On 11 May 2018, the African Court on Human and Peoples’ Rights issued a landmark judgment in the case APDF and IHRDA versus the Republic of Mali. For the first time in its history, the Court found a violation of the Protocol on the Rights of Women in Africa. The Court held that Malian Family Code violates women’s rights as recognized under international law, and condemned the State of Mali to modify its legislation.
Two civil society organisations had lodged a complaint before the African Court in September 2016 alleging that the Malian Family code adopted in 2011 is not compatible with the State’s obligations under international law. The Court therefore proceeded to examine if the code was in conformity with human rights instruments Mali had ratified, and found that several provisions of this code are not.
The Malian Family Code permits marriage for girls from the age of 16-years. In specific circumstances, the minimum age for marriage for girls may be lowered to 15-years. Consent is not always a requirement for a marriage to be valid. The African Court found that the relevant provisions of the Family Code are blatant violations of the Protocol on the Rights of Women in Africa (Maputo Protocol) under which the minimum age for marriage is 18 years for both women and men. The Maputo Protocol also provides that free and full consent in marriage must be protected by law. In matters of inheritance, Islamic law and customary practice is the applicable regime by default in Mali. This means that women only receive half of what men receive and children born out of wedlock receive inheritance only when their parents so decide. In relation to this issue, the African Court emphasized that women and natural children should be entitled to inheritance by law, and as such, the Family Code should not allow the application of rules contrary to this principle. The Court held that the relevant provisions of the Malian Family Code are discriminatory and perpetuate practices or traditions harmful towards women and children, in violation of the Maputo Protocol, the African Charter on the Rights and Welfare of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women.
The political context in which the Malian Family Code was adopted, characterized by vigorous opposition by religious movements to a more progressive legislation, was at the heart of the arguments put forward by the State of Mali in its defence. But to the African Court, this was no good excuse for passing a law contradictory to its international obligations. It thus ordered Mali to modify its legislation as well as to take measures to inform, teach, educate and sensitize the population on the rights of women, and to report to the Court on the implementation of the judgement within a period of two years.
The implementation of this judgment will be far from easy. Islamic movements opposed to legislation recognizing women’s rights have significant political power in the country, and efforts to end the ongoing conflict in Mali will certainly be higher on the agenda of the government. Yet, in this context, this judgment could actually be a tool to be used by the Malian government in its efforts to ‘modernize’ its Family code.
This was the first time the Court was asked to recognize specific women’s rights – minimum age for marriage, right to consent to marriage, right to inheritance, and more generally right not to be discriminated against. With this decision, the African Court has taken a firm stance on the authority of the Maputo Protocol as a human rights instrument binding upon African States – or at least those 36 States which have ratified it. Such a decision by a regional human rights judicial body constitutes a step forward for the recognition of women’s rights in Africa.
The decision is also important because of two procedural aspects that it touched on.
First, the Court accepted for the first time to examine a case where there is no alleged violation of the African Charter. Article 3(1) of the Protocol establishing the African Court reads as follows: “the jurisdiction of the Court shall extend to all cases and disputes concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned”. This Judgment confirms that judges interpret Article 3(1) as allowing the African Court to exercise jurisdiction over all cases of alleged violations of international human rights law, and a priori including when the African legal framework is not applicable. This broad interpretation of the Court’s jurisdiction is quite exceptional in comparison with other supranational judicial systems.
Second, the African Court confirms its liberal interpretation of the admissibility condition that an application must be filed before the Court “within a reasonable time” (Article 56(6) of the Charter). The Court had already affirmed on multiple occasions that this condition must be examined on a case-by-case basis, but here it showed particular flexibility. Indeed, the applicants submitted their complaint more than 4 years after they acquired knowledge of the impugned law. Nevertheless the Court decided that such period is reasonable taking into account “needed time to properly study the compatibility of the law with [international law]” and “given the climate of fear, intimidation and threats” – without considering it necessary to elaborate on why or how long the security context prevented the applicants from submitting their complaint.
To conclude, this first judgment by the African Court dealing with women’s rights establishes the authority of the Maputo Protocol and demonstrates that the Court is eager to adopt a liberal interpretation of procedural matters for the benefit of a more effective protection of human rights. But this liberal approach may also open the door to a potentially very large number of cases admissible before the Court.