REPORT ❐ ECAWAS COURT RULES ON FORCED LABOUR West-African court slavery judgement

It was the first he Community Court of Justice of the their own constitution and/or penal code and Economic Community of West African States have ratified the relevant ILO Conventions as time the Court of T(ECOWAS) ruled on 27 October 2008 in the well as UN and regional charters. an economic and case of Hadijatou Mani vs . Several aspects The Nigerien NGO Timidria assisted the com- of this case will interest readers of International plainant Hadijatou Mani, now 24 years old, political body Union Rights. throughout her legal battle. In fact, Timidria orig- ruled in a slavery Before going into the details of this particular inally brought the case to Court for Hadijatou, a court case, it may come across as somewhat arti- possibility created by the Penal Code. The case: the ficial that a Court that was created by a primarily London based International NGO Anti-Slavery judgement may economic political community body has ruled so International and legal campaign group strongly on a question of fundamental human Interrights supported Timidria with the develop- have broader rights. The ECOWAS Court was established in ment of the case. 1991 when Member States adopted a Protocol. implications for The Protocol does not make any reference to Hadijatou Mani's story human rights in human rights although it explicitly mentions the Hadijatou’s mother was a slave woman, known competence of the Court over disputes related to as ‘Sadaka’. Hadijatou inherited her mother’s class trade, industry and commerce. In 1993, however, status when she was born in Dogaraoua in the the Protocol was revised as Member States agreed Tahoua region. When she reached the age of that human rights were at the basis of ECOWAS twelve she was sold to Souleymane Naroua, a and that the Community Court had jurisdiction friend of her mother’s master as a traditional ‘sex over alleged violations of rights contained in the slave’. The commercial transaction is known as 1948 Universal Declaration of Human Rights. ‘Wahiya’, buying a servant to serve as domestic When it became apparent that Member States helper and concubine. Outside answering to the would never sue themselves a supplementary sexual needs of her master she was also forced to Protocol was adopted in 2005 which allowed clean and work the land which in the end did not individuals in Member States to challenge their allow her more than a few hours of sleep every governments with regard to violations of human night. She was not paid at all and any first hint of rights and fundamental freedoms. Until then indi- ‘disobedience’ was brutally suppressed with viduals could only seize the Court through their physical violence. Hadijatou was raped for the own government. first time before she was thirteen by her master. In relation to the case itself, it was the first time Under pressure from the publicity around his that the court seated in Niamey, the capital of case and the Penal Code of 2005 criminalising Niger rather than in where it has its head- slavery under a penalty of 30 years of imprison- quarters. This approach has a few good elements. ment, he granted her a ‘liberation certificate’. It Firstly it allowed access to the court case to the soon showed that the man never intended to free necessary witnesses and all actors and stakehold- Hadijatou completely as he was convinced that ers involved, including senior politicians. she was still his lawful wife owing him ‘marital Secondly, it allows the judgement to have a real duties’. The Nigerien Civil Court first confirmed impact through good visibility and press confer- that there was no formal marriage between the ence in the country where the ruling is actually two. This was later overruled by the Tribunal de most relevant. It was the first time that the Grand Instance (TGI) which based its judgement ECOWAS court ruled in a slavery case which is on customary law. The Supreme Court sent the promising. When the judgement is effectively fol- case back to the TGI but meanwhile Hadijatou lowed and adequate measures are taken by the married a husband of her own choice resulting in government as a reaction to this, the ECOWAS an additional claim and conviction for bigamy, Court may prove to be an important additional six months imprisonment (of which she has actu- instrument for the improvement of the human ally served two) and a penalty of 50,000 West rights situation in West Africa. This could be African Francs (CFA). When she appealed in this JEROEN BEIRNAERT is called historic since much discussion has taken last case the Court of Appeal of Niamey declared Coordinator of the ITUC’s place about the persistence of traditional forms of that it would await the ruling of the newly assem- Forced Labour Project slavery, especially in countries in the region cov- bled TGI and to align with that. ered by the ECOWAS.1 Reports of international human rights bodies and supervisory agencies (e.g. the ILO Committee of Experts on the imple- The ECOWAS case mentation of Convention 29) have in recent years Meanwhile, however, Hadijatou and the legal reported evidence of slavery practices, not only team had appealed to the ECOWAS Court. It sub- in Niger, but in several countries in the region. sequently ruled in favour of her claim. Rulings of This is despite the fact that most of these coun- the Court are binding on all ECOWAS Member tries including Niger have outlawed slavery in States. The judgement acknowledges that

INTERNATIONAL union rights Page 18 Volume 16 Issue 2 2009 Hadijatou was clearly a slave and that the State of this case customary law also said that a freed Niger was responsible for not doing enough to slave remains the wife of her master, which con- protect its citizen from slavery. The ruling includ- cept led to the finding of bigamy against ed an award of compensation for the damages Hadijatou following her original release from suffered. All these elements are very important slavery. Even though customary law is often in Hadijatou Mani’s since there have been quite a number of court conflict with the constitution and the penal code cases for similar cases in which it has proven to such as in this particular case, the court did not painful story be very difficult to obtain a conviction (or, if make specific findings in relation to customary shows the there was a conviction, then sentences for the law and only convicted the slave master in per- slave masters were minimal). It is also an impor- son of discrimination. potential of tant and progressive step to see compensation regional human being awarded to the victim. Implications of the case A breakdown of the judgement is necessary to It must also be recognised that Niger was the first rights courts analyse the important message it contains. The African country to outlaw slavery by a specific Court interpreted the term of slavery in the con- law providing for 30 years imprisonment and a temporary context and highlighted the use of fine. The Government had also set up a National powers associated with ownership and elements Committee to Combat Forced Labour and of control over a person. It concluded that the Discrimination looking into developing a case under discussion was a case of slavery National Action Plan. This court ruling is defi- beyond any doubt. Hadijatou had been abused in nitely another step in the right direction and at slavery conditions for nearly a decade. least it sets the circumstances for concrete and The court ruled also that slavery is a crime active steps to be undertaken by the Nigerien against humanity and that the abolition of slavery Government to once and for all rule out slavery as a general principle in international law was to on its territory. be upheld. Even though the court explicitly men- Whether this ray of hope is announcing a new tions that its ruling is only applicable to this par- dawn for the tens of thousands of slaves in the ticular case it acknowledges at the same time the country (Timidria’s research indicates that there existence of the phenomenon in Niger and the are a minimum of 43,000 slaves in Niger) and fact that this was definitely not a stand alone additional tens of thousands held in servitude in case. In a context of undisputable evidence of the region as a whole remains to be seen. In any these practices the government has in the most case, it should offer them the perspective that recent decades always denied that slavery still legal redress is no longer unrealistic and this existed in the country or at least, the government should encourage them to take cases to court or stated that it had done everything within its pow- to have cases brought forward by trade unions ers to eliminate the practice, and claimed that the and other anti-slavery organisations. Relevant numbers of slaves stated by trade unions and stakeholders will need to do a lot of awareness other campaigners were exaggerated, and that raising to disseminate the strong message sent lower caste people were often confused with out by this regional African Court, not in the least slaves. The ILO Comm-ittee of Experts on the to judges in the national courts of the region. Application of Conventions and A regional African court with judges from , Recommendations reflects these concerns. , , set with this binding judgement The Court convicted the State of Niger for its from within the West African legal system a lenient attitude towards protecting its citizens regional standard in international human rights from slavery. While the judgement does not out- law. The decision could significantly increase or line in concrete terms what the government at least influence the political will in a number of should have done, it has convicted the state of ECOWAS Member States in the region to reassess failing to take any active steps to protect its citi- the slavery situation on their territory and to step zens and to protect Hadijatou in particular. The up efforts to protect workers in slavery. In gen- Court ordered the State of Niger to pay compen- eral, the ECOWAS Court has a good track record sation of 10 million West African Francs (CFA). when it comes to Member States respecting the The compensation awarded will allow Hadijatou outcomes of court decisions. In this case, Mossi to rebuild her life and to ensure that her children Boubacar, a representative for the Nigerien do not suffer the same kind of abuse. Government at least stated after the trial that the A final element, but not be to neglected in this government has accepted the verdict. In times analysis, is the Court’s reluctance to take in a rad- where the African Court on Human and Peoples’ ical standpoint in its position towards Niger’s cus- Rights is still to take up a proper role and in any tomary laws which regulate these slavery cases case would have to dismiss direct claims from and to an important degree legitimise these prac- individuals, the ECOWAS Court may fill up a part tices. These aspects of customary law are dis- of a void that has been around for far too long. criminatory against women. In Niger the regula- tions followed by different ethnic groups in soci- 1 , , , , The ety permit the concept of a ‘fifth wife’ whereas Gambia, , , Guinea Bissau, , Mali, this would in general not be allowed in Islam. In Niger, Nigeria, Senegal, and Togo.

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