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

Supreme Court quashed the decision of the Court of First Instance but
only in relation to a procedural matter. The Court did not address the
substantive issues relating to custom of selling girls under the customary
law of the Haoussa people and the practice of Wahiya. The Supreme Court
remitted the matter to a lower court.
Whilst the remitted proceedings in the lower courts were in progress, the
applicant married someone. Souleymane filed a criminal complaint
against her and she was convicted by the Criminal Division of the Court
of First Instance for bigamy. She was fined as well as imprisoned. The
Criminal Code of Niger, which must be read subject to the recognition of
Islamic law which permits bigamy for men, criminalises bigamy. As a
response, the applicant filed a criminal complaint againt Souleymane for
committing enslavement of another person contrary to article 270(2) and
(3) of the Criminal Code of Niger as amended by Law 2003-025 of 22 July
2004. Concurrent to the criminal proceedings, the Supreme Court gave the
applicant a right to petition for divorce from Souleymane and ordered her
release pending the determination of the divorce proceedings.
Against a backdrop of discontent with the manner in which the legal
system of Niger and its courts in particular was largely condoning the
practices of slavery and Wahiya and failing to vindicate her human rights,
in particular the rights to liberty to marry and security of the person,
equality and non-discrimination, and human dignity, the applicant
brought complaint before the West African Community Court of Justice.
She sought a declaration that Niger was in violation of the following
articles of the African Charter: article 1 (obligation of state to give effect to
the rights guaranteed under the Africa Charter; article 2 (right to nondiscrimination,
inter alia on the ground of sex; article 3 (right to equality
before the law and to equal protection under the law; article 5 (right to
human dignity); 6 (right to liberty and security of the person); and article
18(3) (obligation of the state to eliminate all forms of discrimination
against women). The applicant also sought financial reparations for the
nine years she spent with Souleymane in enslavement and imposed
concubinage. The applicant was partially successful. The Court made
pronouncements which impact both positively as well as negatively on
the development of human rights jurisprudence in an African sub-region.
On the positive side, the following observations can be made:
• In contesting the proceedings before the Court of Justice, Niger argued,
inter alia, that proceedings were still pending before the domestic courts
and that the applicant has failed to exhaust domestic remedies. The Court
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