London, 19 October 2009
Today, the Equal Rights Trust (ERT) has called on members of the National Assembly of Mali to ensure that the draft Persons and Family Code is not regressively amended in response to concerns about the extension of equal rights for women.
In a letter to National Assembly President Dioncounda Traoré, ERT says that ‘there is much to be welcomed in the Code’ and expresses its concern that progressive articles will be amended or removed in response to hostile pressure in recent months over the enactment of the Code. However, ERT also identifies three articles in the Code which undermine the principles of equal participation and non-discrimination, and calls for these provisions to be amended before the Code is adopted to avoid putting Mali in breach of its international obligations.
ERT’s letter comes as Mali’s parliament debates the bill at second reading, after President Amadou Touré refused to sign the new Code into law amid protests led by Islamic leaders in late August. Citing the need to ‘ensure calm and a peaceful society’, President Touré asked parliamentarians to look again at a small number of provisions which had drawn criticism.
Progressive elements of the draft Code
In its letter, ERT urges members of the National Assembly not to amend or remove articles from the draft which extend rights for women, including:
- Article 3, which states that no one can be discriminated against due to their genetic attributes.
- Article 282, which sets the minimum age for marriage to 18 for girls. The current law sets a minimum age of 18 for males and 15 for females.
- Article 284, which sets out that marriages will be considered void in the absence of consent by both parties.
- Article 313, which states that spouses have joint responsibility for the wellbeing of the family. The current law states that a woman should obey her husband.
- Article 320, which provides a right to divorce by mutual agreement.
- Articles 559-605, which replace the term “paternal power” used in Article 86 of the current Marriage and Guardianship Code with the “parental authority” and provide for both parents to share parental rights and responsibility.
- Article 769, which sets out the rights to inheritance of children, descendants, parents and siblings on an equal basis.
- Articles 793, 794 and 795, which ensure that both male and female spouses can inherit equally in cases of intestate succession.
If enacted, the draft Code would replace the 1962 Marriage and Guardianship Code, with the effect that a number of provisions which presently deny equal rights to women, including Article 37 (which allows a husband to withdraw a consent for his wife to act on his behalf but does not give the same right to the woman) and Article 38 (which states that a wife cannot manage a business without her husband’s consent) would be removed from the law.
Elements of the draft Code which violate the right to equality
In the letter ERT also urges the members of the National Assembly to consider removing or amending three provisions in the draft Code which undermine the right to equality:
Article 290 includes same sex marriages in a list of prohibited forms of marriage. ERT contends that this prohibition puts same sex partners at a disadvantage in respect to their right to found a family and urges the Malian parliament to be guided by recent interpretations by the UN Human Rights Committee.
Article 302 authorises and legitimises the practice of polygamy, which violates the equal rights of women in relation to men. Mali should be guided on this issue by the UN Committee on the Elimination of Discrimination Against Women, which has expressed concern that Malian family law does not outlaw polygamy and recommended that Mali “put in effect measures to discourage polygamy and to ensure that spouses have the same rights and responsibilities both during marriage and in the event of its dissolution.”
Article 314 states that the husband is the head of the family, has the right to choose the family’s residence and has responsibility for the family’s finances. ERT contends that the Article is both in breach of the Convention on the Elimination of Discrimination Against Women and the Protocol on the Rights of Women in Africa, and that it is inconsistent with other Articles in the draft Code, which seek to put men and women on an equal footing.
In its letter, ERT recommends that Article 290 is amended to remove the discriminatory provision that exists in relation to sexual orientation and that Article 314 is removed in full in order to ensure the overall consistency of the new law, and compliance with Mali’s international obligations. ERT also urges Mali to take comprehensive and effective measures, including public awareness-raising campaigns, aimed at eliminating practices of polygamy.
Speaking about ERT’s submission to the parliament and President, the ERT’s Executive Director, Dimitrina Petrova said:
“There is much in this new Code which is to be welcomed – a number of the provisions represent a real step forward in protecting and promoting equal rights for women in Mali.
“While ERT understands the President’s desire to maintain national peace and unity, we believe this should not come at the price of reversing these positive developments and creating greater insecurity for women in Malian society. In our view, no society can be at peace with itself if it is not founded on principles of equality.
“Having said that, we have serious concerns about three provisions in the Code, which both undermine its central purpose and contradict Mali’s obligations under international law – we believe the second reading provides an opportunity for these inconsistent provisions to be addressed.
“We hope that Mali’s political leaders will be strong in their resolve to extend women’s rights in the country, and will adopt a Code which maintains the principle of equal participation for all.”
To read ERT’s letter to National Assembly President Dioncounda Traoré, click here .