The Maputo Protocol: Abolitionist or tolerative approach to polygamy, in the light of Ethiopia’s reservation?

Author: Meron Eshetu Birhanu
Technical Assistant, African Commission on Human and Peoples’ Rights (ACHPR)

Despite growing modernity and advocacy for women’s rights, polygamy remains a common practice embraced by social, cultural, and religious norms^[1] in most parts of Africa, including Ethiopia. The highest proportion of polygamy in Africa is found in the so-called ‘polygamy belt’, which spans from Senegal in West Africa to Tanzania in East Africa.^[2] According to the 2016 Ethiopian Demographic and Health Survey, 11 percent of married women in Ethiopia are in polygamous relationships, of which 9 percent have one co-wife and 2 percent have two or more co-wives.^[3]

The Constitution of the Federal Democratic Republic of Ethiopia (the Constitution) recognise spousal equality, while also recognising marriages concluded in accordance with religious and customary practices, wherein many of these practices permit polygamous marriage. As such, the Constitution neither explicitly prohibits nor permits polygamous marriage.^[4] The Revised Family Code (Family Code), however, prohibits the conclusion of marriage over marriage, resulting in the dissolution of the polygamous marriage if requested by either spouse or the public prosecutor.^[5] Likewise, the Criminal Code of the Federal Republic of Ethiopia (Criminal Code) criminalises polygamy in Article 650 with simple imprisonment,^[6] while providing an exception for polygamous marriages concluded according to religious and traditional practices recognised by law.^[7]  Therefore, although the Ethiopian legal framework adopts an abolitionist approach to polygamy, it can still be legally practiced if it conforms to religious or customary laws. If this is the case, the foremost consideration should be how to protect the rights of the women involved in polygamous marriages.

In this regard, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which was adopted in 2003 and entered into force in 2005, is a vital regional human rights instrument that introduced progressive and innovative provisions that guarantee extensive rights to African women and girls and address the unique challenges they face. One of the progressive provisions of the Maputo Protocol that considered African reality is Article 6(c), which requires states to take legislative measures to ensure that ‘monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships, are promoted and protected.’^[8]

As a sign of progress toward its commitment to the promotion and protection of women’s rights, Ethiopia signed and ratified the Maputo Protocol on 1 June 2004 and 18 July 2018, respectively.^[9] The State has further incorporated the Protocol into its national law through the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Ratification Proclamation No.1082/2018 (Maputo Protocol Ratification Proclamation).

However, during ratification, Ethiopia entered seven reservations and six interpretative declarations to the Maputo Protocol.^[10] Regrettably, one of the reservations is made to Article 6(c) of the Protocol, which is devoted to encouraging monogamy as a preferred form of marriage and guaranteeing the rights of women already involved in polygamous marital relationships. As noted from the discussions of the Parliamentary Standing Committees and the Women Parliamentarians Caucus held in the process of the ratification of the Protocol, two competing arguments were raised regarding the approach taken by the Maputo Protocol. On the one hand, it has been argued that the Maputo Protocol adopts a tolerative approach to polygamous marriage, in contrast to the Criminal and Family Codes of Ethiopia, which adopt an abolitionist approach.^[11] They stress the importance of maintaining the position of Ethiopian law, specifically Article 650 of the Criminal Code, which criminalises polygamy. According to them, Ethiopia must not be bound by a provision that tolerates polygamy because such a provision would conflict with the Criminal Code, which in principle prohibits polygamy. On the other hand, it was claimed that the Maputo Protocol recognises monogamy as the preferred form of marriage, and the primary purpose of mentioning polygamy was not to tolerate it, but to point out the need for protecting women who are already in polygamous relationships.^[12] It was argued that the Maputo Protocol should be understood in a way that encourages monogamy while at the same time acknowledging the negative impact of polygamy on women’s rights. From the above argument, it can be inferred that the main reason for entering a reservation to Article 6(c) was the perception that the Maputo Protocol adopts a regulatory approach to polygamy rather than abolishing it, which is perceived to be in conflict with the Criminal Code of Ethiopia, which criminalises polygamy.

It is, however, worth noting that, as an instrument adopted to address challenges unique to African women, the Maputo Protocol considered African realities in approaching the problem of polygamy. The abolition of polygamy was among the controversial issues during the adoption of the Maputo Protocol, with non-governmental organisations advocating for outlawing it while government representatives resisted its abolition.^[13] Apparently, the first draft of the Maputo Protocol adopted an abolitionist stance by banning polygamy in its entirety.^[14] However, as many customary and religious laws on the continent still embrace polygamy, the final document was modified to reflect the realities on the continent and address the consequences.^[15] As a result, the Maputo Protocol, under Article 6(c) calls on member states to promote monogamy as the preferred form of marriage while protecting women who are already in polygamous relationships. In this respect, the approach adopted by the Maputo Protocol was outstanding to gradually eliminate the practice of polygamy while protecting the rights of women already involved in such marriages.

Broadly speaking, Ethiopia’s reservation to this particular provision can be viewed as an effort to maintain the abolitionist approach to polygamy embodied in the national law. However, it is also imperative to bear in mind that the same national laws of Ethiopia that prohibit polygamy provide a room for it to be concluded under religious and customary laws while the rights of women involved in such marriages left unprotected, creating a significant gap in their protection. At this juncture, it is worth mentioning that Ethiopia missed the opportunity to take advantage of the innovative and progressive protection that Article 6(c) of the Protocol offers to women involved in polygamous marriages, which could serve as a gap filler, given the lack of such protection in national legislation.

It is therefore imperative that the Ethiopian government reconsider its reservation to Article 6(c) of the Maputo Protocol, as it does not endorse polygamy, but rather seeks to protect women already engaged in polygamous marriages as dictated by African cultural and religious practices. Moreover, since Article 651 of the Criminal Code legalizes polygamous marriage as an exception, it is of utmost importance to recognize the vulnerability of women in such marriages to human rights abuses, which are often worsened by the lack of legal protection. This goes without saying that the Ethiopian government should guarantee the human rights of women in polygamous marriages and afford them adequate protection both during the marriage and in the event of divorce.

[1]               MLH Mabaso ‘Socio-demographic and behavioral profile of women in polygamous relationships in South Africa: A retrospective analysis of the 2002 population-based household survey data’ (2018) 18 BMC Women’s Health 2.

[2]               Y Damtie ‘Multilevel analysis of determinants of polygyny among married men in Ethiopia’ (2021) 21 BMC Public Health 3.

[3]               Central Statistical Agency ‘Demographic and Health Survey’ Ethiopia’ (2016) 66 <https://dhsprogram.com/pubs/pdf/FR328/FR328.pdf> (Accessed 5 May 2023).

[4]               GH Tesfay ‘Note on the adverse effects of polygamy on the rights of women: A case study in Gedeo and

Sidama Zones’ (2017) 6 Haramaya Law Review 101.

[5]               The Revised Family Code Proclamation No. 213/2000 (Family Code) 2000 art 11 and 33.

[6]               The Criminal Code of the Federal Republic of Ethiopia Proclamation No.414/2004 (Criminal Code) 2004 art 650. In terms of article 106 of the Criminal Code, simple imprisonment means imprisonment of between 10 days and 3 years and may go up to 5 years in grave instances.

[7]               Criminal Code art 651.

[8]              Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Ratification Proclamation No.1082/2018 (Maputo Protocol Ratification Proclamation) 2018 art 3(1)(a).

[9]              AU ‘List of countries which have signed, ratified/acceded to the Maputo Protocol’  https://au.int/sites/default/files/treaties/37077-sl-PROTOCOL%20TO%20THE%20AFRICAN%20CHARTER%20ON%20HUMAN%20AND%20PEOPLE%27S%20RIGHTS%20ON%20THE%20RIGHTS%20OF%20WOMEN%20IN%20AFRICA.pdf (Accessed 23 May 2023)

[10]             Maputo Protocol Ratification Proclamation.

[11]              The Women’s and Children’s Affairs Standing Committee & the Legal, Justice, and Democracy Affairs Standing Committee to the HoPR (Standing Committees) ‘Conclusions and recommendations of the joint committee on the draft proclamation to ratify the Maputo Protocol’ (2018) 11.

[12]             Minutes of the Standing Committees (n 11) 5.

[13]             F Banda ‘Blazing a Trail: The African Protocol on Women’s Rights comes into force’ (2006) 50 Journal of African Law 77.

[14]             KS Ebeku ‘A New Hope for African women: overview of Africa’s Protocol on Women’s Rights’ (2004) 13 Nordic Journal of African Studies 266.

[15]             As above.

About the Author:

Meron Eshetu Birhanu is a Technical Assistant at the African Commission on Human and Peoples’ Rights (ACHPR). She holds an LLM in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria.