Respondent State violated Articles 3 and 18(3) of the Charter, Article 2 of
the Maputo Protocol, Article 3 of the ICCPR, and Articles 2 and 16(1) of the
CEDAW.
49. The Applicant further contends that even if Article 6 of the Law of 24 August
2004 was amended by the Law of 20 December 2021, this does not resolve
all the human rights issues raised in the application. However, he does not
specify what other "issues" he refers to, apart from the allegation mentioned
above.
50. In response, the Respondent State argues that the choice of surname
depends on the social order of each State. It explains that the social,
cultural, political and legal order within the family is based on patrilineal
filiation, and in such a system, the man, as father, is the repository of
authority within the family. Furthermore, that, the preservation of this
authority is based on descent through males, and hence the transmission
of the patronymic surname through the father. The Respondent State
asserts that this traditional mode of transmission was recognised through
the law that was duly adopted by the National Assembly as being the
expression of the will of the sovereign people.
51. The Respondent State therefore submits that Article 6 of the Law of 24
August 2004 protects the child by ensuring his or her right to a surname,
which is consistent with the established social order and does not infringe
on the rights of women. The Respondent State did not submit on the
amendment law of 20 December 2021.
52. In reply, the Applicant submits that although it is not in dispute that the
National Assembly is vicariously the voice of the people, the fact remains
that the said Assembly, when drafting laws, must take into account respect
for human rights, as provided for and protected by the international
instruments ratified by the Respondent State.
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