Court of Appeal, Lomé, Mathéky Michel Mathey-Adely and Others v. Mrs Dédévi Virginie Mathey-Adely, widow, 24 September 2009, No. 140/2009
Constitution of Togo
Article 140
Treaties or agreements duly ratified or approved shall, from the time of their publication, have higher authority than laws, always subject, in the case of each agreement or treaty, to their application by the other party.
Togo
General principle of equality
Direct resolution of a dispute on the basis of international law
Ratified treaty[1]
Discrimination against women/ Direct dispute resolution on the basis of international law
According to the contested decision, Mrs Mathey-Adely, a widow whose husband had not waived the customary law on inheritance in the prescribed form during his lifetime, was only entitled to be a beneficiary of his inheritance pursuant to Article 391 of the Togolese code des personnes et de la famille (CTPF) [Personal and Family Code]. The Court had therefore ruled out the application of that provision, taking the view that the solution based on Article 391 conflicted with the Convention on the Elimination of all Forms of Discrimination against Women, ratified by Togo, and had applied Article 431 of CTPF, which provides that when the deceased is survived by children or their descendants, the surviving spouse is entitled to a quarter of the estate. The petitioners had asked for the decision to be set aside.
Having noted that Article 140 of the Togolese Constitution stipulates that international treaties and conventions have superior authority to domestic law when they are ratified, and that this was the case of the Convention on the Elimination of all Forms of Discrimination against Women, the Court of Appeal ruled that Article 391 of the Personal and Family Code discriminates against women and is therefore contrary to the Convention. The Court also pointed out that Article 16 of the Convention invited the States party to take measures to eliminate discrimination against women in all social matters.
The Court therefore ruled that ‘Article 391 of the CTPF, in that it leads to the exclusion of the widow from her deceased husband’s estate when the latter has not waived the customary law in matters of succession, contravenes the Convention’, and that ‘pending appeal or amendment by the competent body, it should simply be set aside’ in favour of the international Convention, Mme Mathey-Adely being granted the right to her husband’s estate pursuant to the conditions provided for in Article 431 of the CTPF.
[1] Convention on the Elimination of all Forms of Discrimination against Women, 1979.
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