NEWSLETTER | ISSUE 5 | WHAT’S HAPPENING IN COURTS
What’s Happening in Courts
May 2026
An integral part of the work that ISLA does is the strategic litigation. Beyond the mobilization and the advocacy, we seek to make jurisprudential impact real time in court. The following are some of the judgements we received, and some of the cases we are pursuing to continue to move the feminist legal needle on the continent.
Violence Against Women
Case: Communication 734/19 – J v Republic of Namibia
Forum: African Commission on Human and Peoples’ Rights
Issue: State Due Diligence to Prevent, Investigate and Prosecute Trafficking in Persons
In a landmark decision adopted during the Commission’s 78th Ordinary Session (8 March 2024) and communicated to parties on 20 June 2025, the African Commission found Namibia in violation of Articles 2, 5 and 18(3) of the African Charter and Articles 2 and 4(2)(g) of the Maputo Protocol. ISLA and KELIN filed the complaint on behalf of J, a 24-year-old victim of trafficking for sexual exploitation.
J was lured to Namibia through a false job advertisement, detained, abused, and sexually exploited for three months before escaping and reporting to the police. Instead of receiving protection, she was detained for four weeks as an alleged illegal immigrant, denied consular access, and treated with hostility. Her release only occurred after media coverage of her ordeal.
ISLA argued that Namibia failed its due diligence obligations to prevent trafficking, ensure effective investigations, prosecute perpetrators, and provide redress. We noted that violence against women is a form of discrimination, requiring States to prevent and eradicate it in line with Articles 2, 4, 25 and 26 of the Maputo Protocol. We further argued that the State failed to identify J as a trafficking victim and protect her safety and repatriation.
The State disputed J’s claims, asserted it had adequate legislation, insisted the acts could not be attributed to it, and argued that J fabricated her story and lacked evidence.
The Commission held that Namibia failed to conduct a prompt, impartial and effective investigation. Authorities did not question key perpetrators, ignored leads, and prematurely terminated investigations. This failure amounted to a violation of J’s right to dignity and freedom from cruel, inhuman and degrading treatment.
In a significant shift, the Commission expressly recognized violence against women as discrimination. It rejected the comparator/sameness test previously used in its jurisprudence and adopted a substantive equality approach. The Commission found that the trafficking and violence J suffered – because of her gender, context, and vulnerability – constituted discrimination. Namibia therefore violated her right to equality and non-discrimination by failing to investigate, prosecute and punish the perpetrators.
The Commission directed Namibia to:
• Investigate, prosecute and punish perpetrators;
• Consider financial compensation for J;
• Adopt strengthened legislative and policy measures to combat trafficking and protect women from violence;
• Report to the Commission within 180 days.
The Commission declined to determine damages, creating an opportunity to pursue compensation before domestic courts. ISLA will approach the Namibian courts to establish jurisprudence on quantum.
This decision breaks new ground on trafficking for sexual exploitation and affirms that violence against women is discrimination under the African Charter and Maputo Protocol. It advances the due diligence standard and has broad implications for national, regional and sub-regional courts. The recognition of substantive equality strengthens protection for victims and reinforces States’ obligations to act decisively against violence and trafficking.
Despite the progressive ruling, there are serious concerns about delays: the decision was adopted in March 2024 but only communicated in June 2025. Such delays undermine access to justice and weaken the regional human rights system. ISLA continues to advocate for a more effective interpretation of Article 59(1) of the African Charter to ensure timely communication of decisions and meaningful access to remedies for women across the continent.
Women’s Socio-Economic Rights
Case: FIDA-K v Attorney General (Civil Appeal No. 238 of 2018)
Forum: Court of Appeal of Kenya
Issue: Division of matrimonial property upon dissolution of marriage at divorce or separation
At divorce or separation, spouses must determine how to divide matrimonial property acquired during the marriage. This process is often contentious and disproportionately affects women, whose non-financial contributions such as caregiving and domestic work are undervalued. In Kenya, section 7 of the Matrimonial Property Act (2013) entitles each spouse to property according to their monetary or non-monetary contribution.
In FIDA-K v Attorney General (Civil Appeal No. 238 of 2018), FIDA-Kenya challenged the constitutionality of section 7, arguing that requiring proof of contribution violates Articles 27 and 45(3) of The Constitution of Kenya on equality in marriage. The Attorney General argued that the law is gender-neutral and already recognises non-financial contributions. ISLA appeared as amicus curiae, submitting that despite its neutral wording, the law’s application is gendered. Courts prioritise financial contributions because they are easier to quantify, disadvantaging women. ISLA urged the adoption of substantive equality that reflects women’s social and economic disadvantages and the use of fairness and non-discrimination as guiding principles.
The Court upheld section 7, finding it consistent with equality and fairness. It held that recognising both financial and non-financial contributions supports substantive equality and that contribution is an evidentiary matter. The decision maintains a legal standard that disproportionately harms women, who often cannot prove the value of unpaid domestic labour. Many remain economically vulnerable after divorce despite sustaining the marriage through non-financial contributions.
Case: Eliza Steven and The Registered Trustees of Domestic and Vulnerable Workers
Association vs. Attorney General and Registrar of Financial Institutions (Constitutional Case No. 4 of 2025)
Forum: High Court of Malawi at Blantyre sitting as Constitutional Court
Issue: Exclusion of domestic workers from mandatory pension schemes in Malawi
The Petitioners in this case, a female domestic worker and Registered Trustees of Domestic and Vulnerable Workers Association (DOVWA) in Malawi have challenged the constitutional validity of excluding domestic workers from mandatory contributory pension, in the implementation of section 11 of the Pensions Act and the exclusion of private-sector employees with less than 5 employees from mandatory contributory pension scheme under section 27(4) of the Employment Act. The petitioners claim that this exclusion is discriminatory and thus unconstitutional.
ISLA, Women Lawyers Association Malawi, Center for Human Rights and Institute for Human Rights and Development in Africa sought leave to intervene in the case as joint amici. The joint amici in this matter, will address the court on first, the relevant historical context of the exclusion of domestic work from social protection and the gendered nature of domestic work. Second, the extent and nature of state obligations in regional and international human rights and labour law to eliminate discrimination against women specifically women working as domestic workers. And lastly, the State’s obligation to remedy existing and continuing discrimination against women.
Domestic work is predominantly performed by women. In Malawi, poverty, low literacy—especially among women—and a large informal sector deepen vulnerability. Domestic work remains undervalued due to colonial and patriarchal norms and is often hidden, insecure, and unregulated, leading to exclusion from labour protections including pensions. This constitutes ongoing discrimination. The case examines constitutional equality in the context of informal, gendered labour. The amici emphasise structural vulnerabilities and the State’s duty to remedy historical disadvantage.
On 4 November 2025, the Court allowed the four human rights organisations to intervene as amici. And on the 17th of February, ISLA, WLA, CHR, and IHRDA represented by a WLA network lawyer attended court for the hearing. The Court is scheduled to deliver its ruling within 45 days of the conclusion of the hearing as required by law.
Case: Kituo cha Sheria & Another v Attorney General (ELC Petition No. E002 of 2022)
Forum: Environmental and Land Court at Iten, Kenya
Issue: State’s legal obligation to develop measures to adapt to the effects of climate change and mitigate impacts of climate change
The Court on 14 November 2025 heard a landmark case challenging the Kenyan Government’s failure to meet its legal obligations to develop and implement measures that respond to the impacts of climate change in the Rift Valley Basin.
KELIN and ISLA, appearing as joint amici curiae, presented submissions underscoring the disproportionate and gendered impacts of climate change. Their brief centred on the State’s duty to develop gender-responsive climate measures that acknowledge and address the distinct vulnerabilities experienced by women, particularly those who are rural, older, indigenous, living with disabilities, or experiencing poverty. The amici emphasised that climate change is not gender neutral. It deepens structural inequalities and exposes women to heightened risks relating to health, food security, water, housing, and personal safety. Citing Kenya’s constitutional obligations and international frameworks such as CEDAW, the amici argued that gender-blind climate policies amount to indirect discrimination and perpetuate harm.
In their submissions, the amici urged the Court to recognise that addressing gendered harms is essential to achieving substantive environmental justice. They proposed legal and policy measures the Court may adopt to ensure the State complies with its constitutional and international obligations to protect women from the escalating effects of climate change.
This case provides a critical opportunity for the Kenyan judiciary to affirm that climate action must be inclusive, rights-based, and attentive to the lived realities of those most affected. The court reserved its judgment which it shall give on notice.