Kira has been supporting Oliver this summer, and as part of her internship contributed this great post for the Monitor! Kira Benton is a candidate for the degree of Doctor of Jurisprudence (J.D.) at Vanderbilt University Law School and holds undergraduate degrees in Anthropology and Economics from the University of South Florida. She received the Ones W. Polk II International Studies Stipend to help support her internship at the Monitor this summer.
Introduction
On 28 March 2019, the Court released its judgement in the case of Dexter Eddie Johnson v. Republic of Ghana, including a key finding on admissibility.The case is notable for several reasons. This was the first case against Ghana decided before the African Court of Human and Peoples’ Rights (“African Court”) and was the first time that an application had asked the African Court to consider a challenge to the mandatory application of the death penalty. Unfortunately, the African Court’s jurisprudence on the mandatory death penalty remains unestablished, as the African Court did not reach a decision on the merits of the case. With two judges dissenting, the African Court held that the case was inadmissible as Mr. Johnson had already brought his case to the United Nations Human Rights Committee (UNHRC) and despite Ghana’s failure to comply with the UNHRC’s decision, which found that the mandatory application of the death penalty constituted an arbitrary deprivation of life in violation of Article 6(1) of the ICCPR.
The Facts
The Applicant in this case was Dexter Eddie Johnson, a dual citizen of Ghana and the United Kingdom who is currently on death row in Ghana. Mr. Johnson was sentenced to death following his conviction for the murder of an American citizen in the Greater Accra region of Ghana in May 2004. Represented by counsel from The Death Penalty Project, Mr. Johnson filed his application to the African Court on 26 May 2017.
In his application, Mr. Johnson argued that the mandatory imposition of the death sentence for murder, without any consideration of the nature of the offence or the perpetrator, violated his right to life under Article 4 of the African Charter on Human and Peoples’ Rights (“African Charter”). He further argued that the imposition of the death penalty without any allowance for judicial discretion at the trial or appellate level violated the prohibition of cruel, inhuman or degrading treatment or punishment under Article 5 of the African Charter and the right to a fair trial under Article 7 of the African Charter, and thus also violated Article 1 of the African Charter. He also submitted that Ghana had violated his rights under the ICCPR, namely the right to life under Article 6(1) of the ICCPR, the prohibition on inhuman punishment under Article 7 of the ICCPR, the right to a fair trial under Article 14(1) and the right to a review of a sentence under Article 14(5) of the ICCPR, and the Universal Declaration of Human Rights (UDHR), namely the right to life under Article 3 of the UDHR and the prohibition of cruel, inhuman or degrading treatment or punishment under Article 5 of the UDHR. While Ghana has implemented a de facto moratorium on the death penalty since 1993, Mr. Johnson submitted this did not have a bearing on his application.
Provisional Measures
Mr. Johnson’s application requested that provisional measures be issued ordering that (i) Ghana not execute Mr. Johnson while his application remained pending and (ii) Ghana should report to the Court within 30 days of the order on its implementation. The African Court issued such measures on 28 September 2017, extending Ghana’s response time to 60 days. The African Court followed its previous case law on provisional measures but noting that to order provisional measures, it needed to satisfy itself prima faciethat it had jurisdiction, which it did by noting that the case concerned both articles of the African Charter and of other relevant human rights instruments, namely the ICCPR and UDHR, and that Ghana is a party to the African Charter, the Protocol to the African Charter on Human and Peoples’ Rights (“the Protocol”) and the ICCPR and had deposited an instrument in 2011 allowing the Court to receive cases from individuals and NGOs.
The African Court also discussed the standard set forth in Article 27(2) of the Protocol and Rule 51(1) of the Rules of Court (“the Rules”) for the issue of provisional measures, noting that it has the power to order provisional measures “in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons. . .” and “. . .which it deems necessary to adopt in the interest of the parties or of justice.” (See Provisional Measures Decision, para.14). The African Court stated that, despite Ghana’s de facto moratorium on the death penalty, the position of Mr. Johnson on death row created a situation of extreme gravity and urgency presenting a risk of irreparable harm to Mr. Johnson, and thus found that the situation required provisional measures pending a decision on the application. Four judges dissented in part from the order in two separate opinions, both submitting that the 60-day response period which Ghana had been allowed was too long and showed inconsistency with other orders for provisional measures granted by the African Court.
The Judgement
1. Jurisdiction
In its 28 March 2019 judgement, the African Court first considered the issue of jurisdiction. The African Court based its material jurisdiction on the application’s invocation of the African Charter, ICCPR and UDHR. It found that it had personal jurisdiction based on Ghana’s status as a State Party to the Protocol and Article 34(6) declaration allowing individuals to bring cases to the Court and referenced Norbert Zongo v. Burkina Faso (discussed here) to hold that it had temporal jurisdiction on the basis that the alleged violations are continuous. In other words, although Mr. Johnson was convicted and sentenced prior to Ghana’s deposition of the Article 34(6) Additional Declaration, the ongoing nature of the harm allowed the African Court to hear the case. The African Court found that it had territorial jurisdiction because the alleged violations took place in Ghana, a State Party to the Protocol. Finding that it had material, personal, temporal and territorial jurisdiction, the African Court held that it had jurisdiction to hear the case.
2. Admissibility
Ghana did not raise any objections to the admissibility of the application, but the African Court, suo motu, undertook a discussion of the application’s admissibility. The African Court accepted that the application met the admissibility requirements under Article 56(1) to 56(6) of the African Charter, as it: (i) disclosed the applicant’s identity, (ii) asked the African Court to determine whether Ghana was complying with its obligations relating to the applicant under the African Charter, (iii) was not written in disparaging language, (iv) was not based exclusively on information disseminated through the media, (v) was sent after the applicant had exhausted local remedies, as Mr. Johnson’s appeal had been dismissed by Supreme Court and (vi) was filed within a reasonable time after the exhaustion of local remedies.
After dismissing most of the grounds on which challenges to admissibility may be brought, the African Court turned to focus on the provisions of Article 56(7) of the African Charter, which states that applications must “not deal with cases which have been settled . . . in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.” (Judgement, para 46). The Court identified three conditions which must all be “convergen[t]” for a case to be considered “settled”: (i) the identity of the parties, (ii) the identity of the applications or their supplementary or alternative nature or whether the case flows from a request made in the initial case, and (iii) the existence of a first decision on the merits. (Judgement, para 48).
Walking through this framework, the African Court noted that it was not in dispute that Mr. Johnson had filed both the application in the present case and the communication against Ghana before the UNHRC. It also noted that although the communication to the UNHRC only invoked alleged violations of the ICCPR and not provisions of the African Charter, the Charter of the United Nations, or the Constitutive Act of the African Union, the principles which were alleged to have been violated were identical to the provisions of the African Charter which Mr. Johnson had alleged that Ghana violated in the present case. It also found that, although Ghana had not implemented the UNHRC’s decision, the African Court was not precluded from finding that the matter had been settled, as the crucial factor was that there had been a decision by a body “legally mandated to consider the dispute at an international level.” (Judgement, para 51). Therefore, it held that the matter had been “settled” by the UNHRC as set out in Article 56(7) of the African Charter.
The African Court went on to stress that the non-binding nature and non-implementation of the UNHRC’s decision was not relevant to admissibility, emphasizing that the African Court had not dealt with cases pending before or settled by the African Commission (“the Commission”), despite the non-binding nature of the Commission’s decisions. It also noted that Mr. Johnson had chosen to file his case before the UNHRC, not the African Court, a year after Ghana’s Article 34(6) Declaration, and stressed the need to preserve the principle of non bis in idem, which prevents states from being asked to account more than once for the same alleged violation of rights. Because of this rationale, the African Court found the application inadmissible, with eight judges voting for a finding of inadmissibility and two voting against.
3. Dissenting Opinion of Judge Rafaâ Ben Achour
Appended to the main judgement was the dissenting opinion of Judge Rafaâ Ben Achour. Judge Achour offered two explanations for his dissenting vote: (i) that the African Court should have declared the application inadmissible for failure to file within a reasonable time after the exhaustion of local remedies and (ii) that, if the African Court held that such a timeframe was in fact reasonable, the African Court should have declared the application admissible under Article 56(7) as the UNHRC’s decision did not settle the case.
To support his first rationale, Judge Achour discussed the need for a requirement of reasonable time in filing as a safeguard and referenced the practices of the Inter-American Court of Human Rights and European Court of Human Rights, both of which are restricted to a six-month deadline from the date of exhaustion of local remedies. In contrast, the Charter has left this deadline to the discretion of the Commission and the Court, which are to consider the circumstances of each case in determining whether it has been filed in a reasonable time. Judge Achour criticized the Court’s quick acceptance that this requirement had been met, which had been contained in the same paragraph in which it had concluded that the remainder of the factors for admissibility, save Article 56(7), had been met, with no justification given for reaching the conclusion.
Judge Achour referred to other cases from the African Court’s settled jurisprudence which contained shorter delays in respect to reasonable time, submitting that in those cases the African Court had analyzed the reasons for the applicants’ delay. Referencing the case of Warema Wanganko Werema, where the African Court considered five years and five months to be a reasonable time frame, Judge Achour submitted that the African Court had been flexible in the past, but that flexibility had always been tied to the personal circumstances of the applicants, including considerations of incarceration, indigence, illiteracy and attempts to access extraordinary remedies. In Warema, the African Court considered the applicants’ attempt to utilize the review procedure of the Tanzanian Court of Appeal and determined that they had acted in a reasonable time by filing about six months after the dismissal of the review proceedings. Judge Achour then analyzed the circumstances of Mr. Johnson’s case and concluded that his circumstances did not justify the same flexibility, discussing his actions in the six years following the exhaustion of local remedies (requesting a presidential pardon and applying to the UNHRC). Judge Achour also submitted that extending the requirement of filing within a reasonable time to include a case filed six years and two months after the exhaustion of local remedies would make the requirement meaningless and discourage States from making Article 34(6) declarations.
Though Judge Achour was clear in his dissent that he would have found the application inadmissible for failure to file in a reasonable time, he then moved to a discussion of the “settlement” of the case by the UNHRC, which he submitted should not bar its admissibility. He distinguished Mr. Johnson’s case from Gombert v. Cote d’Ivoire, which the majority had cited in its majority opinion. In Gombert, the African Court found that Mr. Gombert’s case was inadmissible as it had been settled by the Community Court of Justice of the Economic Community of West African States (ECOWAS). Judge Achour focused on the distinction between the ECOWAS Court, which is a sub-regional judicial body which issues binding decisions to member states, and the UNHRC, which is a quasi-judicial body which does not issue binding decisions but rather “Views”, noting the “diplomatic and non-authoritative language” used by the Committee in “request[ing]” State action. (Dissenting Opinion, para 23). Based on this distinction, Judge Achour stated that the case had not been settled as it had not created an obligation for Ghana, and that if the African Court held the application had been filed in a reasonable time, it should have found the case admissible and considered the merits of the case.
4. Separate Opinion of Judge Blaise Tchikaya
In addition to Judge Achour, Judge Tchikaya also rendered a separate opinion. Judge Tchikaya’s separate opinion dissented completely from the holding of the majority, stating that an exception to the principle of non bis in idem could have been made and that the decision was a setback for the development of the law.
Judge Tchikaya based his finding that an exception to the principle of non bis in idem should have been made on the claim that the African Court’s use of the principle was inappropriate and should have focused on the known exceptions to the principle instead. Focusing heavily on the need for the African Court to work for the protection of human rights, which he submitted the decision in Mr. Johnson’s case did not do, he also stated that Ghana’s actions violated multiple articles of the ICCPR, including Mr. Johnson’s right to life. Judge Tchikaya discussed A.B. v. Norway, a European Court of Human Rights case which held that when one decision has acquired the force of res judicata, an individual should be shielded from proceedings on the same matter but not from foreseeable parallel (i.e. both criminal and administrative) proceedings. Referencing the UNHRC decision in this case, which called for additional judicial proceedings, Judge Tchikaya submitted that this rationale should have applied to Mr. Johnson’s case.
Judge Tchikaya then moved to a discussion of three reasons for raising an exception to non bis in idemwhich he states could have been applied: (i) the application to the African Court was not an “identical case” to the case before the UNHRC, (ii) that an exception was necessitated by context and (iii) that Ghana should have been ordered to comply with international human rights norms. He submitted that the cases were not identical as the application in the instant case asked for the enforcement of the UNHRC’s views and reparations for Ghana’s failure to adopt them, and that the potential violation of the right to life, already decided by one international instrument to be occurring, should have prompted an urgency causing the African Court to find an exception to the non bis in idem principle. Furthermore, he stated that Ghana’s continued non-compliance with the views of the UNHRC should prompt the African Court to render a decision on the merits, continuing to distinguish Mr. Johnson’s case from the Gombertcase by emphasizing the urgency presented in Mr. Johnson’s case as it compares with the degree of seriousness presented by the sale of commercial property at issue in Gombert.
Conclusion and Analysis
As the first case against Ghana to be decided before the Africa Court and the first case challenging the mandatory application of the death penalty, Johnsonhad the potential to see the development of African Court jurisprudence including decisions on alleged violations of the ICCPR and non-compliance with the decisions of international human rights mechanisms such as the UNHRC. Unfortunately, the finding of inadmissibility will prevent this development, although it has provided clarification on the African Court’s interpretation of Article 56(7), which should provide some guidance to future applicants.
Receiving a decision on the merits in this case would likely have imposed an obligation on Ghana to abolish the mandatory death penalty (assuming the Court would have followed similar reasoning to the UNHRC), which could have helped to put pressure on States with similar practices. As Judge Tchikaya made clear, it could also have established a role for the African Court as a mechanism to seek enforcement of non-binding decisions from UNHRC and other bodies and even promoted African Court cooperation with UN human rights instruments. However, while the African Court issues binding decisions, it isn’t clear that a decision from the African Court on the merits of this case would have prompted action from Ghana. As the African Court has noted in its own reporting (discussed here and in Professor Rachel Murray’s recent post), implementation of decisions continues to vary by country. As Ghana has only been the subject of few decisions by the African Court, the extent to which they will implement the African Court’s judgements remains to be seen.
Judge Achour’s dissent raises interesting questions regarding possible limitations on the African Court’s flexibility on the interpretation of the “reasonable time” requirement. So far, the African Court has been extremely willing to take cases that have exceeded the six-month limit set by other regional human rights courts. In light of the relative nascence of the African Court and the difficulties faced by many applicants in approaching it, particularly indigence and incarceration, this flexibility has not been difficult to justify and, until Judge Achour’s dissent, had seemingly not been questioned. It will be interesting to see whether Judge Achour’s dissent predicts a change in practice or whether the African Court will continue to be relatively flexible with the “reasonable time” requirement.
It’s also important to view Johnsonin the larger scheme of work by organizations which are working for the abolition of the death penalty. Domestic work in countries such as Malawi and Kenya has led to the rejection of the mandatory death penalty, viewed by many as a first step toward total abolition of the death penalty. Ghana’s use of the mandatory death penalty has seen specific criticism due to poor detention conditions for death row prisoners and low levels of access to legal aid, with many prisoners not knowing they can appeal their sentences or that Ghana will provide them with legal aid to do so. Of the 12 death row prisoners who filed appeals between 2006 and 2016, half were successful, as reported by Amnesty International in a report titled Locked Up and Forgotten: The Need to Abolish the Death Penalty in Ghana. While Ghana is still failing to comply with the UNHRC’s decision regarding Mr. Johnson, encouraging trends in recent years suggest that the mandatory application of the death penalty is on the decline. Whether the African Court will contribute to the jurisprudence on this issue remains to be seen, but it is possible that Mr. Johnson’s case will encourage other applicants from Ghana or Tanzania, which also retains the mandatory death penalty for murder in its domestic law.