Author: Oliver Windridge

Firstly, a belated happy near year to all our Monitor readers!

In this first post of the year, I wanted to highlight something that I hope many readers have already read- the recently released Joint Law Report 2019. The Joint Law Report is a new venture from the African Court on Human and Peoples’ Rights, Inter-American Court of Human Rights and European Court of Human Rights. This product is exactly what it sounds like; a review of the most important 2019 cases from the African Court, Inter-American Court and European Court. In and of itself, this report is notable as the first of its kind, providing rich pickings for legal practitioners, activists and researchers who can use it to quickly review and understand case law from 2019 across three regional human rights courts.

But over and above the Joint Law Report’s obvious use, I wanted to recognise the cooperation required for a product like this. Put simply, cooperation across three courts, especially the first one, is hard. This is a great sign of a burgeoning recognition between regional human rights courts that they are going to be most effective when they work together. Rather than operating in self-contained silos, these courts, not only referencing each other’s case law, but perhaps equally as importantly talking to each other outside the confines of judicial decision making should not only be welcomed but encouraged. The more these courts talk to each other, the more they can explore and share concerns, difficulties and issues. This can in turn improve their work, ultimately leading to better human rights protection for everyone under the jurisdiction of the three courts. I hope this becomes an annual product, not only assisting in disseminating leading caselaw, but keeping the courts talking.

You can find the report here

Over the last week, observers of the African Court on Human and Peoples’ Rights (African Court) have been gripped as news of Tanzania’s possible withdrawal of its Additional Declaration pursuant to Article 34(6) of the African Court Protocol emerged. At the time of writing, I haven’t seen any official statement from the African Court on this, but we now have a few press articles, plus a statement from Amnesty International denouncing the move. Given the lack of pushback from the African Court and what seems to be quotes from Tanzanian officials confirming the withdrawal, it appears that the withdrawal has indeed taken place.

In this post I want to explore a few issues relevant to the withdrawal based largely on correspondence I’ve had over the last week with people interested in Tanzania’s withdrawal and wanting to know more. Its again worth emphasising that the following is based on my understanding that Tanzania is simply withdrawing its Article 34(6) Additional Declaration with no changes/withdrawals to other related instruments.

What is the Additional Declaration?

A good place to start for those who may be new to the African Court. I go into a lot of detail on how individuals can access the African Court, in an article I wrote for the Wisconsin International Law Journal. But in short, we have three relevant instruments. First, we have the African Charter on Human and Peoples’ Rights (African Charter). The African Charter contains human and peoples’ rights that many will be familiar with, for example the right to fair trial (Article 7) and the right to life (Article 4). Every AU member state, apart from Morocco, has ratified the African Charter. The African Charter makes provision for the African Commission of Human and Peoples’ Rights (African Commission), but not the African Court; this is where there second instrument come in. The African Court Protocol is an additional instrument that essentially creates the African Court and allows AU member states to participate with it. Importantly, when AU member states ratify the African Court Protocol it allows cases to brought before the African Court by AU member states, the African Commission and Intergovernmental organisations. What ratification of the African Court Protocol does not do, is allow individuals or NGOs to directly petition the African Court. There is however a way to do this; an AU state must sign a declaration as found in Article 34(6) of the African Court Protocol, often referred to as the “Additional Declaration” or sometimes the “Special Declaration”. The wording of the Additional Declaration may not be long but it is very powerful. It allows individuals and NGOs to directly bring cases against the state, without having to go through the African Commission or persuade other states or intergovernmental organisations to bring a case on their behalf. Tanzania signed the Additional Declaration in March 2010, and since then Tanzanians and Tanzanian NGOs have been able to bring cases directly to the African Court alleging Tanzania has violated their rights as found under the African Charter or other international human rights instruments ratified by Tanzania. What we understand is that Tanzania has not withdrawn from the African Court entirely, but withdrawn its Additional Declaration.

Can Tanzania Do This?

Yes. This is not the first time this has happened. Last year Rwanda withdrew its Additional Declaration. I wrote an article on this for the African Human Rights Yearbook that is available here. Simply put, Rwanda applied to withdraw its Additional Declaration as it felt that persons accused of genocide-related crimes were using the African Court inappropriately. Putting the rights and wrongs of this argument to one side, the African Court considered the notion of withdrawal and found that Rwandan could indeed withdraw its Additional Declaration (just as a state is free to sign the Additional Declaration, it is also free to withdraw it), albeit with a 12 month notice period.

What Does this Mean for Tanzania?

Its important to note the 12 month notice period, or “cooling off period”. I have seen several reports on Tanzania’s withdrawal that fail to mention this crucial aspect of the Rwandan case. For Rwanda, this meant that the African Court would continue to accept cases relating up to one year after it withdrew its Additional Declaration. Whilst we have yet to receive all the information in the Tanzanian situation, I see no reason on the information I have seen why the same would not apply in this case. Reports tell us Tanzania submitted its withdrawal on 21 November 2019. This would mean applicants would have to submit applications by 21 November 2020.

What Does this Mean for the African Court?

We are going to go into more details of the potential wider ramifications of Tanzania’s withdrawal over the coming weeks on The ACtHPR Monitor, but it is worth flagging right now that (a) the African Court is based in Arusha, Tanzania and (b) that a large majority of cases relate to Tanzania. Whilst there is no reason I am aware of why Tanzania cannot continue to host the African Court even if it is not fully signed up to it, the optics are obviously difficult. In terms of the large majority of cases relating to Tanzania, as I mention above, based on the Rwanda precedent, all current cases on the African Court’s docket remain, as will all future cases for the next 12 months. This means the African Court is likely to rendering judgements relating to Tanzania for a while yet.

Can This Decision be Reversed?

We are hearing that there efforts at the UN level to try and persuade Tanzania to reverse its withdrawal- lets see what happens.

When Can We Expect Further Information?

The issue of timing is one I raised in my article analysing Rwanda’s withdrawal its Addition Declaration. In that case, the decision to impose a 12 month cooling-off period appeared to be handed down some six months after the withdrawal notice was submitted. The delay in part because the matter was litigated extensively. In effect, this appeared to mean that the notice period was only six months (the remainder of the 12 month notice period after the decision was rendered) putting prospective Rwandan applicants at an apparent disadvantage. Given that the issue of if/how long a notice period exists has now been considered, it is hoped the African Court can act quickly to clarify the position in this new case. The bottom line; unless told otherwise, prospective Tanzanian applicants have until 21 November 2020 to file cases before they will lose the opportunity for the foreseeable future.

As I say, we will have further posts in the coming weeks on this, but hopefully this serves as a starting point.

Just a short post to highlight a really interesting new Amnesty report. The publication, entitled “The State of African Regional Human Rights Bodies and Mechanisms 2018-2019” is an important review of the main African Union-related human rights entities; the African Court on Human and Peoples’ Rights (ACtHPR), the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The report gives a fascinating overview of all three human rights organs, and whilst it does not go into great analysis of individuals decisions (you can get that here at The Monitor!) it does provide invaluable assessment of their operations and picks out some interesting trends, both positive and negative.

Equally welcome is Amensty’s declaration that the release of this kind of report will be an annual event, with publication anticipated every October. An annual report of this kind, when done well as appears to be the case here, can only be a good thing; providing much needed analysis and assessment of both the African Court and its human rights cousins, the ACHPR and ACERWC. You can download the report here.

I encourage all our readers to have a look!

As followers of the African Court and The ACtHPR Monitor will know, the case of Ingabire v Rwanda will undoubtedly rank as a watershed case. For those new to this matter, may I suggest reading previous posts on the case here, here, here, here and here (I’ve posted a lot on this!) I also had an article published in the latest edition of the African Human Rights Yearbook that looks at the case extensively. Its free to download and can be found here.

So, in this post I wanted to close the circle and have a look at this final leg of the case; the reparations decision that came out in December 2018. This decision, barring a request for review or interpretation, sees the end of one of the most fascinating cases before the African Court. As I’ve briefly discussed above, this case had everything; high profile applicant, country withdrawal, unprecedented decisions on that withdrawal, judgement on the merits and more. The reparation judgement continues this theme with some interesting points to note. At the outset, it’s worth noting that this reparations judgement is only the African Court’s fourth reparations judgement (in Mtikila v Tanzania no reparations were awarded, in Zongo et al v Burkina Faso and Konaté v Burkina Faso reparations were awarded). The African Court is beginning to build up a substantial number of judgements on the merits, but the reparations elements for several of these cases remains wanting.

But perhaps it’s still worth just giving a little context about this case in a few sentences. Victoire Ingabire, a prominent Rwandan opposition politician, petitioned the African Court alleging that her trial in Rwanda on genocide-denial type charges fell short of the right to fair trial and the prosecution itself violated her right to freedom of expression, both of which are enshrined under the African Charter and ICCPR. Its very much worth noting that in-between Ingabire’s petition and African Court’s judgement, Rwanda withdrew its Additional Declaration allowing individuals and NGOs direct access to the African Court. Despite this withdrawal the African Court continued to consider the case and found in Ingabire’s favour. However, as is usual practice, the African Court deferred its decision on reparations to a later date, allowing both parties to make further submissions specifically on reparations. In terms of procedure, perhaps unsurprisingly, Rwanda filed no submissions on reparations. Given Rwanda’s withdrawal of its Additional Declaration during this case this is was expected, but it wasn’t necessary. Rwanda could have continued to litigate this case and still preserve its withdrawal. But given Rwanda’s reasons for withdrawal perhaps it simply couldn’t countenance the idea of wading into reparations debates?

Removing the Convictions

The African Court reiterated that reparations are required to make full reparation for the damage caused to the victim. Interestingly, the African Court added that when considering reparations, it will consider the “expressed wishes of the victim” confirming perhaps the African Court’s approach that the reparations stage should very much be victim-lead rather than lead by the African Court and its judges.

Despite noting the need to consider the wishes of the victim, the African Court did not grant Ingabire’s request to for her convictions to be expunged; perhaps her biggest wish? Whilst the African Court stated that the role of reparations is to “erase all consequences of the wrongful act and restore the state which presumably have existed if that act had not been committed” it stopped short of ordering Rwanda to remove Ingabire’s conviction from the record. Whilst the fact that Ingabire was released from prison in November 2018, just before the reparations judgement was released, may have played some role, the fact remains that Ingabire still has a criminal conviction for conduct which the African Court has stated was a legitimate form of freedom of expression, following a trial which it found was unfair. The African Court seems to read Ingabire’s request to be the expunging of the sentence only, but I’m not so sure. I read the request as the expunging of the conviction too (see paragraph 6 of the Reparations Decision) If this is indeed the case, could the African Court not have ordered Rwanda to remove the conviction too? The African Court’s powers would suggest so.

Material Reparations

As to material reparations, Ingabire claimed $200,000 for procedural costs including lawyers’ fees. The African Court examined the fees paid by Ingabire to her lawyers and granted the sums incurred. This sends a clear message that applicants can seek to obtain such costs as long as they are properly detailed and accounted for in supporting documents. What is interesting is that the African Court granted fees not only for litigating the case before the African Court, but for the lawyers defending Ingabire in the domestic courts too. Therefore, the African Court seems to have considered legal fees in the widest possible stance; not only African Court litigation but also the costs of the defence against charges in Rwanda that the African Court ultimately found violated Ingabire’s right to fair trial and freedom of expression. Future applicants should therefore not only seek to cover the costs of African Court litigation but also all other associated lawyers costs in domestic cases too.

Moral Prejudice

Ingabire also made a claim for moral prejudice, arguing that since her imprisonment her political and family life have been shattered.  For Ingabire herself, the African Court seemed to be in little doubt that she had been targeted for her words and views, and that her reputation and political future had suffered, agreeing that she deserved reparations. 

Ingabire also claimed reparations on behalf of her husband and children who had also suffered physically and emotionally as a result of her prosecution and conviction. Taking its lead from its Zongo et al v Burkina Faso reparations judgement, the African Court confirmed that direct or close family members who suffer physically or psychologically from a violation are also victims. This is a welcome continuation of the African Court’s expansive views on who can claim reparations. Like the material costs discussed above, the African Court’s key determination in awarding such reparations was the documentation that Ingabire produced to support these claims. In particular, Ingabire provided medical reports to support her description of her husband’s suffering, although such evidence was not, perhaps sensibly, required of Ingabire’s children. In total, the African Court awarded $100,000 in reparation for moral prejudice. On final point. The African Court noted that Ingabire received a presidential pardon, leading to her release, and that this constitutes a form of reparation for moral damage, but this does not preclude the payment of monetary compensation for the violation of the right to freedom of expression. This stance sets an interesting precedent moving forward. Member states can attempt to rectify a violation that will go some way to easing a situation, but this will not block the African Court’s awarded of financial compensation too.

Conclusion

In conclusion, this case marks only the third time the African Court has awarded reparations, and largely follows the African Court’s previous decisions. In terms of material reparations, it’s interesting to see the expanding the potential costs of lawyers to cover domestic work as well as the African Court litigation. In terms of moral prejudice, the African Court continues to maintain an expansive approach to who can be considered a victim, including direct or close family members. What comes out from all these points however is the requirement that applicants seeking to claim reparations provide as much documentary evidence as possible. With supporting evidence, the African Court seems ready to consider an extensive interpretation of reparations. Without supporting evidence, reparations claims are likely to flounder. Of course, it is Rwanda who is required to pay the reparations, not the African Court, and this is likely to be the sticking point for Ingabire receiving any of the money she has been awarded. I have no inside knowledge of this, but my best guess is that given the context of the case, Rwanda is unlikely to ever pay up. I hope I am wrong, but I suspect Ingabire may be waiting a long time before Rwanda fully closes the circle on this case.

Whilst our twitter presence has remained strong throughout 2018, I am aware that The ACtHPR Monitor hasn’t produced much content on our blog; our last post was in May in fact- yikes!

Despite this fallow period, I’m pleased to say we are redoubling our efforts to produce as much African Court related content as possible in 2019. With this in mind, I am delighted to announce the appointment of Misha Plagis as The ACtHPR Monitor’s new Associate Editor! 

Misha received her LL.B. and LL.M. from Maastricht University, before working with a number of NGOs around the world. Misha then pursued her doctorate at the Freie Universität Berlin, as part of the Human Rights Under Pressure interdisciplinary graduate school. Having completed her doctorate this year, Misha is currently a visiting scholar at the Max Planck Institute for Procedural Law, Luxembourg.

Misha is a South African and Dutch national, who’s scholarship this year has focused on the African Charter and the African Court. I think Misha is going to be a great fit at The ACtHPR Monitor. She will be regularly posting her own content (first post coming this week) as well as facilitating new guest posts and coming up with new and exciting ideas for The ACtHPR Monitor in 2019.

I hope the whole Monitor community will join me in welcoming Misha on board!

This post first appeared on EJIL:Talk! on 30 March 2018. Following publication I have received a number of enquiries which has prompted me to cross-post this here on The ACtHPR Monitor. If you have already read my post on EJIL:Talk! this will look very familiar, if not, I hope you enjoy! OW.

Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging  is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.)

Despite this apparent victory however, the applicant, Mr Ping, was in fact executed. How did this happen? The decision explains that despite the African Commission using its powers to issue provisional measures preventing execution pending the outcome of the case, a temperamental fax machine prevented this decision being sent directly to the Botswana Office of the President. The provisional measure order to halt the execution therefore never reached Botswanan officials, who went ahead with the execution (yes, you read that correctly, see paragraph 24 of the decision).

So, whilst this decision was rightly lauded, the inescapable tragedy of Mr Ping’s death remains. However, with the decision having been in place and available on the African Commission website for some time, and no doubt with the Botswanan government for years, one could perhaps safely assume that at the very least we would not see an execution by hanging in Botswana any time soon.

Sadly, however news reached us last month that Botswana had executed Joseph Poni Tselayarona; seemingly the first execution since Mr Ping. The reported method of execution? Hanging. As I mentioned at the beginning of this post, another country not implementing a human rights decision may not be particularly novel, but where it involves the use of a form of execution specifically outlawed, involving the very same country subject to the previous decision, this a case worth highlighting.

The African Commission has issued a statement condemning the execution of Mr Tselayarona. In it, the African Commission mentions the death penalty “may” be a violation of Article 4 of the African Charter whilst stating that Article 5 of the African Charter prohibits cruel, inhuman or degrading punishment in broad terms. It does not however reference its own decision on this very issue, involving the exact same country.

Botswana’s failure to not only remove the death penalty but at the very least abstain from using the very mode of execution which the African Commission has decided is in violation of the African Charter merits a further response from the African Commission. But what can be done? The African Commission can send cases to the African Court on Human and Peoples’ Rights (see Rules 118 of the African Commission Rules). However, from the wording of the African Commission rules and the African Court’s reciprocal rules, it appears Botswana must have at the very least signed up to the African Court by signing the African Court Protocol. At present Botswana has not, and therefore a formal transfer from the African Commission to the African Court of the 2015 decision for, say, non-compliance seems off the cards.

Therefore, the matter likely remains within the African Commission’s jurisdiction. One option now is for the African Commission to issue a formal resolution calling on Botswana to implement its 2015 decision and no longer use hanging as a method of execution. Could this resolution could be applied to all 55 African Union member states? Possibly. The African Commission has issued such a resolution once before to my knowledge. In November 2009, the African Commission considered the case of Endorois v. Kenya. In this case, the Endorois people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria, Kenya and Kenya’s failure to adequately compensate them. The African Commission found in the Endorois peoples’ favour, ruling Kenya had violated numerous articles of the African Charter, and recommended several ways to rectify the situation. It appears that Kenya did little to implement the African Commission’s recommendations, and so in November 2013 the African Commission issued a resolution calling on Kenya to implement its recommendations.

Whether the resolution issued in the Endorois case had much effect is up for debate (although it appears that the next time a Kenyan case involving indigenous peoples’ came before the African Commission it transferred the case to the African Court proprio motu). In the current Botswana situation, where we have the same country using precisely the same form of execution found by the African Commission to be in violation of the African Charter, it seems the very least the African Commission should do is issue a similar resolution. Such action would at least go some way to ensuring we are not faced with similar cases such as those of Mr Ping and Mr Tselayarona. It may be a small step, but it would be a start.

 

 

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