On 14 November 2020, the African Commission on Human and Peoples’ Rights (African Commission) launched General Comment No. 6 on the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). General Comment No. 6 focuses specifically on article 7(d) of the Maputo Protocol, which addresses the right to property during separation, divorce or annulment.
As noted in General Comment No. 6: “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.” It notes further that in many parts of Africa, women’s contribution to the acquisition of marital property has been consistently undermined through, for instance, the following factors:
- 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.
- 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.
- 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.
- The application of negative customary norms and religious practices.
Accordingly, General Comment No. 6 is intended to provide guidance on the interpretation of the rights of women during separation, divorce or annulment of marriage; to ascertain that women and men have the right to an equitable sharing of the joint property deriving from the marriage; to provide guidance on how marital property should be shared fairly and in a manner consistent with the notion of substantive equality between women and men; and to outline the overall and specific obligations on member states towards promoting the effective domestication and implementation of article 7(d) of the Maputo Protocol.
General Comment No. 6 can be downloaded here.
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