Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa Stéphanie Lagoutte (ed.) with the participation of Abraham Bengaly (Mali), Boukar Youra (Niger) and Papa Talla Fall (Senegal) Danish Institute for Human Rights Bamako, Dakar, Niamey and Copenhagen 2014 Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa Title: Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa Authors: Stéphanie Lagoutte (ed.), Abraham Bengaly, Boukar Youra and Papa Talla Fall ISBN: 978-87-91836-95-4 EAN: 9788791836954 Translation © 2014 Jesse Kirkwood This publication was originally published in French (Stéphanie Lagoutte (dir.): Rupture du lien matrimonial, pluralisme juridique et droits des femmes en Afrique de l’Ouest francophone (avec Abraham Bengaly, Mali, Boukar Youra, Niger et Papa Talla Fall, Sénégal. Bamako, Niamey, Dakar et Copenhague, Institut danois des droits de l’homme, 2014). Some minors changes have been made to the English translation by the editor of the publication. Typesetting: CREA PUB (Mr. Traoré) – Bamako - Mali © 2014 Danish Institute for Human Rights Wilder Plads 8K DK - 1403 Copenhagen K Tel. +45 3269 8888 www.humanrights.dk This document may be wholly or partially reproduced provided that the author and source are cited. 3 Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa TABLE OF CONTENTS Thanks..................................................................................................................................... 5 List of Abbreviations............................................................................................................... 6 Introduction: Dissolution of Marriage, Legal Pluralism and Women’s Rights ........................ 7 Part 1 – Mali ......................................................................................................................... 21 Part 2 – Niger ....................................................................................................................... 41 Part 3 – Senegal ................................................................................................................... 61 Conclusions and Proposals .................................................................................................. 84 Consolidated Bibliography ................................................................................................... 88 4 Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa THANKS This regional research project received the scientific and financial support of the Danish Institute for Human Rights (DIHR) in Copenhagen, in partnership with the Institute for Human Rights and Peace (IHRP) at the Cheikh Anta Diop University in Dakar. Professor Amsatou Sow SIDIBE of the IHRP inspired this research which is above all the result of the work of a regional network of a dozen researchers from Burkina Faso, Mali, Niger and Senegal, coordinated by Stéphanie LAGOUTTE, senior researcher at the DIHR with the support of Monique ALEXIS and DIHR West Africa team. The objective of the project was to document and analyse the problems encountered at the dissolution of marriage and to explore the legal and non-legal solutions that would ensure a better protection of rights in the family context. The purpose of the project was also to build the capacities of the team of researchers in terms of research project design, methodology and the conducting of a well-documented and objective study. Eminent academics, including Professor Abdoul Aziz KEBE, head of the Arabic Department at the Cheikh Anta Diop University in Dakar, Professor Abdoullah CISSE of the Gaston Berger Uni- versity in Saint-Louis and Professor Tidjani ALOU, dean of the Faculty of Economic and Legal Sciences at the Abdou Moumouni University in Niamey, all contributed their expertise to dis- cussions and debates with the research team at various phases in the process. 5 Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa LIST OF ABBREVIATIONS ACHPR African Charter on Human and Peoples’ Rights CA Court of Appeal CADU Cheikh Anta Diop University (Dakar, Senegal) CRC Convention on the Rights of the Child CEDAW Convention on the Elimination of All Forms of Discrimination against Women FCFA CFA francs FELS Faculty of Economic and Legal Sciences DIHR Danish Institute for Human Rights (Copenhagen, Denmark) IHRP Institute for Human Rights and Peace (Dakar, Senegal) ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights JO Journal officiel (official records of legislative and some regulatory texts) JP Justice de paix (type of first instance court) MGC Marriage and Guardianship Code (Code du mariage et de la tutelle, Mali) PFC Personal and Family Code (Code des personnes et de la famille, Mali) TD Tribunal départemental (Departmental Court) (Senegal) TDHC Tribunal départemental hors cadre (Special Departmental Court) (Dakar, Senegal) TGI Tribunal de grande instance (type of first instance court) TGIHC Tribunal de grande instance hors classe (type of first instance court) TI Tribunal d’instance (type of first instance court) TP Tribunal de Paix (type of first instance court) (Senegal) TPI Tribunal de première instance (type of first instance court) UDHR Universal Declaration of Human Rights 6 Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa INTRODUCTION Dissolution of Marriage, Legal Pluralism and Women’s Rights Stéphanie Lagoutte1 Over the past few years, a team of senior researchers, young academics and legal practitioners from francophone West Africa has been exploring the difficult issue of the legal situation of women during divorce. As our research, meetings and discussions have progressed, the proj- ect has evolved and diversified. This process led to the publication in January 2014 of three studies relating respectively to Mali, Niger and Senegal. The present regional publication is the result of our work to this date. It presents an abridged version of the three national studies as well as first thoughts on common areas and challenges arising from this work. The purpose of this introductory chapter is to retrace the intellectual journey that, from Niamey to Dakar via Ouagadougou, Cotonou, Bamako and Copenhagen, has enabled a consideration of the rather complex context of divorce in francophone West Africa. The study has led to an un- derstanding of the challenges posed by the formal and informal legal pluralism that exists in the region as well as the need to protect women’s rights in these very difficult situations. At the same time, we have also given thorough consideration to the methodological and practical aspects in- volved in developing the research project. We have come to understand the limits inherent to this project from a practical point of view, for example the enormous difficulties encountered in terms of access to relevant sources. Finally, it has been possible to reflect on and discuss the ways in which research and researchers can help illuminate topics and debates that relate to societal, religious and political issues of an often very sensitive nature. Genesis of the project The idea for this project began in Niger where a small group of researchers at the Faculty of Economic and Legal Sciences (FELS) in Niamey were working on various problems related to family law, human rights and legal pluralism. Presentation and debates at meetings and con- ferences2 showed that the conditions in Sahelian countries shared several common features: 1 Senior researcher at the Danish Institute for Human Rights (DIHR) and scientific coordinator of the project entitled “Protection de la famille lors de la dissolution du mariage en Afrique de l’Ouest [Protection of the Family during the Dissolution of Marriage in West Africa]”. 2 Conferences organised in Niger in 2005-2006, meetings between researchers in the region (Ouagadougou, 2007) and at the DIHR in Denmark in 2007-2008. (within the framework of the DIHR’s Research Partnership Programme). 7 Dissolution of Marriage, Legal Pluralism and Women’s Rights in Francophone West Africa legal pluralism was not always recognised or formalised; there was massive political, religious and social sensitivity surrounding the subject of divorce; and there was few entry points for human rights in family affairs, whether in law or practice. Against this backdrop, the Danish Institute for Human rights (DIHR) initiated, in partnership with African researchers, a sub-regional project entitled “Protection of the Family during the Dissolution of Marriage in West Africa”. From the outset, the objective of this project was to document and analyse the problems encountered by women in the event of divorce and to explore the legal and non-legal solutions that would allow better protection of rights in the family context. A network of researchers from Benin, Burkina Faso, Mali, Niger and Senegal was gradually formed, with varying degrees of formality. The Institute for Human Rights and Peace (IHRP) at the Cheikh Anta Diop University of Dakar was formally linked to the project to anchor the research work in a regionally-focused institution and to profit from the expertise of its director, Professor Amsatou Sow SIDIBE, specialist in legal pluralism relating to family