Silences that speak volumes: the significance of the African Court decision in APDF and IHRDA v Mali for women’s human rights on the continent

Abstract

The first judgment of the African Court on Human and Peoples’ Rights interpreting the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol), Association pour le Progrès et la Défense des droits des Femmes Maliennes (APDF) and The Institute for Human Rights and Development in Africa (IHRDA) v Mali, sets an important precedent for women’s human rights in Africa both through its explicit findings and through two key ‘silences’, or areas where the Court does not directly address Mali’s arguments. Situated within a case concerning provisions of Mali’s Persons and Family Code of 2011, these silences emphasise the applicability of women’s human rights in diverse African socio-cultural contexts. This case commentary takes an interdisci-plinary approach drawing on doctrinal legal research methodology and legal anthropology in order to situate the analysed case in a broader socio-cultural and historical context. Highlighting the significance of Family Code reform for women’s status and attendant rights, the case discussion analyses the implications of the decision’s silences. The first concerns Mali’s argument that force majeure precludes legal wrongfulness and the second emerges from Mali’s claim that it did not violate human rights but adapted the law to reflect ‘social realities’. This case discussion contends that although elaboration of the Court’s reasoning would have developed jurisprudence on force majeure, the Court properly refrained from directly addressing the latter argument, which rehashes debates about human rights universality versus cultural relativism. Nevertheless, the case serves as a powerful reminder of the need for further reflection on this enduring tension, and the case commentary accordingly makes recommendations for future research. Thus, even the Court’s silences have potential to strengthen women’s recourse for human rights violations in Africa because they implicitly reject the notion that either violet opposition to human rights norms or seemingly divergent socio-cultural realities justify derogation.