
her own property and to administer and manage it freely
(Article 6(j)).7
(36) Article 7 of the Maputo Protocol requires States parties to
ensure the enactment of legislation that allows women and men
to enjoy the same rights and therefore equal rights in case of
separation, divorce or annulment.
(37) The African Commission notes that the legal systems of many
countries provide for the rights and responsibilities of married
partners on the basis of the application of legal principles,
religious or customary norms which are informed by
discriminatory social and cultural attitudes on the role of
women. In cases where domestic laws do not promote equality
in marriage for women, there are wide-ranging consequences
which invariably restrict their rights to equal status and
responsibility within marriage. Such limitations often result in
women having no domestic legal remedies to redress the
situation.
(38) The Maputo Protocol and the principles and rights enshrined in
it are meant to transform the laws, practices and institutions that
govern marriages before, during and after the formation of the
marriages.
(d) Equitable sharing
(39) Article 7(d) provides that in case of separation, divorce or
7. CEDAW upholds the equality of women and men in society and in the family.
The Convention offers a wide-ranging standard of equality for women and men in
marriage and family relations, specifically in Articles 9 and 16. In 1994, the
CEDAW Committee further affirmed this right in its General Recommendation
No. 21 on Equality in Marriage and Family relations. Here, the CEDAW Committee recognized the significance of culture and tradition in shaping the thinking
and behavior of men and women and the significant role they play in limiting the
full realization of basic rights by women.
19
annulment of marriage, women and men shall have the right to
an equitable sharing of the joint property deriving from the
marriage. Article 7(d) should not be read in isolation but in
conjunction with the earlier part of Article 7 which enjoins State
Parties to ensure that men and women enjoy the same rights in
case of separation, divorce or annulment of marriage and
should therefore be interpreted in a manner which is consistent
with this principle.
(40) The notion of “equitable sharing” as provided in Article 7(d)
should be seen through the lens of substantive equality. The
notion of substantive equality recognizes that equality can only
be achieved if the relevant government interventions respond to
the historical, social, religious, political and economic
conditions that affect the exercise and enjoyment of rights by
individuals as part of communities to which they belong. A
substantive equality approach in this regard requires States to
recognize that women are in an unequal position and
implement special measures aim at ensuring their property
rights during separation, divorce or annulment of marriage.
Substantive equality accordingly entails the provision of
entitlements and protections to disadvantaged members of
society additional to the entitlements and protections available
to all on an equal basis. Such additional entitlements and
protections that substantive equality requires are meant to
rectify the conditions that imped equal enjoyment of rights and
enable disadvantaged members of society (women in the
context of the Maputo Protocol) to enjoy their rights fully and
on an equal basis with others.
(41) The forgoing makes a distinction between two forms of
equality. First is nominal or formal equality which advocates
that men and women be treated alike because the sexes are the
same in law. The other is substantive equality which focuses on
the nature of the impact of particular laws or their application
on women’s lives and their ability to access and enjoy their
human rights fully and on an equal basis.
(42) In the African context, because of political, cultural, and
historical factors mentioned above, treating men and women
alike may not necessarily lead to equality between the sexes
because the playing ground is not level. The formulation of
20
equality as substantive equality is one of these. At its most basic
level substantive equality recognizes that equal treatment in
itself does not and indeed did not guarantee equal outcomes or
equality of opportunities; as a result, the law should consider
relevant differences that pose disadvantage to an individual or a
particular group. As opposed to the form of laws, its concern is
with the actual enjoyment of a right and unmasking the factors
that hinder attainment of equality in fact.
(43) In this vein, this General Comment therefore provides an
opportunity for equitable sharing under Article 7(d) of the
Maputo Protocol to be interpreted as the apportionment of
marital property in excess of half of the property on the basis of
awarding material recognition to both the unequal enjoyment of
property rights that the woman endured during marriage and
the non-monetary contribution of the woman to the household
and the family within the context of substantive equality. The
objective of this is to avoid injustice and ensure equality
between men and women taking into consideration all forms of
contribution made towards the acquisition of the marital
property.
(e) Content on equitable sharing of the “joint property
deriving from the marriage”
(44) The implication of equitable sharing as expounded in this
General Comment entails giving due recognition to the
reproductive role of women involving the contributions that
they make through the time, labor and care giving that they
invest in the household. In determining the scope of equitable
sharing, account should be given to the duration of the
marriage, whether couple produced children, the cause of the
separation, divorce or annulment of marriage and the
responsibility that each spouse bears.
(45) Joint property deriving from marriage for the purposes of this
General Comment comprises of all property acquired including
inherited family land by the spouses during the subsistence of
the marriage unless expressly exempted by state legislation or by
contract.
21
(46) Property acquired before the marriage, as well as gifts,
inheritances, and tort settlements in favor of one spouse, may
not be divided at divorce and may be considered as exempt
unless such assets have been treated by the spouses during the
subsistence of marriage as joint property.
(f) Contribution of women to marital property
(47) Therefore, to ensure substantive equality, States Parties must
fully acknowledge and recognize the many forms of women’s
contribution to the economic well-being of their families and
ensure that this contribution is fully recognized in cases of
separation, divorce or annulment of marriage. This includes
wives’ contribution to the development of land and property
through their unpaid labor as well as child care. The application
by States of the community of property regime must align to
give effect to the requirements of Article 7(d).
(g) Protecting women’s rights in divorce within plural legal
systems
(48) Many countries in Africa have situations of dual or multiple
legal systems, which include both statutory and customary legal
systems. Customary, traditional and religious practices must not
go against the equality of women and men, particularly
substantive equality in its application to women.
(49) The implications of plural family law systems suggest the need
for a unified and harmonized legal standard consistent with the
provisions of the Maputo Protocol vis-à-vis marital property
regime and the abolition of marital power. In order to protect all
women in various unions, it is important that States Parties
extend the same rights to customary unions (including
polygamous and de facto monogamous marriages), as is
consistent with Article 6(c) of the Maputo Protocol.
(50) This is in line with Article 2(2) of the Maputo Protocol which
provides that States Parties shall “commit themselves to modify
the social and cultural patterns of the conduct of women and
men
through
public
education,
information,
and
22
communication strategies, with a view to achieving the
elimination of harmful cultural and traditional practices and all
other practices which are based on the idea of the inferiority or
the superiority of either of the sexes, or on stereotyped roles for
women and men.”
23
IV. STATE OBLIGATIONS
(a) Legislative Measures
(51) States Parties should ensure that their domestic legal framework
is harmonized and give full effect to women’s equal rights to
marital property, including via law reform, which must have a
clear and egalitarian codification of matrimonial property
regimes; repeal of discriminatory laws; the elimination of the
co-existence of multiple standards of marriage that cause
disadvantage to women; and harmonization of family and civil
codes with the Maputo Protocol, particularly around issues of
marriage, divorce, separation or annulment of marriage. States
should also ensure that threat of dispossession in case of divorce
or separation is punishable by the law.
(52) States Parties should enact and implement clear, accessible,
enforceable and justiciable legislation in order to ensure
effective enjoyment of women’s rights under Article 7(d),
consistent with the provisions of this General Comment. As
part of such legislation, States should also provide and make
budgetary provisions for effective implementation and legal
reform in line with the provisions of the General Comment.
(53) States Parties should define marital property as referring to any
land or personal property which is acquired during the marriage
by the direct or indirect efforts of one or both spouses. Marital
property is to be divided equitably between spouses at divorce,
separation or annulment.
(54) States Parties should recognize the value of indirect and
nonfinancial contributions to marriage and to the acquisition of
marital property, such that these contributions entitle a
spouse to receive an equal interest in property acquired during
the marriage. States Parties should ensure that women without
children, women with disabilities, older women, widows and
other women who may be vulnerable to having their nonfinancial contributions to marriage discounted or disregarded
are not discriminated against and are able enjoy their right to
equal sharing of joint property deriving from marriage.
(55) States Parties should ensure that clear consent requirements are
24
in place for the transfer or sale of marital property by requiring
the free, prior, and informed written consent of spouses.
(b) Access to justice and remedies
(56) States Parties are required to establish judicial, quasi-judicial,
administrative, traditional and other processes to enable women
to access and obtain redress. State Parties should provide
effective access to justice for women during divorce
proceedings, including for women without children, women
with disabilities, older women, widows, women living in rural
areas and other women who may be vulnerable to having their
non-financial contributions to marriage discounted. Free legal
aid should be provided to women who do not have the means to
pay for court costs and attorney fees, and should be accessible to
women living in rural areas, so as to ensure that no woman is
forced to forego her economic rights to obtain a divorce and
protect her right to property. Legal aid should be broadly
understood as encompassing legal representation, legal
assistance, legal advice, legal education and information,
mechanisms for alternative dispute resolution, and restorative
justice processes. In this regard, alternative dispute resolution
should be encouraged and provide women with accessible
information and legal guidance to the courts.
(57) States Parties should also ensure the training of judicial and
administrative officers on women’s marital property rights as
well as women’s equal rights within the context of marriage,
divorce, separation and annulment of marriage. Such
institutions should have adequate financial, human, technical
and other resources to effectively provide redress and be
equipped with knowledge on gender equality and its application
in judicial or other remedial processes.
(c) Awareness raising
(58) States Parties should engage in awareness-raising, and actively
encourage transformation of discriminatory practices and
customs related to marriage, divorce, separation and annulment
of marriage, particularly as it relates to discriminatory treatment
25
of women and dispossession from their marital property.
(d) Capacity Building and Training
(59) States should also ensure that the capacity of relevant
stakeholders are built to understand the need to ensure that
women’s contribution form part of the property derived from
marriage upon divorce or separation. They should also be
trained on the principle of substantive equality. As espoused in
this General Comment.
(60) Under all of the above, States should create the conditions and
provide support for non-state actors including Civil Society
Organizations to engage in advocacy, awareness raising, and
capacity building activities among others, that will support the
removal of the conditions and practices that impede the equal
enjoyment of rights by women during marriage and at the time
of divorce, separation and annulment.
(e) Provision of adequate financial resources
(61) States Parties should allocate sufficient budgetary resources for
information campaigns on laws on matrimonial property
regimes, including in rural areas, women’s equal rights in
marriage and upon separation divorce and annulment.
(f) Compliance with the submission of periodic reports by
State parties
(62) State Parties have an obligation, in accordance with Article
26(1) of the Maputo Protocol to submit, in a timely manner,
their periodic reports on the legislative and other measures they
have taken towards the full realization of the rights recognized
in the said instrument. The reports must consider this General
Comment and comply with the guidelines adopted by the
African Commission for that purpose.
(63) States Parties shall include in their periodic reports to the
Commission information on the measures taken to implement
their obligations under Article 3 of the African Charter to
26
provide equal protection for women in cases of separation,
divorce or annulment in accordance with this General
Comment. State Parties shall provide information, including
qualitative and quantitative data disaggregated by age, gender,
nationality, disability and other key factors on the following:
(a)
The domestic legislation providing for women’s rights to marital
property, including relevant measures of implementation of such
legislation.
(b)
The complaints mechanisms available for women in case of
separation, divorce or annulment of marriage and the number of
complaints received and the outcomes of those complaints;
(c)
The protection available to women in cases of separation divorce
or annulment of marriage; and
(d)
The steps taken to implement judgments by national, regional or
international courts and human rights mechanisms.