The limits to legal reform focused on the state: the case of Mali

2016 Squire MatthewBy Matthew Squire

With only a few days remaining of my internship, I am only just beginning to appreciate how much I have learned this summer.  I have had the opportunity now to work on four cases that IHRDA is preparing, several presentations, and countless other research tasks.  One thing especially that has impressed me this summer is the extent to which the organization is aware of the context in which it works, concentrating its work in key areas that appear to have realistic prospects for incremental change.

This awareness of the context is something, however, that does not seem universally shared, especially among governments from the global North working on human rights.  Some work I conducted this summer revolved around family law reform in Mali.  The reform of Mali’s family law was an initiative in which Canada was heavily involved, an involvement I still have issues and questions about.

The limits of state-focused development initiatives?

Canada’s involvement in Mali’s law reform was part of the post-cold war movement in the global North towards sponsoring democratization in the global South.

Following the end of the Cold War, building up civil society became one of the buzzwords of the international development community.[1]  USAID, the World Bank, and other development institutions began including initiatives to build up civil society in the global South as part of their operational plans. [2]  According to Professor Thomas Kelly, the Global North has become convinced that a buoyant NGO sector is key in the development of a strong democracy, both because of role of NGOs in the development of western countries, and because of the role that NGOs could play in moving away from authoritarianism.[3]

Kelly claims, however, that governments and donors from the global North “…had a particular sort of NGO in mind, even if they did not say so.  What they meant was advocacy organizations, led by Western-oriented intellectuals, lawyers, entrepreneurs, academics, and teachers, all devoted to public interest causes such as the environment, human rights, women’s issues, election monitoring, anti-corruption, and other things that we in the Global North tend to applaud.”[4]

In the West African context, Kelly highlights two side-effects of this focus.  First of all, Kelly points to disconnect between NGOs dominated by western-oriented, educated individuals and the populations they purportedly represent.  Second of all, Kelly argues that these NGOs, by being focussed on the state, tend to ignore important forms of African social organization that happen outside of a state context – organizations such as tribal groups, clans, and Islamic religious organizations.[5]

Contrary to Kelly, I believe that such disconnect and such state focus is necessary to a certain degree.  The world, like it or not, is organized today into states.  Many violations of human rights in the African context have been and are being perpetuated by states.  To remedy this thus entails change to the state, and organizations working on these issues, such as IHRDA, do have the possibility to effect change.

Where this disconnect and state focus may be more problematic is in dealing with harm inflicted on individuals by individuals, especially inflicted in the context of traditional practices.  In this context, is a focus on the state really the best way to affect change?

Case study: Mali’s new family code of 2011

Mali: a secular elite, growing influence of religious movements 

Mali inherited the principle of “laicité” when it became independent from France, with both the 1960 and 1992 constitutions proclaiming Mali a “republique laique.”[6]  In contemporary Mali, the elites of society – the bureaucrats, the career politicians, the lawyers, the civil servants – are mostly educated in state-run secular French language schools.[7]  The attitude of these elites to religious leaders is not particularly favourable.  Many of those having completed the French school system see Muslim religious scholars as old-fashioned and regressive, for example.[8]

Recently, however, the laicité of the elites is coming under increasing pressure from Islamic civil society.  Religion has come to play a much larger role in Malian society.[9]  Islam’s important place in the public sphere of Mali originates in the restructuring of the economy that colonisation brought.  In the colonial Muslim-controlled economy centered on colonial towns, conversion to Islam was often a requirement to participation.[10]  This led to conversions and an increased public role for Islam in public day-to-day life in West Africa.  Following independence, the new governments continued to tightly control Islam, as the colonizers did before them.[11]  In Mali, for example, the socialist government of Modibo Keita shortly after independence pushed Islamic organizations underground.[12]  The regime of Moussa Trauré, who came to power in a 1968 coup, attempted to use Islam for political goals, establishing the Malian Association for the Unity and Progress of Islam (AMUPI) in 1980 to control and direct Islamic energies.[13]

After the 1991 coup d’état in Mali, freedom of association was established.  In the democratic spaces that were created, Islamic organizations have taken advantage of the opportunity to finally contribute to public discourse.[14]  Since 1991, despite efforts to retain Mali as a secular state, Islamic associations began to play a much more important role in Malian politics.[15]  With the emergence of new communications technologies, easy access is provided to some Muslim leaders. [16]  In multiethnic but majority Muslim societies like Mali, Islam has come to play a powerful unifying force.

Today, compared with politicians and governments, Malians have a high degree of trust in religious and traditional leaders.[17]  In addition, this increasingly active, and trusted, Islamic civil society is advocating for a more public role for religion, in direct opposition to political elites.[18]  It is not surprising that, in this context, a 2009 Family Code reform project conducted without the engagement of Islamic civil society failed.  As Thomas Kelly commented on a similar reform of the Niger Family Code, “a legislative reform effort aimed primarily at increasing women’s standing in society opened up a field for conservative religious forces to mobilize popular discontent by entering the civil society sector – with its freedom of expression and of association – and offering a vision of Islamic cultural autonomy as an alternative to political dependence on the West.”[19]

2009 Family Code reform failure

Mali, unlike most African countries, has ratified almost all the major international human rights treaties.  International donors, among them Canada, have been funding a series of comprehensive reforms to Mali’s legal system since the country’s transition to democratic rule in the 1990s to, among other things, improve women’s rights protections.[20]

In 2009, with almost unanimity, the national assembly of Mali adopted a new family code.  This new code continued a stipulation from the post-independence that marriage was “laique”,[21] eliminated a 1962 provision that required women to obey their husbands,[22] raised the minimum age of marriage to 18 years old for both men and women (the previous minimum age for women was 15, 18 for men),[23] and provided for a legislated regime to cover successions.  This regime covering successions provided for the equal treatment of men and women in inheritance, as well as equal treatment between legitimate and illegitimate children.[24]  The previous legal regime established that married couples would refer to their own religious or customary law to determine who would get what.[25]  Under Islamic traditions, women generally inherit only half of what men inherit, and children born outside of marriage do not have any automatic rights to a succession.  The code, however, did allow for citizens to use their religious or customary law to cover successions, but to do this, they would have to create a testament with the aid of a notary.[26]

This 2009 code, despite the overwhelming support of elected members of the national assembly, was never promulgated into law.  The 2009 code was overwhelmingly rejected by the principal Islamic organizations in Mali.  Islamic organizations claimed that the 2009 vote in the national assembly was a sign of the enslavement of the government to international aid money and the international movement to liberate women. [27]   Islamic organizations signalled the need to preserve Islamic values against an onslaught of western imperialism.[28]  Faced with this opposition, the Malian president Amadou Toumani Touré refused to sign the code into law and, with the aid of a commission composed of parliamentarians and representatives of Islamic organizations, a new code was drafted.  On December 2, 2011, the National Assembly adopted the new code.  This code was promulgated into law shortly after.[29]

The 2011 family code

The 2011 family code retained the 1962 provision that required wives to obey their husbands.[30]  It also lowered the age of consent for girls to enter into marriage to 16 years old, without the consent of her parents required.[31]  The 1962 code had, in contrast, allowed girls under 18 to be married only with the consent of both parents.[32]  In exceptional circumstances, the code allows for the marriage of 15 year-old girls, so long as her father gives his consent.[33]  Compare this to the 1962 code where both the father and the mother had to give consent for the marriage of a 15 year old girl.[34]  These provisions are clearly in violation of regional and international human rights mechanisms which require that the minimum age of marriage should be 18.

The new 2011 family code also established that marriage is no longer “laique”, as the 1962 and 2009 codes provided.[35]  It legalizes religious marriages in the country, something that was of great concern to women’s rights campaigners.  The new code effectively creates two legal regimes covering marriage, one requiring the full consent of both parties in front of an officer of the state, with fines and prison sentences established if he or she violates the code, and another for religious officials that is entirely absent of such provisions.[36]   As traditional and religious marriages in Mali are normally performed without either of the future spouses present, and given local customs and conditions, especially in rural areas, that encourage marriage in childhood, this new code effectively legalizes and legitimizes forced and child marriages, a violation of regional and international human rights mechanisms.

In addition, another very controversial provision from the 2009 code was altered.  Islamic organizations complained that the lack of notaries in Mali effectively required individuals to manage their succession using the provisions of the Code.[37]  As such, the 2011 reverses the 2009 code by establishing the default succession regime as religious or customary law, only allowing those whose religion or custom is unknown or those having made a testament with the aid of a notary to make use of the egalitarian provisions of the code.[38]

The way forward? 

In Mali, foreign donors from the global North, Canada included, backed a wide-ranging series of reforms to Mali’s legal system to improve rights for women, without engaging all stakeholders in the project.  In the end, this project resulted in a legal regime where women now have less protection than they had under the 1962 code.

What is the way forward?  Thomas Kelley comments on the issue: “…having supported the implementation of structures that permit, even encourage, open, society-wide debate about the nature of justice and governance, it is impractical, and frankly unseemly for westerners to attempt to intervene when we disapprove of the principles and structures that our ostensible tutees have devised.” [39]

In a 2011 publication by the NGO Focus on Land in Africa, the authors suggest to advocate’s for women’s rights that legal change should not outpace social change: “Advocates for women’s rights must be willing to invest time in understanding local norms and their rationales, working with women and their communities to envision the changes that are important to them, and devising workable solutions to achieve those ends. While such an approach may be iterative, slow and fraught with set-backs, it is also less prone to fierce resistance or conflict and is more likely to appropriately serve women’s interests.” [40]

 

 

[1] Thomas Kelley, “What!  That’s Not What We Meant by Civil Society!: Questioning the NGO Orthodoxy in West Africa” (2010-2011) 36:3 Brook J INT’L L 993 at 995.

[2] Ibid at 996.

[3] Ibid at 999.

[4] Ibid at 1001.

[5] Ibid at 1001-1002.

[6] Alex Thurston, “Towards an ‘Islamic Republic of Mali?’” (2003) 37:2 Fletcher F World Aff 45 at 47.

[7] Ibid at 61.

[8] Benjamin F Soares, “Islam in Mali in the Neoliberal Era” (2005) 105:418 African Affairs 77 at 84 [Soares 2005].

[9] Tone Sommerfelt, Anne Hatloy, & Kristen Jesnes, “Religious reorientation in Southern Mali – A summary” (2015), Fafo, online: <http://www.fafo.no/~fafo/images/pub/2015/20424.pdf> at 7.

[10] Robert Launay & Benjamin F Soares, “The formation of an ‘Islamic sphere’ in French Colonial West Africa” (1999) 28:4 Economy and Society 497 at 506 [Soares and Launay].

[11] Kelley, supra note 1 at 1006.

[12] Thurston, supra note 6 at 49.

[13] Ibid.

[14] Kelley, supra note 1 at 1005 – 1006.

[15] Thurston, supra note 6 at 50.

[16] Soares and Launay, supra note 10 at 515.

[17] Ibid.

[18] Soares 2005, supra note 8 at 86.

[19] Kelley, supra note 1 at 1008.

[20] Benjamin F Soares, “The Attempt to Reform Family Law in Mali” (2009) 49:3/4 Islam in Contemporary West Africa 398 at 416 [Soares 2009]

[21] Ousmane Koné, “Le controverse autour du code des personnes et de la famille au mali: enjeux et strategies des actuers,” (September 2015), Université de Montréal (Doctoral Thesis), online : < https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/13576/Kon%C3%A9_Ousmane_2015_these.pdf?sequence=2&isAllowed=y> at 4.

[22] Boubacar Haidara, “Les formes d’articulation de l’islam et de la politique au Mali,” (2015), HAL (Doctoral Thesis), online : <https://halshs.archives-ouvertes.fr/tel-01319122/document > at 340.

[23] Ibid at 337.

[24] Koné, supra note 21 at 129.

[25] Ibid.

[26] Ibid at 129-130.

[27] Ibid at 33.

[28] Ibid at 34.

[29] Ibid at 3-4.

[30] Portant Code des personnes et de la famille, Law No 11-080/AN-RM, 30 December 2011, online : < http://www.demisenya.org/wp-content/uploads/2013/03/mali-code-personnes-famille-2-decembre-2011.pdf> art 316 [Code 2011].

[31] Ibid, art 281.

[32] Code du mariage et de la tutelle, Law No 62-17/AN-RM, 3 February 1962, online : < http://jafbase.fr/docAfrique/Mali/CodMariage.pdf> art 11 [Code 1962]. 

[33] Ibid, art 284.

[34] Code 1962, supra note 32 art 11.

[35]Code 2011, supra note 30 art 20.

[36] Code 2011, supra note 30 art 283-287, art 299, art 300-305.

[37] Koné, supra note 21 at 134.

[38] Code 2011, supra note 30 art 751.

[39] Kelley, supra note 1 at 1009.

[40] Kelsey Jones-Casey, Anna Knox, & Zoey Chenitz, “Women, Inheritance, and Islam in Mali,” (2011), Focus on Land in Africa, online: < http://www.focusonland.com/fola/en/countries/brief-women-inheritance-and-islam-in-mali/>.

 

Torture Briefs and Up-river Explorations

2016 Squire MatthewBy Matthew Squire

I have now been in The Gambia interning at the Institute for Human Rights and Development in Africa for over seven weeks now.  So far, my time here in The Gambia has mostly been spent working, working out, and exploring the country.  

Crossing the River Gambia from Barra to Banjul

Crossing the River Gambia from Barra to Banjul

Work at IHRDA

On my first day, I was plunged into the deep end.  IHRDA at the moment has a significant number of projects on the go in French, so there has been no lack of work for the McGill intern!  Jetlagged and disoriented, I was given two dossiers of evidence to sort through and summarize my first day.  As it turns out, I would end up drafting the briefs of these two cases as well.  I just finished the second draft for each, and I have learned a lot in the process about the African human rights system.

My two cases were both from the same African country and dealt with torture and arbitrary extrajudicial killings by agents of the state.  The facts of both cases were strikingly similar and involved alleged horrific acts of torture by police officers, leading to death, permanent injury and disability.  In both cases, the state allegedly tried to cover up the acts.  From what I can tell from the evidence, medical reports and autopsies were not conducted, eyewitnesses changed their testimonies, investigators made no attempt to interview key eye-witnesses, and even after charges were laid, the accused were never brought before the court despite being summoned.  Years onwards from the incidents, the trials have yet to produce any result, and the victims have yet to receive any compensation.

Both of these cases are being brought before the ECOWAS court.  IHRDA is making more use of alternative mechanisms to the African Commission these days – it can take years for the Commission to reach a decision.  Since an amendment to its treaty in 2005, the ECOWAS court can now hear human rights cases brought by individuals.[1]  In theory, judgments of the ECOWAS court are also binding, unlike the Commission. 

The legal arguments of my briefs were built around the legal instruments that the state has ratified.  Using the jurisprudence of the African Commission, the Interamerican and European court systems, and the UN committees, as well as general comments from various UN bodies, I argued that the state was responsible for not exerting the required diligence to prevent, investigate, and remedy the alleged acts of torture and killings. 

In terms of remedies, in addition to demanding individual remedies for the victims, I asked for the strengthening of the country’s laws against torture, as well as for programs to build awareness among the law enforcement agencies and the population at large on human rights to try and prevent these kinds of acts in the future.

I still wonder at the end of the day what impact these cases will have.  From what I can tell, these are going to be the first cases on this issue brought against this state, which is really exciting.  However, the record for human rights cases in Africa, even for cases at the ECOWAS court, is not exactly promising, with very few decided cases compared to the number of violations. 

The ECOWAS court does, however, have an implementation procedure for its decisions, unlike the African commission.  Following a decision against a member state, a “competent national authority” of the state must be designated to receive a “writ of execution.”[2]

In one case, Manneh v. The Gambia, it was found that The Gambia had violated the African Charter for arresting and detaining without a warrant a prominent journalist, Chief Manneh.[3]  In this case, The Gambia responded with denial that it was holding or had ever held Manneh.  In this case, ECOWAS, despite having the power to, declined to impose sanctions on The Gambia.[4] 

In another case, Koraou v. Niger, Niger was found responsible for the actions of its judiciary for not taking steps to stamp out slavery.  Hadijiatou Mani Koraou, who had suffered horrendous sexual abuse for ten years as a slave in the household of an older man, brought an action in a local court to regain her freedom.   In the judgement of March 20, 2006, the local court asserted that she was free.  However, on appeal to the High Court, the judge stated, “The marriage of a free man with a slave woman is licit, in as far as he does not have the means of marrying a free woman, and if he fears falling into fornication.”[5] For this statement, Niger was found responsible, as it did not immediately denounce Hadijiatou’s status as a slave and did not institute proceedings against her captor.[6]  In this case, it has been noted that the government of Niger responded, unlike the government of The Gambia, because the decision gave support to political efforts to eradicate slavery at the domestic level.[7]  

Perhaps there is promise for change with these cases I have been preparing.  The country against which these cases are being brought has been making progress in improving governance and human rights, especially in improving violations committed by the security forces.  Maybe like with the Niger case, a decision from the ECOWAS court could strengthen trends of reform inside the country.  However, even with the ECOWAS court, it will take time.  A case filed by IHRDA last year only just received its hearing date, which is still several months away. 

At the end of the day, I guess you have to stay optimistic if you are working in human rights. It would be so easy to become pessimistic about the prospects for success for many of the projects that IHRDA is working on 

Life as an intern in The Gambia  

Full days of legal research and writing can be draining.  I really have been appreciating making use of my “off-time” to relax and explore the country a bit. 

Sunday afternoon football on the beach

Sunday afternoon football on the beach

Staying fit seems a big part of life here. I run several times a week down on the beach, where it’s normal to see large crowds of guys doing squats and pushups on the beach at any time of the day.  I also joined the local gym near where I am living.  It is in general really overcrowded.  Now that it is Ramadan, the busiest time is around 6-7:30 pm, with people trying to get in an intense workout before breaking their fast. 

There is not a whole lot in terms of things to do in and around Serrekunda, where I am staying, other than the beach and the nightlife, as well as a couple of tourist attractions.  The Gambia is a popular tourist destination for European holidaymakers, but there is a contingent of generally older female and male holidaymakers here for sexual tourism, which makes me very uncomfortable. 

Monkeys at Bijilo Forest Park in Kokoli

Monkeys at Bijilo Forest Park in Kokoli

I have made two trips outside of the city since I have been here.  On my first trip, I went to visit the approximately 2000 year old stone circles of Wassu and Ker Batch.  These monuments, more of which are found in neighboring Senegal, are believed to be ancient burial sites.  On this trip I also unwittingly stumbled into the president’s “Vision 2016” tour of the country, however, where I got a little too close for comfort to the 100 some-odd military vehicles that make up his convoy.  There has been political unrest in the capital Banjul in the past few months, and I was very nervous to suddenly come face to face with the president and his security detail. 

Wassu Stone Circles

Wassu Stone Circles

On my second trip, I visited the Chimp Rehabilitation Project in the River Gambia National Park.  An inspiring project, the original founders rescued chimps from captivity and trained them to survive in the wild.  The chimps are now confined to three large islands in the middle of the River Gambia, and for over a decade have had no human interference with their territory.  Project staff, however, do supplement the diet of the chimps daily.  The project receives very little outside funding, and relies mostly on the income from its very well-run and very comfortable tourist camp, of which I was the only visitor since April.  I was very pleased to see a sustainable ecological project that also provides jobs for the local community in this country. 

Beautiful Chimp in River Gambia National Park

Beautiful Chimp in River Gambia National Park

From what I have seen so far, it seems such a shame to me that so much focus and emphasis has been put on the country’s low-budget beach and nightlife tourism, at the expense of fascinating historical sites like the stone circles, the country’s beautiful ecology, and well-run sites such as the Chimp Rehabilitation Project. 

The end in sight

I have only five weeks remaining here in The Gambia.  I am finding the work at IHRDA fascinating and very rewarding, and I am looking forward to working on several new cases coming up in the final few weeks.   I am also looking forward to the two upcoming long weekends, both of which I plan to make use of to visit neighboring Senegal, a country culturally similar but politically different from The Gambia.   

[1] Frans Viljoen, International Human Rights Law in Africa, 2nd ed (Oxford: Oxford University Press, 2012) at 490. 

[2] Ibid at 498. 

[3] Ibid.

[4] Ibid at 498. 

[5] Hadijatou Mani Koraou v Niger (2008), ECW/CCJ/JUD/06/08, online : IHRDA <http://caselaw.ihrda.org/doc/ecw.ccj.jud.06.08/> at para 83. 

[6] Ibid at paras 83-84. 

[7] Viljoen, supra note 1 at 498.  

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