This is a truly significant judgment by the Ecowas court: the ban amounted to a punishment for the girls and threatened to keep a generation of women in ignorance.
Although the written judgment is not yet available, Amnesty International, admitted as a friend of the court in the case, called it a landmark moment. In an official statement after the outcome was announced, Amnesty said that the rights of thousands of girls had been affected. Since the 2015 ban their right to access education without discrimination had been violated ‘because of this inherently discriminatory ban’.
Punished
Amnesty’s West and Central Africa deputy director, Marta Colomer, said the regional court’s decision represented hope for the future since expectant girls would no longer be punished by being forced to leave school and by not being able to write exams.
She added that the court had, by its decision, given a clear message to other African governments with similar bans, and to countries that might be considering such bans. The message was that countries ‘should follow this ground-breaking ruling and take steps to allow pregnant girls access to education in line with [the country’s] own human rights obligations.’
The authorities in Sierra Leone ‘must now implement this judgment without delay,’ she said.
Revoked
The court found that the ban was unlawful because it breached the African Charter on Human and People’s Rights, as well as other international law instruments to which Sierra Leone was a party, and ordered that the law stipulating the ban was to be revoked ‘with immediate effect’.
Among the parties that challenged the ban in court were the Sierra Leone-based non-governmental organisation, Women Against Violence and Exploitation in Society (WAVES), Equality Now, the Institute for Human Rights and Development in Africa (IHRDA) and Amnesty International.
In its written submissions to the court, Amnesty listed the many protocols, conventions, treaties and other instruments of international law that were involved because the rights enshrined in these documents were violated by the ban. These rights included the right to education, non-discrimination and equality.
Vulnerable groups
Amnesty also pointed to significant laws of Sierra Leone related to the protection of girls’ right to an equal education without discrimination. In addition, the country’s constitution prohibits discrimination on the grounds of sex among others and commits the government to ‘safeguard the rights of vulnerable groups such as children, women …’.
Teachers, for their part, must adhere to a code in terms of which learners must be treated with ‘dignity and respect’. Teachers must ensure that students’ rights are ‘fully protected’ and protect learners from ‘all forms of sexual and gender-based violence … humiliating forms of punishment [and] psychological abuse’.
Rejected
Amnesty went on to quote several UN Treaty bodies that had officially expressed concern about the exclusion of pregnant girls from the mainstream education system. So far, however, all their recommendations and urgings to drop the ban had been rejected by Sierra Leone.
Amnesty’s argument at the Ecowas court included this: ‘By employing policies of exclusion and other punishments on the basis of pregnancy, the State unjustly confers all responsibility on girls for their … pregnancy and fails to account for its lack of compliance with states’ ‘due diligence’ obligations to prevent, investigate and punish sexual violence and to ensure access to sexual and reproductive health information, services and goods, including access to modern contraception and safe and legal abortion services.’
Groping
It was also common for teachers to ‘ascertain’ whether girls were pregnant and thus to be excluded from school. This they did by touching girls’ stomach and breasts or forcing them to take urine tests. Where this was forced on girls without their consent ‘it amounts to gender-based violence and a violation of pregnant girls’ bodily integrity.’
‘Notably, only pregnant girls are subjected to non-consensual groping and pregnancy testing and subsequent exclusion from school and exams. Boys are not subjected to similar or analogous cruel, inhuman or degrading treatment or denied the right to education in relation to a suspected pregnancy, even if they played some role in the pregnancy.’
The government’s argument on the other hand has been that if pregnant girls attended regular school it would tire them. The girls would also be exposed to ridicule. Also, it would ‘encourage’ other girls ‘to get pregnant’.
Not good examples
On the occasion of the 30th anniversary of Sierra Leone’s signing of the UN Convention on the Rights of the Child, that country’s President Julius Bio said, ‘My government will not allow pregnant girls to attend school for them not to influence other girls as they are not good examples to be followed by young girls in school. We had little divergence of opinions on whether pregnant school girls should go to school. I have not seen that anywhere in the world.’
Some months before the court delivered its decision, however, Reuters reported on a school that defied the ban, and allowed a pregnant girl to continue attending normal classes, with the support of the school principal. This is so far the only known example of where the ban was ignored.
Fined
It is not yet known how the government will respond to today's decision, but it had been highly reluctant to be involved in the matter at the Ecowas court: in May 2019, the court fined Sierre Leone $10 000 for late filing of its defence in the case.
The issues raised by the Sierra Leone ban have deep and complex roots, often very similar to those in other African countries. But though this is the first time that a regional court has given its view on the issue, domestic courts have had to grapple with it in the past.
Punitive
A 1995 decision by Botswana’s Court of Appeal held a similar rule applying to students at the teachers’ training college was unfairly discriminatory since it involved a ‘purely punitive’ purpose.
The Supreme Court of Zimbabwe has also expressed itself on exclusionary rules based on pregnancy. In 1999 its judges held that such a policy amounted to gender based discrimination and was against public policy.
South Africa’s Constitutional Court has similarly found such rules to be unconstitutional and that they violated the right to freedom of discrimination and to education.
Other cases from Latin America have resulted in a similar outcome.
Read the written heads of argument by Amnesty International, admitted as a friend of the court in this case.
