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 recognised 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
page 259 of his work Le Droit International et Européen des Droits de l'Homme (2005 edition), "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
× All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.
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 recognised 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
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