Commtinication 455,rt3 - Roseline Ezifiife Rasoloiioahangy r. The Reptihlic of
Madagascar
Summary oftheComplaint:
1. The Secretariat or the African Commission on Human and Peoples' Rights (the
Secretariat) receiveda Complaint on 2g August 20J3 from Nick Kaufman, an attolTlcy
(the Complainant), acting on behalf of Roseline Emma Rasolovoahangy (the Victim)
against the Republic of Madagascar (the Respondent State),a State Party to the African
Charter on Human ance Peoples' Rights (the African Charter).1
2. The Complainant submits that the Complaint concerns the impact or the clecision or
the Special Electoral Court/ Comr Elecfornle Syâcinle (CES) in the Respondent State
which annulled the Victim's candidacy for the next Presidential elections on the
grouncJ that she did not fulfill the residency requirement prescribed under Article5
o1 the Loi orgniiiqHc mo. 2012-OSS o/I A iigHsf 2012. Article5 requires any candicJate for
the office of the President, to physically reside on the territory of the Respondent State
for at least six months before the c4a}• of the deadline forthe submission ofapplications
ance be c4omiciled in the territory of the Responclent State on the filing crate of the
application. It is alleged that the candidacy of the Victim load initially been validated
and official1}• published by the CES on3 May 2013, and also that the first round ofthe
presidential elections had been fixed for 25 October 2013.
The Complainant alleges that on J2 August 2013, the Transitional President of the
Respondent State signed Ordinance No. 2013-002 permitting mocJification of Article9
of the Lot oignniqiie No. 2012-fiI5, thereby establishinga mechanism forchallenging
and reviewing approvecl candidates. The Corrlplainant contends that twu clays later,
three written challenges to the Victim's candidacy (the Petitions) were filed with the
Special Electoral Court/ Comm Elrcforn/e S ݎcinle ("CES") in the Responc4ent State,
alleging that she did not fulfill the residency rcquirement prcscribcd under Article5
of the Lot orgiJrii lfC two.2D72-075 of1 Airgust 20a 2.
‹. The Complainant further alleges that on 17 August 2013, before the Victim was even
aware of the aforementioned Petitions which were not properly served, anal thus,
without hearing any defence whatsoever, the CES ruled that leer canc4icJacy should be
annulled on the grounds that she dick not fulfill the necessary residency requirements.
The Victim allegedly receivecJ notice of the Petitions on 20 August 2013. It is also statecJ
that unlike the Victim, three other candidates who were similarly affected had the
opportunity to submit their cJefencc.
5. The Complainant avers that on 20 August 2013, the Victim through her local counsel,
submitteda request to the CES to revieo• its decision (having only received, earliei‘
1
The
Republic of Madagascar ratified the African Charter on Human andPeoplcs’ Rights on9
that day, notice of the Petitions) but that this request was summarily dismissecJ by the
CES on 21 August 2013, without any hearing on the submissions, ruling that the issues
raised in leer request/ petition load the status of res Jiirlicntn by vii tue of the CES'
clecisiori of 1.7 Aif gLiSt 201.3.
6. The Complainant alleges that the Respondent State, through the CES, iifiringeda
fundamental principle of natural JUSfice - namely, niidi nJterniii pnrfeiii — by makinga
decision without considering any defence arguments presented by theVictim, anc4 has
thereby denied the Victim the right to have her cause hearer under Aiticle 7(1)(a) of
the African Charter, and asa consequence, her right to pursue public office ance
directly participate in Government unc)er Article 13(1) of the African Charter.
7. The Complainant contencâs further that the CES' câecision of 17 August 20J3 was
flawed in that it misinterpretec4 the resicJency requirements contained) in the
Respondent’s
electoral law. He avers that the Victim's short trips abroad were rnac4c
in Hoc conduct ofher c)ailv business ancl that the residency requirements contained) in
the Respondent's electoral law cannot be interpreted in sucha wa$r it cuitails the
enjoyment ofanother universally accepted human right - namely theright to freedom
ofmovement, which incluc4es the right to leave and to return to one's own countr}• as
cnslarinecJ in Article 12(2) of the African Charter.
8. The Complainant further avers in his supplementary Observations submitted on 15
October 2013 that it had come totheVictim's attention that several candidates had
travelled beyond theborders of the Respondent State in the six month period prior to
registering their candidacy and) where not disqualified b)• the CES, which creates
serious c4oubts as to the impartiality of the CES in cJisqualifying the Victim cJcspite the
presentation of certified documentation testifying to her resic4ence in the Respondent
State.
9. The Complainant also claims to leave exlaaustec) local remedies before the judicial
system inthe Respondent State, since the câecisions were rendered bya unique and nrl
hoc chamber of thehighest court in the Respondent State (the CES) with no right of
appeal availed, and that the Complaint has been submitted within six (6) months of
exhaustion of local remedies.
Articles alleged to have been violated
10.The Complainant alleges violation of Articles 7(1) and 13(1) of the African Charter.
Prayers
Finch that the Respondent State has violated Articles 7(1) and 13(1) of the African
Charter;
ii.
iii.
Call upon theRespondent State to reinstate the Victim on the list of canc4idates fear
the Presidential elections of the 4th Government oftheRespondent State; anal
Adopt Provisional Measures whereby the Complainant would be immediately
reinstated asa presic4ential candiclate or, in the alternative, the election process
woulc4 be halted untila final decision of the Commission is rendered old the
Complaint.
Procedure
12. The Secretariat received Hue Complaint on 28 August 201.3 and acknowledged receipt
on 18 September 2013. By the same acknowleclgement letter, the Complainant was
informed that the Coimnission halt considered and decided not to grant the request
for Provisional Measures as it slid not meet therequired criteria under Rule 98 of its
Rules of Proceclure.
13. The Secretariat further received Supplementary Observations from theComplainant
on 15 October 2015 and acknowlecâged receipt of the same on 18October 2013.
14. During its 54t Ordinary Session, the Commission examined the Complaint anal
decic4ec4 to be seizecl thereof, ancl on 15 November 2013, the parties were notifiec4o
the Commission’s decision, with a request to the Complainant to file written
arguments ance eviclence on the Admissibility of the Communication within two
months ofnotification in terms of Rule 105(1) of the Rules of Procedure.
is On 02 April 2014, the parties were informed that the Complainant had failed to make
submissions on Admissibility within the deadline and that the Corrtmunication would)
be tabled for Strike-Out.
16. On 09 April 2014, the Complainant availecl proof of attempts to transmit submissions
on Admissibility within the deadline, which failed due to technological glitchcs
experiencec4 at the Secretariat. These proof as well as the Admissibility submissions
were duly tiansmittec4 to the Respondent State on 14 April 2014, witha request to
present its submissions on Ac4rnissibility within two months interms ofRule 10a(2) of
the Rules of Procedure. On Hue same date, both parties were also iifiormed that the
matter woulcJ proceed in line with the Rules of Procecâure of the Commission.
18.At its 56 ' Ordinary Session, the Commission observed that the Admissibility
submissions of the Respondent State were long overdue and decided to grant to the
lattera periocJ of 30 calendar days from thedate of notification thereof within which
tofile the written observations, failing which theCommission would proceec4 to adopt
a decision on Adrrrissibility. This decision was duly communicated toboth parties on
21 May 2015; however, theRespondent State failec4 to make therequired submissions
within the deadline or at all.
19. Furthermore, at its 18t1 Extra-Ordinary Session and 57'' Ordinary Session, the
Commission dcfcrred consicJeration of the Communication clue to time constraints
and both parties were duly informed of this decision.
20. At its 58tli Ordinary Session, the Commission considerec4 the Admissibility of tlac
Communication.
21.The Commission adopteda
decision on Admissibility at its 19't Extra-Ordinar}•
Session liclcâ from 16 to2s February 2016.
22. On 2 March 2016, the Parties were informed about the decision on admissibility. On
the same date, the Complainant was invited to forward her arguments on themerits
of the Communication within sixty (60) clays ol the notification in accordance with
Rule 108 (1) of the Commission's Rules of Procedure.
23.On 26 May 2016, the Complainant’s submissions on the Merits were received at the
Secretariat.
24. On 6 June 2016 theSecretariat transmittec4 to the Respondent State the Complainant’s
submission on the Merits ance invited it to forward its written submissions on the
Merits within sixty (60) days ofthenotification in accordance with Rule 108 (1) of the
Rule of the Procec4ure of the African Commission on Human andPeoples' Rights.
On 28 November 2016, the Secretariat reminded theRespondent State that its written
observations on the Complainant’s observations was long overdue ance iifiormed the
parties that the Respondent State had been granted an extension or thirty (30) dc3ys
within which it was asked to make submissions of its overdue submissions on the
Merits, failing to o•hich the Commission would proceed to adopta decision if the
said observations were notreceived within the indicated period.
26. On 18 June 2018, the Secretariat informed the parties that the deadline for the
Respondent State's submissions on the Merits expired on 27 December 2t)16 ance that
the Commission would proceed toa câecision on the Merits on the basis of the
it o•ithin the timelines stipulated in its Rules of
4
Complainant's Submission on Admissibility
27.The Complainant suñrnits that fhe present Commrinicafion satisfies all the
Admissibility requirements setout in Article 56 of the African Charter and presents
arguments and evidence in support of that submission.
28.The Complainant submits that the Communication: clearly indicates its author;
delineates the provisions of the Charter which have been violated; is drafted ina
respectful manner; and is not based on media reports but on the documentary
evidence annexed thereto; as requirecJ respectively under Articles 56 (1), (2), (.3) and
(4) or the African Charter.
29. As regards Article 56(5), the Complainant submits that local remedies have been
exliaustecl as the impugned decisions were rendered bya unique and nJ hocchamber
ofthehighest court in Madagascar, being the CES. He also avers that there is no right
of appeal from theCES and thata request for reconsideration has been reJected ina
fashion which would prevent aclc4itional recourse to the same court or any other court.
In relation to Article 56 (6) of the African Charter, the Complainant submits that the
CoiTimunication has been submittecl ina timely manner. The Complainant states that
the Communication hasbeen filed within the shortest time possible given the need to
instruct international counsel familiar with theworkings oftheCommission.
On Ai'tic1e 56 (7) of the African Charter, he submits that the Communication does not
deal with issues which have been previously settled under other regional or
international dispute resolution mechanisms.
The Commission's Analysis on Admissibility
32.Article 56 of the African Charter sets out seven requirements thata Communication
brought under Article 5b of the African Charter must satisfy in orc4er to be Admissible
for consideration by the Commission. Those requirements apply conjunctively and
cumu1ative1y.2 Failure to satisfy any one or more ofthose requirements renclers the
Communication inadmissible.*
33. The Complainant proffers arguments and documentary evidence in support of his
submission that the present Communication satisfies all the requirements for
Admissibility in Article 56 of the African Charter.
.34. The Respondent State has not made anysubmission on Admissibility despite repeated
requests addressed toit in that regard.* In the present circumstances, the Commission
regrettably, will have no option but toproceed toits analysis and determination of the
Admissibility of the Communication on thebasis of the information at its disposal, in
accordance with its practice.
35. This position was enunciated in Bastille for Hxman Rights and Det elopmenf ittA fricn
(on behalfof Esmaila ConnatehG 13 others)v Angola*, where theCommission stated that
in situations wherea State Party fails to address itself to the complaint filed against it,
the Commission 'has no option than to proceed with its consideration of the
Communication inaccordance with its Rules of Procedure'.6 In the same decision, the
Commission re-affñmed its position by holding that”... it would proceed toconsider
Communications on thebasis of the submission oftheComplainants and information
at its disposal, even if the State fails to submit.”7
36.Accordingly, the Commission must give due weight totheComplainant's allegations
insofar as these have been adequately substantiated, and hereby undertakes the
following analysis on Admissibility on the basis of the information supplied by the
Complainant.
37.The Commission would also like to emphasize that the absence ofa reaction from the
Respondent State does not absolve it from thedecision that it may arrive at in the
consideration of the Admissibility of this Communication, as therelevant State had,
by ratifying the African Charter, indicated its commitment to cooperate with the
Commission and toabide by all decisions taken by the latter.°
38. Consequent totheabove and intheabsence of any submissions from theRespondent
State, the Commission after carefully examining the information provided by the
Complainant is convinced that all the requirements under Article 56 have been
complied with: the author has been indicated, being Roseline Emma Rasolovoahangy,
represented by attorney - Nick Kaufman; theCommunication is compatible with the
provisions of the Charter and the Constitutive act of the African Union as it alleges
violations of specific, enumerated provisions of the African Charter bya State Party,
being the Respondent State, acting through its agent - the CES, and falls within the
purview of the personal, material, temporal and territorial jurisdiction of the
Commission; it is not written in disparaging or insulting language considering the
interpretation given in this regard by the Commission inits jurisprudence9; it is not
5
Communication 292/04,para. 34; This was also the position of the Commission inCommunication 159/1996:
Union Inter Africaine des Droits de l'Homme, Federation Internationale des Ligues des Droits de l'Homme,
Rencontre Africaine des Droits de l'Homme, Organisation Nationale des Droits de l'Homme au Sénégal and
Association Malienne des Droits de l'Homme v Republic of Angola; CommunicaÔon 276/03: Centre for
Minority Rights Development (Kenya) and Minority Rights Group (onbehalf of Endorois Welfare Council) v
Kenya.
6 Communication 292/04 above, para. 34
As above.
See Communication 227/99 - Démocratie Republic o/ Congo vs. Btirxndi, Ruinndn, Llganda (2003) ACHPR, paras
° Communication 284/03 - Zimbabwe Lawyers forHuman Rights& Associated Newspapers of
Zimbabwe (2009) ACHPR, paras 83-97& Communication 268/03 -Ilesanmi/Nigeria (2005) ACI
40.
ltd
•p s
exclusively based on news disseminated through themass media buton alleged facts
directly affecting the Victim as well as her affidavits and supporting documentary
evidence*0; local remedies have been exhausted as outlined in our analysis below; the
Communication was submitted withina reasonable time - being within seven (7) days
after local remedies were exhausted; and the Communication has not been settled
through other international procedures, as duly indicated by the Complainant.
39. Regarding the exhaustion of local remedies in particular, the Complainant has
explained, with evidence adduced, that the Victim had applied fora review of CES'
decision of 17 August 2013 but that this request was summarily dismissed by the CES
without any hearing on the submissions, ruling that the issues raised in her
application had the status of res judicata by virtue of the CES' decision of 17 August
2013, thus rendering it impossible to have additional recourse to the same court or any
other court. It has also been pointed out that the CES isa unique and nd hocchamber
oftheSupreme Court which is the highest court in the Respondent State, with no right
of appeal against its decisions.11 In this regard, he cited Decision No. ll-HCC/ D3 of
28August 2013, where ina similar case, the High Constitutional Court ofMadagascar
stated that it cannot setitself up as court of second instance in relation to the Special
Electoral Court.*2
40. The Commission notes that the above assertions are supported by information
available in the public domain regarding thejudicial/court system oftheRespondent
State.13
41. The Commission has held that “the generally accepted meaning oflocal remedies, n›hich
musl be ezhotfsfed prior to any communication/complaint procedure before the African
Commission, are theDrdinanJ remedies Dfcommon lain that exist in jurisdictions and normally
accessible to people seeking justice” 4, and that “the internal remedy [to] n›liich article S6{S)
refers entails remedy soxghi com courts ofa judicial nature...”!5 Furthermore, the
Commission's Information Sheet No. 5*6, also states that ” t]lie author [ofa
CommunicafionJ must hai›e laken the rmtter toall the available domestic legal remedies. T/iaf
is, M or she must Use taken fhe case to the higJiest coHrf of th land.” The Commission has
'° See Communication 147/95& 149/96 - DawdaK Jawara vs.The Gambia (2000) ACHPR, paras 23-27.
15 of the Complaint; paras 10& 35 above.
2 Décision n°1 I-HCC/D3 du 28aoiit 2013, referenced in footnote 12,page3 oftheComplaint.
See information on Madagascar courts at http://comrava.com/MadagascarCourts.html, and the text of the
I* Paras 14&
Decision No. II-I-ICC/ D3 of 28 August 2015 at http://www.hcc.gov.mg/decisions/d3/decision-n-11-hccd3du-28-aout-2013-concernant-une-demande-pour-annu1ation-et-sursis-a-execution-de-la-decisioninconstitutionnelle-de-la-cour-electora1e-speciale/.
also maintaincd that sucha ierrlecây must not be suborclinated to the discretionary
power ofpublic authorities. 7
42. In view ofall the above, the Commission notes that the disputed decision was taken
by CES which isa chamber of theSupreme Court which is the highest court in the
Respondent State, with no right of appeal against its decisions, and therefore considers
that there were no other remedies left to be exhausted. Consequently, the Commission
holds that local remedies were duly exhausted.
Decision of the Commission on Admissibility
43.Inview oftheabove, the African Commission on Human andPeoples' Rights:
i.
Declares this Communication Admissible in accordance with Article 56 of
the African Charter;
Merits
Complainant's Submission on the Merits
Alleged violation of article7 (1) of the Charter
44.The Complainant submits that, by issuing its first decision without hearing any
submissions whatsoever from thecomplainant, the Republic of Madagascar, through
the Coiir ElccfOJ’n/P 8|1CClRlc’ (CES), iiUringec4a funcâainental principle of natural justice;
namely aiidi nlterni pnrtenl; therefore, violating its obligations under article 7(1) of the
charter.
45. Specifically, the complainant argues that, at least three written challenges to the
complainant's candidacy to the presidential election were filed in the Special Court/
7
Communication 48/90 - Anuiesty Ilaternational v Su clan, 50/ 91 Conlité Loosli Bachelard v Sud ;’5ñ/ I ’’ -,
Lawyers Committee forHu man Rightsv Sudan, 89/93 Association of Members oftheEpiscopal Col(etei1ce oL-
8
Cour Eiecforal Speciale (CES) in Madagascar alleging that she did not fulfill the
residency requirement as described under article5 of the Lot organique no. 2012-015 of
1 August 2012. This article requires any presidential candidate to physically reside in
the territory of the Republic ofMadagascar foratleast6 months before the submission
of the application and be domiciliated on the territory of the Republic of Madagascar
on thefiling date of the application."
46. The complainant alleges that CES considered the written challenge which, inher view,
“were not properly served” and annulled the Complainant's candidacy “without
hearing any defence whatsoever”. The Complainant submits that, subsequent to this
decision, she submitteda request for review ofthis decision to the same court through
herlocal council, but her request was rejected in Jimine.
47. In the view ofthecomplainant, in so doing, the important duty ofthetribunal to hear
submission froma party that is ingyained in most democratic system was violated.
48. In support of her arguments, the complainant contends that, the breach of this basic
principle of natural justice is clearly evidenced by “the fact that the first impugned
decision of the CES makes no mention of any defense arguments presented by the
complainant”. The complainant avers that this was not the case for the other three
candidates who submitted their “mémoire en defense”: The Complainant adds that she
was not properly served with the documents issued by the Registry of the CES
regarding the three petitions filed about her candidacy.
Alleged violation of article 13 (1) of the Charter
49.The Complainant further submits that her right to directly participate in the
Government was violated.
50. In support ofher argument, theapplicant avers that, in its first decision on the merits,
the CES's misinterpreted the residency requirement contained in article5 (1) of the Loi
organique No. 2012-015 of August 2012. The complainant submits that the expression
“résider phJsiquement sur Ie territoire de la Eépublique» (physically reside on the territory
of the Republic) “cannot entail actual continuous residence without allowing for
sporadic short trips abroad”.
51.Inherview, if this is the intention of this provision of the electoral law, the latter would
violate the right to freedom ofmovement that is enshrined in different international
instruments including the African Charter on Human andPeoples' Rights*°, the
" Article5 of the 1.oi organique no. 2012-015 of1 August 2012 reads as follows:
« Tout candidat aux fonctions äu premier Président de in Quatriètne Réptibfique, outre les conditions prévuesà l'article
46 de la Constitution, doit: 1. résider p/tysiqtienienf star le territoire de la République de Madagascar depuis mi moins six
iitois avant le yotir de la date limite fixée pour le dépôt des candidalres efêtredoiücilié sur le territoire Je la Republique
de Madagascar an your du dépât du dossier de candidature»
.. .,
'9 seearticle 12(2) of the African Charter on Human andPeople's ghts "
• -
Universal Declaration on Human and People's Riglits2 and the International
Covenant on Civil and Political Riglats2. To this end, the complainant further states
that the residency requirements of Madagascar's electoral code should be intei reted
ina way that cannot affect the enJoyment Ofa universally protected right such as Hoc
right to directly participate in Government.
52.The complainant alleges that, as senior representative ofa large commercial enterprise
Petroinad Mauritius Ltd, she is obliged to carry out international travels. She avers
that, in such circumstances, to den her to run forthe Presidency office because ofher
successful business career isa discouraging fact to the citizens of Mac4agascar morn
engaging with theinternational community. The Complaint insists that, interpreting
the requirement ofarticle 5(1) as resic4ing “continually and from day today” coiUlicts
with the treaty law that Madagascar is found to. In her view, the only reasonable
interpretation which cannot raise such conflict, is “habitual residence”.
Additional submissions by the Complainant
ss Its her additional submissions, the Complainant avers that, it 1aac4 come toherattention
that some ofthepresidential candidates who were not disqualified by the CES load
travelled in the 6 months prior to their registration to the candicâacy for t1c
presidential elections.
54 The complainant adds that amongst thedocuments which were submittecJ to the CES
in the appeal against the rejection of the Complainant’s candidacy, there was a
certified document testifying that she was residing in the Republic of Madagascar
signed by the Chief of her administrative zone called Folroiifnny. She insists that, in
accordance with the Malagasy law, this document comprises “binding anal
conclusive” proof that she was physically resident in Madagascar forthesixmonths
prior to the presidential election process.
Submissions of the Respondent States on the Merits
55 As it appears from theprocedure, the Respondent State did not make anyobservations
on the Complainant’s allegations despite the timeline which was allocated to them in
accordance with theprovisions of the Commission’s Rules of Procedure.
Analysis of the Commission on theMerits
nose zc ofsiiLn missions of///r Respondent Stnte
56. In the absence of submissions by the Respondent State, the Commission is called to
c4etermine the way forward in such situations. The Commission does not have any
choice other than toprocess the analysis of the communication on merits based on the
2
'
' Article 13(2) of theU ii ivcrsal Declaration of Human Rights ¿
Article 12 (3) of the lntei'natioiia1 Covenant on Civil and Politi a1 Ri
s“
submissions of the Complainant. This is in accordance with its practice developed in
many ofits previous communications.
In theCommunication Social «nd Economic Rights Action Center (SERAC)andCenterfor
Economic and Social Rights (CESS)/Nigeria, the Commission underpinned this position.
[It] stated that in circumstances where there is absence of submissions by the
Respondent State, “the [African] Commission is compelled to proceed with the
examination of the matter on the basis of the unconfested allegations of the
Complainants, which areconsequently accepted by the [African] Commission” .
The same position was adopted inthe communication fnsfifufe /or Hum«n Rights nnd
Deiielopnient in Africa/Angola. In this communication, theCommission considered that
“in the face of the State's failure to address itself to the complaint filed against it, the
African Commission has no option but to proceed with its consideration of the
Communication inaccordance with its Rules of Procedure” . Therefore, it is in the
strict compliance of this well-established tradition that the Commission is obliged to
carry on with the examination of the matter based on the allegations of the
Complainant.
59.Hence, having closely analysed the submissions of the Complainant on themerits, the
Commission proceeds toanalyse the arguments and evidence she provides in support
of her submissions in order to establish whether there has beena violation of the
provisions of the Charter, as claimed by the Complainant.
Alleged violation of article7 (1)
60. The Complainant alleges the violation of article7 (1) of the African Charter in its first
part which provides that:
“EvenJ individual sluill linve th right to linve lits cause lv:ord. Tltis comprises.’ (a) the rig/ii to
an appeal to competent national organs ngoixsi crfs of i›ioIating his fundnnuntnl rigltfs us
recognized andguariinleed by conventions, loios, regulations and ctistoms inforce”.
This provision protects the right of everyone to have hiscause heard through
theright to appeal to competent national organs.
61. This right includes both the initial right to seizea court witha matter, as well as the
right to appeal froma first instance decision to higher tribunals. The concept of the
right to appeal needs to be understood ina broad sense. As the Commission already
indicated, the guarantees in Article7 (1) extend beyond hearings in the normal context
of judicial determination or proceedings24. In fact, it embraces the administration of
22
Communication 155/96 -The Social and Economic Rights Action Center (SERAC) and Centerfor Economic aitd
Socini Rigiils (CESR)/ Nigeria (SERAC case) (2001) ACHPR para 49
Communication 292/04 - irisfiIxfe/or Human Rights and Deoelopinexf
(2008) ACHPR para
34.
24
Communication 24 1/01 - Purobit and Moore v. Gambia (2003) ACHP
ii
thejustice. The latter must be ina way that achieves fairness for all, regardless of the
identity of the parties to the proceedings or the nature of the proceeding themselves .
62. The administration of the justice should be ina fashion that offers an opportunity for
all to challenge any violation of human rights before competent jurisdictions. In many
instances, the Commission have ruled on the incompetent jurisdictions. For example,
in the communication Constitutional Righls Project, Civil Liberties Organisation and
Media Rights Agenda v Nigeria, the Commission underlined that to havea duly
instituted court case in the process of litigation nullified by executive decree forecloses
all possibility of jurisdiction being exercised by competent nationalorgans26,
63.The guarantees protected under article7 (1) implies also that Courts must consider
and respect the submissions of the parties in their decisions. In the Communication
Malaitii Africa Association, AmneshJ /xiernahonaf, Ms 5arr Drop, Union interafricaine des
droits de 1'Homme and RADDHO, Colleclif des veuves ct ayonfsDroii, Associnñon
maurilanienne des droiis de I'Homme c. Mauritania, the commission concluded that there
was a violation of article 7(1)(a) because the Court did not consider all the elements of
thefact and law. [It] concluded as follows:
“From all indications, the Court of Appeal simply confirmed the sentences
without considering all the elements of fact and law. Sucha practice cannot be
considereda genuine appeal procedure. For an appeal to be effective, the
appellate jurisdiction must, objectively and impartially, consider both the
elements of fact and law that are brought before it. Since this approach was not
followed in the cases under consideration, the Commission considers,
consequently, that there was a violation of Article 7(1)(a) of the Charter”27.
64. Another important aspect of the guarantees under article7 (1) is the right to the
execution ofa judgement. The Commission indicated in the communication Antoine
Bissangouv Coxgo that “itwould be inconceivable for this article to grant the right for
an individual to bring an appeal before all the national courts in relation to any act
violating the fundamental rights without guaranteeing the execution of judicial
rulings” . Hence, the right to have someone's cause heard include the right to the
execution of the judgement. The former would remain unguaranteed if the decisions
taken by Courts and Tribunals do not produce any effects.
65. In all, States party to the African Charter have an obligation to adopt necessary
legislation or other measures togive effect to these aspects of the right of an individual
25
United Nations Counter- Terrorism Implementation Task Force, Basic Human Rights Reference Guide.’ Rights to a fair
Trial and Due Process in the Context of Countering Terrorism, New York, 201 5,page9
26
Communication 140/94-141/94-145/95 - Constitutional Rights Proyecf, Cirif Liberties Organisation mid Media
RightsA genélav Nigeriri (1999) ACHPR para 43
27
Communication 54/91-61/91 -96/93-98/93-164/97- 196/97-210/98 - Malawi Africa Association, Amnesty International,
Ms 3arr Drop, Union interafricaine des droits de l'Homme and RADDHO,C
c¡ifde veqv esetayantsDroit, Association
mauritanienne des droits de l'Homme c. Mauritania f2000) para 94
' Communication 253/02 - Antoine Bissangouv Congo (2006) ACHP pâra
to leave his/her cause heard. States must ensure that the acârninistration of justice is
fashioned ina way that it cannot discriminate whoever wants touse it; they shoulcJ
also ensure that an opportunity to use competent jurisc4iction is given to all and that
their judgements are effectively implemented. Failure of this means they iifiringe
article7 (1)
66. In the present communication, thefactual issue brought before the Commission is the
alleged misinterpretation mac)e by Cotirl El€Cto nl 5pGCl8l (CES) of the residenc}•
iequirement under article 5(1) of the Lot organ‹qiic No. 2012- 015 n/1 Aogosf 2012. In
other words, the issue raiscc4 by the Complainant is to know whether theCES diet not
misinterpret the residency requirement in accordance with article 5(I) of the
abovementioned Lotorgniiique. The Complainant submits that the formula « rrsider
)liJsiquciiienI siri l‹• ferJ thorn' dc lv Rfipiibl‹qiie » Hoes not entaila continuous residency in
the country without sporadic short trips abroad.
67.It is not for the commission todeal with alleged errors of interpretation committed b;•
national courts. The Commission is, indeed, nota court for appeal ance, therefore,
cannot question an assessment made bya national court unless its finc4ings are
manifestly or arbitrary unreasonable. The European Court ofHuiiian Rights acâopted
the same position in the case of Plntnkoii i›G recce inc4icating that it is not its task to take
the place of the cJomestic courts and that it is primarily for the national authorities,
notably the courts, to resolve problems ofinterpretation of domestic legislation2'.
68. Similarly, ina more recent case of Ziibac t›. Croatin, the same court came back to this
observation in insisting that its role is not to solve c4isputes over the interpretation of
domestic law {...] but rather to ascertain whether theeffects of such an interpretation
are compatible with the Convention.** It is in the respect of this practice that the
Commission cannot engage intheinterpretation of the requirement ofa Malagasy law.
69. On the contrary, the main issue here is to assess whether theprocess used by theCES
to reach its findings did respect the right to have the complainant's cause heard in
compliance with the requirements of article7 (1). In other words, the commission’s
task is to ascertain whether the proceedings in their entirety were fair within the
meaning ofarticle 7(1). Specifically, the Complainant avers that the CES decic4ec) to
reject leer candidacy without being informed ofthechallenges which were iormulatecJ
against leer and without being heard in any c4cfense whatsoever. Unc4er these
circumstances, the commission’s task is limitec4 to the assessment as to whether this
decision was obtained thougha fair hearing.
70. The commission recalls that one of the essential elements ofa fair hearing is the
equality of arms between theparties toa proceeding, whether they are acJministrative,
civil, criminal, or military*. A fair hearing also calls for an acJequate opportunity tti
preparea case, present arguments, and evidence and to challenge or responc4 tti
opposing arguments or evidence.**
71. In this regarcl, the commission considers the right to submit the observations by the
parties toa trial as one of the func4amental aspects of the right to fair trial. In fact, the
right toa fair trial includes the right to leave one's cause hearer, to be iifiormec4 of the
ieasons and seek appropriate remedy**. The commission is convinced that an
appropriate remedy cannot be found if the parties to the trial are not given an
opportunity to submit and express their views on theallegations. It is through cial or
written submissions that the parties can present their arguments ance evidence and,
therefore, challenge or respond totheallegations or evidence of the opposing party.
72. The practice of the commission is clear on this position. In the case of Kc•imetli Coorli
R‹•ytihlic of Botsn!nnn, the Commission revealed that 'wheie it receives submissions
from one party, it sends the same totheother party for their comments. Thus, even if
the parties make submissions atthesame time, the other party is not prejudiced in an›°
way because they aic still given an opportunity toresponc4 to the submissions be1ore
the Commission canrrlakea determination”*^
Under these circumstances, the commission reiterates the generally accepted) principle
of natural justice under which all parties must be givena reasonable opportunity to
present their case properly. One of its components is that tlac parties toa trial shoulcJ
be given an opportunity of being heard and the right to present their case and
evidence. The starting point or this principle is the right to notice or information about
thecontent ance the formulations or the allegations involved in the matter. It is indeed
through the notice or information that the parties are able to organize their defense.
74. The Commission also believes that the information or notice cannot produce necessary
effects if it is not adequately provicJed. In particular, the notice should) be ernbec4c4ed
with all the essential iifiormation anal materials to enable the recipient to preparea
relevant clefense. The timeline of the notice is also an important element to enablea
goocâ c)cfensc as the parties neecJ to be given cnough time toreach the notice, to prepare
the defense accordingly and submit it to the involved juc4icic3l body. The Commission
is ml the view that time for the notice slaoulcJ not prevent thc litigants fi orn using
available remec4y.
This is in linc with theprinciple of equality of arms asthemain feature of the concept
ofa fair trial. Indeed, in this judgement Quiz-Inieos i›. Syaiii, the European Court of
Human Rights indicated that this principle of equity of anus includes the funcJamental
right that proceeciing should be ac)versaria1**. The right to an p(Jjrcrsarial trial means
“the opportunity for the parties to have knowledge of and comment on the
observations field or eviclence adduced by theother parties”*^. Therefore, in the view
of the commission, the essence of this principle is to ensure that the other party is
aware of the allegations submitted against him/her and is given an opportunity to
make necessary observations on them.
76.The principle of equality of arms applies to any kind of litigation including those
where private interests are opposed. This was assessed by the European Court of
Human Rights in the case of Ankerlr Sri ifze/ond. In this case, the ECHR inc)icated that
in such instances, "equality of arms" implies “that each party must be affordeda
reasonable opportunity to present his case - including his evidence -under conclitioils
that do not place him ata substantial disadvantage vis-a-vis his opponent 37
77.
Inthepresent communication, theComplainant alleges that whilst she was not even
aware ofthepetitions which were filed against her, the CES ruled that her canc)idacy
should be disqualified. As claimec4 by the Complainant, the Commission notes that
the official notice of these petitions against her before the CES were given to leer the
same day shewas informed about her rejection from thelist of the candidates. This is
contrary to the spirit of the right of everyone to have his/leer cause hearer. In
accordance with this right, in addition to the right to be informed about the
allegations, the Complainant had the right to be given enough time to prepare anal
submit her defense. This was not the case in this instance.
78. The Commission finds that there is nothing in the iifiormation at its disposal to
indicate that the Complainant was informed about the petitions and their content in
accordance with the requirement of the principle of equality of arms. It also results
from thesubmissions of the complainant, that the latter requested fora review of this
decision but that the CEO rejected this request. Considering all these circumstances,
the Commission observes that the Complainant was not given an opportunity to
present her case and necessary evidence.
This leacls us to conclude that the Respondent has violated article 7(1)(a) of the
Charter.
Alleged violation of article 15 (1)
80. The Complainant submits that the Respondent State violated article 13(1) of the
Charter which reads as follows: “Ei cry citizen slinll mute the i ight to ynrtlClpnte freely iii
his’ goi›erniiient of Iris coiinti“y, eilliei’ dirr'ctly oi“ tIH“oiigli fi“er’ly cIiosc'n reyi“r’sentntii›es iii
neeordnnce icif/i f/ie proi›isioii of the lnw”. This article protects the right to participate in
the government ofone's country. As the Commission indicated in the Communication
Gnbriel Sliiiiiibn nnd Others (Represented bJ Lnn›yers for Huninn Rights)i . Tlic Reyiihlic of
Ziiiibnbiuc, this right is important inthat it forms an integral part of democrat, sucha
'
lbidcrn. See also Dlrind.si‹•iiei !.A itemi i (I 991) ECIIR (Application no.11 170/84;I 2876/8.7:I 3468/8
'7 litter’/ v. Switzc•rland (l 996) ECHR (Application no.17748/9.1) par
a 8.
3›
ara6fi
State cannot be considereda democracy if it does not guarantee the right of its citizens
to participate in the government through free and fair elections."
81. Reading through Hue lines of the provision of article 1.3 (1), it can be noted that this
right comprises oftwo subsequent rights namely: 1)the right to bc elected, and 2) the
right to elect. Specifically, as the commission already inc4icated, the right to c4irectly
participate in government refers to the right of citizens to stand asa cancJidate for
elections, whereas theright to participate through freely chosen representatives refers
to the right of citizens to vote in elections". In this particular instance, the
Complainant alleges that asa result o2 the CES decision, she eras clenied the right to
pursue public office, and therefore, the right to participate in the government of her
country through election.
82. Under these circumstances, the Commission is ca11ec1 to e1Ltcidate whether the
amendment oftheLotorgnniyie No 2012-015 of August 2012, establishing therebya
mechanism forchallenging and revicwing'approved candidates is not in contrac)iction
with or violates article 13 (1) of the Charter. The Commission is of the view that, like
other rights and freedoms enshrined in the Charter, the right to participate in elections
can be limited by national law in accordance with article 27 (2) of the Charter which
indicates that the rights and freedoms ofeach individual shall be exercised with due
regards to the rights of others, collective security, morality and common interest.
However, as the Commission already indicated in Communication Aiiiiic•stJ
iitrrnntionali Zniiibin, the “claw-back” clauses must not be interpreted against the
principles of the Charter; recourse to them should not be used asa means ofgiving
credence to violation of express provisions of the Charter.^°
83. The African Court on Human andPeoples' Rights expressed the same view indct.
Christopher Mtikiln i›. United Reyiihlic of Taiiznuin. The Court indicated that the
limitations set out in Article 27 (2) of the Charter must take the form oflaw and that
such limitations have tobe proportionate to the legitimate aim pursue g4l The General
Comment no 25oftheHuman Rights Committee towhich theCommission is entitled
to draw inspiration from when interpreting the Charter in accordance with article 60
and 61 of the Charter is also very clear on this point. While interpreting article 25 or
the International Covenant on Civil and Political Rights on the right to participate in
public affairs, voting rights and the right to ecjual access to public service, thc
Committee indicated that any restrictions on the right to stand for elections, sLlch us
minimum age, must be justifiable on objective and reasonable criteria**. The
Committee insistec4 that persons “who areotherwise eligible to stand for election
Z-unihia (1999) ACHPR para 46
“1' Application 011/2011- Rev. C'lii istophc•i Mlikila v.
' Scc paragrapheIS of the Gencral Comment No.2S:1*he right to participatc in public affairs, vot(ni ‹y ts Ond thea i ht
of equal access to public service (Art. 25): 12/07/95. CCPR/C/2 I/Rev.i/ Add.7, Geiiei al Co[nn elit No.,23.”.
‘t
should not be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation”**
84. In this particular instance, the Respondent State did not submit its consiclerations to
explain the reasonableness of the restriction resulted from this amendment or any other
lawful purpose it seeks to serve. The Commission is of the view that national laws must be
in
a way that does notjeopardise or nullify the enJoyment oftherights and liberties enshrined
in the Charter. It therefore conclucJes that the amended law violates article 13 (1) of the
Cliartei.
Decision of the Commission on theMerits
85. In vicw oftheforegoing, the African Commission on I-luman and Peoples' Rights:
ii.
iii.
iv.
Finds that the Respondent State violated articles 7(1) anal 13 (1) of the Charter,
Requests the Respondent State to take all necessary measures to repair the
damages caused by the jr}o1ations founc4;
Requests the Responc4cnt State to take all necessary measures tomake sure that the
Lot Orgniiiqiie no. 2Dl2-DIS of1 August 2012 ance all other relevant laws ance
practices are brought into conformity with theAfrican Charter;
Requests the Respondent State to report back inwriting, within one hundred and
eighty (180) days of the notification of this decision, on the measures taken to
implement these recommendations.
Adopted by theAfrican Commission on Human andPeoples' Rightsa
F8th..Ordinary
Session held virtually from 23February 2022 to9 Mar‹zfi 2022 , “
J.. $/’’’“ *". ’ \ ’
. ;
"Ihidein.
17