This is not exactly about the Covid-19, except effects of the pandemic are with us and offer a handy counterpoint to a court submission not too long ago that pleaded mass protests an act of God. The pandemic has affected every aspect of our existence. It has disrupted lives and businesses with one of its effects diminishing the ability of many to honour their financial obligations. Banks around Africa have offered to extend loan terms and offer new ones to those who’ll be affected by the coronavirus. Landlords have, likewise, been urged to be considerate should rent payment delay because of the pandemic. But there is the legal concept of force majeure, which describes an unforeseen event that might free people from their obligations in a contract. Legal minds agree that the Covid-19 is an unforeseen, disruptive event and therefore an “act of God,” the English expression with the same meaning as force majeure, which is French. Anticipating its legal implications in China, the government issued force majeure certificates as last month to provide a legal right for Chinese exporters to break contracts without penalty in light of the impact of the coronavirus. Some legal observers suggest that, while there could be other motivations, the banks offer to extend loan terms is a way to prevent act of God implications. But they acknowledge the practical economic underpinnings. With wiped out businesses or impoverished customers, the banks can’t exist – the banks being a metaphor for national economies. This is the same principle in the economic stimulus packages governments in Europe and America are seeking to financially support their citizens and businesses. Back to force majeure, some experts anticipate there could be court cases about unfulfilled obligations when the dust finally settles. While that remains to be seen, I sought for some distraction and dug to find out any previous force majeure cases in Africa. I found a couple of them but I will go with this one that caught my attention and I found captivating. In the case, which concluded in May 2018, a women’s rights association had taken its country’s government to the African Court on Human and Peoples’ Rights. The association claimed that, by allowing the Family Law to permit marriage of underage girls as young as 15-years-old, the government had not done enough to align itself with international treaty obligations. The treaties included Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Maputo Protocol the African Charter on the Rights of Children, all of which it had ratified. The West African country submitted that it could not comply with their treaty obligations because of force majeure. It cited “a mass protest movement against the Family Code [that] halted the process,” in the submissions. It also claimed that “the State was faced with a huge threat of social disruption, disintegration of the nation and upsurge of violence, the consequences of which could have been detrimental to peace, harmonious living and social cohesion; that the mobilisation of religious forces attained such a level that no amount of resistance action could contain it.” The African Court held that Mali, a West African country, violated relevant Articles of CEDAW, the Maputo Protocol and the Children’s Charter. Legal experts would later observe as self-evident that the mass protests and the religious forces were ‘socio-cultural realities’ of Mali, and therefore could not be seen as an unforeseen event But every argument is as good as any other and must have its day in court. The experts acknowledge that, theoretically, the said religious forces could represent an “irresistible force”. They, however, conclude the country should have proved that the events would not make it difficult for the State to promulgate the law, but actually impossible. Notably, the Court did not bother to mention the force majeure argument in its ruling. Observers say it was a prudent decision because it avoided being embroiled in the religious undertones of the argument. The mention of religion as a plank in the respondent’s submission had introduced an element of faith that cannot be argued in a secular court without objectively compelling evidence as to the socio-cultural beliefs that find it permissible to marry off 15-year-olds. The views expressed in this article are of the author.
