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

The Court said that, as far as possible, it should interpret domestic
legislation so as not to conflict with Botswana’s obligations under the
charter or other international obligations.
[27] Among states that follow a dualist tradition, that in essence means
Commonwealth Africa, Nigeria is the only jurisdiction that has expressly
incorporated the African Charter. 213 But even in Nigeria, the African Charter has
been accorded a status subordinate to the country’s constitution by the Nigerian
Supreme Court. 214
[28] The decision of the Court of Appeal of Kenya in Mary Rono v Jane Rono and
Another, where an international human rights treaty that had been ratified but
not incorporated into domestic law by the state was applied as domestic law by
the Court is a rare exception to the general approach.
Mary Rono v Jane Rono and Another, Civil Appeal 66 of 2002.
A farmer had died intestate. He was survived by two wives and nine children.
Five of the children were sons and four were daughters. A dispute arose as to the
allocation of shares of the estate in the form of farm land to the surviving
children. Applying both the Kenyan Succession Act and the Marakwet
customary law which would have applied to the deceased, the High Court had
held that larger shares would be allocated to the sons and smaller shares to the
daughters. The High Court’s reasoning was that although the Succession Act
would have mandated the allocation of equal shares, it was to be read in
conjunction with customary law. Sections 32 and 33 of the Succession Act
recognised customary law as a component part relevant applicable law.
[29] According to Marakwet customary law, inheritance was governed by Kenyan
patrilineal rules. Though sons could inherit, daughters could not. On this
understanding, the High Court determined that it would be correct to modify
what would have been the outcome had the Succession Act been the only
applicable law. It determined that though all the children would be allocated
share of the land, daughters would be allocated smaller shares as they would not
have been able to inherit the land under customary law. Another reason for
allocating smaller shares to daughters was that they were expected to exercise
the option of marrying and leaving home in the future, while sons traditionally
remained on the inherited land. In support of the claim of the daughters to equal
shares, it was contended on appeal to the Court of Appeal that awarded unequal
213 African Charter on Human and Peoples’ Rights Act of Nigeria (1990).
214 Abacha v Fawehinmi (2001) AHRLR 172 (Supreme Court of Nigeria).
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