Author: Oliver Windridge

On Monday, 26th January, the Appeals Chamber of the East African Court of Justice heard the appeal in the case of Democratic Party v. EAC, Uganda, Kenya, Rwanda and Burundi. The case is highly relevant to the African Court on Human and Peoples’ Rights as it seeks to challenge Uganda’s, Kenya’s and Burundi’s failure to make special declarations under Articles 5(3) and 34(6) of the Protocol allowing individuals and NGOs to bring cases before the Court.

As background, the applicant, the Democratic Party (a Ugandan political party)  challenged the failure of Uganda, Kenya, Rwanda and Burundi (“State members”) to make  declarations under Articles 5(3) and 34(6) of the Protocol, arguing that this failure was an infringement of Articles 5, 6, 7(2), 8(1)(c), 126 and 130 of the East African Community Treaty and Articles 1, 2, 7, 13, 26, 62, 65 and 66 of the African Charter.

Essentially, the Applicant argued that since the State members signed up to the Court they are also required to make the special declaration allowing individuals and NGOs direct access to the Court, an obligation also required by membership of the East African Community which requires member’s laws adhere to universally accepted standard of human rights. The Applicant explained that the EAC itself was also part of the claim since it has a supervisory role over its members and had failed to ensure they signed the special declaration. To note, when Rwanda signed the special protocol in August 2013  it was removed from the case.

The crux of the applicant’s arguments will be familiar to many interested in the Court-  the lack of access for individuals and NGOs  to the Court, which, according to the Applicant, created a “disturbing situation which as seriously affected the entire system of judicial protection of human rights at the regional and continental level” (First Instance Judgement, para. 9). The EAC and Burundi argued that Article 34(6) of the Protocol does not set a time limit on making such declarations or render the making of the declaration mandatory. Kenya argued that the EACJ had no jurisdiction to hear the case and that in any event Kenya’s judicial system is adequate to deal with human rights claims. Burundi similarly argued that the EACJ had no jurisdiction to hear the case.

Judgement was rendered in November 2013 with the EACJ finding that the EAC had done everything required by informing the countries of the claim and that there was no cause of action against it. It further found that it could not delve into the State members obligations as created by other international instruments, i.e. the Protocol establishing the Court, although it did suggest that under the EAC Treaty the EACJ has jurisdiction to consider states who fail to honour commitments made to other international organisations a decision to ensure compliance could be made as long as this does not usurp the powers of these other organs.

In any event, it found that the language of Article 34(6) of the Protocol sets no time frame to depositing a special declaration and the matter is left to the sole discretion of the State members themselves. Ultimately, the EACJ found that there was no connection between the EAC Treaty and the issue of special declarations before the Court. You can find the judgement here.

Now on appeal, the Democratic Party argues the first instance chamber erred by stating that it has no jurisdiction to entertain matter. It further argues that the African Charter is part of the EAC Treaty under Article 6 (d) and thus it allows the EACJ to look at the Charter.  It also states that under the EAC Treaty the State members undertook an obligation to observe all international obligations.  In response, the EAC repeats its arguments at first instance that the EACJ can only deal with matters of interpretation of the EAC Treaty and cannot go beyond this to consider the Protocol of the African Court. It also argued that in any event Article 34(6) of the Protocol  sets no time limit and so no delay can be found.Uganda repeated its arguments on the lack of time limits found in Articel 34(6) and Kenya similarly repeated its arguments on jurisdiction and adopted similar arguments to that of Uganda on the language of Article 34(6). Somewhat bizarrely, Rwanda was named in the appeal despite being explicitly removed upon it signing the special declaration- a point made in the appeals hearing by the Rwandan representative who asked for the EACJ Court to again remove it from the case and order costs.

It should be noted that the summary of the arguments on appeal comes from the EACJ summary found on the website here and I have not seen the appeal briefs themselves. However, it would seem that this appeal will struggle to gain much traction. Firstly, whilst the first instance court was wary of jurisdiction issues, it did go on to consider the merits of the case. Secondly, it correctly points out that the language of Article 34(6) makes no mention of a time requirement nor does it appear to be obligatory to make the requirement at all.

Whilst the issue of access to the court continues to be of great concern and must be addressed for the Court to become a truly continental one, the issue is hamstrung by the wording of the Protocol. The case brought by the Applicant brings up issues of huge merit and frustration to many. Regrettably we may not see any further debate on the meaning or interpretation of Article 34(6) since the EACJ Appeals Chamber may well reject the appeal on either jurisdiction or its apparent re-arguing of points made at first instance. We await to see if the  EACJ is willing to tackle the meaning and interpretation of Article 34(6)but I fear the EACJ Appeals Chamber will not be the place where this battle will ultimately be won or lost.

It was a busy year at the African Court on Human and Peoples’ Rights. What follows is a summary of the Court’s activity in 2014. Please note, this is a slightly edited version of the guest post by Oliver Windridge posted on Opinio Juris on 10^th January 2015. See the guest post here.

March: the Court’s 32^nd Ordinary Session

At its 32^nd Ordinary Session, the Court conducted the public hearing in Konate v. Burkina Faso. The Applicant, working as editor of the weekly newspaper L’Ouraganin, published two articles which lead to his convicted for defamation, public insult and insulting a magistrate. He was sentenced to twelve months imprisonment and handed large fines. The Applicant argued that his conviction and punishment contravened his right to freedom of expression as protected under Article 9 of the Charter and Article 19 of the International Covenant on Civil and Political Rights.

The Court also rendered three judgements. The first, Zongo and others v. Burkina Faso, related to the alleged assassination of Norbert Zongo an investigative journalist and Director of the weekly paper l’Indépendent and three colleagues in December 1998. The Applicant’s argued that following the alleged assassination the local authorities had failed to mount a proper investigation and failed to act with due diligence in seeking, trying and judging those involved in the death of Zongo and his companions. In only the second case to be decided on its merits, the Court found that Burkina Faso had indeed failed to take measures to ensure the Applicants right to be heard by a competent national court, therefore violating articles 1, 7, 9(2) of the Charter and Article 66 of the ECOWAS Treaty. Reparations are to be decided after further submissions from the parties.

The second and third cases, Omary and others v. Tanzania involving an application by former East African Commission employees who had not received promised reparations, pension and severance benefits when the then East African Community was disbanded in 1984, and Chacha v. Tanzania, concerning the Applicant’s alleged unlawful arrest, detention, charging and imprisonment contrary to Tanzanian laws were both declared inadmissible due to the Applicant’s failure to exhaust local remedies.

The Court also considered its first application for interpretation and review of a previous Judgement. In June 2013 the Court had found the case of Mkandawire v. Malawi inadmissible due to the Applicant’s failure to exhaust local remedies. The Applicant made an application to the Court for review and interpretation of the Judgement. The Court ruled that the application for interpretation could not be entertained because “interpretation” as found in the Protocol and rules of the Court can only be sought for the purposes of executing a judgement. Since the case was dismissed due to non-exhaustion of local remedies there was no judgement to interpret. As to the application to review, the Court found the application inaccurately cited key paragraphs of its earlier judgement which were the subject of the review application. In addition evidence provided by the Applicant which he argued was new was known to him at the time the Court handed down its judgement and was therefore neither new or evidence.

June: movement toward the African Court of Justice and Human Rights

The Court, or at least the future guise of the Court, came into the spotlight in June after the African Union met in Malabo, Equatorial Guinea where it adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. (Incidentally, Equatorial Guinea has not signed the Protocol establishing the existing Court).

This Protocol has been the subject of much comment and debate, in particular for its amendment to Article 46A bis of the Protocol on the Statute of the Court which imparts immunity against criminal charges for acting heads of state or government and other senior state officials. We also learned a little more of the new court’s ambitious proposed structure consisting of a “general” chamber handling trade issues and conflict between states, a “human rights chamber” handling work similar to the current Court and “criminal chamber”. For more comment on the immunity amendment see Paul Bradfield’s piece here, and Mark Kersten’s piece here. A press conference by Legal Counsel for the African Union Vincent Nmehielle on the new court, including the issue of immunity, can be seen here. Please note that the press conference does not start until about 6 minutes in, so best to skip forward.

June: Mtikila ruling on reparations

Also in June, the Court rendered its first ever ruling on reparations in Mtikila v. Tanzania. As background, the case centered on Tanzanian laws which require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, effectively barring independent candidates. In June 2013 the Court delivered its judgement, unanimously finding Tanzania’s ban on independent candidates had violated the Applicant’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated the Applicant’s Article 2 and 3 Charter rights. The judgement can be read here. My summary and analysis of the case can be seen here.

The issue of reparations was postponed in order that both parties could make additional submissions. In its ruling the Court found there exists a fundamental principle of international law that where a violation of an “international obligation” causes harm, there entails an obligation to provide adequate reparation which the Court should follow and is reflected in Article 27(1) of the Court’s Protocol. The Court found that applying this principle, pecuniary and non-pecuniary damages and legal expenses were capable of being awarded by the Court, but that the Applicant had failed to provide evidence of a link between the damages and expenses claimed and the claim itself.

In addition, the Court also examined Tanzania’a compliance with the June 2013 judgement noting that in Tanzania’s reply to damages it continued to maintain that the judgement was wrong, since the law in Tanzania prohibits independent candidates from running for election. The Court expressed its “concern” at this line of argument which was compounded by Tanzania’s failure to report to the Court on the measures it is taking to comply with the Judgement. Consequently, it ordered that within six months Tanzania should: (i) publish the official English translation translated into Kiswahili at Tanzania’s expense and publish in both English and Kiswahili once in the official gazette and once in a national newspaper; and (ii) publish the Judgment it its entirety in English on an official website and remain available for one year. The Court ordered that nine months from the ruling Tanzania should submit to the Court a report ion the above measures.

 July: Legal Aid scheme launched

A continuing concern has been how potential applicant’s can fund an application before the Court, including hiring a lawyer and possible travel expenses. It appears that in a move to address these concerns the Court launched its legal aid scheme in July, including details of the policy and an inaugural list of Court- appointed Counsel and Pro Bono Counsel.

September: a New President, Vice President, and three new judges

Taking up the reigns as President of the Court in September was Judge Ramadhani from Tanzania who replaces Judge Akuffo. The new Vice-President is Judge Thompson from Nigeria who replaces Judge Ngoepe. Both President Ramadhani’s and Vice-President Thompson’s profiles can be seen here.

Three new judges were also sworn in for six-year terms: Hon. Justice Rafaa Ben Achour (Tunisia), Hon. Lady Justice Solomy Balungi Bossa (Uganda) and Hon. Justice Angelo Vasco Matusse (Mozambique). All three were appointed by the Executive Council of the African Union in Malabo, Equatorial Guinea (the same session which gave rise to issues over the creation of the African Court of Justice and Human Rights including impunity for leaders) The new Judges will replace the previous President and Vice-President, who have served the statutory two terms as well as Justice Kimelabalou Aba (Togo), who was not re-elected.

Judge Achour’s and Bossa’s Wikipedia entries (in French) are here and here. See the Court’s website for more information here .

November: sensitization visit to Addis Ababa, Ethiopia

From 19-20 November the Court conducted its latest ‘sensitization visit’. As the Court’s press release explained, Court officials held meetings with Ethiopian government officials, as well as senior judicial figures and held a half-day seminar with NGOs, the Ethiopian Bar Council and other civil society organizations. The objective of these visits is to raise public awareness of the Court and encourage the ratification of the Protocol and the deposit of the Special Declaration under Article 34(6) of the Protocol which allows individuals and NGOs direct access to the Court.

Its worth noting, as stated in the Court’s press release, that despite Addis Ababa serving as the administrative headquarters of the African Union, Ethiopia has  yet to ratify the Protocol, effectively barring the Court from handling any cases involving Ethiopia let alone allowing its citizens and NGOs to make direct applications to the Court

November and December: the Court’s 35th Ordinary Session in Addis Ababa, Ethiopia

Following on from the Court’s sensitization visit, from 28 November to 5 December 2014 the Court held its 35^th Ordinary Session also in Addis Ababa. During the session the Court conducted public hearings in two cases; Thomas v. Tanzania and the African Commission on Human and Peoples’ Rights v. Kenya. In Thomas v. Tanzania, the Court heard arguments from the Applicant challenging his arrest and conviction for armed robbery with violence, arguing that the Tanzanian courts lacked jurisdiction since the incident occurred in Kenya, failed to prove his case beyond reasonable doubt, was not provided with a lawyer and not given the opportunity to present a rejoinder on appeal.

The African Commission on Human and Peoples’ Rights v. Kenya case is the first ’peoples’ case to be considered by the Court. It involves a claim by the Ogiek people of the Mau Forest in the Rift Valley, Kenya. The Ogiek 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 submit that their eviction will have far reaching consequences on the political, social and economic survival of their community. Specifically, they argue that the eviction notice violates Articles 1 (recognition of rights in the Charter), 2 (right to enjoyment of rights without distinction), 4 (right to life), and 17 (2) (freedom to take part in the cultural life community and 17  (3) (promotion and protection of morals and traditional values) of the Charter. My review of the case can be found here. Video from the public hearing of this case as well as other hearings can be found here.

Having heard arguments in March, the Court rendered judgement in the case of Konate v. Burkina Faso, finding unanimously in favour of the Applicant. The Court ruled that Burkina Faso had violated Article 9 of the Charter, Article 19 of the International Covenant on Civil and Political Rights and  Article 66(2)(c) of the ECOWAS Treaty, all relating to freedom of expression. The Court has ordered Burkina Faso to amend its legislation in order to make it compliant with the above articles and to report back to the Court within two years. The judgement in French is available here.

The Court also issued an advisory opinion pursuant to Article 4 of the Court’s Protocol, regarding the standing of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) before the Court, finding it “highly desirable” that ACERWC have access to the Court. A copy of the advisory opinion is not yet available on the Court’s website but a video of the delivery of the advisory opinion can be found here.

Conclusion

In conclusion, 2014 saw the Court make significant advancements. The Court’s two judgments, only the Court’s second and third ever, took strong positions on freedom of expression, particularly with regards the work of journalists. The Court also made its first reparations ruling, recognising the Court’s power to award damages. On a practical level, whilst it remains to be seen how effective the Court’s new legal aid scheme will be, its creation should receive a cautious welcome. However, with the welcome delivery of more judgements, the Mtikila reparations ruling highlights the issues that the Court will face in this new era of compliance. How the Court handles Tanzania’s apparent failure to recognise its findings will likely set a strong precedent for cases decided in 2014 and due for report in 2015. In addition, and perhaps most important for the future success of the Court, the Court remains hamstrung by access issues. Still, only seven of 54 African Union members allow individuals and NGOs to bring cases directly before the Court. If the Court is to achieve its aim of becoming a truly continental human rights court this number simply must increase in 2015.

 

 

Yesterday, 10th December was Human Rights Day. It seemed appropriate to choose this day to undertake a roll call of each African Union member state who currently does not allow individuals and NGOs direct access to the Court. (By direct access I mean that individuals or NGOs can file cases themselves before the Court)

So, if you follow The ACtHPR Monitor on twitter you will have seen 47 tweets from me (and if you do not, please consider doing so @acthpr_monitor).

Why do this? Well, I fear that individual countries often get lost in the debate on access (or lack of) to the Court. At The ACtHPR Monitor I often write, discuss and tweet the facts on access: there are 54 African Union member states, of which only seven allow their citizens to take their cases to the Court, about 12 %. This number is unacceptably low and must increase if the Court is to achieve its aim of being a truly continental human rights court. But within the numbers we can lose sight of the individual countries.

So, in a simple exercise I decided to break the numbers down and post a tweet for each country separately; recognizing that for each of those 47 countries not allowing its citizens access to the Court there are many individuals and NGOs affected.

Yes, it was a lot tweets for one day, but I think it was a worthwhile exercise to demonstrate just how far there is to go to achieve universal access to the Court.

We will do the same next year- here’s hoping we have a lot less tweeting to do!

Following on from the Court’s sensitization visit in Addis Ababa, Ethiopia last week, this week the Court begins its 35th Ordinary Session also in Addis Ababa.

During this session the Court will hear two applications. From tomorrow to 28 November, the Court will hear arguments in African Commission on Human and Peoples’ Rights v. the Republic of Kenya and from 3 to 4 December it will hear Alex Thomas v. Tanzania.

I wanted to highlight the former case, the Commission v. Kenya, for summary and a little analysis.

The very fact that the Court is the African Court on Human and Peoples’ Rights has raised hope that the Court has the potential of the Court to hear these kind of cases. This case is the first ‘peoples’ case to be considered by the Court.

In summary, the case involves a claim by the Ogiek people of the Mau Forest in the Rift Valley, Kenya. They 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.

Continue reading Once bitten, twice shy? The Commission v. Kenya

Next week the Court will conduct its latest ‘sensitization visit’, going to Ethiopia from 19 to 20 November.

As the Court’s press release explains, on the 19th the Court will hold meetings with Ethiopian government officials, as well as senior judicial figures. On the 20th the Court will hold a half-day seminar with NGOs, the Ethiopian Bar Council and other civil society organizations.

According the press release the objective of the visit is to raise public awareness of the Court and encourage the ratification of the Protocol and the deposit of the Special Declaration under Article 34(6) of the Protocol which allows individuals and NGOs direct access to the Court.

Its first worth noting, as stated in the Court’s press release, that Ethiopia has  yet to ratify the Protocol, effectively barring the Court from handling any cases involving Ethiopia let alone allowing its citizens and NGOs to make direct applications to the Court. (Just to remind everyone, only seven countries currently allow their citizens and NGOs with observer status to make direct applications to the Court- to find out more please visit The ACtHPR Monitor Country Tracker).

Could this visit have something to do with the potentially embarrassing situation of Addis Ababa being the African Union’s administrative center while Ethiopia itself has failed to ratify the African Union’s flagship human rights court? It is also worth noting that as a party to the African Charter on Human and Peoples’ Rights, under Article 25 of the Charter Ethiopia has a duty to promote and educate on the human rights, which must logically extend to the promotion and education of the Court which protects these rights.

These sensitization visits should not be confused with the Court’s annual sitting outside of its base in Arusha, Tanzania pursuant to Article 25 of the Protocol. On the occasions where the Court sits outside Arusha under Article 25 of the Protocol it is considering applications as it would in a session in Arusha. On this visit the Court will not be in session; this is strictly meetings for the promotion of the Court.

How this visit progresses and what will come of it will be fascinating. Hopefully NGOs, human rights organizations and other interested parties can make full use of the half-day seminar on 20th November to push for Ethiopia’s ratification of both the Protocol and Special Declaration.

The ACtHPR Monitor would love to hear from participants of the visit. If you plan on attending either day of the Court’s visit and would like to give feedback on  this website please contact us via Twitter @acthpr_monitor.

It’s been a busy few days at the African Court on Human and People’s Rights with the appointment of a new President and Vice-President and the swearing-in of three new Judges. Continue reading Changes at the Court: a new President, Vice-President and three new Judges

A. Background

This is a summary for the reparations ruling (“the Ruling”) following on from Reverend Christopher R. Mtikila’s successful claim against Tanzania.

The case centred on Tanzanian laws which require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, thus barring independent candidates. On 14 June 2013 the Court delivered its judgement (“the Judgement”) and unanimously found that Tanzania’s ban on independent candidates had violated Reverend Mtikila’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated Mtikila’s Article 2 and 3 rights. (For a full summary of the case please see my posting “A watershed case: Mtikila and others v. Tanzania, 28 February 2014 below).

At the conclusion of the Judgement the Court granted Mtikila leave to file submissions on his request for reparations. On 13 June 2014 following written submissions from Mtikila and Tanzania the Court rendered the Ruling. The Ruling is the first time the Court has considered the issue of reparations.

Continue reading Mtikila v. Tanzania: Ruling on reparations

Last month the African Union met in Malabo, Equatorial Guinea where it adopted the ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.’ (Incidentally, Equatorial Guinea has not signed the Protocol establishing the Court)

This Protocol has since been the subject of much comment and debate, in particular for its inclusion of an amendment to Article 46A bis of the Protocol on the Statute of the Court which imparts immunity against criminal charges for acting heads of state or government and other senior state officials. For more comment on this particular amendment see Paul Bradfield’s piece here, and Mark Kersten’s piece here.

Today Legal Counsel for the African Union Vincent Nmehielle gave a press conference on the amendments. Despite Professor Nmehielle’s best efforts to discuss other sections of the Protocol including the addition of several crimes not found under the Rome Statute (for example piracy and corruption), almost all the questions were about the immunity provision. His comments on immunity for leaders can be found approximately 26 minutes in to the conference, whilst his comments on immunity for ‘others’ starts around 30 minutes 50 seconds.

Also worth noting are Professor Nmehielle’s comments on the timeline for the creation of the new court, including its ambitious proposed  structure of a “general” chamber handling trade issues and conflict between states, a “human rights chamber” handling work similar to the current Court and the “criminal chamber” handling international criminal law trials. These comments can be found around 32 minutes in.

The video of the press conference can be seen here. Please note that the conference does not start until about 6 minutes in to the video so best to skip forward.

http://summits.au.int/en/livestream?q=livestream

This piece focuses on the Court’s power to transfer cases to the Commission including an analysis of the four cases the Court has transferred so far and the future of the Court’s power to transfer.

The power to transfer a case is found in Article 6 (3) of the Protocol which reads “The Court may consider cases or transfer them to the Commission.” Continue reading The Court’s power to transfer cases to the Commission

 January 2016 update: I hope you enjoy this piece. My article on the Mtikila v Tanzania case has now been published in the African Human Rights Law Journal. You can access the article here.  Also be sure to read the follow up post on the Mtikila reparations judgement here. Enjoy the post! OW

A. Introduction

The following is a case summary of the majority opinion in Mtikila and others v. Tanzania. The judgement was rendered on 14 June 2013 and concerns two applicants (collectively “Applicants”): the first, two Tanzanian NGOs, the Tanganyika Law Society and Human Rights Centre(“NGOs”), the second Reverend Christopher R. Mtikila (“Mtikila”) with broadly the same case; that current Tanzanian election laws, prohibiting independent candidates from  running for public office were in breach of various articles of the African Charter on Human and Peoples’ Rights (“the Charter”), the International Convention of Civil and Political Rights (“ICCPR”), the Universal Declaration on Human Rights (“UDHR”) and the rule of law. Continue reading A watershed case: Mtikila and others v. Tanzania