African Child Rights Committee Decides First Complaint Involving Sexual Violence
On September 10, 2018, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC or Child Rights Committee) published its first decision involving sexual violence against a minor, finding that Cameroon had failed to adequately investigate, punish, and redress the rape of a 10-year-old girl. [ACERWC] The Child Rights Committee found that the State’s lack of due diligence also amounted to gender discrimination and a violation of the minor’s right to be free from torture or inhuman or degrading treatment. See ACERWC, Institute for Human Rights and Development in Africa and Finders Group Initiative on behalf of TFA (a Minor) v. Cameroon, Communication No. 006/Com/002/2015, Merits Decision, 31st Ordinary Session (2018). The decision, which the minor’s representatives hailed as ground-breaking, diverges from a 2016 African Commission on Human and Peoples’ Rights decision in which it declined to find that Ethiopia’s failure respond with due diligence to the rape of a minor constituted gender-based discrimination. See ACommHPR, Equality Now and Ethiopian Women Lawyers Association (EWLA) v. Ethiopia, Communication 341/2007, Merits Decision, 19th Extra-Ordinary Session (2016), paras. 133-34, 150.
Facts of the Case
According to the allegations, a 10-year-old child, identified as “TFA,” was raped in April 2012, in Bamenda, Cameroon, by a prominent and influential businessman. See ACERWC, Institute for Human Rights and Development in Africa and Finders Group Initiative on behalf of TFA (a Minor) v. Cameroon, Communication No. 006/Com/002/2015, paras. 6, 8. TFA’s family filed a complaint with the local police, who failed to detain the suspect, contrary to domestic law, and waited three months to file their investigation report. See id. at paras. 6, 11. Even though the medical report confirmed that TFA had been raped and TFA identified the accused’s residence as the place where she was raped, the Examining Magistrate dismissed the case for lack of evidence. See id. at paras. 7, 8, 11. When attorneys for the TFA sought a copy of the Examining Magistrate’s written decision to appeal the decision, the Magistrate refused. See id. at para. 12. Over the course of a year, the victim’s attorneys unsuccessfully attempted to obtain the written decision as well as additional evidence not provided to them during the proceedings. See id. at para. 12. TFA’s aunt and lawyer were sued for defamation when they spoke out about the flaws in the investigation. See id. at paras. 13-17.
TFA, represented by two non-governmental organizations, filed a complaint before the ACERWC, alleging that the State’s failure to adequately investigate the rape or to permit an appeal of the case closure violated the African Charter on the Rights and Welfare of the Child, the United Nations Convention on the Rights of the Child; the African Charter on Human and Peoples’ Rights; the Protocol to the African Charter on Human and peoples’ Rights on the Rights of Women in Africa (Maputo Protocol); the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); the Convention Against Torture, Inhumane, and Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; and the Universal Declaration of Human Rights. See id. at para. 18.
In its decision, the ACERWC only considered alleged violations of the African Children’s Charter under Article 1 (general measures of implementation), Article 3 (non-discrimination), and Article 16 (protection against child abuse and torture). See id. at paras. 41, 58, 67, 79. While it drew inspiration from other human rights instruments, it reiterated that it is only authorized to decide alleged violations of the African Children’s Charter. See id. at para. 79. Before reaching the merits, the ACERWC decided on the complaint’s admissibility. In particular, the ACERWC held that TFA was not required to have exhausted domestic remedies because no remedy was available to her since the authorities blocked her ability to appeal and denied her access to evidence. See id. at paras. 29-32.
Article 1 on Implementation of the Charter
The ACERWC found that Cameroon’s response to TFA’s rape allegations violated Article 1 of the Children’s Charter. See id. at para. 57. Pursuant to Article 1, State Parties are obligated “to take legislative and other measures… to protect children from sexual abuses including rape.” See id. at para. 43. The Committee observed that the “obligation to protect” requires States to act with due diligence to prevent, investigate, prosecute, and punish sexual violence and other human rights violations. See id. at para 44.
In its analysis, the Committee found that the Magistrate’s decision to close the case was not reasonable. See id. at paras. 51-52. The Committee noted that the Magistrate dismissed the case without hearing from the victim or her representatives and that the prosecuting authorities failed to appeal the Magistrate’s decision within a reasonable time. See id. The Committee also observed that over the course of the five years since the victim reported the rape to the police, the State had not prosecuted or punished the perpetrator or provided a remedy to TFA. See id. at para 55. Accordingly, the Committee found a violation of Article 1. See id. at para. 57.
Article 3 on Non-Discrimination
The ACERWC also found that Cameroon’s lack of due diligence violated the non-discrimination provision of the Children’s Charter, because the sexual assault against TFA was gender-based violence, which is a form of gender-based discrimination under international human rights law. See id. at para 66. Under Article 3, all children are entitled to enjoy the rights protected within the Charter regardless of their sex. See id. a 64. The Committee held that, considering developments in international human rights law, gender-based violence, including rape, constitutes gender-based discrimination under Article 3 of the African Children’s Charter. See id. at paras. 60-62. The Committee clarified that even if the private persons are directly responsible for the gender-based violence, the principle of non-discrimination requires States to exercise due diligence in investigating and prosecuting the perpetrators of sexual assault. See id. at para. 63. Because the authorities failed to exercise due diligence in response to the sexual assault against TFA, which was an act of gender-based discrimination, the Committee found Cameroon responsible for violating her right to be free from discrimination. See id. at para. 66.
Article 16 on Protection Against Child Abuse and Torture
Lastly, the ACERWC held that Cameroon violated its obligation to protect against child abuse and torture. See id. at para. 77. Under Article 16(2), the Committee observed, “States are required to undertake exhaustive investigation and ensure commensurate compensation is rewarded to the victims” in cases where children are the victims of abuse. See id. at para. 73. The Committee found that despite “overwhelming” evidence, Cameroon failed to prosecute, investigate, or remedy the crime against TFA. See id. Accordingly, the Committee found that this lack of due diligence constituted a violation of TFA’s right to be free from abuse and torture under Article 16. See id. at para. 77.
The ACERWC recommended that Cameroon take several steps to remedy the violations of the Charter, including prosecuting and punishing the perpetrator, compensating TFA in the amount of 50 million CFA (approximately 89,000 USD), enacting comprehensive legislation eliminating all forms of violence against children, training members of the criminal justice system on how to protect and advance children’s rights, creating special systems to handle cases of violence against children, implementing effective monitoring of abuse against children, and engaging in awareness raising and education to prevent violence against children. See id. at para. 84. In its January 2017 concluding observations on Cameroon’s periodic report, the ACERWC had previously called on the State to increase its efforts to address sexual violence and other ill treatment of children. See ACERWC, Concluding Recommendations by the ACERWC on the Republic of Cameroon’s Report (2017), paras. 16, 27.
Sexual Violence As Gender-Based Discrimination
This decision is the first case in which the ACERWC held that sexual violence is a form of gender discrimination under Article 3 of the African Children’s Charter. [ACERWC] In reaching this holding, ACERWC relied in part on the interpretations of the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee), which observed in its General Recommendation Number 35 that “[g]ender-based violence against women constitutes discrimination against women” under the Convention on the Elimination of All Forms of Discrimination against Women. See CEDAW Committee, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, UN Doc. CEDAW/C/GC/35, 26 July 2017, para. 21. The CEDAW Committee has explained that when gender-based violence is committed by non-State actors, States are obligated to act with “due diligence” in investigating, prosecuting, punishing, and providing reparations for those acts. See id. at para. 24(b). The obligation to act with due diligence extends to all levels of government, including the legislative, executive, and judicial arms of government. See id. at para. 26.
Interpretation within the African Human Rights System
The ACERWC’s application of the due diligence standard in this case signals an apparent break from at least one other decision on sexual violence within the African human rights system. In 2016, the African Commission on Human and Peoples’ Rights (ACHPR) in Equality Now v. Ethiopia held that a State’s failure to investigate the sexual assault of a 13-year-old minor was a violation of a State’s due diligence obligations but did not constitute discrimination because the victim could not identify a similarly situated person that benefited from better State protection. See ACommHPR, Equality Now and Ethiopian Women Lawyers Association (EWLA) v. Ethiopia, Communication 341/2007, Merits Decision, 19th Extra-Ordinary Session (2016), paras. 133-34, 150.
That decision is also at odds with an earlier holding, in which the ACHPR recognized that the State’s failure to respond with due diligence to sexual violence against women protesters also constituted gender-based discrimination. See ACommHPR, Egyptian Initiative for Personal Rights and Interights v. Egypt, Communication 334/2006, Merits Decision, 9th Ordinary Session (2011), paras. 117-67. It stated, “the African Commission considers violence against women as a form of discrimination against them.” See id. at para. 165. Notably, however, the decision makes several references to whether male protesters were subjected to the same mistreatment or lack of response by State agents, in part to determine whether the attacks against the female protesters were gender-based. See id. at paras. 129, 138, 143.
The ACERWC is an 11-member committee tasked with the promotion and protection of rights enumerated in the African Children’s Charter, including by reviewing States’ implementation of those rights, interpreting provisions of the Charter, and deciding individual complaints. See ACERWC, Mandate of the Committee.
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