On 11 May 2018 the African Court on Human and People’s Rights (‘the Court’) issued its ruling in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v Mali. This is the first judgment of the Court which deals with the rights of women and the rights of the child in Africa. With this decision, the Court has placed strict obligations on states to uphold international human rights standards within the sphere of family law, even when to do so may require them to disapply religious and customary law.
The application was brought by two Malian human rights NGOs, APDF and IHRDA (‘the Applicants’). The Applicants claimed that the most recent Malian Family Code, which was adopted in 2011 (‘2011 Family Code’) breaches several international human rights treaties ratified by Mali including: the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’), the African Charter on the Rights and Welfare of the Child (‘ACRWC’) and the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’). A large proportion of the population in Mali are Muslims, and the 2011 Family code was adopted as the result of a compromise between the National Assembly and various Islamic organisations within the country that protested vigorously against a prior attempt by the Malian Parliament to codify the rights of the family in 2009. This earlier code had attempted to provide rights for women and children in family matters that were more aligned with human rights treaty standards.
Claims at the African Court on Human and Peoples’ Rights
The Applicants contended that by setting the minimum age of marriage for females to 16 (it remained 18 for males) with an exception for girls to be married at 15 with the consent of their fathers, the 2011 Family Code violates Article 6(b) of the Maputo Protocol and Article 2 ACRWC, which establish the minimum age of marriage for females to be 18. The Applicants also claimed that as the 2011 Family Code does not oblige religious ministers to obtain both parties’ consent prior to marrying them, nor to ensure the presence of both parties at the ceremony, it violates the right of consent to marriage found in Article 6(a) of the Maputo Protocol and Article 16(a) and (b) of CEDAW. Furthermore, it was argued that by mandating that Mali’s Islamic law applies in matters of inheritance, which gives women half of what men receive, the 2011 Family Code violates the right to equitable inheritance enshrined in Article 21(2) of the Maputo Protocol which provides that women and men shall have the right to inherit their parents’ property in equitable shares. The Applicants also pointed to the fact that, according to Islamic law in Mali as endorsed by the 2011 Family Code, children born out of wedlock are only entitled to inheritance if their parents so desire. This they claimed violates Articles 3 and 4(1) of ACRWC concerning non-discrimination against children and the obligation to consider the best interests of the child. Finally, it was argued that by adopting the 2011 Family Code, Mali had failed to fulfil the positive obligation placed on it to eliminate traditions and customs that are harmful towards women and children. This obligation is enshrined in Articles 2(2) of the Maputo Protocol, 5(a) CEDAW and 1(3) ACRWC.
In its Reply, Mali contended that its laws must reflect the “social, cultural and religious realities” of life within the country and argued that it would be pointless to pass legislation that would be difficult or impossible to implement. It also argued that the 2011 Family Code was flexible in that people are free to administer their inheritance in other ways besides in accordance with religious or customary law if they so choose. Further, Mali claimed that the tumult and unrest that had scotched the enactment of the earlier 2009 Family Code had created a climate of fear where it felt it was not able to provide greater rights to women and children in family matters.
Judgment and Comment
In its judgment, the Court adopted the submissions of the Applicants in their entirety finding that Mali had violated each of the aforementioned treaty provisions through the enactment of the 2011 Family Code. The Court dismissed Mali’s argument regarding the flexibility of the Code, stating that “the Family Code in Mali enshrines religious and customary law as the applicable regime in the absence of any other legal regime”. The Court also appear to have given short shrift to Mali’s arguments regarding the need for its legislation to adhere to the cultural and religious “realities” within the country in addition to its arguments from social unrest. Instead, it reaffirmed that, irrespective of current cultural and religious practices, Mali had committed to eliminating discrimination against women and children and “by adopting the Family Code and maintaining therein discriminatory practices which undermine the rights of women and children, the Respondent State has violated its international commitments”. The Court subsequently ordered Mali to amend its Family Code so as to bring it into line with international human rights standards. It also ordered it to inform and educate its population as to these rights and obligations.
Several important implications arise from the Court’s decision, of which only a few will be discussed here. Firstly, it is noteworthy that at no point in this matter did either the Applicants or the Court make reference to the African Charter on Human and Peoples’ Rights (‘ACHPR’). As was pointed out by Oliver Windridge here and most recently in my post here, whilst the Court initially only decided cases where there was an alleged violation of a right contained in the ACHPR, it is now clear that it will examine breaches of any human rights treaty a state has ratified, regardless of whether there is a connection to a right contained in the ACHPR or not. Whilst some states may view this expansion of the Court’s jurisdiction with concern, it is premised on a permissible reading of Article 3(1) of the Court’s Protocol, which entitles it to interpret and apply “any other relevant Human Rights instrument ratified by the States concerned”. As stressed in my previous article, this broadening of the Court’s jurisdiction is a positive development for victims of human rights abuses in Africa, as the Court is now willing to rule on a potentially limitless array of human rights violations on the Continent.
Secondly, whilst Mali posited in its submissions that no issues could arise in the application of international treaties as they supersede all law within the country, not all states are likely to adopt this stance. Article 20 of the Tunisian Constitution for example, places international treaties on a hierarchical level above laws but explicitly below the country’s constitution, and whilst Tunisia officially lifted reservations to important provisions of CEDAW in 2014, it maintained that it would not take any legislative decision that conflicts with Chapter I of its constitution, which affirms that Islam is the religion of the country. It is possible that tension may arise in future between domestic interpretations of Islamic law in Tunisia and international human rights standards, and the Court’s jurisdiction may be disputed in such an eventuality. Such friction may also arise in the case of other African states whose legal systems are based on, or contain elements of, Islamic law which often applies exclusively in family matters.
Finally, it is now clear that irrespective of states’ arguments that the Court should defer to their legislatures in the context of family law, which is frequently within the scope of religious or customary law, the Court will demand close adherence to the standards set out in applicable human rights treaties. Whilst this stance is to be commended from a rights-based perspective, in addition to the problems which may arise between religious law and treaty standards, it is not clear what the practical implications of this will be for states. It must be remembered that in Mali, previous attempts to codify international standards in the context of family law resulted in large-scale civil unrest. There are signs that this unrest could once again resurface as, following the Court’s judgment, the Muslim Associations of Mali released a collective statement labelling it an affront to the nation’s social and religious values and calling on citizens to “take action to save the country from this danger”. Whilst there has been no official news that the Malian government has taken steps to implement the judgement as of yet, this statement is likely to be of concern and the Court should open dialogue with Mali and other states to discuss how this ruling can be followed without disturbing public order.