25th Activity Report of the ACHPR
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
25th ACTIVITY REPORT OF THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS (ACHPR)
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25th Activity Report of the ACHPR
INTRODUCTION
1.
This is the Twenty-fifth Activity Report of the African Commission on
Human and Peoples‟ Rights (the “African Commission”, the
“Commission,” the “ACHPR”).
2.
The Report covers the period May – November 2008, including
activities undertaken during the 44th Ordinary Session of the
Commission which was held from 10_24 November 2008, in Abuja,
the Federal Republic of Nigeria.
Attendance at the Session
3.
The following members of the African Commission attended the
44th Ordinary Session:
-
Commissioner Sanji Mmasenono Monageng, Chairperson
-
Commissioner Angela Melo, Vice-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 Zainabou Sylvie;
-
Commissioner Pansy Tlakula; and
-
Commissioner Yeung Kam John Yeung Sik Yuen.
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25th Activity Report of the ACHPR
Events preceding the Session
4.
The African Commission organised a series of activities preceding
the Session. These were:
i. Consultative Meeting on Theatre as a Vehicle for Human
Rights Education in Africa: 4 – 5 November 2008;
ii. Meeting of the Working Group on ECOSOCC: 5-6 November
2008;
iii. Diplomatic Training: 6 November, 2008;
iv. Meeting
of
the
Working
Group
on
Indigenous
Populations/Communities in Africa: 7 – 9 November, 2008;
v. Meeting of the Working Group on the Death Penalty: 9 – 10
May, 2008;
Events on the margins of the Session
5.
Members of the Commission participated in a number of activities
organised on the margins of the Session. These activities include
the following:
i.
ii.
iii.
6.
NGO Forum: 7 – 9 November, 2008, organised by
the African Centre for Democracy and Human Rights
Studies(ACDHRS);
Round Table Discussion on “Upholding Women‟s
Rights to High Standard of Living, Health, Housing
and Wellbeing,” organized by the African Commission
in partnership with the Centre on Housing Rights and
Evictions (COHRE) and Women‟s Aid Collective
(WACOL), on 14 November 2008, in Abuja, Nigeria;
Consultative Seminar on; “The relations between the
African Human Rights Protection Institutions” jointly
organised by Interights and the MacArthur Foundation
from 8-9 November 2008.
The purpose of these events was, inter alia, to advocate,
disseminate information, and to enhance the promotion and
protection of human and peoples‟ rights in the continent.
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25th Activity Report of the ACHPR
Agenda of the Session
7.
The Agenda of the Session is attached to this report as Annex I.
The opening ceremony
8.
A total of four hundred and ninety seven (497) participants attended
the 44th Ordinary Session, including thirty one (31) States Parties to
the African Charter, nine (9) National Human Rights Institutions,
seven (7) International and Inter-Governmental Organizations, and
two hundred and seventy five (275) African and International
NGOs.
9.
Speeches were delivered by the following:
i.
Honourable A.A Yola, the Solicitor General of the
Federal Republic of Nigeria, on behalf of Chief Michael
Kaase Aondoaka, Honourable Attorney General of the
Federal Republic of Nigeria.
ii.
Mrs. Hannah Foster, Executive Director of the African
Centre for Democracy and Human Rights Studies, on
behalf of NGOs;
iii.
Mr. Gilbert Sebihogo, the Executive Director of the
Network of African National Human Rights Institutions
(NHRIs), on behalf of National Human Rights Institutions
(NHRIs);
iv.
H.E. Hosni Alwiheshe, Minister of Legal Affairs and
Human Rights at the Arab Great Congress, Socialist
Peoples‟ Jamahiriya in Libya, addressed the opening
Session on behalf of States Parties to the African
Charter;
v.
The Chairperson of the African Commission, Justice
Sanji Mmasenono Monageng,
vi.
Honourable Chief Odein Ajumogobia (SAN) Minister of
State for Energy and Petroleum Resources, on behalf of
the President of the Federal Republic of Nigeria, H.E.
President Umaru Musa Yar‟ Adua.
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25th Activity Report of the ACHPR
Welcome address by Chief Michael Kaase Aondoaka, Honourable
Attorney General of the Federal Republic of Nigeria (represented by
the Honourable Solicitor General, Mr. A.A Yola)
10.
The Honourable Solicitor General of the Federal Republic of
Nigeria, Mr. A. A. Yola, representing the Attorney General and
Minister of Justice of the Federal Republic of Nigeria, Chief Michael
Kaase Aondoaka SAN, welcomed all participants to the Session of
the African Commission. He thanked Members and staff of the
African Commission for accepting the invitation of the Federal
Government of Nigeria to host the 44th Ordinary Session of the
African Commission.
11.
He said that the Nigerian Government is committed to the
promotion of human rights, peace and stability across the region,
and that President Alhaji Umaru Musa Yar‟Adua, GCFR, has
pledged the commitment of his administration to democratic and
open society based on the rule of law, and a country that is fair to
all persons living in it. He added that the Government has recently
developed a Federal Action Plan for the protection and promotion
of human rights in Nigeria, and is also taking steps to ensure the
entrenchment of the culture of human rights.
Speech of the Representative of Non-Governmental
Organisations
12.
In her speech, the Executive Director of the African Centre for
Democracy and Human Rights Studies, Mrs. Hannah Forster,
representative of Non-governmental Organisations, expressed
concern at the continuous human rights violations in some African
countries, caused or aggravated by poverty, conflicts, and bad
governance. She expressed the concern of the NGO Forum
regarding the persistence of conflicts in the Great Lakes Region of
Africa and flow of refugees.
13.
Mrs. Forster called on African Governments affected by armed
conflicts to ensure that all parties involved in conflicts respect
international humanitarian law, and that those who commit war
crimes be brought before competent courts for trial. She requested
the African Commission to adopt a Resolution on the violation of
human rights and international humanitarian law committed by all
persons in conflicts in Africa. Mrs. Forster also expressed concern
about human rights violations against women and children, in
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25th Activity Report of the ACHPR
particular, the practice of harmful traditional practices and trafficking
in women.
Speech of the Representative of National Human Rights
Institutions
14.
Mr. Gilbert Sebihogo, The Executive Director of the Network of
African National Human Rights Institutions said that the Network
was a strategic partner of the African Commission in the promotion
and protection of human rights in Africa.
15.
On the general human rights situation, he lamented that after
several years, human rights issues on the African continent still
remain critical. Underscoring the alarming human rights situation in
many parts of the continent, especially the ongoing conflict in the
Great Lakes Region, he called on all the parties involved in the
conflict for an immediate cessation of hostilities. He emphasised
that democracy can only be realised through transparency, good
governance, peace and respect for human rights, and urged
governments to support their work.
Speech of the Representative of State Parties to the African
Charter
16.
Speaking on behalf of State Parties to the African Charter, the
Minister of Legal Affairs and Human Rights of the Great Peoples‟
Congress, Socialist Peoples‟ Jamahiriya, Libya, Mr Hosni
Alwiheshe, stated that the 44th Ordinary Session is taking place at a
time when the question of human rights has become a concern for
State Parties, and regarded as an important issue for the global
agenda. He noted that armed conflicts continue to be the main
cause of human rights violations in Africa.
17.
Mr. Hosni Alwiheshe highlighted Libya‟s contribution in the
settlement of conflicts in the region by engaging belligerents in a
process of constructive dialogue, and through the provision of
humanitarian assistance to victims.
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25th Activity Report of the ACHPR
Speech of the Chairperson of the African Commission, Justice
Sanji Mmasenono Monageng
18.
In her opening statement, the Chairperson of the African
Commission, speaking on behalf of the Members and Staff of the
Commission, and on her own behalf, expressed gratitude to His
Excellency Alhaji Umaru Musa Yar‟Adua, GCFR, President of the
Federal Republic of Nigeria, for inviting the Commission to Abuja,
Federal Republic of Nigeria. She welcomed all participants and
thanked the Government and People of Nigeria for hosting the
Session.
19.
The Chairperson noted that since the last Session a lot of
developments have taken place in the field of human rights. She
indicated that the African Commission had organised a number of
consultations and meetings to improve its working methods, and to
forge closer collaboration with its various partners. She stated that
despite some progress, the overall human rights situation remains
unsatisfactory.
20.
She deplored the conflicts in a number of African countries where
human rights and humanitarian laws are violated. In that regard,
she said the African Commission is concerned about the escalating
violence in the Democratic Republic of Congo and the related
deteriorating human rights abuses, especially in the North Kivu
Province.
21.
She also highlighted the need to build a culture of human rights
observance and to establish strong mechanisms to protect human
rights in Africa. She noted that economic and social rights are still
beyond the reach of most Africans who continue to lack access to
clean water, food, adequate housing, and called on State Parties to
ensure the enjoyment of these rights. She expressed concern that
the situation of women remains a very serious concern, especially
in Somalia.
22.
She deplored the deterioration of the human rights situation in
some African countries, making specific reference to the
Democratic Republic of Congo. She also deplored the brutal
assassination of Aisha Ibrahim Duhulow, a 13-year old little girl,
found guilty of adultery by an Islamic court in Somalia.
23.
The Chairperson recalled that the drafters of the African Charter
recognised that the promotion and protection of human rights
should be our collective responsibility. She further noted that
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25th Activity Report of the ACHPR
although the primary responsibility for human rights protection is on
governments, other stakeholders have to play their own role. She,
therefore, called on all stakeholders to reflect on how best they can
continue to uphold human rights and human dignity in Africa.
Opening Statement by the President of the Federal Republic of Nigeria,
President Umaru Musa Yar’ Adua (represented by Minister of Energy and
Petroleum Resources Chief Ajumogobia SAN)
24.
Honourable Chief Odein Ajumogobia, SAN, Minister of Energy and
Petroleum Resources, speaking on behalf of the President of the
Federal Republic of Nigeria, His Excellency Alhaji Umaru Musa
Yar‟Adua, GCFR, officially opened the 44th Ordinary Session of the
African Commission.
25.
Honourable Chief Odein Ajumogobia, SAN, welcomed the
Members of the African Commission and the participants to the
Federal Republic of Nigeria. He thanked the Members of the
Commission for choosing Nigeria to hold the Session of the African
Commission.
26.
He noted that Nigeria has had a long and proud relationship with
the African Commission and is among the first African States to
sign, ratify and domesticate the African Charter, reaffirming the
commitment and unshaken resolve of Nigeria to live up to its
obligations to uphold human rights and fundamental freedoms.
Chief Ajumogobia pointed out that the 1999 Constitution of Nigeria
provides a good foundation for human rights, and that the Nigerian
judiciary has earned a reputation of protecting human rights in
Nigeria. He stated that since the current President came to power
in 2007, his administration has been working on issues such as the
rule of law and due process that are necessary for human rights
protection.
27.
Chief Ajumogobia observed that the African continent is still beset
with several human rights problems and the general lack of access
to basic needs for dignified living. He stated that Africa cannot
continue to be the object of pity by the rest of the world, and that
self-reliance and the achievement of the Millennium Development
Goals must be a priority of African States. Chief Ajumogobia
emphasized that in order for Africa to achieve the Millennium
Development Goals, it is important for all to realize that society is
about empowering people to change their material conditions. He
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25th Activity Report of the ACHPR
went on to state that the rights of Africans must be respected if they
are expected to contribute to the crusade for Africa‟s economic and
social rebirth.
28.
Noting the importance of the mandate of the African Commission to
promote and protect human rights in Africa, he implored African
Governments to work with the African Commission to do away with
the culture of impunity in Africa, and to demonstrate that Africa and
her people will have no tolerance for violators of human rights on
the Continent. He urged the African Commission to re-dedicate
itself to a programme of human rights education, to foster the
attitudes and behaviours needed to uphold human rights for all
members of society.
The Public Session
29.
The Commission held it‟s Public Session for six (6) days, i.e. from
10 -16 November 2008. The following items were discussed:
Human Rights Situation in Africa
30.
On the human rights situation in Africa, statements were made by
State Delegates from, Cameroon, Central African Republic, Chad,
Cote D‟Ivoire, Egypt, Ethiopia, Republic of Guinea , Mali,
Mozambique, Rwanda, the Saharawi Arab Democratic Republic
(SADR), Senegal, South Africa, Sudan, Tunisia, and Zimbabwe.
The State Delegates reported on the human rights situations in
their respective countries and called on the African Commission
and other stakeholders to intervene in curbing some of the
challenges facing the enjoyment of human rights.
31.
The Representative of the Republic of Cameroon reported that
food riots and civil unrest had erupted due to rise in the cost of
living. He mentioned that the government has taken several
measures to improve the lives of its citizens which includes; salary
adjustments, replacement of the national election observatory with
a new body, and granting of authorisation to four new media
houses.
32.
The Representative from Central African Republic (CAR)
informed the African Commission that due to the human rights
situation in the country, the government of the CAR has signed
several peace agreements with rebel groups, and an amnesty law
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25th Activity Report of the ACHPR
was adopted in August 2008. Furthermore, that the government,
together with other stakeholders, is currently preparing an inclusive
national dialogue aimed at improving the current human rights
challenges.
33.
The Representative from the Republic of Chad highlighted the
measures made by the government to promote and protect human
rights. He expressed concern about the insecurity caused by armed
rebellions in the Eastern part of the country, indicating that
Refugees in Eastern and Southern Chad are taken care of by the
government.
34.
The Representative from the Republic of Cote d’Ivoire
underscored the measures taken by the government to fight
discrimination and to combat corruption in Cote d‟Ivoire, including
the measures put in place to ensure that the forthcoming
presidential election is free and fair.
35.
The Egyptian Representative stated that Egypt is committed to
strengthening its national human rights mechanisms. He further
drew the attention of the ACHPR on some shortcomings in its
Communications Procedure, including the poor quality of
translation, interpretation, delay in the transmission of documents,
incoherence in the convening of its private Sessions and expressed
hopes that these shortcomings will be redressed.
36.
The Representative from Ethiopia indicated that the Ethiopian
Government and the Ethiopian Human Rights Commission have
initiated and implemented a project that will enable the government
to prepare and submit its overdue reports, and also reiterated the
commitment of Ethiopia to cooperate with the ACHPR.
37.
The Representative from the Republic of Guinea on her part
described the structures put in place by Guinea to promote human
rights, especially the Human Rights Directorate in the Ministry of
Justice.
38.
The Representative from Mali indicated that the Malian government
has established an Inter-Ministerial Committee for the drafting of
State Reports to UN and African treaty monitoring bodies, and has
set up a Committee for the preparation of a national conference on
corruption. He further stated that the government has taken
measures to combat female circumcision, child trafficking, and
training of law enforcement officers and judges in human rights.
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25th Activity Report of the ACHPR
39.
The Representative from the Republic of Mozambique mentioned
various measures taken by the government of Mozambique in the
area of human rights, especially through the enactment of new
laws. While indicating that Mozambique has submitted two periodic
reports to the United Nations System in 2007 and one in 2008. He
added that the State Report to the African Commission is being
drafted. He further stated the measures put in place to promote
socio-economic and cultural rights, as well as access to justice.
40.
The Representative from the Republic of Rwanda stated that
Rwanda is determined to reinforce the rule of law, combat impunity,
and promote human rights, Rwanda had recently held legislative
elections, as a result of which a woman was elected the Speaker of
the National Assembly.
41.
The Representative from the Saharawi Arab Democratic
Republic (SADR) indicated that efforts have been made to
empower women in the country and to guarantee their political
participation. He also urged the Moroccan government to give the
Polisario Front the opportunity to organise a referendum for the
SADR people so as to exercise the right to self-determination. He
concluded by inviting the ACHPR to undertake a mission to the
SADR.
42.
The Representative from Senegal indicated that there have been
some developments in the area of human rights in Senegal. He
gave an example of the Workshop which brought together
stakeholders to finalise the initial and periodic reports to various
human rights treaty bodies. He also highlighted measures that have
been taken by the government to realise certain categories of
human rights in Senegal.
43.
The South African Representative declared that the South African
Constitution provides a framework for the promotion and protection
of human rights, and also expressed the human rights challenges
faced by the same, such as gap between the rich and the poor,
xenophobia attacks against foreigners.
44.
The Representative from the Republic of Sudan stated that
measures have been taken to guarantee fundamental human rights
which have been incorporated in the Sudanese Constitution, the
Constitution of Southern Sudan and other Legislation.
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25th Activity Report of the ACHPR
45.
The Tunisian Representative commended the work of the
Commission and expressed the country‟s willingness to welcome
human rights institutions who want to assess its human rights
situation.
46.
Statements
were
also
made
by
representatives
of
Intergovernmental and International Organisations, notably, the
African Committee of Experts on the Rights and Welfare of the
Child (ACERWC), Office of the UN High Commissioner for Human
Rights (OHCHR), International Organisations of the Francophonie
(OIF) and the Inter-American Commission on Human Rights
(IACHR). They dealt with crosscutting issues and suggested
measures to improve their relationship with the Commission.
47.
In her statement, the Chairperson of the ACERWC, Mrs. Seynabou
Ndiaye Diakhate, lamented the deterioration of human rights
observance in the continent. She recalled that at the 12 th Summit of
Heads of State and Government, the Executive Council adopted a
Resolution requesting the African Commission and the Committee
to work in close partnership. She said that time has now come for
the two organisations to cooperate more closely through, among
other things, the organisation of periodic meetings, joint missions,
and experience sharing.
48.
The Representative of the OHCHR, Ms. Samia Slimane in her
statement, informed the Session that twenty one years on, the
situation of human rights on the African continent remains generally
grave. She indicated that the combination of corruption and
impunity jeopardizes the efforts being deployed in many parts of the
continent to alleviate poverty and strengthen peace building.
49.
The representative of the OIF, Mr. Tigri Alassani, expressed his
appreciation for the Commission‟s work in advancing human rights
in Africa, and for its support to the work of national and regional
mechanisms in protecting and promoting human rights. In this
context, he confirmed his organisation‟s commitment to support
further the various initiatives undertaken by the Commission in
raising awareness and respect for human rights in Member States,
and assisting them to meet their human rights obligations.
50.
The representative of the IACHR, Ms. Elizabeth Abi Mershed,
indicated that the IACHR is the counterpart of the ACHPR in the
Americas. She said that both Institutions share the same objectives
and face similar challenges. She indicated that the collaboration
between the two organisations will help each of them to learn how
to address challenges in the future. She concluded by stating that
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25th Activity Report of the ACHPR
the Inter-American Commission is willing to strengthen its
relationship with the African Commission.
51.
A National Human Rights Institution (NHRI), the Algerian
Permanent National Consultative Council for the Promotion and
Protection of Human Rights, also made a statement under this
item. The representative of this NHRI reiterated the commitment of
Algeria to the realization of human rights on the continent.
52.
A total of forty-seven (47) Non-Governmental Organisations
(NGOs), having Observer Status before the Commission, made
statements under this item.
Cooperation and Relationship with National Human Rights Institutions
(NHRIs) and Non-Governmental Organisation (NGOs)
53.
Commissioner Reine Alapini Gansou, introduced this item.. She
recognised the role of NGOs in the work of the African Commission
as stipulated in the Resolution of the ACHPR on the Granting of
Observer Status to NGOs.
54.
She further noted that Rules 75 and 76 of the Commission‟s Rules
of Procedure stipulate the relations between the Commission and
the NGOs. Their obligations vis-à-vis the African Commission
includes among others, attending the Commission‟s Sessions,
submitting a report of their activities every two years to the
Commission, as well as Shadow Reports on the human rights of
the countries in which they are based.
55.
Reacting to Commissioner Gansou‟s observations, the Director of
the Centre for Human Rights, University of Pretoria, Prof. Frans
Viljoen affirmed that NGOs have to be more involved in the work of
the Commission. He gave examples of what the Centre for Human
Rights is doing in this regard, which includes among others:
organizing an annual Moot Court Competition; human rights
education; publication of journals dealing with the African Human
Rights System; a compendium of Human Rights Instruments; and
African Human Rights Law Reports which all go a long way to
disseminate the African Charter and promote human rights in the
continent.
56.
He urged the Commission to publish its Concluding Observations in
respect of State Party Reports on the Commission‟s website so that
stakeholders can follow up on the Commission‟s recommendations.
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25th Activity Report of the ACHPR
.
57.
The African Commission considered the applications of fourteen
(14) NGOs seeking Observer Status. It granted observer status 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, to the following NGOs:
i. Arid Lands Institute, Kenya
ii. Association Omunga, Angola
iii. Coalition for an Effective African Court of Human and
Peoples‟ Rights,Tanzania
iv. Collectif des Familles des disparu(e)s en Algérie,
France
v. Human Rights Development Initiative(HRDI), South
Africa
vi. International and Humanist and Ethical Union, United
Kingdom
vii. International Catholic Movement for Intellectual and
Cultural Affairs(ICMICA)(Pax Romana), Switzerland)
viii. Save the Children Sweden, Sweden
ix. WaterAid, UK
x. National Counseling Center(NCC), Angola
xi. Associacao Construindo Comunidades, Angola
xii. Rights
Enforcement
and
Public
Law
Centre(REPLACE), Nigeria
58.
The Commission decided to defer the application of two NGOs,
namely:
i. Plan International, United States of America
ii. International Foundation for the Protection of Human
Rights Defenders, Ireland
59.
The applications for observer status for these NGOs was
postponed in order for them to provide information which was
missing in their application.
60.
This brings the number of NGOs with Observer Status before the
African Commission to three hundred and ninety-two (392).
61.
The African Commission did not receive any application for Affiliate
Status from any NHRI during its 44th Ordinary Session. The number
of NHRIs with Affiliate Status with the African Commission remain
at twenty-one (21).
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25th Activity Report of the ACHPR
ACTIVITIES OF MEMBERS OF THE COMMISSION DURING THE INTERSESSION
62.
The Chairperson, the Vice Chairperson and members of the African
Commission presented reports on the activities they undertook in
their capacities as members of the Commission, Special
Rapporteurs, or members of Special Mechanisms as follows:
Commissioner Sanji Mmasenono Monageng-Chairperson
63.
The Chairperson of the Commission undertook the following
activities;
i.
On 21-22 June 2008, she participated in a forum
convened by Femmes Africa Solidarite (FAS), which
preceded the African Union Summit held in Sharm –el
Sheikh, Egypt;
ii.
She attended the meeting of the Permanent
Representative Committee of the African Union from
24-25 June 2008, and, the meeting of the Executive
Council of the African Union from 27-28 June 2008,
where she presented the 23rd and 24th Activity
Reports of the African Commission;
iii.
She attended the Summit of the Assembly of Heads
of State and Government from 29 June to 1 July
2008, which adopted the Activity Reports of the
African Commission;
iv.
On 4 July 2008, the Chairperson participated in a
Human Rights Education Brainstorming Workshop
which took place in the Centre for Human Rights,
University of Pretoria on the margins of the Annual
African Moot Court Competition;
v.
On 5 July 2008, the Chairperson participated as
one of the judges in the aforesaid Moot Court
Competition organized by the University of Pretoria;
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25th Activity Report of the ACHPR
vi.
Between 21- 29 July 2008, the Chairperson presided
over the 5th Extraordinary Session of the African
Commission, which took place in Banjul, The Gambia,
to finalize the Revised Rules of Procedure of the
African Commission;
vii.
Between 26-30 August 2008, she participated at a
seminar organised by the Center for Conflict
Resolution in Cape Town, South Africa. She
presented a paper on the Role of the African
Commission in conflict prevention, resolution and
management;
viii.
On 5 and 6 September 2008, the Chairperson took
part in a training of law enforcement officers on the
African Commission‟s Robben Island Guidelines on
prevention and prohibition of torture, in Monrovia,
Liberia; This training was followed by a joint promotion
mission to Liberia with Commissioner Mumba Malila
and Commissioner Atoki. This mission ended on 12
September, 2008;
ix.
On 17 and 18 September 2008, the Chairperson
represented took part in a Seminar organised by
Konrad Adenauer Stiftung Foundation, in Germany.
The Seminar sought to introduce the African, Inter
American and European human rights system to the
German public;
x.
On 26 and 27 September 2008, the Chairperson
presided over a meeting on the Working Methods of
the Commission, which took place in Ouagadougou,
Burkina Faso;
xi.
On the 2 and 3 of October 2008, the Chairperson
attended a Consultative Meeting in Mauritius on the
Rights of Older Persons, organised by the African
Commission. The Meeting was convened in order to
brainstorm on the rights of older persons, and the
way forward to effectively protect their rights;
xii.
From 4 to 5 November 2008, the Chairperson
presided over a meeting in Abuja, Nigeria to consider
alternatives to formal human rights education through
the use of theatre as a vehicle for human rights
education;
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25th Activity Report of the ACHPR
xiii.
From 8 to 9 November 2008, in Abuja, Nigeria, she
attended a Seminar organised by Interights and the
MacArthur Foundation which brought together
Regional Economic Communities, Courts, Tribunals
and the African Commission..
xiv.
Finally, she participated in some activities of the NGO
Forum, which preceded the 44th Ordinary Session.
Commissioner Angela Melo-Vice Chairperson
Report of activities as Commissioner
64.
The Vice-Chairperson carried out the following activities:
i.
On 8 June 2008, she attended a meeting in Nantes
(France) with the representatives of the International
Organisation of la Francophonie (OIF) with the view to
establishing cooperation links between the Commission
and the OIF;
ii.
From 28 to 30 June 2008, she participated in the 3rd
Human Rights Forum in Nantes, France as a resource
person and a panelist at the opening ceremony of a round
table on the celebration on the 60th anniversary of the
Declaration of Human Rights. From 30 June – 3 July
2008, she served as Resource Person at a meeting on
Economic, Social and Cultural Rights in Nantes, France.
iii.
On 16 July 2008, she attended a meeting in Maputo,
Mozambique organised by the Legal Department of the
Ministry of Foreign Affairs with members of the Technical
Council of the Ministry of Justice, and invited lawyers on
the ratification of the Rome Statute of the International
Criminal Court (ICC);
iv.
From 21-29 July 2008, she attended the 5th Extraordinary
Session held in Banjul, the Gambia, where she chaired
the discussions on the revision of the Rules of Procedure
of the African Commission in her capacity as chairperson
of the Working Group on Specific Issues Relating to the
Work of the African Commission.
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25th Activity Report of the ACHPR
v.
From 24 to 26 September 2008, she participated in the
first World Social Forum organised by Fondazione Rome
and Fondazione Celsious. This World Social Forum was
intended to build a platform for discussion on current
social problems. The theme for this forum was: “Social
Apprehension from the Sociological Perspective”, and her
theme was on: “Promotion of human rights”;
vi.
From 29-30 September 2008, she attended and chaired
the meeting held in Ouagadougou, Burkina Faso, on the
establishment of a framework for the relationship between
the African Commission and other Organs of the African
Union.
vii.
On 7 October 2008, in Maputo, Mozambique, she
attended a meeting with the National Director on Specific
Education Programmes, to gather sexospecific statistics in
the education sector. The specific purpose for gathering
those statistics is to establish, within the African
Commission, a database on gender perspective in the
education sector in each African country.
viii.
On 8 October 2008, in Maputo, Mozambique, she had a
meeting with OXFAM Mozambique to draw conclusions
on the modalities for the implementation of the Protocol on
Women‟s Rights in Africa. This project promotes the
participation of all women NGOs endowed with expertise
on women‟s rights issues in Maputo;
ix.
On 29 October 2008, she had a meeting with the Minister
of Justice to on prison reforms in Mozambique. She drew
the attention of the Minister to the Mechanism of the
Special Rapporteur on Detention and Prison Conditions in
Africa;
x.
From 3 to 4 November 2008, she conducted a Seminar
on capacity building for prosecutors, judges, lawyers and
academics. This was organised by the Faculty of Law of
the University of Maputo;
xi.
On 3rd November 2008, she had discussions with the
judges of the SADC Regional Tribunal, and the President
of the African Court on Human and Peoples‟ Rights.
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25th Activity Report of the ACHPR
xii.
From 7 to 9 November 2008, she participated in the
NGO Forum, where she presided over a stakeholders
meeting on economic, social and cultural rights;
xiii.
From 8 to 9 November 2008, she participated in a
meeting co-hosted by INTERIGHTS and MacArthur
Foundation with the support of the European Union in
Abuja, Nigeria. The theme of this meeting was:
“Interaction between the Community Courts, including the
African Court of Human and Peoples‟ Rights.” During this
meeting, she presided over a session on challenges and
opportunities that exist for the various organs of the Union
handling human rights issues;
xiv.
On 14 November 2008, she participated in a meeting
organised by COHRE in Abuja, Nigeria, during which
Commissioner Maiga presided over a theme on: “Women,
their right to housing and HIV/AIDS.”
Report of activities as Chairperson of the Working Group on Specific
Issues
65.
As Chairperson of the Working Group on Specific Issues,
Commissioner Melo reported on the activities of the Working Group
which held its 6th Meeting in Banjul, The Gambia from 15-17
February 2008. During the meeting, the remaining Articles in the
Draft Revised Rules of Procedure were reviewed in preparation for
the 5th Extra-Ordinary Session that took place from 21-29 July
2008.
66.
The first part of the mandate of this Working Group will end when
the Draft Rules of Procedure will be presented to the African
Commission for a final adoption.
Activities as Chairperson of the Working Group on ECOSOC Rights in
Africa
67.
Commissioner Melo, in her capacity as Chairperson of the Working
Group on Economic, Social and Cultural (ECOSOC) Rights in
Africa, reported that the Working Group held its fourth meeting on 5
and 6 November 2008 in Abuja, Nigeria. She stated that the main
objectives of the meeting were to follow-up on the implementation
of the 2008-2009 Work Plan: discussion and adoption of the
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25th Activity Report of the ACHPR
concept note on the Work Plan; and the draft Principles and
Guidelines prepared by the Group. These Draft Principles define
the obligations for States Parties under the Economic, Social and
Cultural Rights provided by the African Charter.
68.
The Working Group has examined and discussed the draft
Guidelines on ECOSOC Rights.
69.
The Working Group will meet again before the next session to
finalise the discussion on the draft Guidelines on ECOSOC Rights.
Then, the Group has scheduled a regional consultative meeting to
gather comments and contributions from representatives of States
Parties, National Human Rights Institutions, NGOs, the academia
and guests.
Commissioner Catherine Dupe Atoki
Activities as a Commissioner
70.
Commissioner Atoki undertook the following activities;
i.
On 10-13 June 2008, she attended a meeting on Slavery
and follow-up to the World Conference against Racism in
Banjul, The Gambia;
ii.
She undertook a Promotional mission to the Republic of
Ethiopia between 21 June to 1 July 2008, where she held
discussions with the President of the Republic, several
Government Officials, NGOs, the Regional UN High
Commissioner for Human Rights, the Ethiopian Human
Rights Commission and the Office of the Ombudsman.
During the mission, she had the opportunity to introduce the
Robben Island Guidelines(RIG) and encouraged their use to
prevent torture;
iii.
Between 21 and 29 July 2008, she attended the 5 th ExtraOrdinary Session of the Commission in Banjul, The Gambia,
to finalise the Revised Rules of Procedure of the African
Commission;
iv.
On 27 August 2008, she was invited by the Nigerian Bar
Association in their Annual General Meeting in Abuja,
Nigeria, where she presented a paper on the Role of the
ACHPR in the merged African Court of Justice and Human
Rights. She also presented a paper on: “Consumer Rights
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25th Activity Report of the ACHPR
and the ACHPR,” to Consumer Advocacy Empowerment
Foundation (CADAF) later the same day;
v.
Commissioner Atoki also undertook a Joint Promotional
Mission with the Chairperson of the African Commission and
Commissioner Malila to the Republic of Liberia. During this
mission, discussions were held with the President of the
Republic, Government and law Officials, Civil Society
Organisations, NGOs, and Magistrates. She also made a
visit to the Monrovia Central Prisons and a few Police cells;
vi.
On 20-22 October 2008, she attended a 3 day Conference
on Strategic Partnering in Kampala, Uganda, which
examined the relationship between the ACHPR, and its
partners on the framework for cooperation between AU
Organs and the Commission.
vii.
On the 21 October, 2008, Africa Human Rights Day, she
read a Statement on behalf of the Chairperson to the
Commission. She also presided over a Stakeholders‟ Round
Table Discussion under the theme “Human Rights, Our
Collective Responsibility” organised to commemorate this
day.
Activities as Chairperson of the Follow-up Committee of the Robben
Island Guidelines (RIG)
71.
Commissioner Atoki, organised two workshops:
i.
On 17 and 18 July 2008, she conducted a 2-day workshop
for heads of Police and Prisons in West Africa in Abuja,
Nigeria. This workshop was aimed at, introducing the
participants to the African Human Rights System, especially
the work of the Commission, as well as the work of the
Follow-up Committee on the RIG mechanism and modalities
of its implementation;
ii.
On 4 and 6 September 2008, she conducted a 2 day
training Workshop for Senior Law Enforcement Officials on
the Robben Island Guidelines (RIGs), in Monrovia, Liberia.
The Workshop was aimed at training the participants on the
use of the RIG in their day-to-day activities, and to abolish
and criminalise torture or other forms of cruel and degrading
treatment. The positive outcome of this Workshop is that the
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25th Activity Report of the ACHPR
Liberian Police Force has decided to review their Police
Curriculum to include training on the RIGs;
72.
The Working Group on the RIGs, in collaboration with Association
on the Prevention of Torture (APT), is preparing a publication on
the application of the RIGs by State actors, NGOs and the
Commission. This publication will contain comments and
suggestions on each article.
73.
The Chairperson of the Follow-up Committee also attended the
NGO Forum from 7-9 November 2008, where she chaired the
Interest Group on Torture.
Activities as a Member of the Working Group on ECOSOC
74.
On 1 September 2008, Commissioner Atoki was invited by of Social
Economic Rights and Accountability Project (SERAP) in Lagos, and
presented a paper on corruption, ECOSOC and the role of the
ACHPR. She highlighted the need for NGOs to take up litigation
using the African Charter as a tool to ensure compliance with
ECOSOC rights.
75.
Commissioner Atoki attended a meeting that was convened by the
Working Group on 6-7 November 2008 in Abuja, Nigeria.
Commissioner Musa Ngary Bitaye
Activities as Commissioner
76.
Commissioner Bitaye, undertook the following activities:
i. Attended the 5th Extraordinary Session of the African
Commission which took place in Banjul, the Gambia from
21-29 July, 2008 to finalize the Revised Rules of Procedure
of the African Commission;
ii. Between 1 to 5 September 2008, he undertook a Promotion
Mission to the Republic of Ghana.
iii. From 26-27 September, 2008, Commissioner Bitaye
attended a Workshop of the Working Methods of the African
Commission, in Ouagadougou, Burkina Faso;
iv. From 28 -30 September 2008, he participated in a
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25th Activity Report of the ACHPR
Brainstorming/ Consultative Meeting of AU Organs with
Human Rights mandate, on their working relations, in
Ouagadougou, Burkina Faso;
v. On October 20 2008, Commissioner Bitaye participated in a
Seminar jointly organised by the Commission and the
University of The Gambia, at the High Court of The Gambia,
as part of the activities commemorating the Africa Human
Rights Day.
vi. On 21 of October 2008, the Africa Human Rights Day, he
delivered a speech on behalf of the Chairperson of the
Commission, in Banjul, The Gambia.
vii. From 4 to 5 November 2008, Commissioner Bitaye attended
the Consultative Meeting on the use of theatre as a vehicle
for human rights education, organised by the African
Commission, in Abuja, Nigeria.
viii. On 6 November 2008, Commissioner Bitaye took part in a
one day Diplomatic training Seminar, organised by the
African Commission, in collaboration with the Ministry of
Foreign Affairs of the Federal Republic of Nigeria, which took
place in Abuja, Nigeria.
ix. On 8 November 2008, he took part in the NGO Forum,
where he chaired the Special Interest Group on Indigenous
Populations in Abuja, Nigeria;
x. On 7-9 November 2008, Commissioner Bitaye attended the
regular pre-session meeting of the Working Group on
Indigenous Persons, which took place in Abuja, Nigeria.
Activities as chairperson of the Working Group on Indigenous
Populations/Communities in Africa
77.
, Commissioner Bitaye undertook the following activities::
i. From 11 – 13 August 2008 he presided over a Steering
Committee Meeting in Banjul The Gambia, organized to
prepare for the Consultative and Sensitisation Seminar on
the Rights of Indigenous Populations to be held in Addis
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25th Activity Report of the ACHPR
Ababa, Ethiopia from 13 – 16 October 2008;
ii. From 15 – 16 October 2008, he took part in the
Consultative/Sensitisation Seminar on the Rights of
Indigenous Populations organized by the African
Commission in Addis Ababa, Ethiopia from 13 – 16 October
2008;
iii. The Commissioner also attended the regular meeting of the
Working Group from 7-9 November, 2008, which took place
in Abuja, Nigeria.
Commissioner Reine Alapini Gansou
Activities as Commissioner
78.
Commissioner Gansou carried out the following activities;
i.
From 11-19 July 2008, she undertook a promotional
Mission to Mali;
ii.
From 21-29 July, 2008, the Commissioner participated
in the 5th Extraordinary Session of the African
Commission;
iii.
From 26-28 August, 2008, she participated in a seminar
organised by the Conflict Resolution Centre of Cape
Town, South Africa, on the theme: “Human Rights and
Conflict Resolution;”
iv.
From 25-26 September 2008, at the request of the Open
Society Initiative for West Africa (OSIWA), she took part
in the launching of the West African Centre for Interest in
Public Trials in Abuja, Nigeria. She made a presentation
where she pointed out the interest of the African
Commission in associating itself with the objectives of
the organisation;
v.
On 22 October 2008, at the request of the Africa
Regional Office of BIT/PAMODEC, she presented the
outcomes of the study on the theme: Impact of Gender
Dimension on Combating HIV/AIDS in work places”,
in collaboration with Mme. Fanta Yaro, Justice of the
Appeal Court of Ouagadougou, Burkina Faso at the
INFOSEC, Cotonou, Benin.;
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25th Activity Report of the ACHPR
vi.
On 5 November 2008, she took part in a Consultative
Meeting organised by the Commission of the African
Commission, on the theme: “Theatre, as a Vehicle for
Human rights Education in Africa;”
vii.
On 6 November 2008, Commissioner Gansou attended
a Diplomatic Training Workshop organised by the African
Commission in collaboration with the Ministry of Foreign
Affairs of Nigeria, in Abuja, Nigeria;
viii.
From 7-8 November 2008, she participated in a
consultative meeting in Abuja on the relations between
the African Human Rights Protection Institutions jointly
organised by INTERIGHTS and GOUTCHI Chambers,
with the financial support of Mac-Arthur Foundation. She
made a presentation titled “Strengthening human
rights within the framework of relations existing
between the African Court and African Commission
on Human and Peoples’ Rights.
Activities as Special Rapporteur on Human Rights Defenders in Africa
79.
The Special Rapporteur undertook promotional and protection
activities.
i.
From 13- 19 June 2008, she undertook a joint
promotional Mission to Libya with Commissioner Maiga,
Special Rapporteur on the Rights of Women in Africa;
ii.
From 21 to 25 June 2008, 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;
iii.
From 25- 30 June 2008, she undertook a joint
promotional mission to Tunisia with Commissioner
Maiga;
iv.
From 7-8 July 2008, Commissioner Gansou participated
in a workshop organised by the Associacao Justica Paz
e Democracia (AJPD), in Luanda, Angola, on the
initiatives of this Association;
v.
On 11 July 2008, she participated in a meeting of
Human Rights Defenders in Johannesburg, South Africa,
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25th Activity Report of the ACHPR
organised by the Open Society Initiative.
vi.
From 28 July to 5 August 2008, she carried out a joint
Mission to Togo with her United Nations counterpart,
Mrs. Margaret Sekaggya. The objective of this Mission
was to assess the situation of human rights defenders in
the light of the principles of the Declaration on Human
Rights Defenders adopted by the United Nations General
Assembly in 1998 as well as the Grand Bay Declaration
adopted in 1999 and the Kigali Declaration of 2003;
vii.
From 21 to 24 August 2008, she participated in a
workshop organised by the Network of the West African
Human Rights Defenders, in Lome, Togo.
This
workshop dwelt on the theme: The African Mechanisms
at the African Regional Level;”
viii.
From 31 August to 4 September 2008, with the support
of the Kingdom of Norway, she organised a workshop in
Cotonou, Benin, on the “Preparation of Working Tools
for Human Rights Defenders in Africa;”
ix.
On 6 September 2008, she participated in an InterMechanisms meeting on human rights protection, in
Brussels, Belgium;
x.
From 7-8 October 2008, she took part in a Conference
jointly organised by the European Commission,
European Parliament and the United Nations, in Brussels
on the theme: “60 years of the Universal Declaration
on Human Rights: the Defenders take the floor”. This
Conference had the objective of taking stock of the
human rights situation 60 years after the adoption of the
Universal Declaration of Human Rights by giving the floor
to the human rights defenders;
xi.
From 9- 11 October 2008, on the request of the British
Foreign Office, she carried out an informal visit to
London, Great Britain. During this visit, she had the
opportunity of presenting the African Commission to
representatives of the British Parliament and to the
Technical Department of the Foreign Office;
xii.
From 23-25 October 2008, in commemoration of the 60th
Anniversary of the UDHR and the 10th Anniversary of the
United Nations Declaration on Human Rights Defenders,
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25th Activity Report of the ACHPR
she organised a seminar, in collaboration with
Association Beninoise des Droits du Development, with
the financial support of OSIWA. The theme of this
Seminar was “Human Rights in Benin; What results?”
xiii.
From 7-9 November 2008, Commissioner Gansou
participated in the NGO Forum, where, she chaired a
workshop for Human Rights Defenders and launched the
third edition of a Bulletin and Report on the protection of
the civil society, prepared by the International Movement
for Democracy and Development;
xiv.
The Special Rapporteur sent Note Verbales requesting
authorisation to conduct promotional Missions to the
Republic of Congo, Central African Republic, Democratic
Republic of Congo, Angola and Sudan. She also issued
three (3) Press Releases on the situation of human rights
defenders in Zimbabwe and on the assassination of a
human rights defender in the Democratic Republic of
Congo.
Commissioner Soyata Maiga
Activities a Commissioner
80.
Commissioner Maiga carried out the following activities during the
inter-session:
i.
Between 21 and 29 July 2008, she participated in the 5 th
Extra-Ordinary Session of the African Commission in Banjul,
The Gambia;
ii.
From 11-13 August 2008, she took part in the deliberations
of the Steering Committee set up within the Working Group
on Indigenous Populations. The Committee was set up to
prepare the sensitisation Seminar organised for the States
and the African Union in relation to the rights of Indigenous
Populations in Africa;
iii.
From 27 to 29 August 2008, she was invited by the Austrian
Federal Ministry of European and International Affairs to
attend an international conference organised on the theme
“15 years after the international conference on Human
Rights: Successes and challenges.” During this meeting,
she discussed: “The role of the regional human rights
27
25th Activity Report of the ACHPR
promotion and protection mechanisms and their
collaboration with the United Nations System,” where she
highlighted the challenges and perspectives of the African
Commission;
iv.
From 2-4 September 2008 Commissioner Maiga was
invited by the German Embassy in Mali, where she
organised a two-days Workshop aimed at sensitising the
Malians, on the African Human Rights System;
v.
From 26-27 September 2008, she attended a Workshop in
Ouagadougou, organised by the African Commission to
examine its Working Methods, and to improve the visibility
and effectiveness of the Commission.
Activities as Special Rapporteur on the Rights of Women in Africa
81.
Commissioner Maiga organised Seminars and Meetings with NGOs
and Civil Society. These include:
i.
On 23 May 2008, she organised a Conference in
Ezulwini, in the Kingdom of Swaziland on the Protocol
on the Rights of Women in Africa. The Conference
which brought together Senior Officers of several
Departments and female youth leaders discussed
strategies to accelerate the implementation by the
Government and Civil Society of the Protocol;
ii.
She participated in the deliberations of the
extraordinary Congress of the Coordination of
Women‟s Associations and NGOs in Bamako, Mali on
5 June 2008;
iii.
On 9 June 2008, she participated in the launching of
the National Equality Policy between Men and Women,
organised by the Ministry of Women‟s Affairs, the Child
and the Family in Bamako, Mali;
iv.
Commissioner Maiga was invited by the Secretary for
Legal Affairs and Human Rights of the General
Peoples‟ Congress of the Libyan Arab Jamahiriya, to
attend a symposium on human rights organised in
Albeida, Libya, from 13-14 June 2008;
28
25th Activity Report of the ACHPR
v.
From 21-22 June 2008, she participated in the 12 th
Consultative Meeting on the Integration of the Gender
Perspective in the AU under the theme; “Gender is my
Agenda” in Sharm el Sheikh, Egypt. This Meeting was
organised by the Organisations of African Women and
Civil Society prior to the AU Summit.
vi.
From 7-8 July 2008, she participated in the 2nd
Meeting on the Women‟s Campaign; “to ratify and
respect,” organised by the International Federation of
Human Rights (FIDH). The objective of this meeting
amongst others was to draw up strategies for the
realisation of the required objectives for the benefit of
African Women;
vii.
On 31 July 2008, Commissioner Maiga also
participated in the celebration of the Pan African
Women‟s Day, in Mali under the theme “Globalisation,
challenges, and responsibilities of Malian Women in
the face of the high cost of living,”;
viii.
She presided over a day organised by Female
Lawyers Network (FEMNET), Mali, in collaboration
with the Civil Society Institutions on the topic “ Solemn
Declaration of the African Union on Gender,” to
popularize the Solemn Declaration and support its
implementation;
ix.
From 13-14 August 2008, she participated in the
symposium organised by the African Commission in
collaboration with the Women‟s Bureau of The
Gambia, in commemoration of the Pan African
Women‟s Day;
x.
On 16 to 18 September 2008, in Banjul, The Gambia.,
She participated in the Consultative Meeting on the
Maputo Protocol and Solemn Declaration of the
African Union. She presented a paper on the rights of
women in Africa, the mandate of the Special
Rapporteur on Women, and the Solemn Declaration of
the African Union on Gender. The objective of the
Meeting included the need to accelerate the ratification
and domestication of the Maputo Protocol by the Mano
River Countries. The Meeting was jointly organised by
the Solidarity Movement for the Rights of African
29
25th Activity Report of the ACHPR
Women(SOAWR) and the African Centre for
Democracy and Human Rights Studies(ACDHRS);
xi.
Commissioner Maiga undertook a Joint Promotional
Mission with the Special Rapporteur on Human Rights
Defenders to Libya from 15-19 June 2008, where she
discussed the general situation of women‟s right. She,
visited institutions responsible for the implementation
of socio-economic rights. During the Mission, she
urged the Secretary responsible for Women‟s Affairs to
ensure that Libya submits its Report on the Solemn
Declaration on Gender regularly;
xii.
Commissioner Maiga also undertook a Joint Mission
with the Special Rapporteur on Human Rights
Defenders to Tunisia, from 25-30 June 2008. She
highlighted the existence of a genuine Policy
promoting the status of women in Tunisia;
Commissioner Mumba Malila
Activities as Commissioner
82.
Commissioner Malila, undertook the following activities:
i. On 20 June 2008, Commissioner Malila officially opened a
Workshop on Corruption and Human Rights in Crestar Golf
View Hotel, Zambia, where he presented a paper on
“Delay as opportunities for corruption in the Public
Service;”
ii. From 21-29 July 2008, he attended the 5th Extra-Ordinary
Session of the Commission in Banjul, The Gambia
convened to finalise the Draft Revised Rules of Procedure
of the African Commission;
iii. The Commissioner was invited in August 2008, to write a
foreword to two books on human rights for high schools in
Zambia authored by Mr. Enock Mulembe, the Director of
the Human Rights Commission in Zambia. He used this
opportunity to examine the role of the African Commission
and how it can be accessed;
iv. On 28 August 2008, he presented a paper on the
“Normative Content of the right to food,” at a workshop
organised by the Human Rights Foundation of Zambia at
30
25th Activity Report of the ACHPR
Garden House Hotel, Lusaka;
v. Between 6 and 10 October 2008, Commissioner Malila
undertook a promotional mission to the United Republic of
Tanzania.
vi. On 21 October 2008, he participated in a March Past
organised by various human rights Institutions in Zambia to
commemorate the Africa Human Rights Day, where he
made the key note address.
Activities as Special Rapporteur on Prisons and Conditions of
Detention in Africa
83.
Commissioner Malila, undertook the following activities;
i. During the 43rd Ordinary Session in Ezulwini, in the
Kingdom of Swaziland, the Special Rapporteur visited
three prisons, with other members of the African
Commission;
ii. On 11 June 2008, he had a meeting with Mr. Jon
Elliot, the Advocacy Director of the African Division of
Human Rights Watch in Lusaka, Zambia, where he
explained the operational modalities and mandate of
the Commission, as well as the challenges faced;
iii. He met with Ms Louise Ehlers, Director of the
Criminal Justice Initiative of the Open Society
Foundation for South Africa and Ms Louise Oliver
from the Open Foundation for South Africa (OSF-SA).
This Organisation is a grant making organisation
which ensures a more humane, efficient and
accountable justice process with particular emphasis
on policing, courts and prisons. During the meeting,
the Commissioner discussed the possibilities of
partnership between
OSF-SA and the African
Commission to redress some human rights issues
related to prisons in Southern Africa;
iv. From 5 to 10 September 2008, he undertook a joint
mission with the Chairperson of the Commission and
Commissioner Atoki to Liberia. During this mission, he
had the opportunity to visit prisons in Liberia and
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25th Activity Report of the ACHPR
assess the conditions of the same;
v. In September 2008, the Special Rapporteur was
invited to participate in the activities organised in
Livingstone, Zambia to launch the African
Correctional Services Association (ACSA). This
Association wishes to partner with the African
Commission in various issues dealing with the rights
and welfare of prisoners in Africa.
Commissioner Bahame Tom Mukirya Nyanduga
Activities as Commissioner
84.
Commissioner Nyanduga undertook the following activities:
i. He participated in the 5th Extraordinary Session of the
African Commission which took place in Banjul, the Gambia
from 21- 29 July 2008;
ii. On August 6, 2008, he also gave an interview to a magazine
of the Oslo Centre for Peace and Human Rights, regarding
the human rights situation in the Republic of Eritrea, in his
capacity as Commissioner responsible for promotion of
human rights in Eritrea in which he, inter alia, urged the
Republic of Eritrea to implement recommendations
contained in Communications and Resolutions on the human
rights situation in Eritrea;
iii. On August 21 2008, at the invitation of UNICEF in Tanzania,
he made a presentation during a workshop organised for
officials of the Zanzibar government to sensitise them on the
rights of children, since Zanzibar is in the process of
adopting a new legislation on children‟s rights;
iv. On August 28 2008, he delivered lectures to participants at
the Summer Courses on Human Rights, at the Catholic
University of Leuven, Belgium, on the Africa Human Rights
System, and the implementation of the ESCR in Africa;
v. On September 18 2008, Commissioner Nyanduga wrote a
foreword to an Audit Report conducted by the African
Policing Civilian Oversight Forum (APCOF), on police
accountability in Africa. APCOF is a forum composed of
representatives of police forces, civil society, and NHRIs in
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25th Activity Report of the ACHPR
Africa, working on promotion of police accountability and
civilian oversight bodies in Africa. He highlighted the role of
the African Commission in promoting the administration of
law and order, and the need for police forces in Africa to
ensure that policing conforms to the basic rights and
fundamental freedoms of the African people.
vi. From 27-29 September 2008, he participated in the
Brainstorming meeting for AU Organs, with human rights
mandate, which took place on Ouagadougou, Burkina Faso;
vii. On October 10 2008, Commissioner Nyanduga was a guest
of honour at a public rally to commemorate the International
Day on the Abolition of the Death Penalty. He addressed
participants and called on the government of Tanzania to
abolish the death penalty. The demonstration was organised
by Civil Society Organisations and the Tanganyika Law
Society, which later presented a petition to the High Court
challenging the constitutionality of the death penalty in
Tanzania;
viii. On October 20, 2008, Commissioner Nyanduga participated
in the 2008 MacArthur International Justice Lecture Series,
at the American University College of Law, Washington DC,
the United States, organised jointly by the University, the
Inter- American Human Rights Commission and the
MacArthur Foundation, on advocacy before Regional Human
Rights systems.;
ix. The Commissioner made a presentation on difficulties on the
implementation
of
the
African
Commission‟s
recommendations, adopted under the communications
procedure, reports of promotion and investigation missions,
and resolutions by the African Commission.
Report of Activities as Special Rapporteur for Refugees, Asylum
Seekers, Internally Displaced Persons and Migrants in Africa
85.
Commissioner Nyanduga, undertook the following activities:
i. During the 43rd Ordinary Session, held in Ezulwini, in the
Kingdom of Swaziland in May 2008, he issued a press
statement condemning the xenophobic attacks against
African migrants living in a number of townships, in major
cities in South Africa. The victims were mostly from
Zimbabwe, Mozambique, Malawi and Somalia;
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25th Activity Report of the ACHPR
ii. On May 23 2008, he granted an interview to Capital Radio of
Johannesburg and, called for the cessation of the
xenophobic attacks and urged the authorities to ensure that
timely action is taken to deal with the problem;
iii.
On 24 May 2008 at the invitation of the South African
Human Rights Commission, he participated in activities in
Johannesburg, including a Workshop organised by
Umthombo Lwazi, a community Association in Soweto to
sensitise the citizenry against xenophobia;
iv. From 2- 6 June 2008, he participated in a meeting of AU
member States‟ Legal Experts, in Addis- Ababa, Ethiopia to
finalize the draft AU Convention on the Protection and
Assistance to IDPs in Africa;
v. On July 3 2008, at the invitation of FIDA Uganda, he
attended a Workshop organised for the Chairmen of the
District Councils and the District RDCs from areas affected
by displacement due to the 20 year LRA insurgency in
Northern Uganda. He delivered a presentation on the role of
the African Commission on protection of Internally Displaced
Persons and commended the Programme for Development
and Reconstruction for the North adopted by the Ugandan
government;
vi. From 11- 15 August 2008, he carried out a Fact-finding
Mission to the Republic of Botswana, on the protection
regime for asylum seekers, refugees and migrants in
Botswana;
vii. On October 16, 2008, he submitted an article titled, “10th
Anniversary of the Guiding Principles: African Perspectives,”
to the Norwegian Refugees Centre, on the occasion of an
International Conference in Oslo, Norway, to commemorate
the 10th anniversary since the adoption of the UN Guiding
Principle on International Displacement. The Conference
was organised jointly by the Norwegian Foreign Ministry, the
Norwegian Refugee Council/ Internal Displacement
Monitoring Centre (IDMC), the Brookings-Bern University
IDP Project and the Representative of the UN Secretary
General on the human rights of IDPs;
viii. Between 5 and 11 November 2008, he participated in the
Experts and Ministerial meeting on Forced Displacement in
34
25th Activity Report of the ACHPR
Africa, organised by the Africa Union Commission to prepare
for the AU Special Summit on Forced Displacement, which
will inter alia , adopt the Draft AU Convention on the
Protection and Assistance to IDPs in Africa, in April 2009.
During the Addis Ababa Meeting, the Commissioner
presented a paper entitled, “Forging partnerships in
addressing forced displacement in Africa;”
Commissioner Kayitesi Zainabo Sylvie
Activities as Commissioner
86.
Commissioner Kayitesi undertook the following activities:
i. On 6 and 13 June, 2008, Commissioner Kayitesi, made
presentations to teachers in the North and South provinces
of Rwanda on: “International human rights mechanisms,”
during a training organised by the National Commission on
Human Rights of Rwanda, This was to ensure that
teachers have an enhanced knowledge that they can
transmit to students on the African Human Rights system;
ii. From 21 to 29 July 2008, she attended the 5th ExtraOrdinary Session in Banjul, The Gambia which examined
the Draft Rules of Procedure and Communications.
iii. On 5 September 2008, she took part in a Human Rights
Conference in Africa, on: “Challenges and Opportunities in
the New Millennium”, held in Kigali, Rwanda, under the
auspices of the Konrad Adenauer Foundation, where she
made a presentation on: “The African Commission and the
Human Rights Protection Mechanisms in Africa.” This
Conference was attended by Judges, representatives of
NHRIs and NGOs;
iv. On 8 September 2008, she discussed the need to ratify
the African Charter on Democracy, Elections and Good
Governance at a Meeting with the Minister of Justice and
Keeper of the Seals, and the Minister of Foreign Affairs
and Cooperation;
v. Between 9 and 10 October 2008, she had the opportunity
to carry out promotion on the RIGs during the 60th
Anniversary of the Universal Declaration of Human Rights;
She discussed issues relating to the treatment of prisoners
through speeches made before State authorities, prison
35
25th Activity Report of the ACHPR
staff, representative of UN agencies, representatives of
NGOs, representatives from embassies as well as
prisoners themselves;
vi. On 21 October 2008, Commissioner Kayitesi made a
Statement on behalf of the Chairperson of the African
Commission during the events marking Africa Human
Rights Day in Nairobi, Kenya;
Activities as Chairperson of the Working Group on the Death Penalty
87.
Commissioner Kayitesi carried out the following activity:
i.
From 8 to 9 November 2008, she participated in the
Meeting of the Working Group that took place in Abuja,
Nigeria. During the Meeting, a decision was made to
draft a Resolution urging Member States to comply with
the Moratorium on Death Penalty.
Commissioner Pansy Tlakula
Report of activities as Commissioner
88.
Commissioner Tlakula undertook the following activities:
i.
On 23 June 2008, she participated in the launching
of the 2007 Annual Report on Human Rights
Defenders by The Observatory in South Africa. The
Observatory is a partnership between the
International Federation for Human Rights (FIDH) and
the World Organisation Against Torture (OMCT),
which observes the activities and situation of human
rights defenders worldwide and produce a
comprehensive report on its findings;
ii.
On 21 October 2008, she participated in a Seminar,
jointly organised by the Human Rights Institute of
South Africa (HURISA), South Africa Human Rights
Commission, Khulumani Support Group, Africa
Institute of South Africa, and the Centre for African
Renaissance Studies, in Johannesburg, South Africa.
The objective of the Seminar was to commemorate
the Africa Human Rights Day and the 22nd
Anniversary of the coming to force of the African
36
25th Activity Report of the ACHPR
Charter. During the Seminar, she delivered the
Human Rights Day message on behalf of the
Chairperson of the Commission.
Report of activities as the Special Rapporteur on Freedom of
Expression in Africa
89.
Commissioner Tlakula, undertook the following activities:
i.
From 2 to 4 October 2008, the Special Rapporteur
attended the Regional Workshop on Access to
Information in Central and West Africa, in Yaoundé,
Cameroon, organised by the Open Society Justice
Initiative and the Citizens Governance Initiative, where
she delivered the keynote address on “Freedom of
Expression and Freedom of Information and the
Advancement of Access to Information in Africa”
ii.
On 14 October 2008, she participated in a Panel
Discussion in a workshop organised by the InterParliamentary Union (IPU) on “Freedom of Expression
and the Right to Information”. She delivered a paper
on the “State of the Right to Information in Africa”.
iii.
The Special Rapporteur sent Urgent Appeals to the
governments of The Gambia and Senegal, on allegations
of violations of the right to Freedom of Expression in
those countries. She also sent a letter to the government
of Niger urging that the imminent trial of a Niger journalist
respects applicable regional and international human
rights standards on the right to fair trial.
iv.
As part of her mandate to analyse national media
legislation, policies and practice within Member States,
monitor their compliance with freedom of expression
standards in general and the Declaration of Principles on
Freedom of Expression in particular, the Special
Rapporteur undertook research which analysed the
status of Freedom of Expression legislation in Africa.
This research revealed that only South Africa,
Zimbabwe, Angola, Uganda, Ethiopia, Tanzania and the
Democratic Republic of Congo have enacted Freedom of
Information legislation and that Zambia, Mozambique,
Malawi, Kenya, Ghana, Nigeria, Sierra Leone and
Burkina Faso have draft Bills at various stages of the
legislative process. She appeals to these countries to
37
25th Activity Report of the ACHPR
enact the Bills into law as soon as possible.
Commissioner Y.K.J. Yeung Sik Yuen
90.
In his capacity as Member of the Commission, he undertook the
following activities:
i. From 25-29 August 2008, he undertook a promotional
mission to the Republic of Benin;. During the Mission, he
held discussions with government officials, NGOs and Civil
Society Organisations and made recommendations which
are detailed in the Report submitted to the Commission for
consideration and adoption;
ii. From 28-31 October 2008, he attended a Seminar of the
Commonwealth Judicial Education Institute (CJEI) in
Arusha, Tanzania. During the Seminar, thematic issues
were discussed such as; human trafficking, HIV/AIDS,
Torture, fair trial etc.
iii. During the same period, he was invited by the President of
the International Criminal Tribunal in Rwanda (ICTR), and
observed the proceedings of a trial which was in progress.
iv. The Commissioner also attended a “collogue” at the
invitation of the French “Conseil Constitutionel” marking its
50th Anniversary which was attended by heads of
Judiciaries from French speaking countries
and all
European countries.
Report of activities as a Focal Point on the Rights of Older Person
91.
As the Chairperson of the Focal Point on the Rights of Older
Persons in Africa, he undertook the following activity:
i. From 2-3 October, 2008, he organised a Consultative
Meeting on the Rights of Older Persons in Africa in
Balaclava, Mauritius. This meeting was attended by the
Chairperson to the Commission, representatives from
HelpAge International (HAI), African Rehabilitation Institute
(ARI) and staff from the Secretariat of the Commission.
The aim of the meeting was to bring together stakeholders
38
25th Activity Report of the ACHPR
who have interest in providing and protecting the rights of
older persons, and to draw up measures to effectively
protect them. The Meeting, called the ACHPR to explore
further on how it can best take forward the issues of older
persons and people with disabilities, and should establish a
Working Group on the Rights of Older Persons to
entrench/legitimize the process of drafting the Protocol on
Ageing as soon as possible.
PRIVATE SESSION
Report of the secretary, including administrative and financial
matters
92.
The Secretary to the African Commission, Dr. Mary Maboreke,
presented her report to the African Commission. The report
covered the activities undertaken by the Secretariat in the sixmonth inter-session period between the 43rd Ordinary Session held
in Ezulwini, in the Kingdom of Swaziland, and the 44 th Session to
which the report was being made. The report also covered
administrative and financial matters relating to the work of the
Commission.
Staffing matters
93.
As reported at the last Session, the Secretariat still awaits a final
decision on the proposed structure. However, a decision has been
made by the Assembly of Heads of State and Government urging
the PRC to expedite consideration of the ACHPR‟S structure
request. In the meantime, a number of new staff have joined the
Secretariat. However, one old staff member resigned because she
secured herself a position at the UN. The Secretariat is following up
with the Headquarters in Addis Ababa for a replacement.
94.
The Secretariat has sought and received authorization to recruit a
French-speaking Legal Officer, as well as French and Arabic
translators, also on a temporary basis.
95.
Furthermore, a new Bilingual Secretary has been recruited on a
temporary basis to replace the former one who has now been
retained as a Finance Assistant.
96.
A new Documentalist also joined the Secretariat at the beginning of
May 2008.
39
25th Activity Report of the ACHPR
Acquisitions
A Staff Bus has been acquired for the Secretariat‟s use
97.
Progress regarding the construction of the Commission’s Headquarters
98.
The Secretariat continued to follow-up on the progress regarding
the construction of its Headquarters, and has been informed that
efforts are being stepped up in this regard. The Secretariat‟s lease
at its current location has expired, and new location has been
identified, where the Secretariat has to relocate to, by the end of
December 2008. Work is currently underway to convert the
building identified into offices for the Secretariat.
Relationship with partners
99.
The Secretariat continued to engage with its traditional partners,
particularly in terms of modalities for continuing the partnership, in
light of the new budgetary situation and related developments
Financial Matters
100.
Due to a lot of congestion during the second half of the year in the
activities of the ACHPR, only transactions up to the end of July
2008 could be fully posted to the accounts. Therefore by the end of
July 2008, 24.83% of the 2008 budget had been used as most
activities for the year had been pushed to the second half of the
year.
Budget
101.
The Commission has an approved budget of US$ 6,003,856.86 for
the 2008 Financial year
40
25th Activity Report of the ACHPR
Income
102.
The ACHPR had received a total of US$2,402,692.98 from AU
Headquarters as at the end of July 2008.
Statement on Special and Extra Budgetary Funds
103.
As at end of July 2008 the statement of Special funds and Extra
Budgetary funds stood at US$ 405,857.34 and US$120,284.37
respectively. There have however been a lot of developments since
July as a workshop on Human rights defenders was held using the
NORAD funds, The Pan-African Women‟s day Symposium was
also held utilizing part of the South African Funds and all the Rights
and Democracy Funds have been transferred to other Partners for
events leading to the 44th Ordinary Session. , (see Statement of
Fiduciary and Special Funds attached as Annex II, as well as the
Extra-budgetary funds of the Commission).
Subvention received from AU Headquarters
104.
The first Quarter subvention received from the AU Headquarters
was USD 493, 787, 95, Second Quarter Subvention was USD 600,
000, 00, and Third Quarter Subvention was USD 1,308, 905, 03.
Making a total of USD 2, 402 692, 98.
Activities undertaken by the Commission during the intersession, including
workshops and seminars
105.
During the intersession May - November 2008, the Commission
undertook/and or participated in a number of activities. A tabulated
format of these activities has been attached to this Report as
Annex III.
CONSIDERATION OF STATE REPORTS
106.
In accordance with the provisions of Article 62 of the African
Charter, the Federal Republic of Nigeria presented its second
Periodic Report covering the period 2005 – 2008, to the African
Commission. During the examination of the Report, the
Commission engaged in a constructive dialogue with the State
Party with regards to the enjoyment of human rights in the country.
41
25th Activity Report of the ACHPR
ADOPTION OF CONCLUDING OBSERVATIONS
107.
The Commission adopted Concluding Observations on the Periodic
Report of Nigeria.
Status of submission of State Reports
108.
The status of submission and presentation of the State Reports as
at the 44th Ordinary Session of the Commission stood as follows: 1
No.
Category
1.
States which have submitted and
presented all Reports
States which have submitted all their
Reports and will present the next Report
at the 45th 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
2.
3.
4.
Number
of States
9
5
26
13
a) States which have submitted and presented all their Reports:
1
No.
State Party
1.
Algeria
2.
Kenya
3.
Nigeria
4.
Rwanda
5.
Sudan
6.
Tanzania
7.
Tunisia
Updated: October 2008
42
25th Activity Report of the ACHPR
8.
Zambia
9.
Zimbabwe
b) States which have submitted all their Reports but are yet to present
them :
No.
1.
State Party
Benin
2.
DRC
3.
Madagascar
4.
Ethiopia
5.
Uganda
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
d) States which have submitted one report but owe more:
No.
1
2.
3.
4.
5.
6.
State Party
Angola
Burkina Faso
Burundi
Cameroon
Cape Verde
Central African Republic
43
Status
5 overdue Reports
2 overdue Reports
3 overdue Reports
1 overdue Report
5 overdue Reports
1 overdue Report
25th Activity Report of the ACHPR
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Chad
Congo(Brazzaville)
Egypt
Gambia
Ghana
Guinea Republic
Lesotho
Libya
Mali
Mauritania
Mauritius
Mozambique
Namibia
Niger
Saharawi Arab Democratic Rep
Seychelles
Senegal
South Africa
Swaziland
Togo
4 overdue Reports
2 overdue Reports
1 overdue Report
6 overdue Reports
3 overdue Reports
5 overdue Reports
3 overdue Reports
1 overdue Report
4 overdue Reports
2 overdue Reports
6 overdue Reports
5 overdue Reports
3 overdue Reports
2 overdue Reports
2 overdue Reports
2 overdue Reports
2 overdue Reports
1 overdue Report
3 overdue Reports
3 overdue Reports
e) States which have not submitted any reports:
No.
State Party
1.
Botswana
10 overdue Reports
2
Comoros
10 overdue Reports
3
Côte d'Ivoire
7 overdue Reports
4
Djibouti
8 overdue Reports
5
Equatorial Guinea
10 overdue Reports
6
Eritrea
4 overdue Reports
7
Gabon
10 overdue Reports
8
Guinea Bissau
11 overdue Reports
9
Liberia
12 overdue Reports
10
Malawi
9 overdue Reports
11
Sao Tome & Principe
10 overdue Reports
12
Sierra Leone
12 overdue Reports
13
Somalia
11 overdue Reports
44
Status
25th Activity Report of the ACHPR
PROTECTION ACTIVITIES
109.
Pursuant to Articles 46-59 of the African Charter, during the period
covered by this Activity Report, the African Commission undertook
several measures to ensure the protection of human and peoples‟
rights on the continent. These included, among others, writing
Urgent Appeals, in reaction to allegations of human rights violations
received from stakeholders, and Press Releases addressing
human rights violations.
110.
In addition, during the 44th Ordinary Session, a total of seventyfour (74) Communications were tabled before the African
Commission: Ten (10) on seizure; forty-four (44) on admissibility;
and twenty (20), on merits.
111.
During the said Session, the Commission decided not for various
reasons, not to be seized of four communications, it finalized
consideration of two Communications by declaring one
inadmissible and finding violations on the other.
112.
The Communication declared inadmissible is Communication
308/2005 – Michael Majuru/Zimbabwe, and the Commission
found violations with respect to Communication 281/2003 –
Marcel Wetshiokonda/DRC.
113.
The
decision
on
Communication
308/2005-Michael
Majuru/Zimbabwe is attached to this Report as Annex IV.
114.
The
decision
on
Communication
281/2003Marcel
Wetshiokonda/DRC would be attached to the next Activity Report
due to the fact that, translation and harmonisation of the same is
still pending.
115.
Further consideration of the other Communications was differed to
the 45th Ordinary Session, for various reasons.
45
25th Activity Report of the ACHPR
ADOPTION OF REPORTS
116.
During the 44th Session, the African Commission adopted the
following reports:
i.
ii.
iii.
iv.
v.
vi.
Report of Fact-Finding Mission to the Republic of
Botswana;
Report of the Promotion Mission to the Republic of
Zambia;
Report of the Promotion Mission to the Republic of
Malawi;
Report of the Working Methods Workshop of the African
Commission;
Report of the Brainstorming/Consultative Meeting of AU
Organs on their Working Relations;
Report of the Conference on Strategic Partnering on
Human Rights in Africa
ADOPTION OF RESOLUTIONS
117.
During the Session, the African Commission adopted the following
Resolutions:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
IX.
Resolution calling on State Parties to Observe the
Moratorium on the Death Penalty;
Resolution on the Human Rights situation in the DRC ;
Resolution on Joint Promotional Missions;
Resolution on the Human Rights Situation in the
Republic of The Gambia;
Resolution on Maternal Mortality in Africa;
Resolution on the Human Rights Situation in Somalia;
Resolution on Elections in Africa;
Resolution on the Human Rights and Humanitarian
Situation in Zimbabwe;
Resolution on Access to Health and Needed Medicine in
Africa;
46
25th Activity Report of the ACHPR
PROPOSED VENUE FOR THE 45th ORDINARY SESSION
118.
The African Commission decided that the 45th Ordinary Session will
be held from 13-28 May 2009, in Banjul, The Gambia.
47
25th Activity Report of the ACHPR
THE 5th EXTRA-ORDINARY SESSION OF THE AFRICAN
COMMISSION, 21 - 29 July, 2008 BANJUL, THE GAMBIA
119.
From 21 - 29 July, 2008, the African Commission held its 5th Extraordinary Session in Banjul, The Gambia.
120.
The following members of the African Commission attended the
Session:
-
Commissioner
Sanji
Mmasenono
Monageng
Chairperson;
Commissioner Angela Melo-Vice-Chairperson;
-
Commissioner Reine Alapini-Gansou;
Commissioner Catherine Dupe Atoki;
Commissioner Musa Ngary Bitaye;
Commissioner Soyata Maiga;
Commissioner Mumba Malila;
-
Commissioner Bahame Tom Mukirya Nyanduga;
Commissioner Kayitesi Zainabo Sylvie;
-
-
121.
The Session was chaired by Honourable Commissioner Sanji
Mmasenono Monangeng.
122.
It was convened, amongst other reasons, to finalise the Draft
revised Rules of Procedure of the Commission and to consider the
backlog of Communications.
123.
The following Communications on admissibility were considered
and adopted by the Commission:
i. 300/05 - Serap/Nigeria
ii. 302/05 - Maitre Mambeolo/DRC
124.
The following Communications on the merits were considered and
adopted by the Commission:
i.
ii.
iii.
242/01 Interights & IHRDA/Mauritania
246/02-MIDH/Cote D‟Ivoire
262/2002-MIDH/Cote d‟Ivoire
48
25th Activity Report of the ACHPR
125.
The decisions on Communications: 246/02-MIDH/Cote d’Ivoire
and 300/05-Serap/Nigeria are attached to this Report as part of
Annex IV. The others will be attached to the next Activity Report.
ADOPTION OF THE TWENTY- FIFTH ACTIVITY REPORT
126.
In accordance with Article 54 of the African Charter on Human and
Peoples‟ Rights, the African Commission submits the present
Twenty fifth (25th) Activity Report to the 14th Ordinary Session of the
Executive Council of the African Union, for consideration and
onward transmission to the 12th Summit of Heads of State and
Government of the African Union, held in Addis Ababa, Ethiopia.
49
25th Activity Report of the ACHPR
ANNEX I
AGENDA OF THE 44TH ORDINARY
SESSION
50
25th Activity Report of the ACHPR
AGENDA OF THE 44th ORDINARY SESSION OF THE AFRICAN
COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
(10th – 24th Nov. 2008, Abuja, Nigeria)
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 the African Union Committee of Experts on the Rights and
Welfare of the Child;
c) Statements by Intergovernmental 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) Cooperation between the ACHPR and NHRIs:
Relationship with NHRIs.
b) Cooperation between the ACHPR and NGOs:
i.
Relationship with NGOs;
ii.
Consideration of Applications for Observer Status from NGOs.
Item 6: Consideration of State Reports (Public Session).
a) Status of Submission of State Party Reports
b) Consideration of:
i.
The Periodic Report of the Democratic Republic of Congo;
ii.
The Initial Report of the Republic of Madagascar;
iii.
The Periodic Report of the Federal Republic of Nigeria.
Item 7: Promotion Activities (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. Special Rapporteur on Prisons and Conditions of Detention
in Africa;
ii. Special Rapporteur on the Rights of Women in Africa;
iii. Special Rapporteur on Refugees, Asylum Seekers, Internally
Displaced Persons and Migrants in Africa;
iv. Special Rapporteur on Human Rights Defenders in Africa;
v. Special Rapporteur on Freedom of Expression and Access
to Information in Africa;
vi. Chairperson of the Working Group on the Implementation of
the Robben Island Guidelines;
51
25th Activity Report of the ACHPR
vii. Chairperson of the Working Group on the Situation of
Indigenous Peoples/Communities in Africa;
viii. Chairperson of the Working Group on Economic, Social and
Cultural Rights in Africa;
ix. Chairperson of the Working Group on the Death Penalty;
x. Chairperson of the Working Group on Specific Issues
Relevant to the Work of the African Commission;
xi. Chairperson of the Focal Point on the Rights of Older
Persons.
Item 8: Consideration of (Private Session)
a)
Draft Rules of Procedure of the ACHPR;
b)
Joint Missions;
c)
Protection of the Environment and Natural Resources;
d)
Report of the Ouagadougou Meetings;
e)
Report of the Kampala Meeting;
f)
Internal and administrative matters on the work of the ACHPR.
Item 9: Consideration and Adoption of Draft Mission Reports (Private Session)
a) Promotional Missions:
i.
Promotional Mission to the Republic of Malawi
ii.
Promotional Mission to the Republic of Zambia
b) Fact-finding Mission by the Special Rapporteur on Refugees, Asylum
Seekers, Internally Displaced Persons and Migrants in Africa, to the Republic of
Botswana;
c) Joint Mission of the Special Rapporteur on Women in Africa and the Special
Rapporteur on Human Rights Defenders in Africa to the Republic of Tunisia.
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 Initial/Periodic Reports.
Item 13: Dates and Venue of the 45th Ordinary Session of the ACHPR (Private Session)
Item 14: Any Other Business (Private Session)
Item 15: Adoption of: (Private Session)
a) 25th Activity Report;
b) Final Communiqué of the 44th Ordinary Session;
c) Report of the 43rd Ordinary Session;
d) Report of the 44th Ordinary Session.
52
25th Activity Report of the ACHPR
Item 16: Reading of the Final Communiqué and Closing Ceremony (Public Session)
Item 17: Press Conference (Public Session)
53
25th Activity Report of the ACHPR
ANNEX II
Statement of Fiduciary & Special Funds and
Extra-budgetary funds of the Commission
54
25th Activity Report of the ACHPR
Statement of Fiduciary and Special Funds
AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS
BANJUL, THE GAMBIA
STATEMENT OF FIDUCIARY AND SPECIAL FUNDS
AS AT JULY 31st 2008
Fund
Balance
Received
Available Expenditure
As at
During the During the
Name
01/01/2008
Period
Period
Incurred
US $
US $
US $
US $
1 Human Right & Democracy Canada
29 457,52
0,00 29 457,52
0,00
2 Human Right Defenders
Rights and Democracy - Women's
3 forum
Available
US$
29 457,52
5 220,00
0,00
5 220,00
0,00
5 220,00
781,49
0,00
781,49
0,00
781,49
13 312,75
230
254,99
0,00
21 269,89
4 South African Government
243 567,74
0,00 243 567,74
Rights and Democracy - WGSI &
5 Orentat
21 269,89
0,00
6 NORAD
Balance
21 269,89
118 873,45
0,00 118 873,45
0,00
419 170,09
0,00 419 170,09
13 312,75
55
118
873,45
405
857,34
25th Activity Report of the ACHPR
AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS
BANJUL, THE GAMBIA
STATEMENT OF OTHER EXTRA BUDGETARY FUNDS
Fund
Name
Balance
As at
01/01/2008
Received
During the
Period
Available
During the
Period
Expenditure
Balance
Incurred
Available
1 Danish Centre for Human Rights
US $
4 625,05
US $
12 975,00
US $
17 600,05
US $
US $
15 849,07 1 750,98
2 Working group on Indigenous populations
24 963,09
0,00
24 963,09
16 728,36 8 234,73
3 OSIWA
158 537,81
0,00
158 537,81
48 239,15 110 298,66
188 125,95
12 975,00
201 100,95
80 816,58 120 284,37
56
25th Activity Report of the ACHPR
ANNEX III
ACHPR IMPLEMENTED ACTIVITIES FOR
2008
57
25th Activity Report of the ACHPR
ACHPR BUDGETED ACTIVITIES FOR 2008
S/NO.
ACTIVITY
1.
Presentation of Budget &
Structure
2.
DATES
JANUARY
VENUE
STATUS
9th – 11th
Addis Ababa, Ethiopia
Done
AU Summit
25th January - 2nd February
Addis Ababa, Ethiopia
Done
3.
Meeting of the WGSI
relating to the work of the
ACHPR
15 – 17th
Banjul, The Gambia
Done
4.
4th Extraordinary Session
of the ACHPR
17th – 24th
Banjul, The Gambia
Done
5.
Preparatory mission for
the 43rd Ordinary Session
3rd – 8th
Kingdom of Swaziland
Done
6.
1st Staff Retreat
27th – 29th
Banjul, The Gambia
Done
FEBRUARY
MARCH
APRIL
7.
AU Audit Training on
Process Facility of the
AUC
1st – 3rd
Banjul, The Gambia
Done
8.
OPCAT Conference
(RIG)
3rd – 4th
South Africa
Done
58
25th Activity Report of the ACHPR
MAY
th
th
9.
Meeting of the Working
Group on the Death
Penalty
4 –5
Kingdom of Swaziland
Done
10.
Technical Preparatory
Committee Meeting on
Indigenous Issues
4th - 5th
Kingdom of Swaziland
Done
11.
House-keeping meeting
6th
Kingdom of Swaziland
Done
12.
Meeting on Budgetary
and Legal Matters
12th
Kingdom of Swaziland
Done
13.
43rd Ordinary Session
7th to 22nd
Kingdom of Swaziland
Done
14.
Africa Day celebrations:
25th
(23rd -24th )
Kingdom of Swaziland
15.
16.
17.
18.
19.
i.
ii.
iii.
Workshop on the
Ratification of the
Protocol to the African
Charter on Human and
Peoples‟ Rights on the
Rights of Women in Africa
Workshop for Lawyers,
Journalists and NGOs
Africa Day
Done
23 – 25
Kingdom of Swaziland
Done
24
Kingdom of Swaziland
Done
25
Kingdom of Swaziland
Celebrated
Nigeria
Gambia
Done
Press Statement
Issued
Done
Done
JUNE
RIG Workshop
Day of the African Child
16
Joint Promotional Mission 14 – 19
AU Pre-Summit Gender 21 - 24
Meeting on “Gender Is My
Agenda Forum”
Promotional Mission
25 – 30
Libya
Egypt
Tunisia
Done
AU
Policy
Organs 24 June – 2nd July
meetings & Summit
Egypt
Done
59
25th Activity Report of the ACHPR
20.
Refugee Day
20
Gambia
Press Statement
Issued
21.
Promotional Mission
23 – 1 July
Ethiopia
Done
4
5
South Africa
South Africa
Done
Done
17 – 18
15 – 19
Nigeria
Mali
Done.
Gambia
Gambia
Done
Press Statement
issued
Togo
Done
JULY
22.
23.
24.
25.
HRE Consultation
Africa
Moot
Court
Competition
RIG Workshop
Promotional Mission
Done
28.
5th Extraordinary session
21 – 29
Pan African Women‟s 31
Day
Promotional Mission
30 July – 5 August
29.
Fact Finding Mission
11 - 15
Botswana
. Done
30.
Meeting of the Steering
Committee on IPC in
Africa
Pan African Women‟s
Symposium
Preparatory Mission for
Working
Methods
Workshop
&
Brainstorming/
Consultation
of
AU
Organs
Promotional Mission
11 - 13
Gambia
Done
13 - 14
Gambia
Done
14 - 18
Burkina Faso
Done
25 - 29
Benin
Done
Benin
Done
Liberia
Done
26.
27
AUGUST
31.
32.
33.
34.
35.
Consultative Meeting on 31 August – 3 Sept.
HRD
SEPTEMBER
Advance
team
in 1 - 3
preparation for the RIG
Workshop
60
25th Activity Report of the ACHPR
36.
Preparatory Mission for 1 - 5
the 44th Ordinary Session,
the HRE Seminar, and
the Diplomatic Training
Nigeria
Done
37.
Promotional Mission
1-5
Ghana
Done
38.
39.
RIG Workshop
Promotional Mission
4–6
8 – 12
Liberia
Liberia
Done
40.
Preparatory Mission for 10 - 13
the
Conference
on
Strategic Partnering
Stakeholders
13 - 16
Consultation
on
Indigenous Populations in
Africa
Staff retreat
18 – 20
Uganda
Done
Ethiopia
Done
Gambia
Done
AU/EC Consultation
Working
Methods
Workshop
Brainstorming
and
Consultation
of
AU
Organs on their Working
Relations
Mission for the Closure of
the AU office in Dakar
20 - 26
26 – 27
Ethiopia
Burkina Faso
Done
Done
28 – 30
Burkina Faso
Done
26 September – 1 October
Dakar
Done
Older 1 – 3
Mauritius
Done
6 -10
Tanzania
Done
Meeting of the Advisory 8 – 9
Sub-Committee
on
Administrative
and
Budgetary Matters
Consultation
and 13 – 16
Sensitisation Seminar on
the Rights of Indigenous
Populations/ Communities
in Africa
Africa Human Rights Day 21
Ethiopia
Done
Ethiopia
Done
Gambia/Uganda
Celebrated
Conference on Strategic 20 – 22
Partnering
Uganda
Done
41.
42.
43.
44.
45.
46.
Done
OCTOBER
47.
48.
49.
50.
51.
52.
Consultation
Persons
Promotional
Mission
on
61
25th Activity Report of the ACHPR
53.
Meeting on Administrative 26 – 30
and Budgetary Matters
Ethiopia
Done
54.
First AU Ministerial
Conference
Preparation and
finalization of documents
for the 44th Ordinary
Session including:
Namibia
Done
Gambia
Done
55.
27 - 31
- Communications;
- 23 reports comprising :
Promotional Missions,
Fact-Finding Missions &
Major Seminars/
Workshops;
- Summaries,
questionnaires and draft
Concluding Observations
on States Reports (DRC,
Madagascar, Nigeria &
Sudan);
- Finalization /
Harmonisation of the
ROPs
NOVEMBER
56.
HRE Seminar
4–5
Nigeria
Done
57.
58.
Diplomatic Training
Meeting of the WG on
ECOSOC
Meeting of the WG
Indigenous Populations in
Africa
Meeting of the WG on the
Death Penalty
NGO Forum
6–7
5-6
Nigeria
Nigeria
Done
Done
6-7
Nigeria
Done
8–9
Nigeria
Done
7–9
Nigeria
Done
Nigeria
Done
Nigeria
Done
59.
60.
61.
62.
63.
Roundtable Discussions 14
Upholding
Women‟s
Rights to High Standard
of Living, Health, Housing
and Wellbeing
44th Ordinary Session
10 – 24
62
25th Activity Report of the ACHPR
DECEMBER
64.
Budget Discussion
Presentation
& 1 December
65.
Promotional
(WGIP)
66.
Promotional Mission
67.
Regional HR Seminar for
Journalists
68.
Movement to new Office
Building
Ethiopia
Done
Rwanda
Done
1–5
Congo (Brazzaville)
Done
16 – 18
Cameroon
Done
Gambia
Pending
Mission 1 - 5
63
25th Activity Report of the ACHPR
ANNEX IV
Decisions on Communications
Brought Before The African Commission
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25th Activity Report of the ACHPR
Communication 246/2002- Mouvement Ivoirien des
(MIDH)/Côte d’Ivoire
Droits
Humains
Summary of facts
1. On 8 February 2002, the Secretariat of the African Commission on Human
and People‟s Rights (the African Commission) received from Mr. Ibrahima
Doumbia, First Vice-President of the Mouvement Ivoirien des Droits
Humains (MIDH)2 a Communication submitted pursuant to Article 55 of the
African Charter on Human and Peoples‟ Rights (the African Charter).
2. The Communication was filed against the Republic of Côte d‟Ivoire (State
Party3 to the African Charter, hereunder referred to as Côte d‟Ivoire) in
which MIDH alleges that the Constitution of Côte d‟Ivoire, adopted by a
minority of citizens during the Constitutional Referendum of 23 rd July 2000,
contained provisions which are discriminatory to some citizens of Côte
d‟Ivoire, prohibiting them from performing political functions.
3. The Communication alleges furthermore that the provisions granting
immunities to some persons, particularly the members of the National
Committee for Public Security (CNSP), the military executive organ which
ruled the country during the military transition period (from 24 December
1999 to 24 October 2000), as well as the authors of the coup d‟état of 24
December 1999, were discriminatory.
Complaint
4. The Complainant alleges that the events cited above constitute a violation
of Articles 2, 3 and 13 of the African Charter and requests the African
Commission to recommend to Côte d‟Ivoire to review Articles 35, 65 and
132 of the Constitution adopted on 23rd July 2000.
Procedure
5. During the 31st Ordinary Session held in Pretoria, South Africa, from 2 nd to
16th May 2002, the African Commission considered this Communication
and decided to be seized of the said Communication.
2
The MIDH is an NGO based in Côte d’Ivoire and which enjoys Observer Status with the African
Commission on Human and Peoples’ Rights since October 2001 (30 th Ordinary Session).
3
Côte d’Ivoire ratified the African Charter on 6th January 1992.
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25th Activity Report of the ACHPR
6. Through Note Verbale ACHPR/COMM 246/2002 dated 11th June 2002,
the Secretariat of the Commission informed the Respondent State (Côte
d‟Ivoire) of this decision and requested it to provide within two months its
arguments on the admissibility of the Communication.
7. Through its letter ACHPR/OBS/266 of the 11th June 2002, the Secretariat
of the African Commission informed the Complainant (MIDH) of this
decision and requested it to provide within two months its arguments on
the admissibility of the case.
8. Through Note Verbale No. 563/MEMREIE/AF/AJC/BAB/VG of 16th
October 2002, the Minister of State, Ministry of Foreign Relations and
Ivorians living abroad requested the African Commission for extra time to
present its arguments and observations on the Communication.
9. This request from the Respondent State which the African Commission
received during the 32nd Ordinary Session held from 17 to 23 October in
Banjul, The Gambia, prompted the Commission to defer its decision on the
admissibility of the Communication to the 33rd Ordinary Session.
10. In Note Verbale ACHPR/COMM 246/2002 of 28th October 2002, the
Secretariat of the Commission informed the Respondent State that an
extra period of three (3) months was granted and that its arguments and
observations on the Communication were expected by end January 2003.
11. The same information was communicated to the Complainant by letter
ACHPR/COMM 246/02 of 28th October 2002.
12. Having received no reply from the Respondent State by end January
2003, the Secretariat of the Commission sent a reminder by Note Verbale
ACHPR/246/02 of 10th February 2003, drawing the attention of Côte
d‟Ivoire to the fact that its arguments and observations on the
Communication were necessary for the Commission to take a well
informed decision on the admissibility of the case during its 33 rd Session
scheduled for May 2003.
13. During its 33rd Ordinary Session held from 15th to 29th May 2003 in
Niamey, Niger, the Commission decided to defer its decision on the
admissibility of this Communication to its 34th Session, thus granting the
verbal request of the delegate of the Respondent State attending the
Session for extra time to present its arguments, particularly on the
admissibility of the case.
14. The Secretariat of the Commission also gave a copy of the complaint to
the delegate of Côte d‟Ivoire attending the Session.
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25th Activity Report of the ACHPR
15. On 11th June 2003, through its Note Verbale ACPHR/246/2002, the
Secretariat sent a copy of the complaint to the Respondent State by DHL,
requesting a rapid response, in any case before the end of August 2003,
to enable the Commission make a ruling on the admissibility of the case.
16. The Secretariat also wrote to the Complainant on 11th June 2003
explaining to him the reasons of the postponement of the decision of the
Commission on the admissibility of the Communication.
17. During its 34th Ordinary Session which was held from the 6th to 19th
November 2003 in Banjul, The Gambia, the representatives of the
Respondent State made an oral presentation before the Commission and
conveyed the substance of their observations on the issue in a written
memo to the Secretariat.
18. During the 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 decided to declare it admissible.
19. On 21st June 2004, the Secretariat notified the decision of the African
Commission to the parties and requested them to submit their submission
on merits within 3 months.
20. At its 36th Ordinary Session, which was held from 23rd November to 7th
December 2004, in Dakar Senegal, the African Commission considered
the Communication and deferred it to the 37th Ordinary Session pending
receipt of the arguments of the Respondent State on the merits of the
case.
21. On 20th December 2004, the Secretariat of the African Commission
notified this decision to the Respondent State and requested its
submission on the merits as early as possible.
22. On the same date, a similar letter was sent to the Complainant requesting
him to submit, at the earliest, his arguments on the merits of the case.
23. At its 37th Session, the African Commission, acceding to the request of the
respondent Party, deferred its decision on the merits of the Complaint
pending receipt of its arguments. This decision was conveyed to both
Parties on the 3rd June 2005.
24. On 12 September 2005 a reminder was sent to the Respondent State.
25. On 8th November 2005, the Respondent State forwarded
supplementary submissions on the merits of the Complaint.
its
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25th Activity Report of the ACHPR
26. The Secretariat acknowledged receipt of these submissions and conveyed
them to the Complainant on the 10th November 2005.
27. At its 38th Ordinary Session which took place from the 21st November to
5th December 2005 in Banjul, the Gambia, the African Commission
considered the Complaint and deferred its decision to the 39th Session.
28. On the 7th December 2005, the Parties were informed of this decision.
29. At its 41st ordinary session held in Ghana in May 2007, the Commission
considered the above communication and decided to defer it to its 42nd
session on the request of the Respondent State who informed the
Commission that it had intiated amicable settlement of the matter with the
complainant.
30. By note verbale of 7 July 2007 and by letter of the same date, both parties
were notified of the Commission‟s decision.
31. At its 42nd Ordinary Session, held in Brazzaville, Republic of Congo, the
African Commission considered the Communication and deferred its
decision to the 43rd Ordinary Session due to confirm from the complainant
whether they were engaged in amicable settlement as suggested by the
State.
32. By note verbale of 19 December 2007 and by letter of the same date, both
parties to the Communication were notified of the Commission‟s decision.
LAW
Admissibility
Complainant’s submissions on admissibility
33. The Complainant submits that the only possible remedy against the
Ivorian Constitution is to request its revision, which, though provided for in
the said Constitution, “is impossible in the present state of affairs”. He
added that, under Article 124 of the Ivorian Constitution, “the initiative for
the review of the Constitution is a joint undertaking by the President of the
Republic and the members of the National Assembly”.
34. He argues further that the President of the Republic has on several
occasions clearly expressed his opposition to any review of the
Constitution. The Complainant also alleges that the President of the
Republic has peremptorily asserted that he will never submit the
Constitution to a review, which clearly expresses his intention of not
applying this mechanism which only he and the Speaker of the National
Assembly have the prerogative to initiate.
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25th Activity Report of the ACHPR
35. The Complainant alleges further that, the Speaker of the National
Assembly, speaking on behalf of all the Deputies of the Forum for National
Reconciliation, rejected the possibility of a Constitutional review by
asserting that “the people of Côte d‟Ivoire do not want a constitutional
review”.
36. The Complainant further argues that the final hope to have the Authorities
(the President of the Republic and the Speaker of the National Assembly)
reconsider their position remained with the “National Forum for National
Reconciliation held from 9th October 2001 to 18th December 2001 in
Abidjan”. And yet, the Forum, in its final resolutions, did not rule on a
review of the Constitution.
37. The Complainant contends therefore that there is no possible domestic
remedy in this particular case and asks the African Commission to draw
the appropriate conclusions by declaring the Communication admissible.
Respondent State’s Submissions on admissibility
38. The Respondent State, in a memorandum conveyed to the African
Commission on 10 November 2003 claims that as far as it is concerned,
the Communication is “inadmissible and baseless”. The Respondent State
maintains that there is indeed a local remedy “constituted by the imminent
revision of Articles 124 and others of the Constitution”.
39. The Respondent State further notes that the Complainant has not
submitted any evidence on the use and exhaustion of existing local
remedies. The Respondent State which considers “local remedies” as any
legal and lawful action undertaken to “ensure the cessation of the alleged
violations” claims that the Complainant did not attempt anything of the
sort.
40. Concerning the request of the Complainant relative to the revision of
certain Articles of the Ivorian Constitution, the Respondent State intimates
that the Ivorian people freely espoused this Constitution which in no way
“either grossly or manifestly negates human dignity”. It concludes
therefore that the request for revision of this Constitution by the
Complainant is not “compatible with the provisions of the OAU Charter and
the African Charter on Human and Peoples‟ Rights” and that the
Communication should therefore be declared inadmissible by the African
Commission, because it is not in conformity with Article 56 (2) of the
African Charter.
Decision of the Commission on admissibility
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25th Activity Report of the ACHPR
41. The admissibility of communications submitted to the African Commission
pursuant to Article 55 is determined by seven requirements provided for
under Article 56 of the African Charter. In communications 147/95 and
149/96 – Sir Dawda K Jawara v The Gambia, the Commission held that
these requirements must all be satisfied for a communication to be
declared admissible.
42. In the present communication, without making references to the other
requirements, the complainant submits that local remedies are not
available in his circumstance, as the remedy available could only be used
by the President and the members of the National Assembly. He then
concluded that for this reason, there are no remedies and the
communication should be declared admissible. The state on the other
hand avers that the communication is incompatible with the OAU Charter
and the African Charter, and without specifying, also notes that the
complainant has not attempted the remedies available to him. The state
concludes that for the above reasons, the communication should be
declared inadmissible.
43. In view of the foregoing, the African Commission notes that since the state
did not raise objections on the other requirements under Article 56, it is
presumed that they have been complied with by the complainant. The
Commission will therefore pronounce on the two requirements in dispute,
that is Article 56(2) incompatibility with the Charter, and Article 56 (5)
exhaustion of local remedies.
44. Compatibility, according to the Black’s Law Dictionary means „in
compliance‟ or „in conformity with‟ or „not contrary to‟ or „against‟. The
African Commission has interpreted compatibility under Article 56 (2) of
the Charter to mean the communication must reveal a prima facie violation
of the Charter. In the present communication, the complainant alleges that
the Cote d‟ Ivoire constitution of 2000 includes provisions which are
discriminatory and do not provide citizens of the country equal opportunity
to fully participate in the governance of their country. The complainant
claims that in terms of Article 35 of the constitution “The President of the
Republic ………..should be of Ivorian origin, born of a Father and Mother
of Ivorian origin……….”, Article 65 of the constitution stipulates that a
Candidate to the Presidential elections or to the functions of Speaker or
Deputy Speaker of the National Assembly “should be or Ivorian origin, with
both parents being of Ivorian origin, should never have renounced Ivorian
nationality, and should never have acquired another nationality” and
Article 132 according to the complainant accorded civil and criminal
immunity to the members of the former National Committee for Public
Security (CNSP), an executive military body which had directed the
transition, and to the perpetrators of the events which brought about the
change of Government following the Coup d‟Etat of 24 December 1999.
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25th Activity Report of the ACHPR
These allegations in the opinion of the Commission do raise a prima facie
violation of human rights. Based on this, the African Commission holds
that the requirement of Article 56(2) of the African Charter has been
sufficiently complied with.
45. Secondly, the respondent State contends that the complainant has not
attempted any domestic remedies. The complainant has stated clearly that
the remedy available to secure a revision of the Constitution can be used
only by the President and the members of parliament. It is not available to
any other individual or citizen. The respondent state did not dispute this
fact but instead indicated, without elaborating, that the complainant has
not submitted any evidence on the use and exhaustion of existing local
remedies, adding that “local remedies” include any legal and lawful action
undertaken to “ensure the cessation of the alleged violations”.
46. In Sir Dawda K. Jawara/The Gambia, the African Commission made it
clear that a local remedy is available if the Complainant is able to pursue it
without any hindrance; the remedy is effective if it offers the Complainant
the possibility of success and if this remedy is adequate and capable of
providing reparation for the alleged violation4.
47. Where the complainant demonstrates to have exhausted all remedies, the
burden shifts to the respondent state which has to show the remedies
available and the extent to which the complainant could use them to
remedy his/her claim. Making a general statement on the availability of
local remedies without substantiating is not sufficient. This view is
supported by the Human Rights Committee on Albert Mukong v
Republic of Cameroon,5 where the Committee stated that the State party
had merely listed in abstracto the existence of several remedies without
relating them to the circumstances of the case, and without showing how
they might provide effective redress in the circumstances of the
complainant‟s case.
48. In the Velasquez Case6 the Inter-American Court on Human Rights, in
interpreting Article 46 of the Inter-American Human Rights Convention
(Article similar to Article 56 of the African Charter) on the matter of
exhaustion of local remedies, declared that, for the necessary condition of
the exhaustion of local remedies to apply, the local remedies of the State
concerned should be available, adequate and effective so that they can be
used and exhausted.
4
Communication 147/95 and 149/96 – Sir Dawda K. Jawara/The Gambia.
5
Communication No. 458/1991.
6
Velasquez Rodriguez Case, Judgment of the 29th July 1988, Inter-Am.Ct.H.R (Ser.C) No.4 (1988).
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25th Activity Report of the ACHPR
49. In the present case, the Complainant does not have the possibility of
resorting to any judicial means to remedy the alleged violation as the
mechanism provided for by Article 124 of the Constitution is not available
to him. In effect, the Complainant does not have the necessary capacity to
initiate the local remedy because this is reserved exclusively for the
President of the Republic and for the members of the National Assembly.
It can therefore be concluded that the remedy offered by Article 124 of the
Constitution is neither adequate nor available to the Complainant.
50. The Respondent State is under obligation to provide all possible, effective
and accessible remedies for its citizens by which means the latter can
seek, at the national level, recognition and remedying of the alleged
violations of their rights, even if it means resorting, should the need arise,
to the international systems of protection of human rights like the African
Commission for Human and Peoples‟ Rights.
51. In view of the foregoing, the African Commission considers that in the
context of the present Communication, the domestic remedies are not
available and as such the condition for exhausting them as envisaged by
Article 56 of the African Charter cannot be invoked. The African
Commission therefore concludes that the objections raised by the
Respondent State in terms of Article 56 (2) and (5) are not substantiated,
and thus holds that the present communication is admissible.
Decision on the merits
Complainant’s submissions on the merits
52. The Complainant claims that the provisions of Articles 35 and 65 of the
2000 Constitution of the Republic of Cote d‟Ivoire contravenes both
articles 2 and 13 of the African Charter. Article 35 of the said Constitution
stipulates that:
“The President of the Republic ………..should be of
Ivorian origin, born of a Father and Mother who
themselves must be Ivorian by birth……….”
53. Article 65 of the Constitution stipulates that the candidate to the
Presidential elections or to the posts of Speaker or Deputy Speaker of the
National Assembly “should be of Ivorian by birth, with both parents being
of Ivorian origin, should never have renounced Ivorian nationality, and
should never have acquired another nationality”.
54. The Complainant contends that in establishing the rules and conditions of
access to the above-mentioned public offices, the Constitution makes a
distinction between Ivorians on the basis of their places of origin and their
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25th Activity Report of the ACHPR
birth, and divides Ivorians into categories, applying different standards to
different categories, something the complainant finds discriminatory and
contrary to Article 2 of the African Charter.
55. In terms of Article 35 of the Constitution the following categories of citizens
cannot be eligible to run for the office of President of the Republic, or to be
elected as Speaker of the National Assembly or Deputy Speaker of the
National Assembly:
a) Ivorians who acquired Ivorian nationality other than by birth, that is,
either through, marriage or naturalisation;
b) Ivorians who although Ivorians by birth, were born of Ivorian
parents, do, at some stage in their lives, hold another nationality;
and
c) Ivorians who had once renounced Ivorian nationality.
56. Such a distinction, according to the Complainant, would result in the
exclusion of more than “40% of the Ivorian population…from submitting
candidature to the above-mentioned public offices…”, and this would
reduce the choice left to citizens to freely choose their fellow citizens to
direct the affairs of their nation, contrary to Articles 13 (1) of the African
Charter.
57. On the allegation that the Constitution violates Article 3 of the African
Charter, the Complainant points out that the Constitution, in its Article 132,
accords civil and criminal immunity to the members of the former National
Committee for Public Security (CNSP), an executive military body which
had directed the transition, and to the perpetrators of the events which
brought about the change of Government following the Coup d’Etat of 24
December 1999.
58. According to the complainant, this immunity is “total and unlimited” in time
and would prevent certain persons, victims of the acts perpetrated by
those granted amnesty to bring their cases to court in order to obtain
compensation for the wrongs done to them. According to the complainant,
this constitutes unequal protection of the law contrary to Article 3 (2) of the
Charter.
Respondent State’s submissions on the merits
59. The Respondent State, for its part, while disputing the assertion that the
Constitutional provisions in question have excluded “more than 40% of the
population” of Côte d‟Ivoire from access to the said offices as argued by
the Complainant, justifies instead the need of the said provisions by the
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25th Activity Report of the ACHPR
fact that the State has the right to legally determine the category of
citizens to whom “the accomplishment of a specific act or the access to a
specific situation” should be entrusted.
60. The Respondent State considers it legitimate to require “a certain level of
loyalty from whoever aspires to preside over its highest offices in the land”,
which is the case for the office of President of the Republic or that of
Speaker of the National Assembly or that of Deputy Speaker of the
National Assembly.
61. Moreover, the Respondent State refutes the notion of discrimination
advanced by the Complainant in this case, and contends that the Ivorian
Constitution rather makes a “distinction” between the different citizens of
the same country. Whereas, argues the Respondent State, it is not
discrimination “when the distinction between individuals placed under
similar conditions is made on a “reasonable and objective” basis.
62. The Respondent State quotes the American, Algerian, Beninoise,
Burkinabé and Gabonese examples where access to the office of
President of the Republic is restricted by various criteria including, for
instance, that of nationality.
63. The Respondent State further argues that the discrimination and exclusion
denounced by the Complainant can no longer be put forward before the
African Commission considering that within the context of the Pretoria
Accord7, which the Parties had concluded under the aegis of the African
Union, the President of the Republic of Côte d‟Ivoire, making use of the
exceptional powers vested in him by the Constitution (Article 48), had
declared eligible all the candidates designated by the Parties in the
Marcoussis Accord8.
64. For the Respondent State, “it appears from the terms of the
Communication (currently under consideration) that its main objective is
the candidature of all those who want it, notably that of Mr. Alassane
Dramane Ouattara. Since this requirement has been satisfied in
accordance with the principles of the African Union, article 56 (7) of the
Charter can be applied.
65. On the allegation of unequal protection of the law, the Respondent State
argues that the immunity granted to the perpetrators of the events which
brought about the change of Government on 24 December 1999 is neither
total nor limitless in time, and that it only covers “the Members of the
National Committee for Public Security (CNSP) and all the perpetrators of
7
The Accord was concluded in April 2005 in Pretoria, South Africa.
8
This Accord was concluded at Marcoussis, France, in January 2003.
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the events”. Therefore, the other perpetrators of the looting, whether
civilians or military, committed during the military transition period, are not
covered by this immunity.
66. With regard to the possibility of the victims instituting legal proceedings in
order to obtain compensation for the wrongs they have suffered, the
Respondent State contends that there is no inequality as no victim can be
allowed to institute proceedings against the people benefiting from the
amnesty.
African Commission’s decision on the merits
67. At its 41st Ordinary session held in Accra, Ghana in May 2007, the state
informed the Commission that it was in the process of dealing with the civil
crisis in the country, and the issues raised in the present communication
would be dealt with. The Commission regrets the State Party's failure to
provide any further information with regard to developments on the
substance of the author's claims since then.
68. Having received submissions on the merits from both parties, and in the
absence of any indication that this matter has been or is being resolved by
the parties amicably, the Commission will proceed to consider this
communication on the merits.
69. In the case under consideration, the Complainant alleges violation by the
respondent state of Articles 2, 3 and 13 of the African Charter. The African
Commission has analysed these allegations in the light of the information
at its disposal.
70. The Commission will deal with allegations regarding violation of Articles 2
and 13 together, and allegations regarding the violation of Article 3
separately.
Allegations on the violation of Articles 2 and 13 of the African
Charter.
71. Articles 2 of the African Charter stipulates 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 other status”.
And Article 13 (1) of the Charter provides that:
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25th Activity Report of the ACHPR
“Every citizen shall have the right to participate freely in the
Government of his country, either directly or through freely chosen
representatives in accordance with the provisions of the law.
72. The African Commission considers that the restrictions which can be
imposed on the enjoyment of the rights prescribed by the African Charter
should only be applied, where the need arises, in the spirit of the
conditions provided for by the Charter.
73. In Civil Liberties Organisation (on behalf of the Nigerian Bar
Association)/Nigeria9 the Commission stated that “in regulating the
exercise of this right [referring to the right to association] the competent
authorities should not enact [legislation which would limit the right…”. In
Constitutional
Rights
Project
and
Civil
Liberties
10
Organisation/Nigeria , The Commission while restating the above
statement added that „with these words, the Commission states a general
principle that applies to all rights, not only freedom of association”. The
Commission went further to state that “Governments should avoid
restricting rights, and take special care with regard to those rights
protected by constitutional or international human rights law…”.
74. The Ivorian Constitution of 2000, in its Articles 35 and 65, as conditions
of eligibility to certain high offices of State, imposed limitations which
effectively disqualified a certain percentage of the Ivorian population from
aspiring to these positions. The complainant puts the figure at 40%, and
although the respondent state disputes this figure, it does not dispute the
existence of the situation itself. According to the state, the disqualification
clause is justified on the basis of exigencies of “the level of loyalty”. It
added that the practice is also current in other countries.
75. 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 on any kind such as
“…national or social origin, fortune, birth or other status”. Article 13
provides that “every citizen shall have the right to participate freely in the
government of his country, either directly or through freely chosen
representatives in accordance with the provisions of the law”.
76. Unlike Article 2 which talks of „every individual’, Article 13 is even clearer
as it talks of „every citizen’. Under this Article therefore, every citizen shall
have the right and the opportunity, without any of the distinctions
mentioned in Article 2, and without unreasonable restrictions, to take part
in the conduct of government of his country, directly or through freely
9
Communication 101/93.
10
Communication 102/93.
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25th Activity Report of the ACHPR
chosen representatives, which includes to vote and to be elected at
genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot.
77. The right to participate in government or in the political process of ones
country, including the right to vote and to stand for election, is a
fundamental civil liberty and human right, and should be enjoyed by
citizens without discrimination. The reason for this lies in the fact that, as
historical experience has shown, governments derived from the will of the
people, expressed in free elections, are those that provide the soundest
guarantee that the basic human rights will be observed and protected.
78. Several other international instruments guarantee the rights under Articles
2 and 13 of the African Charter, that is, non-discrimination and to
participate in government. Article 5(c) of International Convention on the
Elimination of Racial Discrimination (ICERD) states inter alia that: in
compliance with the fundamental obligations laid down in Article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to equality
before the law, notably in the enjoyment of the following rights: “…(c)
Political rights, in particular the right to participate in elections, to vote and
to stand for election on the basis of universal and equal suffrage, to take
part in the Government as well as in the conduct of public affairs at any
level and to have equal access to public service”. Article 2 in the ICERD
refers to the obligation to eliminate racial discrimination and „to amend,
rescind or nullify any laws and regulations which have the effect of
creating or perpetuating racial discrimination wherever it exists.‟ Article 21
of the Universal Declaration on Human Rights on its part, provides that:
“everyone has the right to take part in the government of his country,
directly or through freely chosen representatives,” and “has the right to
equal access to public service.” Article 25 of the International Covenant on
Civil and Political Rights (ICCPR) recognizes and protects the right of
every citizen to take part in the conduct of public affairs, the right to vote
and to be elected and the right to have access to public service. Whatever
form of constitution or government is in force, the Covenant requires
States to adopt such legislative and other measures as may be necessary
to ensure that citizens have an effective opportunity to enjoy the rights it
protects.
79. The most elaborate interpretation of the right to participate in government
has been provided by the Human Rights Committee of the United Nations.
In its General Comment No. 25 on participation in public affairs and the
right to vote11, the Committee stated inter alia, that: “the effective
11
CCPR/C/21/Rev.1/Add.7, General Comment No. 25.. Adopted by the Committee at its
1510th meeting (fifty-seventh session) on 12 July 1996.
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25th Activity Report of the ACHPR
implementation of the right and the opportunity to stand for elective office
ensures that persons entitled to vote have a free choice of candidates.
Any restrictions on the right to stand for election, such as minimum age,
must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education, residence
or descent, or by reason of political affiliation. No person should suffer
discrimination or disadvantage of any kind because of that person's
candidacy.12
80. In the present communication, could it be said that the conditions set out
in Articles 35 and 65 of the Ivorian Constitution of 2000 are justifiable on
objective and reasonable criteria and reasonable and non-discriminatory?
81. Article 35 of the said Constitution stipulates that the President of the
Republic ………..should be of Ivorian origin, born of a Father and Mother
who themselves must be Ivorian by birth……….”.Article 65 stipulates that
the Candidate to the Presidential elections or to the posts of Speaker or
Deputy Speaker of the National Assembly “should be Ivorian by birth, with
both parents being of Ivorian origin, should never have renounced Ivorian
nationality, and should never have acquired another nationality”.
82. Admittedly, the constitution places these restrictions only on the highest
positions in the land. Many other countries, including European, American
and African countries have similar provisions to determine those eligible to
ascend to the highest offices. Most of these countries have the same
justification given by the Ivorian government, that is, persons having these
positions must have undoubted loyalty to the nation. It is doubtful though
whether this is the only way to test loyalty or whether this is even the best
way to test loyalty.
83. The Commission recognises the right of each State Party to the Charter to
adopt appropriate legislation that would regulate the conduct of elections.
It is also for the states to determine criteria for eligibility for those who can
vote and those who can stand for elections to whatever positions. The
exercise of adopting criteria to regulate those who can vote and those who
can stand for elections is in itself not a violation of human rights norms. In
every society, some positive measure/actions need to be taken to regulate
human behaviour in certain areas. However, these criteria must be
reasonable, objective and justifiable. They must not seek to take away the
already accrued rights of the individual.
12
Human Rights Committee, General Comment No. 25, The Right to Participate in Public
Affairs, Voting Rights and the Right of Equal Access to Public Service, U.N. Doc.
CCPR/C/21/Rev.1/Add.7 (1996), para. 15.
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25th Activity Report of the ACHPR
84. The African Commission is of the view that the right to vote as well as the
right to stand for election are rights attributable and exercised by the
individual. This is why voting, in democratic societies, is by secret ballot, to
the extent that even the individual‟s father or mother may not know who
the individual has voted for. By the same token, the exercise of the right to
stand for elections is a personal and individual right which must not be tied
to the status of some other individual or group of individuals. The right
must be exercised by the individual simply because he/she is an
individual, and not tied to the status of another individual. Distinctions must
thus be made between the rights an individual can exercise on his own
and the rights he/she can exercise as a member of a group or community.
85. Thus, to state that a citizen born in a country cannot stand for elections
because his/her parents were not born in that country would be stretching
the limit of objectivity and reasonableness too far. The Commission
recognises the fact that the position of President, Speaker and Deputy
Speaker, and indeed other similar positions are very crucial to the security
of a country, and it would be unwise to put a blank cheque vis-à-vis
accessibility to these positions. Placing restrictions on eligibility for these
posts is in itself not a violation of human rights. However, where these
restrictions are discriminatory, unreasonable and unjustifiable, the purpose
they intended to serve will be overshadowed by their unreasonableness.
86. In the present instance, the rights to vote and to stand for elections is an
individual right and conditions must be made to ensure that the individual
exercises these rights without reference to his/her attachment to other
individuals. The Commission thus finds the requirement that an individual
can only exercise the right to stand for the post of a President not only if
he/she is born in Cote d‟Ivoire, but also that his parents must be born in
Cote d‟Ivoire unreasonable and unjustifiable, and find this an unnecessary
restriction on the right to participate in government guaranteed under
Article 13 of the African Charter. Article 35 is also discriminatory because
it applies different standards to the same categories of persons, that is
persons born in Cote‟ d‟Ivoire are now treated based on the places of
origin of their parents, a phenomenon which is contrary to the spirit of
Article 2 of the African Charter.
87. This was also the Commission‟s position in Legal Resources Foundation
v/ Zambia13, where the African Commission held that the right to equality
is very important. It 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. The right to equality is important for a second reason. Equality or
13
Communication 211/98.
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25th Activity Report of the ACHPR
lack of it affects the capacity of one to enjoy many other rights. For
example, one who bears the burden of disadvantage because of one‟s
place of birth or social origin suffers indignity as a human being and equal
and proud citizen. He may vote for others but has limitations when it
comes to standing for office. In other words, the country may be deprived
of the leadership and resourcefulness such a person may bring to national
life”.
88. The Complainant also alleges the violation by the Respondent State of
Article 3 of the African Charter which stipulates:
“1 – Every individual shall be equal before the law
2 – Every individual shall be entitled to equal protection of
the law”.
89. The Respondent State argues that the immunity granted to the
perpetrators of the events which brought about the change of Government
on 24 December 1999 is neither total nor limitless in time, and that it only
covers “the Members of the National Committee for Public Security
(CNSP) and all the perpetrators of the events”. Therefore, the other
perpetrators of the looting, whether civilians or military, committed during
the military transition period, are not covered by this immunity. With regard
to the possibility of the victims instituting legal proceedings in order to
obtain compensation for the wrongs they have suffered, the Respondent
State contends that there is no inequality as no victim can be allowed to
institute proceedings against the people benefiting from the amnesty.
90. It appears therefore that “the Members of the National Committee for
Public Security (CNSP)” had total and complete immunity, and no action
could be brought against them by any body for whatever reason.
91. Over the years, the strict interpretation of Clemency powers or pardons
have been the subject of considerable scrutiny by international human
rights bodies and legal scholars. There has been consistent international
jurisprudence suggesting that the adoption of amnesties leading to
impunity for serious human rights has become a rule of customary
international law. In a report entitled "Question of the impunity of
perpetrators of human rights violations (civil and political)", prepared by
Mr. Louis Joinet for the Sub-commission on Prevention of Discrimination
and Protection of Minorities, pursuant to Sub-commission decision
1996/119, it was noted that "amnesty cannot be accorded to perpetrators
of violations before the victims have obtained justice by means of an
effective remedy" and that "the right to justice entails obligations for the
State: to investigate violations, to prosecute the perpetrators and, if their
guilt is established, to punish them”.14
14
See E/CN.4/Sub.2/1997/20/Rev.1, paras. 32 and 27.
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92. The Report went on to state that "even when intended to establish
conditions conducive to a peace agreement or to foster national
reconciliation, amnesty and other measures of clemency shall be kept
within certain bounds, namely: (a) the perpetrators of serious crimes under
international law may not benefit from such measures until such time as
the State has met their obligations to investigate violations, to take
appropriate measures in respect of the perpetrators, particularly in the
area of justice, by ensuring that they are prosecuted, tried and duly
punished, to provide victims with effective remedies and reparation for the
injuries suffered, and to take acts to prevent the recurrence of such
atrocities.15
93. In its General Comment No. 20 on Article 7 of the ICCPR, the UN Human
Rights Committee noted that “amnesties are generally incompatible with
the duty of States to investigate such acts; to guarantee freedom from
such acts within their jurisdiction; and to ensure that they do not occur in
the future. States may not deprive individuals of the right to an effective
remedy, including compensation and such full rehabilitation as may be
possible".16 In the case of Hugo Rodríguez v. Uruguay,17 the Committee
reaffirmed its position that amnesties for gross violations of human rights
are incompatible with the obligations of the State party under the
Covenant and expressed concern that in adopting the amnesty law in
question, the State party contributed to an atmosphere of impunity which
may undermine the democratic order and give rise to further human rights
violations.
94. The African Commission has also held amnesty laws to be incompatible
with a State��s human rights obligations.18 Guideline No. 16 of the Robben
Island Guidelines adopted by the African Commission during its 32nd
session in October 2002 further states that „in order to combat impunity
States should: a) ensure that those responsible for acts of torture or ill-
15
Ibid. Principles 18 and 25.
16
See Human Rights Committee General Comment No. 20 (44) on Article 7, para. 15 at
www.unhchr.ch/tbs/doc.nsf/view40?SearchView.
17
Rodríguez v. Uruguay, Communication No. 322/1988, U.N. Doc. CCPR/C/51/D/322/1988
(1994).
18
See also: Various communications v. Mauritania Communications 54/91, 61/91, 96/93,
98/93, 164/97-196/97, 210/98 and Jean Yokovi Degli on behalf of Corporal N. Bikagni,
Union Interafricaine des Droits de l‟Homme, Commission International de Juristes v Togo
Communications 83/92, 88/93, 91/93.
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treatment are subject to legal process; and b) ensure that there is no
immunity from prosecution for nationals suspected of torture, and that the
scope of immunities for foreign nationals who are entitled to such
immunities be as restrictive as is possible under international law‟.19
95. In Malawi African Association and Others v. Mauritania,20 “the
Commission held that the amnesty law adopted by the Mauritanian
legislature had the effect of annulling the penal nature of the precise facts
and violations of which the plaintiffs are complaining; and that the said law
also had the effect of leading to the foreclosure of any judicial actions that
may be brought before local jurisdictions by the victims of the alleged
violations”. The Commission went further to note that its role consists
precisely in “pronouncing on allegations of violations of the human rights
protected by the Charter of which it is seized in conformity with the
relevant provisions of that instrument. It is of the view that an amnesty law
adopted with the aim of nullifying suits or other actions seeking redress
that may be filed by the victims or their beneficiaries, while having the
force of law …cannot shield that country from fulfilling its international
obligations under the Charter.
96. In Zimbabwe Human Rights NGO Forum/Zimbabwe21 this Commission
reiterated its position on amnesty laws by holding that “by passing the
Clemency Order No. 1 of 2000, prohibiting prosecution and setting free
perpetrators of “politically motivated crimes”,...the State did not only
encourage impunity but effectively foreclosed any available avenue for
the alleged abuses to be investigated, and prevented victims of crimes
and alleged human rights violations from seeking effective remedy and
compensation. This act of the state constituted a violation of the victims‟
right to judicial protection and to have their cause heard under Article 7 (1)
of the African Charter”.
97. If there appears to be any possibility of an alleged victim succeeding at a
hearing, the applicant should be given the benefit of the doubt and allowed
to have their matter heard. Adopting laws that would grant immunity from
prosecution of human rights violators and prevent victims from seeking
compensation render the victims helpless and deprives them of justice.
98. In light of the above, the African Commission holds that by granting total
and complete immunity from prosecution which foreclosed access to any
19
Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman
or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), African
Commission on Human and Peoples' Rights, 32nd Session, 17 - 23 October, 2002:
Banjul, The Gambia. See also: Various communications v. Mauritania Communications
54/91, 61/91, 96/93, 98/93, 164/97-196/97, 210/98.
20
Communications. Nos. 54/91, 61/91, 98/93, 164/97 à 196/97 and 210/98.
Communication 245/2002.
21
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remedy that might be available to the victims to vindicate their rights, and
without putting in place alternative adequate legislative or institutional
mechanisms to ensure that perpetrators of the alleged atrocities were
punished, and victims of the violations duly compensated or given other
avenues to seek effective remedy, the Respondent State did not only
prevent the victims from seeking redress, but also encouraged impunity,
and thus renaged on its obligation in violation of Articles 1 and 7 (1) of the
African Charter. The granting of amnesty to absolve perpetrators of human
rights violations from accountability violates the right of victims to an
effective remedy.22
For these reasons, the African Commission:
a) Finds that the Respondent State is in violation of Articles 1, 2, 3(2),
7 and 13 of the African Charter and requests it to take the
appropriate measures to remedy the situation.
b) Requests both parties to inform the Commission on the progress
made in reviewing the discriminatory provisions in the Constitution.
c) Offers its Good Offices in case it is needed to assist.
Adopted at the 5th Extraordinary Session of the African Commission on
Human and Peoples’ Rights, 21 – 29 July 2008, Banjul, The Gambia.
22
See the African Commission’s Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa, para C(d).
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300/2005 - Socio Economic Rights and Accountability Project/Nigeria
Summary of Facts:
1. The Communication (herein referred to as the Communication or
Complaint) is submitted by the Socio-Economic Rights and Accountability
Project (SERAP, the Complainant) against the Government of Nigeria (the
Respondent State). Nigeria is a State Party to the African Charter on
Human and Peoples‟ Rights, (the African Charter) which it ratified on 22 nd
July 1983.
2. In the Complaint, SERAP states that the President of the Republic,
Olusegun Obasanjo in a television broadcast of 22 March 2005, alleged
that members of the Nigerian Senate and the House of Representatives
took bribes from the Federal Minister of Education in order to increase the
budget for education. That, according to the President, the Minister of
Education invited his acting Permanent Secretary and some Directors to
collect money from votes under their control to bribe some members of the
National Assembly so that the budget for the Ministry could be increased.
3. The Directors then allegedly took from the votes under their control 35
million naira, while an additional loan of 20 million naira was taken from
the National Universities Commission (NUC) to pay a bribe totalling 55
million naira to named members of the National Assembly and a member
of the Federal House of Representatives.
4. The Petitioner contends that the above is an illustration of the grand
corruption by high-level officials and that it is routine for federal ministries
to offer bribes to National Assembly members to have their budget
estimates inflated. According to the Complainant, large-scale corruption
such as the one described above has contributed to serious and massive
violations of the right to education, among other rights, in Nigeria. It further
avers that in effect, Nigeria‟s human rights legal obligations under the
African Charter to achieve the minimum core contents of the right to
education has been honoured more in breach than in observance,
resulting in:
a. Failure of government to train the required number of teachers;
b. Gross under-funding of the nation‟s educational institutions;
c. Lack of motivation of teachers;
d. Non-available class room seats and pupils sitting on bare floor;
e. Non-availability of books and other teaching materials;
f. Poor curricula;
g. Poor and uninviting learning environments;
h. Overcrowding;
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25th Activity Report of the ACHPR
i.
j.
Persistent strikes by teachers and staff who have not been paid;
Inability of supervising agencies to set and/or enforce standards;
and
k. Absence of infrastructure facilities.
5.
The Complainant further submits that, the Nigerian Government has
deliberately failed to investigate all allegations of corruption and this has
contributed in impeding its ability to utilize Nigeria‟s natural resources for
the benefit of its peoples.
6.
To demonstrate the gravity of the situation, the Complainant quotes the
Concluding Observations of the Committee on Economic, Social and
Cultural Rights, where the Committee held that millions of children hold
odd jobs and some who go to school are crammed in dilapidated
classrooms. The poor quality of education is attributed to the fact that
teachers are not devoted to work since their salaries do not meet their
expectations. Furthermore, that, in 1997, fees were increased in the
universities which caused a brain drain in academia because of long
periods of closures, strikes etc.
The Complaint:
7. The Complainant alleges violation of Articles 1, 2, 3, 17, 21, and 22 of the
African Charter on Human and Peoples‟ Rights.
Procedure
8. The Secretariat of the African Commission on Human and Peoples‟ Rights
(the Secretariat) received the Communication by letter of 29 March 2005.
The Commission decided to be seized of the Communication at its 37 th
Ordinary Session held in Banjul, The Gambia from 27 April to 11 May
2005.
9. On 18 May 2005 the Respondent State was informed of the seizure and it
was requested to submit its arguments on admissibility.
10. The Complainant was also informed of the seizure and requested to
submit its arguments on admissibility.
11. By a letter of 4 August 2005, the Secretariat received the Complainant‟s
arguments on admissibility, to which receipt of acknowledgement was sent
on 25 August 2005.
12. The arguments on admissibility were also sent to the Respondent State on
25 August 2005.
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13. On 14 November 2005, a letter was sent to the Respondent State party
urging it to submit its arguments on admissibility.
14. The Respondent State submitted its written observations on the
admissibility of the Communication during the 38th Ordinary Session.
15. At its 38th Ordinary Session held from the 21 November to 5 December
2005 in Banjul, The Gambia, the African Commission considered this
Communication and deferred its decision on admissibility to the 39 th
Ordinary Session.
16. By a Note Verbale of 15 December 2005, the Secretariat notified the
Respondent State of this decision to defer decision on admissibility to its
39th Ordinary Session.
17. By a letter of 15 December 2005, the complainant has likewise notified.
18. At its 39th Ordinary Session held from 11th to 25th May 2006 in Banjul, The
Gambia, the African Commission considered the Communication and
deferred consideration of the same to its 40th Ordinary Session. The
Commission indicated that the Complainant‟s allegation of “serious and
massive” human rights violation by the Respondent State merits a hearing
before the African Commission as per the latter‟s established practice.
19. At its 40th Ordinary Session, the African Commission considered the
Communication and deferred its decision on admissibility to the 41 st
Ordinary Session.
20. During the same Session, the Secretariat received the additional written
submissions of the Respondent State‟s admissibility.
21. At its 42nd Ordinary Session held in Brazzaville, Republic of Congo from
15-28 November 2007, the Commission considered the Communication
and deferred its consideration of the same to its 43 rd Ordinary Session to
allow the Secretariat to draft a decision on admissibility.
22. During the same Session, the Secretariat received additional written
submissions of the Respondent State‟s admissibility which was forwarded
to the Complainant.
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The Law
Admissibility
Submissions by the Complainant
23. The Complainant submits that the Communication raises prima facie
violation of the Charter and meets the conditions of admissibility in terms
of Article 56 of the Charter.
24. However, on the requirement of the exhaustion of local remedies in
accordance with Article 56(5), the Complainant is requesting the
Commission to invoke the exception rule. While admitting that local
remedies have not been attempted, the Complainant explains that such a
course would have been futile for three reasons.
25. Firstly, that there is no local recourse readily available to SERAP because
of the strict interpretation of the principle of locus standi in Nigeria, and
that exhaustion of local remedies is inapplicable where it is impractical to
seize the domestic courts due to the large number of potential plaintiffs
(Nigerian students amounting over 5 millions at the primary, secondary
and university levels) and potentially over burden the courts resulting in
unduly prolonged process.
26. Secondly, that there is no adequate or effective domestic remedies to
address the violations alleged in this Complaint since Nigerian courts do
not generally regard economic and social rights as legally enforceable
human rights. Furthermore, that there is no equivalent of the provisions of
Articles 17 and 21 of the African Charter relating to the right to education
and the right of people not to be disposed of their wealth and natural
resources under Nigeria‟s Constitution or legislation. For this reason
therefore, Nigerian courts will not be easily disposed to hear the matter.
27. Thirdly, that the Nigerian judiciary process is weak and cases are unduly
prolonged, making recourse to them ineffective.
Submissions by the Respondent State
28. On its part, the Respondent state submits that in Nigeria, social and
economic rights are not justiciable under the Constitution as they fall under
what may be termed the preamble of the Constitution, mapping objectives
rather than enforcing and sanctioning compliance thereof. Hence there is
no legal right that can give rise to rights of action.
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29. The Respondent State further argues that, this notwithstanding, the courts
in Nigeria have creatively made socio-economic rights justiciable where it
can be shown that a denial of these principles are likely to result in a
denial of fundamental human rights guaranteed under the Constitution.
The State added that, the domestication of the African Charter by virtue of
the African Charter on Human and Peoples‟ Rights (Ratification and
Enforcement) Act (Chapter 10, Laws of the Federation of Nigeria 1990)
empowers the Nigerian courts to enforce or give remedies under the
provision of the African Charter. Furthermore, that the Constitution of
Nigeria contains provisions on socio-economic rights which, even though
non-justiciable, States can be held accountable by the courts if they
disregard them.
30. The State also argues that even though socio-economic rights are not
justiciable, the government has enunciated some policies and created
some institutions to address the issue, including the National Economic
Empowerment and Development Strategy (NEEDS) and the State
Economic Empowerment and Development Strategy (SEEDS). The
institutions and programmes include the National Directorate of
Employment (NDE), the National Poverty Eradication Programme
(NAPEP) as well as the Small and Medium Enterprises Development
Agency (SMEDAN) respectively. It further avers that these measures are
all geared towards enhancing the peoples‟ economic and social welfare
generally.
31. The Respondent State further submits that the Communication should be
declared inadmissible because:
-
the Complaint does not disclose a breach of any municipal law within the
Federal Republic of Nigeria or the breach of any international treaties or
conventions to which Nigeria is a party;
-
the factual basis for the Communication is an allegation of criminal
conduct which is currently the subject of an on-going criminal trial before
the Federal High Court in Abuja;
-
the conduct of a few officials does not, in law and in fact, amount to the
abdication by Nigeria of her sovereign obligations to her citizens properly
covered by any municipal law or international conventions or treaties to
which Nigeria is a signatory;
-
all the officers named by the Complainant were forced to resign from their
positions in the National Assembly and have since been defending the
prosecution case filed against them;
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-
the sum of fifty-five million Naira involved in the illegal transaction has
been recovered;
-
adequate local remedies exist in Nigeria and have been employed by the
State, and the Complainant has failed to exhaust these local remedies;
-
the facts alleged by the Complaint are purely criminal in nature and do not
amount to an official policy by the government to deny the people of
Nigeria the “right to productive use of their resources” or their “right to
education” as alleged;
-
the Complaint has been filed before the African Commission on the basis
of generalised statements and information obtained from unverified
sources and that there are no statistical or other information supplied in
support of these general statements; and
-
the government has been carrying out various initiatives, including
negotiating for debt relief with the Paris Club of Creditors, to significantly
impact on the level of poverty in the country.
32. The Respondent State in its additional submission on admissibility
reiterates the fact that this Communication offends the fifth ground of
admissibility set out under Article 56 of the African Charter. Furthermore,
that Chapter 2(Sections 13 to 24) of the Nigerian Constitution of 1999
shows the State‟s commitment to promotion and protection of the socioeconomic rights of its citizens.
Decision of the African Commission on admissibility
33. The admissibility of Communications before the African Commission is
governed by the requirements of Article 56 of the African Charter which
provides seven requirements that must be met before the African
Commission can declare a Communication admissible. If one of these
requirements is not met, the African Commission will declare the
Communication inadmissible, unless the Complainant provides
justifications why any of the requirements could not be met.
34. In the present Communication, the Complainants submit that they have
complied with all the requirements under Article 56 of the Charter, except
Article 56(5) due to the absence of local remedies. The State however
argues that the Communication does not satisfy Article 56(5) of the
Charter, as well as Article 56(2) of the Charter. The African Commission
will thus deal with the above provisions.
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35. As indicated earlier, for a Communication to be declared admissible, it
must meet all the requirements under Article 56. Thus, if a party contends
that another party has not complied with any of the requirements, the
Commission must pronounce itself on the contentious issues between the
parties. However, the Commission shall also examine other requirements
of Article 56 which are not contested by the parties.
36. Article 56(1) of the African Charter provides that Communications will be
admitted if the authors indicate their identity, even if they request
anonymity. In the present case the author of this Communication is
SERAP, which is an NGO based in Lagos. The author of the
Communication is thus clearly identified.
37. Article 56(2) of the African Charter provides that a Communication must
be compatible with the Charter of the OAU or with the African Charter on
Human and Peoples‟ Rights. In the present Communication, the
Respondent State argues that the Communication does not comply with
this requirement. The State asserts in this regard that, the Complaint does
not disclose a breach of any municipal law within Nigeria or the breach of
any international treaties or conventions to which Nigeria is a party.
38. For a Complaint to be compatible with the Charter or the Constitutive Act,
it must prove a prima facie violation of the Charter. Compatibility according
to the Black‟s Law Dictionary denotes, „in compliance with „and „in
conformity with‟ or „not contrary to‟ or „against‟. In this Communication, the
Complainant alleges violations of the right to education, health and
enjoyment of natural resources occasioned by the actions of the
Respondent State. These allegations do raise a prima facie violation of
human rights guaranteed in the Charter. Based on the above, the African
Commission is satisfied that Article 56(2) of the African Charter in the
present Communication has been sufficiently complied with.
39. Article 56(3) of the Charter provides that a Communication will be
admitted if it is not written in disparaging or insulting language directed
against the State concerned and its institutions or to the Organisation of
African Unity (African Union). In the present case, the Communication
does not, in the view of this Commission, contain any disparaging or
insulting language, and thus fulfils the requirement of Article 56(3).
40. Article 56(4) of the Charter provides that the Communication must not be
based exclusively on news disseminated through the mass media. This
Communication was submitted based on the testimonies given before the
Nigerian National Assembly, text statements, reports by human rights
organisations and first hand information from the Nigerian students
themselves, „‟who have been directly affected by the theft of Nigeria‟s
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natural resources.‟‟ Thus the requirement under Article 56(4) has been
fully complied with.
41. Article 56(5) provides that Communications to be considered by the
African Commission must be sent after local remedies have been
exhausted. The Respondent State contends that the Complainant has not
complied with this requirement. The State argues that the complainant has
not sought the sufficient and effective local remedies available to them in
the State, before bringing the present Communication before the
Commission. On the other hand, the Complainant states that they could
not comply with the requirements under this article due to reasons that will
be outlined below.
42. Article 56(6) provides that, Communications must be submitted within a
reasonable period from the time local remedies are exhausted, or from the
date the Commission is seized with the matter. From the wording of this
Article, time-limit commences from the date when all local remedies are
supposed to have been exhausted, and the phrase “or from the date the
Commission is seized with the matter,” does not apply to the case before
the Commission because a Communication is only seized after the
Complainant must have submitted the same, and this Communication has
already been seized by the Commission. In addition, the African Charter
does not expressly lay down a clear-cut time-limit for the Complainant to
submit a Complaint. In this regard, „reasonableness‟ of the time limit can
rightfully be assessed by this Commission bearing in mind the
circumstances of the case. The Commission is therefore of the opinion
that, the Complaint was submitted within a reasonable time period
because according to the facts herein, the Complainant submitted when it
thought it practicable to do so. Based on the above, and the fact that this
Article is not in contention with the Respondent State, the Commission
holds that Article 56(6) has been satisfied by the Complainant.
43. Lastly, Article 56(7) provides that the Communication must not deal with
cases which have been settled by states, in accordance with the principles
of the United Nations, or the Charter of the OAU or the African Charter.
This Communication has not been settled by any of these international
bodies and thus, the requirement of Article 56(7) has been fulfilled by the
Complainant.
44. The rationale for the exhaustion of local remedies is to ensure that before
proceedings are brought before an international body, the State concerned
must have the opportunity to remedy the matter through its own local
system. This prevents the international tribunal from acting as a court of
first instance rather than as a body of last resort.23
23
See Communications 25/84, 74/92 & 83/92.
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45. Three major criteria could be deduced from the practice of the
Commission in determining compliance with this requirement, that is: the
local remedy must be available, effective and sufficient.
46. These three major criteria are clearly expressed by the Commission in Sir
Dawda K. Jawara v The Gambia. In this case, the Commission held that
„the existence 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…...’24
47. The Complainant in the present Communication submit that it could not
exhaust local remedies because there are no provisions in the national
laws of Nigeria allowing them to seek remedies for the violations alleged.
48. It further avers that there was no local recourse readily available to them,
„‟due to the strict interpretation of locus standi in Nigeria.‟‟ Furthermore,
that locus standi is not available in domestic courts due to the large
number of students involved.
49. It also submits that, Nigerian courts will not easily be disposed to hear the
matter because they do not enforce socio-economic rights. In addition,
there is no equivalent of Articles 17 and 21 of the African Charter relating
to the right to education and „the right of people not to be disposed of their
wealth and natural resources under Nigeria‟s Constitution or legislation.‟
50. Lastly, the Complainant avers that the Nigerian judiciary process is weak
and cases are unduly prolonged, making recourse to them ineffective.
51. The Respondent State on its part, submits that even though the rights
alleged to have been violated are not justiciable under the Nigerian
Constitution of 1999, the domestication of the African Charter by virtue of
the African Charter on Human and Peoples‟ Rights (Ratification and
Enforcement) Act (Chapter 10, Laws of the Federation of Nigeria 1990)
empowers the Nigerian courts to enforce or give remedies under the
provision of the African Charter. Furthermore, that Chapter 2(Sections 13
to 24) of the Nigerian Constitution of 1999 portrays the State‟s
commitment to promotion and protection of the socio-economic rights of its
citizens, and that the government has enunciated some policies and
institutions that are aimed at protecting socio-economic rights of its
citizens.
52. Considering the arguments brought by the Complainant before this
Commission, the latter is of the view that, the Complainant has failed to
prove that local remedies are not available. It is simply casting doubts
about the effectiveness and availability of the domestic remedies.
24
See para. 32. of Communications 147/95 and 149/96
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However, it is also the Commission's view that the Policies and Institutions
which have been enunciated by the government are administrative
remedies and not legal remedies. Moreover, the Respondent has not
shown the potential effectiveness of the local remedies that are alleged to
exist for the benefit of the applicants.
53. The Complainant contends that it could not exhaust local remedies due
to the strict interpretation of the principle of locus standi in Nigeria,
especially when it involves a large number of plaintiffs. The Commission
notes that, notwithstanding the strict interpretation of this rule, Nigerian
courts allow class/representative actions where numerous persons have
the same interest, right and a common grievance, and the judgement
obtained is binding on all the persons represented.
54. Section 6(6)(b) of the 1979 Constitution in Nigeria, which is the same as
Section 6(6)(b) in the 1999 Constitution provides that;
“The judicial powers vested in accordance with the foregoing
provisions of this section shall extend to all matters between
persons, or between governments or authority and to any person in
Nigeria, and to all actions and proceedings relating thereto, for the
determination of any question as to the civil rights and obligations of
that person.’
55. On the basis of the above, Justice Belo of the Supreme Court of Nigeria in
the case of Abraham Adesanya v President of the Federal Republic of
Nigeria, held that;
“Section 6(6) (b) can be interpreted to mean that, standing can only
be accorded to a plaintiff who shows that his civil rights and
obligations have been or are in danger of being violated or affected
by the act complained of.”25
56. The decision became a binding precedent for most class action litigations
in Nigeria, even though there were dissenting opinions on the fact of
considering Section 6(6) (b) as a test for locus standi. It was held in NNPC
v Fawehinmo for instance that;
“This section is not attended to be a catch-all, all purpose provision
to be pressed into service for determining questions ranging from
locus standi to the most uncontroversial questions of jurisdiction.”26
57. Supporting Justice Belo‟s opinion in the Adesanya case, Justice PatsAcholonu of the Supreme Court in Ladejobi v Oguntayo, also stated that;
25
26
(1981) 2 NCLR 358
(1998) 1 NWLR(pt.559) 598 at 612
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“…..it is dangerous to limit the opportunity for one to canvass his
case by rigid adherence to the ubiquitous principle inherent in locus
standi which is whether a person has standing in a case. The
society is becoming highly dynamic and certain stands of yester
years may no longer stand in the present state of our social and
political development.”27
58. With the above submissions, this Commission is of the view that Nigerian
courts can properly employ the locus standi rule in class actions. The
question should not be whether it is a public or private action, but whether
the applicants sufficiently prove violation of the rights alleged and
demonstrates enough interest. For this reason, the Complainant cannot
rely on the argument that it could not exhaust local remedies due to the
large number of plaintiffs involved and the strict interpretation of the
principle of locus standi in Nigeria.
59. With respect to the Complainant‟s assertion that the courts in the
Respondent State are weak and ineffective, the African Commission is of
the opinion that, the Complainant is simply casting doubts about the
effectiveness of the domestic remedies.
60. The African Commission has held in Article 19 v Eritrea, that; “it is
incumbent on the Complainant to take all necessary steps to exhaust, or
at least attempt the exhaustion of local remedies,” adding that; “ it is not
enough for the Complainant to cast aspersions on the ability of the
domestic remedies of the State due to isolated incidences.” 28 In the same
case, the Commission referred to the Human Rights Committee‟s (the
Committee) decision in A v Australia, in which the Committee held that;
“mere doubts about the effectiveness of local remedies or prospect of
financial costs involved did not absolve the author from pursuing such
remedies.”29
61. Furthermore, the Commission held in Mr. Obert Chinhamo v Zimbabwe
that, “Complainants are required to set out in their submissions the steps
taken to exhaust domestic remedies. They must provide some prima facie
evidence of an attempt to exhaust local remedies.”30 Thus, the
Commission is of the opinion that, by not attempting local remedies or
substantiating the weaknesses or ineffectiveness, the Complainant cannot
rely on this argument as reasons for their non exhaustion of local
remedies.
27
28
29
30
(2004) All FWLR(pt. 231) 1209 at 1235-1236
See Communication 275/2003, Article 19 v Eritrea, para 67
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993(1997
Communication 307/2005, para 84
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62. Regardless of the fact that there is no legislation in Nigeria domesticating
the International Covenant on Economic, Social and Cultural Rights (the
ESR Covenant), the 1999 Constitution of Nigeria has certain provisions
which embody most of the rights enumerated in the ESR Covenant. These
provisions are contained in Chapter II (Sections 13-24) of the Constitution
and couched as Fundamental Objectives and Directive Principles of
State Policy.
63. Even though it can be argued that, these are not rights, but mere Political,
Economic, Social, Educational, Environmental, Cultural and Foreign Policy
Directives and that these provisions are non justiciable by virtue of Section
6 (6) (c) of the Constitution, the African Commission is of the view that this
Chapter provides a foundation upon which economic and social rights
could be enjoyed, and its provisions indicate that the courts are not
excluded from entertaining cases relating to socio-economic rights.
64. Section 16(2) (d) for instance, requires the state to direct its policy towards
ensuring that “suitable and adequate shelter, suitable and adequate food,
reasonable national minimum living wage, old age care, pension,
unemployment, sick benefits and welfare of the disabled are provided for
the citizens.” Section 20 and 21 on the other hand, require the state to
protect the environment and preserve and promote Nigerian cultures.
65. Furthermore, Nigeria is a State Party to the African Charter and has
domesticated the same. By reason of this domestication as required by
Section 12 of the 1999 Constitution, the African Charter has become part
of Nigerian Law. The African Charter therefore constitutes a normative
base for socio-economic rights claims which allow any claim brought
under the Charter to be litigated before the national courts.
66. This was substantiated in Abacha v Fawehinmi, where the Supreme
Court of Nigeria recognised the African Charter as part of Nigerian Law
and that its provisions were justiciable. In that case, the Supreme Court
stated that;
“The African Charter which is incorporated into our municipal law
becomes binding and our courts must give effect to it like all other
laws falling within the judicial powers of the courts. Thus, if the
individual rights contained in the African Charter are justiciable in
Nigerian courts and the African Charter does not recognise any
generational dichotomy of rights, the articles conferring socioeconomic rights are equally justiciable in the Nigerian courts.”31
67. This decision was also reflected in Ogugu v The State, where the
Supreme Court held that:
31
(2000) 6 NWLR (Pt 600) 228
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“By reason of its domestication, the African Charter has become
part of Nigeria’s domestic laws and the enforcement of its
provisions…falls within the judicial powers of the courts as provided
by the Constitution and all other laws relating thereto since the
African Charter is part of Nigeria’s domestic laws. Furthermore, that
human and people’s rights of the African Charter are enforceable
by several High Courts depending on the circumstances of each
case and in accordance with the rules, practice and procedure of
each court.”32
68. In Oronto Douglas v Shell Petroleum Development Company Limited,
for instance, the Federal Government together with other oil companies,
including Shell Petroleum Development Company as the Operator,
decided to set up Nigeria‟s Liquefied Natural Gas Project at Bonny. This
was in a bid to harness Nigeria‟s huge gas resources. However, the
environmental impact assessment which is obligatory was not carried out
until after the project was underway, and a private citizen‟s suit,
challenging this was initially thrown out for lack of locus standi. The case
was appealed and the Court of Appeal in Nigeria upheld the justiciability of
an action brought on the basis of Article 24 of the African Charter
(Ratification and Enforcement) Act. 33
69. All the Nigerian cases cited above are aimed at establishing the fact that
socio-economic rights can be litigated in Nigerian Courts. Thus the
Complainant could have made attempts to utilise the local remedies
available instead of making presumptions that this Complaint would not be
heard since Nigerian courts do not generally regard economic and social
rights as legally enforceable human rights. The African Commission thus
holds that, the Complainant has not utilised the domestic remedies
available and has not demonstrated why this could not be done.
.
For the reasons outlined above, the African Commission declares this
Communication inadmissible.
Adopted at the 5th Extraordinary Session of the African Commission on
Human and Peoples’ Rights, 21-29 July 2008, Banjul, The Gambia.
32
33
(1994) 9 NWLR (pt 336) 1, 26-27
(1999) 2 NWLR(pt 591) 466
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Communication 308/2005 – Michael Majuru/Zimbabwe
Summary of Facts
1. The Complainant, Michael Majuru (hereinafter called the Complainant),
submitted this Communication against the Republic of Zimbabwe,
(hereinafter called the Respondent State), a State Party to the African
Charter on Human and Peoples‟ Rights (the African Charter). The
Complainant is a citizen of the Respondent State and is currently residing
in the Republic of South Africa.
2. The Complainant submits that the Respondent State has committed gross
violations of human rights and fundamental freedoms against him through
acts committed by the Minister of Justice, Legal and Parliamentary Affairs
and the Central Intelligence Organisations (CIO) under the Office of the
President and Cabinet.
3. The Complainant alleges further that that in committing the gross
violations, the aforementioned organisations, individuals and organs of the
state were acting in the course and scope of their employment as
Respondent State‟s agents.
4. The Complainant submits further that his rights were abused because of
his role as a presiding Judge in a case in which the Associated
Newspaper Group of Zimbabwe (ANZ), a publishing house in the
Respondent State, sought to challenge, before the Administrative Court,
the Respondent State‟s act of banning ANZ from publishing its two
newspapers, the Daily News and the Daily News on Sunday. The matter
was lodged before the Administrative Court on or about 23 September
2003 and he presided over the matter.
5. The Complainant states that following his decision in favour of the ANZ, he
became a target of human rights abuses wrought upon him by agents of
the Respondent State and recounts the chronology of events that depict
incidents in which the Respondent State allegedly violated his human
rights.
6. The first incident is reported to have occurred on or about 24 September
2003. It is alleged that the Minister of Justice, Legal and Parliamentary
Affairs, the Hon. Patrick Chinamasa invited the Complainant‟s workmate,
who was also a Judge at the Administrative Court (Justice Chipo
Machaka) to his office to issue instructions that the matter relating to the
ANZ case that was to be presided over by the Complainant should be
conducted in a manner that the said Minister was going to dictate. Justice
Machaka was instructed by the Minister to convey these instructions to the
Complainant, with an order that Complainant should comply with such
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orders.
7. It is further alleged that the Minister also instructed that the Administrative
Court should delay the court proceedings until February 2004, noting that
the ANZ did not deserve impartial treatment by the Judiciary because it
was a front of western nations and „other imperialists‟. Secondly, Justice
Machaka is alleged to have been told that if the ANZ were granted its
application for an urgent appeal hearing and thereafter allowed publication
at that stage this would jeopardize continuing negotiations between ZANU
PF and the Movement for Democratic Change (MDC), (the biggest
opposition party in Zimbabwe), which according to the Minister, had
reached a delicate stage. As proof of this delicate relationship between
ZANU PF and MDC, Justice Machaka was shown a draft constitution
agreed upon between the two parties and some other supporting
documents.
8. The Complainant submits that he disregarded the aforesaid instructions
and upon considering the ANZ‟s application on its merits ruled in favour of
the ANZ by granting the application for an urgent appeal hearing on or
about 27 September 2003. From 15 to 19 October 2003, the Complainant
presided over the appeal hearing between the two parties. He adjourned
the matter for judgment to 24 October 2003.
9. Subsequently, the Complainant states that he was summoned by Enoch
Kamushinda, a suspected member of the CIO for a meeting at
Kamushinda‟s office on 22 October 2003. This information was conveyed
through another CIO operative with instructions that the Complainant
should dismiss the ANZ appeal. As a reward for dismissing the ANZ
appeal, Kamushinda promised the Complainant a fully developed farm in
Mashonaland West Province.
10. The Complainant further states that on 23 October 2003 at around 21:00
hours, the Minister of Justice, Legal and Parliamentary Affairs, Hon.
Patrick Chinamasa, telephoned and enquired from the Complainant
whether he had finalised the judgment in the ANZ matter and what
decision he had reached. The Complainant advised him that he was in the
process of finalising the judgment and that he was going to allow the
appeal. The Complainant states that the Minister expressed his
displeasure with the said decision and further attempted to unduly
influence and/or threaten the Complainant.
11. The Complainant claims that he went ahead to deliver the judgment in
favour of ANZ at about 1600 hours on 24 November 2003. Subsequently,
at about 2130 hours, Hon. Chinamasa in an angry telephone call to the
Complainant, accused the latter of pre-determining the matter and berated
him for delivering a judgment dictated by British agents and other
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imperialist forces.
12. Subsequently, the Media and Information Commission (MIC) appealed to
the Supreme Court against the decision of the Administrative Court. ANZ
on the other hand decided to approach the Administrative Court seeking
an order that its original decision be rendered operative notwithstanding
the institution of an appeal by the MIC.
13. The Complainant claims that upon the lodging of this application by the
ANZ, the Complainant was placed under immense pressure from agents
of the Respondent State urging him to desist from dealing with the matter.
The Complainant claims that the Respondent sent members of the CIO to
track, trail and monitor the Complainant‟s movements and interactions with
other people.
14. The Complainant alleges that on several occasions he was approached by
Ben Chisvo, a suspected CIO informer, a former ruling ZANU PF
Councillor of the City of Harare and also a war veteran. Chisvo sought to
persuade the Complainant to recuse himself from presiding over the
matter, claiming that the case was serious and sensitive and that
President Mugabe did not want the ANZ to be registered. Chisvo further
indicated that the President had set up a team led by a senior assistant
commissioner of Zimbabwe, Changara, to monitor the proceedings in the
ANZ matter and confirmed that the Complainant was being monitored by
state security agents.
15. On 23 November 2003, at around 2300 hours, the Complainant received a
telephone call from Chisvo in which he claimed that his car had had a
puncture close to the Complainant‟s residence and requested for
assistance. Upon meeting the Complainant, Chisvo demanded to know
whether the former would preside over the ANZ matter or recuse himself
as previously ordered. The Complainant informed Chisvo that he would be
presiding over the ANZ matter.
16. The Complainant further alleges that, on 24 November 2003, following the
Complainant‟s postponement of the ANZ matter upon the request of the
two parties to the case, he received a telephone call from Hon. Chinamasa
at around 21:00 hours. The Complainant states that the Minister alleged
that he had information linking the Complainant to British agents and other
imperialists and that the complainant was under investigation for these
alleged links with the British agents and imperialists. The Minister also
indicated that he was aware through his informants that the ANZ was
going to succeed in the second matter which was pending before the
Complainant. Shortly thereafter, Justice Machaka phoned the Complainant
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and advised him that the Minister of Justice had also phoned her ordering
her to meet him at his office the following morning. She informed the
Complainant that the Minister wanted to be advised on how the
Complainant intended to decide the ANZ matter in order for him to brief
the Cabinet that morning. Soon after this telephone call from Justice
Machaka, the Minister telephoned the Complainant once again ordering
that they meet the following morning at his office at 0800 hours.
17. On 25 November 2003, the Complainant met with the Minister as
instructed. The Minister wanted to know what the Complainant‟s decision
in the ANZ matter would be but the Complainant declined to inform him
stating that he had not yet heard the parties‟ arguments on the matter and
was therefore in no position to know the outcome. The Complainant
alleges that the Minister informed him that the Police Commissioner
Augustine Chihuri had approached him the previous night with information
that the Complainant was under investigation for colluding with British
agents over the ANZ matter and was considering arresting him.
18. The Minister is also reported to have shown the Complainant the Herald
newspaper which carried an article on its front page alleging that the
Complainant was under probe over the ANZ matter. The Minister also
produced an affidavit, which he said had been obtained from Chisvo by
the Police Commissioner. In the said affidavit, Chisvo had made
statements to the effect that the Complainant had informed Chisvo that the
ANZ matter was predetermined.
19. The Complainant claims that as a result of such sustained and relentless
pressure he had no other option but to recuse himself from the matter.
Notwithstanding the recusal, the Complainant remained under surveillance
by state security agents.
20. The Complainant states that on 1 December 2003, he received a
telephone call from a member of the legal fraternity and the Police
informing him that the Respondent State was fabricating a case against
him and that he was to be arrested and incarcerated on unspecified
charges as punishment for defying the Respondent‟s orders.
21. The Complainant alleges that fearing for his safety and security; he
decided to go into hiding until 9 December when he fled to South Africa,
where he remains in exile.
22. The Complainant submits that he is not the only member of the Judiciary
who has been persecuted but that there is a systematic, consistent and
sustained pattern of interference with the Judiciary by the Executive in the
Republic of Zimbabwe.
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Complaint
23. The Complainants allege that Articles 3, 5, 8, 9, 14, 15, 16, 18 and 26 of
the African Charter on Human and Peoples‟ Rights have been violated.
24. The Complainant requests that the African Commission should:a. Urge the Respondent State to institute an inquiry and investigation
that should result in the Government of Zimbabwe bringing those
who perpetrated the violations to justice
b. Order the Respondent State to pay compensation for the physical
pain, psychological trauma, loss of earnings and job and access to
family suffered by the Complainant.
Procedure
25. The Communication is dated 2 November 2005 and was sent by email to
the Secretariat, and was received on 8 November 2005.
26. On 17 November 2005, the Secretariat acknowledged receipt of the
Communication and informed the Complainant that the Communication
would be scheduled for consideration by the African Commission at its 38th
Ordinary Session.
27. At its 38th Ordinary Session held from 21 November - 5 December 2005 in
Banjul, The Gambia, the African Commission considered the
Communication and decided to be seized of it.
28. By Note Verbale dated 8 December 2005, the Secretariat transmitted a
copy of the Communication to the Respondent State by DHL and
requested it to forward its submissions on admissibility within 3 months.
The Complainant was also requested to send his submissions on
admissibility within 3 months.
29. By letter and Note Verbale dated 20 March 2006, the parties to the
Communication were reminded to forward their written submissions on
admissibility of the Communication.
30. On 3 April 2006, the Secretariat received submissions on admissibility of
the Communication from one Gabriel Shumba. By letter dated 12 April
2006, the Secretariat of the African Commission wrote to Gabriel Shumba
informing him that the Communication had been brought before the
African Commission by Michael Majuru who had never made any
indication to the African Commission that Gabriel Shumba could make
representations on his behalf. This letter was also copied to the
Complainant- Michael Majuru.
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31. As at the 40th Ordinary Session there had been no reply from the
Complainant. The Communication was therefore deferred to the 41st
Ordinary Session pending the reply of the Complainant and Mr. Shumba,
as well as the Respondent State‟s submission on admissibility.
32. By letter and Note Verbale dated 11 December 2006, written to the
Complainant and Respondent State respectively, the parties were
informed by the Secretariat, about the decision of the African Commission
during its 40th Session, to consider the admissibility of the Communication
during its 41st Session. The parties were asked to send their Submissions
on admissibility within 3 months of receiving the letters.
33. The Complainant sent an email on 18 December 2006, confirming that
Zimbabwe Exiles Forum to which Gabriel Shumba is the Executive
Director are his agents in the matter and that the Secretariat should
acknowledge submissions made by them.
34. By Note Verbale dated 4 January 2007, the Secretariat reminded the
Respondent State of the Commission‟s decision during its 40 th Ordinary
Session, and asked them to make their submissions on admissibility within
3 months of receipt of the notification. Another reminder by way of a Note
Verbale dated 10 April 2007 was also sent to the Respondent State.
35. On 24 April 2007, the Secretariat received the Respondent State‟s
submission on admissibility. The Respondent State‟s submission was
forwarded to the Complainant by email and he was asked to make
additional submissions (if any), in order to address some important points
which were raised by the Respondent State in its submission.
36. During its 41st Ordinary Session, the African Commission decided to defer
consideration of the Communication to its 42nd Ordinary Session for its
decision on admissibility.
37. By letter ACHPR/LPROT/COMM/308/2005/ZIM/TN dated 20 July 2007
and by Note Verbale ACHPR/LPROT/COMM/308/2005/ZIM/RE, with the
same date, the parties were informed of the decision of the African
Commission to defer consideration of the Communication to its 42 nd
Ordinary Session.
38. At its 42nd Ordinary session held in Brazzaville, Republic of Congo, the
Commission considered this communication and decided to defer further
consideration into the 43rd ordinary session due to lack of time.
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39. By note verbale of 19 December 2007 and letter of the same date, the
Secretariat of the Commission notified both parties of the Commission‟s
decision.
Complainant’s submission on admissibility
40. The Complainant submitted that he has local standing before the African
Commission as the Communication is brought by himself, a citizen of
Zimbabwe, the Respondent State in this matter. Regarding compatibility,
the Complainant submitted that the Communication raises a prima facie
violation of the African Charter committed by the Respondent State. He
submitted further that the evidence he has submitted reveals that the
Communication is not based exclusively on news disseminated by the
mass media, adding that it is based on first hand evidence – including
reports by reputable human rights organizations.
41. On the exhaustion of local remedies, the Complainant submitted that the
onus is on the State to demonstrate that remedies are available, citing the
Commission‟s decisions in the cases of Rencontre Africaine pour la
Defense des Droits de l'Homme v. Zambia34 and Sir Dawda K. Jawara
v The Gambia35. The Complainant added that the remedy in his particular
circumstance is not available because he cannot make use of it, that he
was forced to flee Zimbabwe for fear of his life and that of his immediate
family, because of his work as a judge of the Administrative Court. That he
fled to the Republic of South Africa following threats of arrest and
unspecified harm by the Respondent State.
42. The Complainant drew the Commission‟s attention to its decision on
Rights International v Nigeria,36 where the Commission held that a
complainant‟s inability to pursue local remedies following his flight for fear
of his life to Benin, and was subsequently granted asylum was sufficient to
establish a standard for constructive exhaustion of local remedies. He
concluded by noting that considering the fact that he was no longer in the
Respondent State‟s territory where remedies could be sought, and that he
fled the country against his will due to threat to his life, remedies could not
be pursued without impediments.
43. The Complainant also challenged the effectiveness of the remedies noting
that remedies are effective only where they offer a prospect of success.
He claimed the Respondent State‟s reaction to court rulings that go
against it is well documented by reputable international and African NGOs,
noting that the Respondent State treats court rulings that go against it with
indifference and disfavour, and that he does not expect that in his case,
34
35
36
Communication 71/1992.
Communication 146/96.
Communication 215/98
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any decision of the court would be adhered to. He said there was a
tendency in the Respondent State to ignore court rulings that went against
it and added that the Zimbabwe Lawyers for Human Rights had
documented at least 12 instances where the State had ignored court
rulings since 2000. He cited the ruling of the High Court in the
Commercial Farmers Union, the Mark Chavunduka and Ray Choto
cases, where, in the latter case, the duo were allegedly abducted and
tortured by the army. He concluded that given the prevailing
circumstances and the nature of his complaint and the Respondent State‟s
well publicized practice of non-enforcement of court decisions, his case
had no prospect of success if local remedies were pursued and according
to him, not worth pursuing. Finally, the Complainant submitted that he
could not have exhausted local remedies as any such exhaustion would
have to comply with the States Liabilities Act which prevents the
complainant from suing the Respondent State after the expiration of two
months of the date of the incident complained of, if no prior notice has
been given.
44. The Complainant further submitted that the Communication was submitted
22 months after the violation because he hoped that the situation in the
country would improve to enable him utilize domestic remedies. He said
there is instead a deterioration of the situation and hope of improvement is
highly unlikely in the near future, adding that „continuing to wait whilst the
Complainant is undergoing tremendous psychological torture and suffering
attributable to his persecution will undoubtedly cause irreparable harm‟.
The Complainant added that since he fled to South Africa he has been
undergoing psycho-therapy and was not in a position to submit his
Communication to the Commission.
45. The Complainant indicated other reasons that prevented him from
submitting his complaint on time, including the fact that the judiciary
abides by a code of conduct in terms of which they do not ordinarily speak
out and take positions against the establishment, noting that out of eight or
so members who have left Zimbabwe because of persecution, he is the
only one who was speaking out. He added that he was afraid for the lives
of members of his immediate family that were at risk of persecution
because of him and that he was unable to submit immediately for want of
resources and facilities, noting that the submission was made possible
through the assistance and support of well wishers.
46. Finally, Complainant further submitted that the Communication had not
been before any other international body for settlement as required by
Article 56 (7).
Respondent State’s submission on admissibility
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47. The Respondent State briefly restated the facts of the Communication and
indicated that it will attend to the matters of fact, pertaining to the
complaint „in order to put the Communication in proper perspective‟. The
State submitted that the Complainant was appointed to the Office of
Administrative Court President in terms of Section 79 of the Constitution of
Zimbabwe, read together with the Administrative Court Act. The State
added that while performing his functions as a Magistrate, Presidents of
the Administrative Court are not judges, noting that in essence, the
Complainant was not a judge.
48. According to the State, the Complainant was supposed to be in a court in
Bulawayo, but due to his poor health and his relationship with the Minister
of Justice, he was appointed to the Administrative Court in Harare. The
State noted that Complainant was a sick man throughout his whole
duration at the court and added that „in fact from the time of his
appointment as a Court President, the Complainant used to travel to South
Africa to seek medical attention‟.
49. The State claims that Complainant applied for two weeks vacation from 9
– 31 December 2003 and went to South Africa for medical attention. That
he then tendered his resignation on 14 January 2004. The State observed
that even though the letter has a Zimbabwean address, an examination of
the delivery slip showed that it had been dispatched from South Africa.
The State concluded that the above circumstances which show how
Complainant left the country do not amount to forced flight as he claims.
50. The State questioned why Complainant would take steps to regularize his
absence from office by applying for vacation leave and tender his
resignation to the Minister who was threatening him. Without producing
any document, the state added that it is apparent from the documents
available that he was maintaining dialogue with a government which he
claims was persecuting him. The State observed further that the letter of
resignation even showed the address Complainant was residing and
„assuming the government of Zimbabwe really wanted his life, it would
have used the address he had volunteered to track him‟. The State
concluded by stating that the truth is that „complainant was never
threatened by anyone, anywhere both within and outside Zimbabwe‟.
51. On the admissibility of the Communication, the State argued that the
Communication be declared inadmissible for non-compliance with the
provisions of Article 56 (2), (5) and (6) of the Charter.
52. The State argued that the Communication is not compatible as required by
Article 56 (2) of the Charter, as it makes general allegations without
substantiating, adding that, for a complaint to be compatible with the
Charter or the Constitutive Act, it must prove a prima facie violation of the
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Charter. According to the State, the facts raised in the Communication do
not raise any violation of the Charter, noting that „basically the facts and
issues in dispute do not fall within the rationae materae and rationae
personae of the jurisdiction of the Commission.
53. On the exhaustion of local remedies under article 56 (5), the State
submitted that local remedies were available to the Complainant, citing
section 24 of the Constitution of Zimbabwe which provides the course of
action to be taken where there is human rights violation. The State added
that there is no evidence to prove that the Complainant pursued local
remedies. The State further indicated that in terms of Zimbabwe law,
where one is engaged in acts that violate the rights of another person, that
other person can obtain an interdict from the court restraining the violator
from such act.
54. On the effectiveness of the remedies, the State submitted that the
Constitution provides for the independence of the judiciary in the exercise
of its mandate in conformity with both the UN Principle on an independent
Judiciary and the African Commission‟s Guidelines on the right to a fair
trial.
55. The State dismissed the Complainant‟s argument that his case is similar to
those brought by Sir Dawda Jawara against The Gambia and Rights
International (on behalf of Charles Baridorn Wiza) against Nigeria, adding
that in the latter cases, there was proof of real threat to life. The State
went further to indicate instances where the government has implemented
court decisions that went against it.
56. The State further indicated that in terms of Zimbabwe law, it is not a legal
requirement for a Complainant to be physically present in the country in
order to access local remedies, adding that both the High Court Act and
the Supreme Court Act permit any person to make an application to either
court through his/her lawyer. The State added that in the Ray Choto and
Mark Chavhunduka case, the victims were tortured by State agents and
they applied for compensation while they were both in the United Kingdom
and succeeded in their claim. The State concluded that the Complainant is
not barred from pursuing remedies in a similar manner.
57. The State further submitted that since his resignation, the government of
Zimbabwe continues to pay the Complainant his pension benefits and
argued that the excuse raised by the Complainant of lack of resources to
enable him submit his complaint on time is therefore without merit, adding
that he could have instructed his counsel in Zimbabwe to attend to his
claim on his behalf.
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58. According to the State, the Complainant sought to mislead the
Commission by claiming that under the State Liabilities Act, claims against
the State are prescribed within a period of sixty days. The State indicated
that section 6 of the Act is clear that the sixty days is in respect of a notice
of intention to sue. The Act prescribes that a summons against a State in
certain matters must be delivered sixty days after the notice of intention to
sue, and according to the State, this would actually work well for the
Complainant, adding that the period of proscription of claims is three years
and complainant‟s claim was not yet three years and thus not proscribed.
59. The State also submitted that the complaint does not conform to article 56
(6) of the Charter indicating that the Communication should be lodged
within a reasonable time after exhaustion of local remedies, but where
Complainant realizes that local remedies shall be unduly prolonged,
he/she must submit the complaint to the Commission immediately.
According to the State, although the Charter does not specify what
constitute a reasonable time, the Commission should get inspiration from
the other jurisdictions, including the Inter-American Commission which has
fixed six months as reasonable time, adding that even the draft protocol
merging the African Court of Justice and the African Court on Human and
Peoples‟ Rights provides for six months.
60. The State argued that the Communication was submitted 22 months after
the alleged violation, which according to the State „was filed well out of
time‟. On Complainant‟s submission that he had been seeking psychotherapy treatment, the State argued that Complainant had been the centre
of attraction in South Africa since 2004, demonizing the Respondent State,
adding that articles published by Complainant in the South African press
do not show someone with a psychological ailment. The State added that
no proof had been given of the alleged treatment or an expert diagnosis of
how such condition was acquired. On Complainants‟ claim that he had no
resources, the State argued that he had his pension benefits which he
could have used to submit his complaint to the Commission.
61. The state concluded its submissions by noting that „no cogent reasons
have been given for the failure to pursue local remedies or remedies
before the Commission within a reasonable time‟, and as such the
Communication should be declared inadmissible.
LAW
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Admissibility
Competence of the African Commission
62. In the present Communication, the Respondent State raises a question
regarding the competence of the African Commission to deal with this
Communication. The State avers that: (quote) “…basically the facts and
issues in dispute do not fall within the rationae materae and rationae
personae of the jurisdiction of the Commission”. This statement thus
challenges the competence of the African Commission to deal with this
Communication. The Commission will thus, first deal with the preliminary
issue of its competence raised by the Respondent State.
63. Black‟s law dictionary defines rationae materae as “by reason of the
matter involved; in consequence of, or from the nature of, the
subject-matter” While rationae personae is defined as “By reason of
the person concerned; from the character of the person”.37
64. Given the nature of the allegations contained in the Communication, such
as allegations of violation of personal integrity or security, intimidation and
torture, the Commission is of the view that the Communication raises
material elements which may constitute human rights violation, and as
such, it has competence rationae materae to deal with the matter,
because the Communication alleges violations to human rights protected
in the Charter. With regards to the Commission‟s competence rationae
personae, the Communication indicates the name of the author, an
individual, whose rights under the African Charter, the Respondent State
is committed to respecting and protecting. With regards to the State, the
Commission notes that Zimbabwe, the Respondent State in this case, has
been a State Party to the African Charter since 1986. Therefore, both the
Complainant and the State have locus standi before the Commission, and
the Commission thus has competence rationae personae to examine the
Communication.
65. Having decided that it has competence rationae materae and rationae
personae, the African Commission will now proceed to pronounce on the
admissibility requirements and the contentious areas between the parties.
Decision of the African Commission on admissibility
37
HC Black , JN Nolan-Haley & JR Nolan Blacks LAW Dictionary (6 ed) 1990, 1262-1263. St
Paul Minn. West Publishing Co.
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66. The admissibility of Communications before the African Commission is
determined by the requirements of Article 56 of the African Charter. This
Article provides seven requirements which must all be met before the
Commission can consider and declare a Communication admissible. If
one of the conditions/requirements is not met, the Commission shall
declare the Communication inadmissible, unless the complainant provides
justifications why any of the requirements could not be met.
67. In the present Communication, the Complainant avers that his complaint
meets the requirements under Article 56 (1) - (4), (6) and (7). He admits
that he did not attempt to comply with the requirement provided under
Article 56 (5) dealing with the exhaustion of local remedies, but added that
given the nature of his case, and the circumstances under which he left
the Respondent State, and is living in South Africa, the exception rule
under this sub-section of Article 56, should be invoked.
68. The State on the other hand argues that the Complainant has not
complied with the provisions of Article 56 (2), (5) and (6) of the Charter,
and urges the Commission to declare the Communication inadmissible,
based on non-compliance with these requirements.
69. The African Commission will thus examine each of the provisions under
Article 56 of the African Charter, whether it is disputed or not, as the
African Commission has a responsibility to ensure that every requirement
in Article 56 has been fulfilled before admitting a Communication.
70. The requirements under Article 56 of the Charter are meant to ensure that
a Communication is properly brought before the Commission, and seek to
sieve frivolous and vexatious Communications before they reach the
merits stage. Thus, declaring a Communication admissible does not mean
the State Party concerned has violated the provisions of the Charter. It
simply means that the Communication meets the requirements necessary
for it to be considered on the merits. As indicated earlier, for a
Communication to be declared admissible, it must meet all the
requirements under Article 56. Therefore, if a party contends that another
party has not complied with one of the requirements, the Commission
must pronounce itself on the contentious issues between the parties, as
well as the non-contentious issues.
71. Article 56(1) of the African Charter provides that Communications will be
admitted if they indicate their authors, even if they request anonymity. In
the present case the author of this Communication is identified as Michael
Majuru, he has also not requested that his identity be hidden. The
respondent State has also been clearly identified as the Republic of
Zimbabwe. Therefore the provision of Article 56(1) has been adequately
complied with.
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72. Article 56(2) of the African Charter provides that a Communication must
be compatible with the Charter of the OAU (now Constitutive Act of the
African Union) or with the African Charter on Human and Peoples‟ Rights.
In the present Communication, the Respondent State argues that the
Communication does not comply with this requirement. The State asserts
in this regard that, for a complaint to be compatible with the Charter or the
Constitutive Act, it must prove a prima facie violation of the Charter.
73. Compatibility denotes „in compliance‟ or „in conformity with‟ or „not contrary
to‟ or „against‟.38 In the present Communication, the Complainant alleges
among others, violations of his right to personal integrity and being
subjected to intimidation, harassment and psychological torture. He
alleges further that agents of the intelligence service of the Respondent
State constantly harassed him and prevented him from exercising his
duties freely. These allegations do raise a prima facie violation of human
rights, in particular, the right to the security of the person or personal
integrity and the right to work under satisfactory condition as stipulated in
the Charter. In the jurisprudence of this Commission, Complainants need
not specify which articles of the Charter have been violated, or even which
right is being invoked, so long as they have raised the substance of the
issue in question. That, in the view of the Commission, has been
established in this case. Based on the above, the African Commission is
satisfied that the requirement of Article 56(2) of the African Charter has
been sufficiently complied with.
74. Article 56(3) of the Charter provides that a Communication will be
admitted if they are not written in disparaging or insulting language
directed against the State concerned and its institutions or to the
Organisation of African Unity (now the African Union). In the present case,
the Communication sent by the Complainant, does not, in the view of the
African Commission, contain any disparaging or insulting language, and
as a result of this, the requirement of Article 56(3) has been fulfilled.
75. Article 56(4) of the Charter provides that the Communication must not be
based exclusively on news disseminated through the mass media. This
Communication was submitted by the complainant himself and gives an
account of his personal experience with the law enforcement agents of the
Respondent State. As a result of this, the requirement of Article 56(4) has
also been met.
76. Article 56(5) of the Charter provides that a Communication will be
admitted only after all local remedies have been exhausted. The
Respondent State contends that the Complainant has not brought his case
before the courts of the State in compliance with this provision of the
38
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Charter. The State argues that there are sufficient and effective local
remedies available to the Complainant in the State, and the Complainant
has not sought these remedies before bringing the present
Communication before the Commission. On the other hand, the
Complainant argues that since he had to flee the country due to fear for
his life, he could not come back to the country to pursue these local
remedies.
77. The rationale for the exhaustion of local remedies is to ensure that before
proceedings are brought before an international body, the State concerned
must have the opportunity to remedy the matter through its own local
judicial system. This prevents the international tribunal from acting as a
court of first instance, rather than as a body of last resort.39
78. Three major criteria could be deduced from the practice and jurisprudence
of the Commission in determining compliance with this requirement,
namely: the remedy must be available, effective and sufficient.
79. In Jawara v The Gambia, the Commission stated that “a remedy is
considered available if the petitioner can pursue it without impediment; it is
deemed effective if it offers a prospect of success, and it is found sufficient
if it is capable of redressing the complaint”. In the Jawara Communication,
which both parties have cited, the Commission held that “the existence 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 of fear for his life (or even those of his relatives), local
remedies would be considered to be unavailable to him”.
80. The Complainant in the present Communication claims that he left his
country out of fear for his life due to intimidation, harassment and undue
influence in the exercise of his duties. The Complainant has also alleged a
history of non-compliance with the orders of the court of the Respondent,
and alleges that a human rights NGO in Zimbabwe – the Zimbabwe
Lawyers for Human Rights, has documented 12 cases since the year
2000, where the State has ignored court rulings that go against it.
According to the Complainant, it is noteworthy that although local
remedies may be available in the Respondent State, there is no assurance
of its effectiveness or its implementation due to the fact that if the court
rules in favour of the complainant, there is no guarantee that the ruling will
be complied with by the State.
81. The Complainant cited the African Commission‟s decisions in the Jawara
case and the cases of Alhassan Abubakar v Ghana40 and Rights
39
40
Communications 25/84, 74/92 and 83/92.
Communication 103/93
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International/ Nigeria41 in which he said the Commission found that the
Complainants in these cases could not be expected to pursue domestic
remedies in their country due to the fact that they had fled their country
and were in fact residing outside their country at the time the
Communications were brought before the Commission.
82. Having studied the Complainant‟s submissions, and comparing it with the
above cases cited in support of his claim, this Commission is of the
opinion that the above cases cited by the Complainant are not similar to
his case. In the Jawara case for example, the Complainant was a former
Head of State who had been overthrown in a Military coup. Mr. Jawara
alleged that after the coup, there was “blatant abuse of power by … the
military junta”. The military government was alleged to have initiated a
reign of terror, intimidation and arbitrary detention. He further alleged the
abolition of the Bill of Rights as contained in the 1970 Gambia Constitution
by Military Decree No. 30/31, ousting the competence of the courts to
examine or question the validity of any such Decree. The Communication
alleged the banning of political parties and of Ministers of the former
civilian government from taking part in any political activity. The
Communication further alleged restrictions on freedom of expression,
movement and religion. These restrictions were manifested, according to
the Complainant, by the arrest and detention of people without charge,
kidnappings, torture and the burning of a mosque.
83. In the Jawara case, the Commission concluded that “the Complainant in
this case had been overthrown by the military, he was tried in absentia,
former Ministers and Members of Parliament of his government have been
detained and there was terror and fear for lives in the country. There is no
doubt that there was a generalised fear perpetrated by the regime as
alleged by the complainant. This created an atmosphere not only in the
mind of the author but also in the minds of right thinking people that
returning to his country at that material moment, for whatever reason,
would be risky to his life. Under such circumstances, domestic remedies
cannot be said to have been available to the complainant”. The
Commission finally noted that, “it would be an affront to common sense
and logic to require the complainant to return to his country to exhaust
local remedies”.
41
Communications 215/98
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84. In the Alhassan Abubakar case, it should be recalled that Mr. Alhassan
Abubakar was a Ghanaian citizen who was arrested by the Ghanaian
authorities in the 1980s for allegedly cooperating with political dissidents.
He was detained without charge or trial for over 7 years until his escape
from a prison hospital on 19 February 1992 to Cote d‟Ivoire. After his
escape, his sister and wife, who had been visiting him in Cote d‟Ivoire,
were arrested and held for two weeks in an attempt to get information on
the Complainant‟s whereabouts. The Complainant‟s brother informed him
that the police have been given false information about his return, and
have on several occasions surrounded his house, searched it, and
subsequently searched for him in his mother‟s village.
85. In the early part of 1993, the UNHCR in Côte d‟Ivoire informed the
Complainant that they had received a report on him from Ghana assuring
that he was free to return without risk of being prosecuted for fleeing from
prison. The report further stated that all those detained for political reasons
had been released. Complainant on the other hand maintained that there
is a law in Ghana which subjects escapees to penalties from 6 months to 2
years imprisonment, regardless of whether the detention from which they
escaped was lawful or not. On the basis of the above, the Commission
held that “considering the nature of the Complaint it would not be logical to
ask the Complainant to go back to Ghana in order to seek a remedy from
national legal authorities. Accordingly, the Commission does not consider
that local remedies are available for the complainant”.
86. In Rights International v. Nigeria42, the victim, a certain Mr. Charles
Baridorn Wiwa, a Nigerian student in Chicago was arrested and tortured at
a Nigerian Military Detention Camp in Gokana. It was alleged that Mr.
Wiwa was arrested on 3 January 1996 by unknown armed soldiers in the
presence of his mother and other members of his family and remained in
the said Military detention camp from 3-9 January 1996. While in
detention, Mr. Wiwa was horsewhipped and placed in a cell with forty-five
other detainees. When he was identified as a relative of Mr. Ken Saro Wiwa he was subjected to various forms of torture. Enclosed in the
Communication was medical evidence of Mr. Wiwa's physical torture. After
5 days in the detention camp in Gokana, Mr. Wiwa was transferred to the
State Intelligence Bureau (SIB) in Port Harcourt. Mr. Wiwa was held from
9-11 January 1996, without access to a legal counsel or relatives, except
for a five minutes discussion with his grandfather. On 11 January 1996,
Mr. Wiwa and 21 other Ogonis were brought before the Magistrate Court 2
in Port-Harcourt, charged with unlawful assembly in violation of Section 70
42
Communication 215/98.
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of the Criminal Code Laws of Eastern Nigeria 1963. Mr. Wiwa was granted
bail, but while out on bail some un-known people believed to be
government agents abducted him and threatened his life by forcing him
into a car in Port-Harcourt. On the advice of human rights lawyers, Mr.
Wiwa fled Nigeria on 18 March 1996 to Cotonou, Republic of Benin, where
the UN High Commissioner for Refugees declared him a refugee. On
September 17 1996, the US government granted him refugee status and
he has been residing in the United States since then.
87. In this case, the African Commission declared the Communication
admissible on grounds that there was lack of available and effective
domestic remedies for human rights violations in Nigeria under the military
regime. It went further to assert that “the standard for constructive
exhaustion of domestic remedies is satisfied where there is no adequate
or effective remedy available to the individual. In this particular case, …
Mr. Wiwa was unable to pursue any domestic remedy following his flight
for fear of his life to the Republic of Benin and the subsequent granting of
refugee status to him by the United States of America”.
88. The present Communication brought by Mr. Michael Majuru should also
be differentiated from Gabriel Shumba v Republic of Zimbabwe.43 In the
Shumba case, the Complainant alleged that, he, in the presence of 3
others, namely Bishop Shumba, Taurai Magayi and Charles Mutama, was
taking instructions from one of his clients, a Mr. John Sikhala, in a matter
involving alleged political harassment by members of the Zimbabwe
Republic Police (ZRP). Mr. John Sikhala is a Member of Parliament for the
Movement for Democratic Change (MDC), which is an opposition party in
Zimbabwe. At about 11:00 pm riot police accompanied by plain-clothes
policemen and personnel identified to be from the Central Intelligence
Organization (CIO) stormed the room and arrested everyone present.
During the arrest, the Complainant‟s law practicing certificate, diary, files,
documents and cell phone were confiscated and he was slapped and
kicked several times by, among others, the Officer in Charge of Saint
Mary‟s Police Station.
89. The Complainant and the others were taken to Saint Mary‟s Police Station
where he was detained without charge and denied access to legal
representation. He was also denied food and water. The Complainant
claimed that on the next day following his arrest, he was removed from the
cell, a hood was placed over his head and he was driven to an unknown
43
Communication 288/2004.
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location where he was led down what seemed like a tunnel to a room
underground. The hood was removed, he was stripped naked and his
hands and feet were bound in a foetal position and a plank was thrust
between his legs and arms. While in this position, the Complainant was
questioned and threatened with death by about 15 interrogators. The
Complainant further alleged that he was also electrocuted intermittently for
8 hours and a chemical substance was applied to his body. He lost control
of his bodily functions, vomited blood and he was forced to drink his vomit.
The Complainant submitted a certified copy of the medical report
describing the injuries found on his body. Following his interrogation, at
around 7pm of the same day, the Complainant was unbound and forced to
write several statements implicating himself and several senior MDC
members in subversive activities. At around 7.30pm he was taken to
Harare Police Station and booked into a cell. On the third day of his arrest,
his lawyers who had obtained a High Court injunction ordering his release
to court were allowed to access him. The Complainant was subsequently
charged under section 5 of the Public Order and Security Act that relates
to organizing, planning or conspiring to overthrow the government through
unconstitutional means. He then fled Zimbabwe for fear of his life.
90. In the above cases, there is one thing in common – the clear
establishment of the element of fear perpetrated by identified state
institutions, fear which in the Jawara case, the Commission observed that
“it would be reversing the clock of justice to request the complainant to
attempt local remedies”.
91. In the Communication under consideration, however, Mr. Michael Majuru
alleges that he fled the country for fear of his life, that he was intimidated
and harassed by the Minister of Justice and by suspected state agents. He
also indicated that he received „a telephone call from a sympathetic
member of the legal fraternity and the police that the Respondent State
was fabricating a case against him and that he was to be arrested and
incarcerated on unspecified charges as punishment for defying the
Respondent‟s orders‟.
92. In this Communication, it is clear that the Complainant has simply made
general accusations and has not corroborated his allegations with
documentary evidence, sworn affidavits or testimonies of others. He
claims the Minister sent an instruction through a colleague of his but there
is no way of ascertaining this fact. The applicant was the President of the
Administrative Court, and has not show how the instruction purportedly
sent by the Minister through the Complainant‟s colleague, who the
Commission is not told the kind of influence he had over the Complainant,
could have or did intimidate him. Apart from the direct telephone call the
Complainant claims he received from the Minister on 23 October and 24
November 2003, all the alleged threats, intimidations and harassment he
claims, were perpetrated by persons he suspects were government
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agents. Most of his allegations are unsubstantiated. For example, he
indicated in paragraph 2.5.4.7 of his submissions that “the Minister
expressed his displeasure with the said decision and further attempted to
unduly influence and/or threaten the Complainant”. He fails to show how
this attempted influence or threat by the Minister was carried out.
93. It is further observed by the Commission that the alleged threat or
pressure claimed by the Complainant to have been meted by Enoch
Kamushinda, who the complainant himself refers to as a suspected
Central Intelligence Organisation (CIO) operative, has not been
substantiated; neither has the purported pressure and entrapment alleged
to have been made by Mr. Ben Chisvo, who according to the Complainant,
is a suspected CIO informer. Furthermore, the Complainant alleged he
received a telephone call from a sympathetic member of the legal
fraternity and the police that the Respondent State was fabricating a case
against him, and that he was to be arrested and incarcerated on
unspecified charges as punishment for defying the Respondent‟s orders.
All the above allegations are not substantiated. Take the latter for
example, what if the „sympathetic member of the legal fraternity‟ was a
hoax? What if he was acting on his own or wanted to benefit from the
misfortune of the Complainant? His or her name is not even known.
94. It is not possible for the Commission to determine the level of intimidation
or harassment that is needed to instil fear in a person, to force that person
to flee for their life. However, in the instant case, there is no concrete
evidence to link the complainant‟s fear to the Respondent State.
95. It is therefore the opinion of the Commission that the Complainant has not
sufficiently demonstrated that his life or those of his close relatives were
threatened by the Respondent State, forcing him to flee the country, and
as such, cannot hold that the Complainant left the country due to threats
and intimidation from the State.
96. However, the question is, having left the country, could the Complainant
still have exhausted local remedies or better still is he required to exhaust
local remedies?
97. The first test that a local remedy must pass is that it must be available to
be exhausted. The word “available” means “readily obtainable”;
“accessible”;44 or “attainable, reachable; on call, on hand, ready, present; .
. . convenient, at one‟s service, at one‟s command, at one‟s disposal, at
one‟s beck and call.”45 According to the African Commission, a remedy is
considered to be available if the petitioner can pursue it without
44
45
WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 102 (1989).
LONGMAN SYNONYM DICTIONARY 82 (1986).
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impediments or if he can make use of it in the circumstances of his case. 46
In the present Communication, the question to be asked is whether there
were remedies available to the Complainant even from outside the
Respondent State?
98. The State indicates that in terms of its laws, a Complainant need not be
physically present in the country in order to access local remedies, adding
that both the High Court Act and the Supreme Court Act permit any person
to make an application to either court through his/her lawyer. In support of
this, the State cited the Ray Choto and Mark Chavhunduka case where
the victims were tortured by state agents and they applied for
compensation while they were both in the United Kingdom and succeeded
in their claim. The State concluded that the Complainant is not barred from
pursuing remedies in a similar manner. The State further argues that since
his resignation, the government of Zimbabwe continues to pay the
Complainant his pension benefits which he could have used to instruct his
counsel in Zimbabwe to attend to his claim on his behalf.
99. The Complainant does not dispute the availability of local remedies in the
Respondent State, but argues that in his particular case, having fled the
country for fear of his life, and now out of the country, local remedies are
not available to him.
100.
The African Commission holds the view that having failed to
establish that he left the country involuntarily, and in view of the fact that in
Zimbabwe law, one need not be physically in the country to access local
remedies, the Complainant cannot claim that local remedies were not
available to him.
101.
The Complainant argues that even if local remedies were available,
they were not effective because the State has the tendency of ignoring
court rulings taken against it, citing among others, the High Court decision
in the Commercial Farmers Union and the Ray Choto and Mark
Chavhunduka cases, and added that the Zimbabwe Lawyers for Human
Rights has documented at least 12 instances where the state has ignored
court rulings since 2000.
102.
The Rules of Procedure of the African Commission provide that
“[t]he Commission shall determine questions of admissibility pursuant to
Article 56 of the Charter.”47 Generally, the rules require applicants to set
out in their submissions the steps taken to exhaust domestic remedies.
They must provide some prima facie evidence of an attempt to exhaust
local remedies. The Human Rights Committee has stated that the mere
fact that a domestic remedy is inconvenient or unattractive, or does not
46
47
Jawara v. The Gambia, supra.
See Rule 116 of the Rules of Procedure of the African Commission.
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produce a result favorable to the petitioner does not, in itself, demonstrate
the lack of exhaustion of all effective remedies.48 In the Committee‟s
decision on A v Australia,49 it held that “mere doubts about the
effectiveness of local remedies or prospect of financial costs involved did
not absolve the author from pursuing such remedies.”50 In Article 19 v
Eritrea, the Commission held that “it is incumbent on the Complainant to
take all necessary steps to exhaust, or at least attempt the exhaustion of
local remedies. It is not enough for the Complainant to cast aspersion on
the ability of the domestic remedies of the State due to isolated
incidences”. The European Court of Human Rights on its part has held
that even if the applicants have reason to believe that available domestic
remedies and possible appeals will be ineffective, they should seek those
remedies since “it is generally incumbent on an aggrieved individual to
allow the domestic courts the opportunity to develop existing rights by way
of interpretation.”51
103.
From the above analysis, this Commission is of the view that the
complainant ignored to utilize the domestic remedies available to him in
the respondent State, which had he attempted, might have yielded some
satisfactory resolution of the complaint.
104.
Article 56(6) of the Charter provides that “Communications
received by the Commission will 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 respondent
State contends that the present Communication was not submitted on time
by the complainant, as required by the African Charter.
105.
The present Communication was received at the Secretariat of the
Commission on 8 November 2005 (even though dated 2 November 2005).
It was considered for seizure by the Commission in November 2005, that
is, two years after the Complainant allegedly fled from the country. The
Complainant never approached the courts of the Respondent State. He
left the country in December 2003 and only seized the Commission twenty
two months later. The Complainant submits without substantiating that he
48
49
50
51
Nos. 220/1987, T. K. v. France; 222/1987, M. K. v. France; 306/1988, J. G. v. The
Netherlands, in 2 Report of the Human Rights Committee 188, 122; 127, 130; 180, 182–
83, UN Doc. A/45/40 (1990) [hereinafter HRC 1990 Report].
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
See also L Emil Kaaber v Iceland, Communication No. 674/1995. UN Doc.
CCPR/C/58/D/674/1995 (1996). See also Ati Antoine Randolph v. Togo, Communication
No. 910/2000, UN Doc. CCPR/C/79/D/910/2000 (2003).
PHILIP LEACH, TAKING A CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS
79 (2001) (quoting Earl Spencer and Countess Spencer v. United Kingdom, App. Nos.
28851/95, 28852/95 (Eur. Comm‟n on H.R. 1998)).
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had been undergoing psychotherapy while in South Africa, and also
indicated that he did not have the financial means to bring the case before
the Commission. He also stated that he had hoped the situation in the
country would improve to enable him utilize domestic remedies but there
was instead a deterioration.
106.
The Commission notes that the Complainant is not residing in the
Respondent State and notes further that the Complainant indicated that he
was prevented from submitting his complaint on time, because the
judiciary abides by a code of conduct in terms of which they do not
ordinarily speak out and take positions against the establishment, noting
that out of eight or so members who have left Zimbabwe because of
persecution, he is the only one who was speaking out. He added that he
was afraid for the lives of members of his immediate family that were at
risk of persecution because of him.
107.
The State on its part argues that “no cogent reasons have been
given for the failure to pursue local remedies or remedies before the
Commission within a reasonable time‟. The State submits that the
Communication was submitted 22 months after the alleged violation,
which according to the State „was filed well out of time‟. On Complainant‟s
submission that he had been seeking psycho-therapy treatment, the State
argued that Complainant had been the centre of attraction in South Africa
since 2004 demonizing the Respondent State, adding that articles
published by the Complainant do not show someone with a psychological
ailment. The State added that no proof had been given of the alleged
treatment or an expert diagnosis of how such condition was acquired. On
Complainants‟ claim that he had no resources, the State argued that he
had his pension benefits which he could have used to submit his complaint
to the Commission.
108.
The Charter does not provide for what constitutes “reasonable
period”. However, the Commission has the mandate to interpret the
provisions of the Charter52 and in doing so, it takes cognizance of its duty
to protect human and people‟s rights as stipulated in the Charter. The
provisions of other international/ regional instruments like the European
Convention on Human Rights and Fundamental Freedoms and the InterAmerican Convention on Human Rights, are almost similar and state that
they … may only deal with the matter… within a period of six months
from the date on which the final decision was taken”53, after this
period has elapsed the Court/Commission will no longer entertain the
Communication.
52
53
Article 45 (3) African Charter on Human and Peoples’ Rights
Article 26 European Convention on Human rights.
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109.
The Commission is urged in Articles 60 and 61 of the Charter to
consider as subsidiary measures to determine the applicable principles of
law “other general or special international instruments, laying down rules
expressly recognized by member states of the African Union…”. Going by
the practice of similar regional human rights instruments, such as the
Inter-American Commission and Court and the European Court, six
months seem to be the usual standard. This notwithstanding, each case
must be treated on its own merit. Where there is good and compelling
reason why a Complainant could not submit his/her complaint for
consideration on time, the Commission may examine the complaint to
ensure fairness and justice.
110.
In the present Communication, the arguments advanced by the
Complainant as impediments for his late submission of the complaint do
not appear convincing. The complainant does not supply the Commission
with medical proof to indicate he was suffering from mental problems, he
does not indicate what gave him the impression that things might improve
in Zimbabwe, after he himself noted in his complaint that since 2000 there
has been documented evidence to show that things were deteriorating,
including the fact that the government does not respect court judgments.
Even if the Commission accepts that he fled the country and needed time
to settle, or that he was concerned for the safety of his relatives, twenty
two (22) months after fleeing the country is clearly beyond a reasonable
man‟s understanding of reasonable period of time. The African
Commission thus holds that the submission of the Communication was
unduly delayed and thus does not comply with the requirements under
Article 56 (6) of the Charter.
111.
Article 56(7) of the African Charter provides that the
Communication must not deal with cases which have been settled by the
States, in accordance with the principles of the United Nations, or the
Charter of the OAU or the African Charter. In the present case, this case
has not been settled by any of these international bodies, and as a result
of this, the requirement of Article 56(7) has been fulfilled by the
complainant.
The African Commission finds that in the present Communication, that is,
Communication 308/05 - Michael Majuru/Zimbabwe, the Complainant has
not complied with sub-sections (5) and (6) of Article 56 of the African Charter,
and thus declares the Communication inadmissible.
Adopted at the 44th Ordinary Session of the African Commission on
Human and Peoples’ Rights, 10 – 24 November 2008, Abuja, Nigeria.
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