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[1] The applicant, Hadijatou Mani Koraou, is a
Niger national, and a citizen of the Economic Community of West African
States (ECOWAS).
[2] The applicant, present in court, is unemployed and resides at the
village of Louhoudou, in the department (administrative division) of Konni.
Her counsel is Abdourahaman Chaϊbou-Nanzir (a professional partnership of
lawyers), a legal firm registered with the Court of Appeal of Niamey, in the
Republic of Niger, and she is assisted by Mrs Helena Duffy and Mr Ibrahima
Kane of Interights, London.
[3] The defendant, the Republic of Niger, is a member state of the Economic
Community of West African States (ECOWAS).
[4] The defendant is represented by Mossi Boubacar Esq and Partners, lawyers
registered with the Court of Appeal of Niamey, in the Republic of Niger.
[5] The applicant brings a complaint against the defendant for violating her
fundamental human rights, asks the Court to find such violation, and to
sanction the defendant.
[6] The defendant raised a preliminary objection of inadmissibility of the
application.
[7] The Court decided to join the preliminary objection to the merits, in
accordance with article 87(5) of its Rules of Procedure.
PRESENTATION OF THE FACTS AND PROCEDURE
[8] In 1996, aged 12 years by then, the applicant, Hadijatou Mani Koraou of
Bouzou customary background, was sold by the head of the Kenouar tribe, to
El Hadji Souleymane Naroua of Hausa customary background, aged 46, for the
sum of 240 000 CFA Francs.
[9] This transaction was carried out within the context of wahiya, a
practice obtaining in the Republic of Niger, which consists of acquiring a
young girl, generally under the conditions of servitude, for her to serve
both as domestic servant and concubine. A woman slave who is bought under
such conditions is called a sadaka, or �the fifth wife�, that is to say, a
woman outside those legally married (the number of which cannot exceed four,
in accordance with the recommendations of Islam).
[10] The sadaka generally carries out the domestic chores and caters for the
�master�. The latter can, at any time, during the day or night, engage her
in sexual relations.
[11] One day, while she was working on her master�s fields, he came and
pounced on her and sexually abused her. This initial, forced sexual act, was
imposed on her under the aforesaid condition, at a time when she was still
less than 13 years old. The applicant often became a victim of violent acts
perpetrated by her master, in cases of presumed or real insubordination.
[12] For about nine years, Hadijatou Mani Koraou served in the house of El
Hadj Souleymane Naroua, carrying out all sorts of domestic duties and
serving as a concubine for him.
[13] On 18 August 2005, El Hadj Souleymane Naroua issued Hadijatou Mani
Koraou with a certificate of emancipation (as a slave). This deed was signed
by the beneficiary, the master, and countersigned by the chief of the
village, who affixed his seal thereto.
[14] Following the said deed of emancipation, the applicant decided to leave
the house of the man, who not too long before then was her master. The
latter refused to let her go, upon the grounds that she was and remained her
wife. Nevertheless, upon the pretext of going to visit her sick mother,
Hadijatou Mani Koraou finally left the house of El Hadji Souleymane Naroua.
[15] On 14 February 2006, Hadijatou Mani Koraou brought her case before the
Konni Civil and Traditional Court, to assert her desire to regain her total
freedom and go and live her life elsewhere.
[16] As regards the said request, the Konni Civil and Traditional Court, in
its judgment No 6 of 20 March 2006, found �that there had never been a
marriage in the proper sense of the word, between the applicant and El Hadji
Souleymane Naroua, because there had never been the payment of any dowry, or
any religious celebration of marriage, and that Hadijatou Mani Koraou was
free to start her life all over with any person of her own choice�.
[17] El Hadji Souleymane Naroua filed an appeal at the Konni High Court,
against the judgment of the Konni and Traditional Court. By Ruling No 30,
delivered on 16 June 2006, the Konni High Court reversed the contested
judgment.
[18] The applicant filed before the Judicial Chamber of the Supreme Court of
Niamey, and appeal for the annulment of the latest decision, by asking for
�the application of the law against slavery and slavery-related practices�.
[19] On 28 December 2006, the Supreme Court, by judgment 06/06/Cout, quashed
the Konni High Court ruling, on grounds of violation of article 5(4) of Law
2004-50 of 22 July 2004 in regard to the judicial set-up of Niger, without
making any declaration on the question concerning Hadijatou Mani Koraou�s
status as a slave. The matter was adjourned before the same court,
differently composed, for re-examination.
[20] Before proceedings were brought to a conclusion, Hadijatou Mani Koraou,
who had returned to her paternal home, contracted a marriage with one Ladan
Rabo.
[21] Having learnt of the marriage of the applicant to Ladan Rabo, El Hadj
Souleymane Naroua filed on 11 January 2007 a case of bigamy against her
before the Konni Gendermerie Squad, who took down a statement of the case
and transmitted it to the state prosecutor at Konni High Court.
[22] By judgment No 107 of 2 May 2007, the criminal division of the Konni
High Court sentenced Hadijatou Mani Koraou, her brother Koraou Mani and
Ladan Rabo to six months imprisonment without remission and imposed a fine
of CFA F 50 000 on each of them, in compliance with article 290 of the Penal
Code of Niger, which punishes the offence of bigamy. In addition an arrest
warrant was issued against them.
[23] The same day, Hadijatou Mani Koraou filed appeal against the said
judgment. Despite that, on 9 May 2007, Hadijatou Mani Koraou and her brother
Koraou Mani were incarcerated at the Konni prison, in compliance with the
arrest warrant issued against them.
[24] On 17 May 2007, while Hadijatou Mani Koraou was still in detention,
SPCA Chaϊbi-Nanzir (a professional partnership of lawyers), Hadijatou Mani
Koraou�s counsel, filed a case before the state prosecutor at the Konni High
Court, bringing a charge against Souleymane Naroua, for criminal offence of
slavery, relying on article 270 (2) and (3) of the Penal Code of Niger as
amended by Law 2003-025 of 13 June 2003. The case, which was still pending,
was being examined under number RP 22, RI 53.
[25] Concurrent with these criminal proceedings, the Konni High Court, while
adjudicating upon the case which was adjourned after being quashed by the
Supreme Court, in Judgment No 15 of 6 April 2007, �found in favour of
Hadijatou Mani Koraou�s divorce action; � declared that she shall observe a
minimum legal period of three months of widowhood before any remarriage�.
[26] El Hadj Souleymane Naroua filed an appeal seeking the annulment of the
last decision.
[27] On 9 July 2007, while adjudicating on the appeal brought by Hadijatou
Mani Koraou against the decision of the criminal division of the Konni High
Court, the Criminal Chamber of the Court of Appeal of Niamey �ordered in a
preliminary ruling, the provisional release of the applicant from prison,
together with her brother, ordered the automatic revocation of the arrest
warrant issued against Ladan Rabo, and stayed examination of the merits
pending the final decision of the divorce judge�.
[28] On 14 September 2007, Hadijatou Mani Koraou seized the Community Court
of Justice, ECOWAS, upon the basis of articles 9(4) and 10(d) of the
Supplementary Protocol A/SP.1/01/05 of 19 January 2005 amending Protocol A/P.1/7/91
of 6 July 1991 on the Court, for the purposes of requesting the Court to:
(a) Charge the Republic of Niger for violation of articles 1, 2, 3, 5, 6 and
18(3) of the African Charter on Human and Peoples� Rights;
(b) Demand that the authorities of Niger introduce a new legislation which
actually protects women against the discriminatory customs in issues of
marriage and divorce;
(c) Ask the authorities of Niger to revise the laws relating to courts and
tribunals in such a manner that justice may fully play its role as a
guardian of the rights of persons who are victims of the practice of slavery;
(d) Require from the Republic of Niger that it abolishes harmful customs and
practices founded upon the idea of inferiority of women;
(e) Grant fair reparation to Hadijatou Mani Koraou, for the harm she had
suffered during her nine years of captivity.
[29] The defendant raised a preliminary objection, to the effect that:
(a) The application was inadmissible, for lack of exhaustion of local
remedies;
(b) The application was inadmissible, due to the fact that the case brought
before instant Honourable Court was still pending before the domestic courts
of Niger.
[30] In compliance with article 87(5) of its Rules of Procedure, the Court
of Justice of ECOWAS joined the preliminary objection to the merits, to
adjudicate by virtue of one and the same judgment.
[31] At the 24 January 2008 proceedings, scheduled for the hearing of the
parties, counsel for the applicant, citing her state of extreme financial
poverty, and the necessity of hearing witnesses residing in Niger (whose
transport costs to Abuja seemed to be beyond the financial capacity of the
applicant), requested that the Court�s session be transferred to Niamey or
any other venue in the Republic of Niger.
[32] Counsel for the defendant averred that �he did not mind if the court
session was held outside the seat of the Court� but did, all the same, draw
the Court�s attention �to negative media coverage and a possible
politicization of the proceedings�, before concluding upon the pointlessness
of holding such a session in Niger.
[33] By its preliminary ruling ECW/CCJ/APP/08/08 of 24 January 2008, the
Court ordered that the court session be held at Niamey in compliance with
article 26 of the 1991 Protocol on the Court.
[34] At the hearing of 7 April 2008, at Niamey, the Parties as well as their
witnesses appeared in court.
CONSIDERATION OF THE PARTIES� PLEAS-IN-LAW
AS TO THE PRELIMINARY OBJECTION
[35] The Republic of Niger raised, in limine litis, the inadmissibility of
the application on grounds of non-exhaustion of local remedies, on one hand,
and on the other hand, upon the grounds that the case brought before the
Court of Justice of ECOWAS was still pending before the national courts of
Niger.
REGARDING NON-EXHAUSTION OF LOCAL REMEDIES
[36] While acknowledging that the condition of non-exhaustion of local
remedies does not form part of the conditions of admissibility of cases of
human rights violations brought before the Court of Justice of ECOWAS, the
Republic of Niger considered such absence as a lacuna which should be filled
by the Court.
[37] Beside, counsel for the defendant further averred that it is the rule
of exhaustion of local remedies, which enables one to assert whether a state
sufficiently or insufficiently safeguards human rights on its territory. He
furthermore averred that the protection of human rights by international
mechanisms is only a subsidiary protection which is available only when a
state, on the national plane, has failed to fulfil its duty of ensuring the
observance of such rights.
[38] Furthermore, by relying on article 4(g) of the Revised Treaty of ECOWAS,
the defendant maintained that the Court of Justice of ECOWAS must apply
article 56 of the African Charter on Human and Peoples� Rights, to make up
for the silence of the texts governing the operation of the Court,
particularly as regards the preliminary exhaustion of local remedies.
[39] Even if it is irrefutable that the protection of human rights by
international mechanisms is subsidiary in nature, it is no less true that
such subsidiary nature of the protection has undergone, for some time now, a
remarkable evolution which translates into a very flexible interpretation of
the rule of exhaustion of local remedies. At any rate, this was what the
European Court on Human Rights was saying, in its judgment on the case
concerning De Wilde, Ooms and Versyp v Belgium, 18 June 1971, when it found
that �in accordance with the evolution of international practice, states may
well renounce the benefits of the rule of exhaustion of local remedies�.
[40] In refraining from making the rule of preliminary exhaustion of local
remedies a condition for admissibility of applications filed before the
Court, the Community lawmaker of ECOWAS has undoubtedly responded to this
call. The renunciation of such a rule is binding on all the member states of
ECOWAS and the Republic of Niger cannot claim to be an exception in that
regard.
[41] Moreover, in affirming in article 4(g) of the Revised Treaty that
�recognition, promotion and protection of human and peoples� rights in
accordance with the provisions of the African Charter on Human and Peoples�
Rights�, the Community lawmaker simply intended to subsume that instrument
in the law applicable before the Court of Justice of ECOWAS.
[42] The adherence of the Community to the principles of the Charter
signifies that in the absence of ECOWAS legal instruments relating to human
rights, the Court insures the protection of the rights spelt out in the
Charter, without necessarily proceeding to do so in the same manner as would
the African Commission on Human and Peoples� Rights.
[43] Indeed, from the interpretation of article 4(g) of the Revised Treaty,
one cannot deduce that the modalities for the protection and promotion of
human rights by the Court must be those provided for by the Charter.
[44] A distinction must be made between the setting out of the fundamental
principles of the Charter (part I), and the modalities for implementing such
rights (part II). These modalities comprise the creation of the Commission (article
30), its composition (articles 31 to 41), its functioning (articles 42 to
45) and the procedure to be followed before it (articles 46 to 59), whereas
the Revised Treaty of ECOWAS on its part, has prescribed other mechanisms to
the Court of Justice of ECOWAS, for implementing these same fundamental
principles.
[45] In the final analysis, there are no grounds for considering the absence
of preliminary exhaustion of local remedies as a lacuna which must be filled
within the practice of the Community Court of Justice, for the Court cannot
impose on individuals more onerous conditions and formalities than those
provided for by the Community texts without violating the rights of such
individuals.
[46] In tracing the origins of the entire pleadings filed before the
national courts of Niger, the defendant averred that on 14 February 2006,
the applicant brought a divorce case before the Konni Civil and Traditional
Court; that the said court decided in favour of his request; that following
the appeal filed, the judgment was reversed; that the reversed decision made
upon appeal was quashed by the Supreme Court; that the decision made after
the quashing, with an adjournment, was in favour of the applicant; that a
second appeal was made by the defendant against the last decision, and that
the Supreme Court has not yet brought its proceedings on the matter to a
close.
[47] The defendant further averred that on 11 January 2007, a criminal
proceeding was initiated against the applicant; that an appeal was filed
against the criminal sentence made against the applicant and her co-accused,
delivered on 2 May 2007; that the Court of Appeal Niamey, after ordering the
release from prison of the applicant and her brother, adjourned proceedings,
pending the determination of the civil proceedings.
[48] In this case, is there any basis for Hadijatou Mani Koraou, who has
already seized the domestic courts, to bring her case before the Court of
Justice of ECOWAS, whereas the said national courts have not exhausted their
proceedings on the case?
[49] In the terms of the provisions of article 10(d) of the Supplementary
Protocol A/SP.1/01/05 relating to the Community Court of Justice, ECOWAS:
Access to the Court is open to � individuals on application for relief for
violation of their human rights � the submission of application for which
shall i) not be anonymous; nor ii) be made whilst the same matter has been
instituted before another International Court for adjudication
It therefore follows that the rule of exhaustion of local remedies is not
applicable before the Court.
[50] These provisions are essentially intended to prevent individuals from
abusing the possibilities offered them for seeking redress in the courts,
and to avoid the same case being handled by several bodies at the same time.
See Cohen, Jonathan in La Convention Européenne de Sauvegarde des Droits de
l�Homme et des Libertés Fondamentales, Economica, Paris, 1989, 143, where it
is rightly stated that this condition was expressly posed �to exclude the
accumulation of international proceedings�.
[51] At the source of this condition, provided for in all the international
mechanisms of examining and settling cases, can be found the idea of
avoiding a situation whereby one and the same case is brought before several
international bodies (Cf article 35 (2)(b) of the European Convention on the
Protection of Human Rights and Fundamental Freedoms, article 56(7) of the
African Charter on Human and Peoples� Rights, article 46(c) of the American
Convention of Human Rights, article 5(2)(a) of the Optional Protocol to the
International Covenant on Civil and Political Rights).
[52] But the interpretation of this rule has revealed, as Stefan Trechsel
points out, in Die europäische Menschenrechts-konvention ihr Schutz der
persönlichen Freiheit und die schweizerischen Strtafprozessrechte, Stämpfli,
Bern, 1974, 125, that it
is not limited to the �non bis in idem�, but equally covers the situation of
pendency of cases, since it is sufficient for a case to have been brought,
in substance, before another international court. It is therefore a question
of avoiding the parallelism of various international proceedings on one hand,
and on the other hand, to avoid conflict between various international
courts; indeed, there is no order of hierarchy between such international
courts and it follows that non among them should be competent to revise,
indeed, the decision of another international court.
[53] Consequently, by providing for article 10(d)(ii) of the Supplementary
Protocol in the manner it did, the Community lawmaker of ECOWAS intended to
remain within the strict confines of what international practice has deemed
appropriate to abide by. It is therefore not the duty of the instant Court
to add to the Supplementary Protocol conditions which have not been provided
for by the texts. Ultimately, and for all these reasons, the objection
raised by the defendant cannot thrive.
AS TO THE APPLICANT�S STATUS IN THE ACTION BROUGHT
[54] In his last brief, and in his reply of 9 April 2008, the defendant
raised the issue of the applicant�s status in the action brought. He put
forward that, being an emancipated wahiya at the time of her application,
Hadijatou Mani Koraou was therefore not a slave anymore; that, on that score,
she had come out of her condition of servitude; that she could have
instituted proceedings before her emancipation; and that since she did not
do so, her action had become ineffective and must be declared inadmissible
on grounds of being unqualified to file the suit.
[55] Such preliminary objection lately raised, must be declared inadmissible.
Moreover, in regard to the provisions of articles 9(4) and 10(d)
respectively, of its Supplementary Protocol, �The Court has jurisdiction to
determine cases of violation of human rights that occur in any member state�,
and �access to the Court is open to � individuals on application for relief
for violation of their human rights�.
[56] It must be emphasized that human rights, in being inherent to the human
person, are �inalienable, irrevocable and sacred�, and cannot therefore
suffer any limitation whatsoever.
AS TO THE PLEAS IN THE MERITS
[57] The applicant filed several pleas alleging violation of her rights. In
the first place, she pleaded that the defendant did not take the necessary
measures to guarantee its citizens the right and freedoms proclaimed in the
African Charter on Human and Peoples� Rights, thus violating article 1 of
the said charter. She contended that this violation derives from the other
violations contained in the other please filed before the instant honourable
Court, in as much as article 1 of the said African Charter makes it binding
upon the states to respect such rights; and that in the terms of the cited
article, �The member states � shall recognize the rights, duties and
freedoms enshrined in this Charter and shall undertake to adopt legislative
or other measures to give effect to them�.
[58] The applicant stated further that in accordance with the legislation of
Niger, �The Republic of Niger shall be a constitutional state; it shall
ensure equality of the law before all, without distinction of sex, social,
racial, ethnic or religious origin �� (article 11 of 1996 Constitution);
�None shall be subjected to torture, abuses, or cruel, inhuman or degrading
treatment� (article 12 of 1996 Constitution); �Any individual � who shall be
guilty of acts of torture, � or of cruel, inhuman or degrading treatment �
shall be punished in accordance with the law� (article 14 of 1989 and 1992
Constitutions).
[59] The applicant pointed out that despite the existence of the
aforementioned legislation, she faced sexually and socially-based
discrimination because she was held in slavery for almost nine years; that
after being emancipated, she was unable to fully enjoy her freedom despite
her calls for justice, that she was put into detention, and that all these
incidents contributed to the loss of her fundamental rights. She therefore
asked that the defendant be charged for violation of the various articles
cited in the African Charter on Human and Peoples� Rights, and demanded the
adoption of new laws which are more protective of the rights of women
against discriminatory customs.
[60] As regards the applicant�s first plea-in-law, the Court finds that it
does not have the mandate to examine the laws of member states of the
Community in abstrato, but rather, to ensure the protection of the rights of
individuals whenever such individuals are victims of the violation of those
rights which are recognized as theirs, and the Court does so by examining
concrete case brought before it.
The Court indicates that other mechanisms are employed in the consideration
of cases, such as the checking of the situation in each country, the
submission of periodic reports as provided for by certain international
instruments, including article 62 of the African Charter on Human and
Peoples� Rights, which provides: �Each state party shall undertake to submit
every two years, from the date the present Charter comes into force, a
report on the legislative or other measures taken with a view to giving
effect to the rights and freedoms recognized and guaranteed by the present
Charter�.
[61] In this regard, the Court finds that such considerations have already
taken place, notably before the Human Rights Committee and the Children�s
Rights Committee of the United Nations, particularly in regard to the
Republic of Niger, followed by recommendations.
Consequently, the Court declares that it cannot overstep the bounds of its
core jurisdiction, which is that of entertaining concrete cases of human
rights violation and sanctioning such where necessary.
AS TO DISCRIMINATION
[62] The applicant maintained that she was a victim of sexually and
socially-based discrimination, in violation of articles 2 and 18(3) of the
African Charter on Human and Peoples� Rights; she further stated that she
did not benefit from equal protection of the law and equality before the law
as provided for by article 3 of the said charter. She made it clear that the
system of sadaka or the act of selling a woman to a man to serve as a
concubine for him, is a practice exclusively affecting women and thus
constitutes a form of discrimination based on sex; that, moreover, the fact
that she was not in a position to freely give her consent to marry or to
divorce do bear ample testimony of discrimination in relation to her social
origin.
[63] The following statement comes from the testimony of Djouldé Laya, a
sociologist, and it was cited by the defendant during, the court session of
8 April 2008 at Niamey:
In the case of the wahiya woman, one does not say that she is emancipated,
since she is a slave. Therefore, she is someone else�s property; � the
wahiya system or �fifth wife� is a system which was put in place by the
advocates and practitioners of slavery; � I consider that women are not
emancipated from their wahiya condition; � it is a system which permits the
movement of a woman from one status to another, meaning that the slavery
condition continues, in any case, because women still have to be captured,
war must be fought, one has to buy.
[64] After a careful consideration of all the pleas-in-law of the applicant,
drawn from discrimination, equality before the law, and equal protection by
the law, the Court finds that, as pointed out by Frédéric Sudre, on 259 of
his work Le Droit International et Européen des Droits de l�Homme (2005 ed),
�The principle of non-discrimination is a principle drawn from the general
postulate according to which all human beings are born free and equal in
dignity and rights� (cf article 1 of the Universal Declaration of Human
Rights). It is this principle which helps to define the domain of equality.
[65] According to the texts cited by the applicant, every form of
discrimination based on race, ethnic group, sex, religion, and social origin,
is forbidden, and constitutes a human rights violation recognized by the
various constitutions of the Republic of Niger (1989, 1992 and 1996) and by
the provisions of the Penal Code of Niger, which enshrines the same
protective principles.
[66] In the instant case, to determine if the applicant has been
discriminated against or not, it is worthwhile to take a close look at the
practice of wahiya or sadaka as described by the witnesses, in order to know
whether, on one hand, all women have the same rights in respect of marriage,
and whether, on the other hand, men and women have the same capacities of
enjoying the rights and freedoms proclaimed in the international instruments
ratified by the defendant.
Indeed, Halilou Danda, a farmer and livestock breeder, witness called by the
applicant, declared during the hearing of Monday, 7 April 2008 that:
The préfet (district administrative officer) summoned us to his office to
tell us that he had received a paper from Niamey which says that we should
hand over El Hadj Souleymane Naroua�s wife back to him. The préfet asked him:
- Would you like to remarry her, since you have emancipated her? If so,
bring cola and let us perform the marriage ceremony. El Hadj Souleymane
Naroua said � No! I cannot marry her, since it is God who has already given
her to me.
[67] Besides, Almou Wangara, farmer and witness called by the applicant,
declared that:
When the former master of Hadijatou was asked to bring the dowry, he said
that it was God who gave him the woman and so how could we be asking him for
money as payment for dowry? The préfet told the former master: - Since you
have already emancipated this woman, what is appropriate to be done is to
provide the dowry; we are going to implore her to accept the marriage. The
former master got up and said � No! How! Am I to buy a woman and be asked to
pay dowry on her? � After this reaction, the préfet said � Listen, as for me,
I can do nothing � you must go away.
[68] The Court therefore holds that when summoned to the office of the
administrative authority, namely, to the préfet�s office, the applicant�s
former master not only refused to accomplish the marriage formalities with
her but equally did not grant her the freedom due her, regardless of the
certificate of emancipation.
[69] In the Republic of Niger, the celebration of marriage is recognized by
the payment of dowry and the holding of a religious ceremony. Now, in the
instant case, El Hadj Souleymane Naroua fulfilled neither the customary nor
civil requirements in regard to the applicant.
[70] Moreover, the Court holds that the Applicant was discriminated against
vis-à-vis the wives in the family of her former master.
[71] The Court finds that even if the complaint drawn from discrimination �
to which the applicant lays claim for the first time before the Court � is
founded, that violation is not attributable to the Republic of Niger but
rather to El Hadj Souleymane Naroua, who is not a party to the instant
proceedings.
CONSEQUENTLY, THE COURT FINDS THIS PLEA-IN-LAW INOPERATIVE.
WAS THE APPLICANT HELD IN SLAVERY?
[72] The applicant complains having been held in slavery, in violation of
article 5 of the African Charter on Human and Peoples� Rights and other
international instruments relating to human rights enacting absolute
prohibition of slavery. She declared being born of parents who were
themselves of the status of slaves and that she had always been treated as a
slave under the roof of her former master, El Hadj Souleymane Naroua.
[73] On its part, the defendant refuted the grounds of slavery and
maintained that the applicant was certainly under conditions of servitude
but was the wife of El Hadj Souleymane Naroua, with whom she had more or
less lived happily as in the lives of all couples.
[74] In the terms of article 1 of the Geneva Convention 1926, slavery is
�The status or condition of a person over whom any or all the powers
attaching to the right of ownership are exercised� and slave trade was
defined to include
all acts involved in the capture, acquisition or disposal of a person with
intent to reduce him to slavery; all acts involved in the acquisition of a
slave with a view to selling or exchanging him; all acts of disposal by sale
or exchange of a slave acquired with a view to being sold or exchanged, and,
in general, every act of trade or transport in slaves.
[75] Thus defined, slavery is considered a grave violation of human dignity,
and it is strictly prohibited by all the international instruments relating
to human rights. Other instruments such as the European Convention on Human
Rights and Fundamental Freedoms (article 4(1), the American Convention on
Human Rights (article 6), and the International Covenant on Civil and
Political Rights (article 8(1) as ratified by the Republic of Niger)
consider the prohibition of slavery as an inviolable right, that is to say,
an unbreakable or a right which cannot be transgressed. Similarly, the Penal
Code of Niger as amended by Law 2003-025 of 13 June 2003, in its article
270(1) to (5), defines and stamps out the crime and offence of slavery.
[76] From the foregoing, it is incontrovertible that Hadijatou ManiKoraou
was sold off from El Hadji Ghousmane to El Hadj Souleyman Naroua, at the age
of 12, at a monetary price of CFA 240 000. She was led to the home of her
buyer, went through almost a decade of numerous psychological, forced labour
in the home and on the farm, physical violence, insults, and a permanent
constraint on her movements exercised by her buyer, who, on 18 August 2005,
issued her with a document entitled �certificate of emancipation (from
slavery)�, stating that from the date of signature of the said deed, �she (the
applicant) was free and was nobody�s slave�.
[77] The foregoing do portray the applicant�s condition of servitude and
they bring out all the indicators of the definition of slavery as contained
in article 1 of the Geneva Convention 1926, and as interpreted by the
Appeals Chamber of the International Criminal Tribunal for former Yugoslavia
(ICTY), in the case concerning Prosecutor v Dragoljub Kunarac, Radomir Kovac
and Vukovic Zoran, judgment of 12 June 2002, IT096-23 & 23/1, para 119.
According to that case-law, in addition to the attributes of the right of
ownership which characterizes slavery,
whether a particular phenomenon is a form of enslavement will depend on the
operation of the factors or indicia of enslavement identified by the Trial
Chamber. These factors include the �control of someone�s movement, control
of physical environment, psychological control, measures taken to prevent or
deter escape, force, threat of force or coercion, duration, assertion of
exclusivity, subjection to cruel treatment and abuse, control of sexuality
and forced labour.
[78] The defendant, while acknowledging the continued existence of slavery,
contended that this practice had become more discreet and had been confined
to very restricted social circles. The defendant maintained that the
applicant was rather the wife of El Hadj Souleyman Naroua, with whom she had
lived a more or less happy marital relationship as in all homes, up to 2005,
and that from their union, children were born.
[79] The Court cannot countenance such a manner of arguing, for it is trite
that slavery may exist without the presence of torture. Even with the
provision of square meals, adequate clothing and comfortable shelter, a
slave still remains a slave if he is illegally deprived of his freedom
through force or constraint. All evidence of ill treatment may be erased,
hunger may be forgotten, as well as beatings and other acts of cruelty, but
the acknowledged fact about slavery remains, that is to say, forced labour
without compensation. There is nothing like goodwill slavery. Even when
tampered with humane treatment, involuntary servitude is still slavery. And
the issue of knowing the nature of relationship between the accused and the
victim is essential. See judgment of 3 November 1947, in Trials of Major War
Criminals before the Nuremberg Military Tribunals under Control Council Law
No. 10, in the case concerning United States of America v Oswald Pohl et al.
[80] The Court finds in the instant case that beyond well constituted deeds,
the moral element in reducing a person to slavery resides, moreover, in the
intention of El Hadj Souleyman Naroua to exercise the attributes of the
right of ownership over the applicant, even so, after the document of
emancipation had been made. Consequently, there is no doubt that the
applicant, Hadijatou Mani Koraou, was held in slavery for almost nine years,
in violation of the legal prohibition of such practice.
[81] In Niger�s criminal law, just as is evident in international
instruments, the prohibition and stamping out of slavery are inviolable and
fall within public policy. As was asserted by the International Court of
Justice (ICJ), in the Barcelona Traction Judgment (5 February 1970),
outlawing slavery is an erga omnes obligation binding on all organs of the
state.
[82] Consequently, the national judge who sat at the Konni High Court upon
the case relating to persons whose condition was akin to that of Hadijatou
Mani Koraou, was under an obligation to raise at the first instance, the
issue of slavery and set in motion the procedure for stamping out such a
practice, once the case brought to light an obvious issue of slavery.
[83] In conclusion, as regards this particular point above, the Court finds
that, the national judge of Niger before whom the case of Hadijatou Mani
Koraou v El Hadj Souleymane Naroua was brought, instead of denouncing the
slavery status of the applicant, as constituting a violation of article
270(1) to (5) of the Penal Code of Niger as amended by Law 2003-025 of 13
June 2003, rather affirmed that, �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�.
[84] The Court considers that, acknowledge thus the status of Hadijatou Mani
Korao as a slave, without denouncing that condition constitutes a form of
acceptance, or at least a tolerance of this crime, against which the
domestic judge of Niger was under obligation to ensure that proceedings were
instituted or that sanctions were preferred where necessary.
[85] The Court further considers that even if the applicant�s condition of
being a slave arises from a supposedly customary or personal context, there
was an avenue of protection open to her from the authorities of the Republic
of Niger, be they administrative or judicial. And that, consequently, the
defendant becomes responsible, in terms of both national and international
law, for every form of human rights violation against the applicant, on the
basis of slavery, as a result of the tolerance, passiveness, inaction, and
abstention of these same authorities of Niger vis-à-vis the practice of
slavery.
[86] Ultimately, by failing to raise an instant charge regarding an act
prohibited as a public policy, and in omitting to adopt or have adopted the
appropriate measures for stamping out such prohibited act, the national
judge of Niger has not carried out his mandate of protecting the rights of
Hadijatou Mani Koraou, and has thereby committed the defendant into becoming
liable on the same scale as the state administrative authority, when the
latter declared that: �Listen, as for me, I can do nothing � you must go
away.�
[87] Besides, by relying on international texts, notably, article 7(1)(c)
and (g) of the Statute of the International Criminal Court, the applicant
maintained that her status of being a slave is crime against humanity.
[88] If it is true that slavery features on the list of acts constituting
crimes against humanity, it is nevertheless worthy to indicate that, for it
to constitute a crime against humanity, the slavery in question must form
part of a �widespread or systematic attack� as enshrined in article 7 of the
Statue of the International Criminal Court.
[89] Now, the appreciation of such cases fall within the jurisdiction of
other international judicial set-ups, more precisely, the international
criminal courts. The instant honourable Court is therefore incompetent to
consider whether the complaint drawn from this particular plea-in-law is
well founded or not.
ARE THE ARREST AND DETENTION OF THE APPLICANT ARBITRARY?
[90] The applicant averred that her arrest and detention on 9 May 2008, as
well as her detention at the Konni Prison, were arbitrary and do constitute
a violation of article 6 of the African Charter on Human and Peoples� Rights.
According to her, the said bigamy is unfounded, for lack of a marriage
between her and El Hadj Souleymane Naroua � whereas it has been proved that
the said detention was consequent upon the complaint deposited by El Hadji
Souleymane Naroua, and whereas the arrest and detention of the applicant
were decided upon following the same complaint which had been deposited by
her ex-master before the Konni Criminal Court.
[91] A detention is said to be arbitrary when it does not repose on a legal
basis. Now, in the instant case, the arrest and detention of the applicant
were carried out in implementation of the judicial decision made by the said
Konni Criminal Court. This decision constitutes a legal basis, and it does
not fall within the jurisdiction of the Court to consider whether such a
decision is well founded or ill founded.
DOES THE APPLICANT HAVE A RIGHT TO RELIEF FOR REPARATION?
[92] In her reply dated 7 April 2008, the applicant requested that the
Republic of Niger be made to pay the amount of CFA 50 000 000 as relief for
the reparation of the harm suffered.
[93] In reaction to the foregoing, the defendant asserted that this request
amounts to the filing of a new plea-in-law, and he cited article 37(2) of
the Rules of Procedure of the Court, thus concluding upon the
inadmissibility of the application for reparation.
[94] The Court recalls that the inadmissibility provided for in article
37(2) of the Rules of Procedure concerns new pleas-in-law raised by a party
during the course of proceedings. In the instant case, the quantification of
the reparation asked for cannot be considered as a new plea-in-law, but
rather, as a specification of the request for relief as contained in the
application instituting proceedings. Consequently, there are grounds for
dismissing the argument of the Defendant.
[95] The applicant did not furnish the Court with any guideline for an
accurate calculation of the amount involved as reparation for the harm
pleaded. The Court deduces thereof that an all-inclusive amount may be paid
to the applicant.
[96] A close examination of the facts in cause clearly demonstrate that the
applicant has gone through undeniable physical, psychological and moral harm,
as a result of her nine years or servitude, justifying the award of a relief
in reparation for the harm thus suffered.
CONSEQUENTLY
a) Whereas in any instance where the texts do not make provision for
particular conditions in respect of admissibility of applications, the Court
cannot impose heavier ones thereof;
b) Whereas the practice of wahiya or sadaka � founded upon considerations of
belonging to social class � put the applicant in an unfavourable condition
and excluded her from the sure and certain benefits of equal dignity
recognized for all citizens; whereas she was thus discriminated against by
virtue of her belonging to a social class; but, whereas such discrimination
is not attributable to the Republic of Niger;
c) Whereas the Court finds that the Republic of Niger did not sufficiently
protect the rights of the applicant in regard to the practice of slavery;
d) Whereas this condition of slavery has caused the applicant undeniable
physical, psychological, and moral harm.
e) Whereas the applicant is therefore entitled to an all-inclusive relief in
reparation for the harm resulting from such practice of slavery.
FOR THESE REASONS
The Community Court of Justice, ECOWAS,
Adjudicating publicly, in first and last resort, after hearing both parties
on the issue of human rights violation;
a) Having regard to the 24 July 1993 Revised Treaty of ECOWAS;
b) Having regard to the 10 December 1948 Universal Declaration of Human
Rights;
c) Having regard to the 18 December 1979 Convention on the Elimination of
All Forms of Discrimination against Women;
d) Having regard to the 25 September 1926 Convention relating to Slavery,
and the 7 September 1956 Supplementary Convention relating to the Abolition
of Slavery, Slave Trade and Institutions and Practices Similar to Slavery;
e) Having regard to the 27 June 1981 African Charter on Human and Peoples�
Rights;
f) Having regard to the 6 July 1991 and the 19 January 2005 Supplementary
Protocols on the Community Court of Justice, ECOWAS;
g) Having regard to the 28 August 2992 Rules of Procedure of the Community
Court of Justice, ECOWAS;
h) Having regard to the 24 January 2008 Preliminary Ruling No. ECW/CCJ/APP/08/08;
IN TERMS OF FORM
a) Dismisses the preliminary objection raised by the Republic of Niger as
inadmissible in all its aspects;
b) Admits the application of Hadijatou Mani Koraou and declares that she is
qualified to bring such an application before the Court;
ON MERITS
a) Declares that the discrimination from which Hadijatou Mani Koraou
suffered is not attributable to the Republic of Niger;
b) Declares that Hadijatou Mani Koraou was victim of slavery and that the
Republic of Niger is to be blamed for the inaction of its administrative and
judicial authorities;
c) Receives the request of Hadijatou Mani Koraou for reparation of the harms
she had suffered and grants her an all-inclusive award of CFA 10 000 000;
d) Orders the said sum to paid to Hadijatou Mani Koraou by the Republic of
Niger;
e) Dismisses all other points of request made by Hadijatou Mani Koraou;
f) Asks the Republic of Niger to bear the costs, in accordance with article
66(2) of the Rules of Procedure of the Court;
g) Thus made, adjudged and pronounced publicly by the Community Court of
Justice, ECOWAS, at Niamey (Republic of Niger), on the day, month and year
above. |
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