A First for Women under the Maputo Protocol
By Osai Ojigho
When the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) was adopted 1 July 2003 by the African Union (AU), little did we realize that it will take 15 years for a regional court to pronounce on it. This was more surprising considering that the Maputo Protocol was the fastest ratified AU treaty to come into force within 3 years of its adoption on 25 November 2005.
Summary of Facts
The Abuja Environmental Protection Board (AEPB), a government agency responsible for waste collection and sanitation on the streets of Abuja, Nigeria around 2009 began carrying out raids in company of police officers and/or military officers often at night, conducted under the guise of ridding Abuja city of prostitutes. Many women were picked up each night and labelled as prostitutes just for walking at night and for no other reason. The women found outside of their homes at night picked up by this government agencies were physically assaulted, threatened with violence including been shot if they resist, verbally abused, and literally abducted into stationed vehicles used for that purpose. At detention centres, many of the women suffered or were threatened with beating, harassment, sexual assault and rape. Some were coerced to sign confessions and cash and valuables taken from them including mobile phones as payment for illegal bail or as bribes. Despite several complaints to the authorities including petitions to the Public Complaints Commission and editorials in national newspapers, the violence and abuse continued.
Four brave women (Dorothy Njemanze, Edu Ene Okoro, Justina Etim and Amarachi Jessyford) agreed to jointly bring an application for the enforcement of their human rights before the court. The decision to institute proceedings before the ECOWAS Court was based on many reasons. Primarily, to get faster access to justice. Nigerian courts like other national courts in Africa suffered much delays and cases could take years to be concluded. The ECOWAS Court, a supra-national court, set up by the ECOWAS treaty that unlike similar regional or continental courts, did not insist for applicants to show that they had exhausted local remedies before bringing a matter before it.
Other reasons include:
The victims and survivors are all community citizens as defined in the ECOWAS Treaty.
The security forces are state bodies or agents of Nigeria, who is a state party to the ECOWAS treaty. Access – The Court is situated in Abuja, Nigeria, where the violations occurred and where most of the victims and survivors live making it easier for them to attend hearings where possible. Precedent setting – An opportunity to develop precedent for gender-based violations and build on the success of the Hadijatou Mani Koraou v Niger case of 2008 (ECW/CCJ/JUD/06/08) which was a significant decision on a woman's right to be compensated for being subjected to slavery. The decision from the Court will have far-reaching implications for women's human rights not only in Nigeria but other countries in West Africa and potentially influence in other regions in Africa. [See Alliances for Africa, Advocacy brief: The Case for Gender Equality, Non-Discrimination and Freedom from Gender-Based Violence (September 2014) p.3] Strategic litigation can be daunting and these women by coming forward showed their resolve to fight for justice.
The case was filed on 17 September 2014 and was a joint action between Alliances for Africa, Institute for Human Rights and Development in Africa (IHRDA), Nigerian Women Trust Fund and the law firm of S.P.A. Ajibade with support from OSIWA (Open Society Initiative for West Africa). Hearing began on 25 May 2015 and despite some delays including adjournments required for the judgment to be translated into the 3 languages of the Court – English, French and Portuguese; Judgment was given in favour of these women on 12 October 2017. One of the applicants’ claim was ruled as statute-barred because the ECOWAS court can only admit cases within 3 years of them occurring. The other three applicants were awarded 6 million naira ($16,750) each as compensation.
Summary of Decision
The Nigerian state failed to protect the rights of the 1st, 3rd and 4th plaintiffs as there were multiple violations of Articles 1, 2, 3, 5, 18(3) of the African Charter on Human and Peoples’ Rights (ACHPR); Articles 2, 3, 4(1), 4(2), 5, 8 & 25 of the protocol to the African Charter on Human and Peoples’ rights on the Rights of Women in Africa (Maputo Protocol); Articles 2, 3, 5(a), & 15 (1) Convention on The Elimination of All Forms of Discrimination Against Women (CEDAW); Articles 2(1), 2(3), 3, 7 & 26 of the International Covenant on Civil and Political Rights (ICCPR); Articles 10, 11, 12, 13 & 16(1) the Convention Against Torture and other Cruel, inhuman or degrading treatment or punishment (CAT); Articles 1, 2, 5, 7 & 8 UDHR the Universal Declaration of Human Rights (UDHR). Failure of the Nigerian state to investigate and prosecute the allegations of mistreatment meted out to the plaintiffs
Treatment of the plaintiffs amounted to unequal gender discrimination and sexual and gender based violence. Treatment by the Security agents amounted to Cruel, Inhuman and Degrading Treatment (CIDT). The court found that there was arbitrary arrest, leading to violation of the applicants’ rights to liberty. That the verbal abuse meted to the applicants including labelling them prostitutes was humiliating and degrading and violated their rights to dignity and was gender based violence.
The AEPB and the other government agents had no basis for arresting and maltreating these women and labelling them prostitutes merely because they were found outside at late hours of the night. Only women were pick up and clearly this was a targeted and systematic attack against women because of their gender and amounted to gender-based discrimination. These cases were being monitored since 2009 and unfortunately women are still been harassed and picked up by AEPB and state security agents with no recourse to remedy. This must stop. The judgment gives a firm decision on gender based violence which is both a breach of women's human rights to dignity and freedom from discrimination. It offers a basis to urge Nigeria to stop impunity by government agents in abusing their position and authority to victimise women going about their daily and lawful activities. It also challenges the lack of investigation and prosecution of these cases of violence against women. The decision was clear on Nigeria’s responsibility to protect and fulfil its obligations under international law.
The Dorothy Njemanze & 3 Others v. Nigeria is very significant for the sole fact that it is the first time a regional justice or human rights institution has held a state in breach of protecting women’s rights as provided for in the Maputo Protocol. October 12, 2017 will go down in history as the day the landmark judgment was given and which has potential to change how we handle cases of gender-based violence and gender discrimination for the improvement of women’s lives and human dignity. By Osai Ojigho