sexual health and human rights in the african region - The ICHRP

of marriage to be eighteen years and make registration of all marriages in an
official registry compulsory’. 453
[6] The African Women’s Protocol addresses choice in marriage and capacity to
marry in respect of children both implicitly as well as directly. Provisions of the
African Women’s Protocol that enjoin states to: eliminate all forms of
discrimination against women, including practices that endanger the health and
well-being of women; 454 respect the dignity of the woman and the free
development of her personality; ensure the woman’s protection from all forms of
violence, including sexual violence; 455 and to eliminate practices that adversely
affect the human rights of women contrary to recognised international
standards, 456 readily apply to customary and religious practices that deny choice
in marriage and compel young children, especially, girls to become spouses. The
African Women’s Protocol also speaks directly to marriage and capacity to marry
when it provides, inter alia, that ‘no marriage shall take place without the free
and full consent of both parties’. 457 Furthermore, the African Women’s Protocol
also goes beyond its United Nations counterparts by providing that ‘the
minimum age for marriage shall be 18 years’. 458
[7] In terms of jurisprudence emanating from a regional human rights court or
tribunal, there are no decided cases by either the African Commission on Human
and People’s Rights or the African Court of Human Rights. There is, however, a
case decided by a sub-regional court - Hadijatou Mani Koraou v The Republic of
Niger 459 This case was discussed more fully in Chapter 1 of this study. It will be
recalled that the Court of Justice of the West African Community held, inter alia,
that the applicant had not consented freely to a marriage, and, instead, had been
subjected to slavery through the customary practices of Wahiya and Sadaka and
that, in the process, suffered physical and psychological harm and violations of
human rights. In response to the applicant’s argument that she was not legally
married to Souleymane, a domestic court had ruled that ‘the marriage of a free
man with a slave woman is lawful if he cannot not afford to marry a free woman
and he fears to fall into fornication’. 460 The Court of Justice of the West African
Community found that the domestic court had erred and failed to protect the
human rights of the applicant by not condemning slavery and not ordering the
prosecution of Souleymane for perpetrating slavery.
453 Article 21(2) ibid.
454 Article 2(1)(b) of the African Women’s Protocol.
455 Article 3 ibid.
456 Article 5 ibid.
457 Article 6(a) ibid.
458 Article 6(b) ibid.
459 Hadijatou Mani Koraou v Republic of Niger ECW/CCJ/JUD/06/08, October 28, 2008 (ECOWAS
Community Court of Justice).
460 Ibid para 83.
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