Women and Justice: Topics: Female genital mutilation or female genital cutting, Harmful traditional practices

Article 10 (A) raised the legal marriage age to 18 from the age of 15. However, Paragraph B of Article 10 carves out discretion for the Judge, upon approval of the Chief Justice, to permit the marriage of anyone who is at least 16 years old if it is deemed to be in his or her best interest based on the Judge’s determination. The person would also acquire a legal capacity in relation to marriage and divorce matters. Article 11 expressly forbids the formation of a marriage agreement where the man is more than 20 years older than the woman, except in the circumstance where the judge has verified the woman’s consent. Before authorizing a marriage, Article 13 requires that: 1) the man has the financial capacity to pay his fiancée’s dowry; 2) the man has the financial capacity to provide marital alimony; and 3) the man disclose to his fiancée that he is already married to another woman; and 4) the court inform the man’s wife or wives of the new marriage contract. In addition, according to Article 21, for a marriage to be valid, the man has to be compatible with the woman in terms of religion and financial capacity. Financial capacity is determined by the capacity to provide dowry promptly and marital alimony if necessary. Article 19 provides that women over the age 18 may marry without the consent of their guardian, if they are of sane mind. Article 37 further allows women to make any stipulations in her marriage contract as she desires, as long as these are not prohibited by Sharia law, do not affect the rights of others, and are not otherwise unlawful. These could include that the husband not prevent her from working outside the home or expel her from the country. Violations of such legal stipulations may result in the nullification of the marriage, and she would be entitled to all her rights associated to the marriage. Not providing marital alimony to the wife (Article 115), and the absence of the husband for a year or more when his place of residence is known (Article 119), not providing marital dowry (Article 139) are all valid grounds for nullifying the marriage according to this Law.

رفعت الفقرة (أ) من المادة 10 سن الزواج ليصبح 18 عام بعدما كان 15 عام، إلا أن الفقرة (ب) من ذات المادة جعلت هناك حالات خاصة يمكن للقاضي فيها السماح بالزواج لمن بلغ عمر 16 عام وذلك في حال كان الزواج ضرورة تقتضيه المصلحة، بعد موافقة قاضي القضاة، وفقًا لتعليمات يصدرها لهذه الغاية. ويكتسب، من تزوج وفق ما سبق، الأهلية الكاملة في كل ما يتعلق بالزواج والفرقة وآثارهما. أما المادة 11 فقد منعت الرجل من عقد زواج على امرأة يكبرها بأكثر من 20 عام دون تأكد القاضي من رضاها واختيارها. بينما أشارت المادة 13 إلى أنه يجب على القاضي التأكد من عدة أمور قبل إجراء عقد زواج المتزوج وهي قدر الزوج المالية على المهر وعلى الإنفاق على ما تجب عليه النفقة، بالإضافة إلى معرفة المخطوبة أن خاطبها متزوج بأخرى. كما أوجبت ذات المادة على المحكمة إبلاغ الزوجات الآوائل بعقد الزواج الجديد بعد إتمامه وذلك بحسب قانون أصول المحاكمات الشرعية. كما نصت المادة 21 أن الكفاءة قس الدين والمال بين المرأة والرجل هي شرط للزوم الزواج، وكفاءة المال تقاس بقدرة الزوج على المهر المعجل ونفقة الزوجة. وبينت المادة 19 أن موافقة الولي لا تشترط في زواج المرأة الثيب العاقلة المتجاوزة من العمر 18 سنة. وذكرت المادة 37 إلى أنه إذا اشترطت الزوجة على زوجها شرطًا تتحق لها به مصلحة غير محظورة شرعًا ولا يمس حق غيرها، مثل أن لا يخرجها من بلدها أو عدم الزواج بغيرها أو أن لا يمنعها من العمل، يعتبر الشرط صحيح وعدم الوفاء بالشروط فسخ العقد بطلب الزوجة ولها أن تطالب بسائر الحقوق الزوجية. عدم تزويد المرأة بالنفقة الزوجية (مادة 115)، وغياب الزوج عن زوجته سنة فأكثر مع معرفة مكان إقامته (مادة 119)، وعجز الزوج عن دفع المهر بعضه أو كله، جميعها أسباب تجعل للمرأة الحق في أن تطلب من القاضي فسخ الزواج.

Parliament enacted this law pursuant to the Supreme Court decision Shayara Bano v. Union of India. Section 3 of the Act bans and voids talaq-e-biddat declarations , while Section 4 stipulates imprisonment of up to three years along with fine for a Muslim man who pronounces talaq. Section 7 of the Act also declares the offence of pronouncing Talaq as a cognizable, non-bailable, and non-compoundable offence. The Act provides additional protections to Muslim women upon whom talaq is pronounced in Sections 5 and 6, including a subsistence allowance from their husband and custody of their children (as determined by the magistrate) respectively.

The Criminal Code (Amendment) Act introduced Section 69A, which prohibits female genital mutilation. In 2007, Parliament amended 69A, and expanded the definition of liability to include anyone who “carries out female genital mutilation and excises, infibulates or otherwise mutilates the whole or any part of the labia minora, labia majora and the clitoris of another person” and specified that liability on summary conviction mandated imprisonment for a minimum of five years and a maximum of 10 years.

As stated in the accompanying Explanatory Memorandum, the Violence Against Persons (Prohibition) Act aims to “prohibit[] all forms of violence against persons in private and public life, and provide[] maximum protection and effective remedies for victims and punishment of offenders.” The Act provides general protections against offenses including infliction of physical injury, coercion, offensive conduct, willfully placing a person in fear of physical injury, willfully making false statements against another person, damage to property with intent to cause distress, and deprivation of personal liberty. The Act also provides protections against offenses that affect women disproportionately, including a prohibition of female genital mutilation; forceful ejection from home; forced financial dependence or economic abuse; forced isolation; emotional, verbal and psychological abuse; harmful widowhood practices; and spousal battery, among others. Notably, the Act defines the offense of rape in Section 1(1) without an exception for marital rape, which had not traditionally been recognized as an offense (note that the Penal Code Act of 1960 does include an exception for marital rape). The Act provides a procedure for injured parties to apply for a protection order and empowers the High Court of the Federal Capital Territory with jurisdiction to hear and grant applications brought under the Act. As stated in Section 47, the Act is a product of federal legislation enacted in regard to criminal law, a residual matter over which the states have exclusive legislative power pursuant to the Nigerian Constitution. Thus, the VAPP Act applies only to the Federal Capital Territory and is not binding law in a state unless adopted by that state.

Article 21 of the Constitution of Republic of Uganda prohibits gender discrimination generally and enshrines the principle of equality before the law, regardless of sex, race, color, ethnicity, tribe, religion, political belief, or social or economic standing. Article 31 sets the minimum age for marriage at 18 and provides for equal rights between men and women during marriage and divorce. Article 33 pertains specifically to the rights of women and requires that (1) the government must provide opportunities to enhance the welfare of women and enable them to reach their full potential, (2) women have rights equal to men in areas including political, economic, and social activities, and (3) laws, customs, traditions, and cultures that are "against the dignity of women" are prohibited by the Constitution. Article 22 enshrines protection for the right to life and allows for abortion in accordance with the law.

The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.

Die Wet op Hervorming van die Gewoontereg van Opvolging en Regulering van Verwante Aangeleenthede 11 (2009)

Geslags diskriminasie, Skadelike traditionele gebruike, Eiendom en erfenisregte​

Die Wet skaf die gebruiklike rëel van primogeniture af vir sover dit van toepassing is op die erfreg en brei die toepassing van de Wet op Intestate Opvolging verder uit op die afgestorwe boedels van Afrikane wat intestaat sterf (sonder ‘n testament) en bevat riglyne vir die inerpretasie van die Intestate Opvolgingswet om uitvoering te gee aan die nuwe bepalings en om die beskerming van die regte van vroue om te erf te verseker.

The AE Act removed inheritance laws unfavorable to widows in civil and registered customary marriages. It recognizes a union contracted according to customary rites, even without formal registration under the Customary Marriages Act of 1951 (currently under Parliamentary review as of July 17, 2019). The AE Act provides that the property of an estate is to be divided by the surviving spouse and the children, regardless of the sex of the children. It also stipulates that a widow whose husband died intestate retains rights to the family’s land upon the death of her husband.

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.

The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.

Article 9 of the FDRE Constitution provides that all international treaties ratified by Ethiopia are integral parts of the law of the land. Similarly, Article 13.2 provides that fundamental rights and freedoms shall be interpreted in a manner conforming to the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia. Ethiopia has ratified many of these treaties including ICCPR, ICESCR, and CEDAW. Article 35 of the FDRE Constitution pertains to the Rights of Women. The article provides for equal rights under the constitution, equal rights with men in marriage, entitlement to affirmative measures, protection from harmful traditional practices, the right to maternity pay, the right to consultation, property rights (including acquiring and controlling and transferring property), employment rights, and access to family planning education. It is worth noting that this article explicitly imposes an obligation and accountability on the state to protect women from violence at Article 35.4: “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.”

The Act regulates sexually transmitted diseases including HIV, provides information for treatment of HIV, and provides punishment for violations. §18.3 of the Act provides that the Ministry of Health and Social Welfare, the Ministry of Education, and the Ministry of Youth and Sports shall provide education on the prevention and control of HIV. §18.4-18.5 provide that educating the public regarding HIV and AIDS is part of the national response, and the government shall train all relevant personnel. While §18.7 provides that all employees shall receive the HIV training regarding the prevention and control of HIV and AIDS. Several portions of the act speak to the rights of women and girls specifically. §18.9(a) of the Act notes that when providing HIV and AIDS service to women and girls differences in sex and gender should be considered. §18.9(b) directs the government agencies, when implementing the strategies, policies and programs to address the following issues: protection of the equality of women in private and public life, to address their rights to refuse sex and to access reproductive services independently, to address men’s equal responsibilities in sexual and reproductive health, to increase educational, economic, and employment opportunities to women, to reduce inequalities in laws regarding marital issues, and to protect women’s rights in religious contexts. §18.9(c) covers pregnant women with HIV and grants them the right to marry. The government shall provide them with consultation and information regarding future pregnancy decisions and the protection of future children from HIV. Section 18.9(d) requires the government to implement national education and training to health care providers to reduce HIV infection caused by sexual assault, protect the confidentiality of the HIV test result, report the sexual violence, and assist the investigation of such violence, and to develop and implement education and training for security personnel and prosecuting authorities in conducting investigations and prosecutions about the sexual violence. §18.27 provides that willful transmission of HIV by an infected person who knows his or her HIV test constitutes first degree felony. §18.28 prohibits discrimination on the basis of HIV status.

This law defines “customary marriage” as the marriage between a man and a woman performed according to the tribal tradition of their locality and provides that a wife’s rights and duties within a customary marriage are the same as a wife’s rights and duties in a statutory marriage (a statutory marriage is a civil marriage license under the Domestic Relations Law). §2.1 provides that all customary marriages are legal, and the duties and liabilities of the statutory wife shall be accorded to all customary wives. §2.2 provides that the husband shall not recover the dowry from the wife or her parents; while §2.3 provides that a customary wife receives one-third of her husband’s property upon marriage. §2.6 provides that a customary wife has exclusive right to the properties she receives before or during the marriage, but she needs the husband’s consent to conduct business in her own name. §2.6 also states, however, that if the husband attempts to control his wife’s property he will have committed theft of property and he will be subject to a fine for such theft. §2.9 establishes that the minimum age for a tribal woman to enter into a customary marriage is 16, while §2.10 provides that the parents shall not choose the husband for their daughter against her will. Various sections provide for the rights of women on the event of her husband’s death: §3.2 states that a widow in a customary marriage is entitled to one-third of her deceased husband’s property; §3.3 provides that the widow has the freedom to enter into a new marriage upon the death of her husband; §3.5 provides that the widow has the right to petition to the probate court to administer the property of the decedent; §3.4 prohibits the husband’s family from compelling a widow to marry her deceased husband’s relative; and §3.7 establishes that the living spouse retain the right to custody of the minor children.

With regards to inheritance law (Arts. 906-915), a widow inherits less than a widower in Iran. A widow inherits one-quarter of her deceased husband’s property if the deceased husband left no children behind, and one-eighth if he did leave children behind. In contrast, a surviving husband inherits half of his deceased wife’s property if she left no children behind and one-quarter if she did leave children behind (Art. 913). Consistent with this pattern, under Iranian Civil Code Article 907, sons inherit twice as much as daughters when a parent is deceased.

According to Iranian law, the husband is the exclusive holder of the position of “head of the family” (Art. 1105). As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times. This is the tamkin (submission) requirement of Sharia law. If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114). If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling. If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)

The Prohibition of Female Genital Mutilation Act (“PFGM”) outlaws all acts of FGM on oneself and others as well as attempts, procurement, and participation. It allows no exceptions for consent, religion, or culture, and creates a duty to report to the police any knowledge of planned or completed FGM. The penalty is imprisonment not to exceed 10 years for the perpetrator and five years for any participants or abettors. Violations are considered aggravated if the FGM causes death, the offender has control over the victim (e.g., a parent or guardian), the victim has a disability, the victim contracts HIV/AIDS, and/or the perpetrator is a health worker. The penalty for aggravated violations is life imprisonment. The PFGM Act also prohibits any discrimination against women and girls who have not undergone FGM and discrimination against male relatives of women who have not undergone FGM.

The appellant, a 22-year-old Somali woman, applied to the Austrian government for asylum and international protection, stating that she was abducted by the Al-Shabaab Militia and her uncle arranged a forced marriage for her. Her application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the reasons stated by the appellant were not credible, too vague, and contradictory. In addition, the fact that she still had family (including her uncle) in Somalia was deemed as sufficient proof that she could lead a life without undue hardship. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, particularly, the fact that it would be unreasonable for the plaintiff to return to her family. The court did not sufficiently investigate and consider that the appellant’s uncle appeared to have beaten her several times, robbed her, locked her up, forced genital mutilation upon her and arranged for a forced wedding. The Court found the appellant’s right to equal treatment violated.

Die Beschwerdeführerin, eine 22-jährige Somalierin, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz mit der Begründung, sie sei von der Al-Shabaab-Miliz entführt und von ihrem Onkel zwangsverheiratet worden. Ihr Antrag auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, die von der Beschwerdeführerin angegebenen Gründe seien nicht glaubwürdig, zu vage und widersprüchlich. Darüber hinaus wurde die Tatsache, dass sie noch Familie (einschließlich ihres Onkels) in Somalia hatte, als ausreichender Beweis dafür angesehen, dass sie ein Leben ohne unzumutbare Härten führen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, weil er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt worden waren, insbesondere die Tatsache, dass es für die Klägerin unzumutbar wäre, zu ihrer Familie zurückzukehren. Das Gericht hat nicht ausreichend untersucht und berücksichtigt, dass der Onkel der Rechtsmittelführerin sie offenbar mehrfach geschlagen, ausgeraubt, eingesperrt, ihr eine Genitalverstümmelung aufgezwungen und eine Zwangshochzeit arrangiert hat. Das Gericht stellte fest, dass das Recht der Beschwerdeführerin auf Gleichbehandlung verletzt wurde.

The petitioner was divorced by her husband after 15 years of marriage by means of the talaq-e-biddat declaration. She filed a writ petition arguing that the declaration was unconstitutional. Talaq-e-biddat is a practice whereby a Muslim man can divorce his wife upon saying “talaq-e-baddat” thrice in one sitting. The wife’s consent is not required in this practice. The Constitutional Bench of the Supreme Court of India declared the practice unconstitutional by a majority vote of 3:2 and injuncted Muslim husbands from pronouncing “Talaq-e-biddat” as a means for severing the marital ties. The court reasoned that the practice is unconstitutional because it is manifestly arbitrary in nature. There was also a concurring opinion which held that the practice of talaq-e-biddat is against the holy Quran and thus lacks legal sanction. In its judgement, the Court also directed the Parliament of India to take appropriate measures to bring related legislation into effect. Consequently, the Muslim Women (Protection of Rights on Marriage) Act came into effect on 31st of July 2019.

The applicant (wife), her husband, and their children lived in Austria and held dual Austrian and Kosovar citizenship. After marriage problems arose between the couple, the husband took the children away from the wife while they were in Kosovo and kept them away from her. The husband’s family wanted to resolve the matter according to Albanian tradition, causing the wife to fear that the children would stay with the father. She thus initiated legal proceedings for the children’s return to Austria. Pursuant to The Hague Convention on the Civil Aspects of International Children Abduction, the Austrian Ministry of Justice requested the Kosovar Ministry of Justice to assist in the children’s return, and the Kosovar authorities initiated proceedings in the country’s courts for such an order. The District Court held hearings in the presence of the husband but without the wife or prosecutor, and ruled for the husband, finding that no abduction had taken place. The Supreme Court quashed the decision and remanded the case for retrial. Following retrial, the District Court again ruled that, under The Hague Convention, returning the children was unnecessary, as it would have a negative impact on the children because they had developed a strong emotional bond with their father, they were attending school in Kosovo, and the couple had marital problems. The Supreme Court affirmed, finding the return of the children might cause them psychological damage. The wife then filed a request for repetition of procedure, arguing that she and the prosecutor were not given the opportunity to participate in the session in which the District Court reviewed the request to return the children. The Supreme Court rejected the request, stating that the procedural parties were the Ministry of Justice and the husband, not the wife, and that the participation of the prosecutor was not legally obligatory. The wife appealed to the Constitutional Court, alleging that her rights guaranteed under Article 31 of the Constitution of Kosovo (Right to Fair and Impartial Trial), and under Article 6 (Right to Fair Trial) of the European Convention on Human Rights and Fundamental Freedoms, had been violated. The Constitutional Court held that by not being present at the session, the wife was unable to refute her husband and was deprived of the possibility of convincing the District Court that the children should be returned. The wife was thus placed at a substantial disadvantage vis-à-vis her opponent, in violation of the principle of equality of arms, which is one aspect of the right to fair trial under European Court of Human Rights case law. Finding the wife’s right to a fair trial violated, the Constitutional Court accordingly invalidated the Supreme Court’s decisions and ordered the District Court to repeat the proceedings and invite the wife to participate. (Also available in Srpski, English, and Türkçe.)

The Court rejected the appeal and upheld the decision of the lower court that a female Muslim high school student was not exempt from compulsory swimming lessons on the grounds of her religion. In the circumstances, there was not sufficient reason to undermine compulsory school attendance of children. The girl's parents had applied to the school for an exemption from swimming lessons on the grounds that Islamic dress custom did not allow their daughter to participate in co-educational swimming lessons. The school had rejected the application but permitted the girl to wear swimwear in accordance with Islamic custom (a burkini).

Das Gericht wies die Revision zurück und bestätigte die Entscheidung der Vorinstanz, dass eine muslimische Schülerin nicht aufgrund ihrer Religion vom obligatorischen Schwimmunterricht befreit werden kann. Unter den gegebenen Umständen gab es keinen ausreichenden Grund, die Schulpflicht von Kindern zu umgehen. Die Eltern des Mädchens hatten bei der Schule eine Befreiung vom Schwimmunterricht mit der Begründung beantragt, dass die islamischen Bekleidungsvorschriften ihrer Tochter die Teilnahme am koedukativen Schwimmunterricht nicht erlaube. Die Schule lehnte den Antrag ab, erlaubte dem Mädchen jedoch, eine dem islamischen Brauch entsprechende Badekleidung (einen Burkini) zu tragen.

The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM. The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.

The applicant was a woman married according to Hindu rites. Accordingly, when her husband died intestate, his parents stood to inherit his estate. The applicant sought a declaratory judgment that the word “spouse” as used in the Intestate Succession Act 81 of 1987 includes a surviving partner to a monogamous Hindu marriage. The Court granted the declaratory judgment and held that the applicant was entitled to inherit from her deceased husband.

Die aansoeker was 'n vrou wat volgens Hindoe tradisie getroud is. Haar man het intestaat gesterf en gevolglik het sy ouers die reg gestaan om sy boedel te erf. Die applikant het 'n verklarende uitspraak aangevra dat die woord "gade" ingesluit word soos in die Intestaat se Erfreg Wet 81 van 1987, as 'n oorlewende vennoot vir 'n monogame Hindoe-huwelik. Die hof het die verklarende uitspraak toegestaan dat die aansoeker geregtig was om van haar oorlede man te erf.

This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.

Hierdie uitspraak het bestaan uit drie verwante sake (BHE, Shibi en SARK) wat saam beslis is en het betrekking op die Afrika gebruiks regsreël van eersgeboortereg. In BHE het 'n moeder 'n saak gemaak om die eiendom van haar oorlede man vir haar dogters te verseker. In Shibi is die applikant volgens die Afrika gewoontereg, die reg ontsê om van die intestate boedel van haar broer te erf. In SAHRC het die Suid-Afrikaanse Menseregte Kommissie en die "Women’s Legal Centre Trust" 'n saak in die openbare belang gebring om die reël van manlike eersgeboortereg wat in artikel 23 van die Swart Administrasie Wet 38 van 1927 ongeldig te verklaar. Die Konstitusionele Hof het artikel 23 ongeldig verklaar wat beteken dat alle boedels van oorledenes onderworpe sal wees aan die Intestaat Opvolgwet 81 van 1987 waaronder weduwees en kinders voordeel kan trek ongeag hul geslag of wettigheid. Die Hof het ook gelas dat boedels onderverdeel word in omstandighede waar die oorledene in ’n poligame huwelik was en deur meer as een eggenoot oorleef word. In welke geval ’n oorlewende eggenoot ’n kind se deel van die intestate boedel erf of ’n waarde van die intestate boedel wat nie die bedrag wat deur die Minister vir Justisie en Grondwetlike Ontwikkeling vasgesteld is, oorskry word soos die kennisgewing in die Staatskoerant nie.

Three plaintiffs from Guinea who underwent female genital mutilation (“FGM”) appealed decisions from the Board of Immigration Appeals (“BIA”), which had denied their claims for relief and withholding of removal under the Convention Against Torture based on FGM. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution, unless the government shows either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the presumption was automatically rebutted because the FGM had already occurred. On appeal, the Second Circuit held that the fact that an applicant had already undergone FGM cannot, in and of itself, rebut the presumption that her life or freedom will be threatened in the future. In doing so, the Second Circuit found that the BIA had committed two significant errors in its analysis. First, it assumed that FGM is a one-time act without placing the burden on the government to show that the individuals in this case are not at risk of further mutilation. Second, to rebut the presumption, the government must show that changed conditions in the country obviate the risk to life or freedom related to the original claim; it is not enough that the particular act of persecution suffered by the victim in the past might not reoccur. The Second Circuit accordingly vacated the BIA decisions and remanded the cases.

An indigenous man was charged with physical violence and threats against his ex-partner (a non-indigenous woman), a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute. The special court issued a restraining order in lieu of detention pending trial. Prosecutors appealed. While the appeal was pending, the man violated the restraining order. The court of appeals vacated the restraining order and ordered detention. On a constitutional appeal to the Supreme Court, the defendant argued that, because of his identity as an indigenous person, his community’s authorities had exclusive jurisdiction to hear the case. The Supreme Court acknowledged that (1) the Organic Law on Indigenous Peoples and Communities creates special jurisdiction authorizing indigenous communities to resolve controversies arising among their members within their lands, (2) this special jurisdiction allows the communities to apply their own laws, and (3) the national courts must recognize the decisions of the communities. But the Court also stressed that international conventions, the national constitution, and special laws (such as the statute) placed limitations on that jurisdiction. The Court cited, for example, Article 9 of the ILO Convention on Indigenous and Tribal Peoples, which provides that “the methods customarily practiced by the peoples concerned for dealing with offenses committed by their members shall be respected,” but only “[t]o the extent compatible with the national legal system and internationally recognized human rights.” More precisely, the Court noted that the statute itself established that indigenous authorities could serve as agents for receiving complaints of violence against women, but only without prejudice to the victim’s right to seek remedy in the special courts. Based on that analysis, the Court held that the special courts have exclusive jurisdiction to hear cases under the statute, regardless of the defendant’s ethnic identify. Notably, the Court ordered that its holding be published as binding precedent.

The appellant appealed his conviction and sentence for injuring his wife, who he inherited according to customary practice after her husband died in 2002. On November 8, 2013, his wife attempted to pack clothes to visit her children in Nairobi. The appellant refused to let his wife travel and threatened to murder her. The appellant cut both of his wife’s arms using a panga (machete), but she managed to escape to her nephew’s home. The nephew saw the appellant armed with the panga and a knife before taking his aunt to the police station and later the hospital. The appellant was convicted of Grievous Harm Contrary to Section 234 of the Penal Code and sentenced to seven years imprisonment. He appealed, arguing that the trial court failed to consider that this was a mere domestic issue that could have been resolved by village elders. The appellant asked for a non-custodial sentence citing the fact he was an elderly man (78 years old). The High Court upheld the conviction and the sentence, noting, “The appellant’s actions amounted to violence against women. It is my view a gender-based violence which the court cannot condone or tolerate and let perpetrators of violence against women and girls go unpunished.” This case demonstrates the relationship between the criminal courts in Kenya and customary law.

The appellant was the maternal grandfather of two minor children (the subject of the application). The appellant was appealing a decision of the trial court which ordered that the children be placed the custody of their biological father (the respondent). The children stayed with the appellant for a period of time while the respondent pursued his education in South Africa. Upon the respondent’s return, he fetched the children from the applicant’s residence. One of the appellant’s arguments was that because the marriage between the appellant’s deceased daughter and the respondent was invalid under Swazi law, the custody of the children should be with the maternal family (in accordance with Swazi law and custom). The Court stated that Section 29(4) of the Constitution removes the distinction between legitimate and illegitimate children as it states that children whether born in or out of wedlock shall enjoy the same protection and rights. The Court found that the most important considerations were the welfare, interests and happiness of the children. The Court found that no evidence was adduced to prove that the respondent was not fit to have custody over the children and the appeal was dismissed.

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters. After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance. The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate. The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom. The judge thus held that none of the daughters could inherit from their father’s estate. In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate. On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community. The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied. The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.

This case legalized same-sex marriage in Pennsylvania. Reviewing the state’s statutory ban on such marriages, the federal district court applied intermediate scrutiny and determined that the ban violated the Due Process and Equal Protection clauses of the United States Constitution. The ruling was not stayed and same-sex couples in Pennsylvania could request and receive marriage licenses immediately, and marry after a mandatory 3-day waiting period. The court’s decision made Pennsylvania the 19th state to recognize same-sex marriage.

The three defendants were indicted for the murder of Nabwire Harriet and Nakamate Gaita, an infant. August 27, 2002, the family received an anonymous letter telling them to leave their house, which they reported to authorities. The next night, the defendants poured petrol through the window and set the house on fire. Defendant Seruga hired the other two defendants to burn the house because they believed they family was practicing witchcraft. The defendants were seen together the night of the fire and heard discussing how they committed the crime afterwards. After their arrest, the defendants confessed to working together to set the fire, which they recanted at arraignment. The trial court found them guilty and sentenced the three to death, but vacated the second death sentences for the second victim because an execution cannot be carried out twice.

The minor applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria (“FAAA”) denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, finding that the FAAA erred in summarily denying asylum based on the applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court found that the applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Furthermore, a return would mean that the applicant would be raised to be a homemaker and married to a man chosen by her father and grandfather. The Court concluded that, if returned to Afghanistan, the applicant would find herself in a situation of permanent latent threats, structural violence, and immediate restrictions that would practically make it impossible for her to exercise her human rights. In granting the applicant’s asylum claim, the Court considered both gender-specific and child-specific factors that were not brought forth by the applicant, but rather gathered from credible investigative sources.

Die minderjährige Beschwerdeführerin ist afghanische Staatsbürgerin und Angehörige der Volksgruppe der Hazara. Sie wanderte gemeinsam mit ihren Eltern und vier minderjährigen Geschwistern illegal nach Österreich ein, als sie ungefähr neun Jahre alt war. Das Österreichische Bundesasylamt lehnte ihren Asylantrag und den ihrer Familie ab. Der Asylgerichtshof hat der Beschwerde der Beschwerdeführerin stattgegeben und ihr den Status einer Asylberechtigten zuerkannt. Nach Auffassung des Asylgerichtshofs lehnte das Bundesasylamt fehlerhaft den Antrag aufgrund der Angaben der Beschwerdeführerin ab, ohne weitere externe Berichte oder sonstige Quellen in Betracht zu ziehen, die ebenso relevant für die Beurteilung des entsprechenden Asylantrags sind. Der Asylgerichtshof stellte fest, dass die Beschwerdeführerin einer bestimmten sozialen Gruppe aufgrund ihres Geschlechts, Alters und kultureller oder religiöser Herkunft angehört, sodass sie in Übereinstimmung mit den konservativen Werten ihrer Familie leben müsste, sollte sie nach Afghanistan zurückkehren. Unter diesen Umständen würde ihr das Verfolgen von Zielen außerhalb der Religion und den Gepflogenheiten ihrer Gemeinschaft verwehrt. Sie wäre des Weiteren nicht in der Lage, sich gegen Gewalt oder ungewollte Restriktionen zu wehren. Außerdem würde eine Rückkehr für sie bedeuten, als Hausfrau und Mutter erzogen zu werden, bis sie an einen Mann verheiratet würde, den entweder Vater oder Großvater für sie aussuchen. Der Gerichtshof hat daher festgestellt, dass die Beschwerdeführerin, sollte sie nach Afghanistan zurückkehren, sich in einem Klima ständiger latenter Gefahr, struktureller Gewalt und unmittelbarer Einschränkungen wiederfinden würde, die es ihrer praktisch unmöglich machen, ihre Menschenrechte auszuüben. Indem der Gerichtshof, dem Antrag der Beschwerdeführerin stattgab, hat er sowohl geschlechtsspezifische und kind-spezifische Faktoren erwogen, die nicht von der Beschwerdeführerin vorgebracht wurden, allerdings aus glaubwürdigen investigativen Quellen stammen.

Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.

A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.

The claimant, of Tajik descent, had a high school diploma, was an active member of a left-leaning political organization, and was a volunteer teacher for girls while she lived in Afghanistan. The Taliban arrested a friend of the claimant who worked for UNICEF and had also pressured the claimant’s family to provide details about her whereabouts. Once the Taliban occupied her village, she and her husband hid with a relative before traveling to the Netherlands. In 2008, the claimant filed an application on behalf of herself and her minor children (two daughters and a son) under the Aliens Act 2000, citing Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant argued that they were subject to inhumane treatment if they were forced to return to Afghanistan. The District Court noted that the policy relied upon did not take into account the situation of Westernized women in Afghanistan, who were at risk just having lived in Westernized society. The District Court noted that the evidence showed that not only was security a risk to all in Afghanistan, but that treatment of women and girls had deteriorated even further since the rejection of the 2003 application. Finally, the District Court referred to reports submitted in the case, noting that women returning to Afghanistan from Europe or Iran are perceived as having violated religious and social norms and, as a result, are subject to honor crimes, domestic violence, isolation and other forms of punishment. The District Court found the claimant’s appeal to be well-founded, destroyed the contested decision, and ordered the government to issue a decision taking the District Court’s findings into consideration.

The government had denied three of the claimant’s applications for residence under the Aliens Act 2000. The appeal stemmed from the dispute about whether the claimant’s minor daughter was at risk for inhuman treatment (specifically, FGM) in Chad under the European Convention on Human Rights. The claimant argued that her daughter was, as a Hadjarai woman, “very strongly” at risk of FGM, and she herself had been circumcised. The government denied that FGM is a matter of tradition, ethnicity, and religion and claimed that the claimant’s story was inconsistent with what was known about FGM in Chad. The District Court found that the government’s decision was subject to review referring to a U.S. Department of State report that stated that though violence against women and FGM were prohibited by law in Chad, FGM was widespread, deeply rooted in tradition and rarely prosecuted. Further, 93% of Hadjarari women were circumcised. The District Court ordered the government to decide the claimant’s application in light of the Court’s findings.

The appellant, a Bedouin man, was convicted for murder with malice aforethought for killing his sister after she insisted that she would travel to Egypt alone. The appellant claimed that his charge should be reduced as the killing was the result of provocation. He further argued that the court should take into account that he was defending his family honor, as it was unacceptable in Bedouin culture for unmarried women to travel alone. The court ruled that no argument of “family honor” as a motive for killing someone will be allowed by a court in Israel. The human dignity of the victim and the sanctity of life take precedence over family honor.

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of 12 from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.

Ms. Abankwah, a native of Ghana, was a member of a tribe that punishes women who engage in premarital sex with female genital mutilation (“FGM”). While Ms. Abankwah was away from her tribe, she had a sexual relationship. Subsequently, she learned that she would be the next Queen Mother of her tribe, a position that requires a woman to remain a virgin until marriage. She knew this meant the tribe would discover she had engaged in premarital sex and she would be punished with FGM. Ms. Abankwah fled but her tribe came after her. She decided it was unsafe for her to remain in Ghana and purchased a falsified Ghanaian passport and U.S. visa and fled to the United States. Immigration authorities arrested Ms. Abankwah when she arrived in the United States and commenced deportation proceedings against her. Ms. Abankwah sought to remain in the United States by seeking asylum. To obtain asylum, she needed to establish, among other requirements, that she was unable or unwilling to return to her native country because of a “well-founded” fear of persecution, pursuant to section 208(b)(1) of the Immigration and Nationality Act, 8 U.S.C. section 1158(a). Ms. Abankwah explained that she feared returning to Ghana because, if she did, her tribe would perform FGM on her. The immigration court denied her petition for asylum because it concluded that her fear of FGM was not objectively reasonable. On appeal, however, the court found that Ms. Abankwah was a credible witness and her fear was objectively reasonable because it was “based on her knowledge of and experience with customs of her tribe.” As such, Ms. Abankwah was granted asylum and allowed to stay in the United States.

The petitioners requested the constitutional review of Civil Code provisions which establish the traditional "house head system" (Ho-jue jae-do) which holds that a household is formed around the male, and passes down only through direct male descendants serving as successive house heads. Under this system, male members are always recorded as the head of family in the Family Registry, and hold superior inheritance rights over female members. The Court held that the provisions which establish the "house head system" are unconstitutional. The Court held that this system is a "statutory device to form a family with male lineage at the center and perpetuate it to successive generations." Furthermore, the system discriminates both men and women because it determines the order of succession, and effects marital relations and parent-children relationships. The Court held that family relationships are changing, from authoritarian to democratic relationships, where "all family members are equally respected as individuals with dignity regardless of sex."

The first appellant, P, was seeking asylum from being returned to Kenya on the grounds of a fear of persecution because of the violence that both she and her children had suffered from her husband in Kenya, especially as domestic violence tends to be accepted in Kenya and the police had not effectively protected her against her husband. The second appellant, M, seeks asylum on the grounds of fearing that she would be subjected to female genital mutilation at the hands of her father, who is a member of the Mungiki sect that practices FGM, and who had already previously performed FGM on her mother, causing her mother's death. The Court allowed both appeals for asylum, but did stipulate that not all cases of either domestic violence or FGM would automatically give rise to a claim to protection and asylum.

The Supreme Court ordered that all marriages be registered in order to prevent child marriage.

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married. The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act. It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR.

In a case challenging the constitutionality of a Ministry of Education directive setting minimum standards for pre-schools, the Court reiterated the rights of both boys and girls to receive at least a certain minimum level of education.

En un caso que impugna la constitucionalidad de una directiva del Ministerio de Educación que establece estándares mínimos para las escuelas preescolares, la Corte reiteró los derechos de niños y niñas a recibir al menos un cierto nivel mínimo de educación.

A woman, harassed by her husband and in-laws for additional dowry, committed suicide by jumping into a well with her baby. The trial court acquitted the accused because the prosecution did not prove the case. The Court reversed, holiding that if the facts necessary to create a presumption of dowry-death are shown, the burden of proof shifts to the defendant and not the prosecution.

In this case, a woman's in-laws repeatedly demanded additional gifts from her. As a result of this harassment, the woman committed suicide. The Court defined dowry as any demand for gifts in relation to marriage and dowry death as a death within seven years of marriage where there have been demands for dowry.

D.T., a Christian born in Nigeria, married a Muslim. Her parents were against the marriage, and when she was pregnant, they threatened to kill the baby. After her husband died, she was forced to drink the water used to bathe his corpse and to sleep in the room with the corpse for three days. With help, she escaped and traveled to Canada where she gave birth to her son. Her son suffers from conditions, including a heart murmur, malformation of his meniscus and attention deficit hyperactivity disorder (ADHD). D.T. applied for asylum, but Canada denied her application because it found that she failed to provide materials or documentation establishing her identity and her claims. Canada dismissed her application for judicial review and ordered her to leave Canada with her seven-year-old son. To the Committee, D.T. argued that Canada’s decision violated articles 17 and 23(1) of the Covenant, that her son is also the victim of a violation of article 24(1), and that they face a risk of irreparable harm if deported to Nigeria, which has education and health care facilities inadequate to meet her son’s needs. Further, if her son remained in Canada as a citizen, it would result in family separation from his sole caregiver. The Committee concluded that given that there was no evidence that that the child had any alternative adult support network in Canada, it was foreseeable that D.T. would take her son to Nigeria. Therefore, Canada did not adequately explain why its legitimate objective in upholding its immigration policy should have outweighed the best interests of the D.T.’s child nor how that objective could justify the degree of hardship that confronted the family because of the decision to deport the mother. Acting under article 5(4) of the Optional Protocol, the Committee found the removal resulted in arbitrary interference with the right to family life in breach of article 17(1) and article 23(1) of the covenant with respect to D.T. and her son, and that it violated article 24 due to a failure to provide her son with the necessary measures of protection owed to him by Canada. Canada was ordered to provide D.T. with an effective re-evaluation of her claims, based on an assessment of the best interests of the child, including his health and educational needs, and to provide her with adequate compensation. The Committee stated that Canada also is under an obligation to avoid similar violations in the future and to publish the Views and have them widely disseminated in Canada in French and English.

The applicant was severely beaten by her husband when she intervened to prevent the clitoral excision, also known as female genital mutilation or cutting, of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where the applicant claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. The applicant then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. The applicant included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm the applicant if he ever saw her again, or kill her if she did not return his daughter to him. The applicant's husband had subsequently obtained a court order forcing the applicant's brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that the applicant's daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, the applicant cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7's prohibition of torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although the applicant's daughter was 15 the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.

Ms M.V. (the claimant) was sterilized while giving birth to her second child. She was informed that sterilization would be performed on her shortly before delivery by C-section, to which she did not give her written consent. The day after giving birth, while inquiring about her own health and that of her child, she was informed that sterilization was performed due to health reasons, as another pregnancy could be dangerous. She was given a form to sign for the “sake of her health,” which she did without reading or inquiring due to her concerns about the well-being of her newborn child. The claimant only later found out that sterilization was not a “life-saving” procedure after speaking with a representative from a non-governmental organization. Her claim was dismissed by the district and regional courts based on hospital records which contained her written consent and the testimonies of the doctors and other staff members. She filed a claim with the Constitutional Court which held that the decisions of the district and regional courts did not sufficiently address the claimants claims, in breach of the claimants' right to a fair trial. The Constitutional Court awarded the claimant EUR 1,500 damages and ordered the re-examination of the matter by the district court.

Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.

Human Rights Watch report on female genital mutilation in Iraqi Kurdistan.