Author: Oliver Windridge

It promised to be a big day for the Court and so it proved, with the rendering of four judgements and one ruling. The Monitor will be delving into all five decisions over the next couple of weeks, but in the meantime here’s a snapshot of what happened today:

• Frank David Omary v. Tanzania– Court not persuaded by “new evidence” – 2014 judgement remains in force

• Mohamed Abubakari v. Tanzania– Violation of Article 7 African Charter and Article 14 ICCCPR

• Lohé Issa Konaté v. Burkina Faso – Reparations ruling- $70,000 awarded

• African Commission on Human and Peoples’ Rights v. Libya– Violation of Articles 6 and 7 African Charter

• Ingabire Victoire Umuhoza v. Rwanda– Rwanda’s Article 34(6) Special Declaration withdrawal subject to 12 month notice period and will not affect current and pending cases

Look out for our analysis on all these decisions in the coming weeks!

Tomorrow the Court will render judgement in four cases and hand down one ruling, and its promising to be a huge day.

Likely, most eyes will be on the Ingabire v Rwanda judgement. As many readers will be aware, in January 2013 Rwanda signed the Article 34(6) Special Declaration that allows individuals and NGOs with observer status direct access to the Court. Under this provision Victoire Ingabire brought a case against Rwanda alleging violations of several African Charter rights. On the day of the Court hearing, news broke that the Court had suspended the matter following reports that Rwanda was seeking to review its Special Declaration status. As I have written previously here and here, the whole issue appears somewhat confused. It is not entirely obvious whether Rwanda was intending to “review” its commitments or simply withdraw, whether Rwanda can withdraw or if it can withdraw and whether any withdrawal should apply to pending cases.

What is clear, is that the Court is now under huge scrutiny as to how it will handle the matter, especially since this is the first time it has examined such an issue. Will the Court allow Rwanda to withdraw? if it does, will the Court still consider pending cases? Clearly this decision will have much wider repercussions for the Court, with AU member states very likely to be casting a curious eye over the judgement. For current Special Declaration member states (Mali, Cote D’Ivoire, Burkina Faso, Tanzania, Malawi, Benin and Ghana) the interest may lie in the flexibility (or not) the Court gives Rwanda, bringing with it the potential for member states who have signed the Special Declaration to prevent damaging or difficult cases from coming before the Court by withdrawing or “reviewing” their status. For those member states yet to sign the Special Declaration, the Court’s decision may help solidify either their opposition to signing the Special Declaration (if for example Rwanda are not allowed to withdraw, or perhaps a time limit is imposed) or potentially persuade more member states to sign up, especially if Rwanda is allowed to withdraw in some form. High stakes indeed.

The other cases are also very interesting. We have the African Commission v Libya case which has been rumbling on since 2012. As I have written here and here, the Court has continued to valiantly issue orders seeking to protect the African Charter rights of Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, even if such orders are cast into an apparent void, since Libya has failed to acknowledge the Court so far. An interesting wrinkle is that the case was transferred to the Court from the African Commission, so hopefully we may see a little more discussion from the Court on how and why the Commission decided to transfer the case and whether the Court applies any particular test or standard when considering a case from the Commission rather than directly from an individual or NGO. It will also be fascinating to see how the Court handles the general complaint, given that matters have moved on significantly since the application was first lodged before the African Commission in 2012.

The Court will also deliver its reparations judgement in the Konate v. Burkina Faso case. This will be the Court’s third reparations judgements after Mtikila (where no reparations were ordered) and Zongo (where significant reparations were handed out). The Konate case goes some way back, with judgement rendered in December 2014, when the Court found Burkina Faso in violation of several of the applicant’s African Charter rights with regards to his work as an investigative journalist. Hopefully, this long-pending reparations ruling will continue to add to the Court’s jurisprudence and continue to solidify this vital part of the Court’s work. We also expect a ruling in the Omary et al v Tanzania case. The Court’s website is not clear what this ruling will be on, but the Court has previously found the applicants had failed to exhaust local remedies, so this ruling may well be a continuation of this issue.

Lastly, the Court will render judgement on the merits in the Abubakari v Tanzania case. The Court’s website is frustratingly devoid of information on this case, but the African Legal Centre has a good summary of the case, which concerns the fair trial rights of the applicant, currently in the Tanzanian criminal legal system, who challenges a conviction and 30 year sentence for two counts of armed robbery. This judgement will add to the steady flow of cases such as Thomas v Tanzania and Onyango et al v Tanzania, in which the Court has examined the Tanzanian criminal justice system, and so far found it wanting.

All in all, tomorrow promises to be a big day for the Court. The Monitor hopes to be live tweeting tomorrow morning as the judgements roll out. Please be sure to follow us @acthpr_monitor to keep up to date.

The good people at Media Legal Defence Initiative (MLDI) have contacted me about an upcoming event that I thought Monitor readers might be interested in. From 8-11 August MLDI will be hosting an East Africa Freedom of Expression Litigation Surgery in Kampala, Uganda.

I have no formal connection to MLDI, but know their work on freedom of expression to be of the highest quality. Among many important cases, MLDI was crucial in bringing the successful case of Konaté v Burkina Faso before the African Court. I would encourage all eligible Monitor readers to consider applying.This event looks like a great opportunity for high quality training in an important and dynamic field of human rights. The call for applications is below, whilst more details can be found here.

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Call for Applications: East Africa Freedom of Expression Litigation Surgery 

8 – 11 August 2016, Kampala, Uganda

The Media Legal Defence Initiative (MLDI) is pleased to announce that it is calling for applications from lawyers based in Kenya, Tanzania, Uganda, Rwanda, and Burundi to participate in a forthcoming litigation surgery on the right to freedom of expression.

MLDI provides legal support to journalists, bloggers and independent media worldwide to enable them to continue with their reporting. A significant portion of MLDI’s work is currently conducted in the East African region. Consequently, MLDI is continually seeking to strengthen its network of lawyers to work within the region to further the regional freedom of expression framework.

Participants will be selected on the following criteria:

• The surgery is open to lawyers from Kenya, Tanzania, Uganda, Rwanda and Burundi;
• The lawyers can either be working in private practice, or be working for or be affiliated with NGOs promoting the right to freedom of expression in East Africa through litigation;
• Exceptionally strong applications from lawyers who have not yet undertaken freedom of expression work, but have experience litigating other human rights cases and have a strong interest in undertaking freedom of expression work, will be considered as well. A maximum of 12 participants will be selected;
• The lawyers must have a demonstrated interest in and/or knowledge of the right to freedom of expression and international and regional human rights law;
• The lawyers must be involved in, or considering, litigating a case that addresses violations of the right to freedom of expression. With their application, lawyers must submit a case study of a case that they are litigating or intend to litigate that could be discussed and workshopped during the litigation surgery.

Closing date for applications: Monday 16 May 2016

Shortlisted applicants will be notified soon after the closing date and should be available for Skype or telephone interviews on 6 to 8 June 2016.

For more information and the application form please visit http://ow.ly/10gBIE

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On 18th March 2016 the Court issued two sets of provisional measures, ordering Tanzania to refrain from executing several applicants on death row pending the outcome of their cases before the Court. This seemed like a good moment to review the Court’s powers to issue such provisional measures, its previous use of the power and offer some analysis on the latest orders.

What are Provisional Measures?

As the title of this blog post suggests, provisional measures enable the Court to issue interim binding orders, i.e. before full judgement is handed down, on AU member states subject to pending applications. This tool is particularly useful since it is common that cases before the Court take months and (most often) years between the initial application and the rendering of the judgement. In essence, they allow the Court to press the pause button on something happening that would render a full judgement moot, for example, the destruction of forest, or intervene in a matter where irreparable harm would occur before a judgement is rendered, such as in this latest case, the execution of an applicant.

The Court derives its power to issue provisional measures from Article 27 (2) of the Protocol and Rule 51(1) of the Court’s Rules. Article 27 (2) of the Protocol states that:

“in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.”

Whilst Rule 51(1) of the Court’ Rules states:

“Pursuant to article 27(2) of the Protocol, the Court may, at the request of a party, the Commission or on its own accord, prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice.”

Has the Court Issued Provisional Measures Before?

These Tanzania orders are not the first the Court has issued.The Court has used such measures in three previous cases, although their effectiveness is debatable,  since in two cases provisional measures appear to have had limited or no effect.

On 15 March 2013 in the case of The African Commission on Human and Peoples’ Rights v. Libya  the Court ordered provisional measures in response to an application by the African Commission instituting proceedings against Libya alleging violations of the rights of Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi. The Court exercised it powers to order provisional measures in an attempt to force Libya to refrain from instigating judicial proceedings that would impinge on Gadaffi’s fair trial rights. Having issued provisional measures the Court gave Libya 15 days to report back. Libya ignored the order. Then, in August 2015 the Court issued a further order in response to the reports, for example here and here, that Libya had put Gaddafi on trial and sentenced him to death. In this second order the Court set out in detail its attempts to get Libya to comply with its 2013 order and states clearly that Libya’s refusal to comply with the provisional measures and proceed with Gaddafi’s trial was in contravention of its obligations under the Charter, the Protocol  and other international instruments.Until now Libya has failed to respond to this renewed order too. You can read more about this case in my previous post here.

In the pending case of African Commission on Human and Peoples’ Rights v. Kenya, the Ogiek people of the Mau Forest in the Rift Valley, Kenya claim that the Kenyan Government is evicting them from their ancestral land under the auspices of a Kenyan Forestry Service notice to conserve the forest as a ‘reserved water catchment zone’. The Ogiek argue that this eviction will have far reaching consequences on the political, social and economic survival of their community. While still pending, the Kenyan Ministry of Lands issued a directive lifting restrictions on the transfer of small parcels of land in the Mau Forest effectively allowing the forest to be taken out of the hands of the Ogiek people. On 15th March 2013 the Court used its provisional measures powers to order Kenya to immediately reinstate restrictions on the transfer of land in the Mau Forest. I have written about this case before, and have yet to hear anything of Kenya’s compliance with the provisional orders. Indeed the International Network for Economic, Social and Cultural Rights (ESCR-Net) latest report on Kenya’s treatment of the Ogiek people and their land appears to show Kenya’s failure to comply with the Court’s provisional measures order. (Of course please do contact me if you have any information on either the Libya or Kenya case and I will gladly update the post).

In perhaps the most successful example of the Court using its powers to make provisional measures so far, in the Konaté v. Burkina Faso case, following an application for provisional measures by Konaté, the Court ordered Burkina Faso to provide him with medication and healthcare whilst in detention. Having contacted the MLDI who represented Konate in his case before the Court, I understand that the provisional measures order was issued shortly before the completion of Konaté’s prison term, so whilst Burkina Faso was possibly willing to comply, there was not much time for it to do so.

What Do These Latest Two Cases Involve?

The two latest cases are similar in nature and concern applications from convicted persons on death row in Tanzania. The case of Guehi v Tanzania concerns a Cote D’Ivoire national sentenced to death in March 2010 for murder, a conviction that was confirmed by the Tanzanian Court of Appeal in February 2014. Guehi claims his right to a fair trial has been breached including a lack of translation of case papers into French at key stages of this trial and a lack of consular assistance, bringing claims under Article 7 of the Charter (right to fair trial) and Article 14 of the ICCPR (again, right to fair trial).

Rajabu and others v Tanzania relates to five applicants facing execution following convictions of murder. Similar to Guehi, the applicants here allege numerous breaches of their right to a fair trial, contrary to Article 7 of the Charter and Article 14 of the ICCPR, but refers to the misuse of identification evidence as well as procedural deficiencies.

Citing the Libya case discussed above, in both cases the Court made clear that to issue provisional measures the Court need not satisfy itself that it has jurisdiction on the merits of the case, only that it need satisfy itself that prima facie it has jurisdiction. Given that Tanzania has signed the Charter, the Protocol and the Article 34(6) Special Declaration allowing individuals and NGOs direct access to the Court, this prima facie case is made out, although it is perhaps not entirely clear what the difference is between this “prima facie” assessment and the assessment that must be undertaken when considering the merits of the case at the judgement stage.

What Conclusions Can We Draw?

The Court’s reasoning in both cases is sparse, which is typical of the Court’s issuance of provisional measures in previous cases. In both, the Court calls for Tanzania to refrain from carrying out the death penalty until the completion of their cases as there exists a situation of “extreme gravity” and that execution would do “irreparable harm” to the persons, thus hitting the buttons required under Article 27 (2) of the Protocol.

It is interesting to note that in neither case did the applicant’s request provisional measures, the Court instead issuing the orders proprio motu. This position is similar to the Libya and Kenya cases above and is a timely reminder that the Court will step in an use its powers even where the applicants themselves have not requested them and demonstrates the Court’s inherent ability to make quick(ish) decisions amidst the slow process of rendering a judgement on the merits.

As a side note to the provisional measures themselves, the Guehi case in notable as it is likely to be the first cases considered on its merits involving a citizen of a country other than that the application is brought against, with Guehi from Cote D’Ivoire and the application against Tanzania. Whilst this is unlikely to cause a problem at the judgement stage it is nevertheless worth looking out for when the judgement is issued.

The timing of the order is also interesting. The decisions themselves do not shed any light on why the Court is now issuing these provisional measures  instead of when the Court received the applications in  January and March 2015, respectively, although it is possible the Court may have received information that execution was imminent, thus prompting them to act.

As for the enforcement of these provisional measures, Tanzania could comply relatively easily since the provisional measures only request Tanzania not execute the applicants, and gives no other orders requiring any additional effort from Tanzania for example on improvement of prison conditions. Given  the relative ease of compliance, coupled with the battering Tanzania’s criminal justice system has taken from the Court in the past year in Thomas v Tanzania and then Onyango et al. v Tanzania,  in both of which the Court found numerous breaches of the applicants right to fair trials, I would suggest it would be highly unlikely that Tanzania would ignore these orders and go ahead with the execution of the applicants. Hopefully therefore the applicant’s status will be preserved. Of course, if any readers have information on the enforcement of the provisional measures please contact me and I will gladly update the post.

Editorial note: This piece was originally posted on 11 April 2016. The post was updated on 25 April 2016 adding reference to the new report on the Ogiek people by the ESCR-Net, and further clarification on the Konaté provisional measures. My thanks to the ESCR-Net and MLDI for their assistance.

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

As regular Court followers will be aware, much ink has been spilled, or probably more accurately keyboards worn down – including at The Monitor– with last month’s news that Rwanda had withdrawn its Article 34(6) declaration which allows individuals and NGOs with AU observer status direct access to the Court (Special Declaration). For those new to the issue, news broke on the day the Court was due to hear the high-profile case of Victoire Ingabire that Rwanda had withdrawn its Special Declaration and the Ingabire case was therefore halted. Exactly how Rwanda had withdrawn and whether the Court was suspending or terminating matters was unclear. What is clear is that Rwanda’s move caused turmoil among Court observers, who have raised questions over whether Rwanda can actually withdraw, if it can then when such a withdrawal takes effect, what effect it has on other Rwandan cases, how the Court will handle the matter and what it means for the future of the Court.

As I have previously suggested, the crucial question in the fall out of this unprecedented development is how the Court will handle Rwanda’s move, with the answer likely in the form of a written judgement or order. Whilst we wait for this, on 18th March the Court issued an interim-type order which provides us with a little bit more information on the withdrawal and the Court’s approach to the issue. The Order is well worth reading in full (in its present state its 10 pages) and raises some interesting issues. Here are five points to consider:

(1) The Order confirms Ingabire’s efforts to adjourn the matter. The Order does not go into detail as to why, but it appears Ingabire’s adjournment request had little to do with Rwanda’s withdrawal of its Special Declaration and everything to do with problems preparing the case for hearing. Despite this seeming disconnect, the Court appears to use Ingabire’s request in its later determination to allow Ingabire to provide submissions on Rwanda’s withdrawal. Despite no link between Ingabire’s attempts to adjourn and the withdrawal of the Special Declaration, it is nevertheless interesting to note that Ingabire and her legal team will have the chance to present full submissi0ns on Rwanda’s withdrawal.

(2) We learn a little more about the nature of Rwanda’s “withdrawal”. And to my mind anyway, its a little confusing. The Order states that Rwanda notified the Court of “withdrawal of its Declaration made under Article 34(6)…”. The Order goes on to quote Rwanda’s withdrawal letter itself, and I re-quote it here:

“The Republic of Rwanda requests that after deposition of the same, the Court suspends hearings involving the Republic of Rwanda including the case referred above [Ingabire, presumably] until review is made to the [Special] Declaration and the Court is notified in due course”

What we therefore seem to have is not so much a “withdrawal” but a suspension of hearings until a “review”, presumably by Rwanda itself, is completed. The result of this review will be communicated to the Court. If this is correct, Rwanda seems to be asking the Court to suspend Rwandan cases until it has reviewed the Special Declaration and what it wants to do with it, rather than withdraw its Special Declaration. Yet the preceding wording very clearly uses the term “withdraw”. Is it possible to withdraw the Special Declaration pending review, akin to a temporary withdrawal? The Court may well have to answer this before addressing the affect of the withdrawal.  In any event, since Rwanda must have “reviewed” the Special Declaration at the time it deposited (it cannot claim to have signed up without reading it and understanding what it means?) I suggest Rwanda will be reviewing how the Special Declaration has been used by applicants since it was deposited. It will be interesting to see if Rwanda does indeed attempt to withdraw after this review based on how, or rather who, used the access afforded by the Special Declaration rather than the notion of the Special Declaration itself. It is also worth noting that the Order does not state how long Rwanda needs for this review, perhaps because the Order does not seem to take much notice of this Rwanda’s pronouncement, instead setting out a time line for submissions without taking into consideration Rwanda reviewing the Special Declaration.

(3) We get a possible insight into Rwanda’s no-show at the public hearing. And again its rather confusing. Following Rwanda’s letter of withdrawal, the Court seems to have informed all parties that the public hearing would still go ahead on 4 March 2016. In response, on 3 March 2016, Rwanda stated, which is again quoted in the Order and which I again re-quote, the following:

“Without prejudice to the foregoing, I respectfully request the Hon. Court. if not granting the Respondent’s request made on 2nd March 2016 [the suspension of cases pending the review] to allow the Respondent being hearing on its request before a Court Order can be made”

This seems to be a request from Rwanda that if the Court will not suspend Rwandan cases as a result of its letter of withdrawal, that it be heard on the matter. But Rwanda did not turn up for the public hearing the very next day. Given that Rwanda seemingly had no way of knowing at the time of the public hearing whether the Court would grant its request in the withdrawal letter to suspend Rwandan cases, it seems strange that Rwanda would explicitly request an opportunity to address the Court, and then not turn up. What I previously described as a “gutsy” move by the Court to hold the public hearing knowing that Rwanda would not attend, becomes a little more confused in light of Rwanda’s request to be heard on the matter. Was the Court, based on the letter it received from Rwanda requesting a hearing, fully expecting Rwanda to be in attendance? Was Rwanda playing an enormous game of chicken, and if so did the Court know it was playing too?

(4) Everyone gets 15 days to file submissions. What is not known is how this time limit accords with Rwanda’s “review” of the Special Declaration or whether it will ask for more time. Given that Rwanda seemed to be asking for a hearing on the matter, is is possible Rwanda had already conducted this “review”? Either way, taking the date of the Order, 18th March, and counting working days only, all submissions should be filed by Friday 8th April.

(5) The Order was not unanimous. The Order states that Judge Ouguergouz and Judge Achour dissented, but the Order currently available from the Court is missing Judge Ouguergouz’s dissent (once I have this I will update this post). Judge Achour takes the position that the Court need not have issued this Order at all and that Rwanda’s withdrawal should be dealt with in the final judgement on the merits rather than in a separate decision. Judge Achour’s dissent also makes the point, as  made here in my last post on the matter, that Rwanda responded to the application on the merits until right before the public hearing, indicating a possible change in tactic from compliance to withdrawal. There is also an interesting difference between Judge Achour’s dissent and the Order. In his dissent Judge Achour recalls the final judgement will be handed down at the Court’s 41st Ordinary session. Yet, the main order says only that the main judgement will be handed down “at a date to be duly notified to the Parties”. It appears that Judge Achour may be quoting a previous draft of the order, and that the final version stepped away from giving such a definitive timeline. Either way, the Court’s 41st Ordinary Session will be worth watching as a possible time for the rendering of the judgement.

In conclusion, this Order sheds some light on Rwanda’s withdrawal of its Special Declaration, but it does not provide a great deal of clarity, possibly even adding some confusion to the mix. Perhaps the somewhat confusing timeline and requests detailed in the Order are the reason why the Court has invited further submissions; an attempt to clarify exactly what Rwanda has done and what it wants to do, since at present the notions of “withdrawal” and “review” raised by Rwanda do not sit easily together. What the Order does not do is provide much indication on which way the Court is leaning on this matter. The final order remains eagerly awaited.

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

O heart! O heart! if she’d but turn her head,

You’d know the folly of being comforted

– WB Yeats, The Folly of Being Comforted

To whom does the above quote apply? Not just Victoire Ingabire, the Rwandan applicant who’s case was due to be heard on Friday, but perhaps the Court too. Indeed, no sooner was Ingabire’s case beginning than we learned from the Presiding Judge that the Court was suspending the matter. The reason? Rwanda has reportedly withdrawn its Article 34(6) Special Declaration that allows individuals and NGOs direct access to the Court.

Rwanda’s withdrawal is unprecedented. Until Friday, Rwanda was a member of a select group of eight AU member states that had not only ratified the Court’s Protocol but also signed the declaration allowing its citizens and NGOs direct access to the Court.

The timing is very interesting. Given the relatively high profile Victoire Ingabire enjoys, is this an attempt by Rwanda to simply prevent the Ingabire case being heard? If so, the timing could be seen as either clumsy in that it raised the profile of the matter beyond that which it may ordinarily enjoy, provocative given the Court itself is unlikely to be impressed, or deliberate as a way of sending a message to the Court, and possibly the African Union, on its attitude the Court. This last possibility would it in itself be interesting given that the Court’s case summary of the matter shows that rather than, say, simply ignore the matter or dismiss it out of hand, Rwanda had responded to the applicant’s case,  carefully setting out its arguments in particular with regard to failure to exhaust local remedies; why go to the lengths of setting out legal arguments against the  application, if Rwanda was simply going to withdraw its Special Declaration?

As to how the Court can proceed with Rwanda’s withdrawal, the Court’s Protocol is silent, setting out only how a member state can sign the Special Declaration and not how or even if it can be withdrawn. No doubt Rwanda will argue that it is free to withdraw the Special Declaration whenever it wishes, just as it is free to sign the Special Declaration whenever it chooses. This is probably true to a certain extent- the wording of Article 34(6) certainly allows for member states to sign up when they want. As Nani Jansen states in her excellent piece on Rwanda’s withdrawal, the European and Inter-American Court have “cooling off” periods to account for occasions where member states wish to withdraw, which the Court’s Protocol does not.With no specific terms in the Protocol, and without much in the way of material to imply such terms, in seems that Rwanda may be able to withdraw its Special Declaration for future cases with immediate effect.

The other, possibly more controversial, question is whether this withdrawal applies retrospectively to all matters currently before the Court , i.e. Victoire Ingabire’s case as well as the other pending cases involving Rwanda. Nani Jansen’s piece again suggests any withdrawal cannot be retrospective, and this will be a key issue for the Court to decide. Certainly at the time the pending cases were filed, the Court enjoyed jurisdiction. Before we can get a firm idea of how the retrospective issue will play out we will need to see the exact terms of Rwanda’s withdrawal; it could for example refer only to future cases, thus leaving pending cases within the jurisdiction of the Court, but this would seem unlikely.

As to how the Court will tackle the matter as a whole, it is interesting that the Court decided to hold the public hearing albeit without Rwanda in attendance. This feels like a gutsy move from the Court. Given that reports suggest the notification of the withdrawal came a few days before Friday’s hearing, the Court could have simply cancelled the hearing and put out a press release/statement. Instead, it went to the lengths of congregating and then formally suspending the matter. Perhaps I am reading too much into this, but it seems that this move sends a message that the Court will not simply sweep this matter under the carpet.

Of course the other issue will be how Rwanda’s actions will effect the remaining seven member states who are still signed up under Article 34(6), or for others signing the Special Declaration in the future? Do Rwanda’s actions give carte blanche to member states to sign and withdraw on an ad-hoc basis depending on the cases it faces before the Court? Naturally, we want to say no, but this is difficult to predict without more information. I would however suggest the biggest influence on other members states will now come from how the Court itself handles the matter. In many ways the Court cannot “do” anything. If Rwanda wants to withdraw its Special Declaration and no longer participate in cases involving individuals and NGOs the Court cannot force representatives to come to the Court or make representations.  However, if the Court considers Rwanda’s withdrawal to be contrary to the Protocol, either in spirit or as a contravention of the Vienna Convention on the Law of Treaties, the Court could continue with cases pending before it, including that of Victoire Ingabire. This would be a brave move by the Court and likely lead to not only significant legal issues but huge political ramifications as well.

Just to quickly zoom focus out from the Court itself for a moment though, it seems fair to say Rwanda has suffered a number of disappointing judgements recently, with both English and Dutch courts rejecting applications for extradition of alleged genocidaires in recent months on fair trial concerns (although I understand these are subject to appeal). Member states’ decisions on this Court can rarely take place in a vacuum, and whilst its always dangerous to squeeze too many disparate matters together to try and form a whole, is it possible Rwanda could not face going 0-for-3 on important decisions outside of Rwanda?

Of course, Rwanda’s ratification of the Court’s Protocol remains in place, meaning that it can still face cases transferred from the African Commission on Human and Peoples’ Rights, other AU member states or cases it refers itself. But, rightly or wrongly, the gang of eight (now seven) who have allowed its citizens and NGOs direct access to the Court are lauded by many as progressive AU member states. To lose one is therefore a blow not only to the Court but to human rights in Africa. These Special Declaration member states  can serve as an example to other member states on how to embrace the Court and all its stands for. It is therefore the nature of Rwanda’s withdrawal which might be of greatest concern; an 11th hour move just before a high profile case was to be heard.  Perhaps this reflects worse on Rwanda than the Court, but such a withdrawal no doubt feels doubly disappointing for many involved with the Court. In many ways Rwanda’s actions also potentially demonstrate a larger problem the Court faces; member states wanting a human rights court, but not wanting  to be brought before it themselves (the Ingabire case was to be the Court’s first involving Rwanda). We still need to know a lot more before we can make any definitive conclusions on what occurred on Friday. But whatever Rwanda’s potential concerns were over the Ingabire case or the Court itself, the Court has demonstrated that it considers cases transparently and, for the most part, with sound legal reasoning. Surely the way for Rwanda to deal with any potential issues concerning Article 34(6) would have been with the declaration still in force rather than to simply withdraw, if this indeed proves to be the case.

Reminder: As always, the views expressed herein are those of the author alone and do not necessarily reflect the views of any organisation affiliated to the author.

 

Note: The following is a review of 2015 at the African Court that first appeared as a guest post on Opinio Juris on 19 January 2016 here. If you have already read the Opinio Juris piece then there will be nothing new here, but I post it for our subscribers and those who maybe missed it on Opinio Juris.

Following some positive feedback from last year’s Opinio Juris guest post rounding up the activities of the African Court on Human and Peoples’ Rights in 2014, subsequently cross-posted here at the Monitor, I thought a review of some of the Court’s key 2015 events may be of interest.

For those who are not familiar with the Court, it was established by the African Union (AU) to hear cases relating to alleged violations of the African Charter on Human and Peoples’ Rights (African Charter) and other international human rights instruments. The Court is based in Arusha, Tanzania and is separate to its cousin the African Commission on Human and Peoples Rights. Two key instruments to keep in mind are the Court’s Protocol, ratification of which gives the Court jurisdiction to hear cases referred to it by the African Commission, from the country itself, from other AU members states and from African Intergovernmental Organizations. The other instrument is the “Special Declaration”, found in Article 5 (3) and Article 34 (6) of the Protocol, which must be signed by the member state in addition to the Protocol to allow individuals and NGOs from that member state to petition the Court directly.

May: the Court’s 37^th Ordinary Session

At its 37^th Ordinary Session the Court held public hearings in two cases concerning Tanzania. In Onyango et al v Tanzania the Applicants, all citizens of Kenya, allege they were kidnapped in Mozambique and taken to Tanzania where they were charged with murder and three charges of armed robbery. In Abubakari v Tanzania, the Applicant challenges a conviction and 30 year sentence for two counts of armed robbery. Judgement in both cases is pending.

June: Zongo and others v Burkina Faso reparations judgement

Having handed down judgment on the merits in March 2014 in Zongo and others v Burkina Faso, in which the Court found that with regards to the alleged assassination of investigative journalist Norbert Zongo and colleagues in December 1998, Burkina Faso violated several articles of the African Charter and Article 66 of the ECOWAS Treaty by failing to take measures to ensure the families of the deceased the right to be heard by a competent national court, the Court handed down its judgement on reparations. This judgement is the first in which the Court has awarded reparations to successful applicants. The judgement solidified the Court’s initial findings in June 2014 in the Mtikila v Tanzania reparations judgement that the Court has the power to award reparations to the victims of human rights violations. Zongo builds on this by actually doing so. In fact, the Court awarded the entire amount claimed in reparations by the applicants who consisted of the spouses, children and parents of the deceased. The Court also awarded a symbolic payment to the NGO who assisted in bringing the case and ordered costs for lawyer’s fees, travel and accommodation. As I have written elsewhere, the award of reparation should cement Zongo and others v Burkina Faso as another landmark case for the Court.

July: sensitization visit to Lesotho

 In July, the Court conducted a one-day sensitization visit to Lesotho. The main objective of sensitization visits being to enhance the protection of human rights in Africa and promote the Court and its activities. As the Court’s press release explained, Court officials met with various government officials, lawyers and NGOs. The visit saw further promises from both government and the NGO sector to work toward signing the Court’s Special Declaration that would individuals and NGOs in Lesotho direct access to the Court.

July: the EACJ ruled on the Court’s Special Declaration

In Democratic Party v Secretary General of the East African Community and others the Appellate Division of the East African Court of Justice (EACJ) ruled on whether signing the Court’s Protocol also creates an obligation on the member state to sign the Special Declaration. The EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the Court’s Protocol under the premise of the East African Community Treaty, the wording of Article 5 (3) and Article 34 (6) of the Protocol contained no requirement that a member state who signs the Protocol must also sign the Special Declaration. This important decision seems to preclude, at least for now, reading any obligations into signing the Protocol that are not clearly spelled out, and keeps the process for granting individuals and NGOs access to the Court a definite two stage process.

August: Cameroon ratifies the Court’s Protocol

In August, Cameroon ratified the Court’s Protocol, taking the number of AU member states who have ratified to 29. Still, only seven AU member states have signed the additional Special Declaration. The AU has a total of 54 members.

September: (Then) President Kikwete visits the Court

Tanzanian President Kikwete, as he was prior to Tanzania’s elections, visited the Court in September. During this visit Kikwete announced that Tanzania was pledging $100,000 towards the Court’s legal aid scheme, which was set up in July 2014. Sadly, some 14 months after the fund’s creation, Tanzania’s pledge appears to be the first and only such donation to the legal aid scheme to date.

October: sensitization visit to South Africa

The Court held a one-day sensitization event in South Africa, including an address by the Court’s President Justice Ramadhani encouraging South Africa, which ratified the Court’s protocol some 13 years ago, to make the Special Declaration. More information on the visit can be seen here and here.

November: 39^th Ordinary Session

The Court rendered its judgement on the merits in Thomas v Tanzania at its 39^th Ordinary Session, marking another success for an applicant before the Court, this time relating to fair trial rights.

The Applicant was convicted in Tanzania of armed robbery and sentenced to thirty years imprisonment, a sentence he was serving at the time of the application. The Court found that the trial process leading to the Applicant’s conviction and his subsequent attempts to appeal said conviction were riddled with violations of his right to a fair trial. In particular, the Court found Tanzania in violation of Articles 1, 7(1) (a) (The right to an appeal to competent national organs) , (c) (the right to a defence and counsel of choice), and (d) (The right to be tried within a reasonable time by an impartial court or tribunal) of the African Charter as well as Article 14(3)(d) of the ICCPR. However, despite finding these violations, the Court rejected his request for immediate release from prison, since he had not set out “specific or compelling circumstances”. Instead, it called on Tanzania to remedy the violations within six months, specifically precluding retrial or the reopening of the defence case as remedies, given that the Applicant had served 20 out of 30 years in prison; surely an indirect call by the Court for the Applicant to be released. Issues of costs and reparations have been postponed to a later date.

November: 2^nd Judicial Dialogue

The Court jointly organized with the AU the second “Continental Judicial Dialogue” which took place in Arusha. The event included delegates from AU member states, including Chief Justices, Presidents of Supreme Courts and Constitutional Courts, members of academia, national judiciaries and media. The theme of the three day event was “Connecting National and International Justice”. Interestingly, amongst the attendees were a number of judge from the Inter-American Court of Human Rights who shared their experiences of sitting on human rights cases.

December: sensitization visit to Chad and the results of the Court’s inaugural moot court competition

The Court undertook its third sensitization visit of the year to Chad. From this visit, we received the encouraging promise that Chad will sign the Court’s Protocol and, crucially for access issues, the Special Declaration. Although at the time of writing this has not yet happened, the public declaration will hopefully serve to see Chad go on to fulfil its promise sooner rather than later.

Finally, the Court announced the winners of its inaugural moot court competition, with Moi University in first place, the University of Zambia a close second and Makerere University third.

Conclusion

The Court continued to promote itself with sensizitation visits AU to Leshoto, South Africa and Chad, with this last visit resulting in the promise that Chad will sign the Court’s Protocol and Special Declaration imminently. Whilst there were also rumblings in Uganda about signing the Special Declaration, it is worth noting that no AU member state actually signed the Special Declaration in 2015, meaning further engagement with member states is clearly needed. On actual cases before the Court, applicants continue have a 100% success rate, having now gone a perfect 4-for-4 before the Court, showing that when jurisdictional issues are overcome the Court is not afraid to make findings against member states.

Above all, 2015 felt like a year in which the Court continued to mature and begin to seriously promote itself across Africa. The President of Court himself has been vocal in urging AU members states to sign the Protocol and Special Declaration allowing individuals and NGOs direct access to the Court as can be seen here, here, here, and here. Of course, what continues to hamper the Court is the number of individuals and NGOs who can actually access the Court. To make the Court a truly continental one, AU member states must sign up and embrace the Court in 2016 and beyond.

Reminder: The views expressed herein are those of the author alone and do not necessarily reflect the views of any organisation affiliated to the author.

Today is Human Rights Day which seemed as good a time as any to reflect on the number of African Union member states who have signed up to the Court and, perhaps most importantly, signed the Special Declaration allowing individuals and NGOs direct access to the Court.

This time last year, as I discussed here, 28 member states had signed the Protocol establishing the Court. Signing this Protocol gives the Court jurisdiction to consider applications from the member state itself, other member states who have signed the Protocol, the African Commission on Human and Peoples’ Rights, and intergovernmental organisations, but crucially no jurisdiction to hear applications from individuals and NGOs from the member state.

One year later how many do we have signed up to the Protocol? 29. In the past 12 months only Cameroon have ratified the Protocol.

And what of the member states that have in addition to signing the Protocol, also signed the Special Declaration allowing individuals and NGOs to petition the Court directly? 12 months ago that number stood at 7- approximately 13% of the African Union membership. And what is the magic number this year? Well, still 7. Sadly, in the past 12 months not one member state has signed the Special Declaration.

I am aware of the arguments cautioning against member states committing to processes only to pull out afterwards, and the perceived political ramifications of supporting the African Court (both for and against). I am also aware that the signing of the Special Declaration is a complex, difficult and often Byzantine process to push through at the domestic level, but the fact remains that the numbers are still unacceptably low.

The current President of the Court Justice Ramadhani has spent a lot of time this year urging AU member states to sign both the Protocol and the Special Declaration. You can see some examples here, here, here, and here. I can do no better than to echo these sentiments.

The African Charter for Human and Peoples’ Rights is a comprehensive human rights instrument that can serve African citizens well by protecting both individual and peoples rights. But without the ability to enforce these rights when they are violated, the Charter remains unreachable and theoretical for all but those fortunate enough to be citizens one of the seven member states that have signed the Special Declaration.

If the African Charter, and the African Court that was created to uphold and enforce the rights contained in the Charter, is to truly protect the whole of Africa the number of member states who sign the Protocol and Special Declaration must increase without delay. What better time to make an announcement committing to signing the Court’s Protocol and Special Declaration than on Human Rights Day?

 

Reminder: The views expressed herein are those of the author alone and do not necessarily reflect the views of any organisation affiliated to the author.

The Network of African National Human Rights Institutions (NANHRI) has conducted some really interesting research into the relationship between African National Human Rights Institutes (NHRIs) and the African Court that has culminated in the report “What Do National Human Rights Institutions Know about the African Court on Human and Peoples’ Rights?”. The report makes for fascinating, if somewhat bleak reading. In order to dig a little deeper, I held a Q&A session with NANHRI’s Lenser Anyango to discuss the report’s methods, its findings and the future relationship between African NHRIs and the African Court. My thanks go to the NANHRI’s Lenser Anyango and Daniel Amollo for their time and assistance.

OW: First of all, what prompted the NANHRI to undertake this research?

Lenser Anyango (LA): Informed by conclusions from a meeting that NANHRI held early in the year dubbed “The Role of NHRIs in monitoring the implementation of decisions of African Human Rights Bodies”, NANHRI saw the urgent need to analyze the current challenges to the implementation of the African Court’s decisions at the national level and the potential role that NHRIs can play. Emanating from the meeting was the fact that once a decision has been made by the Court and the implementation process begins, it is not clear what mechanisms are put in place to effectuate these decisions especially at the national level. Therefore NANHRI envisioned that this study would assist in determining if in deed there are processes and structures of implementation of the African Court’s decisions at the national level.

OW: The NANHRI sent questionnaires to NHRIs in the seven countries that have deposited the Special Declaration allowing citizens and NGOs with observer status direct access to the African Court (Burkina Faso, Cote d’Ivoire, Ghana, Malawi, Mali, Rwanda and Tanzania). Why only these seven?

LA: Owing to the financial and time constraints encountered while implementing the study, NANHRI sought to use the best criteria in designing the study. Thus, out of the 29 states which have so far ratified the African Court’s Protocol, NANHRI narrowed its representative sample to the seven member states who have deposited the Special Declaration. The criterion was deemed appropriate as through these seven states, NANHRI felt it would gather extensive information given the fact that they enjoy more privileges in accessing the African Court.

OW: Does the NANHRI plan to canvas the views of NHRIs where the Special Declaration has not been deposited?

LA: With a diverse membership of 44 NHRI members in Africa, NANHRI intends to work with all its members in the region.

OW: The report seems to find a contradiction between the African Court’s narrative and NHRI’s narrative on the relationship between them. Is it fair to say that the African Court is painting a far more positive picture of the relationship compared to the NHRIs themselves? If so, why is this?

LA: From various responses received from the NHRIs, the work of the African Court has remained alien to most of the NHRIs. The African Court has made few attempts to reach out to them, which shows why the Court and its activities are not yet connected to the work of the NHRIs. In effect, the NHRIs and their work are quite disconnected and detached from the work of the African Court.

Also, the NHRIs are not seeing any synergy between their work and that of the African Court. This is critical because understanding the relationship between NHRIs work and the African Court’s work is necessary to underline their complementarity and establish where their synergy lies at the national level.

OW: The report finds that only a few NHRIs are even aware that someone from their country has submitted an application to the African Court directly or indirectly. Did your research get any sense of why this is? How can NHRIs help applicants bringing cases before the African Court?

LA: The study’s findings show that most of the NHRIs are quite detached, disinterested and disconnected from the African Court process. This should be a serious concern considering that both the African Court and the NHRIs are central pillars of human rights protection and promotion on the continent.

Some NHRIs feel that the application process is too complex, while others feel it is rather simple, though the majority confirm that they are yet to familiarize themselves with the African Court’s rules of procedure. Well, from the foregoing, it is not clear if it is the lack of familiarity with the rules of the Court which is militating against their general mandate to monitor these cases and support these victims or lack of interest since no attempt has been made to do so.

Some of the NHRIs are of the opinion that the domestic courts can play a role in enforcing decisions of the African Court. However, some NHRIs actually maintain that there is no such role for domestic courts. This difference in opinion amongst the NHRIs is a critical challenge towards their actual or potential role in monitoring and supporting the enforcement of African Court decisions at the national level.

Also, some of the NHRIs interpret their mandates narrowly and see no nexus between their work and that of the African Court. They do not see any role that they can play to follow up on the implementation of the African Court’s decisions. In fact, some are of the opinion that it would be an interference to be enjoined to the work of the African Court as the Court is an independent body.

OW: At the domestic level, the report finds that only Cote d’Ivoire’s NHRI confirmed having been involved in the domestic advocacy processes that led to Cote d’Ivoire’s ratification of the African Court Protocol and the depositing of the Special Declaration. How does the NANHRI envisage NHRIs working in countries where either the African Court Protocol or the Special Declaration have yet to be signed?

LA: Currently, NHRIs are weak partners with the African Court when it comes to monitoring the implementation of its decisions at the national level. However, all NHRIs’ core protection and promotion mandates are quite suitable for their engagement with the African Court and its processes, which the NHRIs have yet to exploit. The African Court cannot achieve its objective without the involvement of NHRIs together with other national stakeholders.

Consequently, NANHRI, in implementing its mandate to encourage the establishment of NHRIs in conformity with the Paris Principles, plans to work with NHRIs to:

1. Take up a leading role to encourage ratification of international human rights instruments and ensure their implementation in line with the Paris Principles.

2. Participate in the State reporting processes

3. Cooperate more with regional human rights mechanisms. This is an area which needs further strengthening by fostering active engagement between the institutions.

OW: One of the most prominent findings in the report is that most NHRIs did not know the African Court’s processes for submission of applications or the African Court’s rules of procedure. I think everyone would agree that information is essential. Given that there are some resources out there such as The Monitor’s Essential Guide, and the African Court website, how can this situation be improved? Is it as simple as sending NHRIs a basic fact sheet such as the Monitor’s to at least begin the process?

LA: Having information and making use of it are two different things. As already mentioned, the study findings show that most NHRIs are quite detached, disinterested and disconnected with the African Court process. Thus bringing them on board requires various strategies to be used for effectiveness. NANHRI envisions that the fact sheet can be used as an eye opener for the NHRIs and hopefully try and see how best they can assume their role so as to address this glaring gap between the two institutions.

OW: Prominently, the report also found that the NHRIs stated that they have never received requests from individuals or NGOs for assistance to access the African Court. Did your research get an idea as to why this was? Is it a lack of understanding among citizens or NHRIs not connecting issues they come across with potential applications at the African Court?

LA: The above observation can be attributed to a number of reasons including the lack of capacity and the context in which the NHRIs operate. Most of the NHRIs do display a critical lack of interest and knowledge on the operations of the African Court and its activities and specifically the decisions made by the African Court. Most of the NHRIs interviewed do not yet consider monitoring the implementation of the African Court decisions as part of their mandate.

This last observation is significant since it highlights the question of the NHRIs relevance and legitimacy pertinent to the Paris Principles. Though from our findings, it is not clear if it is the lack of familiarity with the rules of the African Court which is militating against their general mandate to monitor these cases and support these victims or lack of interest since no attempt has been made to do so.

OW: As we begin to see the African Court render judgements, the report highlights the issue of implementation. What are the roles that NHRIs can play in implementation, even if they are not parties in the case?

LA: NHRIs are an effective and formidable domestic structure for compliance to human rights laws if their mandates are well utilized. In many countries they have become a major force in monitoring governments’ compliance with their international treaty obligations, promoting an understanding of human rights and addressing and redressing human rights violation at the domestic level. In some states they are playing an increasingly active and important role in assisting the international and regional bodies by providing them with information and by following up their recommendations.

OW: Sadly, the overarching conclusion of the report seems to be that, to quote, “the work of the Court remained alien to most of the NHRIs” Is there a common view on the African Court amongst the NHRIs canvassed? Or does each member state have different cause for this feeling of alienation?

LA: Reference being made to not only the study but also the workshop NANHRI convened early in the year, this is the general view among our NHRIs. NHRIs feel that the African Court should do much more to improve their engagements with the NHRIs.

OW: Finally, the report is short (two pages), are there any plans to publish a longer report on the NANHRI’s research?

LA: From this study NANHRI drafted a more detailed report “long report”. It is from this report that the summary fact sheet was drafted. A fact sheet was found to be suitable to disseminate the report findings as it is a quick read.

1. Introduction

This post looks at the recent decision by the Appellate Division of the East African Court of Justice (“EACJ”) in Democratic Party v Secretary General of the East African Community and others on whether signing the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and People’s Rights (“African Court Protocol”) also creates an obligation on member states to sign the Special Declaration found at Article 5 (3) and Article 34 (6) of the African Court Protocol that allows individuals and NGOs with observer status direct access to the African Court. In a nutshell, the EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the African Court Protocol under the premise of the East African Community Treaty (“EAC Treaty”), the wording of Article 5 (3) and Article 34 (6) of the African Court Protocol contains no requirement that a member state who has signed the Protocol must also sign the Special Declaration; a significant decision in determining how best to ensure the maximum number of people and NGOs can access the Court.

2. First Instance Division Finding

To recap, on 29 November 2013 the Ugandan political party The Democratic Party (“the Appellant”) brought a case before the First Instance Division of the EACJ against the Secretary General of the East African Community (“Secretary General”), Uganda, Kenya, Rwanda and Burundi (collectively, “member states” with Rwanda being removed from the case after signing the Special Declaration), arguing that the member states’ failure to sign the Special Declaration was a violation of not only the African Charter but also the EAC Treaty.

The First Instance Division denied the petition, finding that it had jurisdiction to ensure adherence with the EAC Treaty, but that it had no jurisdiction to interpret the provisions of the African Charter and the African Court Protocol. As to whether the member states failure to sign the Special Declaration contravened the African Charter, African Court Protocol, the EAC Treaty or other international human rights instruments that the members states had ratified, the First Instance Division found that it did not. It further found that the Secretary General had done all in its power in bringing the application to the attention of the member states and leaving the EACJ to consider the case.

3. Submissions and Responses

 (i) Appellant Submissions

On appeal, the Appellant argued that the First Instance Division made three erroneous findings: (i) that it had no jurisdiction to interpret African Charter, African Court Protocol and other relevant international instruments which the member states were party to; (ii) that the delay by the members states in depositing the Special Declaration was not in violation of the EAC Treaty, the African Charter, the African Court Protocol and 1969 Vienna Convention of the Law of Treaties (“Vienna Convention”); and (iii) that the Secretary General had no duty under the EAC Treaty to supervise the member states and ensure their compliance with their obligations under the African Charter, the African Court Protocol or the Vienna Convention.

On the EACJ’s jurisdiction to interpret the African Charter, the African Court Protocol and other international instruments, the Appellant submitted that the member states are signatories to the African Charter and the EAC Treaty and that the EAC Treaty contains several provisions that create obligations for EAC members to protect human rights according to the African Charter. Therefore, the First Instance Division erred in deciding it had jurisdiction to consider application of the EAC Treaty but not Articles of the African Charter or African Court Protocol. In support, the Appellant argued that the EACJ had on several occasions held that it has jurisdiction over principles of rule of law and human rights, relying in particular on the case of James Katabazi v. The Secretary General of the EACJ.

As to the delay in depositing the Special Declaration, the Appellant submitted that since the member states had signed and ratified the African Charter and the African Court Protocol, the First Instance Division had erred when finding that the member states had no obligation to expeditiously deposit the Special Declaration. In support, it argued that Article 6 (d) of the EAC Treaty obliges every EAC member state to promote and protect “human rights in according with the provisions of the Charter”. It further submitted that under Article 126 of the EAC Treaty all member states are enjoined to cooperate in legal and judicial affairs, harmonize national laws and under Article 130 and Article 131 honour their commitments to the EAC Treaty in respect to multinational and international organizations especially the African Union and United Nations.

The Appellant further relied on the Vienna Convention, under which a Partner State cannot invoke its own internal laws to defend its failure to comply with its legal obligations. The Appellant argued that the member states failure to sign the Special Declaration is therefore not justifiable since they had already ratified the Protocol, and that by this ratification the member states had expressed their consent to be bound by all the provisions of the Protocol, therefore, in accordance with the Vienna Treaty the member states are bound to refrain from acts which would defeat the object and purpose of the EAC Treaty. The Appellant submitted that when a state ratifies any international human rights treaty, it assumes a legal obligation to implement the rights recognized in that treaty insofar that the member state undertakes to put in place domestic measures and legislation compatible with their treaty obligations.

With regards the Secretary General’s role, the Appellant argued that as the Chief Executive Office of the EAC it is mandated to play a supervisory role over member states to ensure they comply with the provisions of the EAC Treaty. It argued that the Secretary General had failed to supervise the member states to ensure they deposited their Special Declarations despite having been informed about it.

(ii) Secretary General and Member States Responses

The Secretary General responded that on jurisdiction, the First Instance Division correctly held that the right forum for this litigation was the African Court through the African Commission, and was correct to decline to interpret the African Charter and African Court Protocol. As to the delay in depositing the Special Declaration, it submitted that Article 34 (6) of the African Court Protocol does not give a deadline for depositing the Special Declaration but instead creates discretion and therefore no violation occurred. It also distinguished the present case from the Katabazi case insofar that delay in depositing the Special Declaration does no in any way constitute a violation of any provision of the EAC Treaty. As to the Secretary General’s duty under the EAC Treaty to supervise the member states to comply with its obligations, it argued that under the EAC Treaty the Secretary General has a margin of appreciation, and that since there is no time limit on the filing of the Special Declaration it was not compelled to act other than the way it did.

Uganda responded that the First Instance Division was correct, and that two legal regimes exist; the EAC through the EAC Treaty and the African Charter/ African Court Protocol. It argued that both regimes have mechanisms through which redress can be sought in the case of infringement; the EACJ and the African Court respectively. It submitted that the two mechanisms are not seized with parallel jurisdiction to handle infringements of the other instrument and that the Appellant had failed to present any evidence that the EACJ has concurrent jurisdiction with the African Court and African Commission. As to the Special Declaration itself, Uganda argued that Article 5 (3) of the African Court Protocol is silent as to the time within which a member state must deposit the Special Declaration and therefore the First Instance Division was correct to find no violation.

Kenya responded that the EACJ is a creature of the EAC Treaty and that the Appellant bears the burden to demonstrate that the EACJ has legal jurisdiction to interpret the African Charter. As to the Special Declaration itself, it argued that a delay cannot be established unless it is measurable against a time limit stipulated in the African Charter. Kenya submitted that such a delay cannot be measured therefore it is not possible to find a violation. Regarding the role of the Secretary General, it argued that the Katabazi case relied on by the Appellant is distinguishable and was not applicable in this case.

Burundi responded that the First Instance Division was correct by holding that it had no jurisdiction to interpret the African Charter and African Court Protocol, and that the EAC Treaty makes it clear that the EACJ can only interpret the EAC Treaty and not other international instruments. As to the alleged delay in depositing the Special Declaration, Burundi argued that even if, for arguments sake, the African Court Protocol did contain time limits for the deposit of the Special Declaration, and thus not depositing was a violation, the EACJ was not the proper forum to provide redress and that the right forum would be the African Court under Article 3 of the African Court Protocol and Rule 26 of the African Court’s Rules of Procedure.

4. Appeal Division Findings

With regards jurisdiction, the Appellate Division found that the EACJ’s jurisdiction derives from numerous articles in the Treaty as discussed in Independent Medical Legal unit v Attorney General of the Republic of Kenya, EACJ Appeal No 1 of 2011, and in particular noted Article 23 (role of the EACJ), Article 27 (jurisdiction of the EACJ) and Article 30 (reference by legal and natural persons). The Appellate Division stated that in view of these Articles, once a matter involves the interpretation and application of the provision of the EAC Treaty that matter clearly falls within the jurisdiction of the EACJ. The Appeals Division noted that the Appellant’s claim was that failure or delay in depositing the Special Declaration which was not only an infringement of the African Charter, African Court Protocol and Vienna Convention but also the EAC Treaty itself.

As to whether the application had “matters triable” under the provisions of the EAC Treaty, the Appeals Division answered in the affirmative. Specifically, under Article 6 (d) of the EAC Treaty member states must adhere to the principles of democracy, the rule of law, accountability, transparency, social justice and the protection of human and peoples rights in accordance with the provisions of the African Charter. The Appeals Division found that the use of the words “in accordance with the provisions of the […] Charter” creates an obligation on EAC member states to act in good faith and in accordance with the provisions of the African Charter. Failure to act in good faith would consequently be a violation of the EAC Treaty, and that such a violation can be legally challenged before the EACJ.

The Appellate Division therefore rejected the member states submissions that the EACJ cannot work outside the framework of the EAC Treaty and usurp the powers of the African Court, since the Appellant’s arguments are not in fact outside the remit of the EAC Treaty since Article 6 (d) and Article 7 (2) of the EAC Treaty in fact empower the EACJ to apply the provisions of the African Charter, the Vienna Convention and an other relevant international instruments. The Appellate Division stated that the EACJ role was to ascertain the member states adherence to the EAC Treaty provisions including the provision of other international instruments which are incorporated explicitly as in Article 6 (d) or implicitly in Article 7 (2) of the EAC Treaty. Therefore, the Appellate Division found the EACJ has the jurisdiction to interpret the African Charter within the context of the EAC Treaty and consequently the appeal was granted on the first issue.

Having found it had jurisdiction to consider violations of the African Charter and African Court Protocol through Article 6 (d) and Article 7 (2) of the EAC Treaty the Appellate Division went on to consider the Special Declaration itself. Examining the wording of Article 34 (6) of the African Court Protocol, the Appellate Division noted that it contains no specific time limit within which a member state must deposit the Special Declaration. The Appellate Division found that in fact, the wording “or any time thereafter” far from stipulating a concrete deadline provides a margin of discretion within which a member stat may deposit the Special Declaration. Therefore, a member state which has not yet deposited the Special Declaration cannot be faulted under Article 34 (6) of the African Court Protocol.

As to whether the First Instance Division erred concerning the Secretary General, it found that the Secretary General can act on its own initiative when there is an allegation of a violation of the EAC Treaty or where a member state has failed to fulfill an obligation. In this case, the Secretary General indicated that once in receipt of the Appellant’s complaint it wrote to all the member states and left the matter in the hands of the EACJ. The Appellate Division agreed with the First Instance Division that the Secretary General could do no more.

5. Comment and Analysis

To followers of the East African Court of Justice (which should include anyone interested in the African Court on Human and Peoples’ Rights) this finding keeps the EACJ’s jurisdiction broad. Whilst the member states who argued that the EACJ can only hear cases relating to the EAC Treaty were technically correct, rather than acting outside the scope of the EAC Treaty, the EACJ is very much acting within it by applying Articles 6 (d) and Article 7 (2) of the EAC Treaty which deal with international instruments. Therefore Article 6 (d) and Article 7 (2) of the EAC Treaty can be seen as a kind of vehicle through which applicants can effectively bring cases concerning violations of Charter and other international human rights instruments before the EACJ.

As to the Special Declaration itself, the Appellant’s argument at both First Instance and Appeals level boiled down to that by ratifying the African Charter and the African Court Protocol, member states are required to also required to sign the Special Declaration, and that Uganda’s, Kenya’s, and Burundi’s failure to do was therefore in violation of both the African Charter and the EAC Treaty. This was a novel attempt at trying to force member states to sign the Special Declaration and allow individuals and NGOs with observer status direct access to the Court. The attempt should be commended for testing the wording of the Protocol, but was always likely to fail. Put simply, there is nothing in Article 5 (3) and Article 34 (6) of the African Court Protocol that requires member states who sign the African Court Protocol to also sign the Special Declaration. It could easily be argued that this is a weakness of the African Court Protocol and that there should be such a requirement, but attempting to read one into the current wording is simply unsustainable. Therefore, the Appellate Division’s decision was sadly inevitable. Moving forward, it seems appropriate to recall that currently only seven member states allow individuals and NGOs with observer status direct access to the African Court. Despite the need to dramatically increase this number, there seems little traction in further attempts to read into the current articles any kind of requirement or time limit. Instead, success in opening up access to the African Court seems more likely either in amendment to the current articles or, more likely, attempts at national level to urge member states who have signed the Protocol to also sign the Special Declaration.