APDF and IHRDA Vs Republic of Mali Assessment Answer

Introduction

The African Court's revolutionary APDF and IHRDA judgement protects women and children's human rights in the home, a sacred area. Despite this, the judgement did not go far enough to solve a challenging topic in African human rights jurisprudence: the subject of derogation, and more specifically, whether states may utilise defences like force majeure to temporarily suspend human rights duties. Mali's government called the massive protests that followed the 2009 passage of a more gender-equal Family Code Bill and its 2011 enactment force majeure. The Court rejected this argument without explanation.

The Parties

1. To this purpose, the APDF presents itself as a Malian Association with observer status before the African Commission on Human and Peoples' Rights (hereafter referred to as "the Commission") to inspire women's groups to protect their rights and interests from all types of violence and discrimination.
2. The International Human Rights Defenders' Alliance (IHRDA) describes itself as a pan-African non-governmental organisation (NGO) with headquarters in Banjul, The Gambia, whose aim is to help victims of human rights crimes seek justice through national, Continental, and international mechanisms. Furthermore, it claims observer status with the Commission.
3. As of 22 January 1982, the Republic of Mali is a signatory to the African Charter on Human and Peoples' Rights (hereinafter referred to as "the Charter"), and as of 20 June 2000, it is a signatory to the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights[1] (hereinafter referred to as "the Protocol").

The Court Holding

Because Mali has signed the relevant treaties, the African Court on Human and Peoples' Rights (the Court) decided that it may hear the matter. According to Rule 40(6)[2] of the Court and Article 6(2) of the Protocol to the African Charter on Human and Peoples' Rights on the Creation of the African Court on Human and Peoples' Rights (Court Protocol), the case was also admissible before it. 

In addition, the court ruled that the Persons and Family Code (Family Code) breached Articles 1(3), 2, 3, 4, and 21 of the African Charter on the Rights and Welfare of Children (Children's African Charter), Articles 2(2), 6(a) and (b), and 21(2) of the Maputo Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, and Articles 5(a), 16(a), and (b) of the Convention on

Instances of discriminatory inheritance and marriage practise, as well as those involving minors, were also included. The Court found Mali responsible for these infractions and suggested several changes to the Family Law.

Facts of the Case

To modernise the country's legal framework, the government of Mali prepared the People and Family Law No. 2011-087 (Family Code) with input from professionals, the general public, and other interested parties. The National Assembly of Mali unanimously approved the Family Code, making it law. Nevertheless, the adoption of the Family Code was thwarted by vehement opposition from Islamic organisations. These complaints prompted a second assessment, which resulted in the creation of a new Family Code, which was ratified on December 2, 2011. The petitioners argued that the new Family Law breached the Children's African Charter, the Maputo Protocol, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by lowering the legal marriage age to 16, limiting who can inherit property, and allowing child marriages.

The Issue

The court considered the following arguments before reaching its decision:

1. The issue of whether or not the Court had jurisdiction to hear the matter and, if it did, whether or not the case was admissible before the Court.
2. To what extent are the applicant's claims of violations of Articles 1(3), 2, 3, 4, and 21 of the Children's Charter, Articles 2(2), 6(a) and (b), and 21(2) of the Maputo Protocol, and Articles 5(a), 16(a) and (b) of the CEDAW concerning the legal age of marriage and consent, inheritance stereotyping, and the state's duty to remove damaging local traditions against women and children were serious and deserving of attention.
3. What, if any, action could be made to end the systematic denial of women's and girls' human rights?

Analysis Court’s Judgement

The jurisdictional question of whether the Court could hear the case was addressed first. The Court disagreed with Mali, the responding state, which argued that the applicant's activity before the Court violated Rule 26 (1) of the African Court's founding protocol. Instead, the Court decided that article 3(1) of the Protocol, which deals with the Court's jurisdiction, was the relevant provision to analyse in this case. As Mali had ratified the human rights treaty at issue, the Court may consider the case since the petitioners' complaints against the respondent state concerned breaches of that treaty[3].

The respondent state said that it was compelled to lower the minimum age of marriage in response to demands from Islamic organisations and to bring Mali's marriage laws into conformity with the country's sociocultural norms. The respondent state's claim of force majeure (unforeseen social pressures) due to religious demonstrations that disrupted the peace and stability of the nation, and the applicant's claim that synchronising the Malian laws on marriage and inheritance among others to satisfy the sociocultural needs of the Malian population, were both, in the Court's opinion, in direct contravention of ratified human rights agreements.

The Court also found that the state's position that a girl of 15 is physiologically and mentally ready for marriage was unconstitutional since it violated the rights of girls as established by the Children's African Charter and the Maputo Protocol.

The Court reasoned that since Mali has ratified international human rights treaties, Article 281 of the Family Law, which sets the marriage age at 18 for boys and 16 or 15 for girls (subject to the approval of her father), violates such accords. Based on Article 6(b) of the Maputo Protocol and Articles 2, 4(1), and 21 of the Children's African Charter, the Court decided that the lower age of marriage for females constituted a breach of the minimum marriage age (18).

The Court further ruled that the impugned Law's provisions (articles 283, 287, and 300) violate the right to consent to marriage since, unlike civil registration officials, religious leaders are not subject to any repercussions for performing weddings without confirming the permission of the major persons involved and instead asserting the approval of the parent, especially the father. Marriage ceremonies officiated by religious leaders and civil register officials were permitted by the Family Code, which facilitated discrimination. Religious authorities were given the green light to enforce sexist religious and customary rules[5]. The Court upheld the fact that Mali had broken treaties it had signed. It based its ruling on the fact that the new Family Law violates Maputo Protocol Article 2 (1)(a) and Article 6 (b), as well as Convention on the Elimination of All Forms of Discrimination Against Women Articles 10 and 16.

Article 751 of the new Family Code incorporates Islamic inheritance regulations, which the Court recognised as a breach of the right to the inheritance since they were adopted and maintained. According to this Family Law, female heirs were only entitled to half of what male heirs were. Children conceived outside of wedlock (illegitimate offspring) had no legal claim to inheritance and could only receive it as a favour. Article 21(2) of the Maputo Protocol, Articles 3 and 4 of the African Children's Charter, and Articles 16(a) and (b) of CEDAW were all found to be violated, as well as the Court's determination that these practises are discriminatory. The Court said that Mali's violation of women's and children's rights and freedoms was made apparent by the adoption of the new law[7]. To fulfil its duties under ratified treaties, the Court ordered the Government of Mali to revise the Family Law and launch awareness programmes.

Conclusion

This petition was granted. The State of Mali was found to violate its responsibilities under international law, and the Court ordered that the Family Law be reviewed and amended as necessary.

Orbiter Dicta of the Case

Scholars have written extensively on the topic of child marriage and discriminatory inheritance dispositions, as well as the harmful consequences these long-standing traditions have on children's well-being and rights. The literature mostly agrees on a central theme: nations in the African sub-region are unwilling to protect children's rights in the face of conflicting customary and religious norms. Because of this precedent set by the court, it is now incumbent upon nations to ensure that the provisions of their national laws are in line with their duties under the human rights conventions they have ratified[8]. The Court stated that Mali is bound by the articles of the Maputo Protocol, the African Children's Charter, and CEDAW since it has ratified these treaties. By taking this stance, the Court is sending a clear message to the other African countries that are signatories to these treaties that they must ensure their implementation, especially on touchy subjects like child marriage and inheritance discrepancies, which are pervasive problems across the continent.

For example, in this decision, the Court only addressed the applicant's claims of violations of articles on child and consent to marriage without exploring the underlying causes of the problems, such as the pervasiveness of these customary rules, the discrimination they perpetrate against women, and the methods for striking a fair balance between customary law and other legal systems. Because Mali's position and behaviour are representative of many African countries that will undermine the rights of the vulnerable at the slightest opportunity, the Court should have at least discussed the thought and justification of the respondent state finding it worthy of sacrificing the rights of the child on the altar of religious protest. One may make the case that the majority of the problems concerning human rights in Africa can be traced back to this attitude on the part of African governments.

So, although the African Court's decision to protect the rights and well-being of girls and women should be applauded and people need equally be mindful of the factors that fuel the prejudice that leads to these abuses.

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