On 18th March 2016 the Court issued two sets of provisional measures, ordering Tanzania to refrain from executing several applicants on death row pending the outcome of their cases before the Court. This seemed like a good moment to review the Court’s powers to issue such provisional measures, its previous use of the power and offer some analysis on the latest orders.
What are Provisional Measures?
As the title of this blog post suggests, provisional measures enable the Court to issue interim binding orders, i.e. before full judgement is handed down, on AU member states subject to pending applications. This tool is particularly useful since it is common that cases before the Court take months and (most often) years between the initial application and the rendering of the judgement. In essence, they allow the Court to press the pause button on something happening that would render a full judgement moot, for example, the destruction of forest, or intervene in a matter where irreparable harm would occur before a judgement is rendered, such as in this latest case, the execution of an applicant.
The Court derives its power to issue provisional measures from Article 27 (2) of the Protocol and Rule 51(1) of the Court’s Rules. Article 27 (2) of the Protocol states that:
“in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.”
Whilst Rule 51(1) of the Court’ Rules states:
“Pursuant to article 27(2) of the Protocol, the Court may, at the request of a party, the Commission or on its own accord, prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice.”
Has the Court Issued Provisional Measures Before?
These Tanzania orders are not the first the Court has issued.The Court has used such measures in three previous cases, although their effectiveness is debatable, since in two cases provisional measures appear to have had limited or no effect.
On 15 March 2013 in the case of The African Commission on Human and Peoples’ Rights v. Libya the Court ordered provisional measures in response to an application by the African Commission instituting proceedings against Libya alleging violations of the rights of Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi. The Court exercised it powers to order provisional measures in an attempt to force Libya to refrain from instigating judicial proceedings that would impinge on Gadaffi’s fair trial rights. Having issued provisional measures the Court gave Libya 15 days to report back. Libya ignored the order. Then, in August 2015 the Court issued a further order in response to the reports, for example here and here, that Libya had put Gaddafi on trial and sentenced him to death. In this second order the Court set out in detail its attempts to get Libya to comply with its 2013 order and states clearly that Libya’s refusal to comply with the provisional measures and proceed with Gaddafi’s trial was in contravention of its obligations under the Charter, the Protocol and other international instruments.Until now Libya has failed to respond to this renewed order too. You can read more about this case in my previous post here.
In the pending case of African Commission on Human and Peoples’ Rights v. Kenya, the Ogiek people of the Mau Forest in the Rift Valley, Kenya 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 argue that this eviction will have far reaching consequences on the political, social and economic survival of their community. While still pending, the Kenyan Ministry of Lands issued a directive lifting restrictions on the transfer of small parcels of land in the Mau Forest effectively allowing the forest to be taken out of the hands of the Ogiek people. On 15th March 2013 the Court used its provisional measures powers to order Kenya to immediately reinstate restrictions on the transfer of land in the Mau Forest. I have written about this case before, and have yet to hear anything of Kenya’s compliance with the provisional orders. Indeed the International Network for Economic, Social and Cultural Rights (ESCR-Net) latest report on Kenya’s treatment of the Ogiek people and their land appears to show Kenya’s failure to comply with the Court’s provisional measures order. (Of course please do contact me if you have any information on either the Libya or Kenya case and I will gladly update the post).
In perhaps the most successful example of the Court using its powers to make provisional measures so far, in the Konaté v. Burkina Faso case, following an application for provisional measures by Konaté, the Court ordered Burkina Faso to provide him with medication and healthcare whilst in detention. Having contacted the MLDI who represented Konate in his case before the Court, I understand that the provisional measures order was issued shortly before the completion of Konaté’s prison term, so whilst Burkina Faso was possibly willing to comply, there was not much time for it to do so.
What Do These Latest Two Cases Involve?
The two latest cases are similar in nature and concern applications from convicted persons on death row in Tanzania. The case of Guehi v Tanzania concerns a Cote D’Ivoire national sentenced to death in March 2010 for murder, a conviction that was confirmed by the Tanzanian Court of Appeal in February 2014. Guehi claims his right to a fair trial has been breached including a lack of translation of case papers into French at key stages of this trial and a lack of consular assistance, bringing claims under Article 7 of the Charter (right to fair trial) and Article 14 of the ICCPR (again, right to fair trial).
Rajabu and others v Tanzania relates to five applicants facing execution following convictions of murder. Similar to Guehi, the applicants here allege numerous breaches of their right to a fair trial, contrary to Article 7 of the Charter and Article 14 of the ICCPR, but refers to the misuse of identification evidence as well as procedural deficiencies.
Citing the Libya case discussed above, in both cases the Court made clear that to issue provisional measures the Court need not satisfy itself that it has jurisdiction on the merits of the case, only that it need satisfy itself that prima facie it has jurisdiction. Given that Tanzania has signed the Charter, the Protocol and the Article 34(6) Special Declaration allowing individuals and NGOs direct access to the Court, this prima facie case is made out, although it is perhaps not entirely clear what the difference is between this “prima facie” assessment and the assessment that must be undertaken when considering the merits of the case at the judgement stage.
What Conclusions Can We Draw?
The Court’s reasoning in both cases is sparse, which is typical of the Court’s issuance of provisional measures in previous cases. In both, the Court calls for Tanzania to refrain from carrying out the death penalty until the completion of their cases as there exists a situation of “extreme gravity” and that execution would do “irreparable harm” to the persons, thus hitting the buttons required under Article 27 (2) of the Protocol.
It is interesting to note that in neither case did the applicant’s request provisional measures, the Court instead issuing the orders proprio motu. This position is similar to the Libya and Kenya cases above and is a timely reminder that the Court will step in an use its powers even where the applicants themselves have not requested them and demonstrates the Court’s inherent ability to make quick(ish) decisions amidst the slow process of rendering a judgement on the merits.
As a side note to the provisional measures themselves, the Guehi case in notable as it is likely to be the first cases considered on its merits involving a citizen of a country other than that the application is brought against, with Guehi from Cote D’Ivoire and the application against Tanzania. Whilst this is unlikely to cause a problem at the judgement stage it is nevertheless worth looking out for when the judgement is issued.
The timing of the order is also interesting. The decisions themselves do not shed any light on why the Court is now issuing these provisional measures instead of when the Court received the applications in January and March 2015, respectively, although it is possible the Court may have received information that execution was imminent, thus prompting them to act.
As for the enforcement of these provisional measures, Tanzania could comply relatively easily since the provisional measures only request Tanzania not execute the applicants, and gives no other orders requiring any additional effort from Tanzania for example on improvement of prison conditions. Given the relative ease of compliance, coupled with the battering Tanzania’s criminal justice system has taken from the Court in the past year in Thomas v Tanzania and then Onyango et al. v Tanzania, in both of which the Court found numerous breaches of the applicants right to fair trials, I would suggest it would be highly unlikely that Tanzania would ignore these orders and go ahead with the execution of the applicants. Hopefully therefore the applicant’s status will be preserved. Of course, if any readers have information on the enforcement of the provisional measures please contact me and I will gladly update the post.
Editorial note: This piece was originally posted on 11 April 2016. The post was updated on 25 April 2016 adding reference to the new report on the Ogiek people by the ESCR-Net, and further clarification on the Konaté provisional measures. My thanks to the ESCR-Net and MLDI for their assistance.
As always, the views expressed herein are those of the author(s) and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author(s).