South Africa’s reservations to the Maputo Protocol are different from most. Many reservations shield domestic law from a higher standard. South Africa’s aim to protect domestic law that already goes further than the Protocol. RFLD’s report Lifting the Reservations: nine country briefs on the Maputo Protocol argues that this makes them easy to withdraw, at no cost.
Key facts
South Africa ratified the Protocol on 17 December 2004. The African Commission’s Advocacy Framework records the following reservations and declarations:
- a reservation to Article 4(2)(j), which bars the execution of the death sentence on pregnant or nursing women
- a reservation to Article 6(d), which requires every marriage to be recorded in writing and registered
- a reservation to Article 6(h), on equal rights of women and men with respect to the nationality of their children
- interpretive declarations on Articles 1(f) and 31
The last examination found by the report led to concluding observations adopted by the African Commission in 2016, on South Africa’s combined periodic report under the African Charter and its initial report under the Protocol. No later report was found, and the brief treats South Africa’s next periodic report as overdue.
What the reservations do
The brief describes them as “protective reservations: they aim to keep South African law more favourable to women”. Each one has its own logic.
On Article 4(2)(j), South Africa has abolished the death penalty altogether, so a provision that only protects pregnant or nursing women from execution sets a lower bar than South African law.
On Article 6(d), South Africa’s concern is that “a marriage should not be deemed invalid simply because it has not been recorded”. Ethiopia raised the same concern in its own reservation to Article 6(d).
On Article 6(h), South Africa objected that the Protocol subjects the equal rights of women and men regarding the nationality of their children to national legislation and national security interests.
Why they can be lifted
The answer lies in the Protocol itself. Article 31 provides that nothing in the Protocol affects provisions that are more favourable to the realisation of women’s rights in national legislation. The brief puts it simply: “Article 31 of the Protocol already guarantees that more favourable national provisions prevail, which makes the reservations unnecessary.”
The African Commission’s Advocacy Framework goes further. It describes reservations that claim domestic law already protects better as “superfluous in light of Article 31 of the Protocol”.
The brief concludes that “withdrawing them would cost nothing and would send a strong regional signal”. Because all of its reservations are protective, South Africa could show others that a withdrawal does not mean lowering a national standard.
The Commission has already asked
In its 2016 concluding observations, the African Commission asked South Africa to “lift all reservations under the Maputo Protocol in line with the spirit of the Protocol”. It also recommended legislation to domesticate the Protocol. Paragraph 45 of those observations contains the call to lift the reservations, and paragraph 49 sets out the recommendation on domestication. Ten years later, the reservations remain in place.
Questions for dialogue
- Since South African law provides a higher standard, would South Africa withdraw its reservations and rely on Article 31?
- When will South Africa submit its overdue periodic report?
- What steps has it taken on the 2016 recommendation to domesticate the Protocol?
- What is the legal effect of its interpretive declarations on Articles 1(f) and 31?
The ask
The brief asks the government to withdraw its reservations and rely on Article 31. It also asks the government to submit its overdue periodic report. It asks Parliament to request a report from the Department of Justice on the 2016 recommendation.
The national human rights institution and the Commission for Gender Equality are invited to support withdrawal publicly. Civil society is encouraged to use South Africa’s example to persuade other States that hold protective reservations. RFLD will share the brief with the Special Rapporteur on the Rights of Women in Africa and the Country Rapporteur Commissioner for South Africa. RFLD’s country profiles on women’s rights laws offer a starting point for comparing national standards across the region.
About the report
This article draws on RFLD’s report Lifting the Reservations: nine country briefs on the Maputo Protocol, published on 4 October 2026. Read the summary, download the English edition or the French edition.
