Author: Misha Plagis

A Special Declaration: Towards a Culture of Accountability in The Gambia?

The first cross post of the year! Here is Tetevi Davi‘s piece, originally published on Justice in Conflict, on The Gambia’s recent decision to permit individuals and NGOs direct access to the African Court on Human and Peoples’ Rights – and its implications. Tetevi is a visiting Lincoln’s Inn scholar at the European Court of Human Rights. He regularly writes on the work of the African Court and other regional courts in Africa and is a consultant for the African Foundation of International Law.

Photo: Gambia President Adama Barrow following his return to the country and his electoral victory (Photo: EPA)

On 23 October 2018, the Republic of The Gambia deposited its special declaration with the African Court on Human and Peoples’ Rights (‘the Court’). For those who may be unfamiliar with this process, in addition to ratifying the African Charter on Human and Peoples’ Rights (‘ACHPR’) and the Protocol to the Charter, states must also deposit an additional or “special” declaration with the Court in order to allow it to receive applications directly from individuals and NGOs. The African Court on Human and Peoples’ Rights is a continental court that was established by the African Union in 1998 to ensure the protection of human rights in Africa. With the deposition of its declaration, The Gambia becomes the 9th country to permit individuals and NGOs direct access to the Court, following Tunisia, which deposited its declaration in April 2017. A host of interesting implications arise from The Gambia’s deposition of its special declaration.

Growing State Engagement with the Court?

To begin with, it can be argued that The Gambia’s decision to deposit its declaration reflects an increasing willingness of African states to engage with the Court. Although the number of declarations that have been deposited is still low overall, it has recently grown at an increased pace, with 3 out of the 9 states who have deposited their declarations (Benin, Tunisia, The Gambia) having done so since 2016. Prior to this, only 6 declarations had been deposited over the span of almost 20 years. Whilst there was concern that Rwanda’s withdrawal of its 2013 declaration in the wake of the Ingabire affair  would lead to more states following suit, it appears that the reverse has been true, with three more nations depositing their declarations since then. In addition to this, the Court has been coordinating awareness-raising missions with a growing number of African states, which again is indicative of their increasing willingness to engage.

Whilst states’ improved engagement with the Court can be said to be a positive development, any optimism must be tempered by the persistent problem of the weak implementation of the Court’s judgments at the domestic level. The Court’s judgments are binding on states and its Protocol places an obligation on them to execute these judgments. Despite this, the Court’s most recent report on the status of implementation of its judgments shows that, in the majority of cases, states have either outright refused to comply with its rulings or have offered no update on the status of implementation. It is not sufficient for states to provide access to the Court for individuals and NGOs without redressing violations once they have been identified. Much more needs to be done, both by states and also by the African Union at an institutional level, to ensure that Court judgments are complied with.

Shift Towards a Culture of Accountability in The Gambia?

The Gambia’s deposition of its special declaration can also be seen as a manifestation of its desire to bring an end to the culture of impunity which existed during the 22 year rule of former President, Yahya Jammeh. Large-scale human rights abuses are reported to have been committed under the Jammeh regime including extra-judicial killings, torture, rape, and enforced disappearances. The nation’s media were also silenced through a campaign of violence and repressive laws. This repression led to a landmark judgment of the ECOWAS Court in 2015, in which it held that The Gambia’s sedition and libel laws, which had been principally used to stifle the media, were a violation of the right to freedom of expression enshrined in the African Charter, the International Covenant on Civil and Political Rights and in the Revised ECOWAS Treaty. In addition to these egregious human rights violations, it must be recalled that in 2016 The Gambia was on the verge of leaving the International Criminal Court, having notified its decision to withdraw from the Rome Statute to the Secretary-General of the United Nations. This move was interpreted by many as a flagrant attempt to shield the presidentfrom international prosecution for gross human rights abuses, as opposed to being based on any legitimate gripes with the ICC’s functioning.

Since the election of Adama Barrow on 1 December 2016, it has been reported that the human rights climate in The Gambia has improved immensely. Dozens of individuals imprisoned by the former regime, including several politicians and journalists, have been released, and the judiciary has been significantly reformed with a view to promoting independence. In October 2018, the country launched its Truth, Reconciliation and Reparations Commission, which is charged with documenting human rights violations committed from 1994 to 2017 and overseeing the award of reparations to victims, in addition to making recommendations for prosecutions. It is yet to be seen whether this Truth Commission will be effective, but this appeal to restorative justice could have a substantial impact and arguably demonstrates the government’s willingness to address the nation’s fraught past. Two additional initiatives of the Barrow government are of note: the creation of a national Human Rights Commission and Constitutional Review Commission.

Whilst many reports on the work of the Barrow government are positive, the new government also faces criticism. Of particular cause for concern has been its treatment of soldiers from the former regime, a number of whom have remained imprisoned without trial since 2017.  The Barrow government has also been criticised for having not yet amended a law which impinges on the freedom of assembly by requiring people to have a permit to attend public rallies.

Sharia Law v International Law: Another Showdown on the Horizon?

Whilst the new Barrow government officially reversed the decision taken by Jammeh in 2015 to declare The Gambia an Islamic Republic, Islam is still the dominant religion within the country and The Gambia’s Constitution provides that Shariah law governs matters of marriage, divorce and inheritance amongst members of the communities to which it applies. It must be recalled that in the recent case of APDH v Mali (which I discussed here) the Court held that domestic religious law regarding the rights of women must be disapplied to the extent that it conflicts with the rights provided for in international human rights treaties ratified by states. Like Mali, The Gambia has signed and ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’), the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’) and, in 2010, the Women’s Act 2010 came into force, which incorporates these treaties directly into Gambian Law. Whilst the Act seems to provide a comprehensive set of rights to women in line with those set out in these treaties, it is of note that several of its provisions, for example Article 45 dealing with the right of inheritance for sons and daughters, make such rights expressly subject to personal law, which for the vast majority of Gambians is Shariah law.  It will be interesting to see whether, now that individuals and NGOs can access the Court directly, a similar action to that in the APDH v Mali case will be brought before the Court challenging the application of this law in family matters in The Gambia.

For those who desire to see a greater level of human rights protection on the African Continent, the deposition of The Gambia’s special declaration is a welcome development. Now, not only individuals but also NGOs, with greater resources and expertise, will be able to bring claims before the Court alleging a violation of any human rights treaty that The Gambia has ratified. This is a large step towards accountability for the nation and, should The Gambia faithfully implement any potential rulings against it, it will be yet another sign that the country is ready to turn the page from an oppressive and tumultuous chapter in its history. This news is also encouraging from a broader perspective, in that it demonstrates that more nations are engaging with the Court. As always, however, greater efforts need to be made towards ensuring implementation so that any perceived progress is not merely illusory.

Call for posts!

Our New Years resolution for 2019 at the ACtHPR Monitor is to get more content up on our blog! If you are working on or with the African Court on Human and Peoples’ Rights and would like to get your work out to the community, then please send an abstract of no more than 200 words to contact@acthprmonitor.org.

Alex Thomas and Mohamed Abubakari: The Legacy of Requests for Interpretation on Remedies

This blog post is based on my presentation given at the conference on “The Judicial Power of Africa’s Supranational Courts” hosted at the University of Luxembourg on the 21st of September 2018. It is also my inaugural post at The ACtHPR Monitor, enjoy! Misha Plagis

The cases of Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzania are undoubtedly some of the most important to come out of the African Court to date. For example, Alex Thomas established important precedents on applicants not having to exhaust extraordinary remedies[1], the need for States to ensure that litigants are represented,[2] and the requirement for the circumstances to order the released from prison to be special and compelling,[3] among others.[4]

However, within two years, Tanzania submitted a request for interpretation in both cases in September 2017. It is argued here that the request for interpretation in the two cases, which were the first in a long line of cases concerning the right to a fair trial in armed robbery prosecutions filed against Tanzania, have changed the course of how the African Court frames it’s remedies in contentious cases. 

The case of Alex Thomas will be used here as an illustration. 


The Original Case

In the original case filed Mr Thomas was jailed for 30 years for armed robbery.[5] Mr Thomas made a number of claims which included rights mostly related to article 7 on the right to fair trial, but he also invoked articles 1, 3, 5, 6, and 9 of the African Charter.[6] Notably, Mr Thomas also requested to be released from prison.

In the operative part of the decision, the African Court found that Tanzania had violated articles 1, 7(1)(a), (c) and (d) of the Charter, as well as article 14(3)(d) of the International Covenant on Civil and Political Rights.[7] In the judgement’s section on remedies the African Court ordered, inter alia:

“ix. Unanimously, that the Respondent is directed to take all necessary measureswithin a reasonable time to remedy the violations found, specifically precluding the reopening of the defence case and the retrial of the Applicant […].”[8]  

Importantly, two judges dissented in a crucial way from the perspective of the subsequent request for interpretation.[9] Namely, they agreed with the merits of the case but took issue with para. 159 of the decision, which effectively stated that the Court would not order the release of Mr Thomas because there were no ‘special or compelling circumstances’[10] to do so, but at the same time the Court also ordered Tanzania “to take appropriate measures to remedy the violations taking into account the above factors.”[11] In other words, the Court found that the request to be released from prison could only be granted under “very specific and/or, compelling circumstances”[12], which Mr Thomas did not fulfil,[13]despite having been imprisoned for almost 20 years as a result of a trial that violated article 7, and left it up to Tanzania to remedy the violation in an appropriate manner.[14]

Judges Thompson and Ben Achour dissented in their interpretation of whether or not ‘special or compelling’ circumstances were shown in the case of Mr Thomas. In their dissenting opinion the Judges stated that: 

“5. In spite of the fact that the Application does not state that particular facts exhibit exceptional circumstances, we are of the firm view that the Court found such specific/and or [sic] compelling circumstances when it noted that the Applicant has been in prison for 20 years out of the 30 year term of imprisonment and that the reopening of the defence case or a retrial ‘would result in prejudice and occasion a miscarriage of justice.’

6. We cannot find a more ‘specific and/or compelling’ [reason] than that the Applicant has been in prison for about 20 years out of a 30 year prison term following a trial which the Court has declared to be an unfair trial, in violation of the Charter.

[…]

8. The Court fell shy of making the Order of releasing the Applicant. Our view is therefore that, there is no other remedy in the circumstance other than, that the Applicant be released.”[15]

It is precisely the tension highlighted here by Judge Thompson and Judge Ben Achour that formed the core of what Tanzania asked in its request for interpretation.


Tanzania’s Request for Interpretation 

Tanzania’s request for interpretation raised three main questions:

1. The meaning of “all necessary measures”; 
2. What exactly the “violations found” were and how it should remedy them; and
3. The definition of the word “precluding”. 

In interpreting its judgement, the African Court made three important points worthy of further discussion. First, it restated the purpose of preparations as the need to “erase the consequences of an unlawful act and restore” the situation in which the applicant would have been had the violation not taken place.[16] Second, the Court further emphasised this need to have the situation restored when there has been a violation of the right to a fair trial.[17] Third, in this particular case, the Court identified two avenues to remedy the situation of Mr Thomas: 1) Tanzania should “reopen the case in compliance with the rules of a fair trial”, or 2) “take all appropriate measures to ensure that the Applicant finds himself in the situation preceding the violations.”[18]

In its further analysis, the Court clearly states that to retry the case would ‘not be just’,[19] therefore, leaving only the second option of ‘all appropriate measures’. The Court argued that the reason reopening the case would be inappropriate is due to the fact that Mr. Thomas had already served “more than half of the prison sentence[.]”[20] However, it remains unclear whether the Court is deliberately setting this as a bar for when a case could be retried or not.[21] In addition, although a matter of semantics, the shift in language from “all necessary measures” to “all appropriate measures” is not explicitly dealt with by the Court.[22]

The question remains, therefore, what does “all necessary (or appropriate) measures” mean in the context of the Alex Thomas case? The Court appears to use these terms to give Tanzania a certain margin of appreciation in implementing the judgement by giving it “room for evaluation to enable it to identify and activate all the measures that would enable it [to] eliminate the effects of the violations established by the Court.”[23] In the context of the time of the judgement, Alex Thomas being the first case in which Tanzania was found to have violated article 7, this is not a surprising move. However, in the context of the request for interpretation after a further five cases found that Tanzania had violated the right to a fair trial, it may have been prudent for the Court, in the interpretation, to provide more substantive guidance. Instead, it appeared to go back on its original judgement and state that “the expression ‘all necessary measures’ includes the release of the Applicant and any other measure that would help erase the consequences of the violations established and restore the pre-existing situation and re-establish the rights of the Applicant.”[24] This move is especially surprising considering that the judgement had explicitly rejected the request to be released by Mr. Thomas, albeit on the grounds of ‘special and compelling circumstances’.

In the end, there are two particularly important findings by the Court with regard to the Request for Interpretation. First, that the Court was in fact referring to the release of Mr Tomas when it ordered that ‘all necessary measures’ be taken in the original judgment, “or any other measure that would help erase the consequences of the violations established, restore the pre-existing situation and re-establish the rights of the Applicant”.[25] Second, that ‘remedy the violations found’ meant to “erase the effects of the violations found through the adoption of the measures indicated […] above;”[26] of which the release from prison was the only specific measure mentioned.

It would appear that the Court has a revelation in its interpretation that it in fact did mean the release of Mr. Thomas after all, despite being in contrast to what it ordered in paragraph 159 and section vii of the operative part of the original Judgement. The reasoning provided by the Court was that it “did not state that the Applicant’s request was unfounded” but merely that it could not order the measure directly due to the lack of ‘specific and compelling circumstances’.[27] Therefore, despite the Court originally finding that the situation was insufficiently compelling to order the immediate release of Mr. Thomas, it emerges from the Request for Interpretation that Tanzania should have released him in order to comply with the judgement.

The problematic element is not whether or not the release of Mr. Thomas was the appropriate measure to be taken. Rather, the issue is that the African Court did not have a clear line on what was appropriate in the case of Alex Thomas v. Tanzania, and that this was part of a trend in which the Court appeared to not be defining and specifying what is required for certain types of remedies.[28]


The Impact 

Despite the unusual path that the African Court took to come to the conclusion that Mr Thomas (and Mr Abubakari[29]) should have been released from prison, the legacy of the requests for interpretation submitted by Tanzania can be seen in the subsequent case law. 

For example, in the case of Christopher Jonas v. Tanzania the Court made a new addition to its formula for dismissing the Applicant’s prayers for release from prison in a fair trial cases. Namely, the African Court dismissed Mr. Jonas’s appeal to be released from prison, but did so “without prejudice to the Respondent applying such a measure proprio motu[.]”[30] The Court adopted the same approach for the Applicant’s prayer to have the conviction and sentence set aside.[31] The case of Christopher Jonas was decided during the same session as the requests for interpretation in Alex Thomas and Mohamed Abubakari. This additional phrase coined in Christopher Jonas can be seen in other cases against Tanzania regarding the right to a fair trial such as Kijiji Isiaga v. Tanzania, Thobias Mang’ara Mango and Shukurani Masegenya Mango v. Tanzania, and Amiri Ramadhani v. Tanzania.

The more recent case law of the African Court marks a new shift in the Court’s approach once again. For example, in the case of Anaclet Paulo v. Tanzania and Minani Evarist v. Tanzania, the Court awarded the applicants three hundred thousand Tanzanian Shillings in compensation. Thus, the 50th Ordinary Session potentially signifies a new era in which the African Court is now also willing to order monetary awards to victims of violations of the Charter.[32] In addition, in the case of Mgosi Mwita Makungu v. Tanzania the African Court found that the situation was‘exceptional and compelling’ enough to warrant the order of the release of Mr Makungu.[33] It remains to be seen how the African Court will position itself in terms of remedies, both in terms of measures and monetary compensation, in the future. However, the direction taken by the African Court in developing its case law, from the early days of Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzaniato the latest set of cases decided in August-September and November-December 2018, seems to be a positive one and will hopefully set the tone for how the Court deals with remedies in the jurisprudence to come.

Correction [19 Jan. 2019]: The original post contained the case name Thobias Mang’ara Mnago and Shukurani Masegenya Mango v. Tanzania, instead of Thobias Mang’ara Mango and Shukurani Masegenya Mango v. Tanzania.

[1]Alex Thomas v. Tanzania, para. 64. 

[2]Ibid para. 115 (also see para. 116 and 124), also see Mohamed Abubakari v. Tanzania, para. 122 on how the right to access to legal counsel is assessed, and elaborates on when free legal assistance should be provided in para. 137-145. 

[3]Alex Thomas v. Tanzania, para. 157. 

[4]In Mohamed Abubakari v. Tanzania for example the court made important findings on the need for impartiality of prosecutors for a fair trial (para. 107-111), the Court not being bound by national law (para. 136), the timely communication of indictment and statement of witnesses (para. 157-161), and the definition of ‘open court’ for the public pronouncements of judgements (para. 224-227). 

[5]Alex Thomas v. Tanzania, para. 4

[6]Articles 1, 3, 5, 6, and 9 relate to giving effect to the rights of the African Charter, equality before the law, prohibition of torture and inhuman and degrading treatment, the right to liberty and security, and the right to receive information respectively.

[7]Alex Thomas v. Tanzania, operative part, para. vii. 

[8]Ibid, operative part, para. ix. [own emphasis added]

[9]Judge Elsie N. Thompson and Judge Rafâa Ben Achour.

[10]Alex Thomas v. Tanzania, para. 157. 

[11]Ibid para. 159. 

[12]Ibid para. 157. 

[13]Ibid para. 157. 

[14]The African Court has provided more guidance on this issue in the case of Diocles William v. Tanzania, para. 101-105, and para. xi of the operative part of the judgement. 

[15]Alex Thomas v. Tanzania, Dissenting opinion, para.’s 5-6. 

[16]Request for Interpretation, Alex Thomas v. Tanzania, para. 31.

[17]Ibid para. 33.

[18]Ibid.

[19]Ibid para. 34.

[20]Ibid.

[21]This issue is also dealt with in Diocles William v. Tanzania, para. 95-106.

[22]See Request for Interpretation, Alex Thomas v. Tanzania, para. 33. 

[23]Ibid para. 35. 

[24]Ibid para. 39. 

[25]Ibid, operative part, para. iii.

[26]Ibid, operative part, para. iv. 

[27]Ibid para. 36. 

[28]Another example of the vague wording of remedies can be found in the case of Actions Pour la Protection des Droits de l’Homme (APDH) v. Côte d’Ivoire (see para. operative part, para. 7) and the subsequent request for interpretation on the measures that Côte d’Ivoire could take to remedy the situation. However, in that case the Court did not provide more details, as “[…] although the first question seems to relate to […] paragraph 7 of the operative provisions of the Judgement, it is not intended to clarify the meaning of this point. Rather, it seeks the Court’s opinion as to how to implement this point, which, in the Court’s view, is the responsibility of the State of Côte d’Ivoire.” See Request for Interpretation, ADPH v. Côte d’Ivoire, para. 16.  

[29]The same general story applies to Mr Abubakari, who was also denied release from prison as a remedy in the original case due to lack of ‘special and compelling circumstances (see Mohamed Abubakari v. Tanzania, para. 234) but in the Request for Interpretation, the Court identified that the release of Mr Abubakari from prison was the appropriate remedy (see Request for Interpretation, Mohamed Abubakari v. Tanzania, para. 36-39). 

[30]Christopher Jonas v. Tanzania, operative part, para. vii. 

[31]Ibid, operative part, para. viii. 

[32]Also see Armand Guehi v. Tazania, para. 151-195, for a more detailed discussion on monetary damages. 

[33]Mgosi Mwita Makungu v. Tanzania, para. 85-86.