Domestic, Argentina Gisela Sin Gomiz Domestic, Argentina Gisela Sin Gomiz

Civil Association for Equality and Justice (ACIJ) against Government of the City of Buenos Aires (Ministry of Education) and others, EXP 8849/2019-0 CUIJ - Argentina

Background

The case concerns a collective complaint brought by the civil association Asociación Civil por la Igualdad y la Justicia (ACIJ) on behalf of children who had been denied enrolment in private schools for presenting some form of disability. The applicants sought a declaration of the illegality and unconstitutionality of the failure of the Government of the City of Buenos Aires to control, evaluate, audit, and sanction this practice for being in violation of the rights to education, equality and non-discrimination. Prior to this decision, the Court had already ordered precautionary measures to be taken by the local government at the request of the applicant.

Reasoning

The Court declared unconstitutional the failure of the Government of the City of Buenos Aires to control, evaluate, control and sanction the discriminatory practice of private schools in denying the enrolment of children with disabilities, taking into consideration the state’s performance. Firstly, the Court ruled that the local government had failed to comply with the constitutional, legal and regulatory obligation to control the activity of private schools, according to domestic law (CCABA, Article 25; National Education Law, Articles 13 and 121; and Law No. 2.681, Article 1 and Decree No. 107/11, Article 2). Secondly, the Court found that the lack of accessible, specific and effective channels to adequately control the activity of private schools was contrary to national law, which sets out the obligation to provide the necessary mechanisms to facilitate and speed up the receipt of claims and complaints (National Education Law, Article 8). Moreover, the Court criticised a number of procedural omissions by the City of Buenos Aires Government (e.g., absence of notifications, lack of resolution of the issues, etc.) that breached the duty to guarantee the right to due process of those affected by the government’s decisions (Decree No. 107/11, Article 9). Thirdly, the Court noted the limited activity of the City Government in terms of sanctions, the excessive delay in the resolution of appeals filed by private schools against sanctions and the lack of publication of sanctions on the website of the Ministry of Education (Law No. 2.681, Article 10). Fourthly, the Court noted a lack of dissemination of information on the right to inclusive education by the City Government – a right that is expressly recognized by national and international law. The Court also criticised the failure by the City Government to create the Observatory of Public Policies for full educational inclusion provided for in the law (No. 3.331, Article 5). Lastly, the Court highlighted the multiple failures of the City Government to comply with the precautionary measures previously imposed.

The court held that the City Government should implement positive action measures to effectively counteract the structural inequality experienced by children with disabilities. The City Government should do so in compliance with the constitutional and international law provisions projected in the body of law, in particular the CRC (Articles 3, 23, 29), the CRPD (Article 24) and the General Comment No. 4 on the right to inclusive education.

Remedy

Due to the structural nature of the problem, the court avoided imposing a concrete and immutable order. Instead, the defendant (Ministry of Education of the Government of the City of Buenos Aires) was ordered to formulate a proposal involving a diversity of social actors to provide a solution to the case and fulfil its obligations. The minimum content of the proposal was delimited by the court so that its compatibility and adequacy could be analysed by the judiciary.  

Role of children

There were no children directly involved in the case. The children's parents submitted their complaints to Asociación Civil por la Igualdad y la Justicia (ACIJ) and ACIJ filed the collective complaint.

Enforcement and other outcomes

The Government of the City of Buenos Aires was granted a period of 30 days to formulate a proposal to provide a solution to the case and fulfil its obligations. The ruling was appealed by the Government. However, the Ministry of Education has offered to reach an agreement and negotiations with ACIJ are still ongoing.

Significance of the case from a CRSL perspective

In terms of standing, this case is a significant example of an organisation deciding to bring a collective action (acción de amparo colectivo), i.e., a rapid judicial procedure allowing organisations defending collective rights or interests to claim a human rights violation when collective interests or rights are affected (Article 14, Constitution of Buenos Aires), rather than in the name of specific children.

This case is also significant because public schools in Buenos Aires can no longer exclude students with disabilities and the City Government was obliged to make a new inclusive educational public policy. The court’s judgment prompted a change in the current educational system of the city and opened future opportunities for children with disabilities to have the same rights and opportunities as other children without disabilities.

Country

Argentina

Forum and date of decision

First Instance Administrative and Tax Court Nº 6, Judicial Authority of the City of Buenos Aires.

June 26, 2022

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

For the Respondent:

Amicus curiae:

Case documents

Secondary documents

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Zimbabwe, Domestic Billy Quarterman Zimbabwe, Domestic Billy Quarterman

Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14, CC 12-15) [2015] ZWCC 12 (20 January2016)CCZ 12/2015 - Zimbabwe

Background

The two applicants in this case, two women aged eighteen and nineteen respectively, brought a claim to the Constitutional Court of Zimbabwe to declare the Marriage Act [Chapter 5:11], Section 22(1) and the Customary Marriages Act [Chapter 5:07] in contravention of Section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013. They claimed that this provision infringed on the fundamental right of underage girls.

It should be noted that the standing of the applicants was questioned by the respondents as, at the time of the claim, both were of age and had not entered into an official marriage union under the challenged legislation.

Court reasoning and findings

The applicants’ claim rasied four questions that for the Court to address, those being:

1) Do the applicants have standing?

2) Does Section 78(1) set the minimum age of marriage to eighteen years?

3) If Section 78(1) changes the minimum age of marriage, does it invalidate previous laws allowing for marriage unions under the age of eighteen?

4) If these laws are invalidated, what is the appropriate remedy?

For the first question, the Court acknowledged that the applicants’ rights were not directly affected by the laws in question. Regardless, the Court found that, under Section 85(1)(d) of the Constitution, the applicants were allowed to bring a claim as under “public interest”. The Court considered that, since children fall under the category of “weak and vulnerable people” in society and, thus, the applicants could bring an action to protected children’s fundamental rights without being directly affected by the infringement.

For the question of whether Section 78(1) set the minimum age of marriage at eighteen, the Court looked at the body of international law to interpret the section. The question here was whether there should be a literal interpretation of the text (“[e]very person who has attained the age of eighteen years has the right to found a family”), understanding that granting the right to “found a family” from the age of eighteen does not imply that the minimum age for marriage is eighteen. Here, the Court decided that it was evident that, given the body of international law as well as the harm suffered by young girls forced into marriage, Section 78(1) intended to set the minimum age of marriage to eighteen.

Court order or remedy

The Court declared that:

1) Section 78(1) of the Constitution of Zimbabwe sets the minimum age of marriage at eighteen years

2) Any law allowing for any person under the age of eighteen to marry is unconstitutional and is void

3) No person can marry under the age of eighteen.

Notably, the Court did not exercise its powers, under Section 175(6)(b) of the

Constitution, to retroactively declare unions entered into with girls under the age of eighteen void.

Role of children

In this case, the role of children was indirect. Meaning, the applicants that brought the claim were of age at the time, but were requesting the court to declare child marriages illegal. It should be noted the applicants of the case were subjected to an informal marriage union at the age of fifteen, but this did not give rise to a claim against the legislative framework as the union was informal.

Enforcement and other outcomes

The Court’s decision declared that the all legislation that allowed for a marriage union involving a minor was unconstitutional. This triggered a set of reforms, including changes to the Marriage Act and the Customary Marriages Act that increased the minimum age for marriages to eighteen, as well as a commitment by the Government to harmonize the relevant laws with the Constitution (see page 33 of In-Depth Review of Legal and Regulatory Frameworks on Child Marriage in Zimbabwe).

Significance of the case from a CRSL perspective

From the CRSL perspective, this case is relevant in three ways.

First, the Court’s decision has opened the door for human rights litigation to be brought by parties seeking to remedy a violation without being directly affected by it. In doing so, the Court has allowed for children’s rights – and the rights of other vulnerable members of society – to be addressed in court without them being brought by the subjects of the violation.

Second, the Court’s use of Zimbabwe’s international obligation – in particular the CRC and the ACRWC – is an important precedent for the harmonization of the international consensus on the right of children with the interpretation of the Constitution.

Third, by declaring that the Constitution sets the minimum age for marriage at eighteen, this decision has triggered legislative reform to address the problematic of child marriages. Additionally, this case has had an impact in the region, triggering similar litigation in Tanzania (see page 10 of Recent developments Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others: A review).

Country

Zimbabwe

Forum and date of decision

Constitutional Court of Zimbabwe, 20 January 2016

CRC provisions and other international law provisions

  • The Convention on the Rights of the Child (CRC), Articles 1, 2, 3, 24.3, 38,

  • The African Charter on the Rights and Welfare of the Child (ACRWC), Article 21

  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Article 16

  • Universal Declaration of Human Rights (UDHR), Article 16

  • The Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages (the Marriage Convention)

  • The Vienna Convention on the Law of Treaties, Article 18

Domestic law provisions

The Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013, Sections 44, 78(1), 81(1), 85(1), 175(6)(b)

  • Marriage Act [Chapter 5:11], Section 22(1)

  • Customary Marriages Act [Chapter 5:07]

  • Child Abduction Act [Chapter 5:05], Section 2

  • Children’s Protection and Adoption Act [Chapter 5:06], Section 2

Related information

Information on groups and individuals involved on the case

For the applicants:

- Loveness Mudzuru

- Ruvimbo Tsopodzi

For respondents:

- Minister of Justice, Legal & Parliamentary Affairs

- Minister of Women’s Affairs, Gender & Community Development

- Attorney General Of Zimbabwe

Case documents

Links to:

- Application

- Decision

Secondary documents:

- In-Depth Review of Legal and Regulatory Frameworks on Child Marriage in Zimbabwe, Plan International

- Recent developments Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others: A review

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Domestic, Kenya Gisela Sin Gomiz Domestic, Kenya Gisela Sin Gomiz

Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014] eKLR, Petition No. 266 of 2013 - Kenya

Background

This case relates to the rights of intersex children, that is children born with reproductive or sexual anatomy that doesn’t fit the typical definitions of male or female, to be legally recognized as Kenyan citizens. The case was filed by a mother (the petitioner) on behalf of her child and other intersex persons.  The petitioner alleged that the form required for the issuance of a birth certificate did not give her child legal recognition and thus discriminated against her child because the form called for the selection of a gender as either male or female and her child did not fit in either category.  She requested that the Court order that a third category, “intersexual”, be included for purposes of gender designation on the form for the issuance of a birth certificate. The petitioner also challenged the lack of set guidelines and regulations for the performance of corrective surgery on intersex persons as well as the lack of data collection and retention by the Kenyan government relating to intersex persons in Kenya.  She requested that the court promulgate guidelines relating to surgery on intersex persons and that the government collect data relating to intersex persons.

Reasoning

Regarding the petitioner’s discrimination claim, the Court reviewed the legislation providing for the registration of birth in Kenya—the Births and Deaths Registration Act and the Interpretation and General Provisions Act Cap 2 (Laws of Kenya)—to determine whether these legislation allowed a broad interpretation of the term “sex” so as to include “intersexual” as a third category of gender on the form for the issuance of a birth certificate.  The Court found that neither the Births and Deaths Registration Act nor the Interpretation and General Provisions Act Cap 2 (Laws of Kenya) defined the term “sex,” but that the former Act provided that the sex of a child was either male or female.  The Court also found that although the Constitution did not define “sex,” it prohibited discrimination based on sex.  The Court concluded that intersex persons, including children, were entitled to all rights under the Constitution.  However, the Court refused to create a third category of sex called “intersexual” on the basis that this issue had to be addressed by the legislator and, thus, was beyond the Court’s mandate (i.e., to interpret the law as written).  Moreover, the Court held that the petitioner failed to submit any evidence of actual discrimination (thereby impliedly rejecting the petitioner’s contention that the absence of a category on the form for “intersexual” persons per se constituted discrimination) and ruled that the rights of the petitioner’s child had not been violated in any way. 

The Court found that there was a need for guidelines, rules and regulations for surgery on intersex persons and a need for the government to collect data on intersex persons, but that it was beyond the Court’s mandate for the Court itself to issue such guidelines or to regulate the collection of data.

Remedy

The Court directed the Kenyan government (i) to submit to parliament an appropriate legal framework governing issues relating to intersex persons, including a statute regulating the place of intersex persons as a sex category and guidelines and regulations for corrective surgery for intersex persons, and (ii) to consider the issue of collecting data relating to intersex children and persons and to submit to the Court within 90 days of the judgment the name of the agency in charge of the collection and retention of data on intersex persons.

Role of children

The first petitioner “Baby A” was represented by the mother.

Enforcement and other outcomes

The case helped to trigger reform on the rights of intersex people in Kenya. In 2014, Persons Deprived of Liberty Act was enacted and defined “intersex” within Kenyan legislation for the first time. The Attorney General formed the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in 2017 which reported in December 2018, making recommendations for law reform to recognise and protect the rights of intersex people, including specific recommendations regarding intersex children. In 2019, Kenya became the first country in Africa to include data on intersex people in its census.

Significance of the case from a CRSL perspective

According to a write up about the case by CRIN in 2015, Baby A’s mother sought assistance from CRADLE, a child rights organisation. CRADLE supported Baby A’s mother so that she would see the case through and not abandon it due to embarrassment.

The organisation also brought together other legal experts to contribute to the arguments, and a Kenyan human rights lawyer, John Chigiti, agreed to argue the case probono. All of these features indicate that this case is an example of CRSL.

The case also dealt with key issues affecting gender non-conforming individuals, as Chigiti was clear about the need to separate gender from sexuality, and this was clear in the argumentation. However, the focus of the case was on Baby A and the impediments to birth registration of Baby A and other similarly situated children.

The impact of this case has been considerable, in the sense that law and policy reforms aimed at advancing children’s rights have been clear outcomes. The significance of the case is naturally limited by the fact the number of children affected is small, and this curtails the reach of the case.

Country

Kenya

Forum and date of decision

The High Court of Kenya at Nairobi, Constitutional and Human Rights Division,

December 5, 2014

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

  • Baby “A” (Suing through her mother, E.A.)

    John Chigiti

  • The Cradle-the-Children Foundation

    Swiss Cottages (Apartment no. 1), Ring Road Kileleshwa off Riverside drive Nairobi P.O BOX 10101 - 00100 Kenya

For the Respondent:

  • Attorney General

    Sheria House, Harambee Avenue, Nairobi, Kenya

    P.O. Box 40112-00100, Nairobi, Kenya

  • Kenyatta National Hospital

    Hospital Rd, Nairobi, Kenya

    P.O Box 20723-00202, Nairobi, Kenya

  • The Registrar of Births and Deaths

    Hass Plaza 4th Floor, Lower Hill Road, Nairobi, Kenya

    P.O Box 49179- 00100, Nairobi, Kenya

For interested parties:

Amicus curiae:

Case documents

Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014] eKLR, Petition No. 266 of 2013

Secondary documents

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