AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES
APPLICATION No. 046/2016
58. In the Application, it is alleged that the Respondent State violated Articles 2(2), 6(a) and (b) and 21(2) of the Maputo Protocol; Articles 3 and 4 of the Children's Charter and Articles 1(3) and 5(a) of CEDAW
A. Alleged violation relating to the Minimum Age of Marriage
59. The Applicants aver that Article 281 of the impugned law establishing the Family Code sets the minimum age for contracting marriage at eighteen (18) for boys and sixteen (16) for girls, whereas Article 6(b) of the Maputo Protocol sets that age at 18 for girls.
60. The Applicants further indicate that the impugned law allows for special exemption for marriage as from fifteen (15) years, with the father's or mother's consent for the boy, and only the father's consent, for the girl.
61. The Applicants also aver that according to the World Bank survey conducted in Mali between 2012 and 2013, 59.9% of women aged 18 and 22 were married before the age of 18, 13.6% at 15 years and 3.4% before the age of 12; that despite these alarming statistics on child marriage, Mali has not taken appropriate measures to eradicate this phenomenon.
62. The Applicants recall the relevant provisions of the Children's Charter, namely, Article 1(3) thereof, which provides that “Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency, be discouraged”; Article 2 thereof, defines a child as “every human being below the age of 18 years” and Article 21, which provides that “State Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular those customs and practices prejudicial to the health or life of the child; and those customs and practices discriminatory to the child on the grounds of sex or other status”.
63. The Respondent State, in its Response, submits that the National Assembly of Mali, on 3 August 2009, enacted the Family Code which contains provisions compliant with the international commitments of Mali, but that this Code could not be promulgated following a “force majeure” which affected the process.
64. The Respondent State argues that, prior to the promulgation of the text by the President of the Republic, a mass protest movement against the Family Code halted the process; that the State was faced with a huge threat of social disruption, disintegration of the nation and upsurge of violence, the consequence of which could have been detrimental to peace, harmonious living and social cohesion; that the mobilisation of religious forces attained such a level that no amount of resistance action could contain it.
65. The Respondent State further argues that, in the circumstances, the Government was obliged to submit the text for a second reading, always involving Islamic organisations, which culminated in the Family Code of 2011, enacted by the National Assembly on 2 December 2011 and promulgated by the President of the Republic on 30 December 2011; that it was therefore unjustified to accuse the State of violating rights whereas the State was only evising the initial text in order to garner consensus and avoid unnecessary disruptions; and that the said revision comprises flexibilities which do not in any way detract from the rights protected by the Charter and other human rights instruments to which the State is a Party.
66. With regard to the allegation of violation of the minimum age of marriage, the Respondent State maintains that the established rules must not eclipse social, cultural and religious realities; that the distinction contained in Article 281 of the Family Code should not be seen as a lowering of the marriage age or a discrimination against girls, but should rather be regarded as a provision that is more in line with the realities in Mali; that it would serve no purpose to enact a legislation which would never be implemented or would be difficult to implement to say the least; that the law should be in harmony with sociocultural realities; that it would serve no useful purpose creating a gap between the two realities, especially as, according to the Respondent State, at the age of fifteen (15), the biological and psychological conditions of marriage are in place, and this, in all objectivity, without taking sides in terms of the stance adopted by certain lslamist circles.
67. The Respondent State in conclusion asserts that the question is not that of violation of international obligations or maintenance of practices that should be discouraged but rather that of adapting the said obligations to social realities and that for these reasons, the Applicants' argument should be dismissed as unfounded.
68. In their Reply, the Applicants argued that by ratifying the Charter, the Maputo Protocol and the Children's Charter, the Respondent State committed itself fully to the relevant instruments; that the threats generated by the protests cannot justify derogation from the commitments imposed on it as a State Party to the said instruments.
69. Concerning the minimum age for marriage, the Applicants submit that the limitations on which the Respondent State relies to exempt itself from its international obligations are not permitted under Article 6(b) of the Maputo Protocol which, without exemption, sets the minimum age of marriage for girls at eighteen (18) years.
70. With regard to the Respondent State's allegation that the biological and psychological conditions of marriage are in place at age 15 for the girl, the Applicants submit that these assertions are contrary to the jurisprudence of the African Committee of Experts on the Rights and Welfare of the Child4, the Committee on the Elimination of Discrimination against Women5 and the research conducted into the disadvantages of early marriage.
71. Article 2 of the Children's Charter defines a child as “every human being below the age of 18 years”.
72. Article 4(1) stipulates that “In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”.
73. Article 21 of the same Charter stipulates that: “State Parties … shall take all appropriate measures to eliminate harmful social and cultural practices … and those customs and practices discriminatory to the child on the grounds of sex or other status”.
74. Article 6(b) of the Maputo Protocol provides that: “States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall enact appropriate national legislative measures to guarantee that: b) the minimum age of marriage for women shall be 18 years.. . ”
75. The Court notes that the afore-mentioned provisions focus on the obligation for States to take all appropriate measures to abolish negative practices and customs as well as practices discriminatory to children born out of wedlock for reasons of their gender, especially measures to guarantee the minimum age for marriage at 18 years.
76. The Court further notes that, as indicated in paragraphs 67, 68 and 69 above, the Respondent State implicitly admits that the present Family Code, adopted in a situation of “force majeure” is not consistent with the requirements of International Law.
77 The Court also notes that Article 281 of the impugned Family Code effectively sets the marriage age at 18 for men and 16 for women. Furthermore, the Article also includes the possibility for the administrative authorities to grant special exemption for girls to be married at 15 years for “compelling reasons”.
78. The Court holds in conclusion that it lies with the Respondent State to guarantee compliance with the minimum age of marriage, which is 18 years, and the right to non-discrimination; that having failed to do so, the Respondent State has violated Article 6 (b) of the Maputo Protocol and Articles 2, 4 (1) and 21 of the Children's Charter.
B. Alleged violation of the right to consent to marriage
79. The Applicants allege that the impugned law, in its Article 300, entitles religious ministers, alongside civil registry officials to perform marriages but that no provision of this law provides for verification of the parties' consent by the religious ministers.
80. The Applicants further aver that Article 287 of the impugned law prescribes sanctions against any civil registry official who performs marriage without verifying the consent of the parties, but no sanctions are prescribed against defaulting religious ministers who fail to perform the verification.
81. The Applicants also submit that Article 283 of the same law specifies that consent must be given orally and in person before the civil registry official by each party but that, that provision was not prescribed for religious ministers; the conditions that must be fulfilled by the civil registry official to be able to celebrate a marriage without the presence of the parties are similarly not required of religious ministers.
82. The Applicants contend that the way religious marriages are performed in Mali poses considerable risk, given that the marriages are forced, in as much as they are generally celebrated without the presence of the parties; that the marriages consist in the two families exchanging kola nuts in the presence of a specialist of the Muslim religion; that even if these marriages are performed in the mosque, the presence of women is not required; that this practice, combined with traditional attitudes which encourage the marriage of the girl at puberty, is fraught with considerable risk as the marriages are performed without the consent of the girl.
83. The Applicants conclude from the foregoing that by enacting a law that permits the maintenance of the marriage customs and traditions that do not allow for the consent of the parties, the Respondent State has violated its commitment under Article 6(a) of the Maputo Protocol and Article 16 (a) and (b) of CEDAW.
84. In its Response, the Respondent State refutes this allegation. It argues that paragraph 1 of section 283 of the Family Code makes it clear that there is no marriage when there is no consent; that furthermore, section 300 of the same Family Code makes it clear that marriage is publicly celebrated by the religious minister subject to compliance with the substantive conditions of marriage and the prohibitions enshrined by the Family Code; that these constitute guarantees of compliance with the obligation to ensure the consent of prospective spouses before any marriage celebration.
85. With regard to the practical organisation of marriage celebration, the Respondent State indicates that, at any place and at any time, it is left to the discretion of the prospective parties who may celebrate their marriage inside a mosque, in their families or at a civil centre with the sole condition to respect public order and the law.
86. The Respondent State further contends that another guarantee of compliance with the conditions is laid down in Sections 303 (3) and (304) which regulate the validity of the marriage celebrated by a religious minister, the transmission of the marriage certificate to the civil registrar and its registration in the Civil Register.
87. In their Reply, the Applicants recall that the criticisms against the extant 2011 Family Code are that: (1) it does not prescribe that consent be given orally and in person before the religious minister, (2) it does not provide for sanctions against a religious minister who performs marriage without verifying the parties' consent, (3) it is silent on the verification of consent by the religious minister in the event of the inability of either of the parties to do so and, (4) it does not lay down, for the religious minister, the procedures for verifying the consent of the parties.
88. The Applicants contend that the Respondent State confines itself to stating that the practical organisation of marriage celebration is left at any place and at any time to the discretion of the parties without adducing any argument to counter the above criticisms.
89. Article 6 (a) of the Maputo Protocol stipulates that: “States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall enact appropriate national legislative measures to guarantee that: a) no marriage shall take place without the free and full consent of both parties.”
90. The Court notes that the Maputo Protocol in its Articles 2 (1) (a) and 6 and CEDAW in its Article 10 and 16 set down the principles of free consent in marriage.
91. The Court also notes that despite the fact that the said instruments are ratified by Mali, the extant Family Code envisages the application of Islamic law (Article 751) and entitles religious ministers to celebrate marriages, but does not require them to verify the free consent of the parties.
92. Furthermore, while sanctions are prescribed against the civil status officer for non-verification of the consent of the parties, no sanction is provided against a religious minister who does not comply with this obligation. Verification of consent given orally and in person is required before the civil status officer in accordance with Article 287 of the Family Code, whereas this obligation to verify is not required of a religious minister.
93. The Court also notes that one condition that must be fulfilled by a civil status officer to celebrate a marriage without the presence of the parties, is the deposition by the absent party, of an act drawn up by the civil status officer of his area of abode, a condition not required in the marriage celebrated by a religious minister.
94. The Court further notes that the way in which a religious marriage takes place in Mali poses serious risks that may lead to forced marriages and perpetuate traditional practices that violate international standards which define the precise conditions regarding age of marriage and consent of the parties, for a marriage to be valid.
95. The Court notes that, in the procedure for celebration of marriage, the impugned law allows for the application of religious and customary laws on the consent to marriage. It also allows for different marriage regimes depending on whether it is celebrated by a civil officer or a religious minister - practices not consistent with international instruments, namely: the Maputo Protocol and CEDAW.
C. Alleged violation of the right to inheritance for women and natural children
96. In the Application, it is argued that the impugned law enshrines religious and customary law as the applicable regime, by default, in matters of inheritance, in as much as the provisions of the new Family Code apply only “where religion or custom has not been established in writing, by testimony, experience or by common knowledge or where the deceased, in his life time, has not manifested in writing or before witnesses his wish that his inheritance should be distributed otherwise” (Article 751 of the Family Code).
97. As regards women, the Applicants maintain that in Mali, Islamic law gives a woman half of what a man receives. They also point out that the majority of the population lacks the capacity to use the services of a notary to authenticate a will; that, besides, notaries estimated at 40 in number in the whole country cannot serve the population of over 15 million Malians.
98. The Applicants submit from the aforesaid that, in adopting the impugned law, the Respondent State violated Article 21 of the Maputo Protocol which provides that:
“A widow shall have the right to an equitable share in the inheritance of the property of her husband…Women and men shall have the right to inherit, in equitable shares, their parents' properties”.
99. The Applicants state that the Committee on the Elimination of Discrimination against Women has also declared that practices which do not give women the same share of inheritance as men constitute a violation of CEDAW6.
100. As regards the child, the Applicants submit that, according to the new Family Code, children born out of wedlock do not have the right to inheritance and that they may be accorded inheritance only if their parents so wish and the conditions set out in Article 751 of the Family Code have been met (see supra paragraph 97).
101. The Applicants further submit that the Respondent State also violated Article 4(1) of the Children's Charter, and Article 3 thereof which prohibits all forms of discrimination.
102. The Applicants contend that although the new Code provides for equal share of inheritance between the legitimate child and the child born out of wedlock where inheritance is governed by the provisions of the Family Code, this right is rendered illusory by the application of the customary or religious regime as the law applicable in the absence of a will to the contrary; that the regime applicable to most children born out of wedlock in Mali remains the customary or religious law, and that in the circumstances, the right to inheritance is no longer a right but a favour for children born out of wedlock in Muslim families.
103. In its Response, the Respondent State indicates that, until recently, Mali did not have an inheritance legislation that was entirely customary; that by a commitment entered into, the State of Mali regulated inheritance in the Family Code of 2009 by enshrining equal share for men and women with the articipation of the children born out of wedlock in the devolution of estate on the same footing as the legitimate child; but that, under the pressure and for fear of social unrest, the State had to consent to a re-drafting of this text.
104. The Respondent State further submits that the Family Code promulgated in 2011 has the advantage of being flexible in the sense that it allows for reconciliation of entrenched positions, offering each citizen the possibility of determining his mode of inheritance; that anyone who does not wish his succession to be arranged according to customary or religious rules simply expresses his will to have his inheritance devolved according to Family Code rules or his will; that the legislator has simplified the mode of expression of this choice which can be made even by testimony.
105. Based on the above considerations, the Respondent State concludes that it must be recognised that Mali's Family Code offers immense possibilities to every citizen and, therefore, does not violate the right to inheritance.
106. In their Reply, the Applicants maintain the arguments developed in their Application that under Islamic law, granting equal inheritance shares to men and women is a favour and not a right; and also that equal share between children born in wedlock and children born out of wedlock is similarly a favour.
107. The Applicants therefore pray the Court to rule that, by legalising discrimination against women and children born out of wedlock, the Respondent State violated Article 21 of the Maputo Protocol, Article 4 of the Children's Charter and Article 16(h) of the CEDAW.
108. With regard to women, Article 21 of Maputo Protocol stipulates that:
“A widow shall have the right to an equitable share in the inheritance of the property of her husband…. Women and men shall have the right to inherit, in equitable shares, their parents' properties”.
109. Regarding the child, Article 3 of the Children's Charter (paragraph 105) recognises for the child, all rights and freedoms and proscribes all forms of discrimination regardless of the basis. The Children's Charter therefore does not make any distinction between children and they all have the right to inheritance.
110. The Court notes from the foregoing provisions (paragraph 105) that in matters of inheritance a predominant place is accorded to the rights of the woman and the child, given that the widow and the children born out of wedlock have the same rights as the others. These guarantee equality of treatment for women and for children without any distinction.
111. The Court notes that in the instant case, the Family Code applicable in Mali enshrines religious and customary law as the applicable regime in the absence of any other legal regime or a document authenticated by a notary. Article 751 of the Family Code stipulates that: “Inheritance shall be devolved according to the rules of religious law or the provisions of this Code … ”.
112. The documents on record also show that in matters of inheritance, Islamic law gives to the woman half of the inheritance a man receives, and that children born out of wedlock are entitled to inheritance only if their parents so desire.
113. The Court notes that the superior interest of the child required in matters of inheritance as stipulated under Article 4 (1) of the Children's Charter in any procedure, were not taken into account by the Mali legislator at the time of elaboration of the Family Code.
114. The Court finds that the Islamic law currently applicable in Mali in matters of inheritance and the customary practices are not in conformity with the instruments ratified by the Respondent State.
115. The Court therefore holds that the Respondent State has violated Article 21(2) of the Maputo Protocol and Articles 3 and 4 of the Children's Charter.
D. Alleged violation of the obligation to eliminate practices or traditions harmful towards women and children
116. The Applicants submit that by adopting the impugned law, the Respondent State has demonstrated a lack of willingness to eliminate the traditional practices that undermine the rights of women and girls, and children born out of wedlock, especially early marriage, the lack of consent to marriage, the unequal inheritance - all in contravention of Article 1 (3) of the Children's Charter.
117. The Applicants assert that the impugned law makes early marriage of girls easier compared to the 1962 Family Code which permits the marriage of girls aged between 15 and 17 only with the consent of their parents, whereas the 2011 law permits the marriage of girls aged between 16 and 17 without parental consent. They further submit that the 1962 Code sets the special exemption for marriage at 15 years for girls with the consent of their father and mother, whereas the impugned law allows for the marriage of 15-year-old girls even where the mother is opposed to it since only the father's consent suffices.
118. In conclusion, the Applicants maintain their arguments and reiterate their prayers in this regard (see supra paragraph 16).
119. In the Response, the Respondent State contends that it is excessive to assert that Mali does not deploy efforts to eliminate the said practices; and that the Family Code of 2009 provides an adequate illustration of this contention. The Respondent State recalls the efforts deployed on this issue, particularly the launch of programmes for sensitisation and promotion of the rights of women and children, and the various laws enacted to guarantee the protection of these rights.
120. Article 2 (2) of the Maputo Protocol provides that: “States Parties shall commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.”
121. Article 5 (a) of CEDAW stipulates that: “States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
122. Article 16(1) (a) and (b) of CEDAW stipulates that:
“State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent.”
123. Article 21(1) of the Children's Charter provides that:
“State Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular:
(a) those customs and practices prejudicial to the health or life of the child; and
(b) those customs and practices discriminatory to the child on the grounds of sex or other status.”
124. Having established the violation of the rules provisions governing the minimum age for marriage, the right to consent to marriage and the right to inheritance for women and children born out of wedlock, the Court holds in conclusion that, 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.
125. In view of the foregoing, the Court holds that the Respondent State has violated Article 2 (2) of the Maputo Protocol, Articles 1 (3) and 21 of the Children's Charter and Article 5 (a) of CEDAW.
126. In the Application, the Applicant prays the Court to order the measures listed in paragraph 16, aimed at amending the law, on the one hand, and the adoption of measures to enlighten, sensitise and educate the population, on the other.
127. In its Response, the Respondent State sought the outright dismissal of the Application as being unfounded.
128. Article 27(1) of the Protocol provides that “If the Court finds that there has been a violation of a human or peoples' rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.”
129. In this respect, Rule 63 of the Rules stipulates that “The Court shall rule on the request for the reparation … by the same decision establishing the violation of a human and peoples' right or, if the circumstances so require, by a separate decision.”
130. With respect to the measures requested by the Applicants in paragraph 16 (i), (ii), (iv), (v), (vi) and (vii), relating to the amendment of the national law, the Court holds that the Respondent State has to amend its legislation to bring it in line with the relevant provisions of the applicable international instruments.
131. As regards the measures requested in paragraph 16 (iii), (viii), (ix), (x), (xii) and (xiii), the Court notes that Article 25 of the Charter stipulates that State Parties have the duty “to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as the corresponding obligations and duties are understood”. The Respondent State has the obligation to comply with the commitments under Article 25 of the Charter.
132. In the instant case, neither the Applicants nor the Respondent State has raised the issue of costs.
133. The Court notes, in this respect, that Rule 30 of the Rules stipulates that: “Unless otherwise decided by the Court, each Party shall bear its own costs.”
134. Considering the circumstances of this case, the Court decides that each Party shall bear its own costs.