Guidance Note for Member States Considering Ratification of the African Union Convention on Ending Violence Against Women and Girls (AU-CEVAWG)

Why Member States Should Pause Before Ratifying AU-CEVAWG

1. Purpose of this Guidance Note

This guidance note is addressed to African Union member states that have signed the African Union Convention on Ending Violence Against Women and Girls (AU-CEVAWG/the Convention) and are now considering ratification.

It is issued in the context of growing pressure on states to move quickly from signature to ratification, despite unresolved legal, procedural, structural and operational concerns about the Convention. The central concern is not whether African states should take urgent action to end violence against women and girls. That obligation is clear. The concern is whether states should bind themselves to a treaty where serious questions remain unanswered about the quality of the text, the legal effect of its provisions, and whether its weaknesses can realistically be corrected after ratification.

Member states should not be asked to ratify first and seek clarity later. Ratification is not a symbolic gesture. It is a legal act through which a state accepts binding treaty obligations. Once ratified, the Convention will shape national law, policy, litigation, institutional mandates, reporting obligations and regional standards for years to come.

Before ratification, states must therefore ask a prior question: are we binding ourselves to a treaty that is legally sound, enforceable and capable of strengthening protection for women and girls?

2. The Key Issue Before Member States

Some member states have been advised that any gaps in AU-CEVAWG can be addressed later through strategic litigation, general comments, resolutions, guidelines, jurisprudence and other forms of interpretation.

That advice is incomplete and misleading.

Strategic litigation, general comments and interpretive guidance are important tools in the African human rights system. However, they do not have the same legal status as treaty text. They cannot be treated as substitutes for clear, binding and well-drafted treaty obligations.

The question for member states is therefore not simply whether interpretation is possible. The real question is whether interpretation can legally and practically cure the specific weaknesses identified in the Convention.

Before ratifying, member states should insist on a clear written explanation of:

1. The specific weaknesses that have been identified in AU-CEVAWG;
2. Which weaknesses can be addressed through interpretation;
3. Which weaknesses require textual revision;
4. What evidence exists that similar treaty weaknesses have been successfully corrected through litigation, general comments, resolutions, guidelines or jurisprudence; and
5. What legal and practical risks arise if states ratify first and attempt to correct the Convention later.

Without this information, ratification would proceed on an assumption that the treaty is legally sound, rather than legal certainty.

3. Why “Fix It Later” Is Not a Sufficient Legal Answer

The “fix it later” argument understates the difference between a treaty and other interpretive tools.

A treaty creates binding legal obligations. Once a state ratifies a treaty, the text becomes the legal foundation from which obligations are interpreted. If the text is weak, vague, restrictive or silent on critical issues, those weaknesses do not disappear because later actors attempt to interpret the treaty progressively.

Strategic litigation can help clarify rights, but it is uncertain. It depends on access to courts or treaty bodies, suitable facts, admissibility, competent representation, judicial willingness and state compliance. Litigation is also slow and expensive. It places the burden of correcting treaty defects on survivors, litigants and civil society, rather than on the state institutions responsible for adopting a sound treaty in the first place.

General comments, resolutions and guidelines can assist interpretation, but they are not treaties. They are persuasive tools. They elaborate on existing frameworks, and due to their soft law status, do not fix a binding treaty. Soft law can only elaborate on what exists, but cannot correct a legal binding treaty’s defects, nor can they contradict a treaty. Moreover, their impact depends on whether courts, states and treaty bodies use them, and whether the treaty text itself allows for a progressive interpretation. Where the wording of a treaty is restrictive or poorly drafted, general comments will not be enough. Treaties possess a superior legal weight and authority due to their binding nature, and cannot be overridden by soft law.

Jurisprudence and comparative law can expand protections in some cases, but it is not guaranteed. African human rights practice shows both progressive and restrictive approaches. There have been moments where treaty bodies have used Article 60 of the African Charter on Human and Peoples’ Rights (the African Charter) and comparative law to expand protection, including in relation to freedom of expression. However, over time, there has also been a more restrictive approach where treaty bodies have treated the text of the instrument as limiting what they can do.

This is why member states should be cautious. If the institutions expected to interpret a treaty later consider themselves bound by the ordinary meaning of the text, then ratifying a defective treaty now may lock states and rights-holders into the very weaknesses that should have been corrected before ratification.

4. Lessons from Existing African Human Rights Practice

African human rights practice does not support the assumption that weak treaty provisions can simply be cured later.

The experience of the restrictive interpretation of Article 59 of the African Charter on Human and Peoples’ Rights (African Charter) is instructive. Decades after the Charter’s adoption, the confidentiality rule continues to affect the transparency, transmission and publication of decisions. Even where civil society has argued for a progressive interpretation, the African Commission has repeatedly indicated that it is bound by the text of the Charter. This shows the danger of assuming that treaty bodies can always correct problematic provisions through interpretation.

The experience of women’s property rights under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) is also relevant. The “fix it later” approach has been unsuccessful as far as the Maputo Protocol is concerned. Problematic articles within the Maputo Protocol continue to entrench gender inequality and dilute women’s rights across the Continent – namely Article 6(d) on registration of marriages which fails to reflect the complex realities African women face in accessing marriage registration such as high registration costs and inaccessible registration centres; Article 7(d) on equitable division of property which has led to inconsistent and uneven implementation and interpretation that undermines women’s non-financial contribution during marriage; and Article 20(1) on widow’s right to inheritance which allows widows to stay in the matrimonial home only for as long as they remain unmarried. These articles remain unfixed.

Article 7(d) of the Maputo Protocol is especially illustrative here. Civil society invested significant effort in developing and using the African Commission’s General Comment No.6 on Article 7(d) of the Maputo Protocol (General Comment No.6). General Comment No. 6 was the outcome of sustained advocacy by African and global women’s rights organisations who recognised the urgent need for interpretive guidance to reverse discriminatory legal and social practices. This instrument was developed to provide clarity on the meaning of equitable property sharing and to guide States on their obligations to promote substantive equality in property division. Beyond this, civil society developed a publication on how to use General Comment No.6, and have referenced it during strategic litigation. Yet there still remains limited evidence that General Comment No. 6 has cured the underlying legal and practical difficulties of Article 7(d). This does not make general comments irrelevant. It shows that their impact is limited where treaty text, domestic law, judicial practice and enforcement systems remain weak or resistant.

These examples matter because AU-CEVAWG is being presented to states with the assurance that its gaps can be resolved later. Member states should ask for evidence. Where is the evidence that regressive, vague or weak treaty provisions have been effectively corrected after ratification through litigation, general comments or other forms of interpretation? Where is the analysis showing which provisions can be cured and which cannot?

Without that evidence, “fix it later” is not legal advice. It is a political reassurance.

5. Why Revision Before Ratification Is Preferable to Amendment After Ratification

Some proponents may argue that if AU-CEVAWG has weaknesses, states can ratify now and amend the Convention later under Article 18.

This is not a sufficient answer.

Amendment after ratification is politically and legally difficult. Once a treaty enters into force, states may be locked into its text for decades. Amending a treaty requires political will, institutional leadership, state consensus and compliance with formal procedures. There is no clear precedent showing that an AU human rights treaty, once in force, has been successfully amended to correct weak or regressive provisions in a rights-protective direction.

There is also a wider political risk. In the current context of normative regression, opening a human rights treaty for amendment after entry into force may create an opportunity for conservative and anti-rights actors to weaken existing protections. These actors have already shown interest in challenging established rights under instruments such as the African Charter and the Maputo Protocol. Once an amendment process is opened, there is no guarantee that it will only be used to strengthen protections for women and girls.

Revision before ratification is therefore safer. It allows member states to correct the text before they are legally bound by it. It avoids placing the burden on survivors, litigants and treaty bodies to repair defective drafting. It also prevents a situation where future amendment debates become a site for further normative regression.

AU practice shows that revision is possible after adoption and before entry into force of a treaty. Problematic or inadequate treaty frameworks have been revisited before. Relevant precedents include the Protocol of the Court of Justice of the African Union, the African Convention on the Conservation of Nature and Natural Resources, and the African Maritime Transport Charter. These examples show that where an instrument requires improvement, the AU system can return to the text and adopt a stronger legal framework.

Revision is not unprecedented. It is an established AU mechanism to correct gaps and strengthen normative coherence. What the AU has done before, it can do again particularly when the stakes involve protecting the rights and lives of African women and girls.

The lesson for AU-CEVAWG is clear: the appropriate course is not to ratify a defective treaty and hope for correction later. The appropriate course is to pause, review and revise before ratification.

6. What Member States Should Ask For Before Ratification

Member states that have signed AU-CEVAWG should pause before ratification. Before ratifying AU-CEVAWG, member states should request the following:

1. A written legal memorandum identifying the known weaknesses in the Convention;
2. A provision-by-provision explanation of which weaknesses can be addressed through interpretation and which require textual revision;
3. A clear explanation of the legal status of strategic litigation, general comments, guidelines, resolutions and jurisprudence compared to binding treaty obligations;
4. Evidence from African human rights practice showing that similar treaty weaknesses have been effectively cured after ratification;
5. A legal opinion on the risks of relying on Article 18 amendment after entry into force;
6. A list of AU precedents where problematic instruments were revised before states became fully locked into defective treaty obligations;
7. A clear plan for an expert-led revision process involving women’s rights organisations, feminist lawyers, litigators, survivors’ groups, national human rights institutions, parliamentarians and relevant ministries;
8. An assessment of whether AU-CEVAWG strengthens, duplicates or weakens existing obligations under the Maputo Protocol, the African Charter, the African Charter on the Rights and Welfare of the Child, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and domestic legal frameworks; and
9. A clear explanation of how the Convention will be monitored and enforced, including whether existing delays, confidentiality rules and transmission challenges within the African human rights system will affect access to justice.

These are basic due diligence questions. A state that asks them is not rejecting the goal of ending violence against women and girls. It is acting responsibly before accepting binding obligations.

Member states should not proceed until there is a clear, public and expert-led process to identify the Convention’s weaknesses, determine whether those weaknesses can be cured through interpretation, and revise the text where interpretation is legally insufficient.

Ending violence against women and girls requires urgency, but urgency must not replace legal rigour. A treaty adopted in the name of women and girls must be capable of protecting them. It must be clear, enforceable and aligned with existing human rights standards. Where serious doubts remain, the responsible course is to pause for purpose, revise the text and ensure that member states ratify an instrument that strengthens rather than weakens protection.