Reconceptualising the first African Women's Protocol case to work for all women

Abstract

The ECOWAS Court of Justice is the first human rights body to find a violation of the African region's women's rights treaty, the African Women's Protocol. Nearly 15 years after the adoption of this Protocol, the ECOWAS Court determined in Dorothy Njemanze & 3 Others v Nigeria that the Nigerian state violated the rights of women because state agents assumed they were sex workers and, therefore, discriminated against them and treated them violently. Significantly, the Court determined that the state violated the women's rights to dignity, as well as their right not to be arbitrarily detained and arrested. However, a feminist analysis of this case reveals that the ECOWAS Court's judgment protected women who are not sex workers at the expense of sex workers' rights. This article critically examines how the ECOWAS Court developed its jurisdiction in this case, with a particular focus on how the Court's strategic avoidance of the topic of sex work resulted in a judgment that is harmful to sex workers. The article reconceptualises the Court's reasoning to provide alternative approaches for interpreting women's rights, especially sex workers' rights. By providing the ECOWAS Court judgment with an alternative approach,

Rethinking Dignity and Exploitation in Human Trafficking and Sex Workers’ Rights Cases

“…The judgment does not explicitly agree with that stance, but sadly, it does not directly refute Nigeria's claim. As O'Connell [26] argues, according to the judgment and quoting the plaintiffs' own filing, "there are two types of women, namely, those women who are humiliated by even the perception that they may be an ashawo ('prostitute'), and those women who in fact are sex workers. Rather than align themselves with the rights of all women, including sex workers who are women, the plaintiffs rebuffed the state's allegations that this case concerned sex work" (p. 516).…”

“…The court did not criticize the government for rounding up sex workers, nor did they even discuss the government's claim that sex workers were not entitled to international human rights. "The state made no attempt to deny that it condones the arbitrary arrest of women by its agents, revealing that in practice its officers are free to make judgments about who is and who is not a prostitute based on profiling, stereotypes, and individual bias" ( [26], p. 518). The court missed an opportunity to address how vague laws empower law enforcement to target disfavored groups (see the infamous case of Monica Jones in Arizona who was arrested for "manifesting prostitution" [27,28]).…”

Gender, Judging and the Courts in Africa

“…The CCJ did not provide a thorough analysis of each of the rights claimed by the women, e.g., rights to dignity, life, integrity, and security of the person, and to access justice and equal protection before the law. If it had done so, then the logical conclusion would be that every person, regardless of their social sta tus, is entitled to these rights (O'Connell, 2019). Moreover, the fact that the violence the applicants faced was linked to their alleged "business of commercial sex work" leaves the issue open for abuse by creating the impression that violence against sex workers is permissible (O'Connell, 2019).…”

“…If it had done so, then the logical conclusion would be that every person, regardless of their social sta tus, is entitled to these rights (O'Connell, 2019). Moreover, the fact that the violence the applicants faced was linked to their alleged "business of commercial sex work" leaves the issue open for abuse by creating the impression that violence against sex workers is permissible (O'Connell, 2019).…”

Are laws the appropriate solution: The need to adopt non-policy measures in aid of the implementation of sex discrimination laws in Nigeria

“…7 Furthermore, in 2017, the ECOWAS Court of Justice relied on the Protocol in the case of Dorothy Njemanze & ors v Nigeria 8 to hold Nigeria responsible for violating the rights of women who were illegally arrested as suspected prostitutes. It was the first time a human rights institution used the Protocol to hold a state in breach of protecting the rights of women (O’Connell, 2019). It has been argued that the Charter has had a direct and positive impacts on women’s rights (Ekhator, 2019).…”