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

said that while the requirement of exhausting domestic remedies was a
recognised principle of subsidiarity in human rights protection, it was a
principle that should be applied flexibly. 74 Moreover, it was always open
to members of a treaty to waive the requirement. In the case of the West
African Community Treaty, there was no such requirement and West
African Community members must be taken to have freely consented to
its waiver, but subject only the requirements stated in the rules of the
Court. 75 The Court said that the principle of exhaustion of remedies could
not be used to bring into the proceedings requirements that are more
cumbersome than those that are provided in the West African Community
Treaty. 76
• The Court’s ruling on the duty to exhausting domestic remedies is a
progressive one. For the Court to have conceded the arguments put
forward by the state of Niger on exhaustion of domestic remedies would
have effectively rendered the applicant hostage to a legal system that was
singularly failing to protect the human rights of the applicant and
condemn slavery, including sexual slavery. Despite provisions of the
Constitution of Niger proclaiming allegiance to the Universal Declaration
of Human Rights and the African Charter 77 and expressly guaranteeing
equality and non-discrimination on the ground of sex, 78 human dignity, 79
freedom from slavery, cruel, inhuman and degrading treatment, 80 the
applicant had, nonetheless, been put through a legal system that
adjudicated her claims without giving recognition to her constitutional
rights. The Criminal Code that prohibited slavery did not appear to have
any impact on the manner in which the courts of Niger were adjudicating
the case, not least the absurdity of convicting the applicant for bigamy.
• The Court said that the West African Community Treaty effectively
incorporated the human rights guarantees under the African Charter
through declaring its adherence to the African Charter in article 4(g) of the
Treaty. It is submitted that by treating the human rights guarantees as an
effectively a substantive component of the West African Treaty, the Court
adopted a progressive approach to human rights protection. It is an
approach that encourages aggrieved parties to have recourse to subregional
human rights protection without the need to also approach
74 Ibid para 39.
75 According to Article 10 d. ii of the Supplementary Protocol A/SP.1/01/05 relating to the ECOWAS
Court “Access to the Court is, inter alia, open to individuals on application for relief for violation of their
human rights providing that the submission of application for which shall: (i) not be anonymous; nor (ii)
be made whilst the same matter has been instituted before another International Court for adjudication.
76 Hadijatou Mani Koraou v Republic of Niger, para 45.
77 Preamble to the Constitution of Niger of 1999.
78 Article 8 ibid.
79 Article 10 ibid.
80 Article 12 ibid.
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