Reconceptualising the first African women’s protocol case to work for all women

Abstract

The ECOWAS Court of Justice is the first human rights body to find a violation of the African region’s women’s rights treaty, the African Women’s Protocol. Nearly 15 years after the adoption of this Protocol, the ECOWAS Court determined in Dorothy Njemanze & 3 Others v Nigeria that the Nigerian state violated the rights of women because state agents assumed they were sex workers and, therefore, discriminated against them and treated them violently. Significantly, the Court determined that the state violated the women’s rights to dignity, as well as their right not to be arbitrarily detained and arrested. However, a feminist analysis of this case reveals that the ECOWAS Court’s judgment protected women who are not sex workers at the expense of sex workers’ rights. This article critically examines how the ECOWAS Court developed its jurisdiction in this case, with a particular focus on how the Court’s strategic avoidance of the topic of sex work resulted in a judgment that is harmful to sex workers. The article reconceptualises the Court’s reasoning to provide alternative approaches for interpreting women’s rights, especially sex workers’ rights. By providing the ECOWAS Court judgment with an alternative approach, which includes an analysis of the right to work and the right to dignity, through the application of the African Women’s Protocol and other human rights instruments, the article provides a feminist and inclusive perspective on how women’s rights could be approached in future judgments and litigation efforts.