Communication 302/05 - Mr Mamboleo M. Itundamilamba v. Democratic Republic of Congo
Summary of the Complaint
1. On 20 April 2005, the Secretariat of the African Commission on Human and
Peoples’ Rights received from Mr Mamboleo Mughuba Itundamilamba, a
Congolese citizen, a Communication submitted in accordance with Articles 55
and 56 of the African Charter on Human and Peoples’ Rights (the African
Charter).
2. The Communication was submitted against the Democratic Republic of
Congo (State Party to the African Charter and hereafter referred to as the
DRC).1
3. The Complainant has been a member of the National Bar Association since 12
October 1965 and is a member of the Bar of the Bukavu Court of Appeal.
4. The Complainant alleges to have unsuccessfully sought from the Pharmakina
Company, a public limited company, the payment of fees for services
rendered in connection with the retrocession from the estate of the latter of
several cinchona plantations that had, at the time, been transferred to
Congolese nationals pursuant to presidential decisions of November 1973.
Pharmakina Company acknowledges to have been rendered the said services,
but alleges on the contrary to have already settled the Complainant’s fees.
5. The Complainant further states that after the failure of negotiations for an
amicable settlement, he brought the dispute before the Bar Council in Bukavu
and to the National Bar Council in Kinshasa. The latter body rendered
Arbitral Award No. 98/CNO/LH/006 of 1 April 1998 ordering Pharmakina
Company to pay the Complainant the sum of 500,000 (five hundred
thousand) U.S. dollars.
6. The Complainant further alleges that Pharmakina Company lodged an
appeal for an annulment of the award with the Administrative Chamber of
the Supreme Court of the DRC which, by Judgement No. 444/445/452 RA
2000 of 17 April 2000, annulled the above-mentioned Decision No.
98/CNO/LH/006 handed down by the National Bar Council.
7. The President of the Bar Association instituted third-party proceedings (filed
under No. RA/667/2001), on behalf of the Complainant, before the
1 The Democratic Republic of Congo ratified the African Charter on 20 July 1987.
Administrative Chamber of the Supreme Court on 24 April 2001, aimed at
having this Court withdraw its Judgement No. RA/444/445/452.
8. The Complainant submits that up to 20 April 2005 when the case was brought
before the African Commission, almost four years after the appeal was filed,
the Congolese Supreme Court had still not made any ruling on the matter.
Prayers
9. The Complainant alleges that the facts set out above constitute a violation of
Articles 3 and 7 (1) (a) and (c) of the African Charter and prays the African
Commission to:
1. Declare null and void Judgement No. RA444/445/452 of 17 April 2000
delivered by the Supreme Court of the DRC;
2. Recognize the Complainant’s right to subject Pharmakina Company to the
legal obligation to comply with Judgment No. 98/CNO/LH006 of 1 April
1998 issued by the National Bar Council;
3. Grant the Complainant a fair compensation for deprivation of enjoyment,
from 1 April 1998, of the sum of 500,000 U.S. dollars awarded to him in
respect of fees by the National Bar Council.
PROCEDURE
10. The complaint was received at the Secretariat of the African Commission on
20 April 2005.
11. On 10 June 2005, the Secretariat of the African Commission wrote a letter to
the Complainant acknowledging receipt of the complaint and communicating
to him the references. The Secretariat also informed the Complainant in the
same letter that the complaint would be considered on seizure by the African
Commission at its 38th Ordinary Session to be held in November/December
2005.
12. At its 38th Ordinary Session held from 21 November to 5 December 2005 in
Banjul, The Gambia, the African Commission considered the complaint and
decided to be seized thereof.
2
13. On 17 January 2006, the Secretariat of the African Commission informed the
Respondent State of its decision, forwarding to it a copy of the complaint and
requesting it to submit its arguments on Admissibility.
14. On the same date, the Complainant was informed of the decision of the
African Commission and also requested to submit his arguments on
Admissibility.
15. In the absence of any response from the parties, the Secretariat of the
Commission sent them reminder letters on 23 March 2006. A copy of the
complaint was especially attached to the note verbale sent to the Respondent
State.
16. On 23 May 2006, the Secretariat of the Commission received from the
Complainant a copy of his letter transmitting his arguments on Admissibility
to the Respondent State. A copy of the same arguments on Admissibility was
also sent to the Secretariat.
17. By note verbale dated 14 July 2006, the Secretariat forwarded to the
Respondent State the Complainant’s arguments on Admissibility. Moreover,
after reminding the DRC of the note verbale dated 23 March 2006, the
Secretariat again requested the Respondent State to submit its arguments on
the Admissibility of the Communication within two months.
18. On 26 July 2006, the Secretariat wrote to the Complainant a letter
acknowledging receipt of his arguments on Admissibility and informing him
of the transmission of the said arguments to the Respondent State.
19. At its 40th Ordinary Session held in Banjul, The Gambia, from 15 to 29
November 2006, the African Commission deferred the matter to its 41st
Ordinary Session to be held from 16 to 30 May 2007 in Accra, Ghana, in order
to allow the Respondent State more time to respond to the Complainant’s
arguments on Admissibility.
20. On 30 January 2007, having received no response to the notes verbales of 23
March 2006 and 14 July 2006 sent to the Respondent State through the
Ministry of Foreign Affairs, the Secretariat of the Commission sent a note
verbale as a reminder, this time to the Ministry of Human Rights with a copy
to the Ministry of Foreign Affairs. The Secretariat also indicated in this note
verbale that if the DRC failed to submit its arguments on Admissibility within
30 days, the Commission may, at its 41st Ordinary Session, deliver its ruling
on the Admissibility of the complaint in accordance with Rule 119 (4) of its
Rules of Procedure.
3
21. On the same day, 30 January 2007, the Secretariat informed the Complainant
of the deferral of the consideration of the complaint to the 41st Ordinary
Session of the Commission and the transmission of the reminder note verbale
to the Respondent State.
22. At its 41st Ordinary Session held in Accra, Ghana, from 16 to 30 May 2007, the
African Commission again deferred the consideration of the complaint to its
42nd Ordinary Session scheduled to be held from 14 to 28 November 2007 in
Brazzaville, Republic of Congo.
23. By letter dated 15 June 2007, the Secretariat informed the Complainant of the
deferral of the consideration of the complaint to the 42nd Ordinary Session of
the Commission.
24. By note verbale dated 15 June 2007, the Respondent State was informed of the
deferral of the decision on Admissibility to the 42nd Ordinary Session.
25. At its 42nd Ordinary Session held from 14 to 28 November 2007 in Brazzaville,
Republic of Congo, the African Commission deferred its decision on
Admissibility to its 43rd Ordinary Session to be held from 7 to 22 May 2008 in
Ezulwini, Swaziland, in order to consider the arguments of the Respondent
State.
26. By note verbale and letter dated 20 March 2008, the Secretariat of the
Commission informed the parties of the deferral of the Commission’s
decision to the 43rd Ordinary Session scheduled to be held from 7 to 22 May
2008 in Ezulwini, Swaziland.
27. At its 43rd Ordinary Session held from 7 to 22 May 2008 in Ezulwini,
Swaziland, the African Commission declared the Communication admissible.
28. By note verbale and letter dated 28 May 2008, the parties were informed of
the Commission’s decision on Admissibility during its 43rd Ordinary Session
held in Ezulwini, Swaziland, from 7 to 22 May 2008. The Secretariat also
informed the parties of the holding, from 10 to 24 November 2008, in Abuja,
Nigeria, of the 44th Ordinary Session of the Commission, and requested them
to submit their observations on the merits of the case.
29. By note verbale and letter dated 29 September 2008, the Secretariat reminded
the parties that the 44th Ordinary Session of the Commission would be held
from 10 to 24 November 2008 in Abuja, Nigeria. They were also reminded to
submit their arguments on the merits as soon as possible.
4
30. At the 44th Ordinary Session held from 10 to 24 November 2008 in Abuja,
Nigeria, the consideration of the Communication on the merits was deferred
to the 45th Ordinary Session to enable the parties to submit their arguments
on the merits of the case.
31. On 5 December 2008, the Secretariat received the arguments of the
Democratic Republic of Congo on the merits of the Communication.
32. By note verbale of 19 December 2008, the Secretariat acknowledged receipt of
the submission of the DRC and informed the latter of the holding, from 13 to
27 May 2009 in Banjul, The Gambia, of the 45th Ordinary Session of the
Commission.
33. By letter dated 19 December 2008, and in compliance with the adversarial
principle, the merits submission of the DRC was forwarded to the
Complainant whom the Secretariat requested to submit, in turn, his
arguments on the merits of the Communication
34. By note verbale and letter dated 27 April 2009, the Secretariat reminded the
parties that the 45th Ordinary Session of the African Commission would be
held from 13 to 27 May 2009 in Banjul, The Gambia. In the same letter, the
Complainant was requested to transmit to the Secretariat his arguments on
the merits within one month.
35. The final exchanges in writing between the parties were closed by the
Secretariat of the Commission in December 2009.
36. Through appropriate channels and in accordance with its usual procedures,
the Secretariat of the Commission kept the parties informed of the successive
deferrals of the consideration of the Communication and the decision of the
Commission on the merits.
37. The last deferral was notified to the parties by the Secretariat on 13 November
2012.
THE LAW
Admissibility
38. The Communication was submitted in accordance with Article 55 of the
African Charter on Human and Peoples’ Rights which empowers the
5
Commission to receive and consider “Communications other than those of
State Parties.”
39. Under Article 56 of the African Charter, Communications received under
Article 55 must meet the following seven conditions to be declared
admissible:
1. Indicate their authors even if the latter request anonymity;
2. Are compatible with the Charter of the Organisation of African Unity
or with the present Charter;
3. Are not written in disparaging or insulting language directed against
the State concerned and its institutions or to the Organisation of
African Unity;
4. Are not based exclusively on news disseminated through the mass
media;
5. Are sent after exhausting local remedies, if any, unless it is obvious
that this procedure is unduly prolonged;
6. Are submitted within a reasonable period from the time local remedies
are exhausted or from the date the Commission is seized with the
matter; and
7. Do not deal with cases which have been settled by those States
involved in accordance with the principles of the Charter of the United
Nations, or the Charter of the Organisation of African Unity or the
provisions of the present Charter.
40. The issue that the Commission is called upon to settle at this stage is whether
the Communication is admissible under Article 56 of the African Charter. In
other words, the Commission is required to determine whether the conditions
listed above have been met for the Communication to be declared admissible.
The answer to this question will emerge from the analysis of the arguments
made by both the Complainant and the Respondent State.
The Complainant’s Arguments on Admissibility
41. The Complainant claims to have met all the above-listed admissibility
conditions. He states, with regard to the exhaustion of local remedies, in
particular, that there is no longer any remedy to be exhausted in respect of
the third party proceedings pending before the Supreme Court.
42. The Complainant submits that remedies are unduly prolonged. He claims to
have referred the matter firstly to the Council of the Bar Association in
Bukavu and then to the National Bar Council in Kinshasa which, on 1 April
1998, issued Arbitral Award No. 98/CNO/LH/006 ordering Pharmakina
6
Company to pay him the sum of 500,000 U.S. dollars. The Complainant avers
that the award was annulled by the Administrative Chamber of the Supreme
Court following the appeal for annulment lodged by Pharmakina Company;
and that to secure the retraction of this judgment delivered in the first and
last instance in his disfavour, the President of the National Bar Association
instituted third-party proceedings before the Supreme Court. The
Complainant further contends that the Supreme Court has still not yet issued
its decision four years after the institution of the third-party proceedings.
Arguments of the Respondent State on Admissibility
43. The DRC argues that the Communication brought against it by the
Complainant, Mr Mamboleo, is inadmissible. The Respondent State bases its
argument on Article 56 (5), claiming that the Complainant has not exhausted
local remedies, since the action for annulment of the contested decision is still
pending before the Administrative Chamber of the Supreme Court of the
DRC.
44. As such, the DRC prays the Commission to declare the complaint
inadmissible on the grounds of non-exhaustion of local remedies.
The Commission’s Analysis on Admissibility
45. From the analysis of the arguments of both the Complainant and the
Respondent State, it appears that the parties agree on most of the
admissibility conditions. It is clear, after considering the arguments of the
Complainant that the conditions under Article 55 (1), (2), (3), (4), (6) and (7) of
the African Charter have been met.
46. However, the parties disagree on the point relating to the exhaustion of local
remedies. Indeed, Article 56 (5) provides that Communications must be “sent
after exhausting local remedies, if any, unless it is obvious that this procedure
is unduly prolonged”.
47. The issue raised at this point of consideration of the complaint is as follows:
were local remedies exhausted in this case or were they unduly prolonged?
48. The use of the rule of prior exhaustion of local remedies in litigations under
international human rights law is derived from international law, in general,
and specifically diplomatic law of essentially customary origin. This rule is
based on the idea that a State should be given the opportunity to right the
7
wrong it is alleged to have caused using its own internal legal system prior to
the case being brought before an international body. This rule makes it
possible to respect the sovereignty of the State concerned and avoid the use of
the international body as a court of first instance. The African Commission
consistently adopts a jurisprudential stance on the issue2.
49. In the Commission’s understanding, exhausting local remedies means that
the author of the Communication and not the victim3 obtains a final decision
from the highest body in the court hierarchy of the judicial system of the
Respondent State.4 The Commission gives preference to remedies sought
from the judiciary as opposed to those sought from administrative authorities
or executive bodies.5
50. On the basis of its jurisprudence, the Commission considers that to have been
exhausted, local remedies should necessarily be available, sufficient and
effective6; that a remedy is considered available if the petitioner can pursue it
without impediment; that it is effective if it is capable of redressing the
complaint; that it is sufficient if it offers a prospect of success.7
51. In this case, the Respondent State alleges the non-exhaustion of local
remedies by the Complainant. It is therefore up to the Respondent State to
prove that local remedies are available, sufficient and effective. The DRC
argues that local remedies were not exhausted because the Complainant
brought the matter before the Commission when the case was still pending
before the Administrative Chamber of the Supreme Court of the DRC. It is
true that in the cases Kenya Human Rights Commission v. Kenya8 and Tsatsu
2See in this regard Free Legal Assistance Group and Others v. Zaïre (2000) AHRLR 74 (ACHPR 1995); Comité
Nationale des Droits de l’Homme et des Libértés v. Chad (2000) AHRLR 66 (ACHPR 1995); Degli and Others v.
Togo (2000) AHRLR 317 (ACHPR 1995).
3 The Commission makes a distinction between the author of a Communication and the victim on whose
behalf the Communication is submitted. The importance of this distinction lies in the identification of the
person who has the obligation to exhaust local remedies. See in this regard its decision in the case of
Article 19 v. Eritrea (2007) AHRLR 73 (ACHPR 2007) para. 64
4 Commission thus adopts the doctrinal position on the matter. See, for example, Desai Anuj, “The IranUnited States claims tribunal, first award of damages for a breach of the Algiers Declarations” 10 (1999)
Am. Rev. Int’l Arb. 237.
5 See Ilesanmi v. Nigeria – Communication 268/03 (2005) AHRLR 48 (ACHPR 2005).
6 See among others, Jawara v. The Gambia – Communication 147/95-149/96 (2000) RADH 107 (2000) para
31, Liesbeth Zegveld and Mussie Ephrem v. Eritrea- Communication 250/02 (2003) AHRLR 84 (ACHPR
2003). See also Judgment of the Inter-American Human Rights Commission on the Velasquez Rodriguez
Case (29 July 1988) Series C, No. 4 (1988).
7 Jawara v. The Gambia, para 31; Article 19 v. Eritrea para 46.
8 (2000) AHRLR 133 (ACHPR 1995).
8
Tsikata v. Ghana,9 the Commission stated that for a matter to be brought before
it, the matter should not be pending before a local court.
52. However, although the Commission finds that the case was actually pending
at the time it was seized of it, the case was before the highest court whose
decisions are final. The Commission finds that all remedies had therefore
been exhausted, considering that, by the time the Complainant brought the
matter before the Commission on 20 April 2005, the case had been pending
before the Supreme Court for four years. It is as a result of this delay that the
Complainant contends that local remedies were unduly prolonged, in which
case his referral to the Commission meets the requirement of exhaustion of
local remedies, pursuant to the above-mentioned Article 56 (5).
53. The argument submitted by the Complainant raises a preliminary question to
which the Commission has to find a definite answer before deciding on the
admissibility. The Commission must indeed establish the time from when
proceedings pending before national courts should be considered unduly
prolonged.
54. The same issue arose in the case of Kenya Human Rights Commission v. Kenya.10
In that case, the Commission was faced with the task of determining how
long “unduly prolonged” may be in respect of proceedings pending before
national courts. The question was whether to consider only the time lapse
between the seizure of the local court (in that case, 23 December 1993) and
seizure of the Commission (8 March 1994) or to consider the period between
the seizure of the national courts and the date of the Commission’s decision
(that is, October 1995).
55. Drawing inspiration from the position adopted by the Inter-American
Commission on Human Rights, and in accordance with Article 61 of the
African Charter, the Commission asserts that the arguments submitted by the
Complainant are both sound and relevant. Indeed, the Inter-American
Commission considers that the length of proceedings must be determined
from the date the procedures were initiated internally. It concluded in the
case of Rodrigo Rojas DeNegri et al v. Chile11 that since the proceedings had
remained pending for three years and six months, on the one hand, and 20
9 Communication 322/06 African Human Rights Case Law Analyser http://caselaw.ihrda.org/acmhpr/
search/?q=Tsatsu+Tsikata+c.+Ghana.
10 Kenya Human Rights Commission v. Kenya (2000) AHRLR 133 (ACHPR 1995).
11 Case No. 9755 (12 September 1988) Inter-American Human Rights Commission.
9
months on the other hand,12 it was clearly obvious that the process had been
unduly prolonged.
56. After examining the facts presented by the parties and their respective
arguments on Admissibility, the Commission notes that from the date of
initiation of the procedure before Congolese courts, that is from 24 August
2001, to the date of seizure of the Commission, that is, on 20 April 2005, a
period of four years had elapsed. The Commission further notes that from the
date it was seized of the matter up to the time it delivered its decision on the
admissibility of the Communication, it received no information from the
Respondent State regarding the outcome of the third-party proceedings, and
that from that same date up to the day of its decision on admissibility, a
further three-year period had elapsed.
Decision of the Commission on Admissibility
57. In the light of these findings, the Commission has no doubt that even if
domestic remedies are available, the process is unduly prolonged. Such a
delay does meet the requirements of efficiency and sufficiency of remedies
established by the African Charter and that has become a tradition in the
jurisprudence of the Commission.
58. As such, the Commission concludes that Communication 302/05 submitted
by Mr Mamboleo Itundamilamba against the Democratic Republic of Congo
meets the conditions under Article 56 of the African Charter and therefore
declares the Communication admissible.
Merits
59. It follows from the consideration of the case file that, in accordance with Rule
108 of the Rules of Procedure of the African Commission, the parties
exchanged their submissions on the merits of the case since June 2005, and
that the information provided by the parties to the Communication is
sufficient for the Commission to make a decision on the merits of the case.
The Complainant’s Arguments on the Merits
60. The Complainant prays the African Commission to declare the Respondent
State in violation of the relevant provisions of the African Charter, in
particular Articles 3 and 7 (1) (a) and (c), and therefore liable for providing
compensation for the damages suffered by the Complainant. Conversely, the
Fabricio Proana and Others v. Ecuador Case No. 9641 (12 April 1989) Inter-American Human Rights
Commission.
12
10
Respondent State prays that the Commission should consider the complaint
unfounded, and that the case be dismissed accordingly.
61. In order to determine the validity of the claims made by the parties, the
Commission is thus obliged to examine the alleged violations in light of the
facts and the law.
Violation of Article 3
62. Article 3 of the African Charter provides that: “Every individual shall be
equal before the law. Every individual shall be entitled to equal protection of
the law.”
63. The Complainant contends that the case before the Commission stems from
the non-payment of the fees owed to him by his former client, Pharmakina
Company, as remuneration for services rendered in connection with the
retrocession from the estate of the latter of several cinchona plantations.
According to the Complainant, the said plantations had been transferred to
Congolese nationals in pursuance of presidential decisions of November
1973.
64. The Complainant also alleges that Pharmakina Company acknowledges to
have been rendered the service, but claims, however, to have already paid the
fees in question.
65. When the parties could not reach an agreement because of their diametrically
opposed positions, the Complainant brought the dispute before the relevant
bodies of the National Bar Association. On 1 April 1998, the National Bar
Council issued in favour of the Complainant Arbitral Award No.
98/CNO/LH/006, ordering Pharmakina Company to pay the Complainant
the sum of 500,000 (five hundred thousand) U.S. dollars, the amount of the
fees in dispute.
66. On 10 August 1998, Pharmakina Company lodged with the Administrative
Chamber of the Supreme Court two petitions for annulment under Nos. RA
444 and 445, notified to the Complainant respectively on 20 August 1998 and
19 September 1998. The Congolese Supreme Court granted the request of
Pharmakina Company by annulling the decision of the National Bar Council
by Judgement No. 444/445/452 of 17 April 2000.
67. Before the same Supreme Court, the President of the National Bar Association
instituted third-party proceedings, filed under No. RA 667/2001, on behalf of
the Complainant. The Complainant avers that by the date the Commission
11
was seized of the matter, the Supreme Court of the DRC had still not ruled on
this last appeal.
68. The Complainant alleges that he was not notified of the filing with the
Administrative Registry of the notices issued by the Public Prosecutor in
respect of the three cases numbered RA 444 and 445 for Pharmakina
Company and 452 for the Complainant, in accordance with Rule 8 (2) of the
Rules of Procedure of the Supreme Court which states that “Any petition,
indictment or brief filed with the Registry in relation to any contentious
matters should have previously been communicated to the party against
whom the petition is directed.”
69. The Complainant also alleges to have requested the Supreme Court to defer
the case by four months to allow him to produce his case file that was in
Bukavu, his place of residence, given that at the outbreak of the war in the
East of the country, on 2 August 1998, he was in Kinshasa and could not,
therefore, produce the aforementioned file against his client, the Pharmakina
Company, which had produced its own.
70. The Complainant alleges that the case of force majeure invoked constituted
by the war that erupted in the East of the country on 2 August 1998 was not
taken into consideration. The Complainant thus submits that the Supreme
Court ruled that “the intervening party – that is, the Complainant – having
invoked force majeure in his petition, namely the impossibility for him to
attach the case file to his petition as a result of the war, should have complied
with Rule 83 of the same Rules of Procedure which stipulates that
intervention may not delay the dispute resolution, and forwarded the petition
after 30 September 1998, the date it was filed, instead of waiting for the end of
the war on a date that no one can tell.”
71. The Complainant submits that the Congolese Supreme Court did not examine
the above-mentioned petition in accordance with the Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa which
includes among essential elements the principle of: “equality of arms between
the parties to a proceedings, whether they be administrative, civil, criminal,
or military ... adequate opportunity to prepare a case, present arguments and
evidence and to challenge or respond to opposing arguments or
evidence….”13 In support of that plea, the Complainant, referring to the
relevant provisions of Article 6 of the European Convention on Human
Rights argues that the principle of equality of arms before the law is the idea
13 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2001), Principles
A(2)(a) and A(2)(e).
12
that each party to a procedure must be afforded an equal opportunity to
present his or her case; that none shall enjoy a substantial advantage over
his/her opponent and that each party should be given the opportunity to
present his/her objections to the arguments of the other.
72. The Complainant concludes that the provisions of Article 3 of the African
Charter were violated in that he was put in a position of inequality compared
to his opponent, Pharmakina Company, by being denied a hearing since the
exercise of his right to defence was based on a case file whose submission was
made impossible by the Supreme Court.
Violation of Articles 7 (1) (a) and 7 (1) (c)
73. Article 7 (1) of the African Charter states: “Everyone has the right to have his
cause heard. This comprises:
a) the right to an appeal to competent national organs against acts of
violation of his fundamental rights as recognized and guaranteed by
conventions, laws, regulations and customs in force;
b) (…);
c) the right to defence, including the right to be defended by counsel of his
choice;
d) (…)”.
74. In support of his allegations of violation of Article 7 (1) (a) of the African
Charter, the Complainant states that, given the civil nature of the fees
litigation between him and his former client, Pharmakina Company, he had
requested the Administrative Chamber of the Supreme Court to declare itself
incompetent to hear the appeal brought by his opponent.
75. To challenge the jurisdiction of the Administrative Chamber of the Supreme
Court, the Complainant states that he had invoked the provisions of Rule 16
(5) of the Framework Rules of Procedure of Congolese Bar Associations,
interpreting Article 81 of the Organic Law on Bar Associations, which
stipulates that “the National Bar Council shall be an arbitration tribunal ...”
This implies, avers the Complainant, that a decision taken by the Bar Council,
thus recognized as an arbitral award, can settle only civil cases such as the
one of disputed fees.
76. According to the Complainant, para. 7 of the said Regulations reiterate
Section 124 of the same law, misinterpreted by the Judgment No. RA
13
4444/445/452 as giving the Administrative Chamber the jurisdiction to annul
an arbitral award issued by the National Bar Council.
77. In addition to the lack of jurisdiction by the Congolese Supreme Court, the
Complainant alleges that this Court failed to rule on the admissibility of that
appeal that should not have been entered by an applicant such as his former
client, Pharmakina Company. The Complainant alleges in this case that the
law gives the Prosecutor General, the President of the National Bar
Association or any lawyer concerned the right to file this kind of appeal,
subject to the following conditions: “The decision whose annulment is being
sought must be tainted with abuse of power, be contrary to the law or have
been improperly made.”
78. Among other arguments submitted in support of his complaint to the
Commission, the Complainant cites the relevant Congolese doctrine which, as
far as Judgement No. RA 444/445/452 is concerned, has been violated by the
fact that “the Supreme Court sitting in administrative matters granted itself
jurisdiction to rule on a fee-related dispute by annulling a decision handed
down by the National Bar Council which was, however, ruling in the first and
last instance (...). This situation is a departure from precedent since the same
Court had previously decided that fee disputes are civil matters and should
be heard by the civil courts.”
79. Reinforced by the Congolese doctrine and jurisprudential practice, the
Complainant argues that this departure from precedent should have been
effected in accordance with Article 20 (2) of the Judicial Organization Order
No. 299/79 of 20 August 1979 relating to the Rules of Procedure of Courts,
Tribunals and Prosecutor’s Offices. This Order provides that the “joint
assembly and closed meeting of all judges of the Supreme Court and the
Prosecutor General’s Office [be held], especially in cases where it is necessary
to take a decision in principle, to make a departure from precedent and in
cases where a decision has failed to bring judicial peace.”
80. The Complainant submits that the initiative to depart from precedent is
therefore not within the jurisdiction of any Chamber of the Supreme Court,
much less within that of the body which issued Judgement No. RA
4444/445/452. Such an excess of jurisdiction, the Complainant maintains, is
in blatant violation of his right to have his case heard by a competent national
organ as provided for in Article 7 (1) (a) of the African Charter.
81. The Complainant also states, with regard to the provisions of Article 7 (1) (c)
of the African Charter, that the circumstances surrounding the delivery of
Judgment No. AR 444/445/452 are characterized by the occurrence of two
14
major events: the outbreak of war on 2 August 1998 and the introduction by
Pharmakina Company of its two applications for annulment filed on 10
August 1998 and notified to the Complainant respectively on 20 August and
19 September 1998.
82. The Complainant alleges that he could not have known about these two
events in late July 1998 when he was leaving Bukavu, his city of residence, on
what was supposed to be a short mission to Kinshasa but which became
prolonged until March 2004 because of the war. The Complainant states that
as a result of this turn of events, he found himself physically unable to access
his case file and thus could not submit the file during the Supreme Court
proceedings. In the understanding of the Complainant, there was no
obligation and therefore no need for him at that particular time to travel to
Kinshasa along with his case file from Bukavu, and access to which was
subsequently made difficult by the war.
83. The Complainant further alleges that faced with the imminent danger of
having to defend himself without prior recourse to his file, he made efforts to
draw the attention of the Supreme Court to the fact that he could by no
means be held responsible for the force majeure brought about by the war.
The Complainant submitted these arguments in support of his petition filed
under No. RA 452, as the intervening party in the proceedings to which
Pharmakina had him summoned.
84. The Complainant recalls that Rule 8 (2) of the Supreme Court Procedure
stipulates that any petition, indictment or brief filed with the Registry in
relation to any contentious matter should have previously been
communicated to the party against whom the petition is directed.
85. The Complainant claims that this notification is mandatory, but surprisingly
he received no notification of the filing with the Administrative Registry of
the notices issued by the Public Prosecutor in respect of the three cases
numbered RA 444/445 for the Pharmakina Company and 452 for the
Complainant.
86. The Complainant also alleges that the request for access to his case file in
Bukavu, rejected at the hearing of 3 April 2000, was renewed in order to
notify the Supreme Court that he had never dropped the case. This led to an
altercation between the Complainant and members of the Chamber, forcing
them to interrupt the hearing. Upon resumption of the hearing, the refusal of
the deferment request was upheld.
15
87. The Complainant further submits that he had taken advantage of the
interruption of the hearing to inform the Head of the Supreme Court and
confirmed the contents of their discussion in his letter of 6 April 2000, copies
of which were forwarded to the judges in question and the President of the
National Bar Association. The letter was received by the judges concerned
four days prior to the delivery of their decision.
88. On the basis of these arguments, the Complainant alleges a violation of
Article 7 (1) (c) of the African Charter, given that he was put in a position of
inequality and, as a result, was unable to have his case heard and to exercise
his right to defence against his opponent, Pharmakina Company. This is the
same argument the Complainant strives to establish before the Commission,
namely the refusal by the Supreme Court as being the main decision that
prevented him from producing his case file.
Arguments of the Respondent State
Violation of Article 3
89. Concerning the violation of the provisions of Article 3 alleged by the
Complainant, the DRC responds by deploring the fact that the Complainant
challenges a court decision, namely Judgment No RA 444/445/452, issued by
the Supreme Court, without producing a copy of the said decision to allow
the Respondent State to make an informed assessment of the objective or
subjective motivation of the court being called into question.
90. Moreover, the Respondent State recalls that Information Sheet No. 2 on
Guidelines for Submission of Communications requires that to establish the
facts constituting violation, the party alleging a violation must explain in as
much factual detail as possible what happened, specifying the place, time and
date of the violation, if possible. The Respondent State avers that in this case,
it is absolutely impossible to have a copy of the contested decision, since the
records of the Supreme Court were burnt in 2006 following the unrests that
occurred during the pre-election period. The Respondent State argues
therefore that since the Complainant was unable to produce a copy of that
decision, the Commission must dismiss this claim as unfounded.
91. Whereas the Complainant states that all his appeals to gain access to his case
file were dismissed, the Respondent State, on the other hand, claims that after
consideration of the application for intervention filed by the Complainant, the
Supreme Court had ordered the joinder of the three applications on which it
delivered Judgement No. RA 444/445/452. It is in this judgment, the
16
Respondent State further affirms, that the Congolese Supreme Court had
declared the Complainant’s application for intervention unfounded, and the
application for annulment founded, leading to the annulment of Arbitral
Award No. 98/CNO/CH/006 of 1 April 1998 issued by the National Bar
Council in favour of the Complainant.
Violation of Articles 7 (1) (a) and 7 (1) (c)
92. In response to the allegations of violation of Articles 7 (1) (a) and 7 (1) (c) of
the African Charter, the Respondent State reiterates the arguments submitted
in relation to the allegations of violation of Article 3 of the Charter. The DRC
maintains that by failing to produce a copy of the contested judgment, the
Complainant made it impossible for the State to assess the arbitrary and
subjective nature of the motivation of the Congolese Supreme Court so as to
find justification for the dismissal of his application for a four-month
deferment of the case to enable him to obtain his documents.
93. The Respondent State further argues that this situation raises serious doubts
as to the alleged violation of the rights of the Complainant and therefore calls
on the Commission to declare the second plea unfounded and to dismiss the
Complaint.
94. Concerning the reasons for the contested judgement, the Complainant
contends that no reasons were provided for the decision and that, in addition,
the parties were denied copies by the authorities. The Respondent State, for
its part, merely points out to the Commission that the Complainant has no
evidence to substantiate this claim.
Analysis of the Commission on the Merits
Violation of Article 3
95. Article 3 of the African Charter provides that: “Every individual shall be
equal before the law. Every individual shall be entitled to equal protection of
the law.”
96. Alleging a violation of Article 3 of the African Charter, the Complainant seeks
to have the Commission note the non-compliance by the Supreme Court of
the DRC with the fundamental principle of equality before the law. As
adequately shown by the Complainant in his submission, this violation is
evidenced in the position of inequality in which the court placed him by
preventing him from presenting his case on the same basis as the opposing
party.
17
97. The requirement of equality before the law is of fundamental importance to
human rights, especially as it is a necessary condition for the enjoyment of a
number of other related rights. It is therefore no surprise that the founding
instruments of international human rights law guarantee the right to equality
before the law. Thus, Article 1 of the Universal Declaration of Human Rights
unequivocally proclaims that: “All human beings are born free and equal in
dignity and rights.” Article 6 of the same instrument stresses that “Everyone
has the right to recognition everywhere as a person before the law.” The
International Covenant on Civil and Political Rights also provides for equality
before the law as a preliminary, central and essential legal prerogative. Article
26 of the Covenant stipulates that: “All persons are equal before the law and
are entitled without any discrimination to the equal protection of the law”. 14
98. Included as a fundamental clause in most national constitutions, the general
principle of equality before the law requires that people in a similar situation
in some respects should be treated similarly.15
99. The principle of equality before the law is paramount since it entails the right,
for a competent authority in a given dispute, to ensure that the parties in a
dispute be placed on equal footing not only in the manner in which the law is
formulated, but also, as in this case, the manner in which the implementation
of that law is conducted. Thus, the practice, especially that of the
Constitutional Court of South Africa, has enshrined equality before the law as
a practice that goes beyond formal equality to substantive or achieved
equality16. Furthermore, though authorized in specific cases, unequal
treatment should always be justified.17
100. The Complainant’s main contention in this case is that the Supreme Court
failed to give him the same treatment as it did his adversary, Pharmakina
Company, in the dispute between the two parties. Indeed, the rejection of his
application for a four-month deferment and the prohibition imposed by the
Congolese Supreme Court on the production of his case file placed the
Complainant in a position of imbalance regarding the application of the right
to equality before the law.
101. From an analysis of the submissions of the parties, it appears to the
Commission that the Complainant did not have the same opportunity as his
14 This legal prerogative is enshrined in Article 14 of the European Convention on Human Rights.
15 I Currie & J de Waal The Bill of Rights Handbook (2005) 230.
16 See, for example, National Coalition for Gay & Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC) para
62; Minister of Finance v. Van Heerden 2004 (6) SA 121 (CC) para 26.
17 Op cit.
18
opponent to present his arguments by enjoying equal consideration in
accordance with the procedural requirements and standards provided for by
the law and which were applied by the same domestic court in respect of
Pharmakina Company. Indeed, the Supreme Court of the DRC has not
challenged the fact that the outbreak of the war was a force majeure - that is,
an unpredictable event, outside and beyond the control of the Complainant –
which made the Complainant physically unable to produce his file. Instead,
the domestic court, while admitting the force majeure constituted by the war,
said it could not prolong the proceedings before it to await the termination of
an event whose end was uncertain.
102. The Commission is of the view that such reasoning is inconsistent with the
spirit of the principle of equality before the law as guaranteed by
international human rights instruments. International jurisprudence rather
adopts the position that the failure to strictly enforce equality before the law
must necessarily be justified. In Aumeeruddy-Cziffra and Others v. Mauritius,
the Human Rights Committee of the United Nations considers that “sufficient
justification for this difference has to be given.”18
103. The Commission further considers that the same procedure that had
already remained pending for several years would obviously not have been
unduly prolonged merely by being deferred for four months. The proof is
that the Supreme Court had still not deliberated on the Complainant’s appeal
at the time when the latter seized the Commission. This clearly means that the
Supreme Court chose to prevent a four-month extension of the procedure to
the detriment of the Complainant who was thus denied the right to benefit
from the same principle of equality before the law as his opponent. The
domestic court should have recognized the Complainant’s inability to
exercise his right to equality before the law by affording the Complainant the
opportunity to take advantage of the requested four-month deferment to
produce his file.
104. In similar instances, the Commission concluded not only that the domestic
court had unduly prolonged the procedure, but also that failure to provide
adequate reasons for differential treatment before the law had placed the
Complainant in a position of inequality that may be tantamount to a denial of
justice. This was the case with Burkinabe Movement for Human and Peoples’
Rights v. Burkina Faso, where the African Commission held that the Supreme
Court of Burkina Faso had not provided sufficient reason to justify the undue
18 Aumeeruddy-Cziffra and Others v. Mauritius (2000) AHRLR 3 (HRC 1981) para 9(2)
19
prolongation of the procedure, which in the Commission’s view, led to a
breach of equality before the law.19
105. In the present circumstances, the Commission finds that the Complainant
has sufficiently proved his allegations of violation, to his disadvantage, of the
principle of equality before the law in the case between him and Pharmakina
Company. By denying the Complainant the same opportunity of presenting
his arguments as was given to his opponent, the Supreme Court of the DRC
placed the Complainant in a position of imbalance which violated the
equality provided for in the domestic law and the provisions of the African
Charter. In response to these allegations, the Respondent State failed to prove
to the Commission that the imbalance suffered by the Complainant was
justified by any necessity so compelling as to warrant the undermining of the
Complainant’s rights.
106. Moreover, the Commission concludes that the principle of equality before
the law under the provisions of Article 3 of the African Charter has not been
adhered to.
Violation of Articles 7 (1) (a) and 7 (1) (c)
107. Article 7 (1) of the African Charter states that: “Everyone has the right to
have his cause heard. This comprises:
a) the right to appeal to competent national organs against acts of violation
of his fundamental rights as recognized and guaranteed by conventions,
laws, regulations and customs in force;
b) (…);
c) the right to defence, including the right to be defended by counsel of his
choice;
d) (…)”.
108. A point of contention brought by the Complainant before the Commission
relates to the jurisdiction of the Supreme Court of the DRC to hear the case
between him and Pharmakina Company. The general idea of guaranteeing a
fair trial, as laid out in the relevant provisions of Article 7 referred to above,
highlights two kinds of requirements: a court that is accessible and
appropriate, as well as a court that is competent and properly constituted.
19 Communication 204/97 (2001) AHRLR 51 (HRC 2001) para 40.
20
109. Concerning the arguments submitted by the parties, the Commission
notes that Congolese law, jurisprudence and doctrine enshrine the civil
nature of the dispute between the Complainant and his former client,
Pharmakina Company. Such a civil nature is confirmed by the private status
of Pharmakina, a public limited company (PLC), 20 involved in a dispute with
an individual, in this case the Complainant. Under the Congolese law in force
at the date the Commission was seized of the matter, the Administrative
Chamber of the Supreme Court of the DRC could not have jurisdiction to
entertain an action for annulment of the decision previously rendered in
favour of the Complainant by a body recognized by law as having civil
jurisdiction to hear that dispute in the last resort.
110. The Commission notes that in response to these arguments, the
Respondent State has not sought to prove the contrary of the alleged facts,
but has merely reiterated the pleas submitted in relation to the alleged
violations of Article 3 of the African Charter. The State insists that the mere
failure by the Complainant to produce the disputed Supreme Court decision
should make the Commission deprive him of his rights under the Charter.
111. The Commission recalls that the Respondent State could not produce a
copy of the decision and the mere fact of failing to comply with this request
cannot lead to deprivation of any of the parties of the right to have their
submissions examined by the Commission, nor prevent the latter from ruling
on the alleged violations. In adopting the same position in the case of
Byagonza Christopher (represented by Dr. Curtis Doebbler and Ms. Margreet
Wewerinke) v. Uganda, the Commission regretted the fact that the Respondent
State failed to produce the decision of the Supreme Court of Uganda and
made its decision on the basis of the Complainant’s submissions. 21
112. The right to have one’s case heard before a competent court is a universal
requirement. Under Article 2 (3) (b) of the International Covenant on Civil
and Political Rights, the States undertake to “ensure that any person claiming
such a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities
of judicial remedy.” Article 14 of the same insists that the case should be a
“fair and public hearing by a competent tribunal”. These standard
requirements are developed by the Committee of Human Rights of the
United Nations which states in its General Comment No. 13 that “the failure 20 See Osibouake ‘Pharmakina : de la quinine aux anti-rétroviraux’ http://www.osibouake.org/?RDC-
Pharmakina-a-Bukavu-fabrique (consulté 24 mars 2013).
21 See Byagonza Christopher (represented by Dr. Curtis Doebbler and Ms. Margreet Wewerinke) v. Uganda
Communication 365/08 paras 151-154, 168.
21
or misuse - of the jurisdictions is likely to seriously threaten fair, impartial
and independent administration of justice”. 22
113. In its jurisprudence, the African Commission also acknowledges the
importance of the competence of courts in effectively achieving the right to a
fair trial. Thus, focusing on the fact that courts need to be competent to
guarantee a fair trial, the Commission defines such competence in the case of
Amnesty International and Others v. Sudan as a sensitive concept ”which
encompasses facets such as the expertise of the judges and the inherent justice
of the laws under which they operate.” 23
114. The Commission therefore considers that the effective exercise of the right
to a fair trial - including defence - protected by Article 7 of the African
Charter as a whole presupposes that the parties in the trial can each present
their case in a fair manner. It further considers that this fairness is severely
compromised when certain combined guarantees are not safeguarded: the
rights of defence, equality of arms and respect of the adversarial principle.
115.
If State Parties have a discretion as to the choice of using means peculiar
to their judicial system to meet the requirements of Article 7 of the African
Charter, compliance with this provision is determined in the light of the
objectives of the Charter, namely taking all appropriate measures to ensure
that justice is delivered by a competent, independent and impartial court or
tribunal; that justice should be fair and adversarial. 24 This is an obligation to
produce result, non-compliance with which cannot be justified by any reason
whatsoever25 and if the result is not achieved, the State is at fault. It is not
enough for the State to prove its passivity in the occurrence of a situation
which violates the provisions of Article 7 of the African Charter.
116. The Commission reaffirmed its commitment to guaranteeing such an
obligation in its Resolution on the Right to a Fair Trial and Legal Assistance in
Africa. The motivations of this Resolution were reinforced by the Guidelines
on the Right to a Fair Trial as reflected in the jurisprudential practice of the
Commission, particularly its decision in the case of Ghazi Suleiman v. Sudan.26
117. With respect, in particular, to the guidelines on the right to a fair trial, they
go to confirm how subtle and, perhaps, illusory it can be to make a clear-cut
22 Para 4.
23 Amnesty International and Others v. Sudan Communication 48/90, 50/91, 52/91, 89/93 (2000) ARHRL
297 (ACHPR 1999) para 62.
24 Highlighted by the Commission
25 Colozza v. Italy (ECHR, 12 February 1985) Series A No. 89.
26 Communication 222/98-229/99 (2003) AHRLR 144 (ACHPR 2003).
22
distinction between the right to equality before the law, guaranteed by Article
3, and the right to a fair trial, including the right to defence, protected by
Article 7 (1) (d) of the African Charter. Indeed, the trial would lose all its
fairness if the parties were placed in a position of legal or procedural
inequality. This means that that no one could claim to have enjoyed the right
to defend himself if he or she were not afforded the same opportunity as his
opponent, under the same conditions, to present his or her case and produce
evidence.
118. As one of the rights of a fair trial, the right to defence guaranteed by
Article 7 (1) (d) of the African Charter is the base for the principle of equality
of arms. Guidelines A (2) (a) and (e) confirm that a fair trial includes, among
others, “equality of arms between the parties to a proceedings, whether they
be administrative, civil, criminal, or military” and “adequate opportunity to
prepare a case, present arguments and evidence and to challenge or respond
to opposing arguments or evidence”. 27
119. As a corollary of a fair trial, the principle of equality of arms is rooted in a
number of international instruments and extensively developed in
jurisprudence, be it national or international. Even if it is not explicitly,
normative guarantees of the right to equality of arms clearly emanate from
the provisions of Article 10 of the Universal Declaration of Human Rights
which state that “Everyone is entitled in full equality to a fair hearing by a
tribunal”. Equality between the parties consequently entails equality before
the law and respect for the rights of defence. In this sense, it is a delicate and
subtle task to separate equality before the law, and by extension equality of
arms, from the right to a fair trial. Article 14 (1) of the International Covenant
on Civil and Political Rights has this to say about the need for equality: “All
persons shall be equal before the courts and tribunals. All persons are equal
before the law…”
120. Jurisprudence embraces the connection in various ways, but following a
constantly convergent approach. In the case of Szwabowicz v. Sweden, one
notices, for instance, that the European Commission of Human Rights
enshrines the principle when it states that the right to a fair trial requires that
a party to a civil action, and a fortiori to criminal proceedings, must be
afforded a reasonable opportunity to present his case in court under
conditions which do not place him at a significantly disadvantage vis-à-vis
his opponent. 28
27 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2001), Principles A
(2) (a) and (e)
28 Szwabowicz v. Sweden (30 June 1959) Application No. 434/58
23
121. International criminal jurisprudence contains cases of the equality of arms
in some major decisions. In the case of The Prosecutor v. Clément Kayishema and
Obed Ruzindana, the International Criminal Tribunal for Rwanda held that
“the right of an accused to a fair trial implies the principle of equality of arms
between the Prosecution and the defence”. The Tribunal went on to recall the
provisions of its Statute under which equality of arms includes, among
others, “the right to have adequate time and facilities to prepare his or her
defence”. 29 Moreover, in order to determine the scope of equality of arms, the
Tribunal drew from the decision handed down in the case of The Prosecutor v.
Tadić in which the International Criminal Tribunal for the Former Yugoslavia
held that “equality of arms obligates a judicial body to ensure that neither
party is put at a disadvantage when presenting its case”.30
122. The European Court of Human Rights case law follows the same path in
the case of Neumeister v. Austria, where it refers to the equality of arms as part
of a fair trial before an independent and impartial tribunal.31 Reiterating this
principle the other way round, the European Court held in a subsequent
decision, Delcourt v. Belgium, that “a trial would not be fair if it took place in
such conditions as to put the accused unfairly at a disadvantage.”32
123. As for the scope of application of the equality of arms, the European Court
takes the position that equality of arms applies to all proceedings involving
rights or civil obligations, even if the content of the principle does not have
the same implication in criminal and civil matters. 33 Although the European
Court thus gives this principle a general scope, it did not intend to make it
absolute. States are not required to establish strict procedural equality
between the parties, but rather to ensure that the parties benefit from a
reasonably egalitarian situation. It is also in the administration of evidence
that the European Court assesses whether or not there is equality of arms, in
terms of both the possibility of witnesses being heard34 or on the judge's
power to order or refuse an investigative measure. 35
124. The Human Rights Committee of the United Nations, for its part, takes
equality of arms beyond the confines established by the European Court in
the case of Robinson v. Jamaica to find out, beyond legal weapons, if indeed the
29 Judgement The Prosecutor v. Clément Kayishema and Obed Ruzindana (Appeal) para 67. Highlighted by the
Commission.
30 Judgement The Prosecutor v. Tadić (Appeal) para 48.
31 Neumeister v. Austria (27 June 1968) Series A No. 8 para 24.
32 Delcourt v. Belgium (17 January 1970) Series A No. 1 para 25.
33 See Dombo Beheer B.V. v. The Netherlands (27 October 1993).
34 Dombo Beheer v. Netherlands (27 October 1993).
35 H. v. France (24 October 1989).
24
litigant had, in the actual judicial practice of the State concerned, adequate
facilities to use, that is, (...) the adequate time to prepare his defence. 36
125. It is obvious that jurisprudence agrees on the need to provide opponents
with equal arms in the duel of arguments between them. On a subject of such
importance, the doctrine considers equality of arms to be the “cornerstone of
the notion of a fair trial.”37
126. Although the expression “equality of arms” does not appear in the African
Charter, the Commission refers to it in order to stress the need for fairness,
independence and impartiality not only as factors, but also as an independent
component of a fair trial. The Commission also considers this requirement so
crucial that it has adopted specific Guidelines on the meaning, substance and
scope of fair trial. The Guidelines thus stipulate that:
“The essential elements of a fair hearing include:
(a) equality of arms between the parties to a proceedings, whether they be
administrative, civil, criminal, or military; (…);
(e) adequate opportunity to prepare a case, present arguments and
evidence and to challenge or respond to opposing arguments or evidence
(…)”.38
127. In this Communication, the Complainant was deprived of the opportunity
to produce his file. In addition to the fact that the Complainant’s right to
defence was restricted, he was not notified of the filing with the
Administrative Registry of the notices issued by the Public Prosecutor in
respect of the three cases numbered RA 444 and 445 for Pharmakina
Company and 452 for the Complainant, as required under Article 8 (2) of the
Rules of Procedure of the Supreme Court of the DRC.
128. In response to the argument that the Supreme Court lacked jurisdiction
and that the Complainant’s right to defence was violated, the Respondent
State argues once again that the Complainant failed to produce the decision
Frank Robinson v. Jamaica (30 March 1989) Communication No. 223/1987, U.N. Doc.
CCPR/C/35/D/223/1987 (1989). Highlighted by the Commission.
37 D Jean-Pierre & Mélin-Soucramanien “The Principle of Equality of Arms” (1993) Journal of Legal
Research,
cited
by
G
Canivet
in
“Equal
Access
to
the
Supreme
Court”
http://www.courdecassation.fr/publications_cour_26/rapport_annuel_36/rapport_2003_37/deuxieme_
partie_tudes_documents_40/tudes_theme_egalite_42/cour_cassation_6249.html (accessed on 15 March
2013).
38 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2001), Principles A (2) (a)
and (e).
36
25
of the Supreme Court. The position of the Commission regarding the alleged
violation of Article 3 of the Charter applies to the argument of the
Respondent State.
129. In particular, the Commission is of the opinion that the burden of proof
rests primarily with the alleging party, but that in this case it is shifted to the
Respondent State, or is at least equally shared between the parties, since the
Commission subsequently requested the State to produce the copy of the
judgment in dispute. Consequently, to demonstrate the unfounded nature of
the claims of the Complainant, the Respondent State should have produced
contrary proof of the allegations of the latter by submitting the documents
required by the Commission, which it failed to do despite numerous requests.
130.
In any event, considering the instances of violation of procedural rights
that occurred in the process leading up to the contested decision - which
violations have been established by the Commission - the terms of that
decision would not have changed the course of the Commission’s findings.
Moreover, the decision would not have derived any validity from the process
which itself does not comply with the principles upheld by the African
Charter.
131. Under these circumstances, it cannot be said that the Complainant’s rights
to have his case heard by a competent court and to have the opportunity to
defend himself were respected. The Commission therefore concludes that the
provisions of Articles 7 (1) (a) and 7 (1) (c) of the African Charter were
violated.
Prayers of the Complainant
132. In order to receive reparation for the violations alleged, the Complainant
prays the Commission to:
1. Declare null and void Judgement No. RA444/445/452 of 17 April 2000 by
the Supreme Court of the DRC;
2. Grant a fair compensation to the Complainant for being deprived of the
enjoyment of his rights with effect from 1 April 1998 of the amount of
500,000 U.S. dollars, awarded to him in respect of fees by the National Bar
Council; and
3. Recognize the Complainant’s right to claim against Pharmakina
Company in respect of the latter’s legal obligation to comply with the
26
Arbitral Award No. 98/CNO/LH/006 of 1 April 1998 issued by the
National Bar Council.
133. Having found that the rights protected under Articles 3, 7 (1) (a) and 7 (1)
(c) of the African Charter have been violated, the Commission responded to
Complainant’s allegations. The Commission remains committed to the
fundamental principle of compensation on the basis that the series of rights
guaranteed by the African Charter would be an empty proclamation if it was
not backed by the guarantee of a right to restitution or compensation in the
event of violation. Although in the past the Commission has moved
cautiously when it came to the rights to remedy and reparation, it has
progressively built a jurisprudence which, in practice, has grown ever
stronger. The doctrine also recognizes jurisprudential developments
subsequent to the Commission as an acceptance of the principle of restitution
and compensatory damages. 39 The edicts of the Commission on the issue of
rights remedy and reparation are also many and varied, and include such
simple recommendations as: “take steps to remedy the harm suffered”,40
“release detainees”,41 and “restore the victim’s right.”42
134. Regarding the specific issue of monetary compensation, the decisions of
the Commission in the cases of Embga Mekongo Louis v. Cameroon43 and
Antoine Bissangou v. Congo44 seem to be closest to the present Communication.
Such recognition of the right to reparation, including monetary
compensation, should not overshadow the consistent position that the role of
the Commission is not to act as a court of first instance or national court. The
Commission is not a court of appeal vis-à-vis national courts whose decisions
it would be called upon to annul, revise or revoke. However, the Commission
is established by the African Charter as a quasi-judicial body for overseeing
the conformity of the national practices of States and their internal organs,
with their obligations under the African Charter.
135. Such a position did not prevent the Commission from specifying the form
and content of compensation in cases where the Complainant’s request was
39 See G Naldi “Reparations in the Practice of the African Commission on Human and Peoples’ Rights”
(2001) Leiden Journal of International Law 686-688 and H Adjolohoun Human rights and Constitutional Justice
in Africa: The Beninois Model in Light of the African Charter on Human and Peoples’ Rights, Paris: Harmattan
(2011) 58-72.
40 Abubakar v. Ghana Communication 103/93 (2000) RADH 116 (CADHP 1996) para 17.
41 Constitutional Rights Project and Civil Liberties v. Nigeria Communication 143//95, 150/96 (2000) RADH
234 (CHPR 1999) para 56.
42 Pagnoulle (on behalf of Mazou) v. Cameroon Communication 39/90 (2000) RADH 61 (CADHP 1997) para
31.
43 Communication 59/91 (2000) RADH 60 (CADHP 1995) para 2.
44 Communication 253/02 (2006) AHRLR 80 (ACHPR 2006).
27
sufficiently specified. This was the case in the decision in the case of Kenneth
Good v. Botswana, where the Commission stated that “The compensation
should include but not be limited to remuneration and benefits he lost … and
legal costs he incurred during litigation in domestic courts and before the
African Commission.”45 It is also clear that the quantum of monetary
compensation is left to the domestic courts.46
136. The facts allow the Commission to observe that the domestic procedures
lasted more than four years before the Commission was seized in May 2005.
In all, at the date of this decision by the Commission, 10 years have elapsed,
during which period the Complainant must have invested significant
resources in the process, including procedural expenses. This is evidenced by
the fact that the Complainant has been represented by a lawyer throughout
the proceedings both in his country and before the Commission.
137. Under Rule 112 (2) of the Commission’s Rules of Procedure, in the event
of a decision against a State Party, the parties shall inform the Commission in
writing, within one hundred and eighty (180) days, of all measures, if any,
taken or being taken by the State Party to implement the decision of the
Commission.
Decision of the Commission
The Commission,
For these reasons,
138. Declares that the Democratic Republic of Congo has violated the
provisions of Articles 3, 7 (1) (a) and 7 (1) (c) of the African Charter. As such,
the Commission:
a) Urges the Democratic Republic of Congo to recognize or cause to be
recognized the Complainant’s right to claim against Pharmakina in
respect of the latter’s legal obligation to comply with Arbitral Award No.
98/CNO/LH/006 of 1 April 1998, issued by the National Bar Council of
the DRC, which grants the Complainant the sum of 500,000 (five hundred
thousand) U.S. Dollars as fees owed to him for services rendered to
Pharmakina Company.
45 Kenneth Good v. Botswana Communication 313/05 (2010) AHRLR 43 (ACHPR 2010) para 245.
46 See Mekongo Louis v. Cameroon, Bissangou v. Congo op cit; Association of Victims of Post Electoral Violence
and Interights v. Cameroon Communication 272/03 (2009) AHRLR 47 (ACHPR 2009).
28
b) Requests the Democratic Republic of Congo to take or cause to be taken
the necessary measures aimed at granting the Complainant a fair
compensation as damages for harm arising from the prolonged nonenforcement of the decision. The amount of the compensation will be
determined in accordance with Congolese law.
c) Also requests the Democratic Republic of Congo to grant the Complainant
compensation for the costs of the procedure which will also be determined
in accordance with Congolese law.
d) Lastly, requests the Democratic Republic of Congo to report in writing
within one hundred and eighty (180) days of being informed of this
decision, all measures that it has taken to implement these
recommendations.
Adopted at the 53rd Ordinary Session of the African Commission on Human and
Peoples’ Rights held from 9 to 23 April 2013 in Banjul, The Gambia
29