AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Addis Ababa, Ethiopia
P. O. Box 3243
Telephone: 5517 700
Website: www. Africa-union.org
Fax: 5517844
EXECUTIVE COUNCIL
Fifteenth Ordinary Session
24 - 30 June 2009
Sirte, Libya
EX.CL/529(XV)
26th ACTIVITY REPORT OF THE AFRICAN COMMISSION
ON HUMAN AND PEOPLES’ RIGHTS (ACHPR) SUBMITTED
IN ACCORDANCE WITH ARTICLE 54 OF THE AFRICAN
CHARTER ON HUMAN AND PEOPLES’ RIGHTS
AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
African Commission on Human & Peoples’
Rights
Commission Africaine des Droits de l’Homme & des
Peuples
48, Kairaba Avenue, P. O. Box 673, Banjul, The Gambia Tel: (220) 4392 962; Fax: (220) 4390 764 E-mail: achpr@achpr.org;
Web www.achpr.org
26th ACTIVITY REPORT OF THE AFRICAN COMMISSION
ON HUMAN AND PEOPLES’ RIGHTS (ACHPR) SUBMITTED
IN ACCORDANCE WITH ARTICLE 54 OF THE AFRICAN
CHARTER ON HUMAN AND PEOPLES’ RIGHTS
EX.CL/529(XV)
Page 1
INTRODUCTION
1.
This is the Twenty-Sixth Activity Report of the African Commission on Human and
Peoples’ Rights (the “ACHPR”).
2.
The Report covers the period, December 2008 to May 2009, and includes the
activities undertaken during the 45th Ordinary Session of the ACHPR, held from
13_27 May 2009, in Banjul, The Gambia.
ATTENDANCE AT THE SESSION
The following members of the ACHPR attended the 45th Session:
3.
-
Commissioner Sanji Mmasenono Monageng, Chairperson
Commissioner Catherine Dupe Atoki;
Commissioner Musa Ngary Bitaye;
Commissioner Reine Alapini-Gansou;
Commissioner Soyata Maiga;
Commissioner Mumba Malila;
Commissioner Bahame Tom Mukirya Nyanduga;
Commissioner Kayitesi Zainabo Sylvie;
Commissioner Pansy Tlakula; and
Commissioner Yeung Kam John Yeung Sik Yuen.
EVENTS PRECEDING THE SESSION
4.
Members and staff of the ACHPR participated in, and collaborated with other
human rights organisations in a series of activities preceding, and on the margins
of the Session, including the following:
i.
5 to 9 May, 2009, meeting jointly organised by the African Union
Commission, Gender
Directorate and the Government of The Gambia
titled “The AU Experts Meeting on the Status of Reporting and
Implementation of the Solemn Declaration on Gender Equality in Africa, and
on African Women’s Decade 2010 – 2020;
ii.
7 to 8 May 2009, consultations with the AUC team handling the Euro 55
million, Banjul, The Gambia;
iii.
8 to 9 May 2009, meeting of the Working Group on Indigenous People;
iv.
10 to 11 May, 2009, Validation Workshop organised by the Centre for
Human Rights,
University of Pretoria, to validate the Research
conducted within the framework of the Joint ILO/ACHPR Project on the
Constitutional, Legislative and Administrative Provisions on the Rights of
Indigenous Peoples and Communities in Africa.
EX.CL/529(XV)
Page 2
v.
9 to 11 May, 2009, NGO Forum organised by the African Centre for
Democracy and Human Rights Studies(ACDHRS);
vi.
12 May, 2009, meeting of the ACHPR with the Inter American Commission:
organised by the Center for Human Rights in collaboration with the ACHPR;
vii.
15 May, 2009, International Criminal Court Panel Discussion: organised by
International Federation for Human Rights (FIDH);
viii.
16 May, 2009, briefing by the head of the Gender Directorate: AU Gender
Directorate.
AGENDA OF THE SESSION
5.
The Agenda of the 45th Ordinary Session was adopted on 13th May 2009 and is
attached to this report as Annex 1.
THE OPENING CEREMONY
6.
A total of 402 participants attended the 45th Ordinary Session, including; 111
delegates from 31 States Parties to the African Charter ON Human and Peoples’
Rights (“the African Charter”),14 representatives from 8 National Human Rights
Institutions (NHRIs), 10 representatives from 2 International and InterGovernmental Organizations, and 180 representatives from 136 African and
International NGOs.
7.
The following persons addressed the Opening Ceremony:
i.
The Chairperson of the African Commission, Justice Sanji Mmasenono
Monageng,
ii.
Mr. Wadie Ben Cheikh, Representative of the Republic of Tunisia, on behalf
of the African Union Member States.
iii.
Dr. Gilbert Sebihogo, the Executive Director of the Network of African
National Human Rights Institutions (NHRIs), on behalf of National Human
Rights Institutions (NHRIs);
iv.
Mrs. Hannah Foster, Executive Director of the African Centre for Democracy
and Human Rights Studies, on behalf of NGOs;
v.
Honourable Mrs. Awa Bah, the Acting Solicitor General and Legal Secretary
of the Republic of The Gambia, on behalf of the Honourable Attorney
General and Minister of Justice of the Republic of The Gambia, Mrs. Marie
Saine Firdaus.
EX.CL/529(XV)
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HUMAN RIGHTS SITUATION IN AFRICA
8.
Statements were made by State Delegates from Algeria, Libya, Burkina Faso,
Nigeria, Mali, Cote D’Ivoire, Egypt, Uganda, Sudan, Swaziland, Tunisia, and
Zimbabwe on the human rights situations in their respective countries. The
summarised texts of these statements are in the Session Report of the 45th
Ordinary Session of the ACHPR.
9.
Representatives of Intergovernmental and International Organisations spoke
about various human rights issues on the continent, and the need to continue
cooperation with the ACHPR, to better promote and protect human rights. These
included the Directorate of the Women, Gender and Development of the AUC,
the Special Representative of the UN Secretary General and Head of the UN
Office for West Africa (UNOWA), International Organisations of the Francophonie
(OIF), International Committee of the Red Cross (ICRC) and the Inter-American
Commission on Human Rights (IACHR).
10.
A total of forty three (43) Non-Governmental Organisations (NGOs), which have
Observer Status before the ACHPR, also made statements under this item on the
human rights situation in Africa.
COOPERATION AND RELATIONSHIP WITH NATIONAL HUMAN RIGHTS
INSTITUTIONS (NHRIs) AND NON-GOVERNMENTAL ORGANISATIONS (NGOs)
11.
The ACHPR considered applications by twelve (12) NGOs seeking Observer
Status, and granted Observer Status to eleven (11) NGOs in accordance with the
1999 Resolution on the Criteria for Granting and Enjoying Observer Status to
Non-Governmental Organizations Working in the Field of Human and Peoples’
Rights, ACHPR /Res.33 (XXV) 99. The NGOs so granted Observer Status are:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
International Baby Food Action Network (IBFAN), Swaziland;
Tanganyika Law Society (TLS) ; Tanzania;
Plan International, INC. United States of America;
Society Studies Center, Sudan;
CLEEN Foundation, Nigeria;
Réseau Ouest-Africaine des défenseurs des droits de l’homme, Togo;
La voix des sans voix pour les droits de l’homme, DRC;
Centre d’accompagnement des autochtones pygmées et minoritaires vulnérable
(CAMV), DRC;
ix. Associacao Direitos Humanos em Rede (Connectas Human Rights), Brazil;
x. Association pour la liberté, la tolérance, l’expression et le respect des
personnes de nature indigents, vulnérables ou excludes socials du Cameroun
(ALTERNATIVE Cameroon), Cameroon; and
xi. Community Research and Development Services (CORDS), Tanzania.
12.
This brings the total number of NGOs with Observer Status before the ACHPR to
four hundred and two (402).
EX.CL/529(XV)
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13.
The ACHPR decided to defer the application for Observer Status by one NGO,
namely, Coalition of African Lesbians (CAL), based in South Africa, to the next
Ordinary Session, pending its consideration of a draft paper on Lesbians, Gays,
Bisexuals and Trans - Sexual Persons’ (LGBT) Rights.
14.
During the 45th Session, the ACHPR did not receive any application for Affiliate
Status from any NHRI. The number of NHRIs with Affiliate Status with the
ACHPR thus remains at twenty-one (21).
STATE REPORTS
15.
The Republic of Mauritius, Republic of Uganda and Republic of Benin presented
their Periodic Reports to the ACHPR, which considered them and adopted
concluding observations in respect of each.
ACTIVITIES OF MEMBERS OF THE ACHPR DURING THE INTER-SESSION
16.
The Chairperson and members of the ACHPR presented reports on the activities
that they undertook during the inter-session period between the 44th Ordinary
Session in November 2008, and the 45th Session in May 2009. The reports
covered activities undertaken in their capacities as members of the ACHPR, as
Special Rapporteurs, and/or as members of Special Mechanisms. The activities
were as set out hereunder;
Commissioner Sanji Mmasenono Monageng - Chairperson
17.
From 8 to 12 December 2008, at the invitation of H.E Bernard Kouchner, Minister
of Foreign Affairs, France, she attended a Seminar commemorating the 60th
Anniversary of the Universal Declaration for Human Rights. She presented a
paper on the mandate of the African Commission.
18.
From 23 to 24 March 2009, together with Commissioner Catherine Dupe Atoki,
she attended a series of events in London, about human rights in Africa, at the
invitation of the Foreign and Commonwealth Office and Chatham House. The
events were aimed at raising the profile of the African Court, its operational
modalities, the complementary relationship with the ACHPR, the Pan - African
Parliament, Civil Society and Multinational Organisations such as the UN and
European Union (EU). She presented a paper on the relationship between the
ACHPR, the African Court and the Merged Court of Justice and Human Rights.
19.
From 30 March to 3 April 2009, she presided over the 6th Extra-Ordinary Session
of the ACHPR in Banjul, The Gambia, to consider Communications and
outstanding Reports, among other urgent matters.
20.
On 6 April 2009, she attended a Conference in Pretoria, South Africa, at the
EX.CL/529(XV)
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invitation of the International Commission of Jurists (ICJ). She presented a paper
entitled: “Paradigm Shift in the Fight Against Terrorism: Are African Governments
Ready to Strengthen the Rule of Law?”
21.
From 9 to 11 May 2009, she participated in some of the activities of the NGO
Forum preceding the 45th Ordinary Session, in Banjul.
22.
From 10 to 11 May 2009, in Banjul, she chaired a Meeting organized by the
Centre for Human Rights, of the University of Pretoria, to validate the outcome of
the Research conducted within the framework of the Joint ILO/ACHPR Project on
the Constitutional, Legislative and Administrative Provisions on the Rights of
Indigenous Peoples and Communities in Africa.
23.
On 12 May 2009, she participated in a Meeting organized by the Centre for
Human Rights, of the University of Pretoria, and attended by a delegation from
the Inter-American Commission and the ACHPR. The meeting was aimed at
exchanging ideas and best practices to enhance understanding of both
Institutions. The Meeting also considered the complementary relationship
between the ACHPR and the African Court, and that of the Inter-American
Commission and the Inter-American Court.
24.
She wrote a letter of Appeal to the Government of the Seychelles pending the
seizure of a Complaint by the ACHPR.
25.
She also issued a Press Release addressing the unconstitutional change of
government in Madagascar, and urging the new Government to ensure protection
of human rights.
26.
In addition, the Chairperson provided policy guidance and overall oversight on the
activities of the ACHPR and its Secretariat during the intersession.
Commissioner Catherine Dupe Atoki
Activities as a Commissioner
27.
From 11 to 14 February 2009, she attended a conference in Cotonou the
Republic of Benin, hosted by the ECOWAS. The aim of the Conference was to
build on the gains of the establishment of a Network of National Human Rights
Institutions in West Africa. She delivered a paper titled, “The State of Human
Rights in West Africa, A Critical Perspective.” This paper highlighted country
situations with regards to human rights violations mainly from various indicators
set out in the ECOWAS Protocol on Good Governance and the African Charter.
Torture, cruel, inhuman degrading treatment and punishment, impunity and
violation of women’s rights were ranked high in the rights violated in the subregion.
28.
On 3 March 2009, as Commissioner in charge of Sudan, she participated in a
EX.CL/529(XV)
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National Television Programme in Abuja, Nigeria, on the issue surrounding
Sudan and the warrant of arrest of President Al Bashir. This gave her the
opportunity to discuss the Special Mechanisms of the ACHPR and to address the
human rights situation in Sudan.
29.
From 18 to 19 March 2009, she attended a Workshop at the invitation of the Kogi
State Action Committee on AIDS in Nigeria and presented a paper titled
“HIV/AIDS and Human Rights”.
30.
From 23 to 24 March 2009, together with the Chairperson of the ACHPR, she
attended a series of events in London, the United Kingdom at the invitation
Foreign and Commonwealth Office and Chatham House.
31.
From 30 March to 3 April 2009, she attended the 6th Extra Ordinary Session held
in Banjul, The Gambia.
Activities as Chairperson of the Follow-up Committee on the Robben Island Guidelines
32.
From 15 to 17 December 2008, together with the Vice-Chair of the Follow - Up
Committee on the Robben Island Guidelines (RIG), she participated in a training
of Civil Society Organisations on the implementation of RIG in Ouagadougou,
Burkina Faso. The Meeting was the third of a series of training Sessions
organized by the Association for the Prevention of Torture (APT). She made
several presentations on the African Human Rights System, particularly with
regards to torture. To conclude the visit, the delegation of the RIG Committee,
together with APT and FIACAT, met with the Burkina Faso Minister of Human
Rights.
33.
From 26 to 27 January 2009, she attended a Workshop organized by Prisoners
Rehabilitation and Welfare Action (PRAWA) in Enugu, Nigeria. The Workshop
sought to enhance the importance of investigation and documentation in the
prevention of torture. She addressed the Workshop and gave further visibility to
the Guidelines and their implementation towards the prevention of torture.
34.
From 28 to 29 January 2009, she chaired a public hearing on police abuse in
Ibadan City, Nigeria, organized by the Network of Police Reforms, an NGO
engaged in monitoring the activities of police in Nigeria. Victims publicly testified
to the various violations of human rights suffered at the hands of the police whilst
wrongfully detained. It was an opportunity to expose the acts of the police carried
out mainly behind closed doors.
35.
The Network of Police Reforms also held similar public hearings in two other cities
in Nigeria, and she attended and presided over the one held in Abuja from 18 to
19 February 2009.
36.
On 28 April 2009, she participated in a one day Workshop in Abuja, Nigeria, on
the “Menace of Rape in the Society”. Non-disclosure by victims was identified as
EX.CL/529(XV)
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a major challenge in the apprehension and punishment of violators. The
Workshop presented an opportunity to educate participants on the African
Charter and rape, as it constitutes torture and the importance of the RIG in the
prevention of torture.
37.
With the support of the UN Human Rights Council, the Follow-up Committee on
the RIG and the APT completed the publication of a User Manual known as “The
Practical Guide for the implementation of the RIG”. The goal of the brochure is to
provide national actors with suggested approaches for implementing the
Guidelines.
Commissioner Musa Ngary Bitaye
Activities as Commissioner
38.
He attended the 6th Extraordinary Session of the African Commission, in Banjul,
The Gambia, from 30 March to 3 April 2009.
39.
During the third week of March 2009, he attended the 10th Session of the UN
Human Rights Council in Geneva, Switzerland. He had a meeting with HE Dr.
Martin Uhomoibhi, the President of the 10th Session of the Human Rights Council.
40.
He also met with Mr. Scott Campbell, Coordinator of the Africa Unit, Field
Operations and Technical Cooperation Division, of the Office of the United
Nations High Commissioner for Human Rights (OHCHR). During that meeting,
they discussed among other issues, the UN collaboration with the AU through its
Regional Representative in Africa, on a Resolution on a Human Rights Strategy.
The Resolution is scheduled to be passed by the end of this year.
41.
He had a meeting with the Chief of Groups in Focus of the OHCHR, during which
they discussed collaboration between the UN and the ACHPR.
42.
From 10 to 11 May, 2009, he attended the validation workshop of the report of
the ILO/ACHPR Project, involving a three year research on the constitutional and
legislative protection of rights of indigenous populations in 24 African Countries.
43.
On 12 May 2009, he participated in a meeting between the ACHPR, and the Inter
American Commission on Human Rights.
Activities as Chairperson of the Working Group on Indigenous Populations/Communities
in Africa
44.
He undertook a country mission to Rwanda from 1 to 5 December 2008. The
mission was undertaken with Dr. Melakou Tegegn, expert member of the Working
Group and was supported by Mr. Francis Ngarhodjim from the Secretariat of the
ACHPR.
EX.CL/529(XV)
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45.
He chaired the regular meeting of the Working Group, which took place from 8 to
9 May 2009 in Banjul, The Gambia, to discuss activities undertaken during the
preceding six month inter-session period, and to plan for the Group’s future
activities.
Commissioner Reine Alapini Gansou
Activities as Commissioner
46.
On 27 November, 2008, she participated in the 14th annual campaign on gender based violence. The theme of this annual campaign was “Domestic Violence and
its Effects”. She gave a detailed account of gender based violence in Benin.
47.
From 5 to 7 December, 2008, from 14 to 20 December 2008, and from 5 to 15
January 2009, she participated in the presentation and defence of the 2009
ACHPR budget, in Addis Ababa, Ethiopia.
48.
From 12 to 14 February, 2009, she participated in the follow-up meeting of the
Network of National Human Rights Institutions in ECOWAS States.
49.
From 23 to 25 February, 2009, she attended an international meeting in Cotonou,
Benin, on the theme: “Good Governance, Accountability, and Responsibility”. The
meeting was organised by the Human Rights Institute for the Promotion of
Democracy and Democracy and Everyday Life, and was financed by the UNDF.
50.
On 26 February, 2009, she had a working session with the High Commission for
Collective Governance (HCGC) in Benin. The main objective of the meeting was
to establish contacts with this authority and to continue the National Dialogue on
Human Rights in Benin.
51.
From 4 to 6 March, 2009, she attended a regional seminar on Human Rights for
Francophone African Parliamentarians. The seminar was jointly organised by the
Inter-Parliamentary Union, the United Nations High Commission for Human
Rights and the Gabonese Parliament. The theme of the seminar was: “Promoting
Cooperation at the Regional Level between Parliaments and Organs with a
Human Rights Mandate”.
52.
From 19 to 22 March, 2009, she attended the Harmonisation and Validation
Workshop on the Analytic Study to Identify Gender Specific Discriminatory
Clauses and Gender Equality Disparities in the National Laws of ECOWAS
Member Countries. The Workshop was organised by the ECOWAS Gender
Centre (EGDC), in Banjul, The Gambia, to validate the study reports prepared by
national experts commissioned by the EGDC, from November to December,
2008.
53.
From 30 March to 3 April, 2009, she attended the 6th Extraordinary Session of the
ACHPR, in Banjul, The Gambia.
EX.CL/529(XV)
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54.
From 9 to 11 May 2009, she participated in the NGO Forum organised by the
African Centre for Democracy and Human Rights Studies. On the sidelines of the
Forum, she participated in a working session organised by the Centre for Human
Rights of the University of Pretoria.
55.
On 12 May, 2009, she participated in the meeting of representatives of the InterAmerican Commission for Human Rights. The objective of this meeting was to
inform members of the ACHPR and its Secretariat of the mandate and functioning
of the Inter-American Human Rights Commission.
Activities as a member of the Focal Point on Elderly Persons
56.
On the sidelines of the 6th Extraordinary Session, she was involved in laying the
groundwork leading to the establishment of a Mechanism for Elderly Persons and
Persons with Disability in Africa. Together with Commissioner Yeung Sik Yuen
they had an advert posted on the website of the ACHPR, calling for applications
from experts to become members of the proposed Working Group. As a result, a
number of applications had been received and tabled before the ACHPR during
the 45th Session, for consideration and adoption.
Activities as Special Rapporteur on Human Rights Defenders in Africa
57.
On 10 December, 2008, she jointly organised a one-day National Dialogue in
Benin with the Beninese Association for the Right to Development (ABDD)
funded by the Open Society Initiative for West Africa (OSIWA). This activity was
conducted under the second phase of a project launched in commemoration of
the 60th Anniversary of the Universal Declaration of Human Rights.
58.
During this occasion, she published a declaration jointly with the other
mechanisms responsible for the promotion and protection of the rights of human
rights defenders (United Nations, European Union, and Inter American
Commission for Human Rights).
59.
From 21 to 24 January 2009, she attended a workshop organised by the (Human
Rights Commission for Lesbian, Gays, Bisexual and Intersexual, HRCLGBT) in
Cape Town, Republic of South Africa. The objective of the workshop was to
evolve legal strategies for the protection of the rights of LGBI in Africa.
60.
On 9 February, 2009, under the capacity building programme, the Toolkit for
Human Rights Defenders developed during the workshop held in AugustSeptember, 2008, in Benin was launched. The launching was funded by the
Embassy of the Federal Republic of Germany, in Benin.
61.
From 9 to 10 March 2009, she attended a symposium organised by the Open
Society Initiative for West Africa (OSIWA), in Abuja, Federal Republic of Nigeria,
on the theme “Justice and Migrations”. She chaired a panel of the ACHPR on the
EX.CL/529(XV)
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promotion and protection of persons and target groups striving to give effect to
economic, social, and cultural rights. The discussions also covered other issues
of importance pertaining to the public interest.
62.
From 13 to 17 April, 2009, at the invitation of the Association for Justice, Peace
and Democracy, (l’Association pour la Justice, la Paix et la Démocratie) (AJPD) in
Luanda, Republic of Angola, she moderated over a training seminar for some
twenty representatives of human rights defenders’ organisations on the legal
instruments for the protection and promotion of the rights of women in Africa. She
participated in the launching of the report by the Observatory of the FIDH/ OMCT
on the human rights situation in the world, for the year 2007.
63.
From 20 to 23 April 2009, she chaired the Conference of Human Rights
Defenders, held in commemoration of the sixtieth anniversary of the United
Nations Declaration on Human Rights and the 1998 Inaugural Pan - African
Conference of Human Rights Defenders. The objectives of this Conference was
to take stock of the activities of Human Rights Defenders during the past decade
and to identify factors which impede the effective implementation of the rights of
human rights defenders in Africa.
64.
From 9 to 11 May, 2009, she participated in the NGO Forum, where
Commissioners and participants, and especially the network of human rights
defenders, considered the situation of human rights defenders in Africa.
65.
During the intersession, she issued three Press Releases following the
assassination of three human rights defenders in Kenya, Congo and Burundi.
She published two Press Releases concerning Gabon, one denouncing human
rights violations and another commending the State for responding positively by
desisting from such acts. A sixth Press Release condemned the closure of three
human rights NGOs in the Sudan last May.
66.
Regarding the protection of human rights defenders, she sent more than twenty
seven (27) letters to nineteen (19) States Parties, on cases of human rights
violations which occur in those States.
Commissioner Soyata Maiga
Activities as Commissioner
67.
From 1 to 5 December 2008, she undertook a Promotional Mission to Congo,
where she had discussions with representatives of the Government and
Institutions on the general human rights situation in the country and, in particular,
on the status of implementation of the the African Charter and other relevant
African human rights legal instruments that Congo has ratified. During the
Mission, she also presented a paper to students at the Marien N’Gouabi
University on the theme: “The African Charter on Human and Peoples’ Rights:
Present Situation and Prospects” in commemoration of the 60th Anniversary of
EX.CL/529(XV)
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the Universal Declaration of Human Rights.
68.
On 10 December 2008, she was part of the Special Panel of the “Espace
d’Interpellation Démocratique” (Democratic Forum) in Mali, organised on the 10th
of December of each year. It offers an opportunity to all Malian citizens to
question Members from the various Ministerial Departments on cases of human
rights violations. This exercise helps to address the concerns of the citizens in the
areas of good governance, land management and bottlenecks in justice delivery
within the Public Service.
69.
On 22 December 2008, she attended a Conference organised by the National
Law Institute of Mali, where she made a presentation “The African Charter on
Human and Peoples’ Rights: Vision, Practice and Jurisprudence”.
70.
On 28 December 2008, she moderated a Conference on “The African
Commission on Human and Peoples’ Rights,” attended by NGOs and students in
commemoration of the 60th anniversary of the Universal Declaration of Human
Rights organised by the Ministry of Justice, in Mali.
71.
On 17 March 2009, she participated in a one-day discussion and experience
sharing forum with the members of the National Human Rights Commission of
Mali (NHRC), and the Pivot Group/Rights and Citizenship of Women, a coalition
of Women’s NGOs involved in the protection of the rights of women, on the
country’s proposed Gender Equality Policy.
72.
From 30 March to 3 April, 2009, she participated in the 6th Extraordinary Session
of the African Commission, in Banjul, The Gambia.
73.
From 9 to 10 May 2009, she participated in the Validation Workshop organised by
the International Labour Organisation (ILO) in collaboration with the Centre for
Human Rights and the ACHPR
74.
From 10 to 11 May 2009, she participated in the NGO Forum, where she
moderated on the theme “Women’s Rights”. In the same Forum at the invitation
of People Opposing Women Abuse (POWA), she launched a book titled “State
Accountability for Homophobic Violence.”
75.
On 12 May 2009, she participated in a Meeting organised by the Centre for
Human Rights of the University of Pretoria for the Inter-American Commission
and the ACHPR.
Activities as a Member of the Working Group on Indigenous Populations/ Communities
76.
From 2 to 6 February 2009 she undertook a joint Promotion Mission on the rights
of indigenous populations to Burkina Faso with Commissioner Kayitesi Zainabo
Sylvie, who was on a promotional mission as Commissioner responsible for
Burkina Faso.
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Activities as Special Rapporteur on the Rights of Women in Africa
77.
From 6 to 8 January 2009, she attended the 2nd Forum of Sudanese Women on
Darfur, in Addis Ababa, Ethiopia, organised and facilitated by Femme Africa
Solidarité.
78.
On 24 January 2009, she organised a one-day meeting with women leaders of
Malian NGOs and Women’s Associations in Bamako, Mali, on the Solemn
Declaration on Gender Equality in Africa. The Meeting provided the opportunity to
discuss the strides made in the implementation of this important instrument in
Mali, and to identify obstacles and challenges to equal opportunities, in the areas
of health, education, peace, security, economic growth and governance.
79.
From 27 to 28 January 2009, she participated in the 13th Consultative Meeting on
Gender Mainstreaming at the AU, in Addis Ababa, organised by the Femme
Africa Solidarité in collaboration with “Gender is My Agenda”
Campaign (GIMAC).”
80.
From 16 to 18 February 2009, she facilitated a Sub - Regional Seminar in Lomé,
Togo jointly organised by the Inter-Parliamentary Union, UNDP and the National
Assembly of Togo, on the theme “Towards Improved Promotion of Women’s
Rights: The Role of Parliaments and Parliamentarians in the West African Sub Region.” The aim of the Seminar was, among others, to sensitise
Parliamentarians from Benin, Burkina Faso, Côte d’Ivoire, Mali, Niger, Senegal
and Togo on the regional and international instruments on women’s rights.
81.
During the Seminar, she presented a paper on the “African Charter on Human
and Peoples’ Rights,” and another on the “Progress Made and Obstacles to the
Application of the Maputo Protocol in the Sub - Region.”
82.
From 6 to 9 March 2009, she participated in the International Women’s
Colloquium organised by H.E. the President of Liberia, Ellen Johnson Sirleaf, and
H.E. the President of Finland, Tarja Halonen, on the theme “Women’s
Empowerment, Leadership, Development, Peace and Security.” The Colloquium
discussed the implementation of the UN Security Council Resolution 1325, and
the rights of women in countries which are in a conflict and post-conflict
situations.
83.
On 25 March 2009, she gave a lecture, at the invitation of the International
Association of Women Judges, Quebec Chapter in Montreal, Canada, on the
theme “The Mandate of the Special Rapporteur on the Rights of Women in
Africa : Obstacles to and Progress in the Protection of Women’s Rights.”
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84.
On 8 March 2009, in commemoration of the International Women’s Day, she
published a Press Statement on the theme “Shared Responsibilities of Men and
Women and Provision of Care in the Context of HIV and AIDS.”
85.
She forwarded Notes Verbale to the Republics of Niger and Gabon seeking
authorisation for Promotional missions.
86.
She also sent a Note Verbale to H.E. Abdullahi Yusuf Ahmed, President of the
Republic of Somalia, regarding the execution by stoning of the 13 year-old girl,
Aisha Ibrahim Duhulow on 27 October 2008, expressing her profound concern
about this incident which constitutes an infringement of the rights enshrined in the
African Charter, particularly Article 4.
87.
She also reported on the progress and challenges concerning the situation of
women’s rights in Africa and made comprehensive recommendations to States
Parties and to the ACHPR.
Commissioner Mumba Malila
Activities as Commissioner
88.
On 10 December 2008, he took part in a Panel Discussion organised by the
Zambian Human Rights Commission and the University of Zambia to
commemorate the International Human Rights Day in Lusaka. The discussion
was attended by University students, private citizens and members of the
diplomatic corps. He made a presentation on “The Achievements of the African
Commission on Human and Peoples’ Rights in the Last Twenty Years”.
89.
On 9 March 2009, he took part in the nearly 10kms walk organised to mark the
International Women’s Day in solidarity with hundreds of women in Zambia.
90.
From 30 March to 3 April 2009, he attended the 6th Extra- Ordinary Session of the
ACHPR which was held in Banjul, The Gambia.
91.
From 15 to16 April 2009, on behalf of the Chairperson of the ACHPR, he
attended the AU Executive Council Meeting which took place in Tripoli, Libya.
The Meeting deliberated on the decision of the Summit to transform the AU into
an Authority, and to work out modalities for that transformation.
Activities as Special Rapporteur on Prisons and Conditions of Detention in Africa
92.
On 28 November 2008, he participated at the launch of the Zambia National
Parole Board and presented a paper entitled “An Overview of the State of African
Prisons.” In the presentation, he indicated that given the background of serious
congestion which characterises African prisons, the move to amend the Zambian
Prisons Act to provide for parole in the manner that it did, in addition to the
EX.CL/529(XV)
Page 14
Presidential prerogative of mercy, was a laudable step which would go a long
way in helping address the problem of prison congestion in the country.
93.
On 14 January 2009, he met with Professor Lukas Mutingh from the Civil Society
Prison Reform Initiative, Community Law Centre of the University of Western
Cape, South Africa. During the meeting, they discussed ways in which the
Centre and the ACHPR could collaborate and synergise efforts in the protection
of prisoners’ rights.
94.
Commissioner Malila continued to receive reports about the state of prisons and
conditions of detention in many African countries including Mozambique, Liberia,
Cameroon, Zimbabwe and South Africa. He also continued to maintain links with
partners and potential partners including Penal Reform International through Ms.
Mary Murray, the UN Special Rapporteur on Enforced Disappearance, Prof.
Jeremy Sarkins and representatives of the APT.
Commissioner Bahame Tom Mukirya Nyanduga
Activities as Commissioner
95.
From 25 January to 3 February 2009, he represented the Chairperson of the
ACHPR at the meetings of the PRC, the Executive Council and the Assembly of
Heads of State and Government, which took place in Addis Ababa, Ethiopia,
where he presented the 25th Activity report of the ACHPR.
96.
From 1 to 8 March 2009, he undertook a promotional mission to the Republic of
Seychelles.
97.
On 20 March 2009, he presented a paper to the 3rd East African Civil Society
Organizations’ Forum, in Arusha, Tanzania, on the topic “Comparative Analysis of
Civil Society Influence within the Regional Economic Communities and the
African Union”. His presentation introduced the African Human Rights System
and Mechanisms to the representatives of Civil Society Organizations from the
five member states of the East African Community (Burundi, Kenya, Rwanda,
Tanzania and Uganda).
98.
From 30 March to 3 April 2009, he participated in the 6th Extra Ordinary Session
of the African Commission, which took place in Banjul.
Activities as Special Rapporteur for Refugees, Asylum Seekers, Internally
Displaced Persons and Migrants in Africa (IDPs)
99.
He did not undertake any activities during the period under review, because the
planned activities could not materialise (for example, the scheduled fact finding
missions to Kenya and South Africa).
100.
In March 2009 he published a press release following the 4th Marc 2009, ICC
EX.CL/529(XV)
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indictment of President Omar El Bashir of Sudan, and the subsequent expulsion
of international and national NGOs from Darfur.
101.
He took the opportunity of the Session to address the issues of concern covered
by the mechanism, and gave an overview for the entire period of the mechanism.
He expressed particular concern over the human rights situation of refugees and
IDPs in Somalia, Democratic Republic of Congo, and the Sudan.
102.
He noted that the continuing armed conflict between the forces of the TFG and Al
Shabab in Somalia, coupled with the drought affecting the Horn of Africa has
caused massive displacement of refugees into Kenya and about 1 million IDPs.
He commended the Republic of Kenya for hosting he refugees He stated that
Somalia is experiencing a serious humanitarian crisis. He condemned the
violation of human rights of the civilian population in particular women and
children and the disregard of International Humanitarian Law in Somalia. He
called upon the United Nations, and other members of the International
Community to support the TFG and AMISOM in their efforts to stabilize Somalia
after two decades of lawlessness and anarchy. He commended Uganda and
Burundi for backstopping AMISOM.
103.
He expressed his concern about developments in the Great Lakes Region, in
particular the Democratic Republic of Congo (DRC), where the killing, maiming
and displacement of the civilian population has continued, in spite of the
presence of the MONUC, and the recent joint operations by the Uganda and DRC
forces against the LRA, and the DRC/Rwanda against the Interahamwe/FDLR
forces. He called upon the government of DRC, the African Union and the United
Nations to ensure that all those responsible for violation of human rights, and IHL
in DRC are brought to justice.
104.
He recalled his report to the 44th Ordinary Session, on the adoption of the draft
African Union Convention on IDPs, by Ministers responsible for Refugees and
Displacement Issues in Africa, in November 2008. He informed participants that a
Special Summit of the Assembly of the African Union on Refugees and
Displacement Issues, due to be held later this year, is expected to adopt the
Convention. He urged all Member States to sign and ratify the Convention, once
it is adopted by the Assembly.
Commissioner Kayitesi Zainabo Sylvie
Activities as Commissioner
105.
From 2 to 6 February 2009, she conducted a joint promotion mission to Burkina
Faso, with Commissioner Soyata Maïga and Mr. Mohammed Khattali, Members
of the Working Group on Indigenous Peoples/ Communities in Africa, to promote
human rights of indigenous populations/communities and the work of the ACHPR.
The delegation held meetings with all stakeholders, including Government
officials, civil society organisations, trade unions, international organisations, etc.
EX.CL/529(XV)
Page 16
to discuss the human rights situation in Burkina Faso and measures taken to
improve the situation.
106.
From 29 to 30 January 2009, she participated in a Round Table discussion on the
theme “The Paris Principles and Good Practices in the Establishment of National
Human Rights Institutions” organized by the United Nations High Commission on
Human Rights in Bujumbura, Burundi,. She made two presentations, one on the
“African Commission as a African Mechanism for the Promotion and Protection of
Human Rights in Africa”, and the other on “National Human Rights InstitutionsCompetence, Missions and Powers”.
107.
From 30 March to 3 April 2009, she took part in the 6th Extraordinary Session of
the African Commission held in Banjul, The Gambia.
Activities as Chairperson of the Working Group on the Death Penalty
108.
During the intersession, members of the Working Group on the Death Penalty
discussed a paper on the “Abolition of the Death Penalty in Africa” which was
consolidated on the sidelines of the 44th Ordinary Session in November 2008 in
Abuja. The paper will be examined at the Regional Conference on the Death
Penalty, which is scheduled for September 2009. This Conference will be the first
of its kind on the theme.
109.
During the Session, she reported on the situation of the abolition of the death
penalty in Africa. She called on Member States which still retain the death
penalty, to observe a moratorium in line with the Resolution adopted by the
ACHPR during its 44th Ordinary Session, and to take measures on the abolition of
the death penalty.
110.
She also reported that due to the budgetary constraints faced by the ACHPR, the
Working Group on the Death Penalty in Africa could not meet as usual before
every Ordinary Session.
Activities as Member of the Working Group on the Specific Issues Relevant to the Work
of the ACHPR.
111.
She recalled that the Interim Rules of Procedure of the ACHPR were finalized
and adopted at the 44th Ordinary Session held in Abuja, Nigeria, in November
2008. In adopting the Interim Rules of Procedure, the ACHPR decided that
partners should be invited to comment on the same before their final adoption by
the ACHPR. During the intersession, comments were received from States
Parties as well as NGOs and Academic Institutions. She added that the ACHPR
would discuss the various contributions during its Private Session.
EX.CL/529(XV)
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Commissioner Pansy Tlakula
Report of Activities as Commissioner
112.
On 2 February 2009, she delivered the keynote address at the opening
ceremony of the LLM (Human Rights and Democratisation in Africa) 2009 class,
at the Centre for Human Rights, Faculty of Law of the University of Pretoria.
Activities as Special Rapporteur on Freedom of Expression in Africa
113.
During the intersession, she had received the response of the Government of The
Gambia to the Letter of Appeal she had sent to the Government, calling for the
release of Chief Ebrimma Manneh. She reported that the Government of The
Gambia had granted her authorisation to undertake a Promotional Mission to The
Gambia.
114.
In November 2008, she sent a Letter of Appeal to the Republic of Senegal,
expressing concern about reports of the deteriorating situation of Freedom of
Expression in the country.
115.
She welcomed reports of the announcement by Senegal, of its intention to amend
existing legislation so as to decriminalize press offenses, and urged the
Government to ensure that the process is initiated without delay.
116.
During the inter- session that she received numerous reports, alleging violation of
freedom of expression and access to information in various States Parties
including Democratic Republic of Congo, Niger, Ivory Coast, Zimbabwe,
Cameroon, Kenya, Sierra Leone, Liberia, Tunisia and Eritrea. She indicated that
she was in the process of bringing the details of the allegations to the States
Parties in question.
117.
She called on States Parties to repeal all criminal defamation laws and amend all
defamation laws, investigate and punish perpetrators of murder, kidnapping,
torture, harassment and intimidation of journalists, and to protect journalists
working in States where there are ongoing internal conflicts in accordance with
the Declaration of Principles on Freedom of Expression in Africa, which
supplements the provisions of Article 9 of the Charter on Freedom of Expression.
118.
She reiterated her call for States Parties to sign and ratify the African Charter on
Democracy, Elections and Governance to ensure the coming into force of this
Instrument without further delay. She further called on States Parties scheduled
to hold elections to ensure the protection of journalists and media practitioners,
and for those who have signed this Charter to comply with the provisions of
Article 17.
EX.CL/529(XV)
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Commissioner Y.K.J. Yeung Sik Yuen
Activities as a Commissioner
119.
From 23 to 26 March 2009, he participated in a Conference organised by the
World Jurists in Kiev, Ukraine. The theme of the Conference was “The
Independence of the Judiciary and the Role of the Judiciary to Uphold and
Protect Human Rights”.
120.
During the Conference, he sat on an all - African Panel composed of the Chief
Justice of Mozambique and a former Judge from South Africa in a Mock Trial.
The Mock Trial was based on the legality of the possession and threat of the use
of nuclear weapons, with special emphasis on the violation of basic human rights
and humanitarian law.
121.
On 12 May 2009, he took part in the Meeting organised by the Centre for Human
Rights of the University of Pretoria, between members of the Inter American
Commission and members and staff of the ACHPR.
Activities as Focal Point on the Rights of Older Persons
122.
As the Chairperson of the Focal Point on the Rights of Older Persons in Africa,
during the intersession, he was involved in laying the groundwork leading to the
establishment of a Special Mechanism for Elderly Persons and Persons with
Disability in Africa. Together with Commissioner Reine Alapini Gansou, they had
an advert posted on the website of the ACHPR, calling for applications from
experts to become members of the proposed Working Group. As a result, a
number of applications had been received and tabled before the ACHPR during
the 45th Session, for consideration and adoption.
PRIVATE SESSION
REPORT OF THE SECRETARY, INCLUDING ADMINISTRATIVE AND
FINANCIAL MATTERS
123.
The Secretary to the ACHPR, Dr. Mary Maboreke, presented her Report to the
ACHPR. The Secretary’s Report set out the activities undertaken with the
Secretariat’s assistance during the six-month inter-session period between the
44th Ordinary Session of the ACHPR held in November 2008, in Abuja, Nigeria,
and the 45th Ordinary Session in Banjul, The Gambia.
124.
The Report reviewed the activities planned for 2009 in relation to those outlined in
the Strategic Plan of the ACHPR; it addressed administrative and budgetary
matters, as well as staffing issues; it analyzed some of the challenges faced, and
also made recommendations for the way forward.
EX.CL/529(XV)
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125.
On budgetary matters, the Report indicated that the ACHPR’s 2009 budget had
been cut to almost half of the budget allocated to it in 2008 (from
USD6,003,000.00 in 2008 to USD3,671,000.0 for 2009). The Report observed
that, while the budgetary cut was based on the budget execution rate for the 2008
fiscal year, this reduction would have a very negative impact on the overall work
of the ACHPR, and the ACHPR’s capacity to deliver on its mandate efficiently
and effectively.
126.
She explained that this was because the temporary assistance budget line was
drastically reduced, despite the fact that temporary assistance is the mainstay of
ACHPR operations. On account of the continuing staffing constraints, combined
with the fact that the 2009 Budget specifically provided that the new structure
approved for the ACHPR had to be phased over a five-year period, with
recruitment only starting in 2010.
127.
The Secretary also reported that the ACHPR had been audited by the internal
auditors as well as the external auditors, and informed the Commissioners that
the major recommendation of these audits was the need to match the budget and
activities of the ACHPR with the capacity of the Secretariat to provide the
necessary support to the Commissioners in line with the relevant Rules and
Regulations.
128.
The Report also touched on the increasing workload of the ACHPR, and in
particular, the rising backlog of Periodic State Reports, Mission Reports
(Promotional, Special Mechanism and Fact-finding), as well as Communications.
In that regard, the Secretary to the ACHPR recalled the decision of the Assembly
in Sharm-el-Sheikh, requesting the ACHPR to identify possible ways of
overcoming shortcomings in the functioning of its Communications Handling
Mechanism that might result from, inter alia, human and financial resource
constraints, and present a report on the same to the AU Policy Organs.1
129.
This problem, which is inherited from the past and has its historical origins in the
lack of human and financial resources, is not going to go away unless and until
these twin challenges have been adequately addressed, and the ACHPR’s
modus operandi has been reviewed. She stressed that there is need to propose
ways of managing the ACHPR’s expanding workload in general, and, in
particular, expediting the ACHPR’s consideration of Communications. She
explained that the Secretariat of the ACHPR is currently preparing a “Report on
the Challenges faced by the ACHPR in Handling Communications”, for
consideration by the ACHPR, and thereafter submission to the Executive Council.
130.
The Secretary’s Report also touched on the issue of honorarium and allowances
for ACHPR Commissioners, which has been outstanding for quite some time.
Allowances and honorarium for ACHPR Commissioners were set a long time
back, and are now way out of line to current circumstances. The ACHPR
1
Paragraph 11 of Assembly Decision Assembly/AU/Dec.200(XI)
EX.CL/529(XV)
Page 20
prepared a paper on the matter in 2008, and forwarded it for submission to the
relevant AU Organs for consideration, which was still to take place.
131.
The STC’s Report called for a meeting between the ACHPR and PRC, trusting
that increased and continued dialogue between the ACHPR and the AU Decision
makers would greatly enhance the efficiency and effectiveness of the ACHPR.
132.
The STC also reported that, as is the practice, the Secretariat had written to the
Office of the Legal Counsel regarding the upcoming vacancies within the ACHPR,
so that the necessary processes for the (re-)election of Commissioners during the
Executive Council and Assembly meetings in Sirte, Libya, in June/July 2009,
could be set in motion, which had been duly done.
CONSIDERATION OF STATE REPORTS UNDER ARTICLE 62 OF THE CHARTER
133.
The Republics of Uganda, Benin and Mauritius presented their respective
Periodic Reports to the ACHPR in accordance with Article 62 of the African
Charter. The ACHPR examined the Reports and engaged in constructive
dialogue with the three States Parties.
STATUS OF SUBMISSION OF STATE PARTY REPORTS
134.
The status of submission and presentation of the Periodic Reports of States
Parties as at the 45th Ordinary Session of the Commission stood as follows:2
No.
1.
2.
3.
4.
2
Category
States which have submitted and
presented all Reports
States which have submitted all their
Reports and will present the next Report
at the 46th Ordinary Session of the
African Commission
States which have submitted one (1) or
two (2) Reports but still owe more
Reports
States which have not submitted any
Report
Updated: May 2009
Number
of States
12
6
23
12
EX.CL/529(XV)
Page 1
a) States which have submitted and presented all their Reports:
No.
1.
2.
3.
4
5.
6.
7.
8.
9.
10
11.
12.
State Party
Algeria
Benin
Kenya
Mauritius
Nigeria
Rwanda
Sudan
Tanzania
Tunisia
Uganda
Zambia
Zimbabwe
b) States which have submitted all their Reports and will present the latest one
at the 46th Ordinary Session of the ACHPR:
No.
1.
2
3.
4.
5.
6.
State Party
Botswana
Cameroon
DRC
Ethiopia
Madagascar
Congo
c) States which have submitted two or more reports but owe more:
No.
1.
2.
3.
4.
5.
6.
State Party
Burkina Faso
Gambia
Ghana
Namibia
Senegal
Togo
Status
1 overdue Report
6 overdue Reports
3 overdue Reports
2 overdue Reports
1 overdue Report
2 overdue Reports
EX.CL/529(XV)
Page 1
d) States which have submitted one report but owe more:
No.
1.
2..
3..
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
State Party
Angola
Burundi
Cape Verde
Central African Republic
Chad
Egypt
Guinea Republic
Lesotho
Libya
Mali
Mauritania
Mozambique
Niger
Saharawi Arab Democratic Rep
Seychelles
South Africa
Swaziland
Status
5 overdue Reports
3 overdue Reports
5 overdue Reports
1 overdue Report
4 overdue Reports
1 overdue Report
5 overdue Reports
3 overdue Reports
1 overdue Report
4 overdue Reports
2 overdue Reports
5 overdue Reports
2 overdue Reports
2 overdue Reports
2 overdue Reports
1 overdue Report
3 overdue Reports
e) States which have not submitted any reports:
No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
State Party
Comoros
Côte d'Ivoire
Djibouti
Equatorial Guinea
Eritrea
Gabon
Guinea Bissau
Liberia
Malawi
Sao Tome & Principe
Sierra Leone
Somalia
Status
10 overdue Reports
7 overdue Reports
8 overdue Reports
10 overdue Reports
4 overdue Reports
10 overdue Reports
11 overdue Reports
12 overdue Reports
9 overdue Reports
10 overdue Reports
12 overdue Reports
11 overdue Reports
PROTECTION ACTIVITIES
135.
During the inter – session period between the 44th and the 45th Ordinary
Sessions, the ACHPR undertook several measures pursuant to Articles 46 to 59
of the African Charter, to ensure the protection of human and peoples’ rights on
the continent. These included, among others, writing Urgent Appeals in reaction
EX.CL/529(XV)
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to allegations of human rights violations received from stakeholders, and Press
Releases addressing human rights violations.
136.
In addition, during the 45th Ordinary Session, a total of eighty (80)
Communications were tabled before the ACHPR: five (5) on Seizure; fifty three
(53) on Admissibility; twenty one (21) on the Merits; and one (1) for review.
137.
The following Communications were seized of by the ACHPR;
i.
ii.
iii.
iv.
v.
Communication 350/2007 – Sizalobuhle Moyo Mpofu v. Zimbabwe
Communication 351/ 2007 – Givemore Chari v. Zimbabwe
Communication 352/2007 – Sarah Mwatenga v. Zimbabwe
Communication 374/2009 – Morin Family v. Seychelles
Communication 375/2009 – Acleo Kalinga (represented by REDRESS,
OMCT and IRCT) v. Uganda.
138.
The parties concerned (States Parties and Complainants), have been duly
informed of the decisions of the ACHPR.
139.
The ACHPR considered and adopted decisions on the merits of five (5)
Communications, two of which were consolidated. These are:
i.
ii.
iii.
iv.
Communication 276/2003 – Centre for Minority Rights Development on behalf
of Endorois Community v. Kenya;
Communication 266/2003 – Kevin Mgwanga Gumne et al v. Cameroon ;
Communication 235/2000 – Dr. Curtis Doebbler v. Sudan ;
Communication 279/03 and 296/05 – Sudan Human Rights Organisation &
Centre on Housing Rights and Evictions v. The Sudan.
140.
One of these Communications, 266/2003 - Kevin Mgwanga Gumne et al v.
Cameroon, is attached to this Report as Annex IV. The other four
Communications are being finalized, and will be transmitted to the parties (States
Parties and the Complainants), after which they will be attached to the twentyseventh (27th) Activity Report of the ACHPR to the AU Heads of State and
Government in accordance with Articles 54 and 59 of the African Charter.
141.
Consideration of seventy one (71) Communications was deferred to the 46th
Ordinary Session, for various reasons, including time constraints and lack of
response from one or both parties.
142.
Communication 262/2002 – Ivorian Human Rights Movement (MIDH) /Côte
d’Ivoire and Communication 281/2003 - Mr. Marcel Wetsh’okonda Koso and
others/Democratic Republic of Congo, decided during the 42nd and 44th
Ordinary Sessions respectively, are attached to this report as Annex 2.
EX.CL/529(XV)
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ADOPTION OF MISSION REPORTS
143.
During the Session, the ACHPR adopted the following Mission Reports:
i.
Promotion Mission to the Republic of Benin;
ii.
Promotion Mission to the Republic of Ethiopia;
iii.
Promotion Mission to the Republic of Liberia;
iv.
Promotion Mission to the Republic of Seychelles;
v.
Joint Promotion Mission to Republic of Togo;
vi.
Promotion Mission to the Republic of Tunisia;
vii.
Joint Mission of the Special Rapporteur on the Rights of Women in Africa and
the Special Rapporteur on the Rights of Human Rights Defenders in Africa, to
Libya.
REPORT OF THE ADVISORY COMMITTEE ON BUDGET AND STAFF
MATTERS
144.
During the 6th Extraordinary Session, the ACHPR decided to set up an Advisory
Committee on Budget and Staff Matters, consisting of four Commissioners and
three staff of the Secretariat, to facilitate the preparation and implementation of
the programmes budget of the ACHPR. The Advisory Committee presented its
report to the ACHPR during the Private Session, and was tasked with
immediately working on the year 2010 Programmes Budget of the ACHPR, and
implementation of the approved structure of the ACHPR.
RULES OF PROCEDURE
145.
During the inter-session, the ACHPR transmitted its Interim Rules of Procedure to
all States Parties, and also posted them on its website, together with an invitation
to all its partners, to make comments on the Interim Rules. Several comments
were made by some partners including States Parties, NGOs, NHRIs and
Academic institutions. The comments were collated by the Secretariat, which
placed them before the ACHPR for consideration. However, because the
deadline for submission of comments on the Rules was 31 May 2009, it was not
possible for the ACHPR to finalise consideration of the comments during its 45th
Session. This task will, therefore, be carried over unto the next inter- session
period and possibly into the 46th Ordinary Session.
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CONCLUDING OBSERVATIONS
146.
The ACHPR adopted Concluding Observations on the Periodic Reports of the
Republics of Uganda, Benin, the Sudan and Mauritius. The Concluding
Observations are being finalised and will be transmitted to the States Parties
shortly, and subsequently be posted on the ACHPR Website.
RESOLUTIONS
During the 45th Ordinary Session, the ACHPR adopted the following three
Resolutions, which are attached hereto as Annex V:
147.
i.
Resolution on the Cooperation between the ACHPR and the African
Committee of Experts on the Rights and Welfare of the Child in Africa;
ii.
Resolution on the Establishment of an Advisory Committee on Budgetary and
Staff Matters;
iii.
Resolution on the Transformation of the Focal Point on the Rights of Older
Persons in Africa into a Working Group on the Rights of Older Persons and
People With Disabilities in Africa.
SESSION REPORTS
The ACHPR adopted the Reports of its 43rd, 44th and 45th Ordinary Sessions as
well as the 6th Extra Ordinary Session.
148.
6TH EXTRA- ORDINARY SESSION
149.
The ACHPR held its 6th Extra-Ordinary Session from 30 March to 3 April 2009 in
Banjul, The Gambia. All the members of the ACHPR attended the Session,
except two.
150.
The Extra - Ordinary Session was convened, amongst other things, to deal with
the backlog of work including Communications, and to discuss the budget and
programme activities of the ACHPR for the year 2009.
151.
During the Extra-Ordinary Session, the following Communications were finalised
on the merits by the ACHPR:
i.
Communication 294/2004 - Zimbabwe Lawyers for Human Rights and
Institute for Human Rights and Development (on behalf of Andrew Barclay
Meldrum) v. Zimbabwe;
ii.
Communication 297/2005 - Scanlen and Holderness v. Zimbabwe;
EX.CL/529(XV)
Page 5
iii.
Communication 284/2004 – Zimbabwe Lawyers for Human Rights and
Associated Newspapers of Zimbabwe v. Zimbabwe.
152.
The decisions of the ACHPR on each of these Communications have been
forwarded to the respective parties, and the same are attached hereto as Annex
III.
153.
Also during the 6th Extra - Ordinary Session, the following Communications were
seized of by the ACHPR:
154.
i.
Communication 367/09 – Socio Economic Rights and Accountability Project
(SERAP) v. Nigeria;
ii.
Communication 368/09 - Abdelhadi Ali Radi and Others v. Sudan;
iii.
Communication 369/09 - Leke Theodore Mutengene Tow v. Cameroon;
iv.
Communication 370/09 - Social and Economic Rights Action Centre (SERAC)
v. Nigeria;
v.
Communication 371/09 - Emmanuel Niyonzima v. Burundi;
vi.
Communication 372/09 - Adolfo Samuel Beira (represented by Zelda de
Vasconcelos) v. Mozambique
All the parties were duly informed of the action taken by the ACHPR in relation to
their respective cases.
DATES AND VENUE OF THE 46th ORDINARY SESSION
155.
The ACHPR decided that the 46th Ordinary Session will be held from 11 to 25
November 2009, at a venue still to be determined.
ADOPTION OF THE 26TH ACTIVITY REPORT
156.
In accordance with Article 54 of the African Charter on Human and Peoples’
Rights, the ACHPR submits the present 26th Activity Report to the 15th Ordinary
Session of the Executive Council of the African Union, for consideration and
onward transmission to the 14th Summit of the AU Heads of State and
Government.
EX.CL/529(XV)
Page 1
ANNEXES
Annex 1-
Agenda of the 45th Ordinary Session
Annex 2 –
Communications adopted during 42nd and 44th Ordinary Sessions
Annex 3 –
Communications decided during the 6th Extra –Ordinary Session
Annex 4 –
Communication decided the 45th Ordinary Session
Annex 5 –
Resolutions adopted during the 45th Ordinary Session
EX.CL/529(XV)
Annex 1
Page 1
ANNEX 1: AGENDA OF THE 45TH ORDINARY SESSION
AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
African Commission on Human &
Peoples’ Rights
Commission Africaine des Droits de
l’Homme et des Peuples
48, Kairaba Avenue, P. O. Box 673, Banjul, The Gambia Tel: (220) 4 392 962 Fax: (220)
4390 764 E-mail: achpr@achpr.org Web: www.achpr.org
Rev.5
AGENDA OF THE 45th ORDINARY SESSION OF THE AFRICAN
COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
(13th – 27th May 2009, Banjul, The Gambia)
Item 1: Opening Ceremony (Public Session)
Item 2: Adoption of the Agenda (Private Session)
Item 3: Organisation of Work (Private Session)
Item 4: Human Rights Situation in Africa (Public Session)
a) Statements by State Delegates;
b) Statement by African Union Organs with Human Rights mandate;
c) Statements by Intergovernmental and International Organizations;
d) Statements by National Human Rights Institutions;
e) Statements by NGOs.
Item 5: Cooperation and Relationship with National Human Rights Institutions
(NHRIs) and Non-Governmental Organizations (NGOs) (Public Session)
a) Relationship between the ACHPR and NHRIs
b) Cooperation between the ACHPR and NGOs:
i.
ii.
Relationship with NGOs;
Consideration of Applications for Observer Status from NGOs.
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Item 6: Consideration of State Reports (Public Session)
a) Status of Submission of State Party Reports
b) Consideration of the :
i. Combined Periodic Report of Republic of Mauritius;
ii Periodic Report of the Republic of Uganda; and
iii. Periodic Report of the Republic of Benin;
Item 7: Activity Reports of Members of the Commission & Special
Mechanisms (Public Session)
a) Presentation of the Activity Reports of the Chairperson, Vice-Chairperson
and Members of the ACHPR;
b) Presentation of the Activity Reports of Special Mechanisms of the ACHPR:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
Special Rapporteur on Prisons and Conditions of Detention in Africa;
Special Rapporteur on the Rights of Women in Africa;
Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced
Persons and Migrants in Africa;
Special Rapporteur on Human Rights Defenders in Africa;
Special Rapporteur on Freedom of Expression and Access to
Information in Africa;
Chairperson of the Working Group on the Implementation of the Robben
Island Guidelines;
Chairperson of the Working Group on the Situation of Indigenous
Peoples/Communities in Africa;
Chairperson of the Working Group on Economic, Social and Cultural
Rights in Africa;
Chairperson of the Working Group on the Death Penalty;
Chairperson of the Working Group on Specific Issues Relevant to the
Work of the African Commission;
Chairperson of the Focal Point on the Rights of Older Persons.
Item 8: Consideration of (Private Session)
a)
b)
c)
d)
e)
Draft Paper on Sexual orientation in Africa;
Final ACHPR / ILO Research Report;
Comments on ACHPR Rules of Procedure;
The Report of the Committee on Budget and Staff Matters;
Appointment of Members of the Working Group on the Rights of
Persons & Persons with Disability.
Older
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Item 9: Consideration and Adoption of Draft Reports of (Private Session)
a) Promotional Missions to the:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
Federal Democratic Republic of Ethiopia;
Great Socialist People’s Libya Arab Jamahiriya;
Republic of Liberia;
Republic of Benin;
Republic of Seychelles;
Republic of Tunisia;
Republic of Tanzania; and
Republic of Togo.
b) Information and Research Visit to the Republic of Gabon.
Item 10: Consideration of Communications: (Private Session)
Item 11: Report of the Secretary: (Private Session)
Item 12: Consideration and Adoption of (Private Session)
a) Recommendations, Resolutions and Decisions;
b) Concluding Observations on the Periodic Report of the:
• Sudan;
• Republic of Benin;
• Republic of Uganda; and
• Republic of Mauritius;
Item 13:
Session)
Dates and Venue of the 46th Ordinary Session of the ACHPR (Private
Item 14: Any Other Business (Private Session)
Item 15: Adoption of: (Private Session)
a) 26th Activity Report;
b) Final Communiqué of the 45th Ordinary Session;
c) Report of the 43rd Ordinary Session
d) Report of the 44th Ordinary Session;
e) Report of the 45th Ordinary Session; and
f) Report of the 6th Extraordinary Session.
Item 16: Reading of the Final Communiqué and Closing Ceremony (Public Session)
Item 17: Press Conference (Public Session)
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Annex 2 – Communications adopted during 42nd and 44th
Ordinary Sessions
a.
COMMUNICATION 262/2002 - IVORIAN
MOVEMENT (MIDH) /CÔTE D’IVOIRE
HUMAN
RIGHTS
b.
COMMUNICATION 281/2003 - MR. MARCEL WETSH’OKONDA
KOSO AND OTHERS/DEMOCRATIC REPUBLIC OF CONGO
Communication 262/2002 – Ivorian Human Rights Movement (MIDH) /Côte d’Ivoire
Summary of the Facts:
1. On the 24th October 2002, the Secretariat of the African Commission on Human
and Peoples’ Rights received from Mr. Zoro Bi Ballo Epiphane, President of the
Ivorian Human Rights Movement (MIDH)1, a Communication presented on behalf
of this NGO, in application of Article 55 of the African Charter on Human and
Peoples’ Rights (the African Charter).
2. The Communication is instituted against the Republic of Côte d’Ivoire (State
Party2 to the African Charter and hereinafter referred to as Côte d’Ivoire) and the
MIDH alleges that the current policy of denial of identity which has been in force
for several years in Côte d’Ivoire and which some people call “Ivoirité”, has led to
the passing of laws by the State which are of an unprecedented discriminatory
nature in the country.
3. Alluding to the Constitution currently in force in Côte d’Ivoire and which is said to
prevent a certain category of Ivorians from acceding to certain public offices
including that of President of the Republic, due to their origin as well as the law
on the identification of Ivorians which in reality is said to be intended to deprive
some Ivorians of their nationality for political reasons, the Communication alleges
specifically that the Law No. 98-750 of the 23rd December 1998 establishing the
regulation of Rural Land Ownership, in its Article 26, paragraphs 1 and 2, is in
contradiction with the relevant provisions of the African Charter on Human and
Peoples’ Rights.
1
The MIDH is an NGO based in Côte d’Ivoire and which enjoys Observer Status with the African
th
Commission on Human and Peoples’ Rights since October 2001 (30 Ordinary Session).
2
th
Côte d’Ivoire ratified the African Charter on the 6 January 1992.
EX.CL/529(XV)
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The Complaint:
4. The MIDH contends that the Law No. 98-750 of the 23rd December 1998
establishing the regulation of Rural Land Ownership, in its Article 26, paragraphs
1 and 2 is in contradiction with Articles 14 and 2 of the African Charter on Human
and Peoples’ Rights.
5. The MIDH therefore requests the African Commission to recommend the review
of the Law No. 98-750 of the 23rd December 1998 establishing the regulation of
the Rural Land Ownership in its Article 26, paragraphs 1 and 2 to Côte d’Ivoire.
The Procedure:
6. By letter ACHPR/COMM 262/2002 of the 30th October 2002, the Secretariat of
the African Commission acknowledged receipt of the Communication to the MIDH
specifying that this Communication would be recorded in the Agenda of the
Commission which would consider it for seizure at its 33rd Ordinary Session
scheduled for the 5th to 19th May in Niamey, Niger.
7. During its 33rd Ordinary Session which took place from 15th to 29th May 2003 in
Niamey, Niger, the Commission examined this Communication and decided to be
seized of it.
8. By Note Verbale ACHPR/COMM/262/2002 of the 11th June 2002, the Secretariat
of the Commission wrote to the Respondent State informing it of the decision and
requesting it to convey its arguments on the admissibility of the case to the
Commission within three months. A copy of the complaint had been attached to
this memo. It is important to recall that the copy of this complaint had been
handed to the delegate of the Respondent State during the 33rd Ordinary Session
of the Commission which had taken place in May 2003 in Niamey, Niger.
9. By letter ACHPR/COMM/262/2002 of even date, the Secretariat of the
Commission informed the Complainant of the Commission’s decision and
requesting it to convey to the latter its arguments on the admissibility of the case
within three months.
10. During its 34th Ordinary Session which was held from 6th to 19th November 2003
in Banjul, The Gambia, the delegation from the Respondent State presented Côte
d’Ivoire’s reaction to the Communication. The delegation further delivered to the
African Commission a written memo in which figured the said observations and
arguments pertaining to the admissibility of the Communication.
11. At its 35th Ordinary Session which was held from 21st May to 4th June in Banjul,
The Gambia, the African Commission considered the Communication and
deferred its decision on the admissibility of the Complaint to its 36th Ordinary
Session.
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12. By letters dated 21st June 2004 the Secretariat of the African Commission
communicated this decision to all the Parties to the Communication and
requesting them to convey to the Commission, for all intents and purposes, any
extra arguments they may have on admissibility.
13. On the 27th September 2004, the Secretariat of the African Commission received
a letter from the Complainant in which it outlined its reaction to the arguments put
forward by the Respondent State with regard to the admissibility of the Complaint.
14. On the 11th October 2004, the Secretariat conveyed this memo to the
Respondent State.
15. At its 36th Ordinary Session which took place from 23rd November to 7th
December 2004 in Dakar, Senegal, the African Commission examined the
Complaint and declared it admissible.
16. By Note Verbale of the 20th December 2004, the Secretariat conveyed this
decision to the Respondent State and invited it to submit its arguments on the
merits within three months, to enable it examine the Complaint at this stage
during the 37th Ordinary Session.
17. On this same date a letter had been sent to the Complainant informing it of the
African Commission’s decision and requesting its arguments on the merits of the
Complaint.
18. During its 37th Ordinary Session which took place from the 27th April to 11th May
2005 in Banjul, The Gambia, the African Commission examined the Complaint
and, granting the request of the Respondent State, decided to defer its ruling on
the merits of the Communication to its 38th Ordinary Session.
19. This decision had been conveyed to the Parties to the Complaint on the 30th June
2005. On this occasion, the Secretariat had notably reminded the Respondent
State that its arguments on the merits of the case were still pending.
20. On the 12th September 2005, in the absence of any reaction from the Respondent
State, a reminder letter had been sent to it.
21. On the 7th November 2005, the Respondent State conveyed its arguments on the
merits of the Communication to the Secretariat.
22. On the 10th November 2005, the Secretariat acknowledged receipt and conveyed
the said arguments to the Complainant for its reaction.
23. During the 38th Ordinary Session which was held from 21st November to 5th
December 2005 in Banjul, The Gambia, the African Commission examined the
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Complaint and, in the absence of any reaction from the Complainant with regard
to the supplementary arguments submitted by the Respondent State on the
merits of the Complaint, decided to defer the case to its 39th Session.
24. On the 10th January 2006, the Secretariat informed the Parties of this decision.
25. On the 23rd March 2006, the Secretariat sent a reminder to the Complainant for
its reaction to the memo from the Respondent State on the merits of the case. A
copy of the document had been attached to the reminder letter, for all intents and
purposes.
26. During its 39th Ordinary Session held in Banjul from 11th to 25th May 2006, the
Commission decided to defer its decision on the merits to its 40th Ordinary
Session and so informed the Parties by letter ACHPR/LPROT/COMM
262/2002/RK dated 30th June 2006.
27. On the 28th September 2006, the Secretariat of the African Commission wrote a
letter ACHPR/LPROT/COMM 262/2002/VC to the Complainant reminding it that
its reaction to the arguments of the Respondent State was still pending.
28. The Complainant has not reacted to the arguments submitted by the Respondent
State on the merits of the Complaint. Another reminder had again been sent to it
in September 2006 and this also has remained without response. The African
Commission gave a last chance to the Complainant to react to the arguments
submitted by the Respondent State and deferred its consideration of the merits of
the Complaint to the 41st Ordinary Session.
29. The Complainant, by letter dated 17th November 2006 and sent to the Secretariat
of the Commission on the 20th November 2006, indicated that it did not have any
new arguments to submit following the Memorandum on the merits presented by
the Ivorian Government.
30. During its 41st Ordinary Session held in Accra, in May 2007, the African
Commission registered the request submitted by one of the Parties, notably the
Ivorian State, which consisted in requesting the ACHPR to defer its decision on
the merits on the grounds that the current reconciliation process in Côte d’Ivoire
would take care of the subject of the dispute which opposed the MIDH (IHRM)
and the Ivorian State in the context of an amicable settlement.
31. The African Commission, at its 41st Ordinary Session held in Accra, Ghana in
May 2007, had decided to grant the request submitted by the Respondent State
and had deferred its decision on the merits to the 42nd Ordinary Session
scheduled to take place in Brazzaville, Congo, from 14th to 28th November 2007.
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32. Since its decision on deferment taken at its 41st Ordinary Session in Accra,
Ghana, up to the 42nd Session held in Brazzaville, Congo, the African
Commission has not received any other comment or request from the two Parties,
namely neither from the Complainant Party, the MIDH (IHRM), nor the Ivorian
State
33. However, during the 42st Ordinary Session, in Brazzaville, Congo, the African
Commission ha received an new letter from the Ivorian State which request the
ACHPR to defer again its decision on the merits on the grounds that the current
reconciliation process in Ivory Coast..
34. In this same letter received by the ACHPR during its 42st Ordinary Session, the
Ivorian State provides some annexes showing how the negotiations between the
State and one association, specially the Association of the Malians in Ivory Coast,
are going in process and also promises to send in the next future others
evidences of the process of the negotiations in Ivory Coast, specially between
Open Society Justice and the MIDH.
The Law:
Admissibility:
35. The African Charter on Human and Peoples’ Rights stipulates in its Article 56 that
the Communications referred to in Article 55, to be considered, should
necessarily be sent after exhaustion of local remedies, if any, unless the
procedure of exhaustion of local remedies is unduly prolonged. It is important to
examine the applicability of the conditions governing the exhaustion of local
remedies in the present Communication.
36. In this case, the Complainant indicates that “In Côte d’Ivoire, the remedies
against the laws should be brought before the Constitutional Council. Whereas
according to Article 77 of the Ivorian Constitution laws can only be brought before
the Constitutional Council before they are promulgated”. It concludes therefore
that “the law in question can no longer be brought before the Ivorian
Constitutional Council as it has already been promulgated, indeed as well as all
of its decrees of application”.
37. The Complainant further contends that it could not have had recourse to a local
remedy in this case as Article 77 of the Constitution of Côte d’Ivoire stipulates
that laws can only be brought before the Constitutional Council by the Speaker of
the National Assembly, or by at least one tenth of the National Assembly
Members, or by Parliamentary Groups, or by the Human Rights Defender
Associations which are legally established and only where it is a question of laws
which are relative to public liberties where the said Associations are concerned;
which is obviously not the case of the contentious law currently being called into
question.
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38. The MIDH concludes therefore that the obligation for the exhaustion of local
remedies beforehand is not, as a result, applicable to the present Complaint.
39. In its memorandum conveyed to the African Commission in November 2003, the
Respondent State argues that, for its part, the Communication is inadmissible
due to the “non-exhaustion of local remedies and to the disparaging and insulting
nature of the said Communication”.
40. The Respondent State points out that pertaining to the non-exhaustion of local
remedies, contrary to the affirmation of the Complainant, there is, by virtue of the
provisions of Article 96 of the Ivorian Constitution, the possibility for any
Complainant to invoke a plea on the unconstitutionality of a law, since the
modalities for the implementation of this remedy are governed by law. The fact
that the Complainant did not use this remedy, contends the Respondent State,
shows that it has not exhausted local remedies and that the Communication
should therefore be declared inadmissible.
41. Reacting to this argument in a counter memorandum addressed to the African
Commission in September 2004, the Complainant argues that no local remedy
had been available in this case, even if other parties had access to such a
remedy. The Complainant further observed that before the African Commission,
the condition for the exhaustion of local remedies should be assessed in relation
to the plaintiff (in this case the MIDH) and to the plaintiff alone, and not in relation
to third parties who may be entitled to complain about the alleged violation.
42. Thus, the Complainant argues that the recourse to a plea of unconstitutionality
invoked by the Respondent State to say that a final remedy exists locally is not
available to it as it is only possible to invoke a plea of the unconstitutionality of a
law during a hearing. Whereas the MIDH, a legal entity which does not own
property in the domain of rural landownership, cannot be the object of a suit of
expropriation or dispute, making possible the application of the law in question
and where the possibility of the remedy alluded to by the Respondent State could
be implemented. The very fact that the MIDH cannot initiate the remedy of a plea
of unconstitutionality shows, argues the Complainant, that this remedy is not
available to it.
43. Furthermore, concludes the Complainant, the implementation of the recourse to a
plea of unconstitutionality by foreign individuals, owners of land in the rural real
estate is “illusory” given the context which currently prevails in Côte d’Ivoire
where “any questioning of decisions by the public Authorities is seen as an act of
belligerence”.
44. With regard to the “disparaging and insulting nature” of the Communication, the
Respondent State indicates that the Complainant referred to Côte d’Ivoire as “a
xenophobic and exclusionist country” and where “foreigners are called invaders”,
the nationals as “Ivorians of extraction” and “appropriate Ivorians” in the name of
EX.CL/529(XV)
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a “policy of denial of identity”. The Respondent State considers, in particular, that
the use of these terms is insulting towards Côte d’Ivoire which has more than
26% of foreigners within its entire population.
45. Moreover, the Respondent State contends that the use of the words like
“xenophobia” and “exclusionist” to qualify Cote d’Ivoire or to lead people to
believe that this country is trying to establish a policy of “denial of identity” is an
insult. The Respondent State concludes that the Communication, for the abovementioned reasons, should be declared inadmissible.
46. The Complainant reacts to these arguments by saying that the words quoted are
not used to qualify the State or its Institutions but simply to describe a situation
which is “much sadder” where large-scale assassinations of individuals had been
perpetrated “just because of their nationality or presumed nationality of origin”.
The disparaging and insulting nature of the words used in the
Communication:
47. The Respondent State contends that the words used by the Complainant in the
Communication are disparaging and insulting for Cote d’Ivoire. Indeed, words like
“xenophobia”, “exclusionist”, “discriminatory”, are used in the Communication but
the African Commission considers that these words are not used in an insulting
and disparaging context for the Respondent State but rather have been used to
describe a situation which has been condemned and it would be difficult to
describe it differently.
48. The African Commission therefore does not accept the argument that the words
used in the Communication are disparaging and insulting against the Respondent
State.
The non-exhaustion of local remedies:
49. According to the arguments submitted by the Parties to this Complaint the African
Commission observes that local remedies exist against the law being challenged
but it would appear that the Complainant does not have the necessary
qualifications to exercise this remedy.
50. In effect, the remedy consisting in bringing the disputed law before the
Constitutional Council is only available for a certain category of citizens, in this
case, the President of the Republic of Côte d’Ivoire and the Members of
Parliament.
51. With regard to the remedy of a plea of unconstitutionality of the law in question, if
it does exist, it is clear that the Complainant cannot use it. Not being a land owner
in the rural real estate domain, the Complainant is indeed hardly likely to be a
party to an eventual suit linked to the implementation of the law being challenged.
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52. As a legal entity, the Complainant is well placed to question a legal provision of a
State Party to the African Charter which is said to violate the said Charter without
prejudice to the facility reserved to third parties to institute proceedings against
the provision in question before the national courts.
53. Now, under the terms of Article 19 of the Law No. 2001-303 of the 5th June 2004
determining the organization and functioning of the Constitutional Council the
proceedings for a plea of unconstitutionality take place during a hearing.
Therefore it logically follows that the recourse to a plea of unconstitutionality is
not available for the Complainant.
54. The African Commission accepts that remedies against the law in question exist
locally but also notes that the Complainant cannot use them as it does have the
qualification/possibility to do so. Whereas the African Commission feels that the
assessment of the capacity to use and exhaust local remedies is done in relation
to the Complainant and to him alone.
55. In this context it is important to recall the jurisprudence of the African Commission
pertaining to the condition of exhaustion of local remedies. In effect, the African
Commission considers that local remedies should be available (for the
Complainant), effective and sufficient. Thus, the African Commission considers
that a local remedy is available if the plaintiff can institute a lawsuit without any
obstacle; the remedy is effective if it offers the plaintiff a prospect of success and
if this remedy is sufficient and capable of rectifying the alleged3 violation.
56. Since in this particular case it appears clearly that the Complainant does not have
the qualification/possibility to use the available local remedies, the African
Commission considers that it is as if there is no local remedy available for the
Complainant.
For these reasons, the African Commission declares the Communication
admissible.
The Merits:
57. The Respondent Party, in its arguments on the merits, challenges the MIDH’s
assertion that the law on rural land ownership is one of the major reasons for the
civil war which is tearing Côte d’Ivoire apart.
58. The Respondent Party considers this assertion as serious and inaccurate.
Serious because it insinuates that it is the foreigners, the only ones concerned by
Article 26 of the Law being questioned, who have taken up arms against the
State of Côte d’Ivoire. Inaccurate because this is not the cause being invoked by
3
Grouped Communications 147/95 and 149/96 – Sir Dawda K. Jawara/The Gambia
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those who have taken up arms, and that besides, “112 persons are concerned by
the effects of Article 26 out of which 40 are Companies and 112 are physical
persons”. The Respondent Party notes that the Communications from the
Complainant are only stories of the undertaking, preparation and justification of
violence.
59. After its preliminary observations on what it calls the “real reasons” of the
Complainant, the Respondent Party was particularly anxious to send a copy of
the Official Gazette of the Republic of Côte d’Ivoire containing the promulgation
decree signed by the President of the Republic, of the new Law No. 2004-412 of
the 14th August 2004 amending Article 26 of the Law No.98-750 of 23rd December
1998 relating to rural land ownership to the African Commission.
60. On the basis of this new Law No. 2004-412 which modifies the provisions of
Article 26 of the former Law 98-750 on which the Complainant has based its
Communication, the Ivorian Government requests the African Commission to
declare the Communication 262/2002 of the MIDH as groundless and to close
this case by applying the principle of topicality which requires that all
administrative or legal bodies assess the facts of the case in the condition in
which they are on the day of ruling.
61. The Complainant considers it needless to submit fresh arguments since on the
one hand the admissibility of the Communication has not been questioned, and
on the other, because the Law No. 98-750 of 2nd December 1998, identified as
being in violation of the provisions of Articles 2 and 14 of the African Charter on
Human and Peoples’ Rights has been judged prejudicial to the fundamental
Human Rights by numerous Courts whose competence and respectability have
been unanimously recognized.
62. Furthermore, the Complainant observes that the various peace negotiations on
the Ivorian crisis have, after the MIDH, tackled the issue and recommended the
modification of Article 26 of the Law 98-750 of 23rd December 1998. The same is
true for the Marcoussis Accords of 24th January 2003, in their Item IV – land
property system, paragraph 2.
63. The Complainant all the same accepts that, like the Government of Côte d’Ivoire,
following the Marcoussis Accords, the National Assembly of Côte d’Ivoire had
passed a new Law No. 2004-412 dated 14th August 2004 on the amendment of
Article 26 of the Law No. 98-750 of 23rd December 1998 and relative to rural land
ownership.
64. The Complainant thus feels that it has scored a victory and requests the African
Commission to mention this credit in its decision on the merits.
Debate on the need to pursue consideration of the merits or otherwise
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65. The Commission takes note of the request from the Respondent Party to declare
the Communication submitted by the MIDH as groundless, due to the fact that the
provisions of Article 26 of the Law 98-750 being challenged by the Complainant
had been modified by the new Law 2004-412 and that in consequence this
modification gives the plaintiff satisfaction.
66. The Commission notes with interest the arguments raised by the Ivorian State to
justify its request for declaring the Communication groundless and for closing the
case, notably the principle of topicality which requires that all judicial or
administrative bodies assess the facts of a case in the state in which they are on
the day of its ruling.
67. The Commission further notes that the Ivorian State, in its arguments on the
merits, alludes to the former jurisprudence of the Commission (notably
Communications 66/92 Lawyers Committee for Human Rights vs. Tanzania,
22/88 International Pen vs. Burkina Faso and 16/88 Cultural Committee for
Democracy in Benin vs. Benin). The Commission observes that the Respondent
Party relies mainly on this said jurisprudence to base its request for the
Communication to be pronounced groundless and for the closure of the case.
68. The Commission considers, furthermore, that the Complainant, in spite of the fact
that it does not bring any new arguments following the conclusions drawn on the
merits by the Ivorian Government, does not for all that renounce its suit before
the Commission and does not withdraw its Complaint. Better still, the
Complainant is asking the Commission to recognize, on making its decision, its
credit for having been the first Organization to have drawn attention on the
prejudicial nature of the Article 26 of the Law 98-750 on rural landownership to
Human Rights.
69. The Commission moreover notes the concern expressed by the Complainant to
ensure the effective implementation of the provisions of the Law 2004-412
amending Article 26 of the Law, and above all, acquisition of help in obtaining
compensation for the prejudices suffered by numerous populations for six (6)
years during which the Law No. 98-750 of the 23rd December had remained in
force.
70. From the preceding arguments submitted by the two Parties, the Commission
considers it its responsibility to determine whether or not to pursue the
consideration of the merits of the present Communication.
View of the Commission on the need to pursue consideration of the merits
or otherwise
71. The Commission considers that the Communications 66/92, 22/88 and 16/88
invoked by the Respondent Party to justify its request to the Commission to
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declare the Communication groundless and to close the case, should be
assessed on a case by case basis and can in no way constitute a constant
jurisprudence of the Commission.
72. Relying on its jurisprudence, the Commission has always dealt with the
Communications by ruling on the alleged facts at the time of the presentation of
the Communication (see Communication 27/89, 46/91 and 99/93 World
Organization against Torture & al / Rwanda.). This jurisprudence had been
confirmed by the more recent decisions relating to Communications 222/98 and
229/99 – Law Office of Ghazi Suleiman / Sudan.
73. The Commission takes good note of the amendments to the Article 26 introduced
by the new Law 2004-412 and which are geared towards better guaranteeing the
right to property, but wishes to clarify that these new legislative provisions do not
wipe out the violations caused by the application of the former Law 98-750 which
produced effects for six (6) years, and therefore it was beholden, by virtue of its
mandate of protection, to rule on Communication 262/2002.
74. The Commission thereby concludes that, even if the law had been amended
since then, this change does not automatically draw a decision from the
Commission to close the case. In consequence, the Commission decides to
pursue consideration of the merits of Communication 262/2002 submitted by the
MIDH against the Republic of Côte d’Ivoire.
Consideration of the Merits: Provisions of the Charter alleged to have been
violated
75. The Complainant alleges the violation of Article 2 of the African Charter on
Human and Peoples’ Rights which stipulates that:
“Every individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction of any kind
such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national or social origin, fortune, birth or other status”.
76. The Complainant also alleges the violation of Article 14 of the African Charter on
Human and Peoples’ Rights which stipulates that:
“The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the Community and this in
accordance with the provisions of appropriate laws”.
77. The Commission notes that in its observations on the merits, the Government of
Côte d’Ivoire does not dispute the violations of Articles 2 and 14 of the African
Charter by the Article 26 of the Law 98-750 on rural land ownership. On the
contrary, it simply observes that its effects are limited as “the number of
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individuals concerned is from 112 of which 40 are Companies and 112 physical
persons, and that among these, there is a very small minority of Africans”.
78. As a result, the Commission considers that the provisions of Article 26 of the Law
98-750 are in violation of Articles 2 and 14 of the African Charter on Human and
Peoples’ Rights and notes that the argument that its effects are said to be limited
to a certain number of persons and only concerns a very small minority of
Africans is irrelevant from the legal point of view and therefore cannot stand. On
the other hand, such an interpretation confirms the violation of Article 2 of the
African Charter which guarantees the enjoyment of rights and freedoms without
distinction of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national or social origin, fortune, birth or other
status. Furthermore, the Commission considers that the application of Article 26,
paragraphs 1 and 2 of the Law 98-750 would give rise to the expropriation of their
land from a category of the population, on the sole basis of their origin; whereas,
it observes that the Ivorian Government, in its remarks on the merits, does not
advance any argument linked to the “public need” or to “ the general interest of
the community” which could exceptionally justify a violation to the right to property
as guaranteed by the Charter, specifically in its Article 14.
For these reasons, the African Commission
Observes that the Republic of Côte d’Ivoire is in violation of the provisions of Articles
2 and 14 of the African Charter on Human and Peoples’ Rights.
Observes that, even if Article 26 of the Law 98-750 of 23rd December 1998 had been
amended by the Law 2004-412 of the 14th August 2004, it has already shown its
effects during the six (6) years of its application.
Takes note of the current reconciliation process and of the ongoing negotiations in
Cote d’Ivoire.
Recommends to the Government of Côte d’Ivoire to ensure the effective application
of the provisions of the new Law 2004-412 of 14th August 2004 amending Article 26
of the Law 98-750 of the 14th August 2004.
Recommends to the Government of Côte d’Ivoire to ensure, if this has not already
been done, that all landowners who may have been deprived of their land by virtue of
the application of the former provisions of Article 26 of the Law 98-750 are restored
in their rights.
Urges the Government of Côte d’Ivoire, within the framework of the current drive to
achieve national reconciliation, to evaluate, if this has not already been done, the
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damages that the victims may have suffered by virtue of the application of the
provisions of Article 26 of the Law 98-750, and to pay, if need be, fair and equitable
compensation on their behalf.
Strongly urges the Ivorian State to pursue, within the framework of the current
national reconciliation process, the amicable settlement of all the disputes arising out
of the application of the former discriminatory laws and to scrupulously ascertain that
the principle of equality before the law, as stipulated in the African Charter, notably in
its Article 2, is respected under all circumstances.
Done at the 43rd Ordinary Session held in Ezulwini, Kingdom of Swaziland,
from 7th
to 22nd May 2008
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281/2003 - Marcel Wetsh’okonda Koso and others/Democratic Republic of Congo
Summary of Facts:
1. On 23rd September 2003, the Secretariat of the African Commission on Human
and Peoples’ Rights received from Barrister Marcel Wetsh’ Okonda Koso, solicitor
of the Kinshasa-Gombe Bench and of the NGO “Campagne pour les Droits de l’
Homme au Congo6, from Barrister Izua Kembo, solicitor of the Kinshasa- Gombe
Bench and member of the NGO “comite’ des Observateurs des Droits de l’
Homme7, and from Barrister Odette Disu, solicitor and member of the KinshasaGombe Bench, and of the NGO “ASMEBOKEN”8 a Communication, introduced
on behalf of 5 persons as follows:
- Ngimbi Nkiama Gaby, Contractor, born on 19.04.1958 in Kinshasa
- Bukasa musenga, Trade Inspector, born on 25.09.1967 in Kinshasa
- Duza kade willy, Soldier, born on 30.10.1963 in Lisala
- Issa Yaba, Femala Soldier, born on 10.04.1958 in Irebu, and
- Musalinsa Manoy, Soldier, born on 10.05.1958
2. The Communication is introduced against the Democratic Republic of Congo,
(State signatory9 to the African Charter, and hereinafter referred to as DRC in
accordance with Article 55 of the African Charter on Human and Peoples’ Rights
(the African Charter).
3. The Complainants allege that, on 23.07.1999, the said Ngimbo Nkiama placed an
order for the supply of 3.5 cubic metres of petrol at ELF (a petroleum company)
which he was supposed to collect on 26.06.1999 at SEP/Congo. But the said
Ngimbi Nkiama was arrested by policemen who are said to have discovered a
supply of 6 drums in surplus following his collection of 40 drums of fuel instead of
the 34 drums of fuel he initially ordered for.
4. Besides, the Complainants maintain that on 04.08.1999 the said Ngimbi Nkiama
was arrested and sent to the Conseil National de Sécurite quarters together with
four jointly – accused persons, Bukasa Musenga, Duza Kade Willy, Issa Yaba,
and Muzaliwa Manoy.
5. According to the Complainants, on the 11.09.1999, the said Ngimbi Nkiama and
the jointly – accused persons were arraigned before the Military Court of DRC for
6
CDHC- Asbl, 18 Avenue Basoko, commune of Ngaliema, Telephone: 00243 98186937
African Commission on Human and Peoples’ Rights since October, 2001 (30th Ordinary Session).
CODHO, Kinshasa-Gombe, commune of Kalamu, Telephone: 00243 9947822
8
Association Benjamin Moloise and Ken Saro Wiwa for the Defence of Human Rights and the
Development of Africa, 4251, Avenue Kabasele Tshamala- Kinshasa Barumbu Telephone
0024398212201; Email: groupe strategique @ yahoo.co, disuodette @ yahoo. Fr
9
The DRC ratified the African Charted on 20/07/1984)
7
EX.CL/529(XV)
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“ partaking, during war time, in the committing of acts of sabotage “by the
diversion of 70 drums of gas-oil and of 40 drums of gas-oil belonging to the
Congolese Armed Forces”.
6. And that the Military Court comprising 5 judges (among whom would be only one
trained jurist) tried the said Ngimbi Nkiama and his jointly-accused accomplices
for the evidence adduced against and sentenced them to a capital punishment, a
“decree on a ground without the least justification” and the right to file an appeal
against the decree; the decisions of the Military Court being not susceptible either
for a review or for an appeal (decree No.091 of 23.08.1997 establishing the
Military Court of DRC).
The Complaint:
7. The Complainants allege that the above-mentioned facts constitute a violation by
the DRC of Articles 7 (a) and 26 of the African Charter and of paragraph 3 of the
Provision for the right to the means of an appeal and of a fair trial, adopted by the
African Commission during its 11th Ordinary Session held in Tunis, Tunisia from 2
to 9 March 1992.
8. Furthermore, the Complainants maintain that the aforementioned facts constitute
a violation by the DRC of the Article 14(1) of International Covenant on Civil and
Political Rights.
9. Consequently, the Complainants request the African Commission to:
-
Declare Decree No. 019 of 23.08.1997, establishing a court for military order
and its Article 5, contrary to the international commitments of the DRC as far
as fair trial is concerned as stipulated in the African Charter;
Declare that the sole fact of submitting a dispute case to a Court the majority
of whose members have no legal qualification whatsoever, constitutes a
flagrant violation of Article 26 of the African Charter;
Declare that the judicial decisions on a simple ground without the least
justification grossly breach the right and liberties acknowledged by the African
Charter and violate the provisions of Article 7 of this latter;
Direct the immediate release of the sentenced persons and the reparation for
all the prejudices they have suffered;
Request the DRC to harmonise all her legislation with the commitments this
State subscribed to at international level and namely the African Charter and
to initiate reforms so as to prevent further human right violations.
The Procedure:
10. On 21.10.2003, the Secretariat of the African Commission acknowledged receipt
of this Communication to the Complainants through a letter with reference No.
ACHPR/COMM 281/ 2003.
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11. During its 34th Ordinary Session held from the 6th to 19th November 2003 in
Banjul, The Gambia, the African Commission examined this Communication and
approved its seizure.
12. On the 14/12/2003, the African Commission notified the Respondent State of this
decision by DHL, and at the same time conveyed to it a copy of the Complaint.
The African Commission had also requested the Democratic Republic of Congo
to provide it, in two months, with its reactions on this Complaint to enable it take a
decision on its admissibility during its 35th Ordinary Session.
13. On the 12th February 2004 and in the absence of any reaction from the
Respondent State, the African Commission sent a copy of the Complaint in
question with an acknowledgement of receipt to the Ministry of Foreign Affairs,
requesting its reaction as early as possible.
14. At its 35th Ordinary Session which was held from the 21st May to 4th June 2004
in Banjul, The Gambia, the African Commission considered the Communication
and deferred its decision on the admissibility of the case since the delegation of
the Respondent State which had participated at the Session declared, contrary to
all expectations, that the Complaint had not reached the DRC.
15. The Secretariat of the Commission prepared a complete dossier of all the
pending Communications against the DRC, including Communication 281/2003,
which it delivered in exchange for a receipt, to the DRC delegation.
16. By letter dated 21st June 2004, the Secretariat of the Commission informed the
Parties to the Communication of the deferment of its decision on the admissibility
of the Complaint to its 36th Session and requested them, once again, to provide it
with their comments in this regard so as to allow the African Commission to rule
on the admissibility during its 36th Session.
17. On the 16/09/2004, the Respondent State sent its comments on the admissibility
of the Communication to the Secretariat of the Commission.
18. The Secretariat acknowledged receipt of it on the 11/10/2004, and sent the said
comments to the Complainant requesting his reaction thereon as early as
possible.
19. During the 36th Ordinary Session of the African Commission which was held in
November/December 2004 in Dakar, Senegal, the Respondent State submitted
its memorandum on the admissibility of the Complaint to the Secretariat of the
African Commission.
20. On the 4th December 2004, the Secretariat of the African Commission
acknowledged receipt of this memorandum and informed the Respondent State
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that the African Commission would take its decision on admissibility of the
Complaint at its 37th Ordinary Session and would the arguments raised would be
taken into account.
21. On the 23rd December 2004, the Secretariat of the African Commission conveyed
the submission of the Respondent State on admissibility to the Complainant, and
requested his reaction to the arguments submitted therein and further informed
him that the African Commission would take its decision on the admissibility
during its 37th Ordinary Session.
22. At its 37th Ordinary Session which took place from the 27th April to 11th May 2005
in Banjul, The Gambia, the African Commission heard the Complainant on the
condition of the exhaustion of local remedies.
23. During this same Session, the African Commission declared the Communication
admissible.
24. On the 6th June 2005, the Secretariat informed the Parties of this decision and
requested them to transmit their arguments on the merits of the case.
25. On the 6th September 2005, the Complainant submitted his arguments on the
merits of the Complaint.
26. The Secretariat conveyed these observations to the Respondent State on the 8th
November 2005 at the same time requesting its own memorandum as early as
possible.
27. During its 38th Ordinary Session, which was held from 21 November to 5
December 2005 in Banjul, The Gambia, the African Commission considered the
complaint and, in the absence of the arguments of the Respondent State on the
merits of the case, decided to differ its decision at this stage to its 39th Ordinary
Session.
28. On 10/01/2006, the Secretariat of the African Commission informed the parties of
this decision and requested the Respondent State to forward its arguments on
the merits of the communication.
29. In the absence of reaction from the Respondent State, the Secretariat sent a
reminder on 28/03/2006. A copy of the submission of the Complainant on merits
of the case was enclosed.
30. In a note verbale dated July 12, 2006, the Secretariat urged DRC to provide with
its observations on the merits by no later than 30 August 2006. The Secretariat
further reminded DRC of previous notes verbale sent respectively on June 06,
2005, November 08, 2005 and January 10, 2006 all of which still with no reaction
from respondent State.
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31. At its 40th ordinary session held in Banjul, the Gambia from 15 to 29 November
2006, the Commission deferred its decision on the merits to its 41st ordinary
session scheduled to be held in Ghana from 16 to 30 May 2007 owing to the
absence of arguments on the merits from the respondent State.
32. On 15 January 2007, the Secretariat informed DRC of the decision of the
Commission to differ the complaint to its 41st ordinary session and reminded DRC
of previous notes verbales in which DRC was invited to send its observations on
the merits. However, DRC was given the last chance to formulate and send its
observations on the merits before the end of February 2007, failing to do so
would result in the Commission having to act in accordance with article 119 (4) of
its rules of procedure.
33. On 16 January 2007, the Secretariat informed the Complainants of the
postponement of its decision on the merits to the 41st ordinary session scheduled
to be held from 16 to 30 May 2007 in Ghana. The Secretariat informed also the
Complainants that DRC was given a last chance to provide the Commission with
its arguments on the merits failing of which, the Commission would be obliged to
act in accordance with article 119 (4) of its rules of procedure.
34. In a note verbale dated June 14 2007, the Secretariat of the Commission
informed the Defendant State that the communication was deferred to the 42nd
ordinary scheduled from 14 to 28 November 2007 in Brazzaville, Congo. The
State was also reminded of previous note verbales in which it was urged to
submit it arguments as regard to the merit of the communication and that failing
to do so may result in the application of rule 119 (4) of the rule of procedure.. The
respondent State is still yet to respond to these note verbales.
35. A letter dated June 15, 2007 the Secretariat informed the Complainant of the
deferment of the communication to the 42nd ordinary session scheduled from 14
to 28 November 2007 in Brazzaville, Congo
36. In a note verbale dated 17 September 2007 and a letter dated 17 September,
2007 the Secretariat of the Commission African also sent a reminder both to the
Complainant and the Defendant State.
37. By Note Verbale dated 20 March, 2008 and a letter dated 19 December, 2007
respectively, the parties were informed of the deferment of the communication to
the 43rd ordinary session scheduled in Ezulwini, Swaziland from 7th to 22nd May,
2008 for the Commission to take into consideration in its decision on the merits,
the conclusions submitted by the DRC on the merits.
38. In a Note verbale dated 20 March, 2008 and a letter dated 19 March, 2008,
reminders were sent to the parties to inform them of the deferment of the
communication to the 43rd ordinary session.
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39. All attempts at getting responses from the Respondent State have been futile(or
unsuccessful). Therefore, the Commission decided to consider the
Communication on the Merits.
40. During its 5th Extra Ordinary Session, which took place in Banjul, The Gambia
from 21 to 29 July 2008, the African Commission considered the Communication
and finalized its decision on the Merits.
The Law :
Admissibility :
On the exhaustion of local remedies
41. The African Charter on Human and Peoples’ Rights stipulates in its Article 56 that
the Communications referred to in Article 55 should, if they are to be considered,
necessarily be sent after exhaustion of local remedies, if they exist, unless the
procedure of exhaustion of local remedies is unduly prolonged.
42. In its memorandum on admissibility, the Respondent State contends that as far as
it is concerned the Communication should be declared inadmissible. In support of
this position the Respondent State affirms that the Complainant “does not provide
evidence of having lodged an appeal against the ruling in dispute, whereas this
means of recourse remains open, in conformity with Article 150, paragraph 3 of the
Transitional Constitution in the Democratic Republic of Congo”.
43. According to the Respondent State, it was possible for the complainants to lodge
an appeal before the Supreme Court of Justice against all rulings by the Military
Tribunal which are in dispute, and that, by not using this remedy, the Complainant
has not exhausted the available remedies and therefore, it requests the African
Commission to declare the Communication inadmissible for non exhaustion of
local remedies.
44. In a memorandum conveyed to the Secretariat of the African Commission on the
17th April 2005, the Complainant insisted on the non existence of remedies at the
time when the facts occurred. They contend that the sentences passed by the
Military Tribunal with regard to them cannot be subjected to any remedies. In effect
Article 5 of Decree 019 of the 23rd August, 1997 establishing the Military Tribunal
stipulates that its rulings “can neither be opposed nor appealed”.
45. They contend that an eventual recourse to cancellation of the judgment in
question, although provided for by Article 272 of the Law of 23rd August 1972
instituting the Code of Military Justice, cannot be implemented due lack of
“jurisdictional competence”; insofar as they could have brought an appeal before
the Supreme Court if the facts, which date back to 1999 were not prior to the
EX.CL/529(XV)
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Transitional Constitution which was adopted on 4th April 2003 and made it possible
for citizens to appeal against the rulings of the Military Tribunal.
46. The Complainant contends that the Transitional Constitution Decree of the 9th April
1994 (in force at the time of the events – 1999) stipulates in its Article 102 that:
“The Supreme Court of Justice knows……appeals lodged against rulings passed
in the final jurisdiction by the Courts and Tribunals” does not take into
consideration the decisions of the Military Tribunal.
47. The Complainant considers therefore that local remedies were not available by the
time the facts occurred.
48. At the 37th Ordinary Session of the African Commission which was held from the
27th April to 11th May 2005 in Banjul, The Gambia, the Complainant made an oral
presentation before the African Commission in reiteration of these arguments.
Position of the African Commission:
49. The main question regarding the admissibility of the case under consideration is
whether local remedies were in existence at the time when the facts occurred and,
if yes, whether they have been exhausted pursuant to Article 56(6) of the African
Charter on Human and Peoples’ Rights.
50. In effect, Article 56(6) provides that Communications “are submitted within a
reasonable period from the time local remedies are exhausted or from the date the
Commission is seized with the matter”.
51. The African Commission is of the view that if such important facts are within the
jurisdiction of an exceptional jurisdiction all legal guarantees shall be given to the
accused persons for their defence in order to avoid any miscarriage of justice. That
is the rationale for having remedies in all procedures, especially in criminal
procedure. All the ordinary remedies shall be available to them.
52. An analysis of Article 150, paragraph 3 of the Transitional Constitution of 4th April
2003 on which the respondent State relies shows that the Transitional Constitution
was passed after the facts and also after the decision sentencing the
complainants. In such circumstances, the Commission is of the view that applying
such a law of a general scope would violate the principle of non-retrospectiveness
of the law, especially as the new Transitional Constitution Decree does not
expressly provide for such remedy.
53. In the present Communication, it is the State that alleges that local remedies have
not been exhausted and as such the burden is on it to show that local remedies
exist. It observes that such remedy is available under Decree 019 of 23 August
1997 establishing the Military Tribunal; Article 5 of the expressly Decree provides
EX.CL/529(XV)
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that the rulings of the latter ““can neither be opposed nor appealed”.” Thus, it
appears that the Decree includes a derogatory clause which precludes any
opposition or appeal against the rulings of bodies such as the Military Tribunal. In
other terms, the applicable law at the time the facts occurred does not provide any
remedy. In a similar situation, the African Commission, drawing inspiration from its
own well-established jurisprudence, already held, in Communications 102/93
Constitutional Rights Project/Nigeria, 129/94 Civil Liberties Organisation c/Nigeria
and other communications,10 that “It is reasonable to assume that the local
remedies would not only be prolonged, but they will produce any result”.
54. Moreover, the same analysis can apply to the other common remedy, namely the
lodging of an appeal with the Supreme Court. In terms of the Transitional
Constitution Decree of 9th April 1994 (in force at the time the facts occurred 1999), Article 102 of which provides that “the Supreme Court of Justice could only
know of appeals lodged against rulings passed in final jurisdiction by the Courts
and Tribunals”.is only available in common offences.
55. In consequence, the African Commission rules that local remedies were not
available to the Complainants. It will apply its jurisprudence on exhaustion of local
remedies11 without it necessarily seeking to establish the effectiveness of local
emedies; the Commission is of the view that it was absolutely impossible for the
victims to exhaust effective local remedies.
56. On these grounds, the African Commission declares the Communication
admissible.
The Merits
57. In accordance with rule 120 of the Rules of Procedure of the African Commission,
where a communication submitted in accordance with article 55 of the Charter
has been declared admissible, the Commission “shall consider the
Communication in the light of all the information that the individual and the State
party concerned have submitted in writing, it shall make known its observation on
this issue.”
58. In the present case, the conclusions brought to the dossier by the two parties
both in terms of the procedure and on the merits of the case enable the
Commission to make pronouncements through the presentation and analysis of
the arguments of the parties to the suit.
10
102/93 Constitutional Rights Project, Civil Liberties Organisation/Nigeria, 129/94 Civil Liberties
Organisation/Nigeria
11
Civil Liberties Organisation, Legal Defense Center and Assistance Project v. Nigeria
EX.CL/529(XV)
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The arguments of the Complainants
59. The Complainants submit the violation of the African Charter in its article 7(a) (b)
and (d) and article 26. The Complainants contest the legal basis, the
competence, and the procedure of the Military Court which contravenes the
African Charter on Human and Peoples’ Rights to which the Respondent State is
a party.
60. The Complainant avers that the establishment of the Military Court contravenes
article 96 (1) of the Transitional Constitution which stipulates that “courts,
tribunals and war councils shall only be established by the Law. No special
commissions or tribunals shall be set up in any form whatsoever.”
61. The Complainant contends the incompetence of the said court due to its
membership whose partiality was manifested by the inclusion of members of the
military corps, what with their legendary regimentation and discipline,
exacerbated by the fact that the later lacked the qualities of a magistrate. To
support these assertions, the Complainant recalled the decision of
Communication 218/9812 in which the African Commission decided that the
“Military tribunal” should be bound by the norms of equity, transparency, justice,
independent rules and respect for the legal process of other courts.”
62. The Complainant also avers that the procedural situation was exacerbated by the
excessive powers of the members of the court who purportedly, followed a very
arbitrary procedure in violation of article 137 of the Military Code of Justice, dated
25 September, according to which, “the procedure before military jurisdictions
shall be that in force before the common law jurisdictions, in conformity with the
provisions of the normal Criminal Code which are not incompatible with those of
the present code.”
63. According to the Complainants, there is no possible redress allowing them to
contest the decision of the court which sentenced the plaintiffs to death:
according to article 5 of the decree-law establishing the said court, neither can
the decisions be appealed against nor opposed. The Complainants contend that
the sentencing of the plaintiffs to death without the possibility of appeal
constitutes a violation of article 6 of the Guarantees for the Protection of persons
sentenced to death. Article 6 stipulates that “any individual sentenced to death is
entitled to file an appeal with a higher court, and measures should be taken to
ensure that the appeals are mandatory.”
64. The Complainants also recalled the ruling of the Human Rights Committee in the
case of Arutynyam vs Uzbekistan which states “sentencing to death following a
trial during which the provisions of the Convention were not respected constitutes
12
Civil liberties organisation, legal defense center, legal defense and assistance project c. Nigeria
EX.CL/529(XV)
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a violation of article 6 of the Convention where no further appeal can be brought
against the verdict”13.
65. The Complainant further avers that the said ruling of the court was not reasoned
considering that the authorities refused to convey to the plaintiffs the ruling
pronouncing their sentence despite all the attempts to that effect.
66. Consequently, the Complainants call for the immediate release of the plaintiffs
and prays the African Commission to call on the Government of the Democratic
Republic of Congo to grant each victim the sum of 10, 000, 000 Congolese
Francs as damages and to urge it to harmonise its legislation with its international
commitments.
The arguments of the Respondent State
67. The State refutes all the allegations of the Complainants. The State submits that
all the said allegations are unfounded.
68. Pertaining to the establishment of the Military Court whose impartiality,
independence and competence are being challenged by the Complainant, the DR
Congolese State responded that the decision to establish a Military Court was in
conformity with article 156 (2) of the Constitution which empowers the Head of
State to suspend Common Law Courts in the some or all parts of the territory,
and to replace them by Military Courts in times of war. As the Congolese state
was engaged in an armed conflict situation following the armed aggression led by
its neighbours, the State was merely implementing the said provisions of the
Constitution.
69. The Respondent State observes that it is under these special circumstances that
the plaintiffs were tried and sentenced in all legality and avers that the latter have
not adduced any proof of their assertion that the ruling as passed was not
reasoned.
70. Regarding the complaint brought by the Complainants pertaining to article 5 of
the decree – law establishing the Military Court, the State Respondent alleges
that the Complainants could have lodged an appeal to bring to the fore their
allegations, in accordance with article 150 of the Transitional Constitution, which
recognizes the competence of the Supreme Court to sit on decisions made by the
lowest and highest courts.
71. The Respondent State concludes that there is no room for compensation as the
plaintiffs were found guilty, and eventually released from custody.
13
Report of the Human Rights Committee, vol.I, A/59/40 (volI),Nations Unies ,New York,2004 p.111
EX.CL/529(XV)
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72. The Congolese State further alleges that it has subsequently harmonized its laws
with its international commitments.
Observations of the Commission.
73. In the light of the observations of the Parties, it transpires that the main issue
here relates to the guarantee mechanism, as provided for under articles 7 (1) and
26 of the Charter.
74. In terms of Article 7 of the African Charter on Human and Peoples’ Rights:
“Every individual shall have the right to have his cause heard. This comprises:
a) The right to an appeal to competent national organs against acts violating
his fundamental rights as recognised and guaranteed by the conventions,
laws, regulations, and customs in force;
b) The right to be presumed innocent until proven guilty by a competent court
or tribunal;
c) The right to defence, including the right to be defended by counsel of his
choice;
d) The right to be tried within a reasonable time by an impartial court or
tribunal.”
75. Article 26 provides that:
“State Parties to the present charter shall have the duty to guarantee the
independence of the Courts and allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of the
rights and freedoms guaranteed by the present Charter.”
76. The general content of the guarantee of sound justice which is the subject of
articles 7 and 26 brings two sorts of obligations to bear. The obligation of having
an accessible and appropriate court and the obligation of a fair trial (the right to
have one’s cause heard fairly). The right to a fair trial is a corollary of the concept
of access to an appropriate court. The right to a fair trial requires that one’s cause
be held by efficient and impartial courts.
77. In a similar case relating to Communication 151/96 Civil Liberties
Organisation v. Nigeria, the Commission already read together Article 7 and
Article 26 and held that Article 7 deals with the right to be heard by impartial
courts, and Article 26 insists on the independence of courts; the Commission
notes that States have the duty to put in place credible institutions for the
promotion and protection of human rights. Article 26 being the necessary
appendix of Article 7, one can expect a fair trial only before impartial courts.
EX.CL/529(XV)
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78. In the present case, the establishment of the exceptional tribunal is a violation of
the provisions of the Charter, as already decided by the African Commission in
the above-mentioned similar cases.
79. According to the African Commission, the independence of a court refers to the
independence of the court vis-à-vis the Executive. This implies the consideration
of the mode of designation of its members, the duration of their mandate, the
existence of protection against external pressures and the issue of real or
perceived independence: as the saying goes “justice must not only be done: it
must be seen to be done” 14.
80. The obligation to be independent is one and the same as the obligation to be
impartial. Impartiality may be perceived in a subjective and objective manner. In
a subjective manner, the impartiality of a judge is gauged by his internal
inclinations. Since it is impossible to infer from this inclination objectively, it was
simpler to conclude that subjective impartiality be assumed until proven
otherwise15.
81. However, appearances cannot be ignored while gauging the impartiality of a
jurisdiction16.
82. The obligation of having a jurisdiction established by the law, capable of passing
a judgement cannot be clearly disassociated from the above. The ability of a
court to rule depends on the competence of the Court to hear a case, and also
depends on the calibre of its members. In the case of Amnesty International
Versus Sudan, the Commission decided that the definition of the word, “
competence” is particularly sensitive since ……………. depriving courts of
qualified staff to guarantee their impartiality, infringes on the right to have
one’s cause heard by competent organs ……….. constitutes a violation of
articles 7(1) (d) and 26 of the Charter”. The requirement of a fair trial
presupposes that the parties to the suit are able to present their respective cases
without prejudice to either party. The flaws of a trial can be detected where a
certain number of elements combined together have not been respected viz. the
right to equality of means and the need for dissenting views. The requirements of
a fair trial also pre supposes that the courts are able to allow persons subject to
trial to review the ruling passed. The principle of a two-tier court system is
recognised by all. In the present case, there is a discriminatory justice system in
the same that Article 5 applies differently depending on the persons concerned.
14
Media Rights Agenda c. Nigeria, para.60,61; Amnesty International and Others c. Soudan, para 68,69;
Malawi African Association and Others c. Mauritanie para. 98; Law Office of Ghazi Suleiman c. Soudan
para 61-64.
15
European Court for Hman Rights, Van Leuren and Meyere
16
CEDH, Delcourt c. Belgique, Decree if the 17th January 1970, A,N 11 para31; also cf the relevant
jurisprudence of the Commission:Law office of Ghazi Suleiman c. Soudan (para 63,64), International Pen
and Others c. Nigeria para86 ; Constitutional Rights Projects c. Nigeria, para.14
EX.CL/529(XV)
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83. In the present case, the Military Court was established by a decree-law in
accordance with article 156(2) of the Constitution of Congo which authorizes the
President of the Republic to suspend the Common Law courts and replace them
with Military Tribunals, in times of war. Its competence includes knowing of the
deeds of civilians.
84. Regarding such situations, the Commission already stated several times its
Resolution No ACHPR/Res.41(XXVI)99 on the right to a fair trial. In the Forum of
Conscience versus Sierra Leone case, for instance, the Commission quoted
the preceding Resolution as follows: “In many African countries, Military
Tribunals and Special Courts co-exist with ordinary legal institutions. The
objective of the military tribunals is to adjudicate on offences of a purely
military nature perpetrated by military personnel. In the dispatch of these
duties, the military tribunals should abide by the norms governing a fair
trial”.
85. Consequently, in this particular case, the fact that civilians and soldiers accused
of civilian offences are tried by a Military Court presided over by military officers
for the theft of drums of gas oil is a flagrant violation of the above-mentioned
requirements of good justice.
86. Furthermore, in its ruling on the Media Rights Agenda versus Nigeria case, the
Commission decided as follows: “the appearance, sentencing and conviction
of Malaolu, a civilian, by a special military court, presided over by military
officers in active duty is nothing short of a violation of the fundamental
tenets of free trial as stipulated under article 7 of the Charter.”
87. Consequently, in the present case, the trial of both civilian and militaries by a
military tribunal presided over by a military officer on matters of a civilian nature
constitutes an infringement of the requirements of a fair justice as mentioned
earlier.
88. The Respondent State does not challenge these arguments in its statement of
defence. In the absence of any facts to the contrary, the Commission cannot
invalidate the submission by the complainants regarding the inexistence of of a
fair justice system.
89. The Commission therefore finds that the verdict of the Military Court which
consisted solely of Army Officers with no qualities of a Magistrate, did not offer
the guarantees of independence, impartiality and equity and of constitute a
violation of its Resolution No ACHPR/Res.41(XXVI)99 on the Right to a Fair Trial
and Legal Aid in Africa.
90. The Complainants allege that the verdict of the military court against the plaintiffs
was not reasoned and that to compound matters, the authorities refused to serve
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them with a copy of the judgement. The Respondent State begs to differ and
avers that the Complainant has no proof to back this allegation. In this case, the
burden of proof is on the Defendant to show that the allegations of the
Complainants are unfounded by providing the Commission with the said
judgement, which proof is yet to be provided. The Commission has always
deplored lack or inadequacy of motives for a legal decisions as a violation of the
right to a fair trial. In the judgement on the Pinkey versus Canada case, the
Human Rights Committee ruled: “the exercise of an appellant’s right of appeal
had been prejudiced because the transcript of the lower court’s proceedings had
taken two-and-a-half years to be produced.”
91. It is important to note that the Complainants skew the doctrinal meaning of the
expression “effective redress”. This expression “effective redress” is clearly
referred to in article 13 of the European Convention on Human Rights.
“Redress” should not be considered as “the process whereby a new
decision is obtained in a dispute where an authority has already given a
ruling. The word redress shall comprise of all processes through which a
constitutive act or an alleged violation of the Convention is brought before
a qualified body to seek, as the case maybe, suspension of the act, its
annulment, amendment or compensation. 17 It is the case in the present
Communication, even though it is happening at the African regional level.
92. In addition, the complainants recall that they could not exhaust adequate local
remedies as aleardy dealt with at the admissibility stage.
93. Regarding Article 14 (5) of the International Covenant on Civil and Political rights
which stipulates that “any person found guilty of an offence shall have the right to
have the verdict examined by a higher court, in accordance with the law”, the
Commission could refer to it in terms of Article 60 of the African Charter on
Human and Peoples’ Rights. However, nothing in the dossier shows that the
respondent State adopted and ratified the Covenant. The Commission can
therefore not examine the request.
57 Finally, there is no evidence that the victims were released from prison; in the
same vein, there is no evidence that the respondent State has already
harmonised its legislation with its international commitments.however, the fact
that the mere fact of recognising that its legislation is not in line with its
international commitments is a confession of its culpability.
17
PETTITI Louis-Edmond, DECAUX Emmanuel, IMBERT Pierre-Henri (directed by), The European
Convention for Human Rights, observations, article by article, Paris,Economica, 1999 P.467
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On these grounds, the Commission,
94. Consequently, declares, the Democratic Republic of Congo has violated the
relevant provisions of the African Charter on Human and Peoples’ Rights,
namely articles 7 (a) (b) (d) and 26.
95. Finds that the establishment of a Military Court, albeit legally, whose
competence extends to hearing civil acts perpetrated by civilians is a flagrant
ignorance of the Article 7 of the African Charter on Human and Peoples’
Rights.
96. Recommends that the Government of the Republic of Congo guarantees the
independence of the tribunals and improves on the appropriate national
institutions charged with the promotion and protection of the rights and
freedoms enshrined in the African Charter on Human and Peoples’ Rights.
97. Urges the Government of the DRC to grant the victims a fair and equitable
amount as compensation for the moral wrong suffered.
98. Recommends to the Government of the DRC to harmonise its legislation with
its international commitments, if that has not yet been done.
Done in Abuja, the Federal Republic of Nigeria, on 24th November 2008.
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Annex 3 – Communications decided during the
6th Extra –Ordinary Session
a. COMMUNICATION 284/2004 – ZIMBABWE LAWYERS FOR
HUMAN RIGHTS AND ASSOCIATED NEWSPAPERS OF
ZIMBABWE/ ZIMBABWE
b. COMMUNICATION 294/2004 – ZIMBABWE LAWYERS FOR
HUMAN RIGHTS AND INSTITUTE FOR HUMAN RIGHTS AND
DEVELOPMENT IN AFRICA( ON BEHALF OF ANDREW
BARCLAY MELDRUM) / ZIMABABWE
c. COMMUNICATION 297/2005 – SCANLEN AND
HOLDERNESS/ ZIMBABWE
284/2003 - Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe/Republic of Zimbabwe
Summary of Facts:
1. This Communication is jointly submitted by Associated Newspapers of Zimbabwe
(PVT) Ltd (ANZ) and Zimbabwe Lawyers for Human Rights (the Complainants)
against the Republic of Zimbabwe (the Respondent State).
2. ANZ is a Company registered under the laws of Zimbabwe whose primary
business is newspapers publishing. Since 1999, they have been publishing the
Daily News, which is the largest-selling newspaper independent of government
control in Zimbabwe.
3. The Complainants state that a new media law - the Access to Information and
Protection of Privacy Act (AIPPA) was enacted in 2002 by the Respondent State.
They claim that section 66 of AIPPA read together with section 72 purports to
prohibit “mass media services” from operating until they have registered with the
Media and Information Commission (MIC).
4. ANZ filed an application challenging the constitutionality of the provisions
requiring it to register with the MIC. ANZ therefore declined to register until the
EX.CL/529(XV)
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question of the constitutionality of the AIPPA provisions it was challenging had
been determined by the Supreme Court
5. In its judgement of 11 September 2003, the Supreme Court ruled that by not
registering with the MIC, the ANZ had openly defied the law and as such were
operating outside the law.
6. The Complainants claim that the Supreme Court declined to rule on whether or
not the aforementioned provisions of the AIPPA were consistent with the
Constitution but instead maintained that every law enacted in Zimbabwe remains
valid and should be complied with until it is either repealed by an Act of
Parliament or declared unconstitutional by the Supreme Court. In its ruling, the
Supreme Court stated that ‘The applicant is operating outside the law and this
Court will only hear the applicant on the merits once the applicant has submitted
itself to the law’.
7. It is further alleged that following the Supreme Court decision, the Daily News
was forcibly closed on 12 September 2003, ANZ assets were seized and several
ANZ officials were arrested, while others were threatened with arrest and criminal
charges.
8. Consequently, ANZ submitted its application for registration with the MIC on 15
September 2003 and on 18 September 2003, the High Court pending
determination of the matter by MIC granted permission to the ANZ to publish the
Daily News. The High Court also ordered the return of all the equipment seized
and demanded an end to police interference with ANZ business activities.
9. On 19 September 2003, the MIC refused ANZ’s application based on the
Supreme Court finding that ANZ had been unlawfully operating its media
business. ANZ appealed against the MIC’s decision to the Administrative Court
and on 24 October 2003, the Administrative Court unanimously set aside MIC’s
decision and held that the MIC was biased and improperly constituted. The
Administrative Court also ordered the Board of the MIC to issue ANZ with a
certificate of registration by 30 November 2003 failing which, ANZ would be
deemed registered as from that date.
10. The Complainants state that following publication of the Daily News on 25
October 2003, police immediately moved back into the ANZ offices, stopped their
work and prevented all further publication.
11. The Complainants argue further that since then, the authorities have prevented
the re-opening of the newspaper offices. The computers and other equipment of
the Company remain in the hands of the police and ANZ employees have been
arrested and charged with criminal offences.
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12. The Complainants argue that the current closure of the paper is causing
irreparable harm to the freedom of expression and information and many other
associative rights as delineated in the African Charter. They add that the closure
is costing the ANZ 38 million Zimbabwean dollars per day in lost sales and
advertising
Complaint
13. The Complainants allege that Articles 3, 7, 9, 14 and 15 of the African Charter on
Human and Peoples’ Rights have been violated.
Procedure before the African Commission
14. The Communication was hand-delivered to the Secretariat of the African
Commission on 12 November 2003.
15. On 4 December 2003, the Secretariat acknowledged receipt of the
Communication and informed the Complainants that the matter would be
scheduled for consideration by the African Commission at its 35th Ordinary
Session.
16. At its 35th Ordinary Session held in Banjul, The Gambia, from 21 May - 4 June
2004, the African Commission decided to be seized of the Communication.
17. By Note Verbale of 15 June 2004 addressed to the Respondent State and by
letter of the same date addressed to the Complainant, the African Commission
invited both parties to submit arguments on the admissibility of the
Communication
18. By Note Verbale dated 16 September 2004 addressed to the Responding State
and by letter of the same date addressed to the Complainant the Secretariat of
the African Commission reminded both parties to submit their arguments on
admissibility.
19. On 20 September 2004 the Secretariat of the African Commission received a
Note Verbale from the Respondent State requesting that it be allowed to submit
its arguments on admissibility by 30 October 2004.
20. By Note Verbale dated 23 September 2004, the Secretariat of the African
Commission accepted the Respondent State’s request that it submit its
arguments on admissibility by 30 October 2004.
21. On 4 October 2004, the Secretariat received a supplementary brief and
arguments on admissibility on the Communication from the complainant
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22. By letter dated 7 October the Secretariat of the African Commission
acknowledged receipt of the supplementary brief and arguments on admissibility
submitted by the Complainant and by Note Verbale of the same date the
Secretariat sent a copy of the said document to the Respondent State.
23. On 28 October 2004, the Secretariat of the African Commission received a Note
Verbale from the Respondent State dated 25 October 2004 indicating that it
received the supplementary brief of the complainant only on 20 October and it
may not be able to submit its arguments by 30 October 2004 since the
Supplementary Brief raises issues on the merits.
24. By Note Verbale dated 29 October 2004, the Secretariat wrote to the Respondent
State informing it that as the matter is still at the admissibility stage, the
Respondent State can submit its argument on admissibility for consideration by
the African Commission at the 36th Ordinary Session.
25. On 29 October 2004, the Secretariat received the submission from the
Respondent State and by Note Verbale of 3 November 2004 acknowledged
receipt thereof.
26. By letter of 3 November 2004, the Secretariat of the African Commission
forwarded the response of the State to the Complainant.
27. On 24 November 2004 the Complainant submitted a rejoinder to the State’s
response and this was also hand-delivered to the State delegation attending the
36th Ordinary Session of the Commission.
28. At its 36th Ordinary Session held in Dakar, Senegal, the African Commission
heard both parties on the question of provisional measures and decided to grant
the Complainants’ request for provisional measures which called on the
Respondent State to return the seized equipment of ANZ. The African
Commission deferred its decision on admissibility pending the State’s response to
the complainant’s rejoinder which was handed to the State during the session.
29. By Note Verbale of 25 December 2004, the State wrote to the Secretariat seeking
clarification on the deadline it was expected to make its submission. By Note
Verbale of 16 December 2004, the Secretariat informed the State that the
communication will be considered at the 37th Ordinary Session of the African
Commission.
30. By letter of 16 December 2004, the Secretariat informed the complainant of the
African Commission’s decision taken at its 36th Ordinary Session in Dakar,
Senegal.
31. By Note Verbale of 16 February 2005, the Secretariat reminded the State to
submit its arguments on admissibility before 16 March 2005.
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32. By letter of 14 March 2005, the Officer of the Attorney General of Zimbabwe
requested the African Commission for an extension to allow the State submit its
arguments by 31 March 2005.
33. By letter of 18 March 2005 addressed to the Attorney General, the Secretariat
granted the State an extension of thirty days and requested it to submit its
arguments by 18 April 2005.
34. At its 37th Ordinary Session held in Banjul, The Gambia, the African Commission
deferred consideration on admissibility of the Communication after receiving a
Supreme Court ruling dated 15 March 2005 from the Respondent State in which
the latter claims the complainant’s grievances were addressed in the Court ruling.
35. By Note Verbale of 24 May 2005, the Respondent State was notified of the
Commission’s decision and requested to submit its arguments within three
months of the notification. By letter of the same date, the Complainants were
notified of the Commission’s decision.
36. On 14 June 2005, the Secretariat of the African Commission received a letter
from the Complainant in which the latter expressed concern at the Commission’s
decision to postpone consideration on admissibility of the Communication. The
Complainant also expressed concern at the Commission’s inaction on the State’s
failure to abide by its request for provisional measures.
37. On 7 July 2005, the Secretariat acknowledged receipt of the Complainants’ letter
of 14 June 2005 and informed the Complainant why the Communication was
deferred.
38. At its 38th Ordinary Session held in Banjul, The Gambia from 21 November - 5
December 2005, the African Commission considered the Communication and
declared it admissible.
39. By Note Verbale dated 15 December 2005 and by letter of the same date, the
State and the Complainants were notified of the African Commission’s decision
and requested to submit their arguments on the merits within three months of the
date of notification.
40. By letter of 21 December 2005, the Complainant acknowledged receipt of the
Secretariat’s letter of 15 December and indicated that it will furnish its arguments
on the merits “within the procedurally stipulated period”.
41. By Note Verbale of 6 March 2006 and by letter of the same date, the Secretariat
of the African Commission reminded the State as well as the Complainant to
submit their arguments on the merits. Both parties were given until 31 March to
do so.
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42. On 3 April 2006, the Secretariat received a Note Verbale from the Embassy of the
Republic of Zimbabwe in Ethiopia forwarding another Note Verbale from the
Ministry of Foreign Affairs of the Republic of Zimbabwe requesting the Secretariat
to extend the date of submission of its arguments to 15 April 2006.
43. By Note Verbale date 10 April 2006, the Secretariat of the African Commission
acknowledged receipt of the Embassy’s Note Verbale and obliged to the latter’s
request.
44. At the 39th Ordinary Session of the Commission, the Respondent State submitted
on the merits and the Commission decided to defer further consideration of the
Communication to its 40th session.
45. By note verbale of 29 May and letter of the same date, the Secretariat of the
Commission notified both parties of the Commission’s decision.
46. At its 40th Ordinary Session the Communication was deferred due to lack of time
and the parties were informed accordingly.
47. At its 41st Ordinary Session the Communication was deferred to give the
Secretariat more time to prepare the draft decision. During the same session the
Secretariat received a supplementary submission from the respondent State.
48. By note verbale of 10 July 2007, and letter of the same date, both parties were
notified of the Commission’s decision.
49. At its 42nd Ordinary Session the Communication was deferred to verify the State’s
claim that it hadn’t submitted on the merits and to allow it submit its arguments.
50. By note verbale of 19 December 2007, and letter of the same date, both parties
were notified of the Commission’s decision. The Respondent State was informed
that it had in fact submitted on the merits and a copy of the State’s submission
was sent to both parties for ease of reference.
51. At its 43rd Ordinary Session held in Ezulwini, the Kingdom of Swaziland the
Communication was deferred to allow the Secretariat incorporates the State’s
supplementary submission into the draft decision.
52. At its 44th Ordinary Session held in Abuja, Federal Republic of Nigeria, the
Communication was deferred due to lack of time.
EX.CL/529(XV)
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The Law
Admissibility
Complainants’ submission on admissibility
53. The Complainants submit that the Republic of Zimbabwe adopted an Act of
Parliament on 13 March 2002, which obliged all media houses, journalists and all
those working in the media profession to be registered or face closure. The
Associated Newspapers of Zimbabwe(“ANZ”) (publishers of the Daily News and
the Daily News on Sunday) challenged the provisions of the Act under Section
24(1) of the Constitution of Zimbabwe (hereinafter the “Constitution” )
54. Section 24 (1) of the Constitution provides that in cases involving the Bill of
Rights, one may approach the Supreme Court (hereinafter the “Court”) as the
court of first instance. The ANZ challenged the Act on the basis of its likelihood to
infringe freedom of expression, free and uninhibited practice of journalism.
According to the Complainants, the Court declined to pronounce on the
constitutionality of the Act and instead made a preliminary ruling that the ANZ had
to and was supposed to comply with the provisions of the Act before challenging
them as the ANZ was approaching the court with “dirty hands”.
55. According to the Complainants, the interpretation of the Constitution by the Court
was contrary to the rights and freedoms guaranteed under the Charter. They
believe that the application of the judicial doctrine of clean hands by the Court
had a detrimental effect on the rights of the petitioners in the domestic courts.
They argue that the reliance by the Court on the common law equitable doctrine
of unclean or dirty hands in a matter not of an ordinary nature but one that is
dealing with fundamental human rights and freedoms grievously affects the
fundamental human right to due protection of the law and further undermines the
predictability in human rights related issues.
56. The Complainants submit that the Constitution provides that laws which are
inconsistent with the Constitution are void ab initio, and not voidable, as
seemingly was the interpretation of the Court, noting that the interpretation by the
Court of this particular provision of the Constitution clearly subordinates basic
constitutional and human rights issues to general rules deciphered from ordinary
case law mainly in English jurisdiction where their Lordships were never
confronted with a matter involving violation of fundamental human rights. The
unclean hands doctrine, according to the Complainants, was established to deal
with principles of equity and stems from the law of equity. They argue that it
cannot be applied in matters relating to extent of conformity of Acts of Parliament
to the Constitution in a system of constitutional supremacy, separation of powers
and the power of judicial review without leading to violation and infringement of
fundamental rights and freedoms.
EX.CL/529(XV)
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57. The Complainants submit that their contention before the Supreme Court was
that the Act was contrary to the Constitution and other international instruments
which provide for fundamental rights and therefore sought the protection of the
Court and its decision on the constitutionality or otherwise of the Act. Instead of
dealing with the merits of the claim the Court applied a procedural discretionary
rule of practice thereby undermining the notion of constitutional supremacy and
intermittently denying the Petitioners of an effective remedy.
58. The Court ruled that the ANZ had approached the court with dirty hands therefore
the court could not attend to the merits of the case until the ANZ had obeyed the
law which they deemed not to be law. Further the Court ruled that the Act was not
blatantly unconstitutional.
59. The Complainants argue that as provided by the Constitution, any law which is
contrary to the supreme law shall be impugned. The impugning of the law or
sections of it can only be achieved if the law is put under a ‘constitutional
compliance test’, which again in terms of the Constitution, that power lies with the
Supreme Court. They claim that by failing to decide on the constitutionality of
AIPPA, the Court abrogated its responsibility and duties as provided by the
Constitution and one can reasonably conclude that the Court was in
contravention of the Constitution, the Charter and other international instruments
signed and ratified by the government of Zimbabwe which provide for appeal to
competent bodies and equal protection of the law.
60. According to the complainants, without approaching the Court, or as in this case,
the Court deciding to “shut the door in the face of the applicants”, there is no
other mechanisms of establishing the nature and extent of repugnancy of an Act
of Parliament to the Constitution. In constitutional supremacy, they argue,
jurisdictions matters relating to the constitutional conformity of any law deemed to
be contrary to the Constitution there is no need to have that said by the Court
since from the onset there is no law to argue about as provided by Section 3 of
the Constitution.
61. As a result of the reliance on the unclean hands doctrine, the Complainants
believe that the Court refused to hear the arguments of the ANZ on the merits of
the case thereby refusing the petitioner of equal protection before the law and
appeal to competent bodies. They refer to Section 24 of the Constitution which
provides for the ‘Enforcement of Protective Provisions’ and states that “if any
person alleges that the declaration of rights has been, is being or is likely to be
contravened in relation to him…then, without prejudice to any other action with
respect to the same matter which is lawfully available, that person (or that other
person) may subject to the provisions of subsection (3) apply to the Supreme
Court for redress”
62. The above section they claim gives the Court original jurisdiction to enforce the
provisions of the Bill of Rights, adding that the ANZ approached the Court to
EX.CL/529(XV)
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enforce the very same tenets establishing the Court, i.e. to protect fundamental
rights as enshrined in the Bill of Rights, but the Court abrogated its duty to decide
on the constitutional soundness or validity of the petition.
63. The Complainants submit that the absence of an effective remedy to violations of
rights recognised in the Convention is itself a violation of the Convention by the
State Party in which the remedy is lacking. In that sense it should be emphasised
that, for such a remedy to exist, it is not sufficient that it be provided for by the
Constitution or by law or that it be formally recognised, but rather it must be truly
effective in establishing whether there has been a violation of human rights and in
providing redress.
64. According to the Complainants, a remedy which proves illusory because of the
conditions prevailing in the country, or even in the particular circumstances in a
given case, cannot be considered effective, in the opinion of the Inter-American
Courts on Human Rights.1
65. The Complainants further argue that the determination of one’s rights by a
competent and impartial tribunal is a procedural guarantee provided for in the
Charter, adding that to determine whether ones’ rights have been violated, the
national body has to make an evaluation of the facts of the case on the merits.
According to them, the Supreme Court avoided dealing with the petitioner’s rights
and the soundness of the claim, thereby depriving the petitioners of an effective
remedy.
66. The Complainants finally submit that with the decision of the Supreme Court to
decline to entertain the applicants, particularly given that the decision was taken
by the respondent’s most senior Court in the land and that the decision had the
unanimous approval of all the justices of the Court, local remedies have been
exhausted.
Respondent State’s submission on admissibility
67. The Respondent State submitted its argument on admissibility on 2 November
2004. The State notes that the Complainants’ application is based on section 24
of the Constitution of Zimbabwe which allows anyone who feels that the
Declaration of Rights contained in the Constitution is being violated in relation to
him/her should apply to the Supreme Court for relief. The State notes further that
in the Complainants’ application, they sought the nullification of the Access to
Information and Protection of Privacy Act (AIPPA) on the grounds that the latter is
ultra vires section 20 of the Republican Constitution.
1
Advisory Opinion OC 9/87, also Annual Report 39/96 Case 11.673 Santiago Marzioni.
EX.CL/529(XV)
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68. The Respondent State submits further that at the time the application was filed
with the Supreme Court, the First Complainant, the Associated Newspaper of
Zimbabwe (ANZ) had not complied with section 66 of the AIPPA which makes it
an offence to provide mass media services without registration. That the ANZ did
not want to register in terms of the provisions of the AIPPA because it viewed the
legislation as unconstitutional, and argued “it [could not] on conscience obey such
a law”.
69. The State added that the Supreme Court refrained from deliberating on the merits
of the case, directing the Complainants to “first put its house in order”, either by
registering or by refraining from carrying on mass media services, and thereafter
approaching the courts. The State added that the Complainants did not comply
with the Court order but instead went ahead to continue publishing. According to
the Respondent State, this led to the closure of its two papers and seizure of its
property by the Police. According to the Respondent State, the complainant
subsequently made an application to register in terms of the AIPPA but this
application was unsuccessful.
70. The Respondent State explains the background to the AIPPA and notes that the
Act was enacted by the Parliament of Zimbabwe in 2002 to, among other things:
a. provide members of the public with the right of access to information held
by public bodies;
b. make public bodies accountable by giving a right to request correction of
misrepresented personal information;
c. prevent the authorised collection, use or disclosure of personal information
by public bodies;
d. protect personal privacy, to provide for the regulation of the mass media
and to establish a Media and Information Commission.
71. It notes further that the regulation of the mass media constitutes part and not the
sole provision of the Act, adding that prior to the enactment of the Act, there was
no regulation of the press in the country and that the regulation was necessitated
by a number of “irresponsible and misleading publications in the media…”
According to the State, to address the security interests of the nation as well as
protect the rights of others, the rights which “hitherto the press enjoyed without
statutory limitation were thus subjected to control”, adding that this was intended
to instil discipline and ensure responsibility within the profession.
72. The State notes further that notwithstanding the prohibition under the Act, section
93 allows any person who was lawfully operating a mass media service at the
time of the coming into force of the Act to continue practising for a period of three
months from the date of commencement of the Act. However, at the end of the
three months, the necessary regulations were not in place, the period was
extended to the end of December 2002. The State submits that Complainant’s
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averment that “publication is specifically allowed by the Law while any application
for registration is pending”, is misleading.
73. The State submits that the Communication does not meet the requirements under
Article 56 (3), (5) and (6) of the African Charter and should thus be declared
inadmissible.
74. With regards to Article 56 (3), the State submits that the language used in the
Communication and its attachments is disparaging of the Supreme Court of
Zimbabwe. To support this claim the State refers the African Commission to
paragraphs (r) (page 6), 13, 15, 17, 18, 26, 27, 30 and 31 in the Complainants’
Summary of facts submitted on 10 November 2003. The State submits further
that on 12 September 2003, the Complainants published an issue of its
newspaper in which it stated inter alia that “…the handing down of the judgment
marked a sad day for Zimbabwe’s constitutional history. I suppose we should be
immensely thankful that we are not prisoners on death row because the practical
effect of this judgment is that had we have been challenging the death penalty
and not AIPPA , we would have had to hang first and challenge the penalty from
hell”. According to the State, this statement shows the contempt that the
complainant has for the Supreme Court.
75. The State notes further that the implications of the statement and the paragraphs
mentioned above includes the fact that:
•
•
•
there is bias in the appointment of judges of the High Court and the Supreme
Court because they are appointed by the President;
that the composition of the Supreme Court that heard the Complainants’ matter
was manipulated so that a junior judge, Judge Sandura, was omitted. The State
claims that the use of the word “omitted” clearly connotes a motive by the Chief
Justice to exclude Judge Sandura; and
that the Supreme Court was biased towards the government and therefore acted
not as the judiciary but as a political agent of the Government.
76. The State notes that its submission should not be taken as an attempt to curtail
freedom of expression and criticism of the judiciary but is intended to protect the
dignity of the judiciary, adding that the language used by the Complainants go
beyond mere criticism of the judiciary, that the language is discourteous,
contemptuous and disparaging and is clearly intended to undermine the judiciary
in the performance of its duties and hence the administration of justice. It notes
further that fair criticism of the conduct of a judge, the institution of the judiciary
and its functioning may not amount to contempt if it is made in good faith and in
the public interest, and good faith and the public interest are ascertained from all
the surrounding circumstances including the person responsible for the
comments and the intended purpose sought to be achieved. The State concluded
by stating that the Complainants operated in apparent defiance of the law and the
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decision of the Administrative Court and Supreme Court and now invites the
African Commission to sanction its defiance of the law and did so in a language
disparaging and insulting to the judiciary of Zimbabwe. It notes that the Judiciary
in Zimbabwe cannot enter into public or political controversy as such involvement
will bring the judiciary into disrepute and it is therefore improper for the
Complainants to make such disparaging statements knowing very well that the
judiciary cannot respond to the statements.
77. Regarding Article 56 (5) on the exhaustion of local remedies, the State notes that
the Complainants indeed filed an application in terms of section 24 of the
Constitution to challenge the constitutionality of AIPPA and argues that the
judgment on the matter is not yet out not because the process is unduly
prolonged but because of the Complainants’ defiance of the law. The State notes
that the Complainants, after refusing to comply with the AIPPA chose to comply
with it later and is still pursuing its challenge of its constitutionality and if the
Complainants are successful, they will be able to resume operations without
going through the registration process.
78. The State notes that as at when the Complainants were submitting the
Communication to the Commission during the 34th Ordinary Session in November
2003, there was an application in the Supreme Court they were pursuing to
challenge the constitutionality of the AIPPA. The State notes further that the
Minister of State for Information and Publicity and Cabinet appealed a decision
that the Complainants should publish by 30 November 2004.
79. The State notes further that the provisional order sought by the Complainants
demonstrates that it has not exhausted local remedies. The State referred the
African Commission to the Complainants’ statement in page 6 paragraph (r) that
“[a]s a provisional measure necessary to uphold and protect the rights contained
in the Charter and avoid irremediable damage, complainants ask the Commission
to request that ANZ’s computers and equipment be returned and it be allowed to
resume publication on the Daily News immediately, until its question whether the
impugned sections of the Zimbabwe statute are consistent with the provisions of
the Constitution of Zimbabwe has been properly heard and determined by an
impartial tribunal”
80. The State also submitted that it is misleading for the Complainants to argue that
the Supreme Court did not consider the question of admissibility as the Court
made an obiter statement on the question of constitutionality. The Respondent
States finally notes that appeal by the Government of the Republic against the
decision of the Administrative Court was heard together with the Complainants’
constitutional application and judgment is awaited and as such, the African
Commission cannot entertain the Communication until all local remedies have
been exhausted.
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African Commission’s decision on admissibility
81. The current Communication is submitted pursuant to Article 55 of the African
Charter which allows the African Commission to receive and consider
Communications, other than from States Parties. Article 56 of the African Charter
provides that the admissibility of a Communication submitted pursuant to Article
55 is subject to seven conditions.2 The African Commission has stressed that the
conditions laid down in Article 56 are conjunctive, meaning that, if any one of
them is absent, the Communication will be declared inadmissible.3
82. The Complainants in the present Communication argue that it has satisfied the
admissibility conditions set out in Article 56 of the Charter and as such, the
Communication should be declared admissible. The Respondent State on its part
submits that the Communication should be declared inadmissible because,
according to the State, the Complainants have not complied with Article 56 (3),
(5) and (6) of the African Charter.
83. Article 56 (3) of the Charter requires that Communications submitted to the
African Commission are not written in disparaging or insulting language directed
against the State concerned and its institutions or to the Organization of African
Unity (or African Union).
84. In the present Communication, the Respondent State argues that the
Communication is written in a language insulting to the judiciary of the State. The
State avers that the Complainants published an issue of its Newspaper (The
Daily News) on 12 September 2003 in which it stated inter alia that “…the
handing down of the judgment marked a sad day for Zimbabwe’s constitutional
history. I suppose we should be immensely thankful that we are not prisoners on
death row because the practical effect of this judgment is that had we have been
challenging the death penalty and not AIPPA , we would have had to hang first
and challenge the penalty from hell”. According to the State, this statement shows
the contempt that the Complainants have for the Supreme Court.
85. The State claims further that by stating in the Communication that a Judge of the
Supreme Court - Judge Sandura, was omitted from the case Complainants were
insinuating that the composition of the Supreme Court was manipulated. The
State claims that the use of the word “omitted” in the Communication clearly
connotes a motive by the Chief Justice, who selects judges to sit on a case, to
have excluded Judge Sandura and that there is bias in the appointment of judges
of the High Court and the Supreme Court because they are appointed by the
2
See Article 56 of the African Charter.
3
See African Commission, Information Sheet No. 3.
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President, and that that the Supreme Court was biased towards the government
and therefore acted not as the judiciary but as a political agent of the
Government.
86. In response to the State’s allegation of disparaging language, the Complainants
refuted the allegation and noted that the language was necessary in that it sought
to describe the effect of the judgment on the Complainants. The Complainants
also described a number of situations in which it claims the Respondent State
itself had made “uncharitable remarks against the same judiciary…” which they
consider as insulting and disparaging and far removed from the “criticism that is
contained in the Complainants’ brief” which according to them “are aimed at
showing the absence of a local remedy in the light of the decision by the
Supreme Court”.
87. The fundamental question that has to be addressed in the present
Communication is how far one can go in criticizing a judge or the judiciary in the
name of free expression, and whether the statement made by the Complainants
constitutes insulting or disparaging language within the meaning of Article 56 (3)
of the African Charter. Indeed, the Communication invites the Commission to
clarify the ostensible relationship between freedom of expression and the
protection of the reputation of the judiciary and the judicial process.
88. The operative words in sub-paragraph 3 in Article 56 are disparaging and
insulting and these words must be directed against the State Party concerned or
its institutions or the African Union. According to the Oxford Advanced Dictionary,
disparaging means to speak slightingly of… or to belittle…. and insulting means
to abuse scornfully or to offend the self respect or modesty of…
89. The judiciary is a very important institution in every country and cannot function
properly without the support and trust of the public. Judges, by the very nature of
the profession, speak in courts and courts only. They are not at liberty to debate
or even defend their decisions in public. This manner of conducting the business
of the courts is intended to enhance public confidence. In the final analysis, it is
the people who have to believe in the integrity of their judges. Without such trust,
the judiciary cannot function properly, and where the judiciary cannot function
properly the rule of law must die. Because of the importance of preserving public
trust in the judiciary and because of the reticence required for it to perform its
arbitral role, special safeguards have been in existence for many centuries to
protect the judiciary against vilification. One such protective device is to deter
insulting or disparaging remarks or language calculated to bring the judicial
process into ridicule and disrepute.
90. The freedom to speak one’s mind and debate the conduct of public affairs by the
judiciary does not mean that attacks, however scurrilous, can with impunity be
made on the judiciary as an institution or on individual officers. A clear line cannot
be drawn between acceptable criticism of the judiciary and statements that are
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downright harmful to the administration of justice. Statements concerning judicial
officers in the performance of their judicial duties have, or can have, a much
wider impact than merely hurting their feelings or impugning their reputations.
Because of the grave implications of a loss of public confidence in the integrity of
the judges, public comment calculated to bring the judiciary into disrepute and
shame has always been regarded with disfavour.
91. In determining whether a certain remark is disparaging or insulting and whether it
has dampened the integrity of the judiciary, the Commission has to satisfy itself
whether the said remark or language is aimed at unlawfully and intentionally
violating the dignity, reputation or integrity of a judicial officer or body and whether
it is used in a manner calculated to pollute the minds of the public or any
reasonable man to cast aspersions on and weaken public confidence on the
administration of justice. The language must be aimed at undermining the
integrity and status of the institution and bring it into disrepute. To this end, Article
56 (3) must be interpreted bearing in mind Article 9 (2) of the African Charter
which provides that “every individual shall have the right to express and
disseminate his opinions within the law”. A balance must be struck between the
right to speak freely and the duty to protect state institutions to ensure that while
discouraging abusive language, the African Commission is not at the same time
violating or inhibiting the enjoyment of other rights guaranteed in the African
Charter, such as in this case, the right to freedom of expression.
92. The importance of the right to freedom of expression was aptly stated by the
African Commission in Communications 140/94, 141/94, 145/94 against Nigeria4
when it held that freedom of expression is
a basic human right, vital to an individual’s personal
development and political consciousness, and to his
participation in the conduct of public affairs in his
country. Individuals cannot participate fully and fairly in
the functioning of societies if they must live in fear of
being persecuted by state authorities for exercising
their right to freedom of expression. The state must be
required to uphold, protect and guarantee this right if it
wants to engage in an honest and sincere
commitment to democracy and good governance
93. Over the years, the line to be drawn between genuine criticism of the judiciary
and insulting language has grown thinner. With the advancement of the politics of
human rights, good governance, democracy and free and open societies, the
public has to balance the question of free expression and protecting the
reputation of the judiciary. Lord Atkin expressed the basic relationship between
4
Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda/Nigeria, 13th
Annual Activity Report of the OAU, 1999–2000.
EX.CL/529(XV)
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the two values in Ambard v A-G of Trinidad and Tobago (1936) 1 All ER 704 at
709 in the following words:
but whether the authority and position of an individual
judge or the due administration of justice is concerned,
no wrong is committed by any member of the public
who exercises the ordinary right of criticizing in good
faith in private or public act done in the seat of justice.
The path of criticism is a public way…Justice is not a
cloistered virtue: she must be allowed to suffer
scrutiny and respectful even through outspoken
comments of ordinary men
94. More recently Corbett CJ in Argus Printing and Publishing Co Ltd v Esselen’s
Estate (1994) 2 SA expressed the modern balance as follows:
Judges, because of their position in society and
because of the work which they do, inevitably on
occasion attract public criticism and that it is right and
proper
that
they
should
be
publicly
accountable…Criticism of judgments, particularly by
academic commentators, is at times acerbic,
personally oriented and hurtful…To some extent what
in former times may have been regarded as
intolerable must today be tolerated…. This, too, will
help maintain a balance between the need for public
accountability and the need to protect the judiciary and
to shield it from wanton attack
95. In an open and democratic society individuals must be allowed to express their
views freely and especially with regards to public figures, such views must not be
taken as insulting. The freedom to speak one’s mind is now an inherent quality of
a democratic and open society. It is the right of every member of civil society to
be interested in and concerned about public affairs – including the activities of the
courts.
96. In the present communication, the Respondent State has not established that by
stating that one of the judges of the Supreme Court was “omitted” the
Complainants has brought the judiciary into disrepute. The State hasn’t shown
the detrimental effect of this statement on the judiciary in particular and the
administration of justice as a whole. In its submission to the Commission, the
Complainants indicated that “… [t]he judges who issued the judgment sat as the
country’s constitutional court, constituted as usual by a bench of five. The country
only has six Supreme Court judges. The most senior judge, Justice Sandura, was
omitted from the Court’s line-up, but he cannot now constitute a new bench,
either by sitting alone or by sitting with acting judges of appeal”. In the opinion of
the Commission, the Complainants were simply stating a fact - a fact to
demonstrate that in their view, it had approached the highest judicial body in the
country. The use of the word “omitted” can not in the Commission’s view be seen
as disparaging or insulting to the judiciary. There is no evidence to show that it
EX.CL/529(XV)
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was used in bad faith or calculated to poison the mind of the public against the
judiciary.
97. With regards the Respondent State’s claim that the Complainants published an
article with disparaging language in their Newspaper edition of 12 September
2003, the African Commission cannot make a pronouncement on the same as
the purported statement does not form part of the complaint submitted to the
Commission. Article 56 (3) of the Charter requires that Communications
submitted to the African Commission are not written in disparaging or insulting
language…. Communications within the meaning of Articles 55 and 56 refer to
the complaints submitted by petitioners. These complaints invariably include
other documentations submitted by the petitioner to support their case, such as
annexes. Documents supplied by third parties or the Respondent cannot and
should not form part of the complaint. In the present Communication, neither the
complaint itself nor the annexes thereto made reference to the statement
purportedly published by the Complainant in its Newspaper edition of 12
September 2003. For the above reasons, the Commission decline to uphold the
Respondent State’s argument that the Communication is written in disparaging
and insulting language.
98. With regards the exhaustion of local remedies, Complainants submit that
domestic remedies are ineffective, that the Respondent State has been given the
opportunity to remedy the grievance submitted before the Commission but the
State, through its courts, has proved unable to do so. The Respondent State on
its part argues that the matter is still before the Supreme Court, the highest court
in the country, and has been pending before the Court simply because of the
Complainants’ “defiance of the law”.
99. It is a well established rule of customary international law that before international
proceedings are instituted, the various remedies provided by the State should
have been exhausted. The principle of the exhaustion of local remedies is
contained in Article 56(5) of the African Charter and provides that
Communications relating to human and peoples’ rights referred to in Article 55
received by the African Commission shall be considered if they “are sent after the
exhaustion of local remedies, if any, unless it is obvious that this procedure is
unduly prolonged”.
100. International mechanisms are not substitutes for domestic implementation of
human rights, but should be seen as tools to assist the domestic authorities to
develop a sufficient protection of human rights in their territories. If a victim of a
human rights violation wants to bring an individual case before an international
body, he or she must first have tried to obtain a remedy from the national
authorities. It must be shown that the State was given an opportunity to remedy
the case itself before resorting to an international body. This reflects the fact that
States are not considered to have violated their human rights obligations if they
provide genuine and effective remedies for the victims of human rights violations.
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101. The international bodies do recognize however, that in many countries, remedies
may be non-existent or illusory. They have therefore developed rules about the
characteristics which remedies should have, the way in which the remedies have
to be exhausted and special circumstances where it might not be necessary to
exhaust them. The African Commission has held that for the domestic remedies
referred to in Article 56 (5) of the Charter to be exhausted they must be available,
effective and sufficient. If the domestic remedies do not meet these criteria, a
victim may not have to exhaust them before complaining to an international body.
However, the complainant needs to be able to show that the remedies do not fulfil
these criteria in practice, not merely in the opinion of the victim or that of his or
her legal representative.
102. If a Complainant wishes to argue that a particular remedy does not have to be
exhausted because it is unavailable, ineffective or insufficient, the procedure is as
follows: (a) the Complainant states that the remedy did not have to be exhausted
because it is ineffective (or unavailable or insufficient) - this does not yet have to
be proven; (b) the Respondent State must then show that the remedy is
available, effective and sufficient; and (c) if the Respondent State is able to
establish this, then the Complainant must either demonstrate that he or she did
exhaust the remedy, or that it could not have been effective in the specific case,
even if it may be effective in general.
103. In the present Communication, the Complainants and the Respondent State
seem to have reached what the Commission would call a “legal impasse”. The
Complainants argue that the domestic remedy provided by the Respondent State
is ineffective and cannot remedy their grievance, while the State contends that
the remedy is available and effective but the Complainants’ defiance of the law
has prevented them from using it. Usually, when there is a legal disagreement
between two parties, the appropriate national institution to resolve that
disagreement is the domestic courts. In the present Communication, the
Complainants have been to the highest court of the country and the latter refused
to hear and determine Complainants’ grievance on the merits claiming
Complainants have approached it with dirty hands. Complainants argue that on
matters of fundamental human rights, as is the case with the present
Communication, the dirty hands doctrine invoked by the Supreme Court cannot
be used as it would be undermining the supremacy of the Constitution. According
to the Complainants therefore, the domestic remedy available is not effective
because it is incapable of redressing the grievance and that is why the matter has
been referred to the Commission.
104. A brief account of the circumstances of the case would be helpful to determine
whether Complainants’ argument that there is no effective remedy or the State’s
contention that the Complainants haves not exhausted domestic remedies is
correct.
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105. On 15 March 2002, the Respondent State enacted a law, the Access to
Information and Protection of Privacy Act which required media practitioners to
register their businesses before operating in the country. In terms of Section 93 of
the Act, any person who immediately the Act became law was publishing a
Newspaper was deemed to be lawfully registered for a period of three months,
that is, up to 15 June 2002. It was envisaged that those who were required to
register would apply and be registered within the three months period. However,
the Regulations to the Act prescribing the various forms that had to be used for
registration were published only on the date the three months was due to expire,
15 June 2002. This means that no application for registration could be made
before 15 June 2002. To cater for this delay, section 8(2) of the Regulations
provides that once a person has submitted an application for registration, then
that person is permitted to carry on mass media activities while the application is
being considered.
106. Meantime, the Complainants sought to challenge the constitutionality of the Act
claiming the Act was unconstitutional and thus null and void ab initio. The
Complainants applied to the Supreme Court for an order declaring certain
provisions of the Act a nullity. The application was heard on 3 June 2003. On 11
September 2003, the Supreme Court handed down a ruling that it was not
prepared to hear and determine the merits of the case until the applicant (the
Complainants) had registered, that is, comply with the Act. A day after the ruling,
that is, 12 September 2003, Complainants published an edition of their
Newspaper, the Daily News. That same day, police visited the premises of the
Complainants and evicted all employees there from.
107. After discussions with the police on 13 September 2003, Complainants were
given permission to enter the premises with a few staff to prepare documents to
apply for registration. On 15 September 2003, Complainants submitted
application for registration to the Media and Information Commission and the
application was duly acknowledged on the same day. On 16 September 2003,
Respondent’s agents - the police, raided the premises of Complainants seizing
equipment – computers, printers and other office accessories belonging to
Complainants. On 17 September Complainants went to the High Court seeking
an order that Respondent vacates the premises and restore possession and
control thereof to them and return all goods and equipment removed from the
premises. On 18 September, the High Court ruled in favour of the Complainants
and ordered the Respondent to return the property. The Court also noted that in
terms of section 8 (2) of the Regulations, the Respondent has no legal right to
prevent the applicant and its employees from gaining access to the premises of
the applicant and carrying on its business of publishing a Newspaper.
108. On 19 September 2003, the MIC informed the Complainants that its application
for registration could not be granted because Complainants have been operating
illegally even after the Supreme Court Order of 11 September 2003 and that the
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Complainants had failed to accredit is journalists. On 23rd September 2003, the
Complainants lodged an appeal with the Administrative Court of Zimbabwe
against the decision of the MIC claiming that MIC was improperly constituted,
acted ultra vires and that the Chairperson of the MIC was biased. On 24 October
2003, the Administrative Court upheld the arguments of the Complainants and
ordered the MIC to grant a certificate of registration to the Complainants by the
30th of November 2003. Before the certificate could be issued and before the 30th
of November 2003, Complainants went ahead and published on 25 November
2003, another edition of its Newspaper – The Daily News. The Respondent State
claims it has appealed the decision of the Administrative Court and it is this
appeal which the State is claiming is still before the courts and thus domestic
remedies have not been exhausted.
109. In view of the above scenario, it is apparent to the African Commission that there
are two matters that the Complainants have taken to the Courts of the
Responding State. The one is a matter to declare the AIPPA unconstitutional,
which the Supreme Court on 11 September 2003 declined to entertain on
condition that Complainants comply with AIPPA – the same Act they sought to
challenge before the Court. The second matter brought before the Administrative
Court is the one to appeal against the decision of the Media and Information
Commission not to grant the complainant registration to operate media services.
The Administrative Court ruled in favour of the Complainants and the State claims
to have appealed the decision.
110. Both matters originate from the Complainants’ desire to challenge the AIPPA.
The matter for which the African Commission is called upon to decide is clear. It
is the decision of the Supreme Court not to rule on the Complainants’ challenge
of the constitutionality of AIPPA. After the Supreme Court decision of 11
September 2003, the Complainants argue that there was no other court available
in the country to hear the matter. Since the Complainants disagreed with the
reasoning of the Supreme Court for not making a determination on the merits of
the matter and since the Court sat as the highest court in the land on the matter,
there was no other avenue for appeal. As far as the Complainants are concerned,
the only domestic remedy available, the Supreme Court, was not able to deal with
the particular case and as such was ineffective. The Complainants therefore
approached the African Commission to seek redress. The Communication to the
African Commission was submitted on 12 November 2003, twelve days before
the decision of the Administrative Court on another matter – that dealing with the
MIC’s refusal to grant the Complainants a registration certificate.
111. In the opinion of the African Commission, the two cases, though stemming from
the same matter, cannot be considered as pending before the courts of the
Respondent State. The appeal of the Respondent on the Administrative Court’s
decision has no bearing on the case before the African Commission, because the
Respondent State has not established that the Complainants intend to use the
outcome of that case to revert to the Supreme Court to hear its original
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application on the constitutionality of AIPPA. Also, the fact that the Complainants
submitted the present Communication to the Commission while the appeal on the
other case was still pending indicates that the outcome of the appeal had no
bearing on the case submitted to the Commission. There is no information
submitted to the African Commission to the effect that the matter before it is on
appeal. What the Commission knows is that the Supreme Court refused to hear
the matter on the merits and ordered Complainants to go and put its house in
order. Complainants have not indicated that they intend to put their house in
order and revert to the Court.
112. In view of the above, the African Commission is of the view that the matter for
which the State has appealed is not before it and has not been brought to it by
any of the parties. However, on the matter submitted to it by the Complainants,
the latter has demonstrated that it has seized the highest Court in the country and
could not get appropriate remedy.
113. It is immaterial at this stage to discuss why the Supreme Court refused to hear
the Complainants’ case. What the Complainants need to do is to satisfy the
African Commission that it approached the Supreme Court with the current
grievance and failed to get remedy. This, in the opinion of the Commission, has
been aptly demonstrated.
114. Regarding the Supreme Court ruling of 14 March 2005, the African Commission
recognises the fact that the parties to the case are the same, that the subject
matter is similar to those brought by the Complainants before the same Supreme
Court in June 2003 and which the latter ruled on 11 September 2003 against the
Complainants.
115. The question before the African Commission at this stage is not to determine
whether the Complainant have, subsequent to the submission of the
Communication to the Commission, had their grievances resolved, but rather
whether at the time of submitting the Communication, domestic remedies were
available, effective and sufficient.
116. The African Commission has held that a remedy is considered available if the
petitioner can pursue it without impediment. In communication 147/95 and
149/96, the Commission held that a remedy is considered available only if the
applicant can make use of it in the circumstances of his case. It is deemed
effective if it offers a prospect of success, and it is found sufficient if it is capable
of redressing the complaint.5
117. The facts as presented before the African Commission indicate that at the time
the Communication was submitted the Complainants had approached the highest
5
.
Sir Dawda Jawara v The Gambia, communication 147/95 and 149/96.
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court in the Respondent State – the only domestic remedy available to address
the grievance. The Court declined to make a determination on the merits of the
case brought by the Complainants requiring the Complainants instead to
undertake an action which was the very subject matter of the application.
118. By refusing to make a determination on the merits of the case and by “forcing” the
Complainants to perform that which it was challenging before the Court, the
Supreme Court effectively demonstrated its inability to address the question put
to it by the Complainants and made domestic remedies unavailable and
ineffective in the instance of the Complainants’ case and left the latter with no
other alternative than to resort to the international forum to seek protection.
119. The availability of a remedy must be sufficiently certain, not only in theory but
also in practice, failing which, it will lack the requisite accessibility and
effectiveness. Therefore, if the applicant cannot turn to the judiciary of his country
because he is required by the same judiciary to first of all recognise that which he
is challenging, local remedies would be deemed to be unavailable to him. In the
present Communication, that seems to have been the case.
120. The Respondent State, without elaborating, also argues that the Complainants
have not complied with Article 56 (6) of the African Charter. This sub–article
provides that Communications referred to under Article 55 of the Charter shall be
considered if they…are submitted within a reasonable period from the time local
remedies are exhausted, or from the date the Commission is seized with the
matter…”. The Communication was received at the Secretariat of the African
Commission on 12 November 2003, two months after the Supreme Court refused
to hear the matter on the merits. It is the opinion of the Commission that the
Communication was submitted within a reasonable time.
121. For the above reasons, the African Commission declines to grant the Respondent
State’s request for the Communication to be declared inadmissible and upholds
the Complainants’ arguments that all the conditions under Article 56 have been
met and thus declares the Communication admissible.
Submissions on the merits
Complainants’ submissions on the merits
122. The Complainants submit that, the Respondent State’s court, by invoking the dirty
hands doctrine and refusing to hear their case, violated their rights guaranteed in
Articles 3, 7, 9, 14 and 15 of the African Charter. The Complainants are not
asking the Commission to pronounce on the compatibility of the AIPPA to the
African Charter.
123. Regarding the alleged violation of Article 3, they submit that the failure of the
Supreme Court to decide whether the AIPPA was unconstitutional was a
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violation of their right to equal protection of the law, adding that this refusal
‘collides not only with the letter and spirit of the Charter but more so with
universal law as expressed in several other documents such as Article 2 (b) of
the International Covenant on Civil and Political Rights, Article 8 of the Universal
Declaration of Human Rights, as well as Articles 7 and 26 of the African Charter.
124. According to the Complainants, the relief sought by ANZ was a determination of
the constitutionality or otherwise of an Act of Parliament, and the Court was
supposed to decide on the facts of the alleged violations and ‘not on the
presumption of non-compliance with an Act of Parliament’. That by deciding on a
procedural aspect on a principle of equity which was not applicable to matters
pertaining to human rights, the Court denied the ANZ the right to equal protection
before the law as provided in the Charter.
125. The Complainants argue that the right to equal protection of the law is
guaranteed in the constitution of the Respondent State thus: ‘any one who has
reason to belief that his fundamental rights are about to be violated or are likely to
be violated can petition the Court for its immediate intervention’. The
Complainants submit that ‘to then rely on a doctrine of equity addressing an issue
which is believed to stem from the rights protected by the constitution will not only
be depriving the petitioner of an effective remedy but also denial of the right to
protection of the law’.
126. Regarding allegation of violation of Article 7, Complainants argue that by refusing
to hear the merits of their petition, the supreme court proved to be ineffective in
acting both as the court of first instance in matters relating to human rights, and in
their case, as final tribunal. They argue that for an appeal to a competent body to
be considered to be effective, there must be an equally effective decision to
remedy the violation of the right of the petitioner. The decision that results from
the appeal need not be favourable to the petitioner but it must be considered
effective in so far as it addresses the petition.
127. The Complainants argue further that the right to appeal to competent authorities
on allegation of human rights violations should not be dealt with on procedural
aspects only, but the competent body, in this case the Supreme Court, should
make a decision based on the merits of the petition. According to the
Complainants, in their case, the Court denied them the right to be heard and
therefore denying them justice.
128. The Complainants indicate that the determination of one’s rights by a competent
tribunal is a procedural guarantee provided for in the Charter. To determine
whether one’s rights have been violated, the national body has to make a
determination on the merits of the petition. In the present case, they argue, the
Supreme Court refused to determine the merits of the case thereby depriving
them of an effective remedy. The Complainants go further to state that the
application of the clean hands doctrine in matters relating to constitutional
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challenges actually results in legal unpredictability and could ultimately lead to
disorder, adding that non-judicial decision of a bona fide case deprives litigants
as well as future actors of that knowledge of effective remedies, and the fact that
an Act has been passed into law does not preclude one from challenging its
constitutionality and the notion of complying with an illegality first does not tally
with the notion of constitutional supremacy and laws which are not in conformity
with the constitution are void ab initio.
129. The Complainants further submit that by declining to decide on the
constitutionality of the AIPPA, the Court abdicated on its primary duty as the
protector of fundamental human rights and denied the petitioners the right to be
heard and the protection of the law.
130. In conclusion, the Complainants submit that the role of the African Commission in
the matter is not to interpret the law being challenged or declare that the decision
of the domestic court was unconstitutional, but it is rather to establish whether the
decision of the court is in violation of the Charter. They implore the Commission
to find that by applying the unclean hands doctrine in matters relating to
constitutional rights, the Supreme Court of Zimbabwe violated the rights
guaranteed in the Charter, in particular, equal protection of the law, fair trial and
the right to appeal to competent bodies.
Respondent State’s submissions on the merits
131. In its submissions, the Respondent State argues that all the Complainant’s
submissions are without merit. The State cited the Supreme Court decision in
Association of Independent Journalists and Others vs. Minister of State for
Information and Publicity and others, where it was held that any law that seeks to
regulate the practice of journalism has to conform to the stringent requirements
for a law abridging the right conferred by section 20 of the Constitution in order to
be valid. The State emphasised that the Media Commission does not have any
discretion and that anybody who complies with the requirements of section 79 is
entitled to accreditation. According to the State, the implication is that, if the
requirements are too onerous, then the regulations, including section 83 which
prohibits practicing as a journalist without accrediation, could be held to be
unconstitutional.
132. The Complainants indicate that, regulations require personal information which
includes marital status, national identity number, residential address, criminal
record and details of accreditation to a specific media house. They claim that for
purposes of licensing, these requirements cannot be said to be onerous.
133. According to the Respondent State, statistics held by the Media and Information
Commission portrayed that none of these requirements are onerous.
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134. The Respondent State argues that the Complainants’ claim that it is dangerous
for journalists to disclose their residential address for fear of arrest after midnight
cannot go unchallenged because there is no prove as to the fact that any
journalist has been arrested at midnight after having filed the application for
accreditation.
135. The Respondent quotes Article 9(2) of the African Charter, where the African
Commission in interpreting the phrase ‘within the law’ has said that the authorities
should not override constitutional provisions and fundamental rights guaranteed
by the Constitution and International human rights standards.6 The Respondent
recognises that national law cannot set aside the right to express and
disseminate information which is recognised under international law.
136. Furthermore, the State contends that the Charter recognises the right of the State
to justify resorting to limitation of the right which has to be justifiable in terms of
international practice, and measures taken must be in line with protected interest,
adding that Section 20(1) of the Zimbabwe Constitution is in line with Article 9(2)
of the Charter. The Constitution provides for derogration of a fundamental right
where the derogration is according to law.
137. The Respondent State submits further that, the legislation applies to all media
houses and practictioners who wish to practice in Zimbabwe without posing any
threat to the right of the public to receive information.
138. In addition to the above, that mere registration of the media does not inhibit the
practice of journalism and that the Complainants’ submission does not portray
how exercise of that right is curtailed by the requirement of registration. The State
quotes the wordings of Article 13 of the European Convention which grants an
absolute right as opposed to Article 9(2) of the African Charter, adding that the
interpretation by the American Convention is different from that in article 10.1 of
the European Convention which empowers legislation in respect for licensing of
broadcasting, television and cinema, and Artilce 9 of the African Charter which
allows for the execise of the right. Therefore, the State asserts, within the African
Charter provisions, there is nothing that stops both technical and journalistic
regulation as long as it is in accordance with the Charter.
139. The Respondent State contends that, the objective of regulating journalists is not
to control them and to prevent or limit critical journalism, rather it is within the
ambit of allowable derogations within the Charter.
6
Communication 101/1993.
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140. According to the Respondent, the provisions being challenged by the
Complainant may cause inconveniences to journalists. However, that they are not
arbitrary and oppressive and do not violate the right of freedom of expression.
141. The State further submits that, the accreditation of journalists and licensing of the
media is constitutional and compliant to the Charter.
142. The Respondent therefore submit that both sections 79 and 80 of the AIPPA are
not in contravention of Article 9 of the Charter. Furthermore, that the provisions of
Article 27(2), in line with section 20(1) of the Constitution and section 80 of the
AIPPA provide that the rights and freedoms of each individual shall be exercised
with due regard to the rights, collective security, morality and common interest.
143. The Respondent State therefore prays that the Commission finds that the
legislation in question does not violate Article 9 of the Charter as alleged by the
Complainant.
Respondent State’s supplementary submissions on the merits
144. During the 41st Ordinary Session, the Respondent State made a supplementary
submission claiming that it never received the Complainant’s submissions on the
merits prior to submitting its original submission on the merits, adding that the
supplementary submissions was meant to address the issues raised by the
Complainants.
145. In its submissions, the Respondent State notes that Complainants argue that
there are civil and criminal sanctions for injuria and defamation which already
regulate the conduct of journalists and hence no need for further legislation, that
registration requirements are unduly intrusive and burdensome, and that
compliance with the requirements does not necessarily guarantee registration of
a journalist as the MIC has the discretion to decide whether or not to register a
journalist. The Respondent State claims that each of the Complainants’
submissions referred to above and elsewhere are without merit.
146. The African Commission finds that supplementary submission of the Respondent
State does not depart from its earlier submission summarised in paragraphs 131
– 143 of this decision.
The African Commission’s decision on the merits
147. In the present Communication, the Commission is called upon to make a
determination whether the decision of a domestic court, the highest court of the
land in the Respondent State, not to hear a petition brought by the Complainants
because the latter came before the Court with ‘dirty hands’, is a violation of the
Charter. In other words, did the Supreme Court violate the rights of the
Complainants by invoking the equitable doctrine of ‘he who comes to equity must
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come with clean hands’? The Commission is not called upon to determine the
constitutionality of the AIPPA which was the subject at issue before the Supreme
Court. The Commission is also not called upon to determine whether the AIPPA
or provisions thereof, violate the African Charter. It is called upon to determine
whether by invoking the dirty hands doctrine, the Respondent State, through its
Court, violated the right to have the Complainants’ cause heard, as guaranteed
under Article 7 (1) (a) of the African Charter.
What is the clean hands doctrine?
148. According to the Black’s Law Dictionary (2000), the clean hands doctrine is an
equitable principle which requires that a party cannot seek equitable relief or
assert an equitable defense if that party has violated an equitable principle such
as good faith. It bars relief to persons who are guilty of misconduct in the matter
for which they seek relief. It is a positive defense that is available where the
complaint by the claimant is equitable.
149. Normally, equitable relief is generally available when a legal remedy is insufficient
or inadequate to deal with the issue. These rights and procedures were created
to provide fairness, unhampered by the narrow confines of the old common law or
technical requirements of the law. It was recognised that sometimes the common
law did not provide adequate remedies to solve all problems hence the creation
of the courts of equity by the monarch.
150. However, in modern days, separate courts of equity have largely been abolished
and the same courts that may award a legal remedy have the power to prescribe
an equitable one. With time, certain aspects of equity were imported into the law
and one such import is the doctrine of Clean Hands.
151. It is notable also that it is quite a controversial doctrine particularly in the sphere
of public law where the formulation is that the responsibility of the state is not
engaged when the complainant has acted in breach of the law of the state.
However, as an equitable rule extended to the domain of law, it is necessary to
be cautious when applying it particularly in cases where fundamental legal/human
rights are involved.
152. In the present Communication, the relief sought by the Complainants before he
Supreme Court was a determination by the Court whether an Act of Parliament,
enacted by the Respondent State, violated or was likely to violate their
fundamental rights guaranteed under the Constitution, and other international
human rights instruments, including the African Charter. According to the
Supreme Court, the petition could not be entertained because the Complainants
approached the Court with dirty hands. They (the Complainants) had refused to
comply with the very law they approached the Court to challenge. The Court thus
invoked the equitable doctrine of ‘he who comes to equity must come with clean
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hands’, and refuse to entertain the Complainants’ request for the Court to
determine the constitutionality of the Act they were challenging.
153. The question before the Commission is whether the Supreme Court, by invoking
the clean hands doctrine, and refusing to entertain the merits of the petition of the
Complainants, violated the rights of the Complainants and in effect, the African
Charter.
Alleged violation of Article 3
154. The Complainants allege the violation of Article 3 of the African Charter. This
Article provides that: ‘Every individual shall be equal before the law, and every
individual shall be entitled to equal protection of the law “.According to the
Complainants, by applying the unclean hands doctrine and refusing to hear the
merits of their case, the Supreme Court of Zimbabwe violated the right to equal
protection of the law guaranteed under Article 3 of the African Charter. The State
did not address itself to this allegation.
155. Article 3 guarantees fair and just treatment of individuals within the legal system
of a given country. The aim of this principle is to ensure equality of treatment for
individuals irrespective of nationality, sex, racial or ethnic origin, political opinion,
religion or belief, disability, age or sexual orientation.
156. The most fundamental meaning of equality before the law provided for under
Article 3(1) of the Charter is the right by all to have the same procedures and
principles applied under the same conditions.
157. The right to equality before the law means that citizens should expect to be
treated fairly and justly within the legal system and be assured of equal treatment
before the law and equal enjoyment of the rights available to all other citizens.
With respect to Article 3(2) on the right of equal protection of the law, the African
Commission in its decision in Zimbabwe Lawyers for human Rights and the
Institute for Human Rights and Development /Republic Of Zimbabwe7, relied on
the Supreme Court decision in Brown v. Board of Education of Topeka,8 in which
Chief Justice Earl Warren of the United State of America argued that ‘equal
protection of the law refers to the right of all persons to have the same access to
the law and courts and to be treated equally by the law and courts, both in
procedures and in the substance of the law. It is akin to the right to due process
7
Communication 293/2004.
8
347 U.S 483 (1954).
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of law, but in particular applies to equal treatment as an element of fundamental
fairness.9
158. In order for a party to establish a successful claim under Article 3 of the Charter, it
should show that, the Respondent State has not given the Complainant the same
treatment it accorded to the others in a similar situation. Or that, the Respondent
State had accorded favourable treatment to others in the same position as the
Complainant.
159. In the present Communication, the Commission notes that the Complainants
have not demonstrated the extent to which the Courts treated them differently
from the Respondent State or from any other party in a similar situation. This
seems to be the first instance where the Supreme Court is approached to deal
with the kind of matter raised by the Complainants and there is no evidence to
indicate that the Complainants were treated differently. The African Commission
can therefore not find the Respondent State to have violated the Complainants’
rights under Article 3 of the African Charter.
Alleged violation of Article 7
160. With respect to the alleged violation of Article 7 of the African Charter, the
Complainants submit that the right to have their cause heard, in particular, the
right to an appeal to competent national organs against acts violating their
fundamental rights… guaranteed under Article 7 (1) (a) of the African Charter
have been violated. The Respondent State on its part argues that their right to be
heard has not been violated, noting that Complainants’ have disregarded the law.
161. The Respondent State operates a legal system where the Constitution reigns
supreme. Article 3 of the Constitution of Zimbabwe provides that “this Constitution
is the supreme law of Zimbabwe and if any other law is inconsistent with this
Constitution that other law shall, to the extent of the inconsistency, be void”. This
means any law that violates the Constitution, or any conduct that conflicts with it,
can be challenged and struck down by the courts.
162. The fundamental rights of Zimbabweans are enshrined in Chapter 3 of the
Constitution of Zimbabwe entitled the Declaration of Rights (Bill of Rights). All
legislation passed by Parliament must conform to the Bill of Rights provisions of
the Constitution. If a legislative provision is inconsistent with the Bill of Rights, the
courts, in particular, the Supreme Court, have been given the power to declare it
to be void and of no force and effect.
163. This functions to determine constitutionality or compatibility or otherwise of laws
with the Constitution rests with the Supreme Court of the Respondent State.
9
www.legal-explanations.com.
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Thus, when there are doubts about the constitutionality of a new legislation,
persons affected are entitled to obtain a ruling from the Supreme Court as to
whether or not the legislation is constitutional.
164. The Supreme Court has also been given extensive powers to provide appropriate
remedies to persons whose fundamental rights have been violated. In terms of
Section 24 (1) of the Constitution, if any person alleges that the Declaration of
Rights has been, is being or is likely to be contravened in relation to him (or, in
the case of a person who is detained, if any other person alleges such a
contravention in relation to the detained person), then, without prejudice to any
other action with respect to the same matter which is lawfully available, that
person (or that other person) may, subject to the provisions of subsection (3),
apply to the Supreme Court for redress.
165. In view of the importance attached to fundamental rights, Article 24 (4) provides
that the Supreme Court shall have original jurisdiction –
to hear and determine any application made by any person
pursuant to subsection (1) or to determine without a hearing any
such application which, in its opinion, is merely frivolous or
vexatious; and… may make such orders, issue such writs and
give such directions as it may consider appropriate for the
purpose of enforcing or securing the enforcement of the
Declaration of Rights:
166. In terms of the Constitution, there are at least two instances in which the
Supreme Court can decline to entertain an application to determine the
constitutionality of a law. The first is when in its view, the application is vexatious
or frivolous; and the second is when the Supreme Court is satisfied that adequate
means of redress for the contravention alleged are or have been available to the
person concerned under other provisions of the Constitution or under any other
law. In the present Communication, neither of the two grounds could apply. The
Court did not find the application vexatious or frivolous and there was no other
adequate means of redress of the issue as the Supreme Court in the Respondent
State has original and final jurisdiction with respect to matters dealing with
fundamental rights.
167. Article 24 of the Constitution does not provide any time bar or an indication on
when one should approach the Supreme Court to seek redress for any alleged
violation of their rights. The Constitution simply provides that anyone who
believes his rights have been, are being or are likely to be violated can approach
the Court. This means that a law can be challenged at any time, depending on
the circumstances, and on how the alleged victim perceive the law as interfering
with the enjoyment of their rights, that is, whether the law has already violated the
person’s rights, whether the law is violating the person’s rights or whether the law
is likely to violate the person’s rights.
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168. In the case under consideration, the Complainants argue that the law enacted by
Parliament is likely to violate their rights guaranteed under the Constitution of the
Respondent State and under international human rights instruments. For this
reason, they approached the Supreme Court to declare those sections of the law
they believed would likely violate their rights, unconstitutional. In the Supreme
Court, the Respondent State raised the point in limine that the Applicant
(Complainants before the Commission), ought not to be heard on the merits as it
had not sought registration. The Supreme Court upheld the Respondent State’s
contention, and in its ruling advised the applicant to seek registration with the
Respondent State before approaching it (the Supreme Court) for the relief on the
merits of the constitutional challenge.
169. Can it be said that the Complainants were refused to be heard by the Supreme
Court? In other words, by not hearing the Complainants’ petition on the merits,
could it be argued that their right to have their cause heard has been violated?
170. To answer this question, the Commission will have to determine the meaning of
having ‘one’s cause heard’ under Article 7(1)(a) of the Charter.
171. Article 7(1) of the African Charter provides that “every individual shall have the
right to have his cause heard. This comprises: (a) the right to an appeal to
competent national organs against acts violating his fundamental rights as
recognized and guaranteed by conventions, laws, regulations and customs in
force”.
172. The right to have one’s cause heard requires that the matter has been brought
before a tribunal with the competent jurisdiction to hear the case. A tribunal which
is competent in law to hear a case has been given that power by law: it has
jurisdiction over the subject matter and the person, and the trial is being
conducted within any applicable time limit prescribed by law.
173. In the present Communication, the Complainants argue that the Supreme Court
failed to hear their ‘cause’ on the merits. The Supreme Court instead pronounced
itself on a preliminary objection raised by the Respondent State that the
Complainants were before the Court with dirty hands. In its ruling, the Supreme
Court directed the Complainants to go and do that which they were challenging
(to register in accordance with the Respondent State’s Law they were challenging
before the Court), and it is only then that their ‘cause’ could be heard on the
merits.
174. In the opinion of the Commission, a ‘cause’ before a tribunal must be construed in
broader terms to include everything related to the matter, including preliminary
issues raised on the matter. The Court need not pronounce itself on the merits of
the substantive matter. It simply needs to hear the parties. Thus, by pronouncing
on the preliminary issue raised by the Respondent State on the question brought
by the Complainants, the Supreme Court in effect heard the ‘cause’ of the
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Complainants. Besides, the Supreme Court did not close its doors on the
Complainants, it simply asked the latter to go and register and come back to it for
the matter to be heard on the merits. It can therefore not be said that the
Respondent State has violated the Complainants’ rights under Article 7.
Alleged violation of Article 9, 14 and 15
175. It is alleged that the State moved into action to seize the premises and close the
offices of the Complainants after the Court’s decision.
176. Can it be said that the State was enforcing a Court decision or trying to prevent a
breach of the law? The African Commission is of the view that even if the State
was in the process of ensuring respect for the rule of law, it ought to have
responded proportionally. In law, the principle of proportionality or proportional
justice is used to describe the idea that the punishment of a certain crime should
be in proportion to the severity of the crime itself. The principle of proportionality
seeks to determine whether, by the action of the State, a fair balance has been
struck between the protection of the rights and freedoms of the individual and the
interests of the society as a whole. In determining whether an action is
proportionate, the Commission will have to answer the following questions:
•
•
•
•
•
Was there sufficient reasons supporting the action?
Was there a less restrictive alternative?
Was the decision-making process procedurally fair?
Were there any safeguards against abuse?
Does the action destroy the very essence of the Charter rights in issue?
177. In its decision, on Communication 242/2001 – Interights, Institute for Human
Rights and Development in Africa, and Association Mauritanienne des Droits de
l’Homme/Islamic Republic of Mauritania, the African Commission held in respect
of the allegations made against the State that “the dissolution of UFD/Ere
nouvelle political party by the Respondent State was not proportionate to the
nature of the breaches and offences committed by the political party and is
therefore in violation of the provisions of Article 10(1) of the African Charter”.
178. In the present Communication, when put against the above criteria, it is clear that
the action of the State to stop the Complainants from publishing their
newspapers, close their business premises and seize all their equipment cannot
be supported by any genuine reasons. In a civilized and democratic society,
respect for the rule of law is an obligation not only for the citizens but for the State
and its agents as well. If the State considered the Complainants to be operating
illegally, the logical and legal approach would have been to seek a court order to
stop them. The State did not do that but decided to use force and in the process
infringed on the rights of the Complainants.
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179. The action of the Respondent State to stop the Complainants from publishing
their newspapers, close their business premises and seize their equipment
resulted in them and their employees not being able to express themselves
through their regular medium; and to disseminate information. The confiscation of
the Complainants’ equipment and depriving them of a source of income and
livelihood is also a violation of their right to property guaranteed under Article 14.
By closing their business premises and preventing the Complainants’ and their
employees to work, the Respondent State also violated Article 15 of the Charter.
Thus, whether motivated by the Supreme Court’s decision or through its own
initiative, the action of the Respondent State resulted to an infringement of the
rights of the Complainants. The Commission thus finds the State in violation of
Articles 9 (2), 14 and 15 of the African Charter.
180. The African Commission thus finds the Respondent State has not violated
Articles 3 and 7 of the African Charter as alleged by the Complainants.
181. The African Commission however finds the Respondent State in violation of
Articles 9 (2), 14 and 15 of the African Charter.
182. Since a violation of any provision of the Charter necessarily connotes the State
Party’s obligation under Article 1, the African Commission also finds the
Respondent State in violation of Article 1 of the African Charter.
The African Commission thus recommends that the Respondent State provides
adequate compensation to the Complainants for the loss they have incurred as a
result of this violation.
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Adopted at the 6th Extra Ordinary Session of the African Commission on Human
and Peoples’ Rights, 30th March – 3rd April, 2009, Banjul, The Gambia.
Communication 294/2004:
Zimbabwe Lawyers for human Rights and the
Institute for Human Rights and Development (on behalf of Andrew Barclay
Meldrum) /Republic Of Zimbabwe
Summary of Facts:
1. The Communication is submitted by the Zimbabwe Lawyers for Human Rights
and the Institute for Human Rights and Development in Africa (the Complainants)
on behalf of Mr. Andrew Barclay Meldrum (the victim). It alleges that Mr.
Meldrum’s rights of freedom of expression and freedom to disseminate
information were violated by the Republic of Zimbabwe (the Respondent).
2. It is stated by the Complainants that Mr. Andrew Barclay Meldrum’s an America
citizen was legally admitted into Zimbabwe in October 1980 and settled
permanently until 2003 when he was deported. It is alleged that the Ministry of
Home Affairs of Zimbabwe on 10 February 1980 issued Mr. Meldrum with a
permanent residence permit which allowed him to work as a journalist and since
then he has been a foreign correspondent for the Mail and Guardian, a paper
published in the United Kingdom.
3. The Complainants state that on 7 May 2002, Mr. Meldrum published an article in
the Daily News (an independent paper that has been closed by the Respondent
State) on the internet version of the Mail and Guardian. As a result of the
publication, the Complainants claim Mr. Meldrum was charged with “publishing
falsehood” under section 80 (1) (b) of the Access to Information and Protection of
Privacy Act, (AIPPA). Mr. Meldrum was found not guilty on 15 July 2002. The
complainants state that on 7 May 2003, the Supreme Court of Zimbabwe
declared section 80 (1) (b) of the AIPPA unconstitutional in the case of Lloyd
Zvakavpano Mudiwa v The State.
4. It is further alleged that immediately after his acquittal, Mr. Meldrum was
requested to report to the Immigrations Department Investigations Unit and was
served with a deportation order issued in terms of section 14 (i)g of the
Immigrations Act. Mr. Meldrum appealed the deportation order within 24 hours to
the Ministry of Home Affairs as required by the Immigrations Act. Meanwhile, an
application challenging the deportation order was filed by his lawyers in the High
Court. On 17 July 2002, the High Court ordered that Mr. Meldrum should be
allowed to stay in the country until the Supreme Court had dealt with all the
constitutional matters raised in the matter.
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5. The Complainants, allege further that on 16 May 2003, Mr. Meldrum was
summoned to the Immigration Department where he was informed that he could
no longer work as a journalist. He was informed that he had not been accredited
in terms of the Access to Information and Protection of Privacy Act. Mr. Meldrum
informed the immigration authorities that he had filed an application to the
Supreme Court and pending the outcome he should be allowed to practice
journalism as provided by the Act. The Immigration authorities then informed him
that they had a deportation order issued by the Ministry of Home Affairs which
empowered them to deport him forthwith without disclosing the reason for the
deportation. Mr. Meldrum was then forced into a car and taken to the airport.
6. They claim that an urgent appeal was filed in the High Court to interdict the
deportation order and to compel the State to bring Mr. Meldrum before the High
Court by 15:30hrs that same day. But at 15:30hrs, the State Counsel appeared in
court without Mr. Meldrum. The High Court gave another order prohibiting the
State from deporting Mr. Meldrum. At about 20:00hrs, the State Counsel informed
the Court that Mr. Meldrum could not be located. The High Court issued another
order for the release of Mr. Meldrum and this order was served on the
immigration authorities by Mr. Meldrum’s lawyer who had to drive to the airport for
that purpose. In spite all these efforts and Court orders, the State defiantly
deported Mr. Meldrum.
Complainant
7. The Complainants allege that the Respondent State has violated articles 2, 3, 7
(1a) (b), 9, 12(4), and 26 of the African Charter on Human and People’s Rights.
Procedure
8. The complaint was received at the Secretariat of the African Commission on 6
October 2004.
9. On 12 October 2004, the Secretariat wrote to the Complainants acknowledging
receipt of the complaint and informing them that it will be considered at the
Commission’s 36th Ordinary Session.
10. On 13 December 2004, the Secretariat wrote a letter to inform Parties that at its
36th Ordinary Session held from 23 November to 7 December 2004, in Dakar,
Senegal, the African Commission considered the above mentioned
Communication and decided to be seized thereof.
11. On 3 February 2005, the Complainants transmitted their arguments on
admissibility.
12. On 22 February 2005, the Secretariat acknowledged receipt of the Complainants’
arguments on admissibility and inform them that the Communication will be
EX.CL/529(XV)
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considered on admissibility at the 37th Ordinary Session of the African
Commission scheduled to take place from 27 April to 11 May 2005 in Banjul, The
Gambia.
13. The Secretariat of the African Commission wrote a Note Verbal to the
Respondent State transmitting Complainants’ submissions on admissibility and
reminding the Respondent State that the Secretariat is yet to receive their
submission on admissibility.
14. A fax message was received by the Secretariat on 14 March 2005, from the
Respondent State requesting a postponement of consideration of the
Communication on admissibility to the 38th Ordinary Session.
15. The Secretariat acknowledged receipt of the above mentioned fax and forwarded
the decision of the 36th Ordinary Session of the African Commission to the
Ministry of Foreign Affairs by Note Verbales dated 13 December 2004 and urged
the Respondent State to submit on admissibility so that a decision could be taken
at the next session of the African Commission.
16. In this respect, the Secretariat requested the Respondent State if they could
make their submissions on admissibility with respect of all pending
Communications by 18 April 2005. The Secretariat also asked the Respondent
State to inform it whether the government of Zimbabwe would like to make oral
submissions, so that it can advise the Complainants and the Members of the
Commission accordingly.
17. During its 37th Ordinary Session, held from 27 April to 11 May 2005, in Banjul,
The Gambia, the African Commission considered the said communication and
deferred consideration thereof to its 38th Ordinary Session pending the
Respondent State’s submissions of its arguments on admissibility.
18. On 24 May 2005, the Secretariat informed both parties about the Commission’s
decision. The Secretariat also reminded the Respondent State that it had not
submitted its submissions on admissibility requested it to do so before 15 October
2005 so that the Commission could decide on the admissibility at its forthcoming
session.
19. On 13 October 2005, the Secretariat reminded to the Respondent State to submit
its argument on admissibility, for consideration during the 38th Ordinary Session
to be held from 21 November to 05 December 2005 in Banjul, The Gambia.
20. On 31 October 2005, the Respondent State informed the Secretariat that the
transmission of its submissions would be slightly delayed.
21. During the 38th Ordinary Session, the Respondent State finally submitted its
arguments on admissibility.
EX.CL/529(XV)
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22. On 14 December 2005, the Secretariat wrote to both parties informing them that
at its 38th Ordinary Session held from 21 November to 05 December 2005, in
Banjul, The Gambia, the African Commission considered the Communication and
declared it admissible.
23. The Secretariat also informed both parties that the African Commission would
consider the Communication on the merits at its forthcoming session, and
requested them to forward their arguments on the same.
24. On 04 April 2006, the Secretariat sent a reminder to both parties to submit their
arguments on the merits.
25. On 26 July 2006, the Secretariat wrote to both parties informing them that, at its
39th Ordinary Session held from 11 – 25 May 2006, in Banjul, The Gambia, the
African Commission considered the Communication and decided to defer its
decision on the merits at its 40th Ordinary Session to be held from 15 – 29
November 2006 in Banjul – The Gambia.
26. On 3 November 2006, the Secretariat wrote a reminder to the Respondent State
to request its submissions on the merits of the case, as soon as possible.
27. On 26 November 2006, the Secretariat received the Complainant’s submissions
on the merits and the Secretariat was informed that the Respondent State has
been duly served a copy of the submission.
28. On 08 December 2006, the Secretariat informed both parties that at its 40th
Ordinary Session held from 15-29 November 2006 in Banjul-The Gambia, the
African Commission considered the Communication and decided to defer its
decision on the merits to its 41st Ordinary Session scheduled from 16-30 May
2007 in Ghana, in order to allow the Respondent State to submit its arguments on
the merits.
29. The Secretariat of the African Commission wrote a reminder to the Respondent
State to submit its arguments on the merits before 10 of May so that the
Commission could take a decision at its 41st Ordinary session.
30. At its 41st Ordinary session held in Accra-Ghana from 16 to 30 May 2007, the
African Commission considered the Communication and decided to defer its
decision on the merits to its 42nd Ordinary Session, in order to receive the
Respondent State’s arguments.
31. The Secretariat wrote reminders on 25 June 2007, and, on 25 September 2007 to
the Respondent State to submit the requested arguments on merits latest by 15
October 2007 for consideration during the 42nd Ordinary Session held from 14 to
28 November 2007
EX.CL/529(XV)
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32. On 19 December 2007, the Secretariat wrote to inform both parties that at its 42nd
Ordinary Session held from 15 to 28 November 2007 in Brazzaville, Congo, the
African Commission considered the Communication and decided to defer its
decision on the merits to its 43rd Ordinary Session, in order to receive the
Respondent State’s arguments.
33. On 19 March 2008, the Secretariat informed both parties about the decision and
reminded the Respondent State to submit its arguments on the merits in order to
allow the Commission to take a decision on the matter.
34. At its 43rd Ordinary Session, the Commission considered the Communication
and decided to defer its decision on the merits to its 44th Ordinary Session.
35. At its 44th Ordinary Session held from 10 – 24 November 2008, in Abuja, Nigeria,
the African Commission deferred consideration of the Communication due to lack
of time.
Decision on admissibility
The Complainant’s arguments
36.The Complainant had argued the complaint had complied with Article 56 (3),
because the information was based on court records and affidavits.
37. Regarding Article 56 (5), the Complainants submit that the victim was not given
the opportunity to exhaust the local remedies that were available to him, and that
the High Court had ordered on many instances that he be allowed to stay in the
country until a decision was made on the constitutional issues, which he had
been raised in an application pending before the Supreme Court. Complainants
submit that in terms of Section 24 of the Zimbabwe Constitution, any issues that
pertain to the Zimbabwean Bill of Rights are referred to the Supreme Court, as
the court of first instance on alleged case of human rights infringements. They
argue that the deportation of the victim by the Immigration Department was in
contempt of court orders, which had stayed his deportation.
38. That the victim could not have pursued any other remedies other than approach
the courts for a vindication of his rights. They argue that the fact that he was
given an opportunity on one occasion to appeal to the Minister of Home Affairs,
who is responsible for immigration, does not at all prove the availability and
effectiveness of local remedies, since the decision of the Minister ‘is and was
more of a review by a quasi judicial individual government official or functionary,
who is not obliged to make considerations in accordance with legal rules which in
all fairness takes away the very principles of natural justice and due process of
the law (sic)which are covered under Article 7 of the Charter’.
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39. The Complainants further argue that the Commission has ruled that only
remedies of a judicial nature are considered to be effective remedies for acts of
human rights violations. This, they rely on the Commission’s decision in the
Constitutional Rights Project vs. Nigeria where the commission ruled that:
“the Civil Disturbances Act empowers the Armed Forces Ruling Council to
confirm the penalties of the Tribunal. This power is a discretionary,
extraordinary remedy of a non-judicial nature. The object of the remedy is
to obtain a favour and not to vindicate a right. It would be improper to insist
on the complaint seeking remedies from a source, which does not operate
impartially and have no obligation to decide according to legal principles.
The remedy is neither adequate nor effective”
40. The Complainants added that in the Constitutional Rights Projects Case
(supra) the Commission stated further that the types of remedies that existed
were of a nature that did not require exhaustion according to Article 56(5).
41. It is also alleged that the victim was ordered to make representations to the
Minister of Home Affairs on why he should not be deported after being served
with his deportation order. The exhaustion of local remedies in this case would
fall away as the Minister of Home Affairs being the person responsible for the
Immigration Department, the state arm which was responsible for infringing on his
rights, could not in any way proffer an effective remedy, the Complainants assert.
42. The Complainants submit that when the victim sought judicial protection of his
rights, the Immigration Department deported him regardless of the court orders,
which stayed his deportation, adding that the practice by the Respondent State to
disobey courts orders has made it a senseless for an aggrieved party to seek or
obtain any form of remedy.
43. The Complainants therefore argue that, ‘one can safely conclude that the failure
by the government of Zimbabwe to respect court orders thereby denying local
remedies to victims of human rights violations amounts to constructive exhaustion
of local remedies’.27
44. The Complainants urged the Commission to draw inspiration from the InterAmerican Court decision on the same principle, which states as follows; “…when
remedies are denied for trivial reasons or without examination on merits, or if
there is proof of the existence of a practice or policy tolerated by the government,
the effect of which is to impede persons from invoking internal remedies that
would normally be available to others, resort to such remedies becomes a
senseless formality.”
Respondent State’s arguments
27
As was established in the cases of Godinez Cruz vs. Honduras (Inter-America Court on Human
Rights Series C No. 5 at 69, Jon D Ouko vs. Kenya (ACHPR Decision 232/1999) and Rencontre
Africaine pour la Defense des Droits de l’Homme vs. Zambia (ACHPR Decision 71/92.
EX.CL/529(XV)
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45. The Respondent State relies on two grounds:
1.
Disparaging language (Article 56(3))
46. The Respondent State submits that the language used in the Communication is
disparaging to the Republic of Zimbabwe, in particular, the Department of
Immigration in Zimbabwe and, as such, the Communication should be considered
inadmissible. The Respondent State claims that the language used to describe
the deportation and events preceding the deportation of the Complainant expose
the State and the Department of Immigration of Zimbabwe to unnecessary
ridicule. It argues that international attention garnered by the Land Reform
Programme, is exacerbated by such disparaging statements are, among other
things, that there is no rule of law in Zimbabwe, court orders are not enforced and
crimes against humanity are committed by high ranking State Officials.
2.
Exhaustion of local remedies (Article 56(5))
47.Concerning Article 56(5), the Respondent State submits that the Complainants
have not attempted to exhaust local remedies and, as such, the Communication
should be considered inadmissible. According to the Respondent State, the
victim, while still resident in the Republic of Zimbabwe, approached the local
courts on a number of occasions seeking redress. The State argues that the
victim does not, however, need to be physically in Zimbabwe in order to avail
himself of available domestic remedies. That he can instruct his lawyers from
wherever he is and the relevant action can be done through his lawyers. The
State argues further that his lawyers could, for instance, make issue of the
alleged contempt of court by Immigration Officials, and also push for the
revocation of the deportation order and subsequent reinstatement of the victim’s
residence permit.
48. Consequently, the Respondent State argues that the Communication does not
meet the requirements of Article 56(3) and 56(5) and should be declared
inadmissible.
49. During its oral submission, the Respondent State submitted that following
discussions with the Complainants, it decided to abandon its argument of
disparaging language, but maintains the issue of non exhaustion of local
remedies.
Decision
50. When the parties made oral submissions before the Commission, the
Respondent State submitted that, it had decided to abandon the argument on
disparaging language but maintained the grounds on issue of non exhaustion of
local remedies. The Commission takes note of that submission, and would not
EX.CL/529(XV)
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make a ruling on article 56 (3) since the parties are not at issue on the question of
disparaging language.
51. Both parties made submissions on Article 56(5) regarding the question of nonexhaustion of local remedies. The Commission has stated in previous decisions,
(see paragraph 39 above) that the principle of exhaustion of domestic remedies,
presupposes existence of effective judicial remedies. Administrative or quasi
judicial remedies which do not operate impartially are considered as inadequate
and ineffective. The Respondent State argues that the victim did not exhaust
domestic remedies. It argues that, the mere fact that the victim was outside the
country could not stop the victim instructing lawyers to approach the courts on his
behalf. i.e.; the victim did not require or need to be inside the country to access
the domestic remedy. The Respondent state submitted further that the victim
could have initiated contempt proceedings.
52. The Complainants submitted at length on the non applicability of Article 56(5) and
argued in favour of invoking the principle of constructive exhaustion of local
remedies. In summary, they submit that the disregard by the Respondent State of
various court orders prior to, and coupled with, the deportation of the victim,
denied him the opportunity to exhaust local remedies. Secondly they submit that
there were no domestic remedies to exhaust, since the judicial remedies had
proved ineffective. The appeal to the Minister was a non judicial remedy, for
purposes of addressing human rights violation. Such a remedy does not fall
within the scope of Article 56(5), it failed to comply with rules of natural justice. In
any case it was the Minister who had ordered the deportation, thus he could not
be expected to proffer any remedy to the victim.
53. The Commission agrees with the Complainants’ arguments. The Commission is of
the firm view that immigration officials of the Respondent State had no basis in
law to disregard court orders. The complainants referred the Commission to the
Cordinez Cruz decision, on constructive exhaustion of local remedies. The
Commission has looked at the decision in terms of Article 60 of the Charter and
finds it very persuasive. The Commission has previously applied this principle too,
where the Complainant or victim is impeded from exhaustion of domestic
remedies through the conduct of the Respondent State.
54. The deportation of the victim in the case under consideration had been effected in
the face of several High Court orders, the Commission finds that to require the
victim to pursue further judicial remedies, when all efforts at seeking judicial
remedies had been frustrated and ignored by the Respondent State, would have
amounted to a “senseless formality” in the true meaning of the words. The
remedy which would have granted protection to Mr Meldrum, namely the
application pending in the Supreme Court, was considered by the Respondents
State’s immigration officials, as “trivial” and of no legal consequence. The
Respondent State had notice of the pending application in the Supreme Court,
EX.CL/529(XV)
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and yet effected the deportation. It actively participated in impeding the victim
from accessing the remedy.
55. The Commission therefore holds that the conduct of the Respondent State brings
this Communication within the scope of constructive exhaustion of remedies
principle. By accepting the applicability of the principle of constructive exhaustion
of domestic remedies in this case, the Commission distinguishes this case from
its decision in Communication 219/98 Legal Defence Centre/Gambia28 in
which it declared the communication inadmissible for failure by a deportee to
exhaust local remedies, since the circumstances were not similar.
56. The decision in the Legal Defence Centre is distinguishable because in that case,
no effort was made to exhaust domestic remedies. In the case under
consideration, the Respondent State was actively engaged in frustrating the
restraint orders obtained from the domestic court. The Commission is aware that
its decisions on admissibility must be based on the criteria under Article 56, it
must however reiterate that States Parties are obliged to respect their obligation
to guarantee the independence of the judiciary under Article 26 of the Charter. It
is the view of the Commission that Article 56(5) must be read in the context of the
Article 26 of the Charter. A State which ignores its duty to guarantee an
independent judiciary fails to provide effective remedies to human rights
violations, and thereby undermines the protection of human rights under the
Charter.
57. On these grounds, the African Commission declares the Communication
admissible.
Decision on the merits
Complainant’s submissions
58. The Complainants allege the violations of Articles 2, 3 (1) and (2), 7 (a), 9, 12 (4)
and 26 of the African Charter.
59. Concerning alleged violations of Articles 2 and 3 of the Charter, the Complainants
submitted that the deportation of Mr. Meldrum was based on vague and
28
Communication No 219/98, The Legal Defence Centre/The Gambia,, the victim, one Mr Sule Musa was
th
deported by the Gambian authorities to Nigeria. The Commission sought clarification during its 25
Ordinary Session, whether the Complainant could have recourse to domestic remedies, to which no
response was received. The Commission declared the Communication inadmissible, observing that;
“…the victim does not have to be physically present in a country to avail himself of available domestic
remedies, such could be done by his counsel………..Rather than approach the Commission first, the
complainant ought to have exhausted available local remedies in the Gambia….”.(emphasis added) It
must be stated here that the distinguishing factor relied by the Commission in he Zimbabwe case is the
role played by the State in impeding access to the local remedies available.
EX.CL/529(XV)
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unsubstantiated reasons of a danger to public order, national security and breach
of his work permit.
60. The Complainants state that the allegations against Mr. Meldrum were never
proven in the domestic courts, but the Respondent State proceeded to deport him
despite numerous High Court orders that he should not be deported, until the
constitutional application for stay of deportation had been heard.
61. The Complainants allege that the act of deportation constituted an unfettered
exercise of discretion by the Chief immigration Officer, which was tantamount to
indiscriminate action by state authorities and violated the right equality before the
law, therefore it is a violation of Article 2 of the Charter.
62. The Complainants conclude that the deportation of Mr. Meldrum was not in anyway
motivated by the desire to promote peace and security, neither was it to accomplish
a given pressing social need, it was to physically censor him from disseminating
information within Zimbabwe.
63. The Complainants recall the jurisprudence of the Commission dealing with cases
of expulsion of non-nationals from State Parties to the Charter, in which concluded
that deporting non-nationals without providing them the opportunity to challenge
their deportation before the courts, constitute discrimination and inequality before
the law. Article 2 of the Charter obligates State parties to ensure that persons living
in their territory, be they nationals or non nationals, enjoy the rights guaranteed in
the Charter29.
64. The Complainants argued that Mr. Andrew Meldrum was arrested and charged
under the Access to information and Protection of Privacy Act (AIPPA), but the
charges against him were subsequently dismissed in court, and the State never
appealed. Further, the sections of the Act which were deemed to have breached
were subsequently struck off and declared unconstitutional.
65. The Complainants submit that, in essence, the deportation of Mr. Andrew Meldrum
is unfounded at law.
66. Concerning Article 7 (1) (a) and (b), the Complainants note that the failure to by the
Respondent State to obey court judgments or orders constitute a violation of the
Charter and breach the duty and right to have independent and competent tribunals
and courts mandated with the protection of rights as provided in the Charter.
67. The Complainants submit further that the deportation order was a violation of the
presumption of innocence which is a doctrine well founded under the principles of
29
Union Interafricaine des Droits de l’Homme and Others vs. Angola (2000) AHRLR 18 (ACHPR
1997) at paragraph 18.
EX.CL/529(XV)
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natural justice as it gives an accused person the opportunity to have his cause
heard by an organ competent to determine such guilt or innocence.
68.They argue that, when an individual, who has a vested interest in the matter, acts
contrary to principles of natural justice, and becomes the first and last institution of
appeal, then decision of such an individual would be a violation of the Charter, in
particular Article 7 (1) (a) and (b).
69. The Complainants emphasize that the Access to Information and Protection of
Privacy Act allows journalists to practice for six months whilst their accreditation
applications were pending, and Mr. Meldrum was still within the transitional
reprieve period and was, in terms of the Act, allowed to work as a journalist while
his application was pending.
70. The Complainants note further that the free practice of the profession of journalism
and freedom of expression ought to be interpreted to include freedom to impart and
receive information, and this was abrogated by the Respondent State.
71. It is alleged by the Complainants that Mr. Meldrum had been charged for
publication of falsehoods, charges he was acquitted of in the Magistrates Court,
against which the State never appealed. They state further that the same provision
of AIPPA under which Mr Meldrum charged, was declared unconstitutional by the
Supreme Court.30 The Complainants submit that the only way for the Respondent
State to deter Mr. Meldrum from the free practice of his profession was to
physically censor him through an arbitrary act of deportation.
72. The Complainants consider that the response of the State to perceived, real or
illicit threats to national security, public order was disproportionate to the threat, if
any, posed by the writings of Mr. Meldrum.
73. Referring to Article 12 (4), the Complainants affirm that non-nationals admitted in
any State Party to the Charter should enjoy the same rights entitled to nationals.
Thus, according to the Complainants, the expulsion of Mr. Meldrum did not satisfy
the provisions of the Charter as it was arbitrary in so far as it was improper,
disproportionate and contrary to the law and the principles of natural justice.
74.Recalling the restriction on fundamental rights guaranteed by the Charter, the
Complainants affirm that the limitations are founded where the drafters of the
Charter include clawback provisions such as “in accordance with the law”, “abides
by the law”, “within the law” and more clearly stated under Article 27 (2).
75.Relying on the principles of necessity and proportionality and referring to
international jurisprudence, the Complainants submit that the act of restriction of a
30
See paragraph 3 (supra)
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right must not be arbitrary, unfair or based on irrational considerations, but must be
rationally connected to the objective, and should not impair the right or freedom in
question more than is necessary to accomplish a given objective or a pressing
social need.
76. Further, the Complainants argue that several international human rights
instruments to which Zimbabwe is a party recognize the importance of nondiscrimination in the pursuit and enjoyment of human rights by nationals and nonnationals. The Complainants also submit that the deportation of Mr. Meldrum was
in violation of Article 26, read together with Article 7 of the Charter. According to the
Complainants, Article 7 as has been ruled by the Commission gives meaning to the
individual right, whilst Article 26 emphasizes on the importance of institutions which
give effect to the right in Article 7.
77.The Complainants argue that Mr. Meldrum was deported while his case was yet to
be heard by the Supreme Court sitting as a constitutional court, thus rendering the
right to appeal in this instance illusory. The Complainants submit that the
Respondent State, through various organs had defied court orders and allowed
such actions to become “acceptable standard of deviation” from enforcing rights
guaranteed in the Charter.
78. The Complainants submit that Article 26 of the Charter was violated by pointing to
the wanton disregard of court orders by the Respondent State and non-state
entitles as clear evidence of the non-existence of the rule of law, principles of
natural justice, and presumption of innocence. For the Complainants, these latest
principles are elementary indicators of the existence of a proper functioning
judiciary, an executive which operates within the law, and a legislature which
appreciates the essence of separation of powers.
79.The Complainants argued that the actions of the Respondent State were a violation
of Article 9 (1) and (2) of the Charter, which provides for freedom of expression,
and the right to receive and impart information. They claim that the deportation of
Mr. Meldrum deprived him of his rights, as well as denying the general citizenry
their rights to receive information.
80.The Complainants recall that the restrictions on freedom of expression under
international law have been examined under various tests of necessity,
proportionality and achievement of a legitimate objective, and request the
Commission to apply the same tests to the present Communication.
Respondent State’s submission
81. The Respondent State did not formally submit its arguments on the merits in spite
of several reminders. However, it should be noted that in its submission on
admissibility dated 16 November 2005, the Respondent State also made
arguments relating to the merits of the Communication. The African Commission
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here below summarizes those arguments and consider them as the State’s
submissions on the merits of the present Communication.
82. In relation to the alleged violation of Article 2, the Respondent State denies that the
victim’s right to equality before the law was violated. The State submits that the
Complainant faced deportation because of alleged violations of the terms of his
Residence Permit which entitled him to stay in Zimbabwe. According to the State,
it is wrong to suggest that Mr Meldrum’s right to equality before the law was
violated because of his opinion and/or origin.
83. Concerning Article 3, the Respondent State submits that the victim was afforded
protection of the law, adding that it is on record that the victim approached local
courts in Zimbabwe at least four times prior to his deportation and that the matters
were given due consideration.
84. With regards to the alleged violation of Article 7, the Respondent State submits
that the victim was not denied his right to appeal. The State argues that he made
an application to the High Court which, in turn, was referred to the Supreme Court,
noting that the issues were still pending before the Supreme Court at the time the
victim left for the United Kingdom. The Respondent State argues that the
complainant was at liberty to approach the courts, whenever he deemed it
necessary to do so.
85. Concerning Article 9, the Respondent State submits that while the right to freedom
of expression is enshrined in the Constitution of Zimbabwe and contained in Article
9 of the African Charter, it would be inappropriate for the victim to seek to enforce
that right by way of publishing falsehoods. Moreover, the State avers, publications
of falsehoods are in direct contravention of the Access to Information and
Protection of Privacy Act (AIPPA).
86. On the alleged violation of Article 12(4), the Respondent State submits that
Immigration Officials responsible for Mr. Meldrum’s deportation were guided by
Section 14(1)(g) of the Immigration Act. Under this law, the State argues, Mr.
Meldrum was declared a prohibited immigrant and the Chief Immigration Officer
revoked his Residence Permit in terms of Section 20(2) of Statutory Instrument 195
of 1998. The decision to deport Mr. Meldrum, according to the Respondent State,
cannot therefore be considered as outside of the provisions of the law as it was
made by the Chief Immigration Officer who was acting within the purview of the law
governing the deportation of non-nationals, namely the Immigration Act.
87. Concerning Article 26, the Respondent offers no argument in response to
allegations made by the Complainant.
Decision of the Commission on the merits
Alleged violation of Articles 2 and 3
EX.CL/529(XV)
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88. The Commission has considered the submissions of both parties regarding the
alleged violations of the African Charter.
89. With respect to the alleged violation of Article 2 of the African Charter, the
Complainants argue that the deportation of Mr. Meldrum was based on vague and
unsubstantiated reasons of a danger to public order, national security and breach of
his work permit, adding that the deportation process gives unfettered discretion to
the Chief Immigration Officer, and this is tantamount to indiscriminate practices by
state authorities and erodes the right to equality before the law, therefore it is a
violation of Article 2 of the Charter. The Complainants also argue that Article 2
guarantees against discrimination based on national origin.
90. Article 2 of the African Charter provides that:
Every individual shall be entitled to the enjoyment of the rights
and freedoms recognised and guaranteed in the present
Charter without distinction of any kind such as race, ethnic
group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or any status.
Article 3(2) provides that “[e]very individual shall be entitled to equal
protection of the law”.
91. Discrimination can be defined as any act which aims at distinction, exclusion,
restriction or preference which is based on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status, and which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on equal footing, of all rights and
freedoms.31 Article 2 of the African Charter stipulates the principle of non
discrimination, which is essential to the spirit of the African Charter.32
92.The Respondent State argued that Mr. Meldrum was deported because he violated
the terms of his residence permit and therefore submit that Article 2 was not
violated. The facts as presented by the Complainants indicate that the victim, Mr.
Meldrum, was legally resident in the Respondent State, his residential permit had
not expired, and he had not been refused accreditation by the MIC. His application
contesting the denial of accreditation under AIPPA was still pending before the
Supreme Court. The High Court had ordered that he remain in the country until his
application in the Supreme Court is disposed of. It had issued a restraining order
31
See The Human Rights Committee General Comment No. 18.
32
See Communication 241/2001 - Purohit and Moore / The Gambia, para 49.
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against his deportation. In short, he was in all-fours legally resident in the
Respondent State.
93. The Respondent State did not give any details concerning the terms of the
residence permit which Mr Meldrum violated. The Commission is not satisfied by the
reasons or explanations given by the Respondent State. It is not very clear why he
was deported. Given the circumstances, it can only be concluded that he was
deported because he was a non-national who had published what the Respondent
State considered to be falsehoods, which are not protected by the Constitution. In its
decision in the case between Institute for Human Rights and Development in
Africa v Republic of Angola33, the African Commission held that ‘although
governments have the right to regulate entry, exit and stay of foreign nationals in
their territories, and … although the African Charter does not bar deportations per
se, the African Commission reaffirms its position that a State’s right to expel
individuals is not absolute and it is subject to certain restraints, one of those
restraints being a bar against discrimination based on national origin’.
94. It would be interesting to know what the government would have done if Mr.
Meldrum was a Zimbabwean. Surely, the Respondent State would not have
deported its own national to another country. The only logical reason the State
deported him under then prevailing circumstances was because he was a nonnational. In the opinion of the Commission therefore, it appears that the victim was
targeted because he is not a national of the Respondent State, and this according to
the Commission constitutes a violation of Article 2 of the Charter.
95. With respect to Article 3 of the Charter, Complainants submit that the deportation of
Mr Meldrum in defiance of the court orders amounted to a violation of Article 3 of the
African Charter. Article 3 guarantees fair and just treatment of individuals within the
legal system of a given country, whereby every individual is equal before the law
and guaranteed equal protection of the law. Given the treatment Mr Meldrum was
exposed to, would it be argued as the Respondent State does, that he was able to
access the courts and therefore was given equal protection of the law?
96. The most fundamental meaning of equality before the law under Article 3(1) of the
Charter is the right by all to equal treatment under the similar conditions. The right to
equality before the law means that individuals legally within the jurisdiction of a State
should expect to be treated fairly and justly within the legal system and be assured
of equal treatment before the law and equal enjoyment of the rights available to all
other citizens. Its meaning is the right to have the same procedures and principles
applied under the same conditions. The principle that all persons are equal before
the law means that existing laws must be applied in the same manner to those
subject to them. The right to equality before the law does not refer to the content of
33
Communication 292/2004.
EX.CL/529(XV)
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legislation, but rather exclusively to its enforcement. It means that judges and
administration officials may not act arbitrarily in enforcing laws.
97. Factual patterns that are objectively equal must be treated equally. Thus, it is
expected that if the law requires that all those who publish offensive articles against
the government be brought before a judge for questioning, and if found guilty,
sentenced or pay a fine, this law should apply to all those subjected to it, including
nationals and non nationals alike.
98. In the present Communication, that does not seem to be the case, because the
victim is a non-national, the Respondent State chose not to treat him as it would
have treated nationals. It is very unlikely and impractical that if a Zimbabwean had
published the same article the victim published, he/she would have been treated the
same way. In the opinion of the Commission therefore, the Respondent State
violated Article 3(1) of the Charter.
99. Equal protection of the law under Article 3(2) on the other hand, means that no
person or class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or class of persons in like circumstances in their lives,
liberty, property and in their pursuit of happiness.34 It simply means that similarly
situated persons must receive similar treatment under the law.35
100. In its decision in Zimbabwe Lawyers for human Rights and the Institute for
Human Rights and Development /Republic of Zimbabwe36, this Commission
relied on the Supreme Court decision in Brown v. Board of Education of
Topeka,37 in which Chief Justice Earl Warren of the United State of America argued
that ‘equal protection of the law refers to the right of all persons to have the same
access to the law and courts and to be treated equally by the law and courts, both in
procedures and in the substance of the law. It is akin to the right to due process of
law, but in particular applies to equal treatment as an element of fundamental
fairness.38
101. In order for a party therefore to establish a successful claim under Article 3 (2) of the
Charter, it should show that, the Respondent State had not given the Complainant
34
See People v Jacobs, 27 California Appeal, 3d 246, 103 California Rep 536, 543, 14th
Amendment, US Constitution.
35
See Dorsey v Solomon, DCMd.,435 F. Supp. 725.
36
Communication 293/2004.
37
347 U.S 483 (1954).
38
www.legal-explanations.com.
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the same treatment it accorded to the others. Or that, the Respondent State had
accorded favourable treatment to others in the same position as the Complainant.
102. In the present Communication, the Commission notes that the Respondent State
treated the victim in a manner which denied him the opportunity to seek protection of
the Courts. Due process which was key to ensuring remedy to the deportation, and
therefore the protection of the rights of the victim were denied through the arbitrary
actions of the Respondent State. The African Commission therefore finds that the
Respondent State violated Article 3 (2) of the African Charter.
Alleged violation of Article 7 (1) (a) and (b)
103. The Complainants argue that the deportation of Mr. Meldrum violated Article 7 (1)
(a) and (b). Article 7 (1) of the Charter provides that ‘Every individual shall have the
right to have his cause heard. This comprises
a) The right to an appeal to competent national organs against acts violating his
fundamental rights as recognised and guaranteed by conventions, laws,
regulations and customs in force;
b) The right to be presumed innocent until proved guilty by a competent court or
tribunal.
104. Article 7 (1) deals with the right to have one’s cause heard, which comprises, inter
alia (a) the right to appeal to competent national organs against acts violating their
rights, and (b) the right to be presumed innocent until proven guilty by a competent
court or tribunal.
105. In the present Communication, the victim went to the Courts of the Respondent
State. The Courts ruled in his favour against the deportation order. The victim
petition the Supreme Court for enforcement of his right to practice his profession
after his accreditation was rejected, but before the latter could hear the application,
the Respondent State deported him. Could it be said that the victim right to have
his cause heard was violated by the Respondent State?
106. The right to have one’s cause heard requires that the victims have unfettered
access to competent jurisdiction to hear their case. A tribunal which is competent in
law to hear a case must have been given that power by law: it has jurisdiction over
the subject matter and the person, and the trial is being conducted within any
applicable time limit prescribed by law. Where the competent authorities put
obstacles on the way which prevents victims from accessing the competent
tribunals, they would be held liable. These are the issues which must be borne out
by the evidence to warrant the Commission’s findings of a violation.
107. In the present Communication, it is clear that the Respondent State did not want
the victim to be heard in the Supreme Court. To ensure that this happened, the
Respondent State deported him out of the country before the date scheduled for
the hearing, thus effectively preventing him from being heard. Admittedly, the victim
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could still have proceeded against the Respondent State from wherever he was
deported to, but by suddenly deporting him the Respondent State frustrated the
judicial process that had been initiated.
108. To this extent, the Respondent State is found to have violated Article 7 (1) (a) of
the African Charter.
109. Regarding the allegations concerning the violation of Article 7(1) (b), the
Commission finds that the deportation was effected in disregard of several the High
Court orders. The Immigration officers refused, or failed to produce Mr Meldrum as
was ordered by the Court. By doing so they denied him the right to be heard by a
competent and impartial tribunal. Instead they acted under the Immigration Act
without affording him an opportunity to defend himself. The actions of the
Respondent State amounted to a conclusion that Mr Meldrum was guilty of the
allegations against him, contrary to the presumption of innocence. The Commission
finds that the conduct of the Respondent State amounted to a violation of Article 7
(1)(b) as alleged by the Complainants.
Alleged violation of Article 9
110. With respect to allegations of violation of Article 9 of the African Charter,
guaranteeing freedoms of expression, the Complainants submit that the
deportation of Mr. Meldrum deprived him of his rights to receive information, and
disseminate his opinions, as well as the right of the general citizenry to receive
information.
111. Article 9 (1) of the African Charter provides that every individual shall have the right
to receive information. Article 9 (2) state that “every individual shall have the right to
express and disseminate his opinions within the law”. Does the deportation of the
victim violate his right to freedom of expression?
112. It should be recalled that the victim’s deportation arose from the publication of an
article that the Respondent State did not appreciate. The Respondent State
resorted to deportation in order to silence him, in spite a court order that he can
stays in the country. Admittedly, he is not prevented from expressing himself where
ever he was deported to, but vis-à-vis his status in the Respondent State, which is
a State Party to the African Charter, his ability to express himself as guaranteed
under Article 9 was violated.
Alleged violation of Article 12 (4)
113. In the same vein, the deportation of the victim by the Respondent State amounts to
a violation of Article 12 (4) of the African Charter, which provides that “a nonnational legally admitted in a territory of a State Party to the present Charter, may
only be expelled from it by virtue of a decision taken in accordance with the law’.
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114. The African Commission notes that the import of this provision under the African
Charter is to ensure that due process is followed before legally admitted nonnationals are expelled from a Member State. In the Union Inter Africaine des Droits
de l’Homme, Federation Internationale des Ligues des Droits de l’Homme and
Others v. Angola case39, the African Commission stated that although African
States may expel non-nationals from their territories, the measures that they take in
such circumstances should not be taken at the detriment of the enjoyment of
human rights, and that while the Charter does not bar a State’s right to deport nonnationals per se, it does require deportations to take place in a manner consistent
with the due process of law.40
115. The African Charter’s requirement of due process as outlined above is also shared
by similar systems elsewhere. The Human Rights Committee under the
International Covenant on Civil and Political Rights, for instance, had expressed a
similar concern over the treatment of aliens being deported from Switzerland when
it held the latter liable for degrading treatment and use of excessive force resulting
on some occasions in the death of the deportee during deportation of aliens.41 The
Committee recommended that Switzerland should “ensure that all cases of forcible
deportation are carried out in a manner which is compatible with articles 6 and 7 of
the Covenant” and that “restraint methods do not affect the life and physical
integrity of the persons concerned”.42
116. Very clearly, the situation as presented by the Respondent State did not afford the
victim due process of law for protection of his rights. The Respondent State ignored
the Court orders that he be allowed to stay in the country. The African Commission
thus holds the Respondent State in violation of the provisions of Article 12(4) of the
African Charter.
Alleged violation of Article 26
117. With respect to the alleged violation of Article 26, the Complainants argue that by
refusing to comply with court decisions, the Respondent State not only violated
Article 7, but also violated Article 26. Article 26 of the Charter provides that State
Parties shall have the duty ‘………..to guarantee the independence of the courts…’
The Complainants argue further that the deportation is in violation of Article 7 (a)
and (b) as read together with Article 26 of the Charter, noting that Article 7 gives
39
Communications 159/1996.
40
Id. Para 23.
41
The UN Human Rights Committee, ICCPR, A/57/40 vol. I (2002) at para. 76 (13).
42
Ibid.
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meaning to the individual right, whilst Article 26 emphasizes on the importance of
ensuring the independence and integrity of the institutions which give effect to the
right in Article 7.
118. It is impossible to ensure the rule of law, upon which human rights depend, without
guaranteeing that courts and tribunals resolve disputes both of a criminal and civil
character free of any form of pressure or interference. The alternative to the rule of
law is the rule of power, which is typically arbitrary, self-interested and subject to
influences which may have nothing to do with the applicable law or the factual
merits of the dispute. Without the rule of law and the assurance that comes from an
independent judiciary, it is obvious that equality before the law will not exist.43
119. It is a vital requirement in a state governed by law that court decisions be respected
by the state, as well as individuals. The courts need the trust of the people in order
to maintain their authority and legitimacy. The credibility of the courts must not be
weakened by the perception that courts can be influenced by any external
pressure.
120. Thus, by refusing to comply with the High Court orders, staying the deportation of
Mr. Meldrum and requiring the Respondent State to produce him before the Court,
the Respondent State undermined the independence of the Courts. This was a
violation of Article 26 of the African Charter.
121. In view of the above reasoning, the African Commission:
holds that the Respondent State, the Republic of Zimbabwe, has violated
Articles 1, 2, 3, 7(1) (a) and (b), 9, 12(4) and 26 of the African Charter.
The African Commission recommends that the Respondent State should:
a.
Take urgent steps to ensure court decisions are respected and implemented;
b.
Rescind the deportation orders against Mr Andrew Meldrum, so that he can
return to Zimbabwe, if he so wishes, being a person who had permanent
residence status prior to his deportation. The status quo ante to be restored;
c.
Ensure that the Supreme Court finalizes the determination of the application by
Mr Meldrum, on the denial of accreditation;
d.
In the alternative, taking into account that the AIPPA has undergone considerable
amendments, grant accreditation to Mr Andrew Meldrum, so that he can resume
his right to practice journalism; and
e.
Report to the African Commission within six months on the implementation of
these recommendations.
43
See the views expressed by K Ryan, in "Judges, Courts and Tribunals", paper presented at the
Australian Judicial Conference Symposium on Judicial Independence and the Rule of Law at the
Turn of the Century, Australian National University, Canberra, 2 November 1996.
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Adopted during the 6th Extra – Ordinary Session of the ACHPR, Banjul, The
Gambia. April, 2009.
Communication 297/2005: Scanlen & Holderness / Zimbabwe
Summary of the facts:
1. The Complainants are the Independent Journalists Association of Zimbabwe, the
Zimbabwe Lawyers for Human Rights and the Media Institute of Southern Africa.
The Respondent State is the Republic of Zimbabwe, a State Party to the African
Charter on Human and Peoples’ Rights (the African Charter).
2. The Complainants submit that on 18 March 2002, the Respondent State enacted
a legislation known as the Access to Information and Protection of Privacy Act
(AIPPA), Chapter 10:27. Section 79 subsection 1 of the Act provides that: “No
journalist shall exercise the rights provided in Section 781 in Zimbabwe without
being accredited by the Commission.” The Commission being referred to here is
the Media and Information Commission (MIC) established under AIPPA, the
Zimbabwe legislation, subject of this Communication.
3. According to the Complainants, the Media and Information Commission (MIC) is
managed by a Board appointed by the Minister of Information and Publicity, or
other Ministers the President assign the administration of the AIPPA.
Complainants allege that the Minister acts in consultation and in accordance with
directions from the President of the Republic of Zimbabwe.
4. It is also alleged that no journalist may practice journalism unless he/she is
accredited by the MIC and that Section 80 of the AIPPA provides that a journalist
1
Section 78 provides that “Subject to this Act and any other Law, a Journalist shall have the
following rights (hereinafter in this Act collectively referred to as “journalistic privilege”),
i. to enquire gather, receive and disseminate information;
ii. to visit public bodies with the express purpose of carrying out duties as a
journalist;
iii. to get access to documents and materials as prescribed in this Act;
iv. to make recordings with the use of audio-video equipment, photography and
cine-photography;
v. to refuse to prepare under his signature reports and materials inconsistent with
his convictions;
vi. to prohibit the publication of, remove his or her signature from or attach
conditions to the manner of using a report or material whose content was
distorted, in his or her opinion, in the process of editorial preparation.”
EX.CL/529(XV)
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found guilty of abusing his or her journalistic privilege is liable to a fine or
imprisonment for a period not exceeding two years.
5. It is further submitted by the Complainants that Sections 79 (1) and 80 (1) (b) of
the AIPPA contravene Article 9 of the African Charter on Human and Peoples’
Rights which provides that:
“[e]very individual shall have the right to receive information. Every individual shall
have the right to express and disseminate his opinions within the law.”
6. According to the Complainants, compulsory accreditation of journalist,
irrespective of the quality of the accrediting agency, interferes with freedom of
expression. They state that accreditation fees provided for under the Law are an
additional restriction on freedom of expression. They allege that compulsory
accreditation of journalists by a Commission which lacks independence interferes
with professional independence and the autonomy of the journalism profession.
The Complainants submit further that, the MIC is not democratically constituted.
Its constitution and control is not consistent with democratic values.
7. The Complainants submit further that self-regulation is a central feature of an
independent profession and that the AIPPA is inherently inimical to freedom of
expression and has no justification in a democratic society.
8. The Complainants claim further that they have a real and substantive interest in
the matter as they were established to protect human rights and the freedom of
expression.
9. They submit finally that they have exhausted local remedies and that they have
litigated the issues in the highest court in Zimbabwe, whereby the Supreme
Court of Zimbabwe declined to declare unconstitutional, the intentional
publication of falsehoods and compulsory accreditation of journalists.
Complaint
10. The Complainants allege that Section 79 (1) and Section 80 of the Access to
Information and Protection of Privacy Act of Zimbabwe contravene Article 9 of
the African Charter on Human and Peoples’ Rights.
Procedure
11. The Secretariat of the African Commission on Human and Peoples’ Rights
acknowledged receipt of the Communication on 10 February 2005 and informed
the Complainants that the Communication was registered as Communication
297/2005 – Scanlen & Holderness (on behalf of Independent Journalists
Association of Zimbabwe Lawyers for Human Rights and Media Institute of
Southern Africa)/Zimbabwe.
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12. The Secretariat also informed the Complainants that the Communication would
be considered for seizure at the 37th Ordinary Session of the Commission
scheduled to take place from 27 April to 11 May 2005, in Banjul, The Gambia.
13. On 2 June 2005, the Secretariat informed both parties that during its 37th
Ordinary Session the African Commission considered the Communication and
decided to be seized thereof. The Secretariat also informed them that the
Commission intended to consider the Communication on admissibility at its 38th
Ordinary Session to be held from 21 November to 5 December 2005. It
requested the parties to forward their arguments on admissibility within three (3)
months from the date of the notification.
14. On 18 August 2005, the Secretariat sent reminders to both parties requesting
them to submit their arguments on admissibility.
15. On 12 September 2005, the Secretariat received the Complainants’ arguments
on admissibility.
16. On 14 December 2005, the Secretariat wrote to both parties informing them that
during its 38th Ordinary Session held from 21 November to 05 December 2005, in
Banjul, The Gambia, the African Commission considered the Communication
and declared it admissible.
17. The Secretariat also informed both parties that the African Commission intended
to consider the Communication on the merits at its forthcoming session, and
invited the parties to forward their arguments on the same.
18. On 6 March 2006, the Secretariat received and acknowledged receipt of the
Complainants’ submissions on the merits.
19. On 4 April 2006, the Secretariat wrote a reminder to the Respondent State to
submit their arguments on the merits.
20. During the 39th Ordinary Session held from 11 – 25 May 2006, in Banjul, The
Gambia, the Respondent State submitted its arguments on the merits.
21. On 26 July 2006, the Secretariat wrote to both parties informing them that, at its
39th Ordinary Session held from 11 – 25 May 2006, in Banjul, The Gambia, the
African Commission considered the above Communication and decided to defer
its decision on the merits to its 40th Ordinary Session to be held from 15 – 29
November 2006 in Banjul – The Gambia.
22. On 8 December 2006, the Secretariat informed both parties that at its 40th
Ordinary Session, the African Commission considered the Communication and
decided to defer its decision on the merits to its 41st Ordinary Session scheduled
from 16-30 May 2007 in Ghana.
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23. On 25 June 2007, the Secretariat wrote to both parties informing them that at its
41st Ordinary session the Commission considered the Communication and
deferred its decision on the merits to its 42nd Ordinary Session, in order to
finalise the draft decision.
24. On 19 December 2007, the Secretariat wrote to both parties informing them that
at its 42nd Ordinary Session held from 15 to 28 November 2007 in Brazzaville,
Congo, the African Commission considered the Communication and deferred its
decisions on the merits to its 43rd Ordinary Session.
25. At its 43rd Ordinary Session held in Ezulwini, Kingdom of Swaziland from 7 – 22
May 2008, the African Commission deferred consideration of the Communication
to its 44th Ordinary Session.
26. By Note Verbale of 2 July 2008 and letter of the same date, the Secretariat
informed both parties of the Commission’s decision.
27. At its 44th Ordinary Session held in Abuja, Federal Republic of Nigeria from 10 –
24 November 2008, the African Commission deferred consideration of the
Communication.
28. By Note Verbale of 5 December 2008 and letter of the same date, the Secretariat
informed both parties of the Commission’s decision.
Law
Admissibility
The State’s Submission
29. The Respondent State submits that the Communication does not meet the
requirements of admissibility under the African Charter on Human and Peoples’
Rights because:
(i)
the Complainants fail to disclose a violation of Article 9 of the Charter
and;
(ii)
the Complainants have not exhausted local remedies as required under
Article 56 (5).
Non exhaustion of local remedies
30. The Respondent State claims that the Complainants have not approached the
Supreme Court of Zimbabwe to seek redress in terms of Section 24(1) of the
Constitution of Zimbabwe and, as such, the Communication should be
considered inadmissible.
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31. Section 24(1) affords every person the opportunity to obtain expeditious redress
if any of the rights under the Declaration of Rights in the Constitution of
Zimbabwe are infringed. The Supreme Court has a wide discretion to grant any
form of redress in order to enforce the Declaration of Rights.
32. The Respondent State made reference to a decision of the Supreme Court in the
Association of Independent Journalists case, whereby the Supreme Court struck
down Sections 80 (1) (a), (b) and (c) as unconstitutional and the sections were
subsequently repealed and substituted through Section 18 of Act 5 of 2003.
33. The Respondent State submits further that the Complainants have not
challenged the constitutionality of the substituted provision before the courts in
Zimbabwe, arguing that Complainants are therefore requesting the African
Commission to become a tribunal of first instance, a function which it cannot
fulfil, either as a legal or practical matter.
Complainants submissions on admissibility
34. In response to the State Party arguments, the Complainants submits that, the
Communication meets the requirements of Article 56(5) of the Charter as all
national remedies have been exhausted. The Complainants concede that in
terms of the hierarchy of the courts of Zimbabwe, the Supreme Court is the final
arbiter on constitutional and human rights matters. They argue that Section 24 of
the Constitution of Zimbabwe stipulates that an individual who feels that her or
his rights as enshrined in the Chapter on the Declaration of Rights in the
Constitution, have been or are likely to be infringed shall approach the Supreme
Court as a court of first instance. The Complainants state that the Supreme Court
was approached, and it ruled that accreditation and registration of Journalists
was constitutional and mandatory, for any individual who intends to pursue the
profession of journalism in Zimbabwe. Pursuant to that decision2, the
Complainants claim they had no other means of remedying the situation but to
approach the African Commission. They argue therefore that the requirement of
Article 56(5) of the Charter have been met.
35. The Complainants state further that, the Supreme Court decision which upheld
the requirement for compulsorily registration by the MIC is tantamount to an
intrusion in the actual right to freedom of expression. The Complainants submit
that the African Commission has held in Media Rights Agenda and Other vs.
Nigeria3, that onerous conditions of accreditation and total discretion by the
registration board, effectively giving government the power to prohibit publication
2
Judgment No S.C. 136\02; Const. Application N0. 252\02; Supreme Court of Zimbabwe,,
Chidyausiku CJ, Sandura JA, Cheda JA, Ziyambi JA & Malab JA; Harare November 21, 2002 &
February 5, 2004.
3
Communications 105/1993, 128/1994 and 130/1994.
EX.CL/529(XV)
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of newspapers or magazines are akin to censorship and seriously endanger the
right of the public to impart and receive information in contravention of Article 9
(1) of the Charter.
36. The Complainants argue further that the Supreme Court found that the
proscription of false news can never be said to be unconstitutional, noting that
the reasoning of the Supreme Court was that falsehood is the antithesis of the
truth of information.4 They claim that the Supreme Court found that there was no
constitutional protection for false news.
37. They claim it is on that basis that they have brought their Communication to the
African Commission, arguing that there is no domestic remedy available in
Zimbabwe to afford protection to a distributor of false news or fiction or false
cartoons.
Decision of the African Commission on admissibility
38. The African Commission, having considered the criteria on admissibility under
Article 56 of the Charter, is satisfied that the Communication indicates the
authors, that it falls within the ratione materiae and ratione temporis of the
Charter and the Constitutive Act, and is therefore compatible with the Charter. It
does not use disparaging language, it has provided information and facts on the
decision of the Supreme Court of Zimbabwe, including Affidavits on which the
Complaint is based. It was submitted within reasonable time, and is not a subject
of adjudication in any other tribunal and nor previously settled by another
international tribunal.
39. The only criterion which the African Commission has to look at is whether the
Communication satisfies Article 56(5). Having analysed the submissions by both
parties on the question of exhaustion of domestic remedies, the African
Commission is satisfied that in the light of the Supreme Court decision,
Constitutional Application No 252/02,5 spelling out the position of the law in
Zimbabwe concerning the provisions applicable to the accreditation and
registration of journalists, which is a binding authority in Zimbabwe, it would have
been futile for the Complainants to go to the Supreme Court in order to exhaust
domestic remedies.
40. Taking into account all the foregoing submissions, the Commission decides to
declare the Communication admissible.
4
5
In that decision, the Supreme Court stated that “The Constitution confers no right on an
individual to falsify or fabricate information or publish falsehoods. Section 20 of the Constitution
protects the right to impart and receive information, not falsehoods. Falsehoods are not
information.”
Please see Footnote 3 above.
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Consideration of the merits
Complainants’ submissions
41. The Complainants argue that the emphasis on the right to freedom of expression
in ensuring democracy is such that regulation, other than self-regulation, is
undesirable in a democratic society. They argue further that practical
considerations for media regulation arise from the need for resource
management, need to ensure equal access, competition laws and minority rights,
public service considerations, consumer protection and revenue considerations.
All the aforesaid factors are applicable to electronic media house regulation and
not applicable to regulation of journalists.
42. The Complainants submit further that there is no necessity for additional
measures to control journalists in Africa because in virtually all jurisdictions in
Africa, there are civil and criminal sanctions for injuria and defamation which
already regulate the conduct of journalist in the discharge of their work.
43. The Complainants submit further that the registration requirements and
procedures are unduly intrusive and burdensome, particularly inquiries into
individuals’ private details such as one’s marital status, passports numbers,
expiring dates of passports, place of issue of passports, driver’s license
numbers, demands for residential addresses, and details related to any criminal
record. Others include demand for details concerning specific assignments to be
covered by the journalists, all of which impose prior self-censorship as a
precondition to acquire accreditation. They argue that the accreditation form
have to be examined and approved by both the Permanent Secretary and the
Minister, thereby establishing control of journalists by central government.
44. According to the Complainants, the fact that one has to be accredited to a media
house and obtain the support of a media house to successfully apply for
accreditation amounts to restriction on the practice of journalism and the free
flow of information.
45. They submit that a foreign journalist is required to pay as much as US$1, 050 for
accreditation and registration to carry out a temporary assignment.
46. The Complainants submit further that even more restrictive and unreasonable is
the fact that there is no provision for a permanent accreditation of foreign
correspondents. That the US$12, 000,00 requirement per annum accreditation
and registration fees for a foreign news agency representative is unduly
burdensome, unaffordable for most people in Zimbabwe and an unreasonable
restriction on freedom of expression.
47. They claim that the temporary nature of the accreditation is itself particularly
ominous and different from the accreditation required to cover specific events.
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The Complainants argue that accreditation is not aimed at giving the journalist
access, but that it is apparent from the legislation that the accreditation is aimed
at controlling and even obstructing the work of a journalist.
48. The Complainants argue further that, compliance with formal but onerous and
intrusive pre-registration requirements stipulated in the statutory instrument does
not guarantee registration of a journalist because the MIC has discretion to
decide whether or not to register the journalist.
49. The Complainants urge the African Commission to draw inspiration from legal
precedent developed in other regional human rights systems. They specifically
draw the attention of the African Commission to Article 13 of the American
Convention on Human Rights, which provides, inter alia, that:
(1) “Everyone has the right to freedom of thought and expression.
This includes freedom to seek, receive and impart information
and ideas of all kinds regardless of frontier, either orally or in
writing, in print, in the form of art or through any other medium of
one’s choice.“
(2) Article 13 paragraph 3, provides that:
(3) “ the right of expression may not be restricted by indirect methods
or means such as the abuse of government or private controls
over newsprint, radio broadcasting frequencies or equipment
used in dissemination of information or by any other means
tending to impede the communication and circulation of ideas
and opinions.���
50. The Complainants also cite an Advisory Opinion of the Inter American Court of
Human Rights on compulsory registration which dealt with the question of
registration of journalists in Costa Rica. The Court stated in this Advisory Opinion
that;
“it is the mass media that make the exercise of freedom of expression
a reality. This means that the conditions of its use must conform to
the requirements of this freedom, with the result that there must be,
inter alia, a plurality of means of communication, the barring of all
monopolies thereof, in whatever form, and guarantees for the
protection of freedom and independence of journalists. The
compulsory licensing of journalists does not comply with the right to
freedom of expression because the establishment of a law that
protects the freedom and independence of anyone who practices
journalism is perfectly conceivable without the necessity of restricting
the practice only to a limited group of the community…”6
6
OC-5/85, November 13, 1985, Ser.A, N0.5.
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51. According to the Complainants, Article 13 of the American Convention on Human
Rights defines freedom of expression in a way similar to that of Article 9 in the
Charter; as “freedom to seek, receive, and impart information and ideas of all
kinds.”
52. The Complainants note that the right protected by Article 13 of the American
Convention (similar to the right protected under Article 9 of the Charter) has a
special scope and character, evidenced by the dual aspect of freedom of
expression. That, on the one hand, the prohibition of any restrictions or
impediments by governments or privately against the free expression,
dissemination of information, communication or circulation of thoughts and ideas,
and in that sense, it is a right that belongs to each individual. Its second aspect
implies a collective right to receive any information whatsoever and to have
access to the thoughts expressed by others.
53. The Complainants also submit that ‘if you control journalists you control
expression, controls are an obstacle to the means of expression and therefore
against freedom of expression itself’. According to them, the Respondent State’s
attempts to distinguish between freedom of the press and freedom of expression
are not sustainable. They add that, although freedom of expression
encompasses a wider range of activities than freedoms of the press, in that
sense the two are different. Freedom of the press is an element of freedom of
expression.
54. The Complainants argue further that, freedom of expression goes further than
the theoretical recognition of the right to speak or to write. They submit that it
also includes and cannot be separated from the right to use whatever medium is
deemed appropriate to impart ideas and to have them reach as wide an
audience as possible.
55. The Complainants argue that the both the Inter-American Convention on Human
Rights and the Universal Declaration of Human Rights proclaim that freedom of
thought and expression includes the right to impart information and ideas
through “any… medium”, and this means that the expression and dissemination
of ideas and information are indivisible concepts. They submit that, the
restrictions that are imposed on dissemination represent, in equal measure, a
direct limitation on the right to express oneself freely. They argue further that the
legal rules applicable to the press and to the status of those who dedicate
themselves professionally to it derive from this concept. They state that in its
social dimension, freedom of expression is a means of the interchange of ideas
and information among human beings and for mass communication and includes
the right of each person to seek to communicate his own views to others, as well
as the right to receive opinions and news from others.
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56. The Complainants refer the African Commission to the Zambian case of Francis
Kasoma v The Attorney General7, where compulsory registration of journalists
ordered by the Zambian government was declared unconstitutional by the
Zambian High Court in 1997. According to the Complainants, in that case,
journalists were obliged to become members of a Media Association of Zambia
and to register with a statutory Media Council. They submit that the High Court of
Zambia quashed the decision and among the reasons given by the High Court
Judge is that:
“I do not in my view consider the decision to constitute the Media Council of
Zambia to be in furtherance of the general objectives and purpose of the
Constitutional powers, among them, to promote democracy and related
democratic ideals such as freedom of expression, and press freedom in
particular. … The decision to create the Media Council of Zambia is no doubt
going to have an impact … on freedom of expression in that failure of one to
affiliate himself to the Media Council of Zambia, or in the event of breach of
any moral code determined by the council would entail losing his status as a
journalist, and with the denial of the opportunity to express and communicate
his ideas through the media”.
57. The High Court in Zambia went on to state that
‘in light of the above it cannot be seriously argued that the creation of the
Media Association or any other regulatory body by the Government would be
in furtherance of the ideal embodied in the Constitution, vis-à-vis freedom of
expression and association. Consequently, I find that the decision to create
the Media Association is not in furtherance of the objectives or purposes
embodied in the Constitution in particular those protected in Articles 20 and 21
[which guarantee freedom of expression and association]’.
58. The Complainants further submitted that the provision under section 84 of the
AIPPA, which makes it compulsory to renew accreditation after a maximum
period of twelve months, i.e. at the end of each calendar year, places journalists
in a position of permanent insecurity. This, according to them, will have an
extremely chilling effect on their ability to freely practice their trade and will
inevitably lead to various degrees of self-censorship.
59. The Complainants argue that in those very rare instances where expression
really does pose a risk to society, as in the example from Rwanda cited by the
Respondent, this should be addressed through the criminal law, not by
generalized restrictions on all journalists.
60. The Complainants submit that the real purpose of the licensing system
established by AIPPA is to provide the Government with a measure of control
over journalism and to prevent, or at least limit critical reporting. As a result, they
7
(Zambia High Court civ. Case N0. 95/HP/2959
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claim, the licensing system for journalists imposed by the contested provisions of
AIPPA does not serve a legitimate aim as required under international law.
61. In conclusion, the Complainants submit that modern jurisprudence accepts that it
is contrary to freedom of expression to criminalize falsehoods, and to support this
argument, they cite Chavunduka and Another v Minister of Home Affairs and
Another8, where the Supreme Court of Zimbabwe observed that:
“Plainly, embraced and underscoring the essential nature of freedom
of expression, are statements, opinions and beliefs regarded by the
majority as being wrong or false. As the revered HOLMES J so wisely
observed in United States v Schwimmer 279 US 644 (1929) at 654,
the fact that the particular content of a person’s speech might “excite
popular prejudice” is no reason to deny it protection for “if there is any
principle of the Constitution that more imperatively calls for
attachment than any other, it is the principle of free thought-not free
thought of that we hate.” Mere content, no matter how offensive,
cannot be determinative of whether a statement qualifies for the
constitutional protection afforded to freedom of expression.”
Respondent State’s arguments on the merits
62. The Respondent State on its part submits that the Complainants have failed to
establish a violation of Article 9 of the Charter, adding that it is misleading to
suggest that the MIC is susceptible to political manipulation and control.
According to the Respondent State, the operations of the MIC are controlled and
managed by a Board which consists of no fewer than five members and more
than seven members of whom at least three shall be nominated by an
association of journalists and an association of media houses. The Respondent
State submits that the Complainants’ suggestion that the registration process is
prejudicial to them is baseless as there are other independent journalists who
have been registered even though their work is critical of the government.
63. It is incorrect, the Respondent State argues, to suggest that Section 80 of the
AIPPA unreasonably restricts the right to freedom of expression and
dissemination of information. According to the Respondent State, Section 80
restricts not all falsehoods, but only those that are willfully published and that are
likely to injure the public interest. In the opinion of the Respondent State, such
restrictions are reasonably necessary and cannot be held to be excessively
invasive of the enjoyment of the guaranteed right.
64. On the allegation that the AIPPA seeks to regulate the media, the Respondent
State submits that the Constitutional Court has already held that accreditation of
journalists and the licensing of electronic media is constitutional as long as the
8
2000 Vol. 1 Z.L.R page 552 at 558
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requirements for such accreditation and licensing are not onerous.9 The
Respondent State also made reference to the Provisions of Article 19 of the
ICCPR and Article 9 of the African Charter to the effect that the right is subject to
regulation by law.
65. In response to the Complainants’ submission that journalists should not be
regulated by statute but should be self-regulating, the Respondent State submits
that this amounts to no regulation, and goes beyond what is permissible, adding
that regulation of the media including licensing of journalist is permissible.
66. The Respondent State argues further that in terms of Article 9 of the African
Charter together with Article 19(3) of the ICCPR, freedom of expression is not
absolute. Those restrictions are permissible if provided by law and are
necessary. The Respondent State cites the case of Athukorale and others,
supra where it was held that:
“Absolute and unrestricted individual rights do not and cannot
exist in a modern State. The welfare of the individual, as a
member of collective society, lies in a happy compromise
between his rights as an individual and the interests of the
society to which he belongs.”
67. The Respondent State submits that the Constitution of Zimbabwe contains a
justiciable Bill of Rights and Section 20(1) provides that everyone has a right to
freedom of expression. It states further that, in terms of Section 20 (2) of the
Constitution, the right can be restricted.
68. The Respondent State argues further that in terms of the Zimbabwe Constitution
the freedom of expression is guaranteed with permissible limitations. This is in
accordance with Article 9 of the African Charter which guarantees the enjoyment
of the right “within the law”, and according to the Respondent State, the “law”
referred to in Article 9 of the Charter, relates to “domestic law”.
69. The Respondent State submits that what is explicit in the African Charter is the
recognition that the exercise of the right is subject to national law, adding that the
Complainants conveniently avoided to mention or place emphasis on the
wording of the Article in question.
70. AIPPA, according to the Respondent State, is a law made in terms of the
Constitution of Zimbabwe and Section 79 thereof has been held by the
9
The State in this regard makes references to the Associated Newspapers of Zimbabwe (Pvt) Ltd
v The Minister of State for Information and Publicity and 2 others SC-111-04, Association of
Independent Journalists and Others v The Minister of State for Information and Publicity and 2
Others SC-136-02, and Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe and
Others SC-128-02.
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Zimbabwean Constitutional Court as constitutional. The State cites Associate
Newspapers of Zimbabwe (Pvt) v The Minister of State for Information and
Publicity and 2 Others SC 111/04 and Association of Independent
Journalists and 2 Others v The Minister of State and 2 Others SC. 136/02 to
support this submission.
71. The State submits further that the practice of journalism does not place it beyond
statutory regulation and any such law has however to conform to the stringent
requirements of limitations provided for by the Constitution, and according to the
State, Section 79 of AIPPA passes the test.
72. The Respondent State states further that the registration exercise is of a
technical nature, it is not onerous, and urges the Commission to find Section 79
of AIPPA does not contravene the right to freedom of expression under Article 9
of the African Charter.
73. With respect to Section 80 of AIPPA, the Respondent State submits that the
provision makes it an offence to intentionally publish falsehoods which threatens
the interests of defence, public safety, public order, the economic interests of the
State, public morality or public health or are injurious to reputation, rights and
freedoms of other persons.
74. The Respondent State concludes its submission by arguing that, the provisions
of AIPPA being challenged by the Complainants have been declared
Constitutional and hence comply with the qualification under the African
Charter’s exercise of the freedom of expression “within the law.”
75. The Respondent State calls on the Commission to dismiss the Communication.
Decision of the African Commission on the merits
76. In the present Communication, the Complainants allege that Section 79 (1) and
Section 80 of the AIPPA contravene Article 9 of the African Charter. Section 79
(1) of AIPPA provides that “No journalist shall exercise the rights provided in
Section 78 in Zimbabwe without being accredit by the Commission.” Section 78
meanwhile provides that:
(1) “Subject to this Act and any other Law, a Journalist shall have the
following rights (hereinafter in this Act collectively referred to as
“journalistic privilege”),
(2) to enquire, gather, receive and disseminate information;
(3) to visit public bodies with the express purpose of carrying out
duties as a journalist;
(4) to get access to documents and materials as prescribed in this
Act;
(5) to make recordings with the use of audio-video equipment,
photography and cine-photography;
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(6) to refuse to prepare under his signature reports and materials
inconsistent with his convictions;
(7) to prohibit the publication of, remove his or her signature from or
attach conditions to the manner of using a report or material
whose content was distorted, in his or her opinion, in the process
of editorial preparation.”
77. Section 80 provides for instances which constitute abuse of journalistic
privileges, as well as the punishment that goes with such abuse. Section 80 (1)
provides that;
“[a] journalist shall be deemed to have abused his journalistic
privilege and committed an offence if he does the following:
falsifies or fabricates information;
publishes falsehoods
except where he is a freelance journalist, collects and disseminates information on
behalf of a person other than the mass media service that employs him without the
permission of his employer;
contravenes any of the provisions of this Act;”
78. Section 80(2) states that;
“[a) person who contravenes subparagraphs (a) to (d) of Subsection
(1) shall be guilty of an offence and liable to a fine not exceeding one
hundred thousand dollars or to imprisonment for a period not
exceeding two years.”
79. In the present Communication, the Commission is called upon to make a
determination whether Section 79 (1) which requires compulsory accreditation of
journalists, and Section 80 which prohibits and punishes the publication of
falsehood violate the right to freedom of expression guaranteed under Article 9 of
the African Charter.
80. Article 9 of the African Charter provides that:
“(1). every individual shall have the right to receive information.
(2). every individual shall have the right to express and disseminate
his opinions within the law.”
81. Article 9 of the Charter guarantees the right to freedom of expression, which
includes the right to receive information and the right to express and disseminate
opinions within the law.
82. The Complainants submit that the law imposed by the Respondent State is
unreasonable and restrictive to freedom of expression, thus violates Article 9 of
the Charter.
83. The Respondent State on the other hand contends that the restrictions imposed
by the AIPPA are reasonable, within the law and necessary for maintenance of
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public order. The Respondent State argues further that the right to freedom of
expression is guaranteed within permissible limitations, and that it is not an
absolute and unrestricted individual right.
84. To determine whether the requirements of Section 79(1) and Section 80 of
AIPPA are in contravention of the African Charter, the African Commission will
examine what these two provisions mean, and also examine the meaning of
Article 9 of the Charter, with a view to determine whether or not there is a
violation of Article 9 of the African Charter.
85. Section 79 of AIPPA reads as follows:
No journalist shall exercise the rights provided in section seventyeight in Zimbabwe without being accredited by the Commission…
Any person who wishes to be accredited as a journalist shall make an
application to the Commission in the form and manner and
accompanied by the fee, if any, prescribed: Provided that a mass
media service or news agency may file an application for
accreditation on behalf of journalists employed by such mass media
service or news agency….
(5) The Commission may accredit an applicant as a journalist and
issue a press card to the applicant if it is satisfied that the applicant(a) has complied with the prescribed formalities; and
(b) possesses the prescribed qualifications; and
(c) is not disqualified by virtue of subsection (2), or applies for
accreditation in terms of subsection (4).
Every news agency that operates in Zimbabwe, whether domiciled
inside or outside Zimbabwe, shall in respect of its local operations not
employ or use the services of any journalist other than an accredited
journalist who is a citizen of Zimbabwe, or is regarded as permanently
resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02]:
Provided that the news agency may employ or use the services of a
journalist referred to in subsection (4) for the duration of that
journalist’s accreditation.
86. The Complainants are asking the African Commission to determine whether the
conditions stipulated under Section 79 amount to restrictions, which constitute a
violation of Article 9 of the African Charter. It is evident from the above provision
that the compulsory accreditation of journalists can result in the imposition of
liability, including penal sanction for those who cannot, or may not be able to fulfil
the requirements of accreditation, and to that end are deemed to intrude on the
professional practice of journalism.
87. Does compulsory accreditation in itself affect the enjoyment of freedom of
expression?
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88. Section 79(1) requires that before a journalist practices his/her profession within
the Respondent State’s territory, he/she must apply for and obtain a certificate of
accreditation from the MIC. Section 83 of the AIPPA makes it clear that;
‘(1) No person other than an accredited journalist shall practice as a
journalist nor be employed as such or in any manner hold himself out
as a journalist’.
89. Official accreditation of a journalist is a mandatory precondition for operating
within the Respondent State. Criminal sanctions are imposed for operating
without accreditation. There are mandatory requirements for accreditation and
the possession of the requisite qualifications does not guarantee provision of a
certificate of accreditation.
90. The African Commission considers that registration procedures are not in
themselves a violation of the right to freedom of expression, provided they are
purely technical and administrative in nature and do not involve prohibitive fees,
or do not impose onerous conditions. The requirements set out in AIPPA, in the
opinion of the Commission, undoubtedly have a negative effect on the exercise
of freedom of expression. There are no good grounds for official involvement in
the registration of journalists. It creates considerable scope for politically
motivated action by the authorities. The regulation of the media should be a
matter for self-regulation by journalists themselves through their professional
organizations, or associations.
91. A regulatory body such as the MIC whose regulations are drawn up by
government cannot claim to be self-regulatory. Any act of establishing a
regulatory body by law brings the body under the control of the State. This is
exactly the case with the AIPPA.
92. The compulsory accreditation of journalists has been held at both national and
international levels to be a hindrance to the effective enjoyment of the right to
freedom of expression.
93. In its Advisory Opinion on Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism,10 the Inter-American Court
of Human Rights emphasized the important role of the press in the development
of a free and democratic society. , The Costa Rican government approached the
Court for advisory opinion whether ‘…the compulsory membership of journalists
10
Advisory Opinion OC-5/85, November 13, 1985, Inter-Am. Ct. H.R. (Ser. A) No. 5 (1985).
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and reporters in an association prescribed by law for the practice of journalism is
permitted or included among the restrictions or limitations authorized by Articles
13 and 29 of the American Convention on Human Rights’. In responding to the
Costa Rican government’s question the Court stated that a law providing for
compulsory association and, thus, barring non-members from the practice of
journalism was incompatible with the American Convention, as it would deny
access to the full use of the news media as a means of expressing opinions or
imparting information.
94. The Inter-American Court noted further that compulsory licensing of journalists
or the requirement of a professional identification card does not mean that the
right to freedom of thought and expression is being denied, nor restricted, nor
limited, but only that its practice is regulated. Compulsory licensing, the Court
held, ‘seeks the control, inspection and oversight of the profession of journalists
in order to guarantee ethics, competence and the social betterment of
journalists…’. The accreditation of journalists may thus be beneficial to the
profession, provided though it is done in a manner that does not infringe on the
effective enjoyment of the rights of journalists to freely express themselves or
receive and disseminate information.
95. Distinguishing the compulsory registration of persons of other profession from
the registration of journalists, the Court held that;
‘……..within this context, journalism is the primary and principal
manifestation of freedom of expression of thought. For that reason,
because it is linked with freedom of expression, which is an inherent
right of each individual, journalism cannot be equated to a profession
that is merely granting a service to the public through the application
of some knowledge or training acquired in a university or through
those who are enrolled in a certain professional…The argument that
a law on the compulsory licensing of journalists does not differ from
similar legislation applicable to other professions does not take into
account the basic problem that is presented with respect to the
compatibility between such a law and the Convention. The problem
results from the fact that Article 13 expressly protects freedom " to
seek, receive, and impart information and ideas of all kinds... either
orally, in writing, in print....". The profession of journalism - the thing
journalists do - involves, precisely, the seeking, receiving and
imparting of information. The practice of journalism consequently
requires a person to engage in activities that define or embrace the
freedom of expression which the [Charter] guarantees’.11
96. The Court went on to state that;
11
Id. Paras 71-73.
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‘…….this is not true of the practice of law or medicine, for example.
Unlike journalism, the practice of law and medicine - that is to say, the
things that lawyers or physicians do - is not an activity specifically
guaranteed by the Convention [Charter]. It is true that the imposition
of certain restrictions on the practice of law would be incompatible
with the enjoyment of various rights that the Convention
guarantees.…But no one right guaranteed in the Convention
exhaustively embraces or defines the practice of law as does Article
13 when it refers to the exercise of a freedom that encompasses the
activity of journalism. The same is true of medicine’.12
97. The African Commission has considered the opinion expressed by the Inter
American Court on Human Rights in the Costa Rican case, and finds a great
deal of persuasion in the reasoning and the approach adopted by the Inter
American Court on the question of compulsory licensing of journalists. The
Commission is convinced that the question of compulsory accreditation is the
same as compulsory licensing which was addressed by the Inter American
Court. The Commission is inclined to accept the argument that compulsory
licensing or accreditation amounts to a restriction of the freedom to practice the
journalist profession where it aims to control rather than regulate the profession
of journalism. Regulation is acceptable where it aims at the identification of
journalists, the maintenance of ethical standards, competence, and the
betterment of the welfare of journalists. In other words the aim of registration
should be for purposes of betterment of the profession rather than its control,
since control by its nature infringes the right to express oneself. Article 60 and 61
of the African Charter enjoin the Commission to seek inspiration from other
international human rights instruments, precedent and doctrine.
98. The Inter American Court found that compulsory licensing aimed at controlling
journalists was a violation of Article 13 of the American Convention. By applying
the same logic, and analogy to the conditions stipulated for compulsory
accreditation under AIPPA, without which, one could not practice journalism, the
African Commission finds that section 79 of AIPPA constitutes a violation of
Article 9 under the African Charter..
99. Section 80 of AIPPA makes it clear that;
‘(1) No person other than an accredited journalist shall practice as a
journalist nor be employed as such or in any manner hold himself out
as a journalist.
No person who has ceased to be an accredited journalist as a result
of the deletion of his name from the roll, or who has been suspended
from practising as a journalist, shall, while his name is so deleted, or
is so suspended, continue to practice directly or indirectly as a
12
Id. Papa 74.
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journalist, whether by himself or in partnership or association with any
other person, nor shall he, except with the written consent of the
Commission, be employed in any capacity whatsoever connected
with the journalistic profession.
100. The Respondent State argued that the restrictions could be imposed in the
interest of public order. It also stated that the limitations are permissible and
that the exercise of the right is not absolute. The African Commission having
looked at Section 79 of AIPPA, holds that the provision does not mention if the
said conditions were made in the interest of public order. In fact the reading of
Article 9(2) suggests that the phrase “within the law” applies to the actual
dissemination and expression of opinion and ideas, rather than pre
accreditation conditions. In our view, any conditions prescribed for the
accreditation of journalists should be aimed at facilitating, rather than impeding
the exercise of the right. In the John D. Ouko/Kenya,13 the African
Commission commenting on Article 9 stated the following;
”[t]he above provision guarantees to every individual the right
to free expression, within the confines of the law. Implicit in
this is that if such opinion is contrary to laid down laws, the
affected individual or government has the right to seek
redress in a court of law. Herein lies the essence of the law
of defamation…………”
101. The Complainants argue that, the accreditation conditions are onerous, and
aimed at controlling journalists through the exercise of prior self censorship,
and obstruction of the work of journalists. They submitted that there are civil
and criminal sanctions within Zimbabwe, which provide remedies in the event
journalists violate legal provisions during the exercise of their profession. They
argue against the conditions for compulsory accreditation.
102. The African Commission agrees with these submissions and states that the
presence of laws which provide for civil and other legal sanctions in the event
of any injury caused, or infraction of the law by journalists during the practice of
their profession, coupled with self regulation, would provide an adequate
mechanism for the regulation and control of the journalism profession in a
democratic society, without the necessity of the rigorous regime under AIPPA.
103. The right to freedom of expression is protected by national, regional as well as
international human rights instruments. One common thread that runs through
the freedom of expression guarantees at all levels is the fact that the right to
freedom of expression is not absolute.
13
Communication 232/99, 14th Activity Report, also reported in the IHRDA Compilation of Decisions
of Communications of the ACHPR, extracted from the Commission’s Activity Reports 1994-2001,
at page 149.
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104. The European Convention on Human Rights regulates freedom of expression
in Article 10(2) and spells out the legitimate aims that can justify the restriction
of freedom of expression, states that:
“[t]he exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and
impartiality of the judiciary.”
105. Article 13 of the American Convention on Human Rights guarantees the
enjoyment of the right of freedom of expression. Article 13(2) provides that the
exercise of freedom of expression;
“shall not be subject to prior censorship but shall be subject to
subsequent imposition of liability, which shall be established by law to
the extent necessary to ensure respect for the rights and reputation of
others as well as to protect national security, public order, public
health, or morals.
106. Article 10 of the European Convention, 13 of the American Convention and 9
of the African Charter all emphasize that the exercise and enjoyment of
freedom of expression can be restricted under lawful conditions.
107. The African Commission has adopted a Declaration of Principles on Freedom
of Expression in Africa which upholds certain basic principles aimed at
enhancing the enjoyment of freedom of expression. Principle II of the
Declaration states that;
"(1) No one shall be subject to arbitrary interference with his or her
freedom of expression; and
(2). Any restrictions on freedom of expression shall be provided by
law, serve a legitimate interest and be necessary in a democratic
society”(emphasis is added).
The African Commission reads from the foregoing that the right to
freedom of expression may be restricted by legislation which aims to
protect the public or individuals, against practice of journalism which
deviates from certain basic norms and legitimate interests in a
democratic society. The restrictions imposed by AIPPA do not fall
within those norms or interests.
108. The individual’s right to freedom of expression thus carries with it the right to
impart information to others. The right to freedom of expression within the
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context of the African Charter must also be read together with the duties of the
individual under Article 27. Hence when an individual’s freedom of expression
is unlawfully restricted, it is not only the right of that individual that is being
violated, but also the right of all others to “receive” information and ideas.
When the Charter proclaims that every individual has the right to receive
information and disseminate opinions, it also implicitly emphasizes the fact that
the expression, reception and dissemination of ideas and information are
indivisible concepts. This means that restrictions that are imposed on
dissemination represent, in equal measure, a direct limitation on the right to
express oneself freely. The Commission is thus of the opinion that the two
dimensions of the right to freedom of expression must be guaranteed
simultaneously.
109. In the present Communication, the Respondent State cites the protection of
public order, security and public safety as reasons to ensure the regulation of
the profession of journalism. It argues further that the practice of journalism
does not place it beyond statutory regulation and any such law has however to
conform to the stringent requirements of limitations provided for by the
Constitution. The Commission finds that the notion of public order in a State
implies conditions that ensure the normal and harmonious functioning of
institutions on the basis of an agreed system of values and principles. The
Commission notes however that maintenance of public order in the exercise of
the freedom of expression is perfectly conceivable without the necessity of
restricting the practice of journalists.
110. Further, the same concept of public order in a democratic society demands the
greatest possible amount of information. It is the widest possible circulation of
news, ideas and opinions as well as the widest access to information by
society as a whole that ensures this public order.
111. In the instant Communication, the restrictions imposed on the practice of
individual journalists can thus not be justified on the grounds of public order.
112. With regards to the Respondent’s assertion that the restrictions imposed by the
AIPPA are within the domestic law of Zimbabwe, in conformity with Section 20
(2) of the Constitution of the Respondent State, the Commission notes that, the
meaning of the phrase “within the law” in Article 9 (2) must be interpreted in the
context of Principle II as elaborated under the Declaration of Principles on
Freedom of Expression stated hereinabove. In other words, the meaning of the
phrase “within the law,” must be considered in terms of whether the restrictions
meet the legitimate interests, and are necessary in a democratic society. In
addition, the concept of “within the law” employed in the Charter cannot be
divorced from the general concept of the protection of human rights and
freedoms.
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113. In Dawda Jawara v. The Gambia14, the African Commission elaborated the
meaning of such phrases such as; ‘in accordance with the law’, or ‘previously
laid down by law’ or ‘within the law’. In that Communications, the Republic of
The Gambia defended arbitrary arrests and detention and stated that it was
acting within the confines of legislation ‘previously laid down by law’, as
required by the wordings of Article 6 of the Charter.
114. The Commission rejected the arguments by The Gambia and restated its
decision in Alhassane Aboubacar v Ghana15, that
“competent authorities should not enact provisions which limit the
exercise of this freedom. The competent authorities should not
override constitutional provisions or undermine fundamental rights
guaranteed by the constitution or international human rights
standards. This principle applies not only to freedom of association
but also to all other rights and freedoms. For a State to avail itself of
this plea, it must show that such a law is consistent with its
obligations under the Charter…’
115. The Commission adopts a broader interpretation of phrases such as “within the
law” of “in accordance with the law” in order to give effect to the protection of
human and peoples’ rights. To be “within the law” the domestic legislation must
be in conformity with the African Charter or other international human rights
instruments and practices. The Respondent State can not argue that the
limitation placed by AIPPA was permissible “within the law” i.e. within its
domestic law. This would be tantamount to admitting that the exercise of
freedom of expression is left solely at the discretion of each State Party. This,
in the opinion of the Commission, will cause jurisprudential/interpretation
chaos, as each State Party will have its own level of protection based on their
respective domestic laws.
116. The African Commission succinctly made this point in Constitutional Rights
Project; et al /Nigeria16 where it stated the following;
“[a]ccording to Article 9(2) of the Charter, dissemination of opinions may be
restricted by law. This does not however mean that national law can set aside
the right to express and disseminate one’s opinion guaranteed at the
international level: this would make the protection of the right to express one’s
opinion ineffective. To permit national law to take precedence over
international law would defeat the purposes of codifying certain rights in
international law and indeed, the whole essence of treaty making”
14
Communications 147/95 and 149/96.
15
Communication 103/1993.
Consolidated Communication 140/94, 141/94, 145/95 13th Annual Activity Report. 1999-2000)
16
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117. The Commission therefore finds that the Respondent State’s arguments that
the accreditation of journalists and prohibition of falsehood are on grounds of
public order, safety and for the protection of the rights and reputation of others,
to be unsustainable and an unnecessary restriction of the individual’s practice
of journalists.
118. Similarly, by preventing journalists from freely exercising their right to freedom
of expression, the Respondent State inevitably violates the freedom of
expression of the Zimbabwean society by depriving the society the right to
receive information due to the restrictions imposed on the journalists’ right to
disseminate information.
119. The African Commission therefore finds that Section 80 of the Access to
Information and Protection of Privacy Act (Chapter 10:27) of 2002, was not
necessary, it did not address any legitimate interest such as to require
compulsory accreditation of journalists. It reiterated the restrictions imposed by
section 79, without giving any justification for such restrictions. The African
Commission therefore finds that Section 80 is incompatible with Article 9 of the
African Charter on Human and Peoples’ Rights.
120. The African Commission finds further that while accurate reporting is the goal
to which all journalists should aspire, there will be circumstances under which
journalist will publish or disseminate information, opinion or ideas, which will
contravene other persons’ reputations or interests, national security, public
order, health or morals. Such circumstances cannot be foreseen during
accreditation. In such circumstances, it is sufficient if journalists have made a
reasonable effort to be accurate and have not acted in bad faith.
121. The African Commission acknowledges the argument by the Respondent State
that the rights of individuals, including the right under Article 9 are not absolute,
hence the inclusion of Article 27 of the Charter on the duties of individual
towards others. In the case of journalists, when they fail in their duty to respect
the rights of others, when exercising their rights to free expression, then their
right ceases to be absolute. It is then that the civil and other legal remedies will
take their natural course. The African Commission holds that the Zimbabwe
domestic legal system can grant remedies to such false publication, and which
therefore obviate the necessity for the restrictions complained against.
122. To adopt legislation such as AIPPA aimed at or under the pretext of protecting
public order, health or morals, is tantamount to imposing conditions for prior
censorship.
123. The African Commission is satisfied that Sections 79 and 80 of AIPPA impose
restrictive accreditation conditions and excessive burden on journalists and
restrict their effective enjoyment of the right to freedom of expression.
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124. The Commission thus concludes that the arguments advanced by the
Respondent State in justification of the restriction of the journalists’ right to
freedom of expression are incompatible with obligations assumed by the
Respondent State to respect Article 9 of the Charter. Accordingly, the
Commission considers that the Communication discloses a violation of Article
9 of the Charter.
125. In view of the above reasoning, the African Commission recommends that the
Respondent State:
(i)
(ii)
(iii)
(iv)
(v)
Repeal Sections 79 and 80 of the AIPPA;
Decriminalize offenses relating to accreditation and the practice of
journalism;
Adopt legislation providing a framework for self regulation by
journalists;
Bring AIPPA in line with Article 9 of the African Charter and other
principles and international human rights instruments; and
Report on the implementation of these recommendations within
six months of notification thereof.
Adopted during the 6th Extra – Ordinary Session of the ACHPR, Banjul, The
Gambia. April, 2009.
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Annex 4 – Communication decided the 45th Ordinary Session
266/2003 KEVIN MGWANGA GUNME ET AL/CAMEROON
266/2003
Kevin Mgwanga Gunme et al/Cameroon
Summary of facts:
1. The Complainants are 14 individuals who brought the communication on their
behalf and on behalf of the people of Southern Cameroon1 against the Republic
of Cameroon, a State Party to the African Charter on Human and Peoples’
Rights.
2. The Complaints allege violations which can be traced to the period shortly after
“La Republique du Cameroun” became independent on 1st January 1960. The
Complainants state that Southern Cameroon was a United Nations Trust Territory
administered by the British, separately from the Francophone part of the Republic
of Cameroon, itself a French administered United Nations Trust Territory. Both
became UN Trust Territories at the end of the 2nd World War, on 13 December
1946 under the UN Trusteeship system.
3. The Complainants allege that during the 1961 UN plebiscite, Southern
Cameroonians were offered “two alternatives”, namely: a choice to join Nigeria or
Cameroon. They voted for the later. Subsequently, Southern Cameroon and La
Republique du Cameroun, negotiated and adopted the September 1961 federal
constitution, at Foumban, leading to the formation of the Federal Republic of
Cameroon on 1st October 1961. The Complainants allege further that the UN
plebiscite ignored a third alternative, namely the right to independence and
statehood for Southern Cameroon.
4. The Complainants allege that the overwhelming majority of Southern
Cameroonians preferred independence to the two alternatives offered during the
UN plebiscite. They favoured a prolonged period of trusteeship to allow for further
evaluation of a third alternative. They allege further that the September 1961
federal constitution did not receive the endorsement of the Southern Cameroon
House of Assembly.
1
The use of the term “Southern Cameroon” in this Communication is not intended to confer any
legal status or recognition. The words “Southern Cameroon” describe the territory of the
Respondent State where violations are alleged to have occurred. Unless otherwise expressly
stated, the terms, ”Southern Cameroonians,” “Anglophones,” or “Francophones” describe the
people said to occupy the two parts of the Republic of Cameroon, which were prior to 1st January
1961 either English or French administered UN Trust territories respectively,
EX.CL/529(XV)
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5. The Complainants allege that the violations suffered by the people of Southern
Cameroon emanate from the UN plebiscite of 11 February 1961 organised to
determine the political future of Southern Cameroon, and the failure by the
Respondent State to abide by the 1961 federal constitutional.
6. They allege that on 1st October 1961 La Republique du Cameroun, with the tacit
approval of the British government, drafted gendarmes, police and soldiers from
the Francophone side into Southern Cameroon, which amounted to “forceful
annexation” of Southern Cameroon. They allege that, “[a]t no time was
sovereignty over Southern Cameroon transferred to a new Federal United
Cameroons or any other entity.” They argue that the failure to exercise the third
alternative, impacted negatively on the right of the people of Southern Cameroon
to self determination.
7. The Complainants allege further that “notwithstanding the forceful annexation,”
the people of Southern Cameroon remained a separate and distinct people. Their
official working language is English, whereas the people in La Republique du
Cameroun are Francophones. The legal, educational and cultural traditions of the
two parts remained different, as was the character of local administration. In spite
of the foregoing, they allege further that the Respondent State manipulate
demographic data to deny the people of Southern Cameroon equal rights to
representation in government. They allege that the people of Southern Cameroon
have been denied powerful positions within the national/federal government.
They claim that the September 1961 federal constitution was designed to respect
those differences.
8. The Complainants allege further that from the outset of unification in 1961, and
the declaration of a unitary state in 1972, Southern Cameroonians remain
marginalised. They allege that Southern Cameroon was allocated 20% instead of
22% of the seats in the Federal/National Assembly, as per the population ratio,
thus denying them equal representation. They allege that in 1961 West
Cameroon was allocated 20 representatives in the Federal Assembly instead of
26. Later when representation to the Assembly was expanded to 180
representatives, West Cameroon was allocated 35 representatives, instead of 40
representatives. The Complainants allege further that the Francophones occupy
local administrative positions in Southern Cameroon, and abuse their positions to
amass land, and access economic resources, while the Southern Cameroonians
play the minutest role at the local or national level.
9. It is further alleged that several towns in Southern Cameroon were denied basic
infrastructure, hence denying them the right to development. It is alleged that the
Respondent State, relocated or located various economic enterprises and
projects, such as the Chad - Cameroon Oil Pipeline, the deep seaport, and the oil
refinery to towns and cities in Francophone Cameroon, notwithstanding their lack
EX.CL/529(XV)
Annex 4
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of economic viability, thereby denying employment opportunities and secondary
economic benefits to the people of Southern Cameroon.
10. The Complainants allege further that the Francophones have monopolistic control
of the Ministry of National Education. That the Respondent State has under
funded primary education in Southern Cameroon, it failed to build new schools,
understaffed primary schools, and it is closing all teacher training colleges. They
allege further that the Respondent State “Cameroonised” the GCE from the
University of London, leading to mass protests which forced government to create
an independent GCE Board. That, upon unification, diplomas awarded by the City
& Guild, a technical education institution based in England, were replaced by the
Certificat d’Aptitude Professionale (CAP) and the BAC Technique. These
measure have resulted in persistent high levels of illiteracy in many areas in
Southern Cameroon.
11. The Complainants allege that political unification and the application of the civil
law system resulted in the discrimination against Anglophones in the legal and
judicial system. Southern Cameroonian companies and businesses were forced
to operate under the civil law system. The Companies Ordinance of the
Federation of Nigeria, which was until then applicable in Southern Cameroon was
abolished. Many Southern Cameroonian businesses went bankrupt, following the
refusal by Francophone banks to lend them finances, in some cases, unless their
articles of association were drafted in French.
12. They allege that Anglophones facing criminal charges were transferred to the
Francophone zone for trial, under the Napoleonic Code, thereby adversely
affecting their civil rights. The Complainants state that the common law
presumption of innocence upon arrest is not recognised under the civil law
tradition, since guilt is presumed upon arrest and detention. The courts conduct
trial in the French language without interpreters. Furthermore, they allege that
Southern Cameroon court decisions are ignored by the Respondent State.
13. The Complainants allege that the entry by the Respondent State as a State Party
to the Organisation pour l’Harmonisation des Droits d’Affaires en Afrique
(OHADA), a treaty for the harmonisation of business legislation amongst
Francophone countries in Africa, constituted discrimination against the people of
Southern Cameroon on the basis of language. OHADA stipulates that the
language of interpretation of the treaty shall be French. The Complainants argue
that the Constitution recognises English and French as the official languages of
Cameroon. They argue therefore that by signing the OHADA treaty, Cameroon
violated the language rights of the English speaking people of Cameroon. They
allege that any company not registered under the OHADA law cannot open a
bank account in Cameroon.
14. The Complainants allege further that,on 3rd April 1993, representatives of the
people of Anglophone Cameroon adopted the Buea Declaration, which declared
EX.CL/529(XV)
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the preparedness of the Anglophones “… to participate in the forthcoming
Constitutional talks with their Francophone brothers….” The Declaration stated
that;
(i)
(ii)
(iii)
(iv)
“…the imposition of the Unitary State on Anglophone
Cameroon in 1972 was unconstitutional, illegal and a breach of
faith,”
“That the only redress adequate to right the wrongs done to
Anglophone Cameroon and its people since the imposition of
the Unitary state is a return to the original form of government
of the Reunified Cameroon,
That to this end, all Cameroonians of Anglophone heritage are
committed to working for the restoration of a federal
Constitution and a federal form of government, which takes
cognizance of the bicultural nature of Cameroon and under
which citizens shall be protected against such violations as
have been enumerated.
That the survival of Cameroon in peace and harmony depends
upon the attainment of this objective towards which all patriotic
Cameroonians, Francophones as well as Anglophones, should
relentlessly work.”
15. Subsequent to the 1993 Buea Declaration, it is alleged that between 29th April
and 1sMay 1994, the Second Anglophone Conference convened in Bamenda
adopted the Bamenda Proclamation, which stated, inter alia, that:
“….one year since the Anglophone constitutional proposals were officially
submitted, the government had not reacted to them;
that all efforts to generate the interest and understanding of the
Francophone officials and Francophone public generally in the
Anglophone constitutional proposals had been greeted with responses
ranging from indifference through apathy to hostility………..”
IN THE LIGHT OF THE FOREGOING the Anglophone people of
Cameroon………………;reiterated the Resolution taken at its first session
in April 1993……… It stated further in paragraph 6 of the Proclamation
that;
“6. Should the Government either persist in its refusal to engage in
meaningful constitutional talks or fail to engage in such talks within a
reasonable time, the Anglophone Council shall inform the Anglophone
people by all suitable means. It shall, thereupon, proclaim the revival of the
independence and sovereignty of the Anglophone territory of Southern
Cameroon and take all measures necessary to secure, defend and
EX.CL/529(XV)
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preserve the independence, sovereignty and integrity of the said territory.”
(emphasis added)
16. The Complainants allege that the failure by the Respondent State to address
the concerns of the Southern Cameroon people for a new constitution, coupled
with the adoption of the 1995 December Constitution by the National Assembly
of La Republique du Cameroun without public debate, meant that the door was
being finally closed on any future constitutional links between the Southern
Cameroon and La Republique du Cameroun. Henceforth, the Complainants
decided to conduct a signature referendum, in view of “the hostile atmosphere
created by the occupying power…….which would not want to allow any form of
consultation which might reveal the true suppressed aspirations of the people of
Southern Cameroons.”
17. The Complainants aver that between 1st and 30th September 1995, the
Southern Cameroons National Council (SCNC) conducted a signature
referendum which revealed that 99% of Southern Cameroonians favour full
independence by peaceful separation from the Respondent State.
18. Besides their claim for statehood, the Complainants allege further that human
rights of various individuals have been systematically violated by the
Respondent State. The Complainants compiled eye witness accounts and field
investigations relating to arbitrary arrests, detentions, torture, punishment,
maiming and killings of persons who have advocated for the self determination
of Southern Cameroon.
Complaint
19. The Complainants allege that;
(i) Articles 2, 3, 4, 5, 6, 7(1), 9, 10, 11, 12, 13, 17(1), 19, 20, 21, 22, 23(1),
24 of the African Charter have been violated.
(ii) the Republic of Cameroon has violated its general duty under in Article
26 of the African Charter to guarantee the independence of the
judiciary.
Procedure
20. The complaint was received at the Secretariat of the African Commission on 9th
January2003.
21.
On 10 January 2003, the Secretariat acknowledged receipt of the complaint.
22.
On 19 January 2003, the Secretariat wrote another letter to the Complainants
requesting for further information relating to the communication.
EX.CL/529(XV)
Annex 4
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23.
On 21 April 2003, the Secretariat sent a reminder to the Complainants
requesting them to forward their clarifications. By a letter dated 8 May 2003,
Counsel for the Complainants sent the clarifications sought by the Secretariat.
24.
At its 33rd Ordinary Session held from 15 - 29 May 2003 in Niamey, Niger, the
African Commission considered the communication and decided to be seized
of the matter.
25.
On 9 June 2003, the Secretariat informed the parties that the African
Commission had been seized with the matter and requested them to forward
their submissions on admissibility within 3 months.
26.
On 9 September 2003, the Complainants informed the Secretariat that they
would be forwarding their submissions on admissibility and requested to make
oral submissions at the 34th session of the African Commission.
27.
On 22 September 2003, the Secretariat received the Complainant’s
submissions on admissibility along with supplemental evidence. The
Secretariat acknowledged receipt thereof on the same day.
28.
On 3 October 2003, the Respondent State informed the Secretariat that it had
not received a copy of the communication forwarded to it by DHL on 9th June
2003.
29.
On 6 October 2003, the Secretariat wrote to the Complainant requesting for
another copy of the supplemental evidence to be forwarded to the Respondent
State.
30.
On 27 October 2003, the Secretariat transmitted a copy of the Complainant’s
submissions on admissibility to the Respondent State and informed the latter
that the Secretariat would give the accompanying documents to the delegation
of Cameroon attending the 34th Ordinary Session. The Secretariat also
informed the Respondent State that the DHL office in Cameroon had confirmed
delivery of the communication.
31.
On 27 October 2003, the Secretariat received another copy of the
supplemental evidence from the Complainant for onward transmission to the
Respondent State. The Secretariat acknowledged receipt of the same.
32.
At its 34th Ordinary Session held from 6th to 20th November 2003 in Banjul, The
Gambia, the African Commission examined the matter and decided to defer
consideration on admissibility of the matter to the 35th Ordinary Session
because the Respondent State claimed that they were unaware of the
communication.
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33.
On 14 November 2003, the Secretariat furnished the delegates representing
the Respondent State at the 34th Ordinary Session with the following
documents -:
-
A copy of communication 266/2003
A copy of the Complainants’ submissions on admissibility and the
accompanying documents
34.
On 4 December 2003, both parties to the communication were informed of the
decision of the African Commission to defer consideration of the matter on
admissibility to the 35th Ordinary Session. The Respondent State was
reminded to forward its submissions on admissibility to the Secretariat of the
African Commission within 3 months.
35.
On 5 March 2004, the Secretariat of the African Commission received the
Respondent State’s submissions on admissibility and acknowledged receipt of
the same on 9 March 2004.
36.
At its 35th Ordinary Session held in Banjul, The Gambia, from 21 May - 4 June
2004, the African Commission heard the oral submissions of the parties, and
declared the communication admissible.
37.
On15 June 2004, the Secretariat informed the parties about the African
Commission’s decision and requested them to submit their written submissions
on the merits within 3 months.
38.
On 13 August 2004, the Secretariat of the African Commission received a
correspondence from the Respondent State, which was forwarded to the
complainant on 26 August 2004.
39.
On 20 September 2004, the Secretariat received the written submissions of the
Respondent State on merits, which was transmitted to the Complainants on 12
November 2004.
40.
On 23 and 28 September 2004, the Secretariat received the written
submissions of the Complainants on the merits, which was transmitted to the
Respondent State on 12 November 2004.
41.
At its 36th Ordinary Session held in Dakar, Senegal from 24 November - 7
December 2004, the African Commission decided to defer its consideration on
the merits to the next session. It also rejected an application to stay the
proceedings by third parties purporting to represent the applicants claiming to
have entered into negotiation with the Respondent State.
42.
On 23 December 2004, the Secretariat wrote to the said third parties
informing them of this decision.
EX.CL/529(XV)
Annex 4
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43.
The Commission also decided to forward the decision on admissibility of the
communication to the Respondent State, upon its request.
44.
On 30 March 2005, the Secretariat received further submissions from the
Complainants, who also requested to make oral presentation to the next
session.
45.
On 31 March 2005, the Secretariat handed over copies of the decision on
admissibility and the various submissions from the Complainants to the
delegation of the Respondent State that visited the Secretariat on the same
date.
46.
At the 37th Ordinary Session held in Banjul, The Gambia, from 27 April - 11
May 2005, the African Commission considered this communication and
decided to defer its decision to the 38th Ordinary Session.
47.
On 7 May 2005, the Secretariat informed the Respondent State of this
decision.
48.
The Complainants were notified of the decision on 13 May 2005.
49.
On 7 June 2005, the Secretariat received submissions from the complainant,
which were sent to the Respondent State.
50.
On 12 July 2005, the Secretariat received submissions from the
State, which were later sent to the complainant.
51.
At the 38th Ordinary Session held from 21 November - 5 December 2005 in
Banjul, The Gambia, the African Commission considered the communication
and deferred its decision on the merits to the 39th Ordinary Session.
52.
On 30 January 2006, the Secretariat informed the Respondent State of this
decision.
53.
The Complainants were notified of this decision on 5th February 2006.
54.
At the 39th Ordinary session held in Banjul, The Gambia, from 11 - 25 May
2006, the African Commission considered the communication and decided to
defer it for further consideration at the 40th Ordinary Session.
55.
At the 40th Ordinary session held in Banjul, The Gambia from 14 - 28
November 2006, the African Commission considered the communication and
decided to defer its decision on the merits to the 41st Session.
Respondent
EX.CL/529(XV)
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56.
At the 41st Ordinary Session held in Accra, Ghana, from 16 - 30 May 2007 the
Commission considered the communication and deferred its decision to allow
more time for the Secretariat to conduct further research and finalise the draft
decision.
57.
At the 42nd Ordinary session held in Brazzaville, Congo, from 14 - 28
November 2007, the African Commission considered the communication and
decided to defer it for further consideration at the 43rd Ordinary Session.
58. At the 43rd Ordinary Session held in Ezulwini, Swaziland, from 7 - 22 May 2008,
the African Commission considered the communication and decided to defer
its decision on the merits to the 44th Ordinary Session.
59.
At the 44th Ordinary Session held in Abuja, Nigeria, from 10 - 24 November
2008, the African Commission considered the communication and decided to
defer it to the 45th Ordinary Session in order to finalise the draft decision on the
merits.
60.
During the 6th Extra Ordinary session held from 28 March - 3 April 2009 in
Banjul, The Gambia, the Commission considered the communication and
resolved to finalise it during the 45th Ordinary Session.
61.
At the 45th Ordinary Session held in Banjul, The Gambia, between 13 and 27
May 2009, the Commission adopted the decision on the merits of the
communication.
LAW
Admissibility
62. The admissibility of communications brought pursuant to Article 55 of the
African Charter is governed by the conditions stipulated in Article 56 of the
African Charter. This Article lays down seven (7) conditions, which must be
fulfilled by a Complainant for a communication to be declared admissible.
63.
Of the seven conditions, the Respondent State claims that the Complainants
have not fulfilled four, namely: Article 56(1), (2), (3) and (4). From the
submissions of the Respondent State, there is an inference that Article 56(7)
has not been fulfilled by the Complainant.
64. The Respondent State submits that contrary to Article 56(1) of the African
Charter, the victims of the alleged violations, indicated in the communication
have not been identified.
65. Article 56(1) of the African Charter provides that:
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Annex 4
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Communications … received by the Commission shall be considered if
they-:
(1) Indicate their authors even if the latter request anonymity
66. In this particular matter, the African Commission notes that the authors of the
communication have been identified at page 1 of the communication and they
are 14 in number. Their ages and professions have also been given as well as
their addresses of service. Furthermore, the communication reveals that the
authors of the communication are members of the Southern Cameroons
National Council (SCNC) and the Southern Cameroons Peoples' Organization
(SCAPO), organisations that were established principally to protect and
advance the human and peoples' rights of Southern Cameroonians, including
their right to self-determination.
67. Article 56 (1) of the African Charter requires a communication to indicate its
authors and not the victims of the violations. Thus the present communication
cannot be declared inadmissible on the basis of Article 56(1). In coming to this
decision, the African Commission would like to refer to its decision in
consolidated communication – Malawi African Association et al/ Mauritania2
where it held that “Article 56(1) demands simply that communications should
indicate the names of those submitting and not those of all the victims of the
alleged violations”.
68. The Respondent State argues that this communication does not meet the
requirements of Article 56(2), because the Complainants are advocating for
secession under the pretext of allegations of violation of the provisions of the
African Charter and other universal human rights instruments. While conceding
that the right to self determination is an inalienable right, the Respondent State
argues that the UN has established that this right should not “be interpreted as
authorising or encouraging any measure that would partly or wholly compromise
the entire territory or the political unity of sovereign and independent States”.
The Respondent State submits further that it is established that the only entities
likely as peoples to call for the external right to self determination from preexisting States are the “peoples under foreign subjugation, domination and
exploitation”.
69. The Complainants argue that the communication meets the requirements in
Article 56(2) because it alleges violations of the African Charter and other
international human rights instruments.
2
Consolidated Communications 54/91, 61/91, 98/93, 164/97 & 196/97, 210/98 – Malawi African
Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and
RADDHO, Collectif des Veuves et Ayants Droit, Association Mauritanienne des Droits de
l’Homme/Mauritania.
EX.CL/529(XV)
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70. Article 56(2) provides that “Communications … received by the African
Commission shall be considered if they:
(2) are compatible with the Charter of the Organisation of African Unity or
with the present Charter.”
71. The condition relating to compatibility with the African Charter basically requires
that :
The communication should be brought against a State party to the African
Charter3;
The communication must allege prima facie violations of rights protected by
the African Charter4;
The communication should be brought in respect of violations that occurred
after State’s ratification of the African Charter, or where violations began
before the State Party ratified the African Charter, have continued even after
such ratification5
72. It is apparent to the African Commission that the present communication meets
all the above requirements. The communication has been brought against
Cameroon, which is State party to the African Charter. It reveals prima facie
violations of the African Charter, all of which are alleged to have continued to
occur following Cameroon’s ratification of the African Charter.
73. The Respondent State also submits that the communication has been written in
disparaging or insulting language. The Respondent State argues that the
Complainants’ use of the phrases such as “forceful annexation” and “State
sponsored terrorism” to characterise violations by the government of Cameroon
against the people of Southern Cameroons, allegedly committed between 1961
and 2002 and a report titled “Let My People Go Part II”, are disparaging and
insulting language, contrary to Article 56 (3), of the African Charter.
74. Article 56(3) of the African Charter provides that:
Communications … received by the Commission shall be considered if
they:
(3) Are not written in disparaging or insulting language directed against the
State concerned and its institutions or to the Organisation of African
Unity.
3
Communication 2/88 – Iheanyichukwu A. Ihebereme/United States of America.
4
Communication 1/88 – Frederick Korvah/Liberia.
5
Communication 97/93 (2) – John K. Modise/Botswana.
EX.CL/529(XV)
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75. The African Commission acknowledges that the above-mentioned provision is
quite subjective because statements that could be disparaging or insulting to
one person may not be seen in the same light by another person. Matters
relating to human rights violations normally elicit strong language from the
victims of the said violations. Nonetheless Complainants should endeavour to
be respectful in the phrases they choose to use when presenting their
communications.
76. The Respondent State submits further that the Complainants are not the sole
authors of some of the documents and that the facts have been distorted.
77. The Complainants submit that they did not author the offensive publication, but
rely on it to buttress their allegations. They argue further that the communication
is not based exclusively on news disseminated through the media. They state
that the evidence in support of their allegations is based on eye-witness
accounts and documents prepared by those who have personal knowledge of
the events and from official Records.
78. Article 56(4) of the African Charter provides that:
Communications … received by the Commission shall be considered if
they:
(4) are not based exclusively on news disseminated through the mass
media
79. The African Commission has perused the appendices to the communication
and has observed that they contain the following documents :
• Appendix II is a publication by SCNC/SCAPO – Let my People Go!
• Appendix IV contains court documents, namely a motion on notice, 2
affidavits, originating summons, a ruling of the Federal High Court of
Nigeria in Abuja, terms agreed by the parties to be embodied in the order
of the court and an enrolment of order.
• Exhibit SC contains among others numerous documents, declarations,
agreements between Germany and Great Britain, UN General Assembly
Resolutions, the Statute of the International Court of Justice and the UN
Charter, a Petition made by the Federal Republic of Southern Cameroons
to the United Nations etc.
80. Article 56(4) relates to communications brought before the African Commission
based exclusively on news disseminated through the mass media. Looking at
the nature of documents described herein above, it is quite clear that the
Complainants do not base their case on mass media news, but on official
records and documents, as well as international statutes. This clearly falls
outside the ambit of Article 56(4).
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81. With respect to Article 56(5), which relates to exhaustion of local remedies, the
Complainants submits that there are no local remedies to exhaust in respect of
the claim for self-determination because this is a matter for an international
forum and not a domestic one. They argue that the issue for determination in
this communication is whether or not the "union" of La République du
Cameroun and Southern Cameroons was effected in accordance with UN
Resolutions, International Treaty obligations and indeed International law. They
assert that the right to self determination is a matter that cannot be determined
by a domestic court.
82. The Respondent State concedes that no local remedies exist with respect to
the claim for self determination. The Respondent State, however argues that,
the right to self determination for the people of Southern Cameroon was solved
when the British Trusteeship over British Cameroon ended following the
plebiscite of 11th and 12th February 1961. Furthermore, it argues that the 1963
International Court of Justice (ICJ) decision in the Northern Cameroon case
found in favour of the Republic of Cameroon and put the matter of Southern
Cameroon to rest. The Respondent State believes that the Complainants are
seeking a similar declaratory decision which should not be entertained by the
African Commission.
83. The African Commission believes that this argument is an inference by the
Respondent State that the Complainants have not met the conditions laid down
in Article 56(7) of the African Charter. Article 56(7) provides :
Communications … received by the African Commission shall be
considered if they:
(7) do not deal with cases which have been settled by these States
involved in accordance with the principles of the Charter of the
United Nations, or the Charter of the Organisation of African
Unity or the provisions of the present Charter.
84. Article 56(7) of the African Charter bars the African Commission from
entertaining cases that have been settled by another international settlement
procedure.6 The issue that the African Commission needs to examine is
whether the abovementioned complaint has been settled by some other
international settlement procedure.
85. The African Commission has read the judgment of the ICJ in the Northern
Cameroons case7. In that case the Government of the Republic of Cameroon
asked the Court to declare whether, “in the application of the Trusteeship
6
Communication 15/88 – Mpaka-Nsusu Andre Alphonse/Zaire.
7
Cameroon v United Kingdom – judgement of 2nd December 1963
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Agreement for the Territory of the Cameroons under the British Administration,
the United Kingdom failed, with regard to the Northern Cameroons, to respect
certain obligations flowing from that Agreement.”8
86. It is the view of the African Commission that the matter before the ICJ was
unrelated to the issues before the African Commission. The African
Commission states that for a matter to fall within the scope of Article 56(7) of
the African Charter it should have involved the same parties, the same issues,
raised by the complaint before the African Commission, and must have been
settled by an international or regional mechanism. The case before the ICJ was
between the Republic of Cameroon and the United Kingdom, and involved the
interpretation and application of the Trusteeship treaty. These facts clearly differ
from the complaint before the Commission. As such the case falls outside the
scope of Article 56(7) of the African Charter.
87. For the reasons outlined herein above, the African Commission declares this
communication admissible.
Preliminary issue raised by the Respondent State regarding the
jurisdiction of the African Commission;
88. Before dwelling on the substance of the allegations, the Commission wishes to
dispose of some preliminary legal issues raised by the Respondent State. The
Respondent State questions the Commission’s jurisdiction rationae temporis,
and states the following:
“…the complaint by the complainants contains an impressive number of
cases of so called massive violations of human rights which
alleged to have been carried out between 1961 and 2002. In
this regard, the State of Cameroon refuses to acknowledge in
limine litis the jurisdiction rationae temporis of the
Commission with regard to acts before 18 December 1989,
the date of entry into force of the Charter.”
89.
The Respondent State also challenged the notion, or the existence of a territory
known as “Southern Cameroon.” It states as follows:
“….it should be pointed out that in spite of the fact that the
complainants refused to reveal their identities, they by no
means ascertained to have been victims9 of violations
imputed to the State of Cameroon. And even when they act
on behalf of a so called territory called Southern Cameroon,
8
9
Ibid
The issue whether or not a complainant needs to be a victim in order to submit a communication
before the Commission is addressed, in para 62 hereinabove, when discussing Article 56 (1) of
the African Charter.
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the State of Cameroon will point out that no territory exists
called as such in the Republic of Cameroon...’
90. The Respondent State, similarly, questions the existence of a “people” known
as “Southern Cameroonians” and as such states that,
“…[s]upposing that there are a people of Southern Cameroons,
nevertheless, it would have to be proven that it is
entitled to claim its self determination, under the
specific form of “separate statehood”
91. The Commission proposes to deal, firstly, with the question of its jurisdiction
then the question whether the people of “Southern Cameroon” exist as a
“people,” and whether the territory otherwise referred to as “Southern
Cameroon” does exist, and if it does, can its “people” exercise their alleged
“right to self-determination?”
Decision on the preliminary issue of the Commission’s jurisdiction rationae temporis
92. The Respondent State raises objection to the Commission’s exercise of
jurisdiction rationae temporis. The Complainants responded that although those
violations were carried out before the African Charter came into force for
Cameroon, they did not stop even after 18 December 1989.
93. The Commission acknowledges the Respondent State’s argument that its
jurisdiction rationae temporis is limited in limine, and as such it cannot address
violations retrospective the entry into force of the Charter. The Commission is
aware that the Africa Charter entered into force in respect of the Respondent
State on 18 December 1989. The Commission has been informed by the
Complainants that some of the alleged violations occurred before that date.
94. The Commission stated its position on this principle in Communication 97/93,
John K. Modise v. Botswana. In that communication the complainant was
arrested by the Botswana authorities in 1978 and deported to apartheid South
Africa, in violation of his citizenship rights. The communication was filed in
1993. The Commission held that:
“The Republic of Botswana ratified the African Charter on 17
July 1986. Although some of the events described in the
communication took place before ratification, their effects
continue to the present day. The current circumstances of the
complainant are a result of a present policy decision taken by
the Botswana government against him.”
95. The Commission expanded the principle further in its decision on the
Consolidated Communications Nos 54/91 Malawi African Association, et al v.
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Mauritania, where it, inter alia, considered an allegation of violations of the right
to a fair trial. The Commission held that:
“Mauritania ratified the Charter on 14 June 1986, and it came
into force on 21 October 1986. The September trials, thus
took place prior to the entry into force of the Charter. These
trials led to the imprisonment of various persons. The
Commission can only consider a violation that took place
prior to the entry into force of the Charter if such a violation
continues or has effects which themselves constitute
violations after the entry into force of the Charter…”10
96. The Commission has through its jurisprudence established the principle that
violations that occurred prior to the entry into force of the Charter, in respect of
a State party, shall be deemed to be within the jurisdiction rationae temporis of
the Commission, if they continue, after the entry into force of the Charter. The
effects of such violations may themselves constitute violations under the
Charter. In other words, this principle presupposes the failure by the State party
to adopt measures, as required by Article 1 of the Africa Charter to redress the
violations and their effects, hence failing to respect, and guarantee the rights
97. The Commission therefore decides that it has the competence to consider this
complaint against the Respondent State, in relation to violations which
emanated prior to 18 December 1989, the date the African Charter entered into
force for the Republic of Cameroon, if such violations or their residual effects
continued after that date.
Consideration of the Merits
98. The communication alleges that the Respondent State violated Articles 2, 3, 4,
5, 6, 7(1), 9, 10, 11, 12, 13, and 17(1) in respect of individual Southern
Cameroonians; and Articles19, 20, 21, 22, 23(1), and 24 in respect of the
Peoples of Southern Cameroons; and the general obligation under article 26 of
the African Charter.
Decision on the Merits
Alleged violation of Article 2.
99. The Complainants allege that there have been various cases of discrimination
against the people of Southern Cameroon contrary to Article 2 of the African
Charter. Article 2 states that:
10
§ See Paragraph 91 of the decision.
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“Every individual shall be entitled to the enjoyment of the
rights and freedoms recognised and guaranteed in the
present Charter without distinction of any kind such as race,
ethnic group, colour, sex, language, religion, political or any
other opinion, national and social origin, fortune, birth or any
status”.
100. The Complainants submit that Southern Cameroonians are discriminated
against by the Respondent State, in various forms.These include underrepresentation of Southern Cameroonians in national institutions, economic
marginalisation through the denial of basic infrastructure; such as roads,
persistence high levels of unemployment and illiteracy in Southern Cameroon. It
is submitted that Southern Cameroonians are discriminated against in the legal
and judicial system.
101. The Complainants submitted further that the company law applied in Southern
Cameroon was abolished in favour of the Napoleonic Code upon unification in
1972. They argued that Southern Cameroonians could not register companies
whose articles of association were in the English language.
102. The issue for determination is whether the refusal to register the said
companies was directly related to the unification of the legal system in 1972,
and if it constituted discrimination? Could the 1972 unification prejudice
registration of companies after ratification on 18 December 1989? This would
be the case only if the unification impacted negatively on the registration of
companies after December 1989. The Complainants argue that the refusal to
register companies had such an effect. In order for the Southern Cameroonian
companies to do business they had to register under the Francophone civil law
system. The Respondent State did not dispute this allegation. English is one of
the official languages in Cameroon. Southern Cameroonians had a legitimate
expectation that the English language could be used to conduct official
business, including the registration of companies. The Commission makes a
finding that the refusal to register companies established by Southern
Cameroonians on account of language amounted to a violation of Article 2 of
the African Charter.
103. The Complainants submit further that the ratification of the Treaty for the
Harmonisation of Business Law in Africa, otherwise known as “Organisation
pour l’Hamonisation des Droits d’Affaires en Afrique”
(OHADA), has
discriminated against the people of Southern Cameroon on the basis of
language. OHADA is an instrument harmonising business law amongst Frenchspeaking countries in Africa. It states that the language of interpretation and
settlement of disputes arising under OHADA shall be French.
104. The Complainants alleged that the ratification of OHADA was discriminatory to
individual businesses and business people from Southern Cameroon. At this
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point we adopt the legal principle that businesses or corporate bodies are legal
persons. The Complainants submit that objections against OHADA were
ignored, and that companies not registered under OHADA could not open bank
accounts in Cameroon.
105. The Respondent State argued that OHADA is not aimed at promoting the
superiority of one legal system over the other, but rather to harmonise business
law in the contracting states by elaborating simple, modern, common rules
aimed at encouraging regional development and growth, setting up appropriate
judicial procedures and encouraging arbitration for the settlement of contractual
disputes.
106. It states further that other non French speaking countries including Ghana and
Nigeria, were undergoing the process of acceding to the OHADA treaty. The
Respondent State submitted that it had taken several measures, such as the
translation of the OHADA laws into English, with the support of the OHADA
Permanent Secretariat and the African Development Bank, and the training of
Anglophone and Francophone magistrates at the Ecole regionale Superieure de
magistature in Porto Novo, Republic of Benin. It stated further that the
apprehension by the Anglophones was merely a transitory situation.
107. The Commission takes note of the fact that the Respondent State had taken
measures to address the discriminatory effects of the ratification of OHADA.
Had such measures not been taken upon the ratification of OHADA in 1996, the
Commission would not have hesitated to find a violation. The Commission is
cognisant of the bilingual nature of the Respondent State and the Western
African region, in which the Respondent State finds itself. The Respondent
State is from time to time being expected to interact with its neighbours in
ECOWAS, or any other sub regional group, where both the French and the
English language continue to be lingua franca.
108. The mere accession or ratification of OHADA, should not be deemed a violation
of Article 2, unless the Respondent State had manifestly failed to take any steps
to ameliorate the effects of the linguistic differences. The Respondent State has
shown that it took measures, such as the training of magistrates, and translation
of texts to address the discriminatory concerns. The OHADA ratification,
however, resulted in the discrimination of Anglophone based companies and
businesses, which could not open bank accounts unless they registered under
OHADA. There was no response from the Respondent State on this issue. Nor
were any measures taken to address this complaint. Notwithstanding the
translation of OHADA into English, it was wrong for institutions, such as banks
to force Southern Cameroon based companies to change their basic documents
into French. The banks and other institutions could have dealt with the
companies without imposing the language conditionality. Banking documents
should have been translated into English. The Commission finds that the
Respondent State failed to address the concerns of Southern Cameroonian
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businesses, which were forced to re-register under OHADA, and as such
violated Article 2 of the African Charter.
Allegation of violation of Article 3.
109. The Complainants alleged violation of Article 3, which protects the individual’s
right to equality before the law and equal protection of the law. African
Commission notes that although the communication alleges violation of Article 3
of the African Charter, the Complainants did not specifically argue or bring
evidence of any instance against the Respondent State. In the absence of such
evidence, the African Commission cannot find violation of Article 3 of the
Charter.
Alleged violation of Article 4
110. The Complainants allege violations of Article 4, the right to life, inviolability of
the human being, and the integrity of the person. They submit that the
Respondent State committed violations against individuals in Southern
Cameroon. The communication gives account of people who were killed by the
police during violent suppressions of peaceful demonstrations, or died in
detention as a result of the bad conditions and the ill-treatment in prison.
111. The Respondent State contends that the allegations are not substantiated by
documentary evidence. No certificates to ascertain the cause of death, no
forensic medical certificates, no investigation reports by human rights
organisation were produced. It states further that “the catalogue published by
the press organs of the SCNC and SCAPO cannot be considered as a reliable
source”.11 The Respondent State however, admitted to the death of six people
on the 26th March 1990, which occurred after a confrontation between security
forces and demonstrators, whom it argued, were involved in an illegal political
rally in Bamenda.
112. The African Commission observes that the parties do not have equal access to
official evidences such as police reports, death certificates and forensic
medical certificates. The Complainants endeavoured to inquire into the alleged
violations, and gave names of the alleged victims. The Respondent State
restricted itself to questioning the reliability of the evidence presented by the
Complainants. It did not deny the alleged violations. The Respondent State
had the opportunity to inquire into the alleged violations. The Respondent State
did not conduct such investigation and redress the victims, it thus failed to
protect the rights of the alleged victims. The Commission finds that it violated
Article 4 of the African Charter.
11
The SCNC (Southern Cameroons National Council) and the SCAPO (Southern Cameroons
People’s Organisation) are two political organisations defending the rights of the people of
Southern Cameroons, including their right to self-determination.
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Alleged violation of Article 5
113. The communication gives details of victims who were subjected to torture,
amputations, and denial of medical treatment by the Respondent State’s law
enforcement officers, in violation of Article 5 of the African Charter. The
Respondent State responded by stating that some SCNC and SCAPO
members had perpetrated terrorist acts in the country, killing law
enforcement officers, vandalising State properties, stealing weapons and
ammunitions.
114. The Commission holds the view that even if the State was fighting alleged
terrorist activities, it was not justified to subject victims to torture, cruel,
inhuman and degrading punishment and treatment. It therefore finds that the
Respondent State violated Article 5 of the African Charter.
Alleged violation of Article 6
115. The communication further gives details of victims who were arrested,
detained for days, sometimes for months without trial before being released
in violation of Article 6 of the Charter.
116. The Respondent State did not deny the allegations, instead it tried to justify
them. For instance, it states that:
“…concerning citizens who had been arrested for committing various
ordinary law offences since the return to multi party democratic processes,
most of them are SCNC and SCAPO activists who, in their logic of
contestation, defied republican institutions especially the forces of law and
order, either during demonstration of the anniversary of “Southern
Cameroon” every 1 October of the year, or at the approach, during and after
important elections.”
117. It goes on to state that,
“whatever the circumstances, the more it is true that every individual shall have
the right to liberty and the security of his person, the more it is accepted that an
individual may be deprived of his freedom for reason and conditions previously
laid down by the law. (Article 6 of the Charter) The cases of arrest registered
since the return to multiparty politics in this part of the territory has always
obeyed the principle of legality…..”
118. The Commission states that a State Party cannot justify violations of the
African Charter by relying on the limitation under Article 6 of the Charter The
Respondent State is required to convince the Commission that the measures
or conditions it had put in place were in compliance with Article 6 of the
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Charter. The Commission has previously expressed itself on the effect of claw
back clauses. Communication 211/98; Legal Resources Foundation/Zambia,12
states the following;
“The Commission has argued forcefully that no State Party to
the Charter should avoid its responsibility by recourse to the
limitations and “claw back” clauses in the Charter. It was
stated following developments in other jurisdictions, that the
Charter cannot be used to justify violations of sections of it.
The Charter must be interpreted holistically and all clauses
must reinforce each other. The purpose or effect of any
limitation must also be examined, as the limitation of the right
cannot be used to subvert from the popular will, as such
cannot be used to limit the responsibilities of State Parties in
terms of the Charter.”
119. Further to the foregoing, Communication 147/95 and 149/96, Sir Dawda
Jawara/The Gambia, the Commission stated that,
“ [t]he Commission in its decision on communication 101/93
laid down a general principle with respect to freedom of
association, that ‘competent authorities should not enact
provisions which limit the exercise of this freedom. The
competent authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by
constitution or international human rights standards.’ This
therefore applies not only to right to freedom of expression of
association, but also to all other rights and freedoms … for a
State to avail itself of this plea, it must show that such a law
is consistent with its obligations under the Charter.”13
120. In view of the foregoing, the Commission finds that the Respondent State has
violated Article 6 as alleged by the Complainants.
Alleged violation of Article 7(1).
12
13
14th Annual Activity Report, 2000-2001.
The principle was stated in Communication 101/93; Civil Liberties Organization (In respect of
the Nigerian Bar Association)/Nigeria, where the Commission discussed the effect of the claw
back clause in Article 10 on the right to freedom of association and stated the following; “
[f]reedom of association is enunciated as an individual right and is first and foremost a duty of the
State to abstain from interfering with the free formation of association. There must always be a
general capacity for citizens to join, without State interference, in association in order to attain
various ends. In regulating the use of this right, the competent authorities should not enact
provisions which would limit the exercise of this freedom. The competent authorities
should not override constitutional provisions or undermine rights guaranteed by the
constitution and international human rights standards. (emphasis is added)
EX.CL/529(XV)
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121. The Complainants alleged that the Respondent State violated Article 7(1), on
the right to fair trial. They allege that individuals were transferred from
Southern Cameroon to Francophone Cameroon for trial by military tribunals
and that other victims were tried in civil law courts, without interpreters.
122. The Respondent State admits that between 1997 and 2001, some individuals
were transferred from the North West Cameroon, and were tried for various
criminal offences by the Yaoundé Military Tribunal, These offences include
unlawful incitement, disturbances of public peace, destruction of public
property, assassination of gendarmes and civilian individuals, illegal
possession of weapons and ammunition, and the illegal declaration of the
independence of Anglophone Cameroon on 30 December 1999.
123. The Respondent States asserts the following;
“ [a]ware that in the past the actions of SCNC militants have
always ended up in assassinations, kidnapping of persons,
destruction and setting ablaze of public buildings, public
authorities could not remain indifferent in front of this
manifest determination to cause disorder and disturbances.
About three days before 1 October 2001, gendarmes were
dispatched nearly everywhere in the areas and localities
targeted by the SCNC.”
124. The Respondent State submitted that some of the victims were released, albeit
after prolonged periods of detention, for lack of evidence. Others were
released on bail, and fled the country. It argues that the prolonged detention
was due to administrative bottlenecks, which are a constant concern of the
government. The Respondent State did not indicate the measures it had taken
to address the chronic administrative problems causing prolonged detentions.
125. The Respondent State denied that it ignored or failed to implement Court
decisions in Anglophone Cameroon. It cited a number court decision it had
complied with, including those which overturned executive decisions. The
Complainant did not give any specific case or decision which was not complied
with by the Respondent State.
126. The Commission wishes to state that the rights outlined in Article 7 constitute
fundamental tenets of any democratic state. It is through respect for these
rights that other rights guaranteed by the Charter may also be realised. The
Commission has adopted the Principles and Guidelines on the Right to Fair
Trial and Legal Assistance in Africa, to assist State Parties to better guarantee
the rights enshrined in Article 7.
127. The Respondent state did not explain why it transferred individuals from North
West Cameroon for trial by the Yaoundé and Bafoussam Military Tribunals, nor
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the reason why the victims were tried by tribunals outside the jurisdictions
where the offence were allegedly committed. The Commission has stated
previously that trial by military courts does not per se constitute a violation of
the right to be tried by a competent organ. What poses problem is the fact that,
very often, the military tribunals are an extension of the executive, rather than
the judiciary. Military tribunals are not intended to try civilians. They are
established to try military personnel under laws and regulations which govern
the military. In communication 218/98 Civil Liberties Organisation, Legal
Defence Centre, Legal Defence and Assistance Project v. Nigeria the
Commission stated the following:
“The military tribunals are not negated by the mere fact of
being presided over by military officers. The critical factor is
whether the process is fair, just and impartial”14
128. The accused persons were not military personnel. The offences alleged to
have been committed were quite capable of being tried by normal courts,
within the jurisdictional areas the offences were allegedly committed. The
Commission finds that trying civilians by the Yaoundé and the Bafoussam
Military Tribunals was a violation of Article 7(1) (b) of the Charter.
129. The Complaints submit that the accused were tried in a language they did not
understand, without the help of interpreters. The Respondent State did not
contradict that allegation. The Commission states that it is a prerequisite of the
right to a fair trial, for a person to be tried in a language he understands,
otherwise the right to defence is clearly hampered. A person put in such a
situation cannot adequately prepare his defence, since he would not
understand what he is being accused of, nor would he apprehend the legal
arguments mounted against him.15 The aforementioned Principles and
Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa, states
that one of the essential elements of a fair hearing is:
“…an entitlement to the assistance of an interpreter if he or
shecannot understand or speak the language used in or by
the judicial body.”16
130. The Commission recognizes that the Respondent State is a bilingual country.
Its institutions including the judiciary can use either French or English.
14
§ See para 27.
15
See the decision of the Commission on communications 54/91, 61/91, 98/93, 164/97 to 196/97
and 210/98 Malawi African Association, Amnesty International, Ms. Sarr Diop, UIDH and
RADDHO, Collectif des veuves et ayants-droits, and Association mauritanienne des droits de
l’homme v. Mauritania, 13th Annual Activity Report, § 97.
§ 2(g).
16
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However since not all the citizens are fluent in both languages, it is the State’s
duty to make sure that, when a trial is conducted in a language that the
accused does not speak, he/she is provided with the assistance of an
interpreter. Failing to do that amounts to a violation of the right to a fair trial.
131. The Commission therefore concludes that the Respondent State violated
Article 7(1)(b) (c) and (d) of the Charter.
Alleged violation of Article 9.
132. The communication alleges violation of article 9 of the Charter. The
Complainants did not make any submissions concerning Article 9.The
Commission has therefore not made any finding regarding Article 9.
Alleged violation of Article 10
133. The Complainants allege that the Respondent State violated Articles 10 of the
African Charter. The parties did not make any submission on Article 10 of the
Charter. The Commission finds no violation of Article 10.
Alleged violation of Article 11.
134. The Commission examined whether Articles 11 was violated. The Commission
deems that there is enough information on the record, based on the both
parties to enable the Commission to make its determination.
135. Article 11 states that:
“Every individual shall have the right to assemble freely with others.
The exercise of this right shall be subject only to necessary
restrictions provided for by law in particular those enacted in the
interest of national security, the safety of others, health, ethics and
rights and freedoms of others.”
136. The facts before the Commission depict cases of suppression of
demonstrations, including the use of force against, the arrest and detention of
people taking part in such demonstrations. The Commission has held
previously that;
“…..the Charter must be interpreted holistically and all clauses must reinforce
each other.”17
137. The Complainant states that several victims were arrested and held in
detention for long periods, for exercising their right to freedom of assembly.
17
Communication 211/98 Legal Resources Foundation/Zambia, at para 70.
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Some of the detained persons were acquitted. There were others who died at
the hands of security forces or in detention, after being accused of participation
in “unlawful political rallies.” The victims who died, or had been detained
suffered while exercising their exercise of the right to freedom of assembly.
138. The Commission does not condone unlawful acts by individuals or
organisations to advance political objectives, because such actions or their
consequences are likely to violate the African Charter. It encourages
individuals and organisations, when exercising their right to freedom of
assembly, to operate within the national legal framework. This requirement
does not absolve States Parties from their duty to guarantee the rights to
freedom of assembly, while maintaining law and order. The Respondent
States admits that it detained demonstrators, applied excessive force to
enforce law and order, and in some cases lives were lost. The Commission
concludes therefore that Article 11 of the African Charter was violated.
Alleged violation of Article 12.
139. The Complainants alleged that Article 12 was violated by the Respondent
State. They did not substantiate any infringement by the Respondent State of
the right to freedom of movement. The Commission finds no violation of Article
12.
Alleged violation of Article 13.
140. The Complainants alleged violation of Article 13. They stated that the people
of Southern Cameroon were not adequately represented in the institutions of
the Republic of Cameroon except for “token” appointments. They allege further
that the Respondent State manipulated demographic data to deny Southern
Cameroonians equal representation in government.
141. The Respondent State submitted that, upon the introduction of multi-partyism
in 1992, many Southern Cameroonian opposition parties, such as the Social
Democratic Front (SDF), have participated in municipal, legislative and
presidential elections. Opposition parties control several councils and are
represented in the National Assembly. It argues that access to high office is
open to all citizens without distinction. The Respondent State accused the
Complainants of bad faith, and stated that some of the highest positions in the
Republic had been held by Southern Cameroonians. It accuses SCNC and
SCAPO of persecuting fellow Anglophones who refuse to adhere to the
secession agenda.
142. The Complainants claim that Southern Cameroonians have since 1961 been
accorded only 20 % representation in the Federal/National Assembly instead of
the 22% they think they deserve. The Complainants’ main complaint is the ratio
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of representation, rather than the non representation. The Respondent State
states that 20% representation cannot be said to be “tokenism.”
143. The Commission is inclined to agree with the Respondent State. It finds that in
spite of the alleged disproportionate percentage, Southern Cameroonians were
representation, and hence participated in public affairs of the Respondent
State as required under Article 13 of the African Charter.
144. The Commission states that it is not sufficient for the Complainants to assert in
general terms that a certain category of citizens were denied the right to
access public positions or that they were under-represented in government or
public administration. The Complainants did not furnish the Commission with
information or cases that individuals in Southern Cameroon were denied
representation or denied access to public services. The Commission finds that
allegations concerning “tokenism” have not been substantiated and concludes
that there is no violation of Article 13.
Alleged violation of Article 17
145. The Complainants allege that the Respondent State violated Article 17 of the
Charter, because it is destroying education in the Southern Cameroons by
underfunding and understaffing primary education. That it imposed
inappropriate reform of secondary and technical education. It discriminates
Southern Cameroonians in the admission into the Polytechnique in Yaoundé,
and refused to grant authorisation for registration of the Bamenda University of
Science and Technology, thereby violating article 17 on the right to education.
146. The Respondent State denied that it is destroying the education system in the
Southern Cameroon. It provided detailed data and statistics on the measures it
had taken to carter for the education sector in the Southern Cameroons. It
stated that in certain cases it had provided more resources to Southern
Cameroon than it had done for other regions. The Complainants contested the
reliability of the data and statistics, but did not convince the Commission that
the data should not be relied upon.
147. Regarding the alleged discrimination concerning admission of Southern
Cameroonians into the Polytechnique in Yaounde, the Respondent State
argued that admission to the National Advanced School of Engineering is
based on merit, as is the case with all higher institutions of learning. It stated
that the School has trained a number of civil engineers from both the
Anglophone and Francophone parts.
148. Concerning the alleged refusal to grant authorisation for the registration of the
Bamenda University of Science and Technology, the Respondent State stated
that the said university did not fulfill conditions for establishment of private
universities. The Complainant did not show whether the criteria were met by
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the Bamenda University of Science and Technology or not. The Commission
reiterates that for it to make finding on any allegations, the Parties have to
provide it with the necessary information. Rule 119 of the 1995 Rules of
Procedure of the Commission, (which govern this communication) require
parties to furnish explanation or statements, including additional information.
149. The Complainants should have done so under Rule 119 (3) of the Rules of
Procedure. The Commission allowed Parties to make oral submission in this
particular case. The Complainants did not substantiate the allegations. For the
above reasons, the African Commissions finds that there is no violation of
Article 17(1) of the Charter.
150. The Commission then examined the alleged violation of Articles 19, 20, 21, 22,
23(1), and 20 of the African Charter.
Alleged violation of Article 19.
151. The Complainants premised the complaint alleging violation of their collective
rights on the events which happened prior to 18 December 1989. The
Commission has already expressed itself on the question of its jurisdiction
rationae temporis. The Complainants alleged that the Respondent State,
“forcefully and unlawfully annexed” Southern Cameroon. They argue that the
Respondent State:
“……..established its colonial rule there, complete with its
structures, and its administrative, military and police personnel,
applying a system and operating in a language alien to the
Southern Cameroon, … and continues to exercise a colonial
sovereignty over Southern Cameroon to this day.”
152. They argue further that:
“… the occupation and assumption of a colonial sovereignty over
Southern Cameroon by the Respondent State amounts to violation of
Articles 19 and 20 of the African Charter…., both of which outlaw
domination , and colonialism in all its forms and manifestations. Article
19 places an absolute ban on the domination of one people by another.
Article 20 emphatically asserts the right of every people to existence, to
self determination, and of resistance to colonialism or oppression by
resorting to any internationally recognised means of resistance”
153. These are very serious allegations which go to the root of the statehood and
sovereignty of the Republic of Cameroon. The Respondent State responded by
arguing that the Commission is:
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“…incompetent to handle the issue of the process of
decolonisation that took place in this State and under the
auspices of the United Nations.”
154. Respondent State submits further that the Commission cannot examine or
adjudicate on the 1961 UN plebiscite, on events which took place between the
October 1961 and 1972, when the Federal and Union Constitutions were
adopted, because they predated the entry into force of the Charter.
155. The Commission concedes that it is not competent to adjudicate on the legality
of those events, due to limitation imposed on its jurisdiction rationae temporis,
for reasons stated hereinabove. The Commission cannot make a finding on
allegations made by the Complainants concerning “illegal and forced
annexation, or colonial occupation of Southern Cameroon by the Respondent
State,” since they fall outside its jurisdiction rationae temporis.
156. The Commission states, however that, if the Complainants can establish that
any violation committed before 18 December 1989, continued thereafter, then
the Commission shall have competence to examine it.
157. The Complainants alleged cases of economic marginalisation, and denial of
basic infrastructure by the Respondent State, as constituting violations of
Article 19. They allege that these violations were a consequence of the events
of 1961 and 1972, and continued after 18 December 1989.
158. The Respondent State contested the allegation of economic marginalisation. It
submitted documents and statistics in support of its provision of basic
infrastructure in Southern Cameroon. The statistical information and data show
that, for the period 1998 up to 2003/4, the North West and South West
provinces, (Southern Cameroon,) were allocated substantially higher
budgetary resources, than the Francophone provinces, for the construction,
and maintenance of roads, and running of education training institutions. The
documents show that the situation in the Anglophone regions is not that
different from other parts of the country. It argued that the problem concerning
inadequate infrastructural development is not peculiar to Southern Cameroon.
159. The Complainants rejected as adulterated the data and statistics provided by
the Respondent. The complainant did not furnish any document to support
their allegation. The Commission finds no reason why it should not rely on the
data and statistics provided by the respondent State in its decision. The
Commission holds that the Respondent State allocated public resources to the
Anglophone provinces without discrimination.
160. The Respondent State did not however respond specifically to the allegations
concerning the relocation of major economic projects and enterprises from
Southern Cameroon. It explained the reason for relocating the seaport to
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Douala from Limbe, otherwise known as Victoria. It argues that, Douala being
the gateway into Cameroon, the government needed to monitor the movement
of persons and good for evident security reasons and efficient customs control.
161. Every State has an obligation under international law to preserve the integrity
of its entire territory. The maintenance of security and movements of persons
and goods on the territory is part of that obligation. The argument by the
Respondent State that it could not guarantee the security of persons and
goods at Limbe, unless it moved the port, is tantamount to acknowledging that
it had no control of Limbe. The Commission believes that the security and
customs authorities could have effectively monitored the movement of persons
and goods, even if the seaport had continued to be at Limbe.
162. The Commission states that the relocation of business enterprises and location
of economic projects to Francophone Cameroon, which generated negative
effects on the economic life of Southern Cameroon constituted violation of
Article 19 of the Charter.
Alleged violation of Article 20.
163. The Complainants state that the “alleged unlawful and forced annexation and
colonial occupation” of Southern Cameroon by the Respondent State
constituted a violation of Article 20 of the Charter. They claim that Southern
Cameroonians are entitled to exercise the rights to self determination under
Article 20 of the Charter as a separate and distinct people from the people of
“La Republic du Cameroon.” Article 20 stipulates that:
1. All peoples shall have the right to existence. They shall have the
unquestionable and inalienable right to self determination. They shall
freely determine their political status and shall pursue their economic and
social development according to the policy they have freely chosen.
2. Colonised or oppressed peoples shall have the right to free themselves
from the bonds of domination by resorting to any means recognised by
the international community.
3. All peoples shall have the right to the assistance of the states parties to
the present Charter in their liberation struggle against foreign domination,
be it political, economic or cultural.
164. The Complainants submit that the UN plebiscite was premised on certain
conditions, including the convening of a conference of equal representative
delegations from the Republic of Cameroon and Southern Cameroon to work
out the conditions for the transfer of sovereign powers to the future federation.
It is further submitted that such arrangements should have been approved by
the separate parliaments of the Republic of Cameroon and Southern
Cameroon before sovereignty was transferred to a single entity representing
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both sides. The Complainants submit that the results of the plebiscite were
never submitted to the parliament of the Southern Cameroon for approval.
165. The Respondent State did not respond to the allegations concerning “unlawful
annexation and colonialism.” It submitted instead that the issues are incapable
of adjudication by the Commission on account of its lack of jurisdiction.
166. The Respondent State contested further the claim that Southern
Cameroonians are a “separate and distinct people”. The Commission shall
examine this issue.
167. The Complainants reiterate that their “separate and distinct” identity is based
on the British administration over Southern Cameroon. They submit that they
speak the English language, and apply the common law legal tradition, as
opposed to the Francophone zone, where French is spoken and the civil law
system is applicable.
168. The Respondent State submitted that it does not dispute the basic historical
facts concerning the Trust administration, but denies that Southern
Cameroonians exist as a “people.” It states the following;
“ [t]he complainants raise in order to shore up this assertion the
use of the English language (working language), the specificity
of the legal system, of the educational system, of the system of
government, traditional cultures. In fact, the specificities of
former Southern Cameroons stem solely from the heritage of
British administration and the legacy of Anglo-Saxon culture. No
ethno-anthropological argument can be put forward to determine
the existence of a people of Southern Cameroons, the Southern
part being of the large Sawa cultural area, the northern part
being part of the Grass fields’ cultural area. Since 1961,
although some specificities had been preserved on more than
one aspect, there had been remarkable rapprochement at the
administrative and legal levels. The ‘separate and distinct
people’ thesis is no longer valid today.”
169. The Commission shall clarify its understanding of “peoples’ rights,” under the
African Charter. The Commission is aware the controversial nature of the
issue, due to the political connotation that it carries. That controversy is as old
as the Charter. The drafters of the Charter refrained deliberately from defining
it.18 To date, the concept has not been defined under international law.
18
See the Report of the Rapporteur of the OAU ministerial meeting on the draft African Charter on
Human and Peoples’ Rights held in Banjul, the Gambia, from 9 to 15 June 1980
(CAB/LEG/67/3/Draft Rapt. Rpt (II), p.4.
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However, there is recognition that certain objective features attributable to a
collective of individuals, may warrant them to be considered as “people”.
170. A group of international law experts commissioned by UNESCO to reflect on
the concept of “people” concluded that where a group of people manifest some
of the following characteristics; a common historical tradition, a racial or ethnic
identity, cultural homogeneity, linguistic unity, religious and ideological
affinities, territorial connection, and a common economic life, it may be
considered to be a “people.”. Such a group may also identify itself as a people,
by virtue of their consciousness that they are a people.19 This characterisation
does not bind the Commission but can only be used as a guide.
171. In the context of the African Charter, the notion of “people” is closely related to
collective rights. Collective rights enumerated under Articles 19 to 24 of the
Charter can be exercised by a people, bound together by their historical,
traditional, racial, ethnic, cultural, linguistic, religious, ideological, geographical,
economic identities and affinities, or other bonds. .
172. The drafters of the Charter provided for the protection of “peoples rights” under
the Charter. In his book, entitled; The Law of the African (Banjul) Charter on
Human and Peoples’ Rights, Justice Hassan B. Jallow,20 an eminent African
Jurist, who participated in the drafting the African Charter, sheds light on this
issue. He says that:
“[t]he concept of peoples’ rights, to which a whole chapter had
been devoted in the draft did not mean there was any grading of
rights. There were economic, social and cultural rights which
have particular importance to developing countries and which
together with civil rights and political rights in one
complementary whole should henceforth be give an important
place.”21
173. Justice Jallow cites the late President Leopold Sedar Senghor, the first
President of Senegal and an eminent African Statesman, who told the
inaugural meeting of African Legal Experts to draft the Charter, the following:
“People will perhaps expatiate for a long time upon the
‘People Rights’ we were very keen on referring to. We simply
meant, by so doing, to show our attachment to economic,
19
See the Final Report and Recommendations of the Meeting of Experts on extending of the debate
on the concept of “peoples’ rights” held in Paris, France, from 27 to 30 November 1989,(SHS89/CONF.602/COL.1) § 22.
20
Trafford Publishing, Canada 2007.
21
Hassan B. Jallow, ibid, page 28.
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social, and cultural rights, to collective rights in general, rights
which have a particular importance in our situation of a
developing country. We are certainly not drawing lines of
demarcation between the different categories of rights. We
want to show essentially that beside civil and political rights,
economic, social and cultural rights should henceforth be
given the important place they deserve. We wanted to lay
emphasis on the right to development and the other rights
which need the solidarity of our States to be fully met; the
right to peace and security, the right to a healthy
environment, right to participate in the equitable share of the
common heritage of mankind, the right to enjoy a fair
international economic order and, finally the right to natural
wealth and resources.”22
174. The African Commission has itself dealt with the issues of peoples’ rights
without defining the term “people” or “peoples’ right.” In its acclaimed Report of
the Working Group of Experts on Indigenous Populations/Communities,23 the
African Commission described its dilemma of defining the concepts in the
following terms:
“[d]espite its mandate to interpret all provisions of the African
Charter as per Article 45(3), the African Commission initially
shied away from interpreting the concept of ‘peoples’. The
African Charter itself does not define the concept. Initially the
African Commission did not feel at ease in developing rights
where there was little concrete international jurisprudence.
The ICCPR and the ICESR do not define ‘peoples’. It is
evident that the drafters of the African Charter intended to
distinguish between the traditional individual rights where the
sections preceding Article 17 make reference to “every
individual”. Article 18 serves as a break by referring to the
family. Article 19-24 make specific reference to “all peoples”
175. It continues:
“Given such specificity, it is surprising that the African
Charter fails to define “peoples” unless it was trusted that its
meaning could be discerned from the prevailing international
instruments and norms. Two conclusions can be drawn from
this. One, that the African Charter seeks to make provision
for a group or collective rights, that is, that set of rights that
22
Ibid page 29.
23
Report of
the African Commission’s Working Group of Experts
Populations/Communities, published jointly by the ACHPR/IWGIA 2005
on
Indigenous
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can conceivably be enjoyed only in a collective manner like
the right to self determination or independence or
sovereignty…”.24
176. The Commission deduces from the foregoing discourse that peoples’ rights are
equally important as are individual rights. They deserve, and must be given
protection. The minimum that can be said of peoples’ rights is that, each
member of the group carries with him/her the individual rights into the group,
on top of what the group enjoys in its collectivity, i.e. common rights which
benefit the community such as the right to development, peace, security, a
healthy environment, self determination, and the right to equitable share of
their resources.
177. It is in the light of the above that the Commission shall examine the allegations
against the Respondent State, concerning the violations of the collective rights
cited hereinabove.
178. The Commission states that after thorough analysis of the arguments and
literature, it finds that the people of Southern Cameroon can legitimately claim
to be a “people.” Besides the individual rights due to Southern Cameroon, they
have a distinct identity which attracts certain collective rights. The UNESCO
group of Experts report referred to hereinabove, states that for a collective of
individuals to constitute a “people” they need to manifest some, or all the
identified attributes. The Commission agrees with the Respondent State that a
“people” may manifest ethno- anthropological attributes. Ethno- anthropological
attributes may be added to the characteristics of a “people.” Such attributes are
necessary only when determining indigenology of a “people,” but cannot be
used as the only determinant factor to accord or deny the enjoyment or
protection of peoples’ rights. Was it the intention of the State Parties to rely on
ethno anthropological roots only to determine “peoples’ rights,” they would
have said so in the African Charter? As it is, the African Charter guarantees
equal protection to people on the continent, including other racial groups
whose ethno anthropological roots are not African.
179. Based on that reasoning, the Commission finds that “the people of Southern
Cameroon” qualify to be referred to as a “people” because they manifest
numerous characteristics and affinities, which include a common history,
linguistic tradition, territorial connection, and political outlook. More importantly
they identify themselves as a people with a separate and distinct identity.
Identity is an innate characteristic within a people. It is up to other external
people to recognise such existence, but not to deny it.
24
Ibid, at page 72-73, Part 3.4 Jurisprudence from the African Commission on Human and Peoples’
Rights, under Chapter 3; An analysis of the African Charter and its Jurisprudence on the Concept
of ‘Peoples’
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180. The Respondent State might not recognise such innate characteristics. That
shall not resolve the question of self identification of Southern Cameroonians.
It might actually postpone the solution to the problems in Southern Cameroon,
including those already highlighted hereinabove. The Respondent State
acknowledges that there have been problems created regularly by the
secessionist SCNC and SCAPO, in that part of its territory, which calls itself the
“Southern Cameroon”.
181. The Commission is aware that post colonial Africa has witnessed numerous
cases of domination of one group of people over others, either on the basis of
race, religion, or ethnicity, without such domination constituting colonialism in
the classical sense. Civil wars and internal conflicts on the continent are
testimony to that fact. It is incumbent on State Parties, therefore, whenever
faced with allegations of the nature contained in the present communication, to
address them rather than ignore them under the guise of sovereignty and
territorial integrity. Mechanisms such as the African Commission were
established to resolve disputes in an amicable and peaceful manner. If such
mechanisms are utilised in good faith, they can spare the continent valuable
human and material resources, otherwise lost due to conflicts fighting against
ethnic, religious domination or economic marginalisation.
182. The Commission shall address the question, whether the people of Southern
Cameroon are entitled to the right to self determination. In so doing it shall
contextualise the question by dealing, not with the 1961 UN Plebsicite, or the
1972 Unification, but rather the events of 1993 and 1994 on the constitutional
demands vis-à-vis the claim for the right to self determination of the Southern
Cameroonian people.
183. The Complainants allege that the 1993 Buea and 1994 Bamenda Anglophone
conferences submitted constitutional proposals, which were ignored by the
Respondent State. This forced the Complainants to conduct a signature
referendum of Southern Cameroonians in 1995, which endorsed separation.
184. The Complainants argued that the people of Southern Cameroon through the
1993, 1994 conferences, and the 1995 signature referendum, raised issues of
constitutional, political and economic marginalisation. They allege further that
the Constitution adopted by the Respondent State in December 1995 did not
address their appeals for autonomy. The Commission is of the view that these
complaints merit its determination.
185. The Complainants submit that the Respondent State’s refusal or failure to
address their grievances amounted to a violation of Article 20. They claim
therefore that they are entitled to exercise their right to self determination under
the Charter. The Respondent State responds that these grievances constitute
a secessionist agenda by SCNC and SCAPO. It denies that the Complainants
are entitled to exercise the right to self determination under Article 20.
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186. The Respondent State submitted that the Buea Declaration of 3 April 1993
recognised that the Southern Cameroonians had freely joined La Republique
du Cameroun in 1961, and further that the transition to a unitary state in 1972
was approved by both Francophones and Anglophones who voted 98.26% and
97.9% respectively through a national referendum. It states further that the so
called referendum of September 1995 by SCNC does not invalidate the 1972
data. The Respondent State doubts the accuracy of the referendum. It states
that:
“[s]ince 1996, the State of Cameroon is a unitary decentralised
State, adopted by members of parliament, including those from
the Anglophone part of the country. Legal instruments relating to
putting in place of the decentralised regional and local
authorities, …were enacted in July 2004’
187. The Respondent State argues further that:
“[t]he self determination of the “people” of Southern Cameroon,
following the logic of the Commission (cf per the Katanga case)
would be understandable where there are tangible evidence of
massive violations of human rights, and where there is evidence
ascertaining the refusal of the nationals of Southern Cameroon, the
right to take part in the management of public affairs of the State of
Cameroon. There is no such proof……….:
188. The Commission recalls that the Katangese had urged the Commission to
recognise the independence of Katanga. In reaching its decision in that case,
the Commission stated the following:
“The claim is brought under Article 20(1) of the African
Charter….There are no allegations of specific breaches of other
human rights apart from the claim of the denial of self
determination.
All peoples have a right to self determination. There may
however be controversy as to the definition of peoples and the
content of the right. The issue in this case is not self
determination for all Zaireoise as a people but specifically the
Katangese. Whether the Katangese consist of one or more
ethnic groups is, fore this purpose immaterial and no evidence
has been adduced to that effect.
The Commission believes that Self determination may be exercised
in any of the following ways: independence, self-government, local
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government, federalism, confederalism, unitarism or any form of
relations that accords with the wishes of the people but fully
cognisant of other recognised principles such as sovereignty and
territorial integrity”25
189. The Respondent State condemns the Complainants’ secessionist agenda. This
Commission stated in the Katangese case that, it;
“…. is obliged to uphold the sovereignty and territorial integrity of
Zaire, a member of the OAU and a party to the African Charter of
Human and peoples’ Rights.”
190. The Commission notes that the Republic of Cameroon is a party to the
Constitutive Act (and was a state party to the OAU Charter). It is a party to the
African Charter on Human and Peoples’ Rights as well. The Commission is
obliged to uphold the territorial integrity of the Respondent State. As a
consequence, the Commission cannot envisage, condone or encourage
secession, as a form of self-determination for the Southern Cameroons. That
will jeopardise the territorial integrity of the Republic of Cameroon.
191. The Commission states that secession is not the sole avenue open to
Southern Cameroonians to exercise the right to self determination.26 The
African Charter cannot be invoked by a complainant to threaten the
sovereignty and territorial integrity of a State party. The Commission has
however accepted that autonomy within a sovereign state, in the context of self
government, confederacy, or federation, while preserving territorial integrity of
a State party, can be exercised under the Charter. In their submission, the
Respondent State implicitly accepted that self determination may be
exercisable by the Complainants on condition that they establish cases of
massive violations of human rights, or denial of participation in public affairs.
192. The Complainants have submitted that the people of the Southern Cameroon
are marginalised, oppressed, and discriminated against to such an extent that
they demand to exert their right to self-determination.
193. The Respondent States submitted that the 1996 Constitution was adopted by
the National Assembly, which included representatives of the people of
Southern Cameroon. The Respondent State argues that, within the framework
of the 1996 Constitution, three laws on decentralisation, which “will enable
Cameroon to resume the development of local potentials,” were adopted by the
Parliament. The Respondent State submits further that since 2004 measures
are being taken to give more autonomy to regions. Whether the laws shall be
applied to address the concerns of South Cameroonians, will depend on the
goodwill of both sides.
25
26
th
Communication 75/92, 8 Annual Activity Report, §4.
See above para 185.
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194. The Commission has so far found that the Respondent has violated Articles 2,
4, 5, 6, 7, 11, and 19 of the Charter. It is the view of the Commission, however
that, in order for such violations to constitute the basis for the exercise of the
right to self determination under the African Charter, they must meet the test
set out in the Katanga case, that is, there must be:
“concrete evidence of violations of human rights to the point that
the territorial integrity of the State Party should be called to
question, coupled with the denial of the people, their right to
participate in the government as guaranteed by Article 13 (1).”
(emphasis added)
195. The Commission has already made a finding that Article 13 was not violated.
The Commission saw ample evidence that the people of Southern Cameroon
are represented in the National Assembly, at least through an opposition party,
the SDF. Information on the record suggests that there has been some form of
representation of the people of Southern Cameroon in the national institutions
prior to, and after 18 December 1989. The Complainants may not recognise
the representatives elected to the national institutions under the current
constitutional arrangement. The Respondent State on the other hand may not
share the same views or even recognise the SCNC and SCAPO as
representing a section of the people of Southern Cameroon.
196. The Complainants’ main complaint is that the people of Southern Cameroon
are denied equal status in the determination of national issues. They allege
that their constitutional demands have been ignored by the Respondent State.
In other words they assert their right to exist and hence the right to determine
their own political, and social economic affairs under Article 20(1).
197. The Commission is not convinced that the Respondent State violated Article 20
of the Charter. The Commission holds the view that when a Complainant seeks
to invoke Article 20 of the African Charter, it must satisfy the Commission that
the two conditions under Article 20(2), namely oppression and domination have
been met.
198. The Complainants have not demonstrated if these conditions have been met to
warrant invoking the right to self determination. The basic demands of the
SCNC and SCAPO as well as the two Anglophone Conferences, is the holding
of constitutional negotiations to address economic marginalisation, unequal
representation and access to economic benefits. Secession was the last option
after the demands of Buea and Bamenda Conferences were ignored by the
Respondent State.
199. Going by the Katanga decision, the right to self determination cannot be
exercised, in the absence of proof of massive violation of human rights under
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the Charter. The Respondent State holds the same view. The Commission
states that the various forms of governance or self determination such as
federalism, local government, unitarism, confederacy, and self government can
be exercised only subject to conformity with state sovereignty and territorial
integrity of a State party. It must take into account the popular will of the entire
population, exercised through democratic means, such as by way of a
referendum, or other means of creating national consensus. Such forms of
governance cannot be imposed on a State Party or a people by the African
Commission.
200. The African Commission finds that the people of Southern Cameroon cannot
engage in secession, except within the terms expressed hereinabove, since
secession is not recognised as a variant of the right to self determination within
the context of the African Charter.
201. The Commission, however, finds also that the Respondent State violated
various rights protected by the African Charter in respect of Southern
Cameroonians. It urges the Respondent State to address the grievances
expressed by the Southern Cameroonians through its democratic institutions.
The 1993 Buea and 1994 Bamenda Anglophone conferences raised
constitutional and human rights issues which have been a matter of concern to
a sizable section of the Southern Cameroonian population for quite a long time.
The demand for these rights has lead to civil unrest, demonstrations, arrests,
detention, and the deaths of various people, which culminated in the demand
for secession.
202. The Respondent State implicitly acknowledges the existence of this
unwelcome state of affairs. It is evident that the 1995 Constitution did not
address the Southern Cameroonians’ demands, particularly since it did not
accommodate the concerns expressed through the 1993 Buea Declaration and
1994 Bamenda Proclamation.
203. The Commission believes that the Southern Cameroonians’ grievances cannot
be resolved through secession but through a comprehensive national dialogue.
Alleged violation of Article 21
204. The Complainants allege violation of Article 21. They did not bring any
evidence to support their allegation. In the absence of any such evidence, the
Commission finds no violation against the Respondent State.
Alleged violation of Article 22
205. The Complainants alleged cases of economic marginalisation, and lack of
economic infrastructure. The lack of such resources, if proven would constitute
violation of the right to development under Article 22.
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206. The Commission is cognisant of the fact that the realisation of the right to
development is a big challenge to the Respondent State, as it is for State
Parties to the Charter, which are developing countries with scarce resources.
The Respondent State gave explanations and statistical data showing its
allocation of development resources in various socio-economic sectors. The
Respondent State is under obligation to invest its resources in the best way
possible to attain the progressive realization of the right to development, and
other economic, social and cultural rights. This may not reach all parts of its
territory to the satisfaction of all individuals and peoples, hence generating
grievances. This alone cannot be a basis for the finding of a violation. The
Commission does not a find a violation of Article 22.
Alleged violation of Article 23(1)
207. The Complainants did not substantiate their allegations on the violation under
Article 23(1) The Commission therefore finds that there was no violation of
article 23(1) of the Charter.
Alleged violation of Article 24
208. No evidence was brought to support the allegation that article 24 has been
violated. Consequently, the Commission finds no violation.
Alleged violation of Article 26.
209. The Complainants alleged violation of Article 26. They submitted that the
judiciary in the Respondent State is not independent. They allege that the
Executive branch influences the judiciary through the appointments,
promotions, or transfer policy. It is also alleged that the President of the
Republic convenes and presides over the Higher Judicial Council.
210. The Respondent State avers that judicial independence is guaranteed by the
Constitution. It states that Article 37 of the 1972 Constitution requires every
institution and person, including the President to respect it. The State argues
further that the Higher Judicial Council which is the appointing and disciplinary
authority for magistrates does not necessarily require magistrates to pledge
allegiance to the President. It concedes that the President of the Republic
chairs the Higher Judicial Council, the Minister for Justice, is the Vice
Chairperson, three members of Parliament, three members of the bench, and
an independent personality.
211. The Commission states that the doctrine of separation of powers requires the
three pillars of the state to exercise powers independently. The executive
branch must be seen to be separate from the judiciary, and parliament.
Likewise in order to guarantee its independence, the judiciary, must be seen to
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be independent from the executive and parliament. The admission by the
Respondent State that the President of the Republic, and the Minister
responsible for Justice are the Chairperson and Vice Chairperson of the Higher
Judicial Council respectively is manifest proof that the judiciary is not
independent.
212. The composition of the Higher Judicial Council by other members is not likely
to provide the necessary “checks and balance” against the Chairperson, who
happens to be the President of the Republic. The allegations by the
Complainants in this regard are therefore substantiated. The Commission does
not hesitate to find the Respondent State in violation of Article 26.
213. The complainants did not mention Article 1 among the provisions of the African
Charter alleged to have been violated by the respondent State. However,
according to its well established jurisprudence,27 the African Commission holds
that a violation of any other provision of the African Charter automatically
constitutes a violation of Article as it depicts a failure of the State Party concern
to adopt adequate measures to give effect to the provisions of the African
Charter. Thus, having found violations of several provisions in the above
analysis, the African Commission also finds that the Respondent State violated
Article 1.
214. For the above reasons, the African Commission:
− Finds that Articles 12, 13, 17(1), 20, 21, 22, 23(1) and 24 have not been
violated.
− Finds that the Republic of Cameroon has violated Articles 1, 2, 4, 5, 6,
7(1), 10, 11, 19 and 26 of the Charter.
RECOMMENDATIONS
215. The African Commission therefore recommends as follows;
1. That the Respondent State:
27
(I)
Abolishes all discriminatory practices against people of Northwest and
Southwest Cameroon, including equal usage of the English language in
business transactions;
(II)
Stops the transfer of accused persons from the Anglophone provinces for
trial in the Francophone provinces;
(III)
Ensures that every person facing criminal charges be tried under the
language he/she understands. In the alternative, the Respondent State must
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ensure that interpreters are employed in Courts to avoid jeopardising the
rights of accused persons;
(IV)
Locates national projects, equitably throughout the country, including
Northwest and Southwest Cameroon, in accordance with economic viability
as well as regional balance;
(V)
Pays compensation to companies in Northwest and Southwest Cameroon,
which suffered as a result of discriminatory treatment by banks;
(VI)
Enters into constructive dialogue with the Complainants, and in particular,
SCNC and SCAPO to resolve the constitutional issues, as well as
grievances which could threaten national unity; and
(VII)
Reforms the Higher Judicial Council, by ensuring that it is composed of
personalities other than the President of the Republic, the Minister for
Justice and other members of the Executive Branch.
2. To the Complainants, and SCNC and SCAPO in particular,
(i) to transform into political parties,
(ii) to abandon secessionism and engage in constructive dialogue with the
Respondent State on the Constitutional issues and grievances.
3. The African Commission places its good offices at the disposal of the parties to
mediate an amicable solution and to ensure the effective implementation of the
above recommendations.
4. The African Commission requests the Parties to report on the implementation of
the aforesaid recommendations within 180 days of the adoption of this decision by
the AU Assembly.
Done in Banjul, The Gambia at the 45th Ordinary Session, 13 - 27 May 2009.
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ANNEX 5: RESOLUTIONS ADOPTED DURING THE 45TH
ORDINARY SESSION
-
RESOLUTION ON THE ESTABLISHMENT OF AN
ADVISORY COMMITTEE ON BUDGETARY AND STAFF
MATTERS
-
RESOLUTION ON THE TRANSFORMATION OF THE
FOCAL POINT ON THE RIGHTS OF OLDER PERSONS
IN AFRICA INTO A WORKING GROUP ON THE RIGHTS
OF OLDER PERSONS AND PEOPLE WITH DISABILITIES
IN AFRICA
-
RESOLUTION ON COOPERATION BETWEEN THE
AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS AND THE AFRICAN COMMITTEE OF EXPERTS
ON THE RIGHTS AND WELFARE OF THE CHILD IN
AFRICA
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RESOLUTION ON THE ESTABLISHMENT OF AN ADVISORY
COMMITTEE ON BUDGETARY AND STAFF MATTERS
The African Commission on Human Peoples’ Rights (the African
Commission) meeting at its 45th Ordinary Session in Banjul, The Gambia
from 13 – 27 May 2009:
Conscious of its mandate under the African Charter on Human and Peoples’
Rights (the Charter) to promote and protect human & peoples’ rights in Africa;
Aware of the vital role of its Secretariat in ensuring the effective discharge of its
mandate and the importance of having an effective Secretariat;
Further conscious of the difficulties the Commission has had in the preparation,
presentation and execution of its budget, and desirous of facilitating its budgetary
preparation process;
Welcoming the decision of the Executive Council of the African Union to
strengthen the human resources capacity of the Commission through the
recruitment of 33 more staff over the next five years;
Recalling the decision at its 6th Extra Ordinary Session to establish an Advisory
Committee to work with the Secretariat to prepare the Programs budget of the
Commission;
Hereby resolves to:
a) Establish an Advisory Committee entitled “Advisory Committee on Budgetary
and Staff Matters”, with the following mandate:
(i)
To work with the Secretariat to identify activities from the 2008 – 2012
Strategic Plan of the ACHPR that would feature in the Commission’s
budget Proposals;
(ii) To work with the Secretariat to prepare the programs budget of the
Commission for presentation to the relevant Organs of the African Union;
(iii) To work with the Secretariat to ensure proper execution of the programs;
and
(iv) To work with the Secretariat on the implementation of the approved new
structure of the Secretariat of the Commission
b)
Appoint the following to the Committee:
(i) Commissioner Musa Ngary Bitaye
(ii) Commissioner Kaytesi Zainabou Sylvie
(iii) Commissioner Reine Alapini-Gansou
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(iv) the Secretary to the Commission (ex-officio)
(v) 1 Senior Legal Officer (ex-officio)
(vi) the Admin and Finance Officer (ex-officio)
Further resolves that:
a) The Advisory Committee shall work in conformity with these terms of
reference, the Rules of Procedure of the African Commission, the
provisions of the African Charter on Human and Peoples’ Rights and the
relevant African Union Rules and Regulations;
b) The Advisory Committee shall report at the Ordinary Sessions of the
Commission on the implementation of this Resolution;
c)
The Advisory Committee is established for an initial period of two years.
Done in Banjul, the Gambia on the 27th May 2009.
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RESOLUTION ON THE TRANSFORMATION OF THE FOCAL POINT ON THE
RIGHTS OF OLDER PERSONS IN AFRICA INTO A WORKING GROUP ON THE
RIGHTS OF OLDER PERSONS AND PEOPLE WITH DISABILITIES IN AFRICA
The African Commission on Human and Peoples' Rights (the African
Commission), meeting at its 45th Ordinary Session in Banjul, The Gambia, from 13
to 27 May, 2009:
Recalling its mandate to promote human and peoples’ rights and ensure their protection
in Africa under the African Charter on Human and Peoples’ Rights (the African Charter);
Bearing in mind the African Union Policy Framework and Plan of Action on Ageing in
which “States Parties recognized the fundamental rights of older persons and
committed themselves to abolish all forms of discrimination based on age," and also
committed themselves "To ensure that the rights of older persons are protected by
appropriate legislation, including the right to organize themselves in groups and the right
to representation in order to advance their interest;”
Recalling the Resolution of the African Commission of 30 May 2007 on the Rights of
Older Persons in Africa, adopted at its 41st Ordinary Session held from 16-30 May 2007,
in Accra, Ghana;
Recalling further its Resolution on the Appointment of a Focal Point on the Rights of
Older Persons in Africa, that was adopted at the 42nd Ordinary Session held from 15 - 28
November 2007, in Brazzaville, Republic of Congo;
Considering that its Resolution ACHPR/Res.118(XXXXII)07: RESOLUTION ON THE
ESTABLISHMENT AND APPOINTMENT OF A FOCAL POINT ON THE RIGHTS OF
OLDER PERSONS IN AFRICA, adopted during its 42nd Ordinary Session did not take
into consideration people with disabilities;
Considering that the African Charter makes specific provisions for the protection of
these rights, under Article 18(4), which stipulates that "The aged and the disabled shall
also have the right to special measures of protection in keeping with their physical or
moral needs;”
Considering further paragraph 20 of the Kigali Declaration, which "calls upon States
Parties to develop a Protocol on the protection of the rights of the elderly and people
with disabilities;"
Bearing in mind the mandate of the Focal Point which includes, among others,
“Spearheading the process of drafting a Protocol on the Rights of Older Persons for
submission to the AU Policy Organs for consideration and adoption as soon as
possible;”
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Appreciating the work of the Focal Point in advocating for a rights-based approach
towards protecting the rights of older persons;
Underscoring the need for a Working Group on the Rights of Older Persons and
People with Disabilities, as recommended by the members of the Focal Point, to
facilitate the process of drafting the Protocol on Ageing, and ensuring compliance by
States Parties with the recommendations contained in the AU Policy Framework and
Plan of Action on Ageing:
Hreby resolves to:
(a)
Establish a Working Group on the Rights of Older Persons and People with
Disabilities to replace the Focal Point for a two year period. The mandate of the
Working Group shall be:
i.
ii.
iii.
iv.
v.
vi.
(b)
To hold comprehensive brainstorming sessions to articulate the rights of
older persons and people with disabilities;
To draft a Concept Paper for consideration by the African Commission that
will serve as a basis for the adoption of the Draft Protocol on Ageing and
People with Disabilities;
To facilitate and expedite comparative research on the various aspects of
human rights of older persons and people with disabilities on the continent,
including their socio-economic rights;
To collect data on older persons and people with disabilities to ensure
proper mainstreaming of their rights in the policies and development
programmes of Member States;
Identify good practices to be replicated in Member States;
Submit a detailed Report to the African Commission at each Ordinary
Session.
Appoint the following persons as members of the Working Group:
i. Commissioner Yeung Kam John Yeung Sik Yuen (Chairperson);
ii. Commissioner Reine-Alapini Gansou (Member);
iii. Mr. Tavengwa Machekano Nhongo (Member);
iv. Mr. Papa Malick Fall (Member); and
v. Ms. Nadia Abdel-Wahab El-Afify (Member)
Done in Banjul, The Gambia, on 27 May 2009.
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RESOLUTION ON COOPERATION BETWEEN THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS AND THE AFRICAN COMMITTEE OF EXPERTS
ON THE RIGHTS AND WELFARE OF THE CHILD IN AFRICA
The African Commission on Human and Peoples’ Rights, meeting at its 45th
Ordinary Session held in Banjul, The Gambia, from 13 to 27 May 2009;
Considering Article 18(3) of the African Charter on Human and Peoples’ Rights; the
Protocol to the African Charter on the Rights of Women in Africa, in particular Articles
5,6,12, 13, 20 and 24; the African Charter on the Rights and Welfare of the Child; the
AU Declaration on an Africa Fit for Children, and the Solemn Declaration on Gender
Equality in Africa;
Recalling its Resolution No. ACHPR/Res.38 (XXV) 99, adopted at its 25th Ordinary
Session held from 26th April to 5th May 1999, in Bujumbura, Burundi, on the
Establishment of the Mechanism of the Special Rapporteur on the Rights of Women in
Africa;
Taking note of the important work achieved by this Mechanism since its establishment;
Considering that the Protocol to the African Charter on the Rights of Women in Africa
takes the situation of the girl child into account and complements the African Charter on
Human and Peoples’ Rights and the African Charter on the Rights and Welfare of the
Child;
Being aware that to date, the Special Mechanism on the Rights of Women in Africa
does not cover the Rights of the Child;
Concerned about the unremitting increase of serious violations against the rights of the
child in Africa;
Given the need to promote and protect the fundamental rights of the child in Africa
through enhanced cooperation between the African Commission and the African
Committee of Experts on the Rights and Welfare of the Child:
Hereby resolves to:
(a) Establish a formal relationship between the African Commission on Human and
Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of
the Child, with the view to enhancing cooperation between the two mechanisms;
(b) Designate the Special Rapporteur on the Rights of Women in Africa to
collaborate closely with the States parties, Intergovernmental organisations, and Non
Governmental Organisations working on the rights of the child in Africa;
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(c) Call upon the Special Rapporteur on the Rights of Women in Africa to Report on
the status of this cooperation during its Ordinary Sessions.
Done in Banjul, The Gambia 27 May 2009.