Hadijatou Mani v Niger
Forum: ECOWAS Community Court of Justice
INTERIGHTS' role: Co-applicant
Keywords: Slavery, equality, private life, marriage
Click here for an update on the case (July 2009)
Click here to read Hadijatou Mani Koroua v Niger: Slavery Unveiled by the ECOWAS Court, an article by Helen Duffy, Litigation Director at INTERIGHTS and co-counsel in the case, published in the Human Rights Law Review (Volume 9 Number 1 2009)
Niger has been found responsible for failing to protect 24-year-old Hadijatou Mani from slavery. The judgment was delivered in Niamey, the capital of Niger, on Monday 27 October 2008 by the Community Court of Justice of the Economic Community of West African States (ECOWAS).
The Court, which has authority across most of West Africa, found Niger in breach of its own laws and international obligations in protecting its citizens from slavery. The Court has made clear that Niger is obliged to take positive measures to protect its citizens from slavery. Ms Mani is to be compensated 10 million CFA, the equivalent of £12,300/$19,000 in damages.
The Court in its judgement stated that: 'There is no doubt that Hadijatou Mani was held in slavery for almost 9 years in violation of the legal prohibition on this practice.'
Niger criminalised slavery in 2003, but five years on at least 43,000 people remain enslaved across the country. Hadijatou was born into an established slave class and like all slaves in Niger, was inherited, sold and made to work without pay. She was also used as a sexual slave by her master.
Ms Mani brought the case to the regional ECOWAS court after failing to receive any redress in Niger’s domestic legal system and state authorities, which had at times been complicit in her master’s attempts to deny her freedom.
The case also follows Ms Mani serving two months of a six month prison sentence for bigamy. The charge of bigamy was made following her legal attempts to gain freedom and marrying a man of her own choosing. The judgment is recognition of the long standing abuses she has suffered.
Local lawyers were assisted in bringing the case by INTERIGHTS, the International Centre for the Legal Protection of Human Rights, with support from Anti-Slavery International and Niger NGO Timidria.
Hadijatou Mani said: 'I am very thankful for this decision. It was very difficult to challenge my former master and to speak out when people see you as nothing more than a slave. But I knew that this was the only way to protect my child from suffering the same fate as myself. Nobody deserves to be enslaved. We are all equal and deserve to be treated the same. I hope that everybody in slavery today can find their freedom. No woman should suffer the way I did.'
'With the compensation I will be able to build a house, raise animals and farm land to support my family. I will also be able to send my children to school so they can have the education I was never allowed as a slave.'
Romana Cacchioli, Africa Programme Co-ordinator for Anti-Slavery International, said: 'There is nothing more fundamental than the right to freedom. People in Niger now know that if a slave can take the state to court and win, then they too can confidently stand up for their human rights.'
'This historic verdict sets a legal precedent that we can take to neighbouring states where slavery remains an issue. Niger now needs to look closely at its customary law courts to ensure that there is an end to the discrimination of women and to the acceptance of slavery at a local level.'
Helen Duffy, Legal Director at INTERIGHTS said: 'For Hadijatou Mani this judgment is international recognition of the long standing violations of her most fundamental human rights. During her testimony before the Court she said she was treated like a goat. Today's judgement reasserts her rights as a human being. For the ten of thousands of others trapped in slavery across Niger the ruling sends an unequivocal message that the long standing provisions on slavery must be given meaning in practice.'
Ilguilas Weila, President of Timidria, an anti-slavery NGO in Niger, says: 'For 17 years we have been working towards bringing slavery to the attention of the authorities. Previously there has been a lack of political will to deal with the situation on the ground. The law in 2003 was passed only as part of a charm offensive to please westerners. This verdict means that the state of Niger will now have to resolve this problem once and for all.'
This was the fist time that the ECOWAS Court has heard a slavery case and the first time a slavery case has been brought against the state of Niger to any international or regional court.
The ruling sets a legal precedent with respect to the obligations of states to protect its citizens from slavery. The ECOWAS Court decisions are binding, and the human rights obligations the Court interprets are applicable to all member states.
To read an unofficial English translation of the judgment click here. For the avoidance of doubt INTERIGHTS is providing this unofficial translation in order to assist in the communication of this judgment to English speakers however please note that it is an unofficial translation. INTERIGHTS is not responsible for errors or omissions arising from the use of the information contained in this unofficial translation.
Analysis of the judgment
In its judgment, the Community Court of Justice of the Economic Community of West African States (ECOWAS) held that the applicant, Hadijatou Mani Koraou, had been a victim of slavery and that the Republic of Niger had failed in its duty to protect Hadijatou, contrary to its obligations under international law. The judgment highlights the tremendous suffering endured by Hadijatou, the grave wrongs perpetrated against her during the course of her enslavement and the fact that there is an absolute prohibition on slavery under international law.
Hadijatou was represented by Nigerien lawyer M Chaibou, with INTERIGHTS acting as co-counsel. The case was supported by Anti-Slavery International and local partner organisation Timidria. This is the first case ever taken concerning the widespread practice of slavery in Niger and is one of the very few slavery cases heard before an international court of law. The judgment is binding on states that are members of ECOWAS so it will have effect in many other West African states.
In 1996, when Hadijatou was only twelve (12) years old, she was sold to a local tribal chief, El Hadj Souleymane Naroua, for two hundred and forty thousand (240,000) CFA francs. This transaction took place in accordance with customary practice in Niger, called ‘Wahiya’, which allows for young girls, generally slaves, to be acquired to work as a servant and as a concubine. A slave bought under these conditions is known as a ‘Sadaka’ and is regarded by her ‘master’ as being available to engage in sexual relations at any time, day or night. Hadijatou was sexually assaulted by El Hadj Souleymane Naroua for the first time when she was 12 years old. Thereafter, for nearly ten years, Hadijatou suffered psychological and physical abuse, sexual exploitation, hard labour, insults, threats and humiliation, and complete control over her life by El Hadj Souleymane Naroua. During those ten years Hadijatou gave birth to four children, all fathered by El Hadj Souleymane Naroua, two of whom survived.
On the 18th August 2005 Hadijatou was given her ‘Liberation Certificate’ purporting to release her from enslavement. When she tried to leave the household of El Hadj Souleymane Naroua he claimed that she was his wife and was therefore not entitled to leave. It was only through pretending to have to visit her sick mother that she was able to escape. When Hadijatou subsequently got married to Ladan Rabo, and following a complaint by El Hadj Souleymane Naroua that she committed bigamy, she spent two months in jail.
Issues before the Court
The Court was asked to rule on allegations of violations of a number of Hadijatou’s human rights. It was asked to pronounce on the responsibility of the defendant state in relation to violations in respect of the prohibition on slavery, discrimination on the grounds of gender and social origin, and arbitrary detention.
‘Undoubtedly’ a Case of Slavery
The judgment is unequivocal in its condemnation of the circumstances of Hadijatou’s life as slavery. The Court sets out, in detail, the arguments put forward by INTERIGHTS on the nature and definitions of slavery in contemporary international practice. It highlights the material and moral elements of slavery. By reference to international conventions and the practice of international criminal tribunals, it signals the exercise of powers normally associated with ownership as well as certain factors of control over the human being, as the key indicators of slavery. It concludes that 'there can be no doubt that the applicant was held in slavery for 9 years, in violation of the prohibition on this practice' (para. 80).
The State’s Responsibility for Slavery in International Law
The judgment reaffirms the long established prohibition of slavery in international law. It notes that the prohibition is absolute as a matter of international law. It cites the erga omnes nature of the obligations relating to slavery as being owed to the community of nations as a whole (para. 81). As one of few slavery cases ever to be brought on the international level, it makes a significant contribution to the body of jurisprudence on this subject.
The judgment notes the need for the state to take positive measures to protect its citizens from slavery. It records the failure of the judiciary in this case to condemn the practice of slavery, when Hadijatou’s case came to its attention. It described this failure to act in the interests of public order to protect her as amounting to acceptance or at least tolerance of the practice of slavery (para. 84). While the judgment does not address in detail the nature of states positive obligations to prevent slavery, it does note the obligation of the authorities to take adequate measures to ensure that acts of slavery are repressed. As a result, the Court found the state legally responsible for its failure to protect the victim from slavery. At several points the Court reiterated that Niger had failed through its judicial and administrative authorities to discharge its protective human rights function (para. 85 - 86).
Hadijatou claimed that she was a victim of discrimination on gender and social origin grounds, in violation of the African Charter of Human and Peoples’ Rights. She also claimed that she did not enjoy equality before the law. It was claimed that the sale of a woman to a man to serve as a concubine is a practice that affects women only and therefore constitutes discrimination based on gender. It was also claimed that the fact that Hadijatou could not consent freely to marriage or divorce amounted to discrimination based on her social origin. The Court acknowledged the practice of ‘Wahiya’, involving young girls being kept under the control of their male masters, however despite clear submissions being made on this issue on Hadijatou’s behalf the Court failed to address the issue of discrimination based on gender in the judgment. The Court did recognise that the nature of the slavery suffered by Hadijatou amounted to discrimination on the ground of social origin. However it held that this discrimination was the responsibility of El Hadj Souleymane Naroua, and not the responsibility of Niger (para. 71). This approach failed to have regard to international law where the state is responsible when it fails to take the appropriate measures to protect women from the sort of violence and discrimination inherent in this case.
In international law, detention is arbitrary when it is deprived of any legal basis. This takes into consideration unfair judicial proceedings where decisions on detention are taken. If it is ill-founded, then it cannot constitute the legal basis of the detention and the detention cannot be found lawful.
The Court determined that Hadijatou’s two month detention did not amount to arbitrary detention. The Court based its decision on the fact that the detention had a 'legal basis' simply by virtue of the fact it was imposed by a domestic court. It further stated that a domestic court’s decision will have a legal basis 'whether it is ill-founded or not' (para. 91). The Court did not consider whether the laws the domestic court applied were arbitrary and contrary to international law. Hadijatou’s trial in the domestic court does seem to have been in breach of the right to equality before the law. In reaching its decision the domestic court relied on legislation which was discriminatory and itself contrary to international law.
The Court decided that the state had caused Hadijatou harm and that it is obliged to indemnify her. It ordered the state to pay compensation to Hadijatou to the sum of 10,000,000 cfa (approximately 20,000 US$). In deciding the issue of compensation the Court has regard to the 'physical, psychological and moral harm due to the nine (09) years during which she was held in slavery' (para. 96) The Court does not make any suggestion as to how Niger could implement provisions to ensure compliance with international legal norms and standards.
The Role of the ECOWAS COURT
This is the first judgment of the ECOWAS court to address serious human rights violations. It heralds an important role for this and potentially other regional economic courts in the determination of human rights issues. While less experienced in human rights law than certain other bodies, the court showed itself open and receptive to international and comparative law arguments. It sat in the state where the violations occurred, therefore allowing critical access by the victim, witnesses and civil society to the court proceedings, with an important impact on the debate on slavery in Niger. The court heard the case and issued judgement in a relatively short period of time.
Critically, this court issues binding judgements which the state must implement. This case illustrates the potential importance of this court’s role in the protection of human rights in West Africa.
The challenge in this case now lies in ensuring its implementation. The state has been found in breach of its obligations in respect of slavery and it must now remedy this wrong. The state must now consider how it can give meaningful effect to its international obligations and establish a comprehensive plan of action to this end. The sort of measures that it will need to take to address the problem that the court has highlighted will include capacity building and awareness raising among those judicial and administrative organs of the state that were criticised by the court, as well as a serious programme of investigation and prosecution of all those responsible for slavery. It is also obliged to provide compensation to Hadijatou as ordered in the judgment. The state must notify the ECOWAS authorities of its developments towards effective implementation of this historic binding judgment.
Update on the case, July 2009
This note provides a short update on the implementation and follow up of that judgment, the transformative impact on Hadijatou Mani’s life and the on-going contribution to the challenge of eradicating slavery in Niger.
Immediately following the ECOWAS Court’s judgment, the government of Niger committed to respecting the judgment, which it acknowledged was binding on it. On 17 March 2009, the government paid the compensation due to Hadijatou in full. As a result Hadijatou has rebuilt her modest home, which she shares with her mother and her young child, and bought several cows and goats that enable her to be economically self sufficient. She has invested some of the monetary award in savings for her family for the future. The criminal case against her for bigamy, which had been pending throughout the ECOWAS proceedings, has been lifted and she is now a free woman living as part of a family and a community.
Hadijatou has been honoured for her courage in various contexts, including being awarded the US State Department’s ‘International Woman of Courage award 2009'. US Secretary of State Hilary Clinton said of Hadijatou and her case:
Hadijatou is such an inspiring person. Enslaved by being sold at a very young age, she never gave up on herself or on her deep reservoir of human dignity. When she finally escaped from slavery, she didn’t forget those who were still enslaved. For her inspiring courage in successfully challenging an entrenched system of caste-based slavery, and securing a legal precedent that will help countless others seek freedom and justice, we honour and salute her.
As a result of the case, Hadijatou was named in Time Magazine as one of the top 100 most influential people in 2009. Click here for further details.
The judgment has had broader positive repercussions for the slavery in Niger and beyond, notably in neighbouring states with parallel problems. In Niger since the judgment approximately 30 women have come forth to anti slavery organisations to seek their own ’liberation’. Prompted by the case, our partner organisation Anti Slavery International and the Danish Institute for Human Rights are embarking on a programme of training in human rights standards and the use of the ECOWAS proceedings with the Nigerien judiciary. The case received widespread media coverage in Niger, neighbouring states and internationally (including by 300 international news outlets). On the personal, social and institutional level there is cause for optimism that the case has already had, and will continue to have, a transformative effect.
At the same time, while developments have been made towards holding Hadijatou’s former master accountable for her enslavement, progress in this respect has been faltering and inadequate. While Elhadji Souleymane Naroua has been found guilty of slavery, almost unheard of in Niger before this case, the penalties imposed have been derisory given the gravity of the crimes. On 31 March 2009 he was condemned for slavery and a sentence of 12 months imprisonment was imposed, with a fine of 500,000 francs CFA and 1 million francs CFA damages awarded to Hadijatou. Naroua lodged an appeal with the Tribunal Correctionelle of Konni, which heard the case on 30 June 2009 and sentenced him to a three year suspended sentence and reduced the amount he was ordered to pay Hadijatou to 500,000 francs CFA – less than £500. INTERIGHTS had supported Hadijatou’s local counsel, M Abdourahmoun Chaibou, in providing arguments to the court on proportionate penalties in international law. Impunity for slavery is pervasive in Niger and, as this case shows, will clearly be one of the most challenging aspects of full implementation of the spirit of the Hadijatou judgment. The authorities continue to be under pressure to investigate the enslavement of another six women held in Naroua’s home, as the struggle for accountability and effective prevention of slavery continues.