advisory jurisdiction over the Maputo Protocol from the provisions of the
Charter, it follows that it may similarly derive its contentious jurisdiction
accordingly. Both decisions on Communications and General Comments
constitute authoritative interpretations of substantive provisions, and indeed
the former establishes obligations for all States Party to the Protocol while the
latter may be confined to the respective State concerned. Indeed, it is common
to derive jurisdiction over a treaty through various sources, the African Court
has asserted its competence to interpret and apply the Maputo Protocol under
Article 3(1) of the Court Protocol and has indeed never referred to Article 27 of
the Maputo Protocol on this issue.
c. Teleological interpretation . .·
85. The above finding aligns with the object and purpose of the Maputo Protocol.
Notably, the preambular text of the Maputo Protocol cites t.h e promotion and
protection of women's rights among its chief aims '. While .admittedly, the
Protocol was adopted to supplement the normative base of the African Charter,
it is also aimed at enhancing the protection of women's rights in Africa. Indeed,
the Protocol acknowledges that _a lack of effective implementation rather than
a dearth of protective instruments necessitated its adoption. The Commission's
communications procedure is necessarily an essential avenue for enhancing the
protection of women's rights.under the Protocol. Indeed, it is only to the extent
that the Commission is prepared to interpret and apply the Maputo Protocol
that Governments would appreciate the extent of its obligations and citizens
understand the scope of the rights they have under the Charter35 .
86. An interpretation that the Commission is prohibited from exercising this
crucial function falls foul of this purpose. Notably, the majority of
Communications before the Commission and Court consist of individual
Communications. Notably, the Commission and Court have in total only
received three· (3) inter-State Communications in contrast to the hundreds of
individual complaints. Ho,tvever, the African Court is not empowered to seize
Communications submitted by individuals unless the violating State has made
the 'optional' declaration under Article 36(4) of the Court Protocol recognizing
its contentious jurisdiction. Considering that, to date, only eight States have
made the optional declaration under Article 36(4), the majority of
Complainants who allege a violation of their rights under the Maputo Protocol
cannot vindicate their rights notwithstanding the operationalization of the
Court. The exclusion of the Commission's contentious jurisdiction, therefore,
has the effect of eroding the protection of women's rights.