the means employed to achieve the objective or the justification.67 For any defence of
the State to be justified, the differential treatment should be absolutely necessary to
achieve what has been raised as an objective.68 Therefore, this begs the question as
to whether the differential treatment of pregnant and married girls in school policies
and practices is absolutely necessary to achieve the deterrence of sexual relations
among children as argued by the Respondent State. A restriction on a right is said to
be absolutely necessary if there is no other alternative to achieve the intended
objective and if the measure taken is the least restrictive compared to the other
available options.69 The Committee notes that the expulsion of and denial of re-entry
of pregnant and married girls in school is by no means a necessary measure to deter
sexual relationships among adolescents. It is a clear contradiction with article 11(6) of
the Charter. The Committee, in the Minority Rights Group International and other v
Mauritania case, has pronounced that any differential treatment based on a ground
that is prohibited by the Charter is a violation of article 3.70 Moreover, the Committee
notes that most cases of teenage pregnancy and child marriage are a result of deeprooted gender-based violence against children. Children who are married should be
treated as victims of systemic gender-based discrimination or other factors that result
in child marriage. The Committee also acknowledges that systemic discrimination
embraces both intentional and effects-based discrimination, and acknowledges the
individual and collective, institutional and structural dimensions of discrimination that
inculcate unfair treatment, exclusion of individuals because of their status, and
differential treatment, based on their sex, age, race, national or ethnic origin, or
religion.71
55. Children who fall pregnant while in school are also girls who need the support of the
State. However, the Committee is mindful that most teenage pregnancies are a result
of complex socio-economic factors that need to be addressed. The Committee, in its
decision on the IHRDA and other v Cameroon case, stated that ’the social
subordination of women that is causing and sustaining gender-based violence is by
itself gender-based discrimination of women’.72 The act of the Respondent State
whereby it is expelling pregnant and married girls perpetuates such negative and
discriminatory attitudes which result in child marriage and teenage pregnancy.
Furthermore, it affirms the societal attitude that discriminates and stigmatises
pregnant girls. The Respondent State can resort to various measures to prevent
teenage pregnancy and marriage among schoolgirls. The Committee strongly asserts
that the adoption of such measures is required from the State as part of its obligation
under the Charter. The Committee would also like to highlight that the prevention of
67 ACHPR, Comm. No. 313/05 (2010), Kenneth Good v. Republic of Botswana, para 219.
68 ACHPR, Comm. No 211/98, Legal Resources Foundation v Zambia, para 67.
69 Ms. X v. Argentina, Case 10.506, Report No. 38/96, Inter-Am.C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at
50 (1997) para 73-75; Inter-American Court of Human Rights, Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism (Article 13 and 29 American Convention on Human
Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para 46.
70 ACERWC, Communication No 007/com/003/2015, Minority Rights Group International and SOSEsclaves v the Republic of Mauritania, 2017, para 61.
71
Sheppard, C. (2009). Systemic Discrimination and Gender Inequality in P Mendes, E., Srighanthan, S., & Mendes,
E. P. (2009). Confronting discrimination and inequality in China: Chinese and Canadian perspectives (p. 233).
72 ACERWC, Communication No. 006/com/002/2015, Institute of Human Rights and Development in Africa
and Finders Groups Initiatives on behalf of TFA v The Republic of Cameroon, 2018, para 61.
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