Author: Oliver Windridge

I am very pleased to welcome Moustapha Fall, doctoral student at the University of Nantes (France), to the Monitor with this guest post analysing two important environmental cases before the ECOWAS and EACJ. I hope our readers enjoy this piece, part of our occasional series on Africa and the environment. Comments can be send to Moustapha via contact@acthprmonitor.org- OW

1. Introduction

This post analyses the way that sub-regional African courts, namely the Court of Justice for the Economic Community of West African States (ECOWAS Court) and East African Court of Justice (EACJ), interpret legal instruments on human rights and community law in order to ensure the protection of the environment. I believe that both the ECOWAS Court and EACJ have moved towards what has been termed ‘judicial environmentalism’ in their recent jurisprudence and have given effect to substantive environmental rights in Africa. I will examine the ECOWAS Court’s ruling in the SERAP case and the EACJ’s holding in the Serengeti case, both of which have shown that safeguarding human rights and preserving the environment are complementary objectives that sub-regional courts are willing to protect.

2. SERAP v. Nigeria (2012)

In the SERAP case, ECOWAS Court for the first time gave genuine protection to the environment in the Niger Delta region.

(i) Facts of the Case

The Applicants in this case were the Socio-Economic Rights and Accountability Project (SERAP), a non-governmental organization who focus on damage from oil spills and other human rights violations caused by oil operations conducted on land and offshore in the Niger Delta region. For decades the Niger Delta region has suffered from oil spills which destroy the area and deny the people living there the basic necessities of life such as adequate access to clean water, food and a healthy environment in which to live.

The Applicants alleged that the  industrial operations of the Shell Petroleum Development Company (SPDC) were responsible for much of the oil spillage in the Niger Delta. They alleged that these spillages led to a violation of people in the Niger Delta right to health and an adequate standard of living and argued that the economic and social development of the people of the Niger Delta had been badly affected, as Nigeria had failed to enforce laws and regulations to protect the environment. In particular, the Applicants alleged violations of articles 1, 5, 9, 14, 17, 21, 24 of the African Charter on Human and Peoples’ Rights (ACHPR), Articles 1, 2 and 6 of the International Covenant on Economic Social and Cultural Rights (ICESCR), Article 12-2 (b) of the International Covenant on Civil Political Rights (ICCPR) and Article 15 of the Universal Declaration of Human Rights (UDHR).

(ii) Decision of the Court

In its consideration of the case, one of the main questions that the ECOWAS Court had to answer was whether Nigeria had violated the right to a ‘satisfactory’ environment provided for under Article 24 of the ACHPR.

To determine the state responsibility of Nigeria, the ECOWAS Court made the link between Article 24 and Article 1 of the ACHPR, which provides that ‘The member states of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them‘. The Court declared that Article 24 ‘requires every state to take every measure to maintain the quality of the environment…such as it may satisfy the human beings who live there, and enhance their sustainable development’. The Court then reasoned that the state obligation under Article 24 of the ACHPR is both ‘an obligation of attitude and an obligation of result’.

The Court went on to find that the Nigerian government had failed to protect the Niger Delta and its people from oil operations. It found that Nigeria had not taken measures to prevent environmental damage and interestingly failed to hold the oil companies responsible for environmental degradations. The ECOWAS Court therefore ordered Nigeria to ‘take all effective measures to ensure restoration of the environment of the Niger Delta by oil spills from Shell and other companies and to take all effective measures to prevent the occurrence of damage to the environment’.  The ECOWAS Court took a broad view of environmental protection and referred in its judgement to the definition provided by the International Court of justice (ICJ) who expressed in the Legality of the threat or use of nuclear arms advisory opinion that the environment ‘is not an abstraction but represents the living space, the quality of life and the very health of human being, including generations unborn‘. The ECOWAS Court subsequently determined that the ‘environment is essential to every human being and the quality of human life depends on the quality of the environment‘. The ECOWAS Court finally declared that Nigeria failed in its duty to maintain a satisfactory environment favourable to the development of the Niger Delta region and also failed to enact effective laws and establish effective institutions to regulate the activities of companies. The court also held that Nigeria had failed to enforce environmental standards, thereby violating the rights of the people in the region.

The collective approach of the ECOWAS Court was very original in considering that ‘Article 24 requires every State to take every measure to maintain the quality of the environment understood as an integrated whole, such that the state of the environment may satisfy the human beings who live there‘. With this decision, the ECOWAS Court recognized the right to a healthy environment as provided for by the ACHPR.

3. ANAW v. The Attorney General of Tanzania (2014)

The central dispute in the ANAW case concerned the decision of the Tanzanian government to build a road across the Serengeti National Park. In this case, the EACJ sought to enforce the environmental obligations states have agreed to under the East African Treaty (EAT).

(i) Facts of the Case

The Applicants in this case were the African Network for Animal Welfare (ANAW), a non-profit environmental conservation organization based in Kenya. In 2010, Tanzania released plans to build a 53 kilometre bitumen road across the Serengeti National Park for use by the general public. ANAW claimed that the construction of the road would have a negative impact on animal behaviour and the quality of life of the citizens living in the vicinity. ANAW sought, inter alia, a declaration that the construction of the road across the Serengeti would be unlawful and in violation of several provisions of the EAT. They also sought a permanent injunction, restraining Tanzania from maintaining any road or highway across any part of the Serengeti National Park.  The Applicants argued that Tanzania had violated its obligations in respect of the Serengeti, which had been declared a World Heritage Property of “Outstanding value” according to United Nations Educational, scientific and cultural organization (UNESCO).

(ii) Decision of the Court

Tanzania initially challenged the jurisdiction of the EACJ to hear the case, arguing that as the environmental protocol on which the Applicants based their claim had not yet been enacted, the Court had no jurisdiction to hear the case. The Court however, dispensed with this jurisdictional challenge, arguing that whilst the specific protocol at issue may not have been ratified by Tanzania, the EAT  had been ratified, and certain provisions of the EAT made it clear that the environmental provisions of the protocol would apply to State parties of the treaty irrespective of specific ratification of the Protocol. The Court therefore dismissed this ground of objection.

The EACJ then went on to analyse what it considered the key issue which was whether the proposed action infringed the provisions of the EAT itself. In this regard, the EACJ held that the proposal to construct a road across the Serengeti National Park was unlawful and infringed articles 5 (3) (c), 8 (1) (c), 111 (2) and 114 of the EAT which require partner states to conserve, protect and co-operate in the management of natural resources and the environment.  According to the EACJ ‘there is no doubt that if implemented the road project initially would violate the Treaty’. The EACJ was convinced by the negative consequences on the environment of the proposed action and therefore ordered an injunction restraining Tanzania from operationalizing the proposal.

Tanzania appealed the decision of the First Instance Court to the Court of Appeal however, the Court of Appeal upheld the decision, holding that partner states must respect their environmental obligations and re-affirming that the EACJ had the power to grant permanent injunctions against sovereign partner States.

4. Conclusion

To conclude, it is clear that in ordering Nigeria to take all effective measures to ensure the restoration of the Niger Delta environment the ECOWAS Court illustrated its commitment to protect the right to environment in West Africa. Similarly, the EACJ demonstrated its ability to interpret the EAT in order to protect the environment. With these decisions both courts have expressed their commitment to the protection of environmental rights in the Western and East African regions. These decisions have established valuable precedents through which individuals and NGOs can bring actions against governments in relation to environmental matters in the future.

 

A ripple of excitement spread through Monitor HQ in July when the African Court released its latest order in the case of Ingabire v Rwanda.

For those coming to this matter new, the applicant is the currently imprisoned Rwandan opposition political leader Victoire Ingabire. Ingabire alleges violation of various articles of the Universal Declaration on Human Rights, the African Charter and the ICCPR, relating to her right to fair a trial.

The case has yet to have a public hearing, but it is already one of the most interesting cases the Court has dealt with. Why? Because news broke in March this year, on the day the Court was due to hold the public hearing in the case, that Rwanda had withdrawn its Article 34(6) Declaration allowing its citizens and NGOs direct access to the Court (“Special Declaration”), the effect being Ingabire’s case was halted. Exactly how Rwanda had withdrawn and whether the Court was suspending or terminating matters was unclear. The Court’s decision on how to proceed with Rwanda’s withdrawal- ‘Rwexit’ perhaps?- has become an important issue not just for Ingabire but for Rwanda in general and also across the continent as other countries who have signed the Special Declaration watch carefully to see whether they too can withdraw their Special Declaration and at what cost, whilst countries that have not signed the Special Declaration assess what they are potentially signing up for. You can read more about this in my previous posts here and here. I also recommend reading Nani Jansen Reventlow – the recent subject of a Q&A here at the Monitor- piece here.

With all this in mind, what Court observers have been waiting for is the Court’s official decision on whether Rwanda can withdraw its Article 34(6) Special Declaration and if so, when it takes effect and how it will effect cases currently pending before the Court including Ingabire’s. Excitement at Monitor HQ over this latest order was somewhat tempered however as it became clear that this order was an intermediate order on procedural matters, rather than a decision on the substantive issue of Rwanda’s withdrawal. Paragraph 31 tells you pretty much all you need to know. It reads: “this Order is with respect to the procedural matters raised by the Applicant as alluded to in paragraph 24 above”.

Whilst the order therefore does not address the substantive issue of Rwanda’s Special Declaration withdrawal, it does address a number of important  matters raised by Ingabire’s legal team and contains some interesting findings that deserve to be examined a little closer.

In particular, the Court considered four requests from Ingabire: (1) for the Court to reject an amicus brief; (2) for the Court to facilitate access between Ingabire and her legal team; (3) to facilitate video conferencing technology to allow Ingabire to follow proceedings from Rwanda; and (4) for the Court to order Rwanda to comply with the Court’s previous decision to provide her legal team with legal documents.

For the purposes of this post I want to group the issues into two distinct categories: the first category groups the second (Ingabire’s access to her legal team) and fourth issues (Rwanda’s alleged failure to provide legal documents) together; these are Ingabire’s requests for the Court to order Rwanda to do something. The second category, the first (Amicus Brief) and third (video conferencing) issues are Ingabire’s direct appeals to the Court to do something itself.

With regard to the first category, Ingabire’s legal team complained that the Rwandan authorities have consistently tries to intimidate them by subjecting them to full searches including of confidential legal documents on prison visits and by delaying visas to Ingabire’s co-counsel Caroline Buisman which has prevented her from entering Rwanda to consult with Ingabire. Ingabire’s legal team argues that these tactics have resulted in their inability to prepare their case and undermine Ingabire’s right to an effective remedy.

The Court, relying on Rule 28 and Rule 32 of the Court’ Rules, made clear that Rwanda is required to assist Ingabire and by extension her legal team in order to facilitate proceedings by the Court. The Court stopped short of finding that any searches of persons entering prison would be in violation-lawyers like any other visitor entering a prison can and should be subject to a search- but the Court did make it clear that confidential legal papers should not be subject to search from prison authorities.  This is a small but possibly significant finding not only for Ingabire’s legal team but also other lawyers representing clients in prison across Africa. Put simply, authorities can search lawyers as they can any other prison visitor, but they can’t search through legal papers.

As to Rwanda’s failure to file legal documents, the Court seemed unimpressed with Rwanda’s actions. On 7 October 2015 the Court ordered Rwanda to file  a slew of relevant legal documents which had until then been unavailable. These documents included national laws, Ingabire’s charge sheets and records of legal proceedings; all of which the Court may want to consider as it considers the merits of the case. The Court noted that Rwanda has expressed its difficulty in complying with the Court’s order as the papers were either with Ingabire or the Rwandan Supreme Court, and that an application would need to be made to the Supreme Court explaining the reasons for the application. The Court was not convinced by this explanation, reasoning that Rule 41 of the Court’s Rules allow the Court to request any documents its deems necessary. It found that since the documents are in the hands of the Rwandan Supreme Court, they are official state documents and therefore also in possession of the Rwanda Attorney General of Rwanda, the figurative respondent on behalf of Rwanda. In short, Rwanda could not rely on an excuse that a different section of the state machine had the papers- if they are public documents and they are in the hands of a state organ then there is not reason why Rwanda could not file them with the Court.

Again, similar to the above point on the confidentiality of legal papers, this decision may appear small, and perhaps even obvious, but it may well be important in future cases when states attempt to hide behind bureaucratic explanations and red tape in order to explain their inability to provide documents required by the Court.

Turning now to the second category of issues- those where Ingabire’s legal team were requesting the Court itself do something- their first issue concerned an amicus brief filed by the National Commission for the Fight Against Genocide organization (NCFAG). Ingabire argued that the Court should reject this amicus brief since the NCFAG is not independent and is in fact an official Rwandan organ responsible to the Rwandan President. The Court, unsurprisingly, found that it was entitled to consider amicus curiae briefs under Rule 45 of the Court’s rules, and that it was for the Court and the Court alone to determine the value and strength of any brief put before it. Why is this decision unsurprising? I suggest that it was also going to unlikely that the Court would make a determination on the status of any brief submitted at this stage. By keeping the amicus brief on the record, the Court is able to consider it if and when it considers the application on the merits. If it considers the brief to be of use it can cite the relevant sections, if it does not consider it useful it can simply not refer to it. This decision therefore neatly sidesteps making any proclamation on the neutrality of the NCFAG and cements the principle that it is for the Court to decide on the relevancy or merits of an amicus brief, not the parties.

Finally, and what is perhaps the most interesting issue, is Ingabire’s request for video conferencing technology. Ingabire requested this technology be provided to allow her to follow proceedings from prison since she is unable to attend court in person. The Court found that personal presence in court is materially distinct from protection of an applicant’s participatory rights. In other words, an applicant has the right to participate in proceedings, most often through counsel or legal representatives, but this does not extend to a right to be present in court per se. In this case Ingabire is in prison and there is no automatic right for her presence, especially where she is represented by counsel in court. Indeed, the Court noted that the Court’s Rules provide no mention of video conferencing as a way of participating in court.

This line of reasoning is fine, and follows established lines on the subject. The interesting point here though is the very fact that the Court’s rules do not entertain the possibility of such technology. What this brings out in the open is the tantalizing possibility of video technology for participation and/or giving evidence. One of the biggest issues facing the Court as it grows and takes on more cases is the sheer size of the continent and the impracticability of many applicants traveling to the Court in Arusha to participate or give evidence. Imagine if applicants could participate in these cases by video-conferencing, or give evidence via video-link. This would open up the court to many more people and help spread the word and raise the profile of the Court.

Again, its worth saying, the Court’s reasoning on this point is fine. What is needed therefore is innovative thinking to make video-conference technology a possibility beyond the limits of the Cpurt’s Rules or by changing them. The technology certainly exists. Imagine if applicants in Accra, Kigali, Dodoma or Ougadougou (to name but a few) need not face the expense, upheaval and stress of traveling to Arusha but could instead follow proceedings from a secure video-conferencing line? Who knows how many cases are currently not pursued due to the perceived remoteness of the Court geographically and figuratively? Bring the Court into the town or village where the applicant lives and the Court becomes relevant and real. The Court does currently run a broadcast of some judgments via the internet, but in my experience this service is patchy at best and it requires an internet connection at fairly high speeds to access even this inconsistent service. The Court needs to get imaginative and proactive on this point. I am no expert on this issue, but do you think Google or some other tech giant wouldn’t be willing and able to provide such service such as this at little or no cost? The answer is I do not know but the Court should be asking- the potential benefits are just too huge to ignore.

So in conclusion,there’s more to come, in the guise of the Court’s actual decision on Rwanda’s withdrawal of its Special Declaration. Of course this interim decision is possibly a strong indicator that the Court is very much treating this case as ongoing and unlikely to finish soon- why go to the bother of issuing these orders if you’re going to terminate the case soon? In any event, the order does however provide some insight into the alleged difficulties Ingabire’s legal team face in preparing this case. Certainly the Court seems to have taken these complaints seriously and set out in no uncertain terms Rwanda’s obligations to file documents and allow client confidentially. The amicus decision is unsurprising but does cement the principle that it is for the Court, not parties, to decide on the usefulness of any briefs before it. The video-conferencing matter, whilst sound in legal reasoning, does present a bigger issue and one that the Court must grasp- make the Court accessible to applicants throughout the process by bringing the Court to them via video and you begin to raise the profile of the Court and allow those to whom the Court is intended to be helping- the people of Africa- maximum exposure to the Court.

I was delighted to recently sit down (digitally speaking) with Nani Jansen Reventlow, former Legal Director of the Media Legal Defence Initiative (MLDI) and lead counsel on the Lohé Issa Konaté v. Burkina Faso case, to discuss the Konaté case, the experience of bringing the case before the Court, and the future of the Court.

Nani represented Burkinabe journalist Lohé Issa Konaté throughout his case alongside the much-missed John Jones QC of Doughty Street Chambers, and Steven Finizio of Wilmer Hale, which resulted in the Court finding Burkina Faso had violated Article 9 of the African Charter, Article 19 of the ICCPR and Article 66(2)(c) of the ECOWAS Treaty, all concerning the right to freedom of expression. In June 2016 the Court awarded Konaté reparations of around $70,000, only the second reparations award by the Court, and the biggest so far for any one individual.

Oliver Windridge (OW): Let’s start with the Konaté case, how did you become involved?

Nani Jansen Reventlow (NJR): MLDI supported the appeal of Mr Konaté in Burkina Faso. After we learned of his initial conviction, we contacted Mohamed Keita who was then the Committee to Protect Journalists representative for Africa and he helped us get in touch with Konaté’s lawyers. We offered them our support and were in close contact throughout the national proceedings. When these proceedings unfortunately ended in the Burkina Faso Court of Appeal upholding the judgment of the lower Court, I suggested to Mr Konaté’s lawyer that we take the matter to either the ECOWAS Community Court of Justice or the African Court. He did not think this was a viable strategy, so I found a way to liaise with Mr Konaté directly. With the kind assistance of a senior journalist who visited Mr Konaté in prison, we obtained authorisation to file an application at the African Court.

OW: Did you get a sense of why Mr Konaté’s lawyer felt that taking the matter further was not a viable strategy?

NJR: It is difficult to say, as he did not elaborate very much on as to why he thought so, but I understood his comments as indicating that he did not expect that these international courts would be able to do much for Mr Konaté.

OW: What were the particular challenges on this case?

NJR: In preparing the application, we had the difficulty of not knowing exactly what the reasoning of the Burkinabe courts was in convicting Mr Konaté, nor was it clear what the exact legal basis of his sentencing was. As is customary in many jurisdictions, he had only been provided with a summary of the judgment. However, this failed to mention exactly which provisions of the Burkinabe press law he had been convicted under. So we had to take an educated guess and further refine our pleadings once we had received full copies of the judgments along with the government’s response to our application.

A procedural challenge was that the court of cassation had not been seized in the domestic proceedings. It was quite a long period of suspense when the judgment was read out until the Court finally said that this domestic remedy indeed need not have been exhausted!

A challenge in the broader sense was that not everyone was fully on board with us having brought the case. Looking at the way the judgment is being referred to now in free speech circles this is hard to believe, but there was quite a bit of resistance by some who were afraid of the risk of setting a bad precedent with this case. We always believed we were on sufficiently strong footing and had faith in the Court coming to the right decision. Looking at how the Court ended up nearly split, with a 4-6 dissent, on the question if criminal defamation as such violated the right to free speech, one cannot help but wonder what could have happened had some of the sceptics thrown their full weight behind the case as well.

OW:  Looking back now, what highlights can you share?

NJR: Regarding the case, the main, continuing highlight for me was to see how happy my client was to get his case heard at the Court, to be part of the process and to see justice being done. Mr Konaté resumed publishing not long after he was released, has been able to increase the number of editions he publishes and even started a website. It is fantastic to see a journalist resume their work having been through a stressful legal battle and even time in prison.

As a feminist, a highlight at the hearing was the representation on all sides of the bar: lead counsel for the applicant and the respondent state were both women, as was the President of the Court at the time. We should be seeing this far, far more often.

OW: The judgement on the merits seems to make a subtle finding not necessarily picked up by all reports on the case; that the sentence imposed for the crime of defamation was unduly harsh, but the Court seemed to steer clear of stating that defamation as a crime per se is in violation of the African Charter and other international human rights instruments. Do you see this distinction too and if so, is there further litigation to come on challenging the criminal status of defamation in Africa?

NJR: The Court indeed aligned itself with the other international courts on this point, but, as I mentioned just now, there was an important dissent that essentially said that criminal defamation was not needed at all. The majority judgment said that it should be used only for extreme cases, such as incitement to violence and hate speech. The dissent argued – and I agree with them wholeheartedly – that you can criminalise that type of behaviour with specific legislation; you don’t need criminal defamation to proscribe it. I do hope the Court will get a chance to revisit this.

OW: Have you managed to ascertain how Burkina Faso has approached the judgement on the merits? Has Burkina Faso complied with its obligations?

NJR: Burkina Faso removed imprisonment as a penalty for defamation from its laws. It also lowered some of the monetary fines it had on the books. I must say I was quite impressed with the expedient manner in which they dealt with the matter, especially amidst the electoral turmoil going on in the country at the time.

OW: Turning to the reparations judgement, it appears that the Court declined to hold a public hearing at the reparations stage which it has always done up until now. Did you receive any indication as to why this happened, and do you think this affected the case in any way?

NJR: We were not informed of the Court’s reasons not to call a hearing. It is hard to say if it affected the case. As a litigator, you always prefer having a chance to engage with the Court more directly, address any questions the judges may turn out to have. But I suppose there are plenty of arguments that can be made against taking up the Court’s time in doing so.

OW: The reparations award of around $70,000 is the Court’s biggest reparations order so far for one individual. Did the Court in your opinion elaborate sufficiently on how they decided upon their reparations awards?

NJR: Yes and no. If you look at considerations on reparations from the European and Inter-American Courts, you won’t find a great level of detail there. The European Court often spends no more than a paragraph or two on reparations and you need a magnifying glass to find anything resembling understandable reasoning in there. I think they are very attached to the secrecy of deliberations of the Court, and perhaps rightfully so. Looking at it from that point of view, the reparations judgment was fairly detailed, even if some quite big leaps were taken here and there, which I believe your colleague Tétévi Davi also pointed to, along with a couple of other very good points, when he wrote a post about the judgment.

OW: Widening the focus from Burkina Faso itself, what impact do you think, or have you seen already, the Konaté case having outside Burkina Faso, across Africa and even further afield?

NJR: The judgment is being used in a number of constitutional challenges of criminal defamation throughout the continent, and I recently learned that someone in Angola was acquitted of criminal defamation under reference to the Konaté decision. The case has been used in a constitutional challenge to criminal defamation in India and an interesting case is pending at the East African Court of Justice that partly builds on the Konaté case, challenging the criminal defamation laws in Uganda. It will be interesting to see what that court decides, hopefully in the next few months.

OW: Having brought cases before other regional human rights courts in Europe and Africa how do you assess the process and your experience with the Court?

NJR: Positively. We filed the application in June 2013 and had judgment in December 2014. That is fantastically expedient. I hope the Court can keep up this efficiency as its caseload increases.

OW: As a practitioner before the Court what improvements would you like to see at the Court?

One point of concern for me is how the Court will manage the increasing stream of cases with its current operational model. It might be worthwhile considering having the Court sit in smaller chambers rather than in full quorum and perhaps at some point it can consider doing away with the concept of sitting in quarterly sessions and be in continuous operation. I understand that there are budgetary concerns to be considered, but I do think it would help continue building the Court as a robust human rights body. Finally, if I had my say, it would be great to see greater transparency in the selection of judges. International courts generally are not very good at that and it would be refreshing to see the youngest regional human rights court set a good example there.

OW: Finally, what’s next for you?

NJR: I am taking up a one-year fellowship at Harvard’s Berkman Klein Center, where I will be working on a project on better multidisciplinary cooperation in challenging barriers to free speech online. Alongside that, I will continue practising as a human rights lawyer. I particularly look forward to doing more work at the African regional courts together with Leigh Day, with whom I started a partnership on this, as well as the international and media team at Doughty Street Chambers, where I recently became an Associate Tenant.

 

What follows is my in-depth review and analysis of the African Court on Human and Peoples’ Rights’ fascinating African Commission on Human and Peoples’ Rights v. Libya judgement. For questions, comment and analysis please contact The Monitor via contact@acthprmonitor.org

1. Introduction

On 3 June 2016, the African Court on Human and Peoples’ Rights (Court) handed down judgement in the case of the African Commission on Human and Peoples’ Rights v. Libya (Judgement). The Judgement is notable for several reasons: it is the first judgement to be rendered in default pursuant to Rule 55 of the African Court Rules, it raises the interesting issue of the transfer of cases between the African Commission on Human and Peoples’ Rights (Commission) and Court, and is the first time the Court has decided on the merits of a Commission case. But perhaps the most interesting aspect of this case is the unique context in which the Judgement was rendered, since behind the rather case generic name lays the fact that the Judgement concerns the detention of Saif al-Islam Gaddafi (Gaddafi), the son of former Libyan leader Muammar Gaddafi. As I have written previously, and as many readers will know, over the past few years Gaddafi has been subject to a game of legal tug-of-war between the International Criminal Court (ICC) and Libya over who should try him for crimes allegedly committed in Libya during his father’s rule. You can read more about this here and here, but in essence in 2013 and 2014 the ICC decided that Gaddafi should be transferred to The Hague to be tried on charges of murder and persecution as crimes against humanity relating to the Libyan uprising in 2011. Despite this ruling Gaddafi has yet to be transferred to the Netherlands to stand trial. Gaddafi’s case took another turn in July 2015 when reports surfaced that he had been sentenced to death in absentia in Libya.  Now, the latest reports purportedly coming from his newly appointed legal team are that Gaddafi was actually released from Libyan detention some time this year and is safe and well and in the midst of launching a legal challenge to the outstanding charges before the ICC on the basis of non bis idem.

Certainly the power play between Libya and the ICC is extremely interesting and has taken most of the headlines, but running in parallel to this saga has been the Court’s active engagement for a number of years in the protection of Gaddafi’s African Charter and ICCPR rights.  This judgement is the culmination of this process and makes for fascinating reading, not least where it points to possible issues that may still be live before the ICC.

2. Procedural Background

In April 2012 Gaddafi lodged a communication before the Commission alleging violations of Article 6 (Right to Personal Liberty and Protection from Arbitrary Arrest) and Article 7 (Right to Fair Trial) of the African Charter on Human and Peoples’ Rights (Charter). In January 2013, the Commission submitted an application to the Court seeking provisional measures pursuant to Article 5(1) of the African Court Protocol, Rule 29(3) of the Rules of the Court and Rule 3 of the Commission’s Rule of Procedure. On 15 March 2013 the Court ordered provisional measures which were, in effect, an attempt to force Libya to refrain from all judicial proceedings that would impinge on Gaddafi’s Charter rights including allowing him access to a lawyer and visits from family. The Court gave Libya 15 days to report back. Libya ignored the order.

The Judgement describes in great detail the next three years, from 2013 to 2016, which can be accurately summed up as numerous attempts by the Court to cajole Libya into either complying with its March 2013 provisional measures order or engage on the merits of the allegations. At the same time the Commission continued to lodge further applications, urging the Court to enforce its March 2013 provisional measures order, and then later to make findings on the merits of its case before finally requesting the Court to render judgement in default. I think it is fair to sum up Libya’s response as either inadequately responding or, more often, completely ignoring every request from the Court since 2013 to either enforce the provisional measures order, or provide a response to the allegations themselves. All this despite the Court’s best efforts to coax, entice or persuade Libya into engaging in the case.

Libya’s stance, or rather lack of one, had at some point to result in the Court taking the Commission’s urgings to deliver its first ever judgement in default seriously. This decision may have been hastened by the news in July 2015 that the Assize Court of Tripoli had sentenced Gaddafi to death in absentia. Certainly, the Court took these reports on the imposition of the death penalty seriously enough to issue a second order for provisional measures, reiterating its previous March 2013 order and obliging Libya to preserve Gaddafi’s life. Libya’s response to this second order was sadly predictable; Libya ignored this order too, although it’s worth noting that Gaddafi was not in fact executed. Whilst the Judgement does not detail specifically when the Court began earnestly considering a judgement in default, I think the tipping point may have been these 2015 events, with Libya not only ignoring the Court’s entreaties, but seemingly fairly brazenly violating its orders for a second time putting it again clearly at odds with the Court with no resolution on the horizon.

3. Judgement in Default

As I mentioned above, this case serves is the Court’s first judgment in default under Rule 55 of the African Court’s Rules.  It states:

“Whenever a party does not appear before the Court, or fails to defend its case, The Court may, on the application of the other party, pas judgment in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings. Before acceding to the application of the party before it, the Court shall satisfy itself that it has jurisdiction in the case, and that the application is admissible and well founded in fact and in law”

In considering the judgement in default, it is worth noting at the outset that the Commissions’ application appears to be the same as its application back in 2012,  which I will discuss further below. But to recap, the Commission requested again that the Court find that Gaddafi’s Article 6 and Article 7 Charter rights were violated, to grant a series of relief including access to lawyers of his choice, and declare Libya’s failure to comply with the Court’s provisional measures.

In applying Rule 55, the Court set out a three-limbed test: (i) proper service of all documents; (ii) jurisdiction; and (iii) admissibility of application.  First, in relation to the proper service of documents, the Court considered that both the Commission and Court Registry had communicated all proceedings to Libya and therefore the first condition had been met, referring to its extensive attempts to engage with Libya.

Concerning the second limb of jurisdiction, the Court went through the familiar personal, material, temporal and territorial jurisdiction issues. For material jurisdiction, since the alleged violations were of the Charter, the Court had jurisdiction. Since the alleged violations occurred some time after Libya ratified the Charter and Court Protocol, temporal jurisdiction was satisfied. As to territorial jurisdiction, since the alleged violations occurred in Libya there was no issue. Concerning personal jurisdiction, the Court recalled again that Libya had signed the Charter and the Court Protocol. Interestingly, perhaps forestalling any arguments from Libya that it has no authority or influence over the conditions of Gaddafi’s detention, the Court considered that a “revolutionary brigade”, rather than the Libyan government itself, had detained Gaddafi. The Court held that despite the likelihood that Gaddafi’s detention was indeed by this revolutionary brigade, rather than a government authority, Libya was nevertheless responsible for the group’s actions and omission, since Libya remains under a continuing duty to ensure the application of the rights on its territory guaranteed under the Charter. Citing the Draft Articles of the Internal Law Commission on the Responsibility of States for Internationally Wrongful Acts, the Court found that persons acting in a form of authority shall be considered an act of state if the group exercising the rights is in fact exercising elements of governmental authority. The Court further recalled that the ICC had already held that the upheavals in Libya following the toppling of the Munamer Gaddafi regime cannot excuse Libya’s obligations to surrender Gaddafi to the ICC.

On the third limb of admissibility, the Court considered the now common issue of exhaustion of local remedies. The Court applied the “availability, effectiveness and sufficiency” test and found it “obvious” that Gaddafi’s secret detention meant he could not access remedies, even if they were theoretically available under Libyan law. In support, the Court noted that Gaddafi was first arraigned under a “People’s Court” which was later held to be unconstitutional by the Supreme Court of Libya. It further found that Gaddafi’s detention in a secret location, completely isolated from family, friends and access to a lawyer, and sentence to death in absentia all provided grounds to believe that he was prevented from seeking local remedies and that it was therefore impossible for Gaddafi to fulfil the usual condition of exhausting local remedies. The Court therefore found that the requirement that exhaustion of local remedies was “not strictly appliance in the instant case” given that local remedies were neither available nor effective, and that even if they were, Gaddafi had, and did not have, any possibility of using these remedies.

Lastly, the Court found the period of one year from the “firm conclusion” that Libya had failed to comply with the provisional measures ordered by the Commission in April 2012 was a reasonable time for the Commission to lodge its complaint before the Court.

4. Judgement on the Merits

Having satisfied itself that all three limbs of Rule 55 were met, the Court went on to consider the merits of the application. In doing so, the standard applied appears to that of a “normal” judgement on the merits, although it is worth bearing in mind that the Court was considering only the Commission’s submissions, since Libya never provided concrete responses to the Commission’s allegations.

It is also interesting that the Court prefaced its analysis of possible breaches of Article 6 and Article 7 of the Charter by accepting that derogation from certain rights can be allowed in certain circumstances, but that despite the “exceptional” political and security situation faced in Libya, Libya could not use this situation to derogate from Gaddafi’s Articles 6 and 7 Charter rights.

With regard to Article 6 of the Charter, the Commission argued that Gaddafi was alleged to have been in detention since 19 November 2011 without being brought before any court to contest his detention. The Commission submitted that prolonged secret detention not only constitutes a violation of human rights but can also have a knock-on effect on other violations, such as torture, ill-treatment or interrogation without appropriate protection measures. The Court found that depravation of liberty can only occur where it conforms to certain recognised international human rights standards, in particular looking proprio motu to Article 9 of the ICCPR. Using Article 9 of the ICCPR, the Court agreed with the Commission that incommunicado detention is a violation of human rights and can lead to the violation of other human rights. It held that Gaddafi’s incommunicado detention, without the assistance of a lawyer to challenge his detention constitutes a violation of his right to liberty and found a violation of Article 6.

As to Article 7 of the Charter, the Commission argued that Gaddafi had no access to a lawyer or form of representation. Consequently, the Commission contended, Gaddafi did not have the “benefit of any guarantees” during the preliminary proceedings against him including his interrogation in the absence of legal advice or the opportunity to gather evidence in rebuttal of prosecution case. The Commission argued that over two years had passed and the trial had yet to start (the timings used here, will be discussed further below). It also submitted that Gaddafi had been unable to see or communicate with his family or the outside world. Considering the right to a fair trial, the Court once again turned to the ICCPR, despite the Commission again not raising this, and in particular Article 14(1) of the ICCPR that provides all persons shall be equal before the law and shall be entitled to a fair hearing. The Court found that Gaddafi was not afforded these minimum fair trial rights at the time of his arrest, during his detention, or at the time he was convicted. To this end, the Court noted that Gaddafi was arraigned before a “peoples court” which was later found to be unconstitutional, and later sentenced to death in absentia. The Court considered that every individual arrested or detained for a criminal offence should be brought before a judge with a “minimum delay” and that tried “within a reasonable time or set free” and that Libya had violated these rights. It found that in Gaddafi’s case, he was condemned to death by an “unknown tribunal” and it was “quite obvious” that Libya had respected none of the rights set forth in Article 7 of the Charter and therefore found a violation of Article 7 of the Charter.

5. Analysis and Conclusion

The first thing to note is that the case is the African Commission v. Libya rather than “Gaddafi v. Libya” since Gaddafi’s application was filed before the Commission not the Court. The reasons for this approach are clear- Libya has signed the Article 34(6) Special Declaration allowing individuals direct access to the Court, so any such application to the Court would have been ruled outside the Court’s jurisdiction. The reasons why the Commission decided to transfer the case to the Court are not set out in the Judgement. Certainly Rule 34 allows the African Court to accept such cases, but we are none the wiser as to the criteria set by either the Commission or Court on such transfers. There is a hint in the Judgement that the Commission had ordered its own provisional measures, which if ignored may well have prompted the Commission to transfer the case. It is interesting to note that the Court confirmed that where the Commission brings a case, assessing whether a member state has signed the Article 34(6) Special Declaration is not required. This small comment could have big consequences moving forward, as it appears to confirm that an application from individuals or NGOs with observer status from a AU member state who has not signed the Article 34(6) Special Declaration can use the Commission as a route to the Court, at least in theory. The key question will be how to persuade the Commission to transfer the case.

This case therefore demonstrates the  alternative route that may be available for applicants from AU member states that have ratified the Protocol but not the Special Declaration- submit an application to the Commission and request, or perhaps just hope, that the Commission decides to transfer the case over. Clearly what are needed are clear guidelines from either the Commission, the Court or ideally both on the test or standard which is applied for the transfer of cases between the two. Without this guidance applicants and member states are very much in the dark about how these transfers occur.

The current Commission-then-Court scenario also creates the seemingly confusing situation whereby the “Applicant” is the Commission rather than Gaddafi. It is not entirely clear from the Judgement who is making the submissions concerning the violations. For example, was the Commission able to take instructions from Gaddafi and put forward his claim accurately? Given the context in which this case occurred with Gaddafi held incommunicado, its seems highly unlikely that the Commission was able to discuss the case with Gaddafi. This raises practical issues moving forward with similar transferred cases. Is the Commission “acting” for the complainant? Does the Commission “represent” the complainant, or do they in effect step away from litigating the case once they have transferred it? Some clues can be gleaned from the Ogiek case, where the Court’s judgement is currently pending. This case is another transfer from the Commission to the Court. We know from the hearing that was held in November 2014, that the complainant themselves were heard and allowed to make submissions through their lawyers, so it seems the Court has in effect allowed the complainant i.e. the Ogiek people to litigate the matter.

Another difficulty of having the Commission bring the case is demonstrated where the secrecy of Gaddafi’s detention and Libya’s non-compliance combine. The result is a slightly confusing situation whereby the Judgement makes no mention of the possibility that Gaddafi was released.  In fact the Judgement makes clear that as far as it is concerned Gaddafi remained in detention up until the rendering of the Judgement on 3 June 2016. This goes against at least some reports that Gaddafi has been released from detention. Despite Libya’s almost complete non-compliance with the Court throughout the process, it is still perhaps surprising that if Gaddafi had been freed, Libya did not communicate this to the Court along the lines of “this is all now moot as he has been released”. Of course, the Court may well be entitled to render a judgement on the detention of Gaddafi up until his release in any event, but certainly the orders emanating from the Judgement would be very different if Gaddafi was known to have been released. Additionally, there seems to have been no communication from the Commission either. Again, if such a development were proved to be true this does not diminish the alleged violation of Gaddafi’s rights whilst in detention but it could perhaps be expected that either the Commission, Libya or Gaddafi himself would inform the Court of such an important development.

One very practical suggestion to at least clarify the nature of transfer cases is for the Court to file these cases as the “complainant v. member state” and relegate the Commission’s role in transferring the case to a note in the introduction or mention on the front page along the lines of “Transferred from the African Commission pursuant to Rule 34”. Alternatively, the Court may consider amending the name of transfer case with the name of the applicant in the case title too, so for this case “Commission (Gaddafi) v Libya”. A change along these lines will also help pre-empt future confusion when the Court begins to entertain more that one transfer from the Commission from the same member state. Without a change we see several “Commission v Country” cases with no obvious way of knowing which is which other than the date.

 The next issue worth analysing is the nature of the default judgement itself. What is clear from this Judgement is that Court observers should not expect a flood of similar judgements in default to flow from the Court, or for applicants to view judgment in default a potentially easy route.  The Judgement does not go into any detail on the African Court’s thinking on rendering judgement in default, but it does go to great pains to set out the many attempts it made to get Libya to comply, or at the very least, engage in the case.

It should also be noted that fulfillment of Rule 55 does not automatically result in a decision in favour of the applicants. Instead, it serves as the path down which the Court can go in order to then consider the merits of the case. It is perfectly possible therefore for the Court to find the three-limb test of Rule 55 fulfilled but still find the applicant’s case fails on the merits. In fact, the Rule 55 test looks very similar to that ordinarily employed by the Court in cases where the Respondents engage in the case. Specifically, the Court’s three limbed test for judgement in default consists of satisfaction of jurisdiction and admissibility as found in all cases considered by the Court, going so far as to say consideration of both should be done proprio motu even where the state does not raise objections (which seems the very point in judgements in default) plus the third limb bolted on that all communications were presented to the respondent state. This makes sense, but does not in effect mean the Court need be satisfied of much more than in an ordinary compliance case.

Interestingly, the Court forestalled future attempts by member states to disavow actions of groups it claims are not under its control but operating on in its territory. The Court found in effect that even where a “group” may not be under the control of the member state, the member state remains under a duty to ensure compliance with the Charter across its territory; thereby dismissing any arguments by member states that “we can’t do anything about it”.

Turning to the violations of Article 6 and Article 7 of the Charter themselves, perhaps not unexpectedly the Judgement does not provide a great deal of analysis. Why so little analysis? I would argue that since the Court found the allegations of incommunicado detention without access to lawyers, length pre-trial detention and a trial in absentia factually correct these allegations amount to fairly obvious violations of Article 6 and Article 7 of the Charter. It is interesting to note however that for Article 6 of the Charter, the Court looked to Article 9 ICCPR even though Commission didn’t specify this. This therefore appears to be some interpretative work by the Court in looking at other international human rights instruments in order to interpret the African Charter rights. Interestingly, the Court did not go so far as to say he hadn’t been brought before a court, despite the Commission raising this in their complaint.

 As to Article 7 of the Charter, the Judgement lays bare the apparent lack of updates from the Commission on the ongoing nature of Gaddafi’s situation, including the possibility that Gaddafi was released. It appears from the summarised arguments of the Commission in the judgement that the Court was taking the arguments from the Commissions original application, for example “over two years have lapsed since his arrest, and his trial is yet to start” is clearly several years out of date. Either the Court failed to properly summarise the Commission’s updated application, or the Commission failed to update the Court since its original application in 2012. If the fault lies with the Court this would seem sloppy, but it is even more disappointing if the Commission has failed to properly update the Court on the constantly changing situation since its original application which may have a huge impact on the case, for example if Gaddafi’ conditions of detention had become worse, or he has indeed been released.  It is also worth noting that the Court states that Gaddafi did not enjoy the right to a fair trial upon arrest, during his detention or “at the time he was convicted”. This clearly shows that the Court considers that contrary to the Commissions (old?) submissions Gaddafi has been convicted in Libya of something. Of course it does not tell us what he was convicted of or by whome since the Court found that in Gaddafi’s case, he was condemned to death by an “unknown tribunal”.

Finally, having delivered Judgement in default there seems to be nothing preventing the Court from now considering the awarding of reparations to Gaddafi for the violation of his rights. Of course, any such reparations would need to be carried out by Libya itself and given its shunning of the Court so far, this may well be very unlikely, but this should not serve as a reason for the Court not to consider the issue of reparations. Certainly on the basis of the Judgement alone, there seems a case for the awarding of reparations to Gaddafi for the time he has spent in detention in violation of his rights, irrespective of whether he is now free.

 Moving forward, it will be interesting to see what if any actions Libya take in response to this judgement, or how the Court will seek to enforce this on Libya. Given Libya’s attitude towards the Court thus far, we may not have seen the end of this matter just yet.

As always the views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.

I am delighted that on the International Day of the World’s Indigenous Peoples I am kicking off our new Africa and the Environment series by posting my recent presentation examining peoples’ cases before the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights.

The presentation was given at the recent 14th colloquium of the IUCN Academy of Environmental Law in Oslo. It stoked some very interesting debate afterwards on how the Court is positioned to take a strong stance on the rights of peoples’ as protected under the African Charter, how the rights of peoples’ groups can be balanced against the use of natural resources for a whole country, and how protection must also allow for development. Moving forward, these types of questions will certainly occupy the minds of advocates, policy makers and the Court. I hope it provokes similar views and thoughts among our readers too.

Download (PPS, 8.13MB)

As some readers may know, I was recently in Oslo for the 14th colloquium of the IUCN Academy of Environmental Law. The theme of the colloquium was “The Environment in Court”, and it was a great opportunity to present my paper on the African Court’s and African Commission’s approach to peoples’ rights, attend many fascinating presentations on the current state of environmental law and talk about the African Court and African human rights system as a whole.

As I attended presentations and discussed issues surrounding environmental law, I couldn’t help but think how many issues relate directly to Africa,  but what often seemed to be missing was analysis and debate on the role that Africa can play in determining the future of environmental law and protection. With this in mind, I am excited to announce a new series at The ACtHPR Monitor, entitled “Africa and the Environment”.

This occasional series will bring together a number of exciting guest posts analyzing  environmental protection in Africa and how past cases and practices within the African human rights system and beyond can help create a positive future for environmental law and protection in Africa.

If you are interested in contributing to this series, please get in touch with us via contact@acthprmonitor.org or through twitter @acthpr_monitor

 

 

[As I mentioned in yesterday’s post I am delighted to introduce Tétévi Davi as Junior Editor at The ACtHPR Monitor. Tétévi’s first piece for the Monitor is below, analyzing the African Court’s recent reparations judgement in the Konaté case, enjoy! OW]

1. Introduction

On 3 June 2016 the African Court delivered its long-awaited reparations Judgement in the case of Lohé Issa Konaté v. Burkina Faso.  Many readers may already be familiar with the matter, which follows on from the 2014 Judgement in which the African Court held that Burkina Faso was responsible for violating freedom of expression laws found in a number of national and international treaties. This decision allows us to glean a deeper insight into the Court’s provision of reparations in cases of rights violations and adds an important layer to the Court’s freedom of expression jurisprudence.

2. Facts

The Applicant in this case was Lohé Konaté, a national of Burkina Faso who was editor and owner of a weekly newspaper “l’Ouragan” (The Hurricane). Konaté originally brought his case before the African Court after he had been convicted for publishing articles criticizing the State Prosecutor who he alleged had been involved in the counterfeiting and trafficking of fake bank notes. Soon after the publication of his articles, Konaté was arrested and charged with defamation, public insult and use of abusive language against a judicial officer. He was convicted of these charges, sentenced  to 12 months in prison and was ordered to pay a large fine to the authorities, as well as damages and costs to the State Prosecutor. As part of his punishment, publication of his newspaper was also suspended for 6 months.

Following the dismissal of his Appeal in the national courts, Konaté elected to bring his claim before the African Court on Human and People’s Rights.  He alleged that his prison sentence, in addition to the fines and damages he was required to pay, were in violation of his rights, specifically article 9 of the African Charter concerning the right to express and disseminate opinions within the law, article 19 of the ICCPR dealing with the right to freedom of expression, and article 66(2)(c) of the Revised ECOWAS Treaty concerning the obligation to ensure respect for the rights of journalists.

The African Court declined to hold a public hearing in the case however, after deliberating on the parties’ submissions it ruled unanimously in Konaté’s favour, declaring that Burkina Faso had indeed violated the aforementioned provisions in its sentencing and fining of the Applicant on defamation charges.

Following this ruling, Konaté made an application for reparations pursuant to Rule 27(1) of the Protocol to the African Charter. His application was composed of 4 key requests:

• Expunge details of his conviction from his criminal record.
• Set aside the Order to pay a fine, damages and costs.
• Award him pecuniary damages for material loss based on the closure of his press, medical expenses and his family’s travel costs to visit him in prison.
• Award him non-pecuniary damages for moral prejudice suffered by himself and his family.

3. Reparations Judgement

(i) Expunge Criminal Convictions

In relation to the Applicant’s first request to erase all criminal convictions from his record, the African Court recognised that subsequent to its earlier Judgment, Burkina Faso had already undertaken to do this. It therefore simply endorsed this agreement between the parties.

(ii) Setting Aside Fines Imposed in Burkina Faso

In regards to Konaté’s request to set aside the Order relating to payment of fines, damages and costs, the African Court first re-asserted that that it was not an appellate court to which decisions from national jurisdictions could be referred and thus declined to set aside these payments. Nevertheless, the African Court referred to its earlier ruling in which it mandated a change in Burkina Faso’s defamation laws to comply with the principles of necessity and proportionality and therefore urged Burkina Faso to reduce the amount of money Konaté was required to pay in respect of these various charges.

(iii) Compensation for Material and Moral Damage

In relation to Konaté’s request for compensation for material damage based on the closure of his printing press for 6 months, the African Court held that he had adduced no evidence to prove that he could sell the volume of papers he alleged to be able to as the basis for his claim. As result, it greatly scaled down his award from the 108,000,000 CFA Francs (approx. $185,000) he had originally claimed, to 20,000,000 CFA Francs (approx. $35,000). The African Court also, as a matter of equity, decided to award Konaté compensation for the fact that once his publication was re-opened, he no longer had sufficient resources to publish as regularly as he could before. The African Court declined to reward compensation for the Applicant’s loss of physical belongings and reimbursement of expenses for new equipment as it asserted that Konaté had produced no evidence in support of this loss and had furthermore not proved a necessary lien of causality between State action and his loss.

The Court further chose to award Konaté compensation for financial loss suffered by his family as a result of the transport costs incurred visiting him in prison and also for medical expenses incurred during his incarceration. Finally, the African Court made an award of compensation in respect of the moral prejudice that he and his family suffered as a result of his trial, conviction and imprisonment in breach of his fundamental rights. However, after finding the Applicant’s claim in this regard excessive, the African Court greatly revised down his award from 17,500,000 CFA Francs to 10,000,000 CFA Francs.

4. Analysis and Conclusion

As an initial observation it is interesting that the African Court elected not to hold a public hearing prior to issuing its decision in this case which runs counter to its approach in two previous reparations rulings, Zongo v Burkina Faso and Mtikalia v Tanzania. Whilst the African Court provided no clear reason in either the earlier Judgement nor reparations ruling for not holding a hearing, we may posit that this was attributable to the very different nature of the Respondent State objections in the present case as compared to in Zongo and Mtikalia. In Zongo, Burkina Faso argued that the African Court should reject the application for reparations in its entirety, due to the fact that the Applicants had not established their status as indirect victims. Likewise in Mitikalia, Tanzania argued that the claim for reparations be eschewed, as the basis of the Applicant’s claim arose from his non-compliance with domestic law concerning the registration of political parties. In the present case, Burkina Faso did not argue that no award of reparations should be made to the Konaté whatsoever, but only that the amounts claimed were overstated and should subsequently be reduced. This marks a welcome departure from the previous cases and it will be interesting to see if public hearings for reparations claims become less frequent in future due to states choosing to not contest that any measure of redress be awarded once violations have been determined by the African Court.

In regards to the African Court’s award of reparations for material loss and damage, some interesting points arise that merit analysis. To begin with, whilst the African Court decided to greatly decrease the Applicant’s award from the 108 million CFA Francs claimed to 20 million CFA Francs, it provides little reason for this large reduction save for its criticism that the amount claimed by the Applicant was ‘excessive’. The African Court noted in its analysis that the Applicant had adduced no evidence to prove he could sell the amount of newspapers he claimed to be able to in his brief, and whilst it stated that the reduction was on the basis of “equity”, which it is accepted is not an exact science, there is still no explanation as to why it chose to reduce the Applicant’s claim by such a large amount. An interesting point is that although article 27(1) of the Protocol to the African Charter speaks of the need for “fair” reparations in the case of violations, the African Court in this case and in its previous reparations rulings has repeatedly stressed that the State is expected to make “full” reparations for loss or damage. The term “full” goes beyond the term “fair” and suggests that the State is required to place an Applicant in the position that they were in ex ante the violations. If this is what the African Court was aiming to achieve, then it was incumbent on it to elaborate on how the final award was sufficient to place Konaté back in the position he was in had the violations not occurred. Unfortunately, the opaque nature of the African Court’s calculations make it unclear how its final figure achieves this aim and disappointingly, future Applicants to the African Court can take little from its analysis, save for the need to produce detailed and accurate documentary evidence to support their reparations claims.

It has already been mentioned that the African Court awarded Konaté money for his medical expenses and for his family’s travel expenses however, its reasoning in respect of these awards warrants closer scrutiny. To begin with, Konaté submitted that not only did his family have to spend money on transport to visit him, but also that they had to effectively bribe Burkina Faso prison officials to be able to visit him once they arrived at the prison. Furthermore, in response to Konaté’s health problems, his family also had to pay money to the prison authorities to move him to a better ventilated part of the prison. Interestingly, the African Court did not reject that these payments, which offer a harrowing insight into Burkino Faso’s prison system, were made however it nevertheless declined to award Konaté these costs as such payments were not required by law. Whilst such payments may not have been “required by law” in a strict sense, if it is the case that they were necessary for  Konaté family to have been able to visit and care for him, then this seems an incredibly harsh basis for precluding their reimbursement. The African Court could have chosen to award damages to Konaté on the basis of equity, as it does expressly at other parts of the judgement. This would have had the effect of redressing the clear loss to Konaté and his family as well as drawing the State’s attention to, and expressing  disapproval for, corruption within Burkina Faso’s prison system.

A welcomed aspect of this Judgment is the continuation of the African Court’s tendency to use provisions from different human rights treaties to bolster ambiguous or weak provisions of the African Charter. Whilst freedom of expression is not recognised as an absolute right in any international or regional human rights instrument, the African Charter right is particularly restrictive in that it is limited to securing the freedom of expression “within the law”.  This provision was initially met with concern, as it potentially makes the freedom of expression entirely dependent upon a State’s laws and many African States currently have defamation laws which impinge considerably upon this right. In this case however, the African Court seems to have addressed this issue by using another human rights treaty, namely the ICCPR, to buttress the freedom of expression protection in the African Charter. This follows on from the recent Oyango Judgement where the African Court analysed the Applicant’s right to fair trial through the lens of Article 14 of the ICCPR instead of Article 7 of the African Charter, deeming that Article 14 provided “more elaborate protections”. This is a positive development for the African Court as individuals’ rights are more robustly safeguarded through a confluence of different treaties rather than through sole reliance on the African Charter itself.

One of the most interesting aspects of the African Court’s analysis is its reasoning in respect of the Konaté criminal convictions. As has been mentioned, in the earlier Judgement, the African Court decided that Konaté’s imprisonment on charges of criminal defamation was in breach of the African Charter, ICCPR and ECOWAS Treaty. This ruling was met with jubilation by some commentators who considered that it sounded the death knell for criminal defamation charges across the African continent. However, the original Judgement and the present ruling on reparations illustrate that the African Court’s holding was decidedly more narrow than this. In the Judgement on the Merits, the African Court did not hold that criminal sanctions for defamation per se violated Konaté’s rights, but only that a ‘custodial sentence’ for defamation did. The African Court therefore stopped short of finding the defamation as a crime was in violation on international human rights instruments. Indeed, in respect of non-custodial sentences and civil penalties the African Court appears to have held that these are  permissible, but that they must comply with the principles of necessity and proportionality.  The African Court seemed to have reinforced this position in the Konaté reparations judgement, as although it chose to “endorse” Burkina Faso’s decision to erase all criminal convictions against Konaté, it did not go as far as to say that all criminal convictions would be in breach of his fundamental rights. It also refused to set aside the civil penalties against him, stating only that they must comply with the principles of necessity and proportionality. However, the African Court’s stance on defamation laws is to be welcomed, as the Konaté case demonstrated unequivocally that it is no longer the case that individuals can be imprisoned for journalism critical of a state which will undoubtedly have an impact for many journalists across Africa. Despite this welcome ruling that states may no longer impose custodial sentences on individuals for defamation, criminal sanctions, even if not accompanied by imprisonment, are inherently serious penalties which may attract grave consequences such as social stigma and difficulty accessing the labour market. Furthermore, it is as yet unclear what the African Court will determine to be ‘necessary and proportionate’ in regards to civil penalties and its lack of elaboration in this regard leaves States with a wide birth to impose potentially prohibitive sanctions on critical voices within the press.

I am delighted to confirm that I have been added to the list of Specialists at the Rule of Law Expertise Programme (ROLE UK) and I thought readers might be interested to know more about this new initiative.

ROLE UK is a new project funded by the UK Department for International Development (DFID). It aims to improve the rule of law in DFID priority countries (which include Democratic Republic of Congo, Ethiopia, Ghana,  Kenya, Liberia, Malawi, Mozambique, Nigeria, Rwanda, Sierra Leone, Somalia, South Africa, Sudan, South Sudan, , Tanzania, Uganda, Zambia and Zimbabwe) by facilitating access to specialist UK legal and judicial expertise.

Specialists offer information, advice, mentoring, training or other assistance to improve the policies, capacity and practices underpinning the rule of law in 27 jurisdictions around the world.  The programme also shares learning and best practice to support  improved collaboration of pro bono working and rule of law programming  across government, private practice and the third sector.

I think ROLE UK has the potential to have real impact in Africa and beyond. To find out more go to the ROLE UK website here.

As many readers will know, I founded The Monitor in January 2014 with the aim of providing news, comment and debate on the African Court on Human and Peoples’ Rights. Why? Because I believe the Court has the potential to be one of the most important courts in the world, yet there seemed no dedicated outlet for discussion and analysis of the Court’s work.

With this in mind, I am so pleased that over the past few years The Monitor has established itself as a place that prospective applicants, academics, lawyers and anyone else interested in the Court can come for independent and accurate information and analysis on the Court. But I can only do so much, and over the past few months I have felt the need to grow The Monitor and add more staff to do justice to the Court’s development and the Monitor’s followers.

I am therefore delighted to introduce Tétévi Davi, pictured here, as Junior Editor of The Monitor. Tétévi holds a degree in Law with French from the University of Nottingham and an LLM from the University of Maastricht, where he wrote his thesis on Transitional Justice in West Africa. He has worked at the International Bar Association’s Human Rights Institute in London and recently completed an internship in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia.

I will continue to write on the Court’s developments as always, but with Tétévi on board I hope we can increase the content of the site, bringing some fresh and creative ideas to the table. Tétévi kicks off his time at The Monitor with a summary of the recent Konaté reparations judgement, which will be available from tomorrow.

As always, if readers have ideas and suggestions for how the site can be improved please do get in touch.

Things have been a little slow at The Monitor over the past few weeks but I am pleased to say we have a number of exciting pieces planned over the summer.

The first is to share with you The Monitor’s recent communication to the African Commission on Human and Peoples’ Rights following its call for public consultation on its Zero Draft of the General Comment on the Right to Redress for Victims of Torture or Ill-treatment under Article 5 of the African Charter on Human and Peoples’ Rights. The draft seems to be no longer available but a press release on its drafting is available here.

The comment, which comes in the form of a letter, is (hopefully) fairly self-explanatory. In essence, the draft currently makes no reference to the potential role of the African Court as part of a comprehensive framework of available remedies to victims of torture or ill-treatment. Of course this role can only be fully empowered if AU member states ratify the African Court Protocol and the Article 34(6) Special Declaration. Our comment therefore urges the African Commission to urge AU members states to do just that, and allow the African Court to form part of the remedies available to all victims of torture across Africa.

Please read the letter below. I hope that the African Commission has the opportunity to read our comments and can include in the next draft reference to the important role that the African Court can play.

Download (DOC, 87KB)