Guest Post: 2014 at The African Court on Human and Peoples Rights–a Year in Review

[Oliver Windridge is a British lawyer specialising in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.]

Many readers will be familiar with the African Court on Human and Peoples Rights. For those who are not the Court was established by the African Union to hear cases relating to alleged violations of the African Charter on Human and Peoples Rights (Charter) and other international human rights instruments. The Court is based is in Arusha, Tanzania and is separate to the African Commission on Human and Peoples Rights. What follows is a summary of the Court’s activity in 2014.

March: the Court’s 32^nd Ordinary Session

At its 32^nd Ordinary Session, the Court conducted the public hearing in Konate v. Burkina Faso. The Applicant, working as editor of the weekly newspaper L’Ouraganin, published two articles which lead to his convicted for defamation, public insult and insulting a magistrate. He was sentenced to twelve months imprisonment and handed large fines. The Applicant argued that his conviction and punishment contravened his right to freedom of expression as protected under Article 9 of the Charter and Article 19 of the International Covenant on Civil and Political Rights.

The Court also rendered three judgments. The first, Zongo and others v. Burkina Faso, related to the alleged assassination of Norbert Zongo an investigative journalist and Director of the weekly paper l’Indépendent and three colleagues in December 1998. The Applicant argued that following the alleged assassination the local authorities had failed to mount a proper investigation and failed to act with due diligence in seeking, trying and judging those involved in the death of Zongo and his companions. In only the second case to be decided on its merits, the Court found that Burkina Faso had indeed failed to take measures to ensure the Applicants right to be heard by a competent national court, therefore violating articles 1, 7, 9(2) of the Charter and Article 66 of the ECOWAS Treaty. Reparations are to be decided after further submissions from the parties.

The second and third cases, Omary and others v. Tanzania involving an application by former East African Commission employees who had not received promised reparations, pension and severance benefits when the then East African Community was disbanded in 1984, and Chacha v. Tanzania, concerning the Applicant’s alleged unlawful arrest, detention, charging and imprisonment contrary to Tanzanian laws, were both declared inadmissible due to the Applicant’s failure to exhaust local remedies.

The Court also considered its first application for interpretation and review of a previous Judgment. In June 2013 the Court had found the case of Mkandawire v. Malawi inadmissible due to the Applicant’s failure to exhaust local remedies. The Applicant made an application to the Court for review and interpretation of the Judgement. The Court ruled that the application for interpretation could not be entertained because “interpretation” as found in the Protocol and rules of the Court can only be sought for the purposes of executing a judgement. Since the case was dismissed due to non-exhaustion of local remedies there was no judgement to interpret. As to the application to review, the Court found the application inaccurately cited key paragraphs of its earlier judgement which were the subject of the review application. In addition evidence provided by the Applicant which he argued was new was known to him at the time the Court handed down its judgement and was therefore neither new or evidence.

June: movement toward the African Court of Justice and Human Rights

The Court, or at least the future guise of the Court, came into the spotlight in June after the African Union met in Malabo, Equatorial Guinea where it adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. (Incidentally, Equatorial Guinea has not signed the Protocol establishing the existing Court).

This Protocol has been the subject of much comment and debate, in particular for its amendment to Article 46A bis of the Protocol on the Statute of the Court which imparts immunity against criminal charges for acting heads of state or government and other senior state officials. We also learned a little more of the new court’s ambitious proposed structure consisting of a “general” chamber handling trade issues and conflict between states, a “human rights chamber” handling work similar to the current Court and “criminal chamber”. For more comment on the immunity amendment see Paul Bradfield’s piece here, and Mark Kersten’s piece here. A press conference by Legal Counsel for the African Union Vincent Nmehielle on the new court, including the issue of immunity, can be seen here. Please note that the press conference does not start until about 6 minutes in, so best to skip forward.

June: Mtikila ruling on reparations

Also in June, the Court rendered its first ever ruling on reparations in Mtikila v. Tanzania. The case centered on Tanzanian laws that require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, effectively barring independent candidates. In June 2013 the Court delivered its judgment, unanimously finding Tanzania’s ban on independent candidates had violated the Applicant’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated the Applicant’s Article 2 and 3 Charter rights. The judgment can be read here. My summary and analysis of the case can be seen here.

The issue of reparations was postponed in order that both parties could make additional submissions. In its ruling the Court found there exists a fundamental principle of international law that where a violation of an “international obligation” causes harm, there entails an obligation to provide adequate reparation which the Court should follow and is reflected in Article 27(1) of the Court’s Protocol. The Court found that applying this principle, pecuniary and non-pecuniary damages and legal expenses were capable of being awarded by the Court, but that the Applicant had failed to provide evidence of a link between the damages and expenses claimed and the claim itself.

In addition, the Court also examined Tanzania’a compliance with the June 2013 judgment noting that in Tanzania’s reply to damages it continued to maintain that the judgment was wrong, since the law in Tanzania prohibits independent candidates from running for election. The Court expressed its “concern” at this line of argument which was compounded by Tanzania’s failure to report to the Court on the measures it is taking to comply with the Judgment. Consequently, it ordered that within six months Tanzania should: (i) publish the official English translation translated into Kiswahili at Tanzania’s expense and publish in both English and Kiswahili once in the official gazette and once in a national newspaper; and (ii) publish the Judgment it its entirety in English on an official website and remain available for one year. The Court ordered that nine months from the ruling Tanzania should submit to the Court a report ion the above measures.

July: Legal Aid scheme launched

A continuing concern has been how potential applicants can fund an application before the Court, including hiring a lawyer and possible travel expenses. It appears that in a move to address these concerns the Court launched its legal aid scheme in July, including details of the policy and an inaugural list of Court- appointed Counsel and Pro Bono Counsel.

September: a New President, Vice President, and three new judges

Taking up the reigns as President of the Court in September was Judge Ramadhani from Tanzania who replaces Judge Akuffo. The new Vice-President is Judge Thompson from Nigeria who replaces Judge Ngoepe. Both President Ramadhani’s and Vice-President Thompson’s profiles can be seen here.

Three new judges were also sworn in for six-year terms: Hon. Justice Rafaa Ben Achour (Tunisia), Hon. Lady Justice Solomy Balungi Bossa (Uganda) and Hon. Justice Angelo Vasco Matusse (Mozambique). All three were appointed by the Executive Council of the African Union in Malabo, Equatorial Guinea (the same session which gave rise to issues over the creation of the African Court of Justice and Human Rights including impunity for leaders) The new Judges will replace the previous President and Vice-President, who have served the statutory two terms as well as Justice Kimelabalou Aba (Togo), who was not re-elected.

Judge Achour’s and Bossa’s Wikipedia entries (in French and Dutch) are here and here. See the Court’s website for more information here.

November: sensitization visit to Addis Ababa, Ethiopia

From 19-20 November the Court conducted its latest ‘sensitization visit’. As the Court’s press release explained, Court officials held meetings with Ethiopian government officials, as well as senior judicial figures and held a half-day seminar with NGOs, the Ethiopian Bar Council and other civil society organizations. The objective of these visits is to raise public awareness of the Court and encourage the ratification of the Protocol and the deposit of the Special Declaration under Article 34(6) of the Protocol which allows individuals and NGOs direct access to the Court.

Its worth noting, as stated in the Court’s press release, that despite Addis Ababa serving as the administrative headquarters of the African Union, Ethiopia has  yet to ratify the Protocol, effectively barring the Court from handling any cases involving Ethiopia let alone allowing its citizens and NGOs to make direct applications to the Court

November and December: the Court’s 35th Ordinary Session in Addis Ababa, Ethiopia

Following on from the Court’s sensitization visit, from 28 November to 5 December 2014 the Court held its 35^th Ordinary Session also in Addis Ababa. During the session the Court conducted public hearings in two cases; Thomas v. Tanzania and the African Commission on Human and Peoples’ Rights v. Kenya. In Thomas v. Tanzania, the Court heard arguments from the Applicant challenging his arrest and conviction for armed robbery with violence, arguing that the Tanzanian courts lacked jurisdiction since the incident occurred in Kenya, failed to prove his case beyond reasonable doubt, was not provided with a lawyer and not given the opportunity to present a rejoinder on appeal.

The African Commission on Human and Peoples’ Rights v. Kenya case is the first ’peoples’ case to be considered by the Court. It involves a claim by the Ogiek people of the Mau Forest in the Rift Valley, Kenya. The Ogiek claim that the Kenyan Government is evicting them from their ancestral land under the auspices of a Kenyan Forestry Service notice to conserve the forest as a ’reserved water catchment zone’. The Ogiek submit that their eviction will have far reaching consequences on the political, social and economic survival of their community. Specifically, they argue that the eviction notice violates Articles 1 (recognition of rights in the Charter), 2 (right to enjoyment of rights without distinction), 4 (right to life), and 17 (2) (freedom to take part in the cultural life community and 17  (3) (promotion and protection of morals and traditional values) of the Charter. My review of the case can be found here. Video from the public hearing of this case as well as other hearings can be found here.

Having heard arguments in March, the Court rendered a judgment in the case of Konate v. Burkina Faso, finding unanimously in favour of the Applicant. The Court ruled that Burkina Faso had violated Article 9 of the Charter, Article 19 of the International Covenant on Civil and Political Rights and  Article 66(2)(c) of the ECOWAS Treaty, all relating to freedom of expression. The Court has ordered Burkina Faso to amend its legislation in order to make it compliant with the above articles and to report back to the Court within two years. The judgement in French is available here.

The Court also issued an advisory opinion pursuant to Article 4 of the Court’s Protocol, regarding the standing of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) before the Court, finding it “highly desirable” that ACERWC have access to the Court. A copy of the advisory opinion is not yet available on the Court’s website but a video of the delivery of the advisory opinion can be found here.

Conclusion

In conclusion, 2014 saw the Court make significant advancements. The Court’s two judgments, only the Court’s second and third ever, took strong positions on freedom of expression, particularly with regards the work of journalists. The Court also made its first reparations ruling, recognising the Court’s power to award damages. On a practical level, whilst it remains to be seen how effective the Court’s new legal aid scheme will be, its creation should receive a cautious welcome. However, with the welcome delivery of more judgements, the Mtikila reparations ruling highlights the issues that the Court will face in this new era of compliance. How the Court handles Tanzania’s apparent failure to recognise its findings will likely set a strong precedent for cases decided in 2014 and due for report in 2015. In addition, and perhaps most important for the future success of the Court, the Court remains hamstrung by access issues. Still, only seven of 54 African Union members allow individuals and NGOs to bring cases directly before the Court. If the Court is to achieve its aim of becoming a truly continental human rights court this number simply must increase in 2015.