African Court Finds Mali’s Family Law Violates Human Rights Obligations
On May 10, 2018, the African Court on Human and Peoples’ Rights (AfCHPR) ruled that Mali’s Persons and Family Code violates international human rights standards on the State obligation to establish a minimum age of marriage for girl children; the right to consent to marriage; the right to inheritance; and the State obligation to eliminate harmful social and cultural practices for women, girl children, and children born out of wedlock. See AfCHPR, APDF and IHRDA v. Republic of Mali, App. No. 046/2016, Judgment of 11 May 2018, paras. 78, 95, 115, 125. The Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) brought the case against Mali to the African Court to challenge the domestic law’s compliance with three human rights treaties to which Mali is a party: 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 (Children’s Charter), and the Convention on the Elimination of Discrimination against Women (CEDAW). The Court found violations of all three treaties. This is the first time that the AfCHPR has applied provisions of the Maputo Protocol, which protects women’s rights in Africa. [IHRDA Press Release]
Minimum Age for Marriage
The APDF and IHRDA, the applicants in the case, argued that the Family Code violates the minimum age of marriage, which the Maputo Protocol requires States parties to set at 18. See APDF and IHRDA v. Republic of Mali, Judgment of 11 May 2018, at para. 59. Mali’s Persons and Family Code (“Family Code”) sets the minimum age for contracting marriage at 18 for men and 16 for women, and allows children to marry from age 15 with the consent of the mother or father for the boy child, but through only the father’s consent for the girl child. See id. at paras. 59-60. A World Bank survey, referenced by the applicants, conducted in 2012-2013 found that 59.9 percent of women in Mali aged 18 to 22 were married before age 18. See id. at para. 61.
The State claims that the current Family Code, which was revised from an earlier version after a mass protest demanded a revision of the law, “comprises flexibilities” so that those who observe certain traditions may do so, while others allegedly may opt out, but it, the State further argues, does not undermine the State’s human rights obligations. See id. at para. 65. As to its obligation to establish a minimum age of marriage, the State claimed that it must not establish rules that hinder social, cultural, and religious realities, but rather should create law that accurately reflects those realities; the State further explained that enacting legislation that would not be implemented, or would be hard to implement, was useless. See id. at para. 66.
The AfCHPR found that Mali failed to guarantee compliance with the minimum age of marriage of 18 years under both the Maputo Protocol and the Children’s Charter, in violation of Article 6(b) (obligation to enforce a minimum age of marriage at 18 years) of the Maputo Protocol and articles 2 (defining child as under 18 years) and 21 (obligations to eliminate practices harmful to children, including sex-based discriminatory practices, and to prohibit marriage of children under 18 years) of the Children’s Charter. See id. at paras. 78, 135. The Court noted that Mali admitted that its law is not in compliance with international standards and found that the State’s domestic law allowed for the marriage of girls under 18 years. See id. at paras. 76-78.
Right to Consent in Marriage
The applicants alleged that because the Family Code allows for traditional practices that prevent the ability of women, particularly, to consent to marriage, Mali’s law violates Article 6(a) of the Maputo Protocol and Article 16(a)-(b) of the CEDAW, both of which require States to ensure parties consent to marriage on an equal basis. See id. at paras. 79-83. First, they argued that while both civil registry officials and religious ministers may perform marriages, under the law, religious ministers are not required, and will not face sanctions for failing, to verify that the parties consent to be married. See id. at paras. 79-81. Second, they alleged that religious marriages pose considerable risk of being performed without the consent of the parties, especially the woman, due to the practice of performing marriage ceremonies without the parties present or without the woman who is a party to the marriage present. See id. at para. 82.
The AfCHPR found violations of the right to free consent in marriage under Articles 6(a) of the Maputo Protocol and Article 16(1)(b) of the CEDAW. See id. at para. 90. The AfCHPR found that the law establishes different marriage regimes based on religion and does not require consent of the parties or a deposition from an absent party when performed by a religious minister, as required by civil officers, in violation of the applicable international standards. See id. at paras. 91-93, 95.
Right to Inheritance
The applicants alleged that the Family Code establishes religious and customary law as the applicable inheritance regime by default, as the provisions governing inheritance in the family code apply only if religious or customary practices are not established, or if the deceased did not leave a will expressing specific desires as to inheritance. See id. at para. 96. The applicants alleged that this violates the right of women to equitable inheritance because in Mali Islamic law only provides women half of the inheritance that it provides men, and the very few notaries available makes it effectively infeasible for Malians to authenticate a will to choose a different inheritance regime. See id. at paras. 97-98.
Further, the Family Code allows children born out of wedlock inheritance rights only if both the parents of the child wish for the child to inherit, which, the applicants alleged, violates articles 4(1) (obligation to place the best interests of the child at the center of decisions affecting children) and 3 (right to non-discrimination) of the Children’s Charter. See id. at paras. 100-101. The applicants contended that children born out of wedlock may inherit equally with children born in wedlock only if there is a notarized will, and most children born out of wedlock will generally be unable to inherit from their parents. See id. at para. 102
Despite the State’s argument that citizens can choose their inheritance regime through a will, the AfCHPR found that Mali’s Family Code violated the right to inheritance because religious and customary law is the default law and does not provide for equal inheritance rights for all women and children. See id. at paras. 101, 111-113. Therefore, the State violated, the Court held, Article 21 of the Maputo Protocol (right of women to inheritance) and Article 3 of the Children’s Charter (right to non-discrimination). See id. at paras. 115, 135.
Harmful Practices Against Women and Children
The applicants submitted that by adopting the Family Code, the State has refused to eliminate practices that violate the rights of women, girls, and children born out of wedlock, especially with regards to child marriage, the lack of consent to marriage, and unequal inheritance regimes, in violation of Mali’s human rights obligations. See id. at para. 116. The State responded that it is excessive to assert that Mali did not attempt to eliminate these practices, and used the earlier version of the Family Code, which was since revoked, as a demonstration of the State’s effort to promote the rights of women and children. See id. at para. 119.
The AfCHPR held Mali in violation of Article 2(2) of the Maputo Protocol, articles 5(a) and 16 of the CEDAW, and articles 1(3) and 21 of the Children’s Charter, which require States parties to take appropriate measures to eliminate harmful social and cultural patterns and discrimination against women, girls, and children born out of wedlock. See id. at paras. 120-125, 135. The adoption of the Family Code and resulting refusal to eliminate discriminatory customary practices, the AfCHPR found, violates the State’s obligation under those articles. See id. at paras. 124-125.
The AfCHPR ordered the State to amend its legislation to bring it in line with its human rights obligations, under the Maputo Protocol, Children’s Charter, and the CEDAW. See id. at para. 130. Notably, the State must bring the minimum age of marriage for girls to 18; eliminate the age exemptions for marriage; create a plan to eradicate unequal inheritance between men and women; provide people in rural areas access to notaries; and impose the same requirements, sanctions, and standards for consent to marriage on religious ministers as exist for civil officials who perform marriages. See id. at paras. 16 (i), (ii), (iv)-(vii), (xi) (xii). Additionally, the Court noted the State has an obligation to promote and educate those within the State on their rights under international human rights law, and to that end, the Court ordered the State to train religious ministers on the procedure of marriage ceremonies and to translate and disseminate the Family Code, among other sensitization measures. See id. at paras. 16(ix), (viii). The State must report within two years on the changes it undertakes to meet the ordered reparations. See id. at para. 135.
For more information about the African Court on Human and Peoples’ Rights, the African human rights system, women’s human rights, and children’s human rights, visit IJRC’s Online Resource Hub. To stay up-to-date on international human rights law news, visit IJRC’s News Room or subscribe to the IJRC Daily.