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. Continue reading