Media Statement 28 February 2023

These provisions mandate an arbitrator appointed by the Minister responsible for matters mining to adjudicate claims for compensation over compulsory acquisition of land for extractive activities. The decision of the arbitrator is final. These provisions therefore contain ouster clauses which prevent the ordinary courts from taking up cases challenging non-compensation or inadequate compensation made by holders of mineral rights for compulsory acquisition of land for mining purposes.
Upon being admitted as joint amici, ISLA and FIDA seek to provide information to the Constitutional Court to demonstrate that the ouster clauses affect the right to an effective remedy to the extent that the impugned law limit women’s access to courts as it provides for arbitration as the only forum available to land owners, occupiers to land or persons with interest in the land to challenge the lack of or inadequate compensation. ISLA and FIDA-U have developed their amicus brief (already filed with the Constitutional Court) on the extent of the application of the principle of equal protection of the law and equality before the law while underlying its correlation with the right to access courts and state’s obligation to provide an effective remedy. ISLA and FIDA – U shall therefore present information to the court on the following issues:
(a) Demonstrate to the court the link between forced arbitration and discrimination particularly discrimination against women in extractive industries.
(b) Elaborate on the international human rights standards on access to courts and the connection to the right to remedy.
(c) Provide comparative jurisprudence on statutory provisions that oust the jurisdiction of the courts in a wide range of legal systems.

ISLA and FIDA – U believe these submissions will aid the court in firstly, appreciating the effect of forced arbitration on women’s right to access, control, occupy and own property. Secondly, assist the court in determining the basis of the legal protection which states should accord to women affected by extractive activities. And lastly, help the court establish the international and regional standards on an effective remedy for human rights violations.

They intend to bring to the attention of the Constitutional Court information on a state’s obligation to remedy past and ongoing discrimination and the Court’s duty to provide a remedy that guarantees legal certainty and social justice.  The joint amici in the brief (already filed with the Constitutional Court) have situated the impugned provisions in their historical origin and evolution, while outlining the utility of special measures and an order for suspension of constitutional validity in the context of international and comparative law and jurisprudence to avoid creation of a lacuna in law in the event the court finds the impugned provisions as unconstitutional.

ISLA and FIDA-U shall provide information to the Constitutional Court on the following issues:

1. The extent of the application of the court’s obligation to provide a remedy that provide for legal certainty and the duty to ensure court’s decisions do not create a lacuna.

1. Demonstrate the historical link between matrimonial laws, gender discrimination and women’s access to matrimonial property.
2. Whether courts have an obligation to remedy past and ongoing gender discrimination while illustrating the importance and utility of an order suspending the order of invalidity of the provisions in the Divorce Act as a remedy in constitutional litigation.

ISLA and FIDA – U are of the respectful view that the information they shall provide to the Constitutional Court as demonstrated above, shall aid the court in establishing the nature and extent of the state’s obligations under domestic and international human rights law to protect women by removing gender discriminatory provisions and guarantee the right to equal protection of the law in matrimonial laws. Further, the court shall be in apposition to consider the particular challenges posed by partial law reform when piecemeal changes are made in the courts while other archaic laws remain in the statutes. In addition, it is an opportunity for the constitutional court to consider the States’ obligations to advance equality in the context of laws that were put in place to ameliorate past and ongoing gender discrimination.

The petitioner in this case is a woman who was in a de facto long-term monogamous family forming union rising out of long cohabitation for a period of 27 years. During that period, she lived together with the 1^st respondent and functioned as a family – bore children and acquired properties together through joint efforts for the use of the family until the family forming union broke down irretrievably.  Following the breakdown of her relationship, the petitioner has found herself unable to claim her rights owing to the fact that her monogamous de facto family forming relationship is not legally recognized or protected by the law despite the Constitution making provisions on the Right to found a family. This case is therefore based on the existing constitutional and legal obligation for the recognition and protection of various forms of family, as the basic unit of society as provided for in Article 31 (1) (a) of the constitution and the need to protect the rights and interests of parties in family forming unions arising out of cohabitation relationships that do not amount to a marriage.

In litigating this case, FIDA- U and ISLA are hopeful that the High Court shall develop and extend the application of the right to equality and right to form a family to de-facto monogamous cohabitation relationships. Also, that the High Court shall seize the moment to recognize the existing lacuna in the legislative framework and require Parliament formulate and enact the necessary statute that deals with cohabitees in a de-facto long-term relationship, their rights, obligations and consequences of such unions particularly on the issue of sharing property acquired jointly, during the subsistence of the aforesaid union.