COVID-19, Women's Rights, and the Rule of Law in Africa: Muddying the Waters
| Author | Funmi Abioye |
| DOI | 10.25159/2522-6800/10281 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Pages | 1-21 |
Article
Southern African Public Law
https://doi.org/10.25159/2522-6800/10281
https://unisapressjournals.co.za/index.php/SAPL
ISSN 2522-6800 (Online)
#10281 | 21 pages
© Unisa Press 2022
COVID-19, Women’s Rights, and the Rule of Law
in Africa: Muddying the Waters
Funmi Abioye
https://orcid.org/0000-0001-6274-6308
University of South Africa
fforfunmi@gmail.com
Abstract
The COVID-19 pandemic has disrupted the global space. African countries and
societies have been greatly impacted, economies have been brought to the brink,
with already established legal mechanisms designed to ensure the functioning
of societies, being tested to the limit. In response, the concepts of ‘national
lockdown,’ ‘social distancing,’ ‘travel restrictions’ have become too familiar as
governments move to try and protect their populations. These measures have
had deleterious effects on law, the rule of law and the protection of rights
guaranteed by constitutions and regional instruments. In virtually every aspect
of life, human rights have suffered the direct and indirect consequences of
governments’ responses to the pandemic. This is particularly more so in African
states, and among the vulnerable members of the African population. It is said
that women in Africa have borne the brunt of the impact of the pandemic during
the measures implemented by States in attempts to curb and control the
pandemic.
This article examines the impact of these responses on the rights of African
women by drawing examples from South Africa. Constitutionalism and the rule
of law are affected as rights are limited and at times derogated in an attempt to
contain and control the pandemic. These derogations have had the unintended
consequence of limiting the guaranteed rights of African women under the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (the Maputo Protocol) and other international, regional and
national legislative provisions. The necessary factors that States need to
consider before imposing pandemic curtailment measures in future, are
discussed and recommended
Keywords: women’s rights; COVID-19; pandemic; rule of law; constitutionalism;
Maputo Protocol; South Africa, Africa.
Abioye
2
All countries must strike a fine balance between protecting health, minimizing
economic and social disruption, and respecting human rights
Introduction
The novel Coronavirus, commonly referred to as COVID-19 has upturned the world.
1
From very innocuous beginnings in December 2019, the virus (SARS-CoV-2) soon
spread to nations across the globe. By 30 January 2020, the World Health Organisation
(WHO) declared the outbreak a Public Health Emergency of International Concern
(PHEIC).
2
Within six weeks of that declaration, by 11 March 2020, a pandemic was
declared by the WHO.
3
Although the official mortality rate for COVID-19 is relatively
low, it comes with a high rate of transmission and infection which means that even with
a low mortality rate, the actual number of those succumbing to the virus is quite high,
4
and carries the risk of overwhelming health systems.
Governments were quick to heed the warnings of the WHO and health authorities, by
imposing emergency measures to curb the spread of the virus. By early 2020, various
measures were implemented globally in a bid to stem the transmission of the disease, to
minimise the loss of lives and to avoid overwhelming health systems. African
governments were not left out, and in July 2021, the International Centre for Not-For-
Profit Law recorded that African states had passed seventeen declarations of States of
emergency, nine declarations of national states of disaster and a good number of
declarations of public health emergencies.
5
These measures were targeted at reducing
the rate of transmission of the virus, and cases of severe illness. They were also designed
to give national healthcare infrastructures and health workers the space to deal with the
treatment and management of those infected by the disease (in order to avoid a total
World Health Organisation (WHO) Director-General’s Opening Remarks at the media briefing on
1
Coronaviruses (CoV) are a large family of viruses believed to cause illness ranging from the common
cold to more severe diseases as seen with COVID-19.
2
WHO Director-General’s Statement on IHR Emergency Committee on Novel Coronavirus (2019-
nCoV) (30 January 2020). See WHO ‘Statement on th e Second Meeting of the International Health
Regulations (2005) Emergency Committee regarding the outbreak of the novel coronavirus (2019-
nCoV)’ nt/news/item/30-01-2020-statement-on-the-second-meeting-of-the-
international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-
coronavirus-(2019-ncov)> accessed 16 September 2021.
3
ibid.
4
The WHO estimated the mortality at 3.4 per cent. As o f 18 October 2021, the WHO reported that
almost fiv e million people have died as a result of the virus, with well over 240 million people
infected. See accessed 28
September 2021.
5
Abioye
3
collapse of health systems).
6
With no treatment or vaccine immediately in sight, these
measures were mostly non-pharmaceutical interventions. Among these are social
distancing, physical distancing, hand-washing and/or sanitising of hands and common
surfaces, and the wearing of masks.
For most States, national lockdowns were imposed through different kinds of
emergency laws (decrees in some countries)
7
to prevent gatherings (large gatherings
were identified as super-spreader events), physical contact, and all non-essential
movement. Consequently, civil liberties were being curtailed,
8
human rights abuses
have occurred,
9
millions of people have lost their jobs and millions more are without
food.
10
Though crafted under emergency laws, and presumably meeting the formal
requirements of the rule of law, these measures have been the subject of debate in many
African countries—whether they pass muster of constitutionalism and the rule of law,
or if their impacts can so do.
11
Furthermore, while these measures affect the general public, women and children have
been affected the most, because of the existing societal imbalances, as well as the
patriarchal nature of modern society, which is steeped in male bias. Women have had
to bear the greater burden of the effects of this pandemic.
12
Thus, leading to the view
6
ibid.
7
In the case of South Africa, see Declaration of a State of National Disaster, Gazette No 43096 (312)
of 2020. These kinds of emergency laws take different forms in different countries. In Nigeria, it was
in the form of the Nigerian Quarantine Act of 1926, Nigerian Centre for Diseases Control and
Prevention Act of 2018 and the 1999 Constitution of Nigeria.
8
105 Journal of Law, Policy and Globalisation 2 and 7, for a list of various human rights affected by
the emergency laws in Nigeria; see generally also Serges Djoyou Kamga, ‘Covid-19 and the
Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An
Examination of Centre of Child Law v Minister of Basic Education’ (2021) 65 Journal o f African
Law 347–360; McCain Institute ‘Covid-19: An Excuse for Repressing Hu man Rights and Civil
Liberties’ covid-19-an-excuse-for-repressing-
Livelihoods, their Health and our Food Systems’ -10-2020-
9
McCain Institute (n 8).
10
ib id.
11
In South Africa, a number of unsuccessful legal attempts were made to challenge the State of Disaster
_Talking_Points__The_Courts_and_access_to_Justice.pdf> accessed 23 March 2022; Julian Brown,
(2021) 37(2) South African Journal on Human Rights 302–312.
12
the Gendered Impacts of the Pandemic’ covid -19-and-impact-african-
women-all-responses-must-respect-gendered-impacts-pandemic> accessed 18 October 2021.
13
Women in
all spheres of life (the workplace, home front, childcare, health and healthcare and in
the public sphere) are having to bear the brunt of this virus.
14
Even though the disease
does not discriminate in terms of whom it affects, it does discriminate in terms of effect.
The measures taken by States to address the pandemic are often unwittingly
discriminatory and non-inclusive, both in their formulation and implementation.
15
The
trend is notable in that laws, policies and regulations are usually strait-jacketed and
applied without any consideration for their gender impact. This, despite the fact that it
is reported that women constitute about seventy per cent of the workers in the health
and social care sectors globally, placing them at greater risk for increased infection.
16
The situation is more pronounced in Africa, with about seventy-four per cent of women
reportedly engaged in the informal economy sector (domestic workers, street vendors
etcetera).
17
Women are over-represented in the service and hospitality industries and
even in the subsistence farming sector.
18
This positioning makes women more
vulnerable to the risks posed by the virus, and to the effects of any measures
implemented to curb its transmission. Thus, against the backdrop of the rule of law and
constitutionalism, it is apt to examine the disproportionate impact of the pandemic, and
the measures taken by States to curb it. This contribution seeks to proffer options and
alternatives to how governments should respond to future pandemics, while at the same
time, taking measures to ensure inclusivity.
A literature review of available academic materials and texts, articles, reports and
comments by various commentators and materials from international organisations is
undertaken. The purpose is to collate what is available, and to extrapolate from there
what is relevant to this contribution. The next section deals with the normative
framework for the protection of women’s rights in Africa. A discussion of the general
protections guaranteed to women on the continent by international instruments, and in
particular the Maputo Protocol,
19
and other instruments will be discussed, with a view
13
Rights: 7 Possible Actions’ COVID -
19_and_Women_Rights_7_Possible_Actions.pdf> accessed 18 October 2021.
14
OHCHR (n 13).
15
Machel (n 12).
16
OHCHR (n 14); see also Nelia Viveiros and Amy E Bonomi, ‘Novel Coronavirus (Covid-19):
Violence, Reproductive Rights and Related Health Risks for Women, Opportunities for Practise
Innovation’ (2020) Journal of F amily Violence 1–5, wherein the auth ors indicate that as of April
2020, of all the 9282 US health care workers who were infected with Covid, seventy-three per cent
of them were female.
17
See UN Women Report on Women in Informal Economy at
focus/csw61/women-in-informal-economy> accessed on 20 Sept 201.
18
OHCHR (n 13).
19
Pro tocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(2005).
Abioye
5
to highlighting the presence of a budding rule of law regime when it comes to the
protection of the rights of women in Africa.
Section three consists of a brief analysis of the rule of law and constitutionalism, and
section four discusses the impact of certain COVID-19 non-medical interventions put
in place by States to curb the spread of the virus, such as national lockdowns, border
closures, travel restrictions and restriction of access to healthcare facilities and
personnel. For instance, lockdowns translate to a lack of access to places of safety or
shelters for women who are victims of gender-based violence. Section four concludes
by proposing how African states can be direct and intentional in ensuring that the
responses to the COVID-19 pandemic, and other subsequent pandemics are gender-
conscious. It is no longer good enough for responses to be mere blanket measures that
do not take cognisance of the already disadvantaged position of women in all sectors of
society.
Protection of the Rights of Women in Africa
The protection of women’s rights has been in global focus for many years. As the need
for the promotion and protection of women’s rights grew, a pseudo -normative
framework for such protections seems to have emerged. The first major global platform
for engagement on women’s rights was created in 1946, when the United Nations
Commission on the Status of Women
20
was established. The purpose of the Commission
was to monitor the situation of women and to promote women’s rights. The efforts of
the Commission resulted in the drafting of the Convention on the Elimination of all
Forms of Discrimination (CEDAW), 1979.
21
CEDAW is the central international law document for the advancement of the rights of
women.
22
It sets out a broad range of forms of discrimination against women and
outlines national policy guidelines to combat these.
23
In defining the term
‘discrimination against women,’ the Convention recognises that the principle of equality
of men and women must be the basis of any engagement.
24
It enjoins State parties to
embody the principle of equality of men and women in their national constitutions, or
20
See . This is the principal global inter-governmental body
exclusively dedicated to the promotion of gender equality an d the empowerment of women. The
Commission is instrumental in promoting women’s rights and shaping global standards on gender
equality and empowerment.
21
2021.
22
CEDAW was a culmination of more than thirty years of work by the UN Commission on the Status
of Women, monitoring the situation of women and promoting the rights of women.
23
Nd eye Amy Ndiaye, ‘Gender-Based Violence in West Africa: the Cases of Senegal, Mali, Burkina
Faso and Nig er’ 10
Brochure-VBG-No42-A4-VA-04.pdf> 22 September 2021.
24
Article 1 of CEDAW.
Abioye
6
appropriate legislation,
25
and also provides for specific guarantees. Article 12 provides
for the elimination of discrimination against women in the field of health care, in order
to ensure easy access to health care services, while Articles 11 and 13 deal with the
elimination of discrimination when it comes to labour rights. CEDAW places much
emphasis on the cultural and traditional aspects that influence the role of women in
society and in the home.
26
On a regional basis, the Maputo Protocol does what CEDAW sought to do on the global
stage, only better, by providing more detailed protections.
27
As an instrument of the
African Union (AU), the Maputo Protocol derives its authority principally from the AU
Constitutive Act, from which all legislative instruments within the AU derive their
authority. Drawing strength from the provisions of the African Charter on Human and
Peoples’ Rights (African Charter), the Maputo Protocol provides the most
comprehensive regime for the protection of the rights of women on the continent. The
Protocol builds on the foundations already laid by earlier human rights instruments, such
as the CEDAW, the UN General Assembly Declaration on the Elimination of Violence
against Women 1993
28
and the Beijing Declaration and Platform for Action 1995,
29
internationally; and regionally, the African Charter on Human and Peoples’ Rights 1981
(ACHPR)
30
and the Southern African Development Community (SADC) Declaration
and Programme for Action 1995.
31
It further lays the foundation for the Solemn
Declaration on Gender Equality in Africa 2004 (SDGEA),
32
and the African Union
Gender Policy 2009
33
among others.
Despite the existence of a vast normative framework for the protection of women’s
rights internationally and in Africa, the Protocol was in demand, as some rights
25
Article 2 of CEDAW.
26
ib id 24.
27
See gen erally Frans Viljoen, ‘An Introduction to the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa’ (2009)16 Wash & Lee JCR & SOC Just 18;
Fareda Banda, ‘Blazing a Trail: The African Protocol on Women’s Rights Comes into Force’ (2006)
50 Journal of African Law 72.
28
Proclaimed by UN General Assembly Resolution 48/104 of 20 December 1993 at
2021.
29
declaration> accessed 20 October 2021.
30
Ad opted in Kenya in 1981 accessed 20
October 2021.
31
accessed October 2021.
32
‘So lemn Declaration on Gender Equality in Africa’ Assembly/AU/Decl.12(III) Rev.1
October 2021.
33
See AU Gender Po licy
accessed 20 October 2021.
Abioye
7
advocates in Africa were cognisant of the institutional gaps within the human rights
system when it came to African women-specific issues.
34
Beyond that, it was of
particular concern that the key human rights document on the continent, the ACHPR
was mostly silent on women’s rights issues.
35
Dawuni indicates that these issues
culminated in the demand for the adoption of a rights regime for women on the
continent.
36
Banda supports this view in noting that, prior to the Maputo Protocol, there
was a general sentiment that previous instruments had not been able to achieve the goals
of adequately protecting the rights of women, and as such women were continuing to
experience violations of their rights.
37
Another view however, was that the provisions
of the African Charter were sufficient, but under-utilised by women to ensure the
protections offered.
38
The Maputo Protocol has been widely received in Africa,
39
and guarantees extensive
rights to African women (and girls).
40
As a ‘home-grown’ instrument, it provides
progressive provisions regarding harmful cultural demands and practices pertaining to
women that are common in Africa, such as child marriage and female genital mutilation
among others. It is touted as a significant rallying point for regional attempts to ensure
the protection of women’s rights in Africa.
41
Not long after the adoption of the Protocol, the AU Assembly adopted a non-binding
solemn declaration, the AU SDGEA—a non-binding commitment by States to ensure
progress towards the promotion and protection of women’s rights in specific areas,
including HIV and AIDS, conflict prevention and management, gender-based violence
and development. In 2009, in a bid to further mainstream gender issues, the AU Gender
Policy was adopted, which sought to establish a clear vision and make commitments to
guide the process of gender mainstreaming and the empowerment of women in Africa.
This is in a bid to influence policies, procedures and practices focused on gender
34
Jarpa Dawuni, ‘Vive la Diversite or Aluta Continua? Achieving Gender Equity on the African Court
on Human and Peoples Rights’ (2019) 34 Conn J Int’l L 376 at 385, lists these issues as pertaining
to the role of customary law in limiting women’s rights in the domestic sphere, the inherent
contractions in the application of plural legal traditions on the continent, and the lack of enforcement
of national and international women’s rights instruments.
35
Wi th the exception of arts 2 and 18(3) which deal with the right of women to non-discrimination.
These are however not clearly defined and targeted rights as art 2 of the African Charter clarifies that
the rights in the Charter are to be enjoyed without discrimination on the basis of sex etc, while article
18(3) provides for a general right for the ‘Protection of Family and Vulnerable Group s’ in which
women are grouped.
36
Dawun i (n 34).
37
Band a (n 27).
38
Viljo en (n 27). The differing views have been well canvassed in this article from pages 18–19.
39
African Protocol on Women’s Rights ‘Statu s List’ -african-
charter-human-and-peoples-rights-rights-women-africa> accessed 23 October 2021.
40
Article 1 (k) of the Protocol states as follows: ‘“Women” means persons of female gender, including
girls.’
41
Dawun i (n 34).
Abioye
8
equality, gender justice and non-discrimination.
42
The gender policy elicits
commitments from States relating to the creation of an environment that is conducive
to a fifty-fifty gender parity principle, and to assist in mobilising resources for its
implementation.
43
These are just some of the instruments that have contributed to establishing a framework
for the protection of women’s rights in Africa. They exact a binding and/or persuasive
influence on States and are able to mould and channel state behaviour in respect of
gender matters. African states have signed and ratified these instruments in their
numbers, demonstrating their commitment to the protection of the rights of women on
the continent. These protections and rights have in many cases been enunciated in the
respective constitutions or legislations and are thus binding on States to protect and
observe.
44
The existing body of related binding and non-binding instruments can
arguably be taken to indicate a budding rule of law regime in respect of the protection
of women’s rights in Africa.
Rule of Law and Constitutionalism
The rule of law is a generally accepted concept which is compulsory for the proper
functioning of a State.
45
Substantively, the rule of law speaks to the certainty and
predictability needed for law to function, and in this case, to achieve its purpose of
guaranteeing human rights. It requires that law is consistent with human rights, in terms
of fairness, accountability and equality before the law.
46
Thus it can be argued that the
rule of law is seen as the ‘implementation vehicle’ for human rights, the very content of
the rights, and the process and manner through which these rights are secured. Without
such ‘vehicle’ and control, constitutionalism will be impossible.
47
Where rights are not
being enforced, that means that the rule of law in such society is lacking and/or has lost
its ability to ensure the constitutional commitment to the protection of human rights.
This eventually leads to tyranny.
42
See ‘Pu rpose’ in AU Gender Policy (n 33).
43
Viljo en (n 27).
44
In corporating in the Constitution of states, creates constitutional rights. It is key to note that the
protocol lays the respon sibility for the promotion and protection of these rights on State parties. In
the case of South Africa, chapter two of the 1996 Constitution lays down a comprehensive regime of
rights within South Africa. Section 7(2) demands of States to ‘respect, protect, promote and fulfil the
rights in the bill of rights.’
45
See Funmi Abioye, ‘Understanding the Rule of Law in Africa through the Lens of the African
Commission on Human and Peoples Rights’ Interpretation on the Righ t to Development in Africa’
2018 (2) VRUE 269 at 280.
46
See ‘Rule of Law and Human Rights’ -of-law-and-human-
rights/> 26 September 2021.
47
Martin van Staden, ‘Constitutional Rights and their Limitations: a Critical Appraisal of the Covid-19
Lockdown in South Africa’ (2020) 20(2) AHRJL 484–511 at 489.
Abioye
9
On the protection of women’s rights in Africa, it has already been established that the
basis of these protections is found in the above discussed normative framework, and
also in the provisions of national constitutions. The rule of law works to ensure that the
processes, institutions and the substantive norms are consistent with the protection of
these human rights.
48
The rule of law plays a key role in anchoring economic, social and
cultural rights in national constitutions.
49
With the onset of the COVID-19 pandemic, a
decline in the rule of law in most countries has been observed and noted. According to
the World Justice Report Index for 2021, about seventy per cent of the countries and
jurisdictions covered by the index experienced a decline in various indices of the rule
of law.
50
For example, South Africa, like its counterpart African states is a party State to
CEDAW,
51
the Maputo Protocol
52
and many of the legal and non-legal instruments
relating to women’s rights on the continent. By virtue of this, and of its Constitution,
South Africa has an established legislative framework to ensure the protection of
women’s rights. Section 9 of the Constitution provides for the constitutional right to
equality and prohibits unfair discrimination on a number of grounds, including gender.
53
The Constitution further established a Commission for Gender Equality, to ‘promote
respect for gender equality and the protection, development and attainment of gender
equality’ in South Africa.
54
These form part of the extant normative framework for the
promotion and protection of women’s rights in South Africa at the time the pandemic
made landfall in South Africa.
Pandemic Responses and Women’s Rights
The discussion in this section deals with the non-medical interventions put in place by
States and how these have the unintended consequences of limiting and restricting
certain rights of women (and girls) in particular, and thus giving rise to a gendered slant
to the impacts of the measures, and by implication, the impacts of the pandemic.
48
ib id 47.
49
ib id. See for example s 1(c) of the Constitution of the Republic of South Africa, which provides that
the constitution is founded on, inter alia, ‘supremacy of the Constitution and the rule of law.’
50
Wo rld Justice Project (WJP) ‘Rule of Law Index 2 021 Insights’
2022.
51
So uth Africa signed and ratified this treaty in 1995.
52
Sig ned and ratified in 2005.
53
Sectio n 9(3) provides that: ‘The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy.’ The Promotion of Equality
and Prevention of Unfair Discrimination Act, has given effect to this constitutional provision and at
the same time to South Africa’s international obligations in the field of human rights, including
CEDAW.
54
Sectio n 187 of the Constitution; see also the Commission for Gender Equality Act 39 of 1996.
Abioye
10
The outbreak of the pandemic in itself necessitated a proliferation of new laws,
regulations and policies designed to curb the spread of the virus.
55
Due to the imminent
spread of the virus, governments found themselves under pressure to take action to
mitigate the effects of its uncontrollable spreading. Many States had to implement
‘emergency’ laws and measures that had to be passed urgently in an attempt to curb and
control the transmission of the virus.
56
These naturally had implications. Overall, this
meant that certain rights were jettisoned or limited in favour of public health imperatives
brought about by the pandemic.
On 15 March 2020 the South African government, through its Minister of Cooperative
Governance and Traditional Affairs declared the COVID-19 pandemic a ‘national
disaster’
57
under the Disaster Management Act 57 of 2002.
58
By implication, this Act
gives the Minister the power to limit certain constitutional rights and freedoms within
South Africa through the promulgating of regulations. The Act transferred ‘the primary
responsibility to coordinate and manage the disaster, in terms of existing legislation and
contingency arrangements’ to the national executive.
59
In a subsequent Gazette issued
on the same day,
60
the government declared a National State of Disaster
61
‘for the
purpose, inter alia, of protecting the public, providing relief to the public, and dealing
with the destructive and other effects of the disaster.’
62
Though rights may be limited under a state of disaster, they may not be removed and
there is still a requirement for all regulations promulgated during a state of disaster, to
conform to the Bill of Rights.
63
All rules and regulations made pursuant to a state of
national disaster, are made by the national executive, and the legislative arm of
government is not necessarily involved.
64
A slew of regulations, extensions and
55
ib id.
56
57
See Government Gazette No 43096 (312) of 2020.
58
Av ailable at
accessed 24 September 2021.
59
ib id; this was done pursuant to ss 15(2)(a) and 23(8) of the Disaster Management Act, 2002.
60
Government Gazette (n 57 ).
61
Declaration of a National State of Disaster
September 2021. The difference between a State of Disaster and a State of Emergency (provided for
under section 37 of the Constitution) is that a State of Emergency allows legislation thereunder to
derogate from rights in the Bill of Rights, howbeit temporarily, whereas a State of Disaster does not
allow any derogation from constitutional rights, bit it may, however, limit such rights if justifiable
under the law.
62
Pu rsuant to ss 27(1) and (2) of the Disaster Management Act, 2002.
63
Abioye
11
extraordinary measures were promulgated under the ‘State of Disaster’ mainly with the
effect of restricting the freedom of movement of persons and goods, restricting the
freedom to disseminate any kind of information and limiting the freedom to assemble
in unlimited numbers, in a bid to contain and slow down the spread of the virus.
65
While
these measures yielded the desired effect of limiting the spread of the virus in some
quarters, their unintended consequences have been felt by women all over, thus lending
them a gender slant. This will be analysed in the next section, with frequent references
to South Africa.
Gendered Impacts of the Measures in Relation to Education, Health and
Healthcare
The protections granted to women on the continent, under various instruments at
continental, regional and even domestic levels, could be construed as giving rise to a
rule of law on the rights of women in Africa. Under the Maputo Protocol, the
responsibility to promote and protect the rights of women has been placed squarely on
State parties. However, with the COVID-19 pandemic, there is cause for concern that
the health and containment measures that have had to be implemented by States, may
have resulted in a rollback on efforts to ensure the protection and promotion of the rights
of women and girls.
A United Nations (UN) Women study on the impacts of the COVID-19 pandemic on
gender equality in East and Southern Africa,
66
released in April 2021, makes clear the
dire effects of the pandemic on gender matters. It shows that significant setbacks have
been experienced in the drive for gender equality in the regions analysed. These have
led to an increase in the already high poverty rates in many countries and the
entrenchment of gender disparity.
67
The study indicates that more than sixty per cent of
people in Ethiopia, Kenya, Malawi, Mozambique and South Africa experienced a
complete loss or decline in personal income due to the pandemic.
68
Women in particular,
have experienced the impact more intensely, as they have not started out on a level
playing field, pre-pandemic in the first place. Women have historically had to deal with
disadvantages and discrimination, and these have been exacerbated by the pandemic.
69
Food security was negatively affected, even as income decreased. This is where welfare
packages like social grants come into play—however, the non-gendered manner of
distribution of such grants would need to be examined, when the burdens that women
65
ib id.
66
Empowerment in East and Southern Africa’ April 2021 <https://reliefweb.int/report/world/impact-
covid-19-gender-equality-and-women-s-empowerment-east-and-southern-africa> accessed 23
October 2021.
67
ib id.
68
UN Wo men Report (n 17) xiii.
69
ib id.
Abioye
12
and girls bear in society are taken into account. This is examined below with reference
to specific rights.
Education
In terms of education,
70
the Maputo protocol makes provision for the elimination of all
forms of discrimination against women, and the guarantee of equal opportunities in the
sphere of education and training.
71
African states are enjoined to do all that is necessary
to ensure such guarantees are upheld. In South Africa, COVID-19 lockdowns resulted
in school closures in 1919 and 2020, affecting about fifteen million learners, which
meant a loss in education and incapacity to learn.
72
It also meant a loss of government
health and welfare benefits available to learners via access to schools. Even though
technological initiatives were implemented to mitigate the effects of loss of learning
time, the long existing structural inequalities in the country, meant that only a small
fraction of the school-going population could access those.
73
The UN study report
74
highlights that even though boys as well as girls were affected
by school closures, ‘girls are affected in some unique ways by the pandemic,’
For the girl child there have also been increa sed and well documented safety risks
associated with school closures and increased poverty in areas such as domestic
violence, sexual exploitation, early marriage and female genital mutilation. Indeed,
contributing towards psychological and health problems and gender di scrimination.
75
The above is being evidenced in South Africa. The statistics released by the Gauteng
Member of Executive Council (MEC) for Health in August 2021, showed a remarkable
increase in the number of unplanned pregnancies in Gauteng during 2020.
76
It was
reported that records from the Gauteng Dept of Health show that more than 23 000 girls
under the age of eighteen gave birth between April 2020 and March 2021 (934 of these
were girls under the age of fourteen).
77
This shows an increase of about twenty-eight
70
It is worthy to note that Art 1(k) of the Maputo Protocol defines ‘women’ as persons of female gender,
including girls. Thus, in all its ramifications while the discussions herein are principally about
women, they may also relate to girls.
71
Article 1 2 of Maputo Protocol. Additionally, s 29 of the South African Constitution guarantees
the right to education for women in South Africa.
72
ib id; see also Amnesty International, ‘Failing to Learn Lessons: The Impact of Covid-19 on a Broken
and Unequal Educational System’
accessed 29 September 2021. In this report, the organisation highlights the inequalities inherent in
the educational system, and how the pandemic has exacerbated such.
73
Amnesty (n 72).
74
UN Wo men Report (n 17).
75
ib id.
76
pandemic> accessed 23 October 2021.
77
ib id.
Abioye
13
per cent from the previous year.
78
While some have seen this as a direct result of school
closures due to the pandemic, extensive data breakdown is currently unavailable to
indicate what factors have contributed to these extreme numbers of girl-child
pregnancies.
79
It is believed that some might have been as a result of rape, or other forms
of sexual violence and exploitation, or a lack of access to contraceptives during the
lockdowns.
80
The question which is yet unanswered is what amount of ‘information’
and ‘education,’ or even access to contraceptives, the girl -child learner had during the
imposed lockdowns and school closures, in order to be able to make informed decisions
relating to their reproductive systems.
Healthcare
The right to health and healthcare for women is an important right that is provided for
in the framework on women’s rights in Africa. The Maputo Protocol in Article 14,
expressly provides that ‘state parties should ensure that the right to health of women,
including sexual and reproductive health is r espected and promoted,’ including their
right to control their fertility. Article 14(2)(a) requires ‘state parties to take all
appropriate measures to provide adequate, affordable and accessible health services,
including information, education and communication programmes to women … .’
A persistent situation of gender inequality will be exacerbated by any outbreak.
Experiences from previous Ebola outbreaks have proven this to be true.
81
Responses
that do not incorporate gender analysis will end up exacerbating inequalities,
82
and thus
breach the protections that States have agreed to under the women’s rights framework
in Africa. The situation appears to be the same in the case of the COVID-19 pandemic,
with women at the forefront of the fight, whether as formal healthcare providers, or as
78
Bh ekisisa Centre for Health Journalism, ‘Digging Through the Data: Did Covid-19 Lead to More
Teen Pregnancies in SA?’ <https://bhekisisa.org/health-news-south-africa/2021-09-29-digging-
79
ib id.
80
So uth African Medical Research Council (SAMRC), ‘Teenage Pregnancy During Covid-19 in South
Africa: A Double Pandemic’ <https://www.samrc.ac.za/news/teenage-pregnancy-during-covid-19-
south-africa-double-pandemic> accessed 26 October 2021; see also Bhekisisa Centre (n 78).
81
Nellie Peyton, ‘More Women Catch Ebola in Congo in “Unexpected” Twist of Gender Roles’
unexpected-twist-of-gender-roles-idUSKCN1PB1XZ> accessed 25 October 2021; Agnes
Binagwaho and Kedest Mathewos, ‘In fectious Disease Outbreaks Highlight Gender Inequity’
Olufunmi Baniselu, Peter Adewuyi and Patrick Nguku, ‘Gender Dimensions to the Ebola Outbreak
in Nigeria’ 2016 15(1) Annals of African Medicine 7–13.
82
Th ink Global Health, ‘Gender and the Coronavirus Outbreak’
outbreak?utm_source%C2%BCtw_wfp&utm_medium%C2%BCsocial_owned> accessed 25
October 2021.
Abioye
14
family caregivers.
83
Compared to their male counterparts, it has been determined that
more women were ill and affected during the ongoing pandemic, and to make matters
worse, a good number had to cover the cost of their treatment from private funding,
rather than from the State.
84
Even when family members are ill with COVID-19 (or
other ailments), women as the primary caregivers are more exposed to the virus.
85
Furthermore, due to the restrictions on movement and of all non-emergency medical
treatment and care, a good number of health procedures and checks aimed at
maintaining women’s health were not available.
86
This is because hospitals and other
care facilities had to channel all their resources toward the treatment of the
overwhelming numbers of COVID-19 patients.
87
There was a significant decrease in the
percentage of women accessing family delivery centres, or even opting for caesarean
births, while unsafe abortions have increased slightly.
88
For girls, access to healthcare,
and even basic sanitary products were restricted by the lockdowns, as these are usually
distributed through the schools, especially in rural areas.
This scenario is familiar in most countries on the continent and South Africa is no
exception. The Gauteng City Region Observatory (GCRO) reported in September 2020,
that more women (fifty-six per cent) than men were testing positive for COVID-19 in
the province. This from a population with an even split in composition (fifty percent
men and fifty per cent women).
89
What this data shows is that women are carrying a
double burden, as not only are they testing positive at a higher rate than men, but they
are also socially and economically more vulnerable during lockdown.
90
Gender-based violence
The fact that the incidents of gender-based violence increased greatly during the
pandemic, can not be disputed. Various reports have shown that women and girls faced
increasing incidents of violence.
91
Unfortunately, most of the violence is meted out in
83
ReliefWeb, ‘Gender Matters in responding to Major Disease Outbreaks like Ebola’
accessed 22 April 2022.
84
UN Wo men report (n 17).
85
(College of Law Biotechnology and Medical Law Flagship Webinar Marking the 2021 Women’s
86
Dr Eli ze Wethmar, made this remark at the same Biotechnology and Medical Law Flagship webinar
in August 2021.
87
UN Wo men Report (n 17).
88
ib id.
89
90
ib id.
91
‘UN Chief Calls for Domestic Violence Ceasefire Amid Horrifying Global Surge’
Commissioner ‘States must Combat Domestic Violence in th e Context of Covid-19 Lockdowns’
Abioye
15
places where people are meant to feel safest, in their homes. In 2020 the UN Special
Rapporteur on Violence against Women urged States to take urgent measures to address
domestic violence against women and children in the context of COVID-19, warning
that, ‘for too many women and children, home can be a place of fear and abuse.’
92
This
situation tends to worsen considerably in cases of isolation such as the lockdowns
imposed during the COVID-19 pandemic.
93
In February 2021 Amnesty International confirmed that the situation in Africa was the
same, when it indicated that ‘during the Covid-19 lockdowns imposed by Southern
African countries, some homes became enclaves of cruelty, rape and violence for
women and girls trapped with abusive family members and nowhere to report or escape
the danger.’
94
Harmful gender stereotypes, social and cultural norms about women are
some of the reasons for this, as women are viewed in many African contexts as inferior
to men, to be controlled by the males in their lives. The Maputo Protocol attempts to
correct these stereotypes by prohibiting various forms of violence against women and
girls.
95
Physical, emotional, sexual, and all other forms of violence against women are
prohibited and State parties are obligated to ensure appropriate and effective measures
to guarantee these protections.
96
These provisions bind all State parties at the domestic level. Some predate the protocol,
for instance, South Africa’s protection against gender-based violence in the
Constitution,
97
and other legislation, such as the Domestic Violence Act of 1998 which
lays down the types of action that will be considered domestic violence, and measures
to be taken by the person reporting.
98
The Protection from Harassment Act, 2011 was
accessed 21 October 2021; Endemic violence against women ‘cannot be stopped with a vaccine’ –
WHO Chief’’ accessed30 October 2021.
92
ib id.
93
UN Chief Report (n 91); in this report, the UN Secretary General observed that the combination of
economic and social stresses brought on by the pandemic, as well as restrictions on movement, have
dramatically increased the numbers of women and girls facing abuse, in almost all countries.
However, even before the global spread of the new coronavirus, statistics showed that a third of
women around the world experienced some form of violence in their lives. See also Human Rights
and-childrens-rights#_Toc37256529>, where the spike in the number of cases of violence in homes
and other places was partly attributed to the added stress that Covid-19 has brought about in families.
94
Amnesty International, ‘Southern Africa: Homes Become Dangerous Places(s) for Women and Girls
During Covid-19 Lockdown’
africa-homes-become-dangerous-place-for-women-and-girls-during-covid19-lockdown/> accessed
30 October 2021. See full report titled ‘Treated like Furniture: Gender-based Violence and Covid-
19 Response in Southern Africa’
95
Articles 2(4 ) and 3 of the Maputo Protocol.
96
ib id, Articles 4(2) of the Maputo Protocol.
97
Sectio n 9 of the Constitution provides for the right to equality of all genders, sexes, race, colour etc.
98
Act 1 16 of 1998 act> accessed 30 October.
Abioye
16
implemented as the first specific legislation to address incidents of sexual harassment.
99
Despite these legislative measures, the statistics for intimate partner violence outstrip
other forms of violence in the country,
100
and the rights of women and girls in South
Africa are regularly being violated, much more so during the COVID-19 lockdowns.
The above highlight some of the areas in which the COVID-19 protective measures
implemented by the State have had a real impact on the rights of women, more so than
on men. In many instances, women’s rights, have been gravely affected regardless of
the measures that were put in place.
Recommendations and Conclusion
In order to gauge the impact of the COVID-19 pandemic on the rights of women, this
article has examined three aspects of women’s r ights. It is safe to say that the impact
being recorded on the right to education, health and healthcare and increased incidences
of gender-based violence, reflect what has also transpired in relation to other rights.
Women have been and continue to be disproportionately affected by the COVID-19
pandemic. This is despite all the laws and international instruments, purportedly
protecting the rights of women (and girls). Thus, it behoves governments all over the
world, and particularly in African states, to come up with new and innovative ways of
tackling the shadow pandemic that is the violation of women’s rights.
Firstly, it is important that as a society, we move away from seeing and framing gender
issues as an ‘add-on,’ annexure or attachment to the main issues. This gives a
predominantly patriarchal society the impression that the discourse that concerns the
rights of over fifty per cent of our population is insignificant and can be done without.
A gendered perspective is needed in every sphere of public and private life to
mainstream, observe and address issues through the prism of gender. This makes it
easier to ensure that laws and measures that are made and implemented in this COVID-
19 era (and with other pandemics to come), take cognisance of gender and the impacts
on different gender.
The offshoot of the above would mean that women will, by default be involved in
decision-making and governance. Currently, it is apparent that more women ought to be
involved in crisis management and strategic considerations at the decision-making level.
Women need to be at the centre of governance and policy-making. Unfortunately,
women who are more impacted by the pandemic, are currently nowhere close to those
who are making the decisions. And even when they are involved, it is important that the
99
Pro tection from Harassment Act 17 of 2011. It is designed to provide a quick, easy and affordable
civil remedy in the form of a protection order for incidences of stalking.
100
The latest statistics in 2019 showed that So uth Africa’s femicide rate is 4.8 t imes higher than the
global average, and that on average, a woman is murdered every three hours in the country. See
AfricaCheck, ‘Fiv e Facts: Femicide in South Africa’ -
checks/reports/five-facts-femicide-south-africa> accessed 31 October 2021.
Abioye
17
decisions relating to how States manage the pandemic must factor in gendered data that
now exists,
101
in order to be able to make decisions that will have positive outcomes for
all, especially women. In the case of South Africa, and other African countries,
governments need to be intentional in harnessing foresight, vision a nd dexterity that
women can bring unto decision-making bodies. Equal and meaningful representation of
women in the national COVID-19 pandemic response committees must be implemented
in future.
Together with this, there is also a need to have a more robust data collection process,
which will provide insight and a better understanding about the gendered impact of the
pandemic on women and men as well. This will assist in monitoring the recovery plans
put in place by States. Without this, a legitimate fear exists that the recovery plans being
implemented by the States will suffer from the same gender blindness as the COVID-
19 measures themselves.
In terms of gender-based violence, education and awareness have been ramped up in
South Africa and in other African countries as one of the means to mitigate and reduce
this occurrence. However, the State does have the responsibility to prevent and protect
women (and girls) from such. This does not just end with legislative measures but goes
on to ensure that the different players in the justice sector fulfil the pledge of the law,
by enforcing it. The scourge of gender-based violence in South Africa (and on the
continent) needs innovative solutions.
Article 2 of the Maputo Protocol, enjoins the State to combat discrimination by a variety
of means, including amending constitutions to guarantee equality, mainstreaming and
also taking ‘corrective and positive action in those areas where discrimination against
women in law and in fact continues to exist.’ As indicated by Banda, this last provision
builds on CEDAW Article 4 on temporary special measures.
102
It shows an appreciation
of the need for States to derogate from a strict reading of the non-discrimination
provision to accelerate women’s advancement. It is telling that the use of temporary
special measures which permit the use of (women only) quotas or selection lists is
highlighted in Article 9 on women’s right to participate in the political and decision-
making process.
Based on the above, it is recommended that the instance of the gendered nature of the
effects of the pandemic, calls f or the exercise of what is termed ‘temporary special
measures’ under Articles 2 and 9 of the Protocol. Article 9 is directed towards ensuring
that such temporary measures, or ‘specific p ositive action’ (such as quotas, or
specifically crouched selection lists) are designed towards ensuring participation in the
101
There is currently a lot of data available on the multi-dimensional gendered impacts of COVID-19.
This needs to be collated and harnessed in order to influence governance and decision-making.
102
Banda (n 27).
Abioye
18
decision-making process when it comes to COVID-19 remedial actions, and the impacts
they have had on women as already discussed in this article.
In conclusion, it is important to note that the above has attempted to map out a sample
of the protections afforded to African women under the Maputo Protocol, and in the
case of South Africa, constitutionally. This article has sought to examine how these
protections have been effective or not in an era of the COVID-19 pandemic, and with
the regulatory measures put in place to protect populations. In South Africa, the
measures imposed had their unintended consequences and actually denied women and
girls their basic rights protected under the law. In this case, the rule of law and
constitutionalism were not able to keep and enforce the legislative and normative
protections offered. This is something that lawmakers and legislators need to be
cognisant of in order to mainstream gender matters in their efforts.
References
AU Gender Policy
english.pdf> accessed 29 October 2021.
Abioye F, ‘Understanding the Rule of Law in Africa through the Lens of the African
Commission on Human and Peoples Rights’ Interpretation on the Righ t to Development in
Africa’ 2018 (2) VRUE 269 >
Banda F, ‘Blazing a Trail: the African Protocol on Women’s Rights Comes into Force’ (2006)
50 Journal of African Law 000076>
_The_Courts_and_access_to_Justice.pdf> accessed 23 March 2022.
to August 2020’ (2021) 37(2) South African Journal on Human Rights.
Dawuni J, ‘Vive la Diversite or Aluta Continua? Achieving Gender Equity on the African
Court on Human and Peoples Rights’ (2019) 34 Connecticut Journal of International Law.
Declaration of a National State of Disaster
accessed 25 September 2021.
October 2021.
Abioye
19
Kamga SD, ‘Covid-19 and the Violation of the Right to Basic Education of Learners with
Disabilities in South Africa: an Examination of Centre of Child Law v Minister of Basic
Education’ (2021) 65 Journal of African Law
human-rights-and-civil-liberties/> accessed 2 October 2021.
Women: all Responses must Respect the Gendered Impacts of the Pan demic’
respect-gendered-impacts-pandemic> accessed 18 October 2021.
Ndeye Amy Ndiaye ‘Gender-Based Violence in West Africa: the cases of Seneg al, Mali,
Burkina Faso and Niger’
VBG-No42-A4-VA-04.pdf> accessed 22 September 2021.
Peyton N, ‘More Women Catch Ebola in Congo in “Unexpected” Twist of Gender Roles’
congo-in-unexpected-twist-of-gender-roles-idUSKCN1PB1XZ> accessed 25 Octob er
2021.
19/resources/regulations-and-guidelines-coronavirus-covid-19> accessed 24 Sep tember
2021.
‘Rule of Law and Human Rights’ -of-law-and-human-
rights/> accessed 26 September 2021.
See accessed 28
September 2021 on mortality rate.
‘Solemn Declaration on Gender Equality in Africa’ Assembly/AU/Decl.12(III)Rev.1
accessed 23 September 2021.
Statement on the Second Meeting of the International Health Regulations (2005) Emergency
Committee regarding the outbreak of the novel coronavirus (2019- nCoV)
international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-
novel-coronavirus-(2019-ncov)> accessed 16 September 2021.
‘Teen Pregnancies in South Africa Jump 60% During Covid-19 Pandemic’
Abioye
20
Think Global Health ‘Gender and the Coronavirus Outbreak’
outbreak?utm_source%C2%BCtw_wfp&utm_medium%C2%BCsocial_owned> accessed
25 October 2021.
UN Office for the High Commissioner for Human Rights (OHCHR), ‘Covid -19 and Women’s
Rights: 7 Possible Actions’ COVID-
19_and_Women_Rights_7_Possible_Actions.pdf> accessed 18 October 2021.
UN Women report on ‘Women in Informal Economy’ -
focus/csw61/women-in-informal-economy> accessed 20 Sept 2021.
UN General Assembly Resolution 48/104 of 20 December 1993 at
accessed 20 October 2021.
Empowerment in East and Southern Africa’ (April 2021)
empowerment-east-and-southern-africa> accessed 23 October 2021.
Viljoen F, ‘An Introduction to the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa’ (2009) 16 Washington & Lee Jo urnal of Civil
Rights & Social Justice.
Viveiros N and Bonomi AE, ‘Novel Coronavirus (Covid-19): Violence, Reproductive Rights
and Related Health Risks for Women, Opportunities for Practise Innovation’ (2020)
Journal of Family Violence
World Health Organisation (WHO) Director-General’s Opening Remark s at the media briefing
on 11 March 2020, declaring Covid-19 a pandemic
10-2020-impact-of-covid-19-on-people's-livelihoods-
general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-
their-health-and-our-food-systems> accessed 2 October 2021.
Legislation
Constitution of the Republic of South Africa, 1996.
Commission for Gender Equality Act 39 of 1996.
The Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2000 .
Government Gazette No 43096 (312) of 2020.
Abioye
21
Disaster Management Act 57 of 2002.
International Instruments
Convention on the Elimination of all Forms of Discrimination (CEDAW), 1979.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa, 2005.
SADC Declaration and Programme for Action, 1995.
Solemn Declaration on Gender Equality in Africa, 2004.
The Beijing Declaration and Platform for Action, 1995.
UN General Assembly Declaration on the Elimination of Violence against Women, 1993 .
To continue reading
Request your trial