Background

For millions of women and girls across Africa, discrimination is often embedded not only em social norms but also em the law itself. One of the most significant victories against such discrimination came before the African Court on Human and Peoples’ Rights em Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development em Africa (IHRDA) v Republic of Mali (Application No. 046/2016): a landmark judgment that reaffirmed that culture, religion and tradition can never justify any form of human rights violation. This was the first em which the African Court interpreted and found violations of the Maputo Protocol, making it one of the most important judgments ever delivered on women’s rights under the African human rights system.

em 1998, Mali embarked on an ambitious process to modernise its personal and family laws. After years of consultation, a progressive draft Persons and Family Code was adopted by Parliament em August 2009. The draft sought to strengthen equality within marriage, protect children’s rights and bring Mali’s domestic legislation into closer conformity with its international human rights obligations. However, the reform faced intense opposition from religious and Islamic organisations, which argued that several provisions conflicted with religious principles. Following nationwide protests, the Government referred the draft back to Parliament for a second reading.

The result was the 2011 Family Code, a significantly revised law that rolled back many of the protections contained em the earlier draft. While intended to regulate family relations, the revised Code retained several discriminatory provisions that fell short of the standards established under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women em Africa (Maputo Protocol), which Mali had ratified em 2005.

On 26 July 2016, IHRDA in collaboration with Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF), instituted proceedings before the African Court on Human and Peoples’ Rights challenging the compatibility of Mali’s Persons and Family Code of 2011 with the country’s regional and international human rights obligations. The Applicants argued that the shortcomings of the Family Code facilitated widespread violations of the rights of women, girls and children born out of wedlock, including child and forced marriage, discriminatory inheritance practices, and the State’s failure to eliminate Práticas tradicionais prejudiciais.

The Human Rights Issues at Stake

O caso girou em torno de quatro questões principais:

1. Child Marriage

IHRDA and APDF argued that Mali’s Family Code failed to effectively guarantee 18 years as the minimum age of marriage for girls, contrary to Article 6(b) of the Maputo Protocol, and Articles 1(3), 2 and 21 of the African Charter on the Rights and Welfare of the Child (ACRWC). By permitting exceptions that allowed girls to marry before reaching adulthood, the law exposed them to harmful practices with lifelong consequences for their health, education, development and autonomy.

2. Free and Full Consent to Marriage

IHRDA and APDF challenged provisions of the Family Code that violated the right of consent to marriage under Article 6(a) of the Maputo Protocol and Article 16(a) and (b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). They argued that the Family Code failed to adequately guarantee the free and full consent of both spouses, particularly where marriages were celebrated before religious ministers. This weakened legal safeguards against forced marriage and undermined women’s autonomy and equality within marriage.

3. Discrimination em Inheritance

The litigation further challenged provisions that discriminated against women and children born out of wedlock em matters of inheritance. IHRDA and APDF argued that these rules denied equal inheritance rights based on sex and birth status, contrary to the guarantees of equality and non-discrimination contained em the Article 21(2) of the Maputo Protocol and Articles 3 and 4 of ACRWC.

4. Práticas tradicionais prejudiciais

Finally, IHRDA and APDF argued that by maintaining discriminatory legal provisions instead of reforming them, Mali had failed to fulfil its obligation to eliminate traditional practices and attitudes that undermine the rights and dignity of women and children under Articles 2(2) of the Maputo Protocol, 5(a) of the CEDAW and 1(3) of the ACRWC. The Family Code therefore fell short of the State’s obligations under regional and international human rights standards to eradicate harmful practices and promote substantive equality.

The African Court’s Landmark Ruling

On 10 May 2018, the African Court delivered a landmark judgment in favour of APDF and IHRDA. The Court held that several provisions of Mali’s Persons and Family Code were inconsistent with the Maputo Protocol, ACRWC and CEDAW, all of which Mali had ratified. In particular, the Court found that Mali had failed to comply with its obligations regarding the minimum age of marriage, free and full consent to marriage, equality in inheritance rights, and the elimination of Práticas tradicionais prejudiciais affecting women and children.

The Court ordered Mali to amend its Persons and Family Code to bring it into conformity with its international human rights obligations, take appropriate legislative and other measures to ensure compliance with the Maputo Protocol and other relevant treaties, and undertake public education and awareness-raising initiatives to sensitise the population on the rights guaranteed under these human rights instruments. em reaching its decision, the Court stated that em paragraph 124 of its judgment 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.

This reaffirms a principle that continues to resonate across the continent: States cannot invoke religious beliefs, customary norms or cultural practices to justify legislation that is inconsistent with their regional and international human rights obligations.

Why This Judgment Matters

The significance of APDF & IHRDA v Republic of Mali extends far beyond Mali itself. It brough the Maputo Protocol to life, beyond a mere declaration, with the African Court strengthening the enforceability of one of Africa’s most progressive human rights instruments. A clear message was sent: States cannot rely on religion, culture or tradition to justify discrimination.

Today, the judgment remains a leading regional precedent on several issues being litigated across the continent including child marriage, equality within marriage, women’s inheritance rights; protection of children born outside marriage, the relationship between domestic law and regional human rights obligations; and State responsibility to eliminate discriminatory legislation. It also reaffirmed that human rights are not optional aspirations; they are legally binding commitments.

A Continuing Journey Towards Equality

Mais de uma década após o Mali promulgar o Código da Família de 2011, as questões levantadas no caso APDF & IHRDA contra a República do Mali continuam a reverberar por toda a África. Muitos Estados ainda mantêm leis familiares discriminatórias que afetam desproporcionalmente mulheres e meninas, frequentemente justificadas em nome da religião, da tradição ou da cultura. A sentença do Tribunal Africano serve como um poderoso lembrete de que uma reforma legal significativa deve colocar os direitos, a dignidade e a igualdade das mulheres e das crianças no seu centro.

For IHRDA, this judgment demonstrates the impact of strategic litigation to influence national legal reform, strengthen regional jurisprudence and ensure that African human rights treaties become living instruments capable of advancing human rights for all em the continent.

About the Author:

Awa Gai é Oficial Jurídica da IHRDA. Ela é uma advogada de direitos humanos da Gâmbia que trabalha na interseção entre direito, direitos humanos e justiça de gênero.