In May 2018, the African Court on Human and Peoples’ Rights held that Mali’s 2011 Family Code violated women’s and children’s rights. Widespread protests halted the adoption of a more progressive draft Code passed by the Malian National Assembly in 2009. In Francophone Africa, family codes are legacies of the patriarchal 1804 Napoleonic Code whose reform has been contentious. Drawing from the work of Frances Olsen and Roland Barthes, anthropology of the state, African feminist thought, and critical comparative family law, I argue that by emphasising that the Code ‘reflect[s] socio-cultural realities’, Mali mobilises a myth of non-intervention of the state in the family. This myth serves to legitimate the postcolonial state which faces challenges concerning diversity, democracy, development, and secularism. Tracing the myth back to the Napoleonic Code and through French colonialism, I conclude that it helps to bolster the state while distorting the possibilities for more egalitarian reform.

Haitian people are all too familiar with courts expressing sympathy for their plight but ultimately closing the courtroom doors to them. In Sale v. Haitian Centers Council, the Supreme Court concluded its opinion denying relief by quoting the approval from Judge Edwards: 'Although the human crisis is compelling, there is no solution to be found in a judicial remedy.' That need not be the case here.'

The permissibility and application of derogation from human rights obligations in the African human rights system are far from clear. Based on the absence of a derogation clause in the African Charter on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights has interpreted the Charter as prohibiting derogation even in emergency situations. However, this interpretation is inconsistent with the Commission's practice of reviewing states of emergency during state reporting and creates confusion when considered together with the Commission's conflation of derogation and limitation as well as its references to non-derogable rights. The African Court on Human and Peoples' Rights is yet to pronounce itself on this question. Although Mali invoked a force majeure defence in APDF and IHRDA v Republic of Mali, the Court dismissed the defence without elaborating on its reasoning. As such, the article contends that the Court missed an opportunity to develop its jurisprudence on derogation.

No abstract

No abstract