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APDF and Another v Mali (Application No. 046-2016)

African Court on Human and Peoples' Rights · [2018] AfCHPR 9 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before the African Court on Human and Peoples' Rights challenging provisions of Mali's 2011 Persons and Family Code for violations of international human rights instruments
Decision
Application granted — Mali ordered to amend Family Code and report on compliance within two years

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held that Mali's 2011 Family Code violated multiple international human rights instruments by setting the minimum marriage age for girls at 16 (not 18), permitting religious marriage celebrations without verification of consent, and enshrining Islamic and customary inheritance laws that discriminate against women and children born out of wedlock. The Court ordered Mali to amend the Code to harmonise it with its international obligations under the Maputo Protocol, African Children's Charter, and CEDAW.

Outcome

Application granted — Mali ordered to amend Family Code and report on compliance within two years

Facts

In 2009, Mali adopted a Family Code compliant with international human rights standards, including a minimum marriage age of 18 for both sexes and equal inheritance rights. Following mass protests by Islamic organisations, the Code could not be promulgated. In 2011, a revised Family Code was enacted and promulgated which lowered the minimum marriage age for girls to 16 (with exemptions from age 15), did not require religious ministers to verify consent before celebrating marriages, and enshrined Islamic and customary law as the default regime for inheritance, resulting in unequal shares for women (half of men's share) and exclusion of children born out of wedlock unless parents specified otherwise in writing. Two NGOs with observer status before the African Commission challenged the 2011 Code before the African Court in 2016.

Issues

  1. Whether Mali's Persons and Family Code violates the minimum age of marriage for girls by setting it at 16 years with exemptions from age 15.
  2. Whether the Family Code violates the right to consent to marriage by not requiring religious ministers to verify consent before celebrating marriages.
  3. Whether the Family Code violates the right to inheritance for women and children born out of wedlock by enshrining Islamic and customary law as the default inheritance regime.
  4. Whether Mali failed to eliminate traditional practices harmful to women and children by adopting a Family Code that perpetuates discriminatory practices.

Orders

  • Objection to the Court's jurisdiction dismissed.
  • Court has jurisdiction.
  • Objection to admissibility of the Application dismissed.
  • Application is admissible.
  • Respondent State violated Article 6(b) of the Maputo Protocol and Articles 2 and 21 of the African Charter on the Rights and Welfare of the Child on minimum age for marriage.
  • Respondent State violated Article 6(a) of the Maputo Protocol and Article 16(1)(b) of CEDAW on the right to consent to marriage.
  • Respondent State violated Articles 21(1) and (2) of the Maputo Protocol and Article 3 of the African Children's Charter on the right to inheritance for women and children born out of wedlock.
  • Respondent State violated Article 2(2) of the Maputo Protocol, Articles 1(3) and 21 of the African Children's Charter, and Article 5(a) of CEDAW on elimination of harmful traditional practices.
  • Respondent State violated Article 2 of the Maputo Protocol, Articles 3 and 4 of the African Children's Charter, and Article 16(1) of CEDAW on the right to non-discrimination.
  • Respondent State ordered to amend the Family Code, harmonise its laws with international instruments, and take appropriate measures to end the violations established.
  • Finding of violations constitutes in itself a form of reparation for the Applicants.
  • Respondent State to comply with Article 25 of the Charter regarding information, teaching, education and sensitisation of populations.
  • Respondent State to submit a report on measures taken within two years from date of judgment.
  • Each Party to bear its own costs.

Rules and key headnotes

Marriage — Minimum Age — International Obligations — Non-Derogation
Where a State has ratified the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) and the African Charter on the Rights and Welfare of the Child, the State is obligated to guarantee a minimum marriage age of 18 years for girls without exemption, and threats of social unrest or cultural opposition do not justify derogation from these treaty obligations.
Marriage — Consent — Religious Ministers — Duty to Verify
A national law that empowers religious ministers to celebrate marriages but does not require them to verify the free and full consent of both parties, does not prescribe sanctions for non-compliance, and does not mandate oral consent given in person before the religious minister, violates the right to free consent to marriage under Article 6(a) of the Maputo Protocol and Article 16(1)(b) of CEDAW.
Inheritance — Women and Children — Default Application of Religious Law — Discrimination
A Family Code that enshrines Islamic and customary law as the default inheritance regime, under which women receive half the share of men and children born out of wedlock are excluded from inheritance unless their parents specify otherwise in writing, violates Article 21(2) of the Maputo Protocol and Articles 3 and 4 of the African Charter on the Rights and Welfare of the Child, even where the Code permits individuals to opt into an egalitarian regime by will.
Harmful Traditional Practices — State Obligation to Eliminate — Legislative Duty
By adopting a Family Code that permits early marriage, marriage without consent, and unequal inheritance based on sex and birth status, a State fails to discharge its obligation under Article 2(2) of the Maputo Protocol, Articles 1(3) and 21 of the African Children's Charter, and Article 5(a) of CEDAW to eliminate harmful traditional and cultural practices that discriminate against women and children.
Treaty Obligations — Domestic Application — Supremacy over National Law
Where a State's Constitution provides that duly ratified international treaties have superior authority over domestic law upon publication, the State cannot justify non-compliance with treaty obligations by reference to socio-cultural realities, religious practices, or political pressure; the State must harmonise national legislation with its international commitments.
Exhaustion of Local Remedies — NGO Standing — Constitutional Petition
Where a State's Constitution limits standing to file constitutional petitions to specified State officials and does not permit human rights NGOs to challenge the constitutionality of laws before the Constitutional Court, NGOs are not required to exhaust this remedy before bringing an application to a regional human rights court.
Admissibility — Reasonable Time — Starting Point Where No Local Remedy
Where no effective local remedy is available to an applicant, the period for determining whether an application was filed within a reasonable time runs from the date the applicant acquired knowledge of the impugned act, not from the cessation of an alleged continuing violation.

Legislation cited (12)

  • Malian Constitution Article 85
  • Malian Constitution Article 88
  • Malian Constitution Article 115
  • Malian Constitution Article 116
  • Law No. 97-010 of 11 February 1997 Article 45
  • Persons and Family Code (Law No. 2011-087) Article 281
  • Persons and Family Code Article 283
  • Persons and Family Code Article 287
  • Persons and Family Code Article 300
  • Persons and Family Code Article 303
  • Persons and Family Code Article 304
  • Persons and Family Code Article 751

Cases cited (6)

  • Dennis and Others v United Kingdom (Application No. 76573/01)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (Application No. 013/2011)
  • Alex Thomas v United Republic of Tanzania (Application No. 005/2013)
  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Centre for Human Rights v Senegal (ACRWC 003/12)
  • A.T. v Hungary (CEDAW 2/2005)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

APDF and Another v Mali (Application No. 046-2016) [2018] AfCHPR 9 (11 May 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.