Landmark decision in first case of domestic violence brought to ECOWAS Community Court of Justice (ECCJ) (Ruling ECW/CCJ/APP/26/15, 24th January 2017)

In a decision that can be interpreted a historic milestone and a ‘triple high-five’ for the promotion of accountability for women’s human rights in Africa; for the recognition of violence against women as a violation of human rights, and for the emerging role of African regional courts in addressing human rights issues, on the 24th of January, 2017, the ECOWAS Court (the ECCJ or the Court) ruled that it has the competence to hear a case of domestic violence instituted against the Federal Government of Nigeria by two NGOs. I review that decision in this post.

The NGOs – the Women Advocates Research Documentation Centre (WARDC) and the Institute for Human Rights and Development in Africa (IHRDA) – had jointly filed a suit in August 2015 at the Court on behalf of Nigerian citizen, Ms. Mary Sunday, an alleged victim of severe domestic violence from her fiancé (a policeman), which had taken place three years earlier in August 2012.

WARDA and IHRDA alleged that since the attack happened, the Nigerian authorities had failed to carry out an independent and impartial investigation on the allegations of severe domestic violence suffered by Ms. Sunday.  As a result of the lack of effective investigation and prosecution of the offender, they argued that the Nigerian government had violated several rights of the African Charter on Human and People’s Rights; the Protocol to the African Charter on the Rights of Women in Africa, and other international human rights agreements. These rights included the right to dignity, to freedom from torture and other forms of cruel, inhuman or degrading punishment, and the right to a remedy.

The case was filed before the Court for human rights violations pursuant to Article 3 of the Supplementary Protocol of the Court. This provision gives the Court the competence to determine matters of human rights violations of citizens of the ECOWAS Community. The Nigerian government lodged a preliminary objection based on three grounds; that the Applicants had not established a cause of action; that the Applicants had no locus standi, and that the Court lacked the jurisdiction to hear the case. The Court was urged to dismiss and strike out the case for lack of merit.

In delivering the Court’s ruling, the Honourable Justice Micah Wilkins Wright, held that the case was admissible; that the Applicants had established a cause of action and also have locus standi to file the case.

Though this decision relates only to jurisdiction and admissibility by the ECOWAS Court, it is certainly noteworthy for the clear signal communicated by the Court to continue to hear cases relating to women’s human rights.

In 2008, in Mani v. Niger, (Hadijatou Mani Koraou v The Republic of Niger, Judgment No. ECW/CCJ/JUD/06/08 of 27 October 2008, available at http://www.refworld.org/docid/491168d42.html), the ECCJ broke new jurisprudential ground on women’s human rights when it found that that the Niger “[B]ecomes responsible under international as well as national law for any form of human rights violations of the applicant founded on slavery because of its tolerance, passivity, inaction and abstention with regard to this practice.” (See paras 84-85, based on its recognition of the failure of the Nigerien courts to denounce the instance of slavery, and the failure of the Nigerien authorities to bring a criminal prosecution. Emphasis my own).

In a decision that drew from instruments and decisions from international criminal law; international human rights law; African, Council of Europe and Inter-American regional human rights instruments; the ECOWAS Revised Treaty and Protocol on the ECCJ, and Nigerien domestic law, the ECCJ demonstrated an innovative interpretive approach to both the crime of slavery, and its particular manifestation for women.

The ECCJ’s openness to hearing cases that directly relate to women’s human rights, and to contributing to human rights jurisprudence at the African level, directly challenges perceptions of African human rights institutions as being ‘weak and ineffectual’ or ‘dysfunctional.’ (This description has been noted by several commentators including Obiora Chinedu Okafor who has observed that most commentators have historically described the workings and effectiveness of the African human rights systems thus. See Obiora Chinedu Okafor, The African Human Rights System, Activist Forces, and International Institutions, (CUP, 2007) at 63).

In the under-litigated area of women’s human rights both within regional human rights systems in general, and within international human rights law, this decision on jurisdiction and admissibility by the ECCJ is welcome. We await the details and the results of the hearing with great interest.

NOTE on details on the case;

 

Pursuing Synergies to Guarantee Women’s Rights in Conflict: The UN Security Council Arria Formula Meeting on CEDAW and the Women, Peace and Security Resolutions

Catherine O’Rourke, author of today’s post, and Aisling Swaine co-authored the UN Women (2015) Guidebook on CEDAW General Recommendation Number 30 and the UN Security Council Resolutions on Women, Peace and Security.

A key conclusion of the Global Study on UN Security Council Resolution 1325 was the need for improved synergies between the treaty-based human rights system and the Women, Peace and Security (WPS) agenda:

To fully realize the human rights obligations of the women, peace and security agenda, all intergovernmental bodies and human rights mechanisms must act in synergy to protect and promote women’s and girls’ rights at all times, including in conflict and post-conflict situations. (page 350)

The drive towards improved synergies between WPS and broader human rights obligations was given significant impetus in October 2013, when the monitoring Committee of CEDAW adopted General Recommendation Number 30 on the rights of women in conflict prevention, conflict and post-conflict situations. The Committee called on CEDAW state parties to inter alia ensure that implementation of their WPS commitments was taking place within the broader equality and women’s rights obligations of CEDAW. Further, state parties are called to report on implementation of their WPS commitments in their periodic reports to CEDAW.

The recent Arria Formula meeting between the UN Security Council and representatives from civil society, UN Women and the CEDAW Committee was an important milestone in the continued pursuit of such synergies. Held in UN Headquarters in New York on December 5, 2016, the meeting was convened by Security Council non-permanent member Uruguay. It was formally addressed by Yannick Glemarec, UN Women; Pramila Patten, CEDAW Committee; and Maria Victoria Cabrera-Balleza, Global Network for Women Peacebuilders. The speakers emphasized the following three dividends to be gained:

Information: Improved information sharing between the CEDAW Committee and the Security Council was identified as an important benefit of improved synergies. For example, the Security Council’s assessment of country situations should be informed by the CEDAW Committee’s assessment of women’s rights in the same country, gleaned through state reporting, shadow reporting and the women’s rights issues prioritised in Committee’s Concluding Observations to states. Likewise, the CEDAW Committee could draw on the Security Council activities in situations on its agenda to identify issues for further exploration through state reporting.

Civil Society Participation: The CEDAW process of periodic state examination, as well as broad standing for individual communications and inquiry requests under the CEDAW Optional Protocol, were identified as offering particular opportunities for civil society participation without significant parallel in the WPS resolutions.

Feminist Framing: The clear emphasis of the CEDAW Convention, Committee and General Recommendation Number 30 on women’s human rights, conflict prevention per se (as distinct from the narrower question of women’s role in conflict prevention) and disarmament (for example, the role of the Arms Trade Treaty in advancing WPS) was repeatedly noted. This mooted feminist framing offered a worthy counterpoint to the security and sexual violence focused activities of the Security Council.

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African Women Judges and Gender Parity on the African Court on Human and Peoples’ Rights

At the recently ended 28th African Union Summit, held January 22-31 2017 in Addis Ababa, Ethiopia, the African Union has finally made good on its promise to promote gender parity on the African Court on Human and Peoples’ Rights (ACtHPR)! Two women judges were elected to fill the two remaining vacancies on the court, these are Justice Chafika Bensaoula of Algeria and Justice Tujilane Rose Chizumila of Malawi. This development brings the total number of women judges currently serving on the court to five out of a total of eleven judges. This development is a big victory for advocates of gender parity within the AU, as well as scholars and practitioners advocating for gender parity in international courts. The recent election is preceded by the 27th African Union Summit held in July 10-18 2016 in Kigali, Rwanda, during which there were four vacancies to be filled on the ACtHPR. At this meeting, the Assembly of Heads of State and Government of the African Union (AU) elected only two judges who were both women; Justice Ntyam Ondo Mengu from Cameroon and Justice  Marie Thérèse Mukamulisa from Rwanda. The postponement of the election to fill the two vacancies appears to have been a deliberate action on the part of the AU to make good on its gender parity promise by requiring states to nominate and elect female judges as provided for in Article 12(2) and Article 14(3) of the Protocol establishing the court. This brings the total number of women judges to have ever sat on the ACtHPR to eight, representing 34%, out of a total number of 23 judges since the court first got in session in 2006.

For the first time in the history of the court, there will be five women judges sitting concurrently on the eleven-member court. The election of Justice Bensaoula of Algeria is another major milestone as it marks the first time in the history of the court that a woman is represented from the Northern region of the continent. As Osai Ojigho has argued, increasing the number of women judges on the ACtHPR can be achieved if the vacancies are widely advertised, if nomination procedures at the domestic level are transparent and widely publicized, civil society involvement is encouraged, outstanding candidates are sought out and that at least one of three possible nominees is a woman. The recent elections have shown that where there is a will, there is always a way for gender parity. In the note verbale communications sent out to States during vacancies on the court, the Office of the Legal Counsel has consistently asked for the nomination of women. So, what changed this time around? It appears that in the last two elections, a punitive measure was applied whereby states that did not have women were disqualified to run. For scholars concerned with achieving gender egalitarian benches both at the domestic and international levels, the recent election of four women judges to the ACtHPR may provide some glimmers of hope and it is a hope that we need to actualize at other sub-regional courts on the continent.

As I have documented elsewhere, African women judges have, to date, accounted for the largest number of women judges from one geographic region to serve on the ICC. The fact that African women hold this record is indicative of the fact that women judges have the right qualifications to fill vacancies on courts at the regional and continental levels—thus the limited pool argument does not hold much sway. The patterns and history behind the growing number of African women judges in international courts, is discussed in the forthcoming volume, “African Women Judges on International Courts: Untold Stories”, (Dawuni, Josephine and Kuenyehia, Akua  Routledge, 2017). As IntLawGrrl Nienke Grossman has suggested, the use of temporary mandatory quotas may be one strategy to increase the number of women on international courts. While temporary quotas may be a good way to expand access for qualified women judges, I do not ascribe to that strategy. As we have seen in the recent elections to the ACtHPR, enforcement of existing provisions for gender parity such as the application of measures to hold States to their obligations may be one strategy to achieve gender parity. It becomes the duty of States Parties to nominate the strongest female candidates, nonetheless, women judges will also have to be intentional about gaining access to nomination processes and gatekeepers. Preliminary evidence on the record of women’s success at the domestic level in most jurisdictions across the continent as discussed in  Gender and the Judiciary in Africa: From obscurity to parity? strongly indicates that there is a big enough pool of qualified women from which to draw women nominees for international courts. We may also be missing some important factors when we focus only on the numbers. We should ask a couple of questions: first, whether female candidates know about these courts and, second, whether they are interested in positions on these courts? This is where the role of networking and awareness raising becomes crucial in programs such as open dialogues hosted by the Institute for African Women in Law, where former judges Justice Akua Kuenyehia and Justice Sophia Akuffo discussed their experiences on international courts.

As Dawuni and Kang have observed, African women judges have risen to the upper echelons of judiciaries across Africa. At the international level, we have seen the record set at the ICC, with African women accounting for 33% of the total number of women (15 to be precise) to serve on the ICC bench. The Economic Community of West African States (ECOWAS) Court of Justice comes has had 40%, the East African Court of Justice comes in at 25% and the African Court of Human and Peoples’ Rights has just moved from hovering around 18% to 34% as currently constituted. African women judges have also made their mark on ad hoc tribunals such as the ICTY, ICTR and SCSL. As the highest-ranking continental court, the ACtHPR has proven once again that where institutional mechanisms are enforced and opportunity structures are opened, African women will always rise to the occasion. This is just the beginning and it is the hope that the sub-regional courts such as the ECOWAS Court of Justice and the East African Court of Justice will learn from these new developments. Now is the time to start working towards future elections at the sub-regional levels. Now is the time for Heads of States, civil society organizations and other agencies to nominate women for future elections on the ICC and other international courts and tribunals. Now is the time to sign the pledge on the Gqual Campaign!

 

Update on Gender Parity at the Human Rights Council

On November 8, I published Taking-stock: The Human Rights Council and Gender Parity in Special Procedures after 10 years in this blog. The Article was also cross-posted at the Human Rights Brief. To complement my article, the Human Rights Brief recently interviewed Ambassador Marta Maurás Pérez from Chile. Ambassador Maurás is a pioneer for gender parity in the UN Human Rights Council (HRC). As the only woman in the 2015 HRC Consultative Group, she was a leader in the Consultative Group’s creation of the 2015 Gender Parity Guidelines. She continues to work to increase the number of women holding special procedures positions. The interview with Ambassador Maurás discusses her dedicated work on closing the gender gap within the UN and around the world. In addition, she discusses the challenges ahead to ensure that gender parity becomes mandatory in the work of the HRC. The full interview is posted at the Human Rights Brief. I hope her words encourage us to continue our advocacy to promote gender parity at the HRC and other international tribunals and organs.

Psychoanalysis & law at the Women’s March in Washington

It was amazing and exhilarating to be part of such a massive collective experience. We left my neighborhood in Northwest Washington DC early, about 8am. At that hour on a Saturday morning, my neighborhood was already buzzing with people on their way to the march. On Friday, inauguration day, I had gone out to see what was afoot. What I discovered on Friday was a dead zone. On any normal day my neighborhood is very busy; Connecticut Ave near the Woodley Park metro is normally crowded with people going about their day. On inauguration day it was nearly empty. A lonely traffic cop stood at the intersection, idle, with no worries about directing any traffic. I walked down to Dupont Circle and saw lots of people going into the Office Depot and then emerging with rolled up poster board carried under arms. They were clearly getting ready for Saturday. Then I walked over to the Washington DC Friends Meeting House which was holding a training session on non-violent interventions to public assaults. We rolled played several different scenarios of public aggression and how to intervene effectively.

On Saturday this training came in handy. While walking from the Union Station metro over to meet our friends, we passed by a large bus emblazoned with Trump campaign slogans. Vendors in front of the bus were hawking Trump sweatshirts, teeshirts, and hats. These vendors were clearly out of place, because the street was teaming with women carrying signs and wearing their distinctive knitted caps. I stopped to look at the merchandise and then suggested to the man in charge that yesterday, during the inauguration, was their better time to make sales and that today, Saturday, belonged to the Women’s March participants.

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Dispatch from the Women’s March in Washington

Wow.  What an experience.

img_9288Like Diane, I am not much of a marcher.  I respect and support direct action, but—as an academic—my contributions to social change tend to involve disseminating the written word more than chanting in the streets.

But this was an event to remember.  I am so thrilled that I was able to be here in img_9250Washington, D.C. (having flown from California in a plane FULL of women) with my mom, sister, daughter, and a number of students and friends from all stages of my life.  Thanks to our cell phones (and notwithstanding the overwhelmed cell towers), we were miraculously able to connect at random points along the way.

img_9287The Rally and March offered a beautiful display of American diversity—all ages, races, orientations, and genders were represented.  There were families with children everywhere—marching, chanting, frolicking, and sharing their own messages (“Grown-ups: WTF??” & “I Am 8 Years Old & I Have Better Manners & Fewer Tantrums”). Although this was billed as “The Woman’s March,” thousands and thousands of supportive men were in attendance, all advocating for women’s rights and inclusiveness (“Men of Quality Do Not Fear Equality”).

Although there were incredible speakers and performers (including Gloria Steinem, Michael Moore, Ashley Judd, andimg_9232 Madonna), this was really about building community and solidarity in the streets.  The roar of the crowds was incredible—and deafening—at times.

As usual, the ubiquitous hand-made signs, all emphasizing social justice themes and the power of resistance, were a highlight. They were full of creative double entendres (“Electile dysfunction”) and clever puns (“Donald Dump” (with poop emoji) – “Trump Puts The ‘Twit’ in Twitter” & “We Shall Overcomb”).  Even Trump’s bizarre appearance did not escape reference (“Orange is the New Blech”).

The messages were pro-immigrant (“To All Immigrants: img_9268Thanks for Choosing America”), pro-diversity, pro-social justice, pro-human rights (“Women Just Want to Have FUNdamental Rights”) and pro-reproductive rights.  Indeed, I’ve never seen so many unique renderings of the female uterus in one place (“Shed Walls, Don’t Build Them”).

Not surprisingly, Trump’s unbridled misogyny and sordid history of sexual assault offered frequent themes (“No Sex Offenders in Public Housing” (with a picture of the White House)).  The pussy references were legion, even over and above the seas of pink knitted hats thanks to the Pussyhat Project.  I was thrilled to wear one knitted for me by one of my students. img_9281

Much of the anger was directed toward Trump (“Dump Trump”), but Mike Pence did not escape the crowd’s ire (“Pence Sucks Too”), particularly as we all marched past the EEOB where the Vice President has his office.  There were also plenty of references to Russia’s intervention in the election (“Nyet my President”) and images of Trump as Putin’s puppet or crybaby (“Make Daddy Vimg_9283ladimir Proud”).  Trump’s campaign slogans and vile comments were all turned inside out (“Make America Kind Again” – “Build a Wall Around Trump & We’ll Pay For It” – “Hate Does Not Make America Great” & “You Haven’t Seen Nasty Yet”).  Even Melania receivedimg_9207 some attention (“Free Melania” & “Melania, Blink Twice if You Need Help”).

Everyone was peaceful and loving. Notwithstanding the finality of yesterday’s inauguration, people were upbeat, strategizing for the coming resistance, and exchanging random acts of kindness, even in hot, crowded metro stops and the throngs on the streets.  We saw two people wearing “Trump” hats, but otherwise this was a crowd full of Hillary Clinton supporters (“Still With Her”).

In fact, there were so many references to Hillary that it was as if this were her inauguration celebration. It should have been (“The People’s President: She Got 2,864,974 More Votes”).

Onward.

Read On! ‘Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability’

I am thrilled to post for the first time in IntLawGrrls and to share the publication of my book Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability (Hart Publishing, 2016).

This book considers the potential of human security as a protective tool within the international law of human rights. Indeed, it seems surprising given the centrality of human security to the human experience, that its connection with human rights had not yet been explored in a truly systematic way. The book attempts to address that gap in the literature and sustains that the human rights of persons, particularly those facing structural vulnerability, can be addressed more adequately if studied through the complementary lens of human security and not under human rights law alone. It takes both a legal and interdisciplinary approach, recognizing that human security and its relationship with human rights cuts across disciplinary boundaries.

Human security with its axis of freedom from fear, from want and from indignity, can more integrally encompass the inter-connected risks faced by individuals and groups in vulnerable conditions. At the same time, human rights law provides the normative legal grounding usually lacking in human security. International human rights norms, individualistic in nature and firstly enacted more than sixty years ago, present limits which translate into lack of protection for people globally. As a result, the collective and contextual conditions undergone by persons can be better met through the broader and more recent notion of human security, which emphasizes ‘critical (severe) and pervasive (widespread) threats’, and accentuates socioeconomic vulnerabilities as authentic security concerns. Indeed, as signaled by Sadako Ogata, human security is ‘the emerging paradigm for understanding global vulnerabilities’.

The analysis follows a two-part approach. Firstly, it evaluates convergences between human security and all human rights – civil, political, economic, social and cultural –and constructs a general framework for thought and action, the ‘human security – human rights synergy’. Secondly, it goes on to explore the practical application of this framework in the law and case-law of UN, European, Inter-American and African human rights bodies in the thematic cores of 1) violence against women and girls (VAW); 2) undocumented migrants and other non-citizens such as asylum-seekers and refugees; converging in 3) a particular examination of the conditions of female undocumented migrants. In the last chapter, the book systematizes this evidence to reveal and propose added values of human security to human rights law; and inversely, it indicates how human rights standards/indicators can deliver a needed more precise, normatively grounded and operational conception of human security.

These ‘interpretative synergies’ offer promise for shifting the boundaries of international human rights law: in constructing integrative approaches to fill legal gaps, better prevention and addressing protectively collective threats, and –in the spirit of the Universal Declaration of Human Rights- creating an ‘enabling environment’ to fulfil all human rights, especially for those not only confronting isolated moments of risk or individual human rights violations, but rather conditions of structural vulnerability affecting their everyday lives. Continue reading