including forced labor or sexual exploitation." 42 The Complainants also refer to
Article 5 and 7 of the United Nations High Commissioner For Human Rights
Principles and Guidelines on Human Rights and Trafficking43; CEDAW's General
Recommendation No 38 of 2020; Article 6(5), 6(6), 6(8), 9(2) of the Palermo
Protocol; to elaborate the importance of an adequate Law enforcement in response
to human trafficking.
116.
In their second argument, the Complainants aver that the Respondent State
has violated Articles 2 and 18(3) of the Charter and Article 2 of the Maputo
Protocol by discriminating against the victim. They contend that the victim was
subjected to human trafficking for sexual exploitation and that constitutes
discrimination. The Complainants refer to CEDAW General Comment 35 of 2017
which interprets the non-discrimination clause to be a due diligence obligation in
which States should be held responsible should they fail to prevent, investigate,
punish and provide reparation in cases of Gender Based Violence (GBV).
117.
The Complainants also request the Commission to "substantive equality
approach to determine multiple-discrimination on the basis of sex, gender and
age". Here, the Complainants submit that the Commission should abandon the
"Comparator test" for discrimination and instead apply a test that is based on the
victim's disadvantage, recognizing the systematic way in which women are
subjected to sexual violence.
118.
In their final submission, the Complainants seek a declaration from the
Commission that the Respondent State violated Articles 2; 5 and 18(3) of the
Charter and Articles 2; 4(2)(g) of the Maputo Protocol. The Complainants further
appeal for the victim to be awarded $20 000 in compensation and $50 000 to cover
medical costs.
The Respondent State's submissions on the merits
119.
TheRespondentStatesubmitsthatatallrelevant ·
Article 1 of the Charter and all its due diligence obl.
~
~-f\4:>.11
liedwith
·t that the
due diligence test the Commission ought to use is
of diligence, responsibility or prudence exercised b
the jurisprudence of the ECOW AS Court of Ju
jurisprudence of the ECOWAS Court of Justice,
42 Article 3(a)
43 /2002/68/ Add.1 (2002).
44 IHRDA & WARDC (on behalf of Mary Sunday) v The Federal Republic of Nigeria 2018
25
" citing
on the
·gence