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Many readers will be aware of the Angolan journalist Rafael Marques de Morais who faces criminal defamation charges in Angola for publishing the book Blood Diamonds: Corruption and Torture in Angola in which he alleges high levels of corruption in the diamond mining business.  Rafael Marques de Morais plight has prompted me to write this  post examining how the recent Konaté judgement may help those facing trial for criminal defamation in Africa.

At the outset it should be noted that I have no involvement in Rafael Marques de Morais’s case, so I base my knowledge on the information publicly available through the usual channels. I cannot comment on Angolan legal procedure or the strength of evidence. This post limits itself to the question of how a judgement of the African Court on Human and Peoples Rights that finds one state parties’ legislation, in this criminal defamation, contrary to the African Charter can be used within the African human rights system by a citizen from a different state party who faces similar charges.

To recap, in Konaté v Burkina Faso the Court considered the case of Issa Lohé Konaté, the editor of the Burkina Faso based weekly L’Ouragan, who was arrested, tried and convicted of defaming a local state prosecutor. Finding unanimously in favour of Konaté, 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 did not find violation of the Charter, ICCPR or ECOWAS Treaty for the imposition of custodial sentences for criminal defamation per se but was  critical of the use of custodial sentences out of proportion to an offence and suggested such sentences could violate Charter rights. The Court ordered Burkina Faso to amend its legislation in order to comply with the above articles and to report back to the Court within two years.

Given that, as I understand it, Rafael Marques de Morais faces similar criminal defamation charges what use is the Konaté case?

Firstly, does the Konaté judgement bind Angola? If it does then Angola would be required to remove or at least substantially alter its criminal defamation legislation to comply with the judgement and therefore lessen or possibly remove Rafael Marques de Morais’s charges of criminal defamation. Article 30 of the Court’s Protocol which deals with execution of judgements states:

The States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.

Rule 61 (5) of the Rules of the Court states:

The Judgment of the Court shall be binding on the parties

Angola has not signed the Court Protocol, therefore it does not pass the first test of being a “state party to the present protocol” as required under Article 30 of the Protocol. Even in the event that it was, on a plain reading of Article 30 and Rule 61(5) only parties in the case shall be bound by the judgement of the Court. Therefore, Burkina Faso is bound by the Konaté judgement but no other state parties are bound.

However, even though Angola is not bound by the Konaté judgement it still remains a powerful tool. First, domestically I would suggest the precedent set by Konaté provides a strong foundation for a challenge to the existence of criminal defamation laws on the statute books, given Angola is a party to the African Charter. As I note above, I have no knowledge of the Angolan legal system so cannot comment further on how this challenge would best proceed, apart from the obvious that since Konaté makes it clear that criminal defamation laws violate freedom of expression rights, any domestic court would need to get creative in distancing itself from its obvious application domestically.

The Konaté judgment may be even more powerful at the continental level. As mentioned above, since Angola has not signed the Court Protocol the Court does not enjoy jurisdiction to hear cases relating to Angola. Angola is however a signatory to the African Charter on Human and Peoples’ Rights. Anyone may bring a complaint to the attention of the African Commission on Human and Peoples’ Rights alleging that a signatory to the African Charter has violated one or more of the rights contained therein, therefore opening the way for an application by any Angolan citizen to the Commission.

The question then is what weight or influence does a Court judgement have on the Commission? The Rules of the Commission and the Court make it plain that the two bodies are to complement each other, for example Rule 114 of the Commission Rules. Certainly the Court uses Commission decisions as jurisprudence in assessing its cases, for example the Mtikila judgement was littered with references to Commission decisions. I would therefore suggest that in the reverse the Commission would take the Konaté judgement as a strong precedent to potentially find Angola in violation of Charter rights for the use of criminal defamation charges to quash freedom of expression. Taking this a step further, the Commission has the power under Rule 118(4) of the Commission Rules to seize the Court at any stage of a case. Such a referral may well cause a jurisdictional headache since Angola has not signed the Court Protocol, but if the Commission could be persuaded to refer the case to the Court, the Court would then be seized of a matter which it had already made findings in a similar case.

In conclusion, obviously the best result for Rafael Marques de Morais is that the charges are dropped or he is acquitted at trial before the need to take matters further. If the case does progress though, does the Konaté judgment come to the rescue? As is often the case the answer is yes and no. On my reading of the relevant instruments the judgement is not binding on Angola. Domestically, it may well provide a strong foundation for a challenge. On the continental level, Angolans are barred from bringing cases to the Court but are able to bring complaints to the Commission. At the Commission level I suggest the Konaté judgment would be a strong precedent and would be considered favorably.

You can follow Rafael Marques de Morais on twitter here. For more on the story see the Guardian piece here.

The following is cross-posted on the excellent piracy law blog Communis Hostis Omnium founded by my good friend Roger Phillips and now co-edited by Milena Sterio and Michael Scharf. My thanks in particular go to Professor Sterio for her review and edits.

Following on from my recent post on The ACtHPR Monitor on the future African Court on Justice and Human Rights (ACtJHR), this post explores at further length one of the other 14 crimes which will fall under the jurisdiction of the ACtJHR – piracy.

As a brief introduction and recap, the African Court on Justice and Human Rights is a proposed African Union backed court. The ACttJHR has yet to become operational, requiring ratification from at least 15 African Union member states. Once operational, the ACtJHR will consist of three sections; a general affairs section dealing with commercial and civil matters, a human rights section that will replace the current African Court on Human and Peoples’ Rights, and an international criminal section which will have an ambitious jurisdiction over 14 international crimes including piracy as well as genocide, crimes against humanity and war crimes.

That piracy is one of the ACtJHR’s 14 crimes is worth noting in and of itself. Since the court will have the backing of at least 15 AU member states it can be said to be a truly international, albeit continental, court and therefore can safely be referred to as the first international court with the jurisdiction to try piracy cases (the International Criminal Court (ICC) does not have jurisdiction over piracy). Until now the international element of piracy cases has been often seen as international cooperation in manning the seas, but it has been national jurisdictions- most notably in the Seychelles, Kenya and Mauritius- which have born the burden of prosecuting the cases, albeit with financial and professional help from other countries. The inclusion of piracy in the ACtJHR Statutes moves the cases themselves into the international arena and has the potential to bring piracy into a truly international setting, thus alleviating the burden from individual countries to prosecute these cases.

As to the law itself, Article 28F of the ACtJHR’s draft Statute defines piracy as follows:

a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or a private aircraft, and directed:

i. on the high seas, against another boat, ship or aircraft, or against persons or   property on board such boat, ship or aircraft;

ii. against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State.

b) any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft;

c) any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).

This definition is an exact replication of Article 101 of the United Nations Convention on the Law of the Sea with the addition of “boat” alongside ship or aircraft throughout. This is unsurprising given the Convention’s almost universal position as reflecting customary international law on piracy.

Article 28N of the ACtJHR Statute also sets out the modes of liability through which accused can be commit piracy, as follows:

 

An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute:

 

1. Aids or abets the commission of any of the offences set forth in the present Statute;
2. Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;
3. Is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute;
4. Attempts to commit any of the offences set forth in the present Statute.

 

These modes of liability apply to all 14 crimes under the Court’s jurisdiction. It is interesting to note how some of these modes of liability mesh with the piracy definition: for example, Article 28F(c) refers to inciting piracy as a crime whereas Article 28N(i) refers to inciting as a mode of liability.

Despite these small issues regarding the relationship between the definition of piracy and modes of liability, the ACtJHR Statute raises many more practical questions, not least of which is whether this court can really work?

Regarding jurisdiction, under Article 46F of the ACtJHR Statute, the ACtJHR will be able to exercise its jurisdiction over piracy cases where:

 

1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party;
2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Assembly of Heads of State and Government of the African Union or the Peace and Security Council of the African Union.
3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 46G.

Therefore, even if countries with prevalent piracy issues such as Somalia are not a state party to the ACtHJR the Court will be able to exercise jurisdiction to hear the case if it is referred to by another state party, which raises the possibility of countries directly affected by piracy, for example Kenya or Tanzania, referring piracy matters to the Court.

An interesting issue will be the capture of alleged pirates irrespective of who referred a piracy matter to the Court. Whilst there is general agreement that universal jurisdiction allows third party states to capture pirates who may be nationals of non-ACtJHR member states, it will be interesting to see how the interplay works between their capture and the handing over to the ACtHJR, since this process may result in several countries being involved. For example, piracy off the coast of Tanzania referred to the ACtJHR by Kenya could lead to the capture of Somali alleged pirates by the British Navy who could then be transferred to the ACtJHR for trial.

Presumably, a memorandum of agreement or understanding will need to be drafted between those authorities patrolling the seas around Africa who are not member states of the ACtJHR, for example the British Navy, and the ACtJHR. Such a memorandum would need to specify that patrolling authorities which are not member states of the ACtJHR will hand over into the custody of the ACtJHR persons captured allegedly committing piracy once a matter is referred to the Court. The transfer of individuals would be the same as suspects for genocide, crimes against humanity or other crimes. That the suspects would be detained by third party states also would not be dissimilar to an accused being detained by a third party (for example a Rwandan being detained in Kenya)

The power of these patrols to carry out arrests would be unlikely to attract debate since it is long recognized that piracy enjoys universal jurisdiction. However, capture raises the issue of indictments. Under the ICTR, ICTY, ECCC, SCSL and ICC, indictments are issued against named persons, almost always not in the custody of the court. With piracy cases, however, it is far less likely that such named person indictments can be issued unless for particularly notorious leaders or land-based backers. Instead, the bulk of piracy arrests and transfers to the ACtJHR are likely to be those picked up on the high seas by patrols who find them. These alleged pirates will not be previously known to the authorities and will therefore not have named indictments issued against them unless a blanket indictment was somehow issued which would be fraught with additional legal issues.

The lack of indictment is not necessarily a problem- people are arrested and detained for criminal offences at the national level everyday without outstanding indictments- but it is likely to be an administrative headache to process new indictments and still uphold the suspect’s rights to a first appearance without delay. This is to say nothing of the fact that the process of handling suspects without outstanding indictments is fundamentally different to that of suspects wanted for crimes such as genocide and crimes against humanity where a prosecutor often spends considerable time crafting indictments based on research and investigations. The difference between these indictments means that piracy prosecutions even within a international court such as the ACtJHR are likely to have more in common with a domestic robbery case than that of a genocide case. On the positive side, this could well mean a more efficient process since indictments would be relatively short, containing small numbers of charges and therefore lead to shorter trials, with smaller amounts of evidence and fewer witnesses required. On the negative side, these cases could be slowed down by a prosecutor having to put together a case only once an alleged pirate has been captured. This process of only starting investigations once a suspect is detained has the potential to massively slow down the whole judicial process and may well run counter to the prosecution office’s processes for trying crimes such as genocide and crimes against humanity.

In reality, this could mean the ACtJHR international criminal law section will effectively contain two strands- a fast track/small cases chamber to deal with matters such as piracy and a second strand which would deal with larger cases of genocide, crimes against humanity, war crimes etc.

In addition, some of the long held problems of prosecuting piracy at an international level may well come to the fore once the ACtJHR is up and running, namely the unwillingness of some countries to financially back prosecutions that have a large commercial element. Without wishing in any way to diminish the undoubtedly harrowing ordeals hostages are subjected to, there remains the fact that the victims of piracy include wealthy shipping and cargo companies- not the type of victims which usually illicit much sympathy from the international community. The issue of victims also leads to the issue of prosecuting piracy cases at the international level at all. As is often stated, the prosecution of crimes such as genocide and crime against humanity is more than just the prosecution of individuals but also the international community’s rejection of policies or ideals which lead to the crimes committed, as well as the international community’s condemnation of crimes it considers unacceptable and abhorrent. When it comes to piracy, there are no such policies or ideals- piracy occurs for financial reasons. Although it is recognised that the money may be financing an ideal or policy equally as abhorrent as those prosecuted through genocide or crimes against humanity, the fact remains that piracy is at its core a financial crime. This difference has the practical effect that different levels of perpetrators are likely to be tried for piracy matters compared to other international criminal law prosecutions. For example, where the International Criminal Tribunal for Rwanda set out to prosecute those at the very top of the Rwandan government and army, the likelihood is that those piracy suspects captured at sea are not the very top of the piracy trade, but rather the “tools” used to carry it out- the very people international tribunals have not sought to prosecute.

Above are just some of the issues which will likely emerge once the ACtJHR is operational and begins to consider piracy cases. What is not in dispute is that piracy in the modern age has been a significant problem for Africa. It therefore seems logical that the ACtJHR will be the first international court to have jurisdiction over piracy cases. What remains to be seen is whether the Court will succeed in providing an African solution to this African problem.

 

The recent decision by the Extraordinary African Chambers (ExAC) to authorise the trial of the former President of Chad Hissène Habré on charges of crimes against humanity, war crimes and torture is a fascinating and potentially momentous moment for African criminal justice and human rights.

From the perspective of the African Court on Human and Peoples’ Rights, it brings into sharp relief the pending establishment of the African Court of Justice and Human Rights (ACtJHR) and especially its proposed international criminal law chamber.

As to whether this is a dress rehearsal for the ACtJHR, there are certainly similarities between the ExAC and the ACtJHR. From a practical standpoint, the ExAC is funded and administered in large part by the African Union who will also run the ACtJHR (ExAC Agreement, Article 4). ExAC judges and staff will enjoy privileges and  immunities similar to those which UN and AU staff are entitled and which ACtJHR staff will also  enjoy, giving the ExAC the feel of an international tribunal (ExAC Agreement, Article 6 & ACtJHR Statute, Article 15). With regards the law,  the ExAC has jurisdiction to try cases of genocide, war crimes, crimes against humanity and torture (ExAC Statute, Articles 4, 5, 6, 7, 8). These crimes will also fall within the jurisdiction of the international criminal law chamber of the ACtJHR, although an important distinction should be noted that whilst torture is a crime against humanity and war crime under the ACtJHR Statute, it does not enjoy status as a separate crime as found under the ExAC Statute (Amended ACtJHR Statute, Article 28A & ExAC Statute, Article 8.) .

The two tribunals have a number of other differences too. For example, the ExAC bench will consist of a majority of Senegalese judges. The ExAC will have an international flavour since the President of the Trial and Appeals Chamber will be judges from another AU member state (ExAC Statute, Article 3 (3) & (4)), but its roots are squarely within the Senegalese judiciary. The ACtHJR however will likely have three judges from three different AU countries (Article 10(4) of the ACtJHR Draft Statute does not explicitly state the Judges should be from different countries but consistency with the current African Court on Human and Peoples Rights and other international tribunals would strongly suggest this is a case of vague drafting rather than anything else).

In addition, the ACtJHR will be a permanent court whereas the ExAC has a limited remit. The ACtJHR also has an ambitious roster of 14 crimes within its jurisdiction, whereas the ExAC has just the four mentioned above. The structures of the tribunals also appear slightly different with the international criminal law chamber of the ACtJHR consisting of a pre-trial, trial and appeals chambers (Amended ACtHJR Statute, Article 16(2)) whereas the ExAC consists of pre-trial, indictment, trial and appeals chambers (ExAC Statute, Article 2).

Both the ExAC Statue and Amended ACtJHR Statute contain definitions of the crimes they have in common- genocide, crimes against humanity, war crimes and torture. With regards the definition of genocide, both tribunals have almost identical definitions save for the interesting absence of “acts of rape or any other form of sexual violence” from the ExAC Statute (Amended ACtJHR Statute, Article 28B & ExAC Statute Article 5). Although it should be noted that Habré will not face genocide charges at the ExAC.

As to the definition of crimes against humanity, the ACtJHR Statute is more expansive, including”enterprise” alongside “widespread or systematic attack” to read “widespread systematic attack or enterprise” and adding the requirement of knowledge of the attack or enterprise (Amended ACtJHR Statute, Article 28C). Both include murder, extermination, rape or sexual violence, apartheid, and enslavement as crimes against humanity. The ACtJHR Statute is however more extensive including forcible transfer, enforced disappearance, imprisonment in violation of “fundamental rules of international law”, and other inhumane acts (Amended ACtJHR Statute, Article 28C.1), whilst also providing detailed explanations of most terms found in the Crimes Against Humanity section (Amended ACtJHR Statute, Article 28C.2). The ExAC Statute does however contain elements not found in the ACtJHR Statute including summary executions, kidnapping and enforced disappearance (ExAC Statute, Article 6(f)).

As to war crimes, the ExAC’s jurisdiction is a relatively scaled back list including murder, torture, destruction of property, compelling prisoners of war to serve in armed forces, deprivation of fair trial, unlawful deportation or transfer and taking of hostages and Article 3 violations including violence to life, collective punishments, taking of hostages, terrorism, and pillage. Whilst the ACtJHR Statute contains the above crimes but expands its area of jurisdiction to something similar to that found under Article 8 of the ICC Rome Statute (Amended ACtJHR Statute, Article 28D). As mentioned above, interestingly the ExAC Statute makes torture a separate crime whose definition follows closely that found in Article 1 of the Convention Against Torture (ExAC Statute, Article 8).

(Just as a side note on differences, the vexed question of immunities is not particularly relevant here since Habré is a former head of state and the immunities provision found in Article 46A of the Amended ACtJHR Statute pertains only to serving heads of state or other senior state officials.)

So on balance these two tribunals have some similarities but also significant differences. However the reality is that with the ExAC we have an African Union backed international criminal law chamber containing an international bench trying an accused of crimes against humanity, war crimes and torture in Africa. Given the similarities to what the AU hopes to achieve with the ACtJHR it is difficult to imagine that the Habré trial will not create some sort of precedent, good or bad, for the ACtJHR and will be seen by many as a test case on whether the ACtJHR can succeed.

Of course the ACtJHR is still some ways off, still requiring 15 ratifications to be created and then some time to actually get set up. No doubt there will be difficulties with the ExAC but if ultimately its Habré trial is seen as transparent, compliant with international human rights standards (particularly for the accused) and completed within a reasonable time frame it will serve as a strong and encouraging example to the international community- including perhaps the ICC from whom the AU hope to wrestle some measure of control- that the international criminal law chamber of the ACtJHR is a viable answer to prosecuting international crimes that occur in Africa. As to whether this happens- we have to wait and see.

For more on this issue also have a look at Vera Padberg’s piece at iLawyer. See also the report on the BBC and The Economist.

You can find the ExAC agreement and statute referred to in this post within the Agreement between Senegal and the African Union for the establishment of the ExAC here and the proposed ACtJHR Statute here and June 2014 amended statute here.

 

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