AFRICAN UNION
EXECUTIVE COUNCIL
Seventh Ordinary Session
28 June - 2 July 2005
Sirte, LIBYA
EX.CL/199 (VII)
18TH ACTIVITY REPORT OF THE AFRICAN COMMISSION ON
HUMAN AND PEOLES’ RIGHTS
1. Organization Of Work
A. Period covered by the Report
1. The Seventeenth Annual Activity Report of the African Commission on Human and
Peoples’ Rights (ACHPR) was adopted by the 4th Ordinary Session of the Assembly of
Heads of State and Government of the African Union Meeting in Abuja, Nigeria in
January 2005.
2. The Report covers the 36th and 3ih Ordinary Sessions of the African Commission held
in Dakar, Senegal from 23 November to 7 December 2004 and in Banjul, Gambia from
27 April to 11 May respectively.
B. Status of Ratifications
3. All the member States of the African Union are parties to the African Charter on
Human and Peoples’ Rights. The list of these States can be viewed on ACHPR Website:
www.achpr.org.
C. Sessions and Agenda
4. Since the adoption of the Seventeenth Annual Activity Report in January 2005, the
African Commission held two Ordinary Sessions preceded by two NGO Fora (which
took place in Dakar, Senegal from 20 to 22 November 2004 and in Banjul, Gambia from
24 to 26 April 2005 respectively) devoted to prepare the contribution of NGOs to the
Sessions of the African Commission.
5. The agenda of the two (2) Sessions was circulated and can be viewed on ACHPR
Website: www.achpr.org.
D. Composition and Participation
6. All the under-listed members of the African Commission participated in the
deliberations of the 36thand 3ih Ordinary Sessions:
Commissioner Salamata Sawadogo (Chairperson);
Commissioner Yassir S.A. EI Hassan (Vice Chairperson);
Commissioner Mohamed A. Ould Babana;
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Commissioner Kamel Rezag Bara
Commissioner Andrew R. Chigovera;
Commissioner Vera M. Chirwa;
Commissioner Emmanuel V.O. Dankwa;
Commissioner Jainaba John;
Commissioner Angela Melo;
Commissioner Sanji Mmasenono Monageng;
Commissioner Baba e TomMukirya Nyanduga.
7. Delegates of the following 29 Member States attended the 36th Ordinary Session and
made statements: Algeria, Botswana, Burkina Faso, Burundi, Cameroon, Central African
Republic, Republic of Congo, Democratic Republic of Congo, Cote d’ivoire, Egypt,
Eritrea, Ethiopia, Gabon, Gambia, Ghana, Republic of Guinea, Equatorial Guinea,
Kenya, Libya, Malawi, Mauritania, Mozambique, Namibia, Nigeria, Senegal, Republic of
South Africa, Sudan, Tunisia and Zimbabwe.
8. Delegates of the following 28 Member States attended the 37th Ordinary Session and
made statements: Algeria, Angola, Burkina Faso, Burundi, Cameroon, Central African
Republic, democratic Republic of Congo, Cote d’Ivoire, Djibouti, Egypt, Eritrea,
Ethiopia, Gambia, Guinea Bissau, Lesotho, Libya, Mali, Mauritania, Mauritius, Niger,
Nigeria, Senegal, Republic of South Africa, Sudan, Tanzania, Tunisia and Zimbabwe.
E. Adoption of the Eighteenth Annual Activity Report
9. The African Commission adopted its Eighteenth Annual Activity Report.
II. ACTIVITIES OF THE AFRICAN COMMISSION
The African Commission held its Third Ordinary Session in Pretoria, South Africa from
18 to 19 September 2004 to adopt the report of its investigation mission to the Sudan in
the Darfur region from 8 to 18 July 2004. The adopted report was transmitted to the
.Government of the Sudan on 30 September 2004 for its possible comments and
observations. The African Commission still awaits the reaction of the Sudan.
A. Consideration of the initial/periodic reports of the State Parties
10. Article 62 of the African Charter on Human and Peoples’ Rights stipulates that each
State Party undertakes to present every two years, starting from the date of entry of this
Charter, a report on the legislative and other measures taken to give effect to the rights
and liberties guaranteed under the said Charter.
11. The Table of presentation of the initial and periodic reports were circulated and can
be viewed on ACHPR Website: www.orchpr.orq.
12. The African Commission examined Rwanda’s periodic report at its 36th Ordinary
Session.
13. The African Commission examined the periodic reports of the Islamic Republic of
Mauritania and the Arab Republic of Egypt at its 3ih Ordinary Session.
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14. The African Commission is pleased at the dialogue it had with the delegations of the
Republic of Rwanda, the Islamic Republic of Mauritania and the Arab Republic of Egypt
during the presentation of the above-mentioned reports.
15. The African Commission encouraged these States not to relent in their efforts to
honour their obligations in accordance with the provisions of the African Charter.
16. The African Commission adopted conclusive observations on the three reports
presented. These observations were transmitted to the States concerned and will be
published together with the country reports.
17. The conclusive reports relate to factors conducive to the implementation of the
African Charter on Human and People’s Rights, the progress made, the concerns noted
and the recommendations formulated with a view to a better promotion and protection of
human rights within the States Parties concerned.
18. The African Commission urges Member States which have not yet done so to present
their initial and periodic reports as soon as possible and reminds them once more that
they can compile all the reports due in one single report.
B. Promotion Activities
19. The Members of the African Commission carried out promotion activities during the
intersession. .
20. Promotion missions were fielded to South Africa, the Sudan, Seychelles, Central
African Republic, Botswana, Burundi, Rwanda, Mauritania, Republic of Congo, Guinea
Bissau and Nigeria, where they participated in conferences, seminars and workshops on
human rights.
21. The Members of the Commission also sensitized Member States on the need to ratify
the international legal instruments on human rights, including the protocols to the African
Charter on the Establishment of the African Court of Human Rights and the Rights of
Women in Africa. Furthermore, they accorded keen attention to such thematic issues as
freedom of expression, prohibition and prevention of torture, the situation of refugees,
asylum seekers and displaced persons, human rights advocates, prisons and conditions of
detainees in Africa, the situation of indigenous populations/communities in Africa, the
situation of women in Africa, death penalty, etc.
22. The Inter-Session Progress Reports of the Commissioners are on the African
Commission’s Website and available at the Commission’s Secretariat.
23. The African Commission adopted the following mission reports at its 36th and 37th
Ordinary Sessions: a) Promotional Mission Reports:
In the Democratic Republic of Congo: 12 -24 January 2004;
In Sierra Leone: 23-27 February 2004;
In Sudan: 26 March - 02 April 2002;
In Nigeria: 07 - 18 February 2005;
In the Republic of Congo: 19 - 24 October 2004.
b) Mission Report of the Special Rapporteur on Prisons and Detention Conditions in
Africa:
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Cameroon: 2 - 15 September 2002;
Ethiopia: 15 - 29 March 2004;
South Africa: 14 - 30 June 2004
c) Mission Report of the Special Rapporteur on Rights of Women in Africa, Angola, 27
September - 02 October 2002.
C. Activities of the Special Rapporteurs
a) Report of the Special Rapporteur on Prisons and Detention
Conditions in Africa.
24. Dr. Vera Mlangazuwa Chirwa, Rapporteur Special on Prisons and Detention
Conditions in Africa, said that she conducted missions in South Africa and Kenya in the
course of the period under consideration.
- Dr. Chirwa deplored the awful detention conditions prevailing in prisons and
other detention centres and cited the prevalence of HIV/AIDS, Tuberculosis, poor
sanitation, deaths in prison, malnutrition, the unacceptable overpopulation of
prisons and acts of violence perpetrated against prisoners by some prison staff;
- Dr. Chirwp expressed her anxiety over the fact that, generally speaking, prison
authorities in several countries have been indifferent to such a situation;
- Dr. Chirwa commended the positive response from certain State-Parties like
Kenya, which investigated allegations of the death of prisoners and released more
than 20,000 prisoners to relieve congestion in the prisons;
- Special Rapporteur Chirwa also followed attentively the debates on the abolition
of capital punishment, which were organized in several countries, particularly in
Nigeria and Uganda;
- She further noted the stand taken against capital punishment by certain African
leaders such as Presidents Levy Mwanawasa of Zambia and Mwai Kibaki of
Kenya, as well as the moratorium on the execution of capital punishment in Cote
d’Ivoire and the Democratic Republic of Congo, all of which are motives for
satisfaction and encouragement.
b) Report of the Special Rapporteur on Women’s Rights in Africa
25. Since the adoption of the Protocol to the African Charter on the Rights of Women in
Africa -by the Assembly of Heads of State and Government of the African Union
(Maputo, July 2003), Dr. Angela Melo, Special Rapporteur on the Rights of Women in
Africa, has been campaigning for a speedy ratification of the said Protocol by the StatesParties to the Charter.
26. In the course of the period covered by this Report, the Special Rapporteur met in July
2004, on the margins of the African Union Summit (Addis Ababa, Ethiopia), with the
President of the Pan-African Parliament, 48 Ministers and 45 delegates with
responsibilities in the treaty ratification process in their countries. The Special Rapporteur
delivered the Gender Declaration adopted by the same Conference to the NGOs which
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have observer status at the African Commission. She participated in several fora,
seminars workshops and conferences on Women’s Rights.
c) Report of the Special Rapporteur on Human Ri~hts Activists in Africa
27. Mrs. Jainaba Johm, Special Rapporteur on Human Rights Protectors in Africa,
undertook activities for sensitization on her mandate and the establishment of dialogue
with the States and members of the Civil Society. In this regard she:
- Participated in the annual coordination meeting of the UN organs monitoring
human rights treaties, which was held from 22 to 26 June 2004 in Geneva,
Switzerland.
- Met Mrs Hina Jilani, Special Representative of the Secretary General of the
United Nations on the Rights of Human Rights activists and Mrs. Olatokunbo
Ige, Coordinator of the African team of the United Nations High Commissioner
for Human Rights, on the margins of the Coordination meeting of the monitoring
organs of the Geneva treaties. Met partner NGOs of the African Commission,
especially Amnesty International and INTERIGHTS, in London;
- Participated in the consultative workshop on women human rights activists
(Dakar, Senegal, 18-19 November 2004) and in NGO fora (20-22 November
2004, Dakar Senegal an9 24-26 April 2005, Banjul, Gambia) organized by the
African Centre for Democracy and Human Rights Studies and the African
Commission, in preparation for the 36th and 3ih Ordinary Sessions of the African
Commission;
- Sent urgent appeals to their Excellencies:
The President of Zimbabwe (02 appeals) concerning the conformity of the draft bill
on NGOs, to the provisions of the African Charter and other international conventions
to which Zimbabwe is party, especially the Declaration of the United Nations on
human rights activists;
Mr. Omar EI Bechi, President of the Republic of Sudan (02 appeals), on behalf of Mr.
Sahil Mahmoud Osman (July 2004) and Mrs. Zubaida Rahib Abdallah (October
2004), human rights activists in detention.
d) Report of the Special Rapporteur on Refugees, Asylum Seekers and Displaced
Persons in Africa:
28. The terms of reference for the Special Rapporteur on Refugees, Asylum Seekers and
Displaced Persons in Africa were adopted during the 36thsession of the African
Commission. The Special Rapporteur, Commissioner Bahame Tom Mukirya Nyanduga,
began to sensitization and carry out an information campaign on his mandate and
elaborated his work programme during the period under review;
29. The Special Rapporteur also drafted a contribution to volume 47 of the German
Yearly on International law titled “Protection of refugees according to the 1969 OAU
Convention governing specific aspects of the problem of refugees in Africa.”
30. He further wrote a tribute to the late Judge Laity Kama, first President of the
International Criminal Tribunal for Rwanda (ICTR) and, at the request of H.E. Mr.
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Adama Dieng, Registrar at ICTR, a document titled “Facing Impunity: The International
Justice System, with particular reference to Africa”
31. The Special Rapporteur also wrote an article for “Forced Migration Review”, the
magazine of the Refugee Studies Centre of the University of Oxford, to depict the
displacement and destruction of communities, their livelihoods and infrastructure on the
East Coast of Africa as a result of the tsunami which hit the region on 26 December 2004,
particularly in Somalia, Kenya, Tanzania and the Seychelles.
32. The Special Rapporteur discussed plans for these displaced persons in Geneva,
together with the Bureau of the United Nations Secretary General’s Special
Representative for the Rights of Displaced Persons and with the Brookings Institute,
University of Berne.
e) Report of the Special Rapporteur on Freedom of Expression
33. The office of Special Rapporteur on Freedom of Expression in Africa was instituted
by Resolution of the 36th Ordinary Session of the African Commission (23/11 07/12/2004, Dakar, Senegal), with the fundamental role of increasing the efficiency of
the Commission’s actions to promote and protect freedom of expression in Africa.
34. The Commissioner, Andrew R. Chigovera, appointed Special Rapporteur on Freedom
of Expression in December 2004, undertook the following activities during the period
under review:
- Lectured at the Faculty of Law, George Washington University, Washington, on the
African System of Promotion and Protection of Human Rights and on the mandate of the
Special Rapporteur on Freedom of Expression;
- Visit to the Special Rapporteur on Freedom of Expression of the Organization of
American States, based in Washington, United States, from 28/02 to 0.4/03/2004;
- Visit to the President and Vice President of the Inter-American Commission, and
meeting with the institution’s chief executives.
f) Report on the Situation of Indigenous Populations/Communities
35. The Working Group on Indigenous Populations/Communities carried out the
following activities during the period under consideration:
- Elaboration of an activity programme for the Working Group. Launching of the
report of the Working Group, in collaboration with IWGIA (International
Working Group for Indigenous Affairs) as a fringe event at the 61st Session of the
United Nations Human Rights Commission in April 2005 in Geneva, Switzerland.
- Fact-finding visit to Burundi from 27 March to 9 April 2005, led by Mr.
Zephrin Kalimba, member of the African Commission’s Working Group on
Indigenous Communities/Populations, accompanied by Dr. Albert K. Barume,
member of the Consultative Experts’ Network chosen to assist the Working
Group, with the technical assistance of UNIPROBA a local NGO.
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g) Report on the Implementation of the Robben Island Directives
36. The Commissioner, Sanji Monagen, Chairperson of the Monitoring Committee on the
Implementation of Robben Island Directives, underlined in her report that, during the
period under review, the Committee met on 19 and 20 February 2005 at the Faculty of
Law of the University of Bristol in the United Kingdom.
37. At the end of the meeting organized by the African Commission, in conjunction with
the Association for the Prevention of Torture (APT), the Working Group adopted its rules
of procedure and work programme.
h) Seminars and Conferences
38. The Commission, in keeping with its Strategic Action Plan, decided to organize a
number of seminars and conferences as part of its promotional activities.
39. From 13 to 17 September 2004, the African Commission, in association with its
partners, organized a seminar on economic, social and cultural rights in Pretoria, South
Africa, Africa. The declaration adopted at the end of the seminar is attached hereto as
Annex 2.
40. The African Commission also decided to organize 2 seminars in 2005 on the themes
of :
* Refugees and Displaced Persons in Africa:
This topic was chosen for the following reasons:
- The fact that the African continent has the largest number of refugees.
- The lack of donor interest in providing speedy assistance to refugees.
- The urgent need for our member States to mobilize adequate resources to provide
necessary help to refugees and displaced persons.
- The alarming plight of these refugees.
* Present-day Forms of Slavery
- Despite having been abolished by all member States of the African Union, this practice
evidently continues in the most abject forms such as trafficking in women and girls,
enslavement of certain social groups, etc.
- Broad consultation must be organized around the issue to find ways of combating and
eradicating this scourge.
41. The African Commission is grateful to those partners who have offered their
contribution and has invited the State parties and other partners to lend it their assistance.
The list of seminars was distributed and can be consulted on the ACHPR website:
www.achpr.org.
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i) Ratification of the Protocol to the African Charter on the Rights of Women
in Africa.
42. The. Protocol to the African Charter on the Rights of Women in Africa was adopted
by the 2nd Ordinary Session of the Conference of Heads of State and Government of the
African Union on 11 July 2003 in Maputo, Mozambique.
43: To date, 37 Member States have signed the Protocol and 10 Member States have
ratified and deposited the instruments of ratification at the African Union Commission.
Five ratifications are still needed for the protocol to come into force. The African
Commission is calling upon Member States which have not yet ratified the protocol to do
so as quickly as possible.
j) Creation of an effective African Court of Human and Peoples Rights
44. The protocol to the African Charter on Human and Peoples Rights dealing with the
creation of an African Court of Human and Peoples Rights entered into force on 25
January 2004. To date, 19 Member States have ratified the Protocol signed by 45
Member States of the African Union.
45. In July 2004, the Conference of Heads of State and Government of the African Union
decided to fuse the African Court on Human and Peoples Rights with the African Court
of Justice.
46. “ In January 2005, the Executive Council of the African Union urged Member States
that had not yet done so to ratify this Protocol. The establishment of the EX.CL/199 (VII)
Court, and this, notwithstanding the debate initiated of the issue of the merging of the two
Courts mentioned above.
47. The African Commission was of the opinion that there was an urgent need to
establish the African Court of Human and Peoples’ Rights.
k) Adoption of Resolutions:
48. At its 36th Ordinary Session, the African Commission adopted three (3) resolutions
on:
- the Mandate and Nomination of the Special Rapporteur on Freedom of Expression in
Africa;
- the Mandate and Nomination of the Special Rapporteur on Refugees, Asylum Seekers
and Displaced Persons in Africa;
- Economic, Social and Cultural Rights in Africa.
49. At its 3ih Ordinary Session, the African Commission adopted four (4) resolutions on:
- the establishment of a Working Group on specific issues concerning its work;
- the human rights situation in Togo;
- the establishment of an efficient African Court of Human and Peoples’ Rights;
- the situation in Darfur, The Sudan.
Copies of the above-mentioned seven (07) Resolutions are contained in Annex 1.
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l) Relations with Observers
50. At its 36th and 3ih Ordinary Session, the African Commission discussed its
cooperation with national human rights institutions and NGOs.
51. At its 36th Ordinary Session, the Afri9an Commission granted associate status to the
following two (2) National Human Rights Institutions:
- the National Human Rights Observatory of the Democratic Republic of Congo;
- the Kenya National Commission on Human Rights.
This brings the total number of National Institutions enjoying Associate Status in the
African Commission on Human and Peoples’ Rights to seventeen (17). No other request
was received.
52. The African Commission reiterated its appeal to State Parties that had not yet done so
to establish national human rights institutions and strengthen the capacities of existing
ones, in compliance with the Paris Principles and its own resolution on these institutions.
53. At its 36th and 37th Ordinary Sessions, the African Commission granted observer
status to seventeen (17) NGOs.
This brings the total number of NGOs and other organizations enjoying observer status in
the African Commission on Human and Peoples’ Rights to three hundred and twenty-two
(322).
III. PROTECTION ACTIVITIES
th
54. At its 36 Ordinary Session, the African Commission considered forty-five (45)
communications. It took decisions to be seized of eight (8) communications, decisions on
the admissibility of five (5) communications and three (3) on substance. Furthermore, it
considered twenty-nine (29) other communications and decided to refer them to its 37th
Ordinary Session for additional information. Copies of five (5) final decisions are
contained in Annex 2 of the present Report.
55. The African Commission adopted the procedures for notification of its decisions on
communications and mission reports as well as the process for the adoption of its mission
reports.
In this regard, the Commission decided to inform all parties to communications of its
decisions as soon as they had been made while recalling that they should abide by the
recommendations of Article 59 of the Charter prohibiting the publication of these
decisions as long as it has not yet been authorized by the Assembly of Heads of State and
Government.
56. The African Commission decided to adopt its mission reports before sending them for
comments to the States Parties to which missions were made. The African Commission
decided to give States Parties a three (3) month deadline to submit their comments. This
deadline could be extended for three (3) extra months, if need be.
57. At its 3ih Ordinary Session, the African Commission considered forty-seven (47)
communications. It took decisions to be seized of six (6) communications, declared four
(4) communications admissible, and three (3) inadmissible. It adopted decisions on
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striking out two (2) communications from the roll due to lack of interest of the plaintiffs,
and one (01) decision on substance. The African Commission further considered thirtyone (31) other communications and decided to refer them to its 38th Ordinary Session for
additional information. Copies of six (6) final decisions are contained in Annex 2 of the
present Report.
IV. ADMINISTRATIVE AND FINANCIAL MATTERS
58. Under the provisions of Article 41 of the African Charter, the African Union
Commission bears the operating costs of the African Commission, including provision of
the necessary staff, means and services. However, the work of the African Commission
was compromised due to lack of funding. The African Commission was unable to carry
out several promotion missions to Member States. Moreover, it could not organize the
14th Extraordinary Session to consider the mission reports which needed to be adopted
urgently.
59. In order to supplement the limited resources allocated to it by the African Union, the
African Commission continues to seek financial and material assistance from external
partners.
60. The African Commission expressed its profound gratitude to all donors and partners,
whose financial, material and other contributions enabled it to discharge its mandate
during the period under review.
61. During the review period, the African Commission enjoyed financial and material
assistance from the following partners:
a) Danish Human Rights Institute
62. The Secretariat of the African Commission received extra-budgetary resources from
the Danish Human Rights Institute (former Danish Human Rights Centre) to finance the
post of Technical Assistant and research activities.
b) Swedish International Development Agency (SIDA)
63. SIDA always finances the human rights promotion and protection activities
conducted by the African Commission. This subvention is meant to strengthen the
capacities of the Secretariat. SIDA agreed to renew its subvention until 2008.
c) Government of the Netherlands
64. The Ministry of Foreign Affairs of the Netherlands continues to support the
Documentation Centre, the public relations section and the legal section. The renewal of
this subvention for a 3 year period is envisaged.
d) Rights and Democracy
65. Rights and Democracy made a subvention to the African Commission for the
following specific activities:
. Campaign for the ratification of the Protocol to the African Charter dealing with the
creation of an African Court of Human and Peoples Rights;
. Ratification of the Protocol to the African Charter dealing with Women’s rights in
Africa;
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. Meeting on democracy ‘and elections in Africa;
. Rights and Democracy also finances the services of an assistant to the Special
Rapporteur on Women’s rights in Africa.
e) DANNIDA
66. DANNIDA financed activities
populations/communities for two years.
of
the
Working
Group
on
indigenous
f) Bureau of the UN Human Rights High Commissioner
67. The Bureau financed the activities of the Special Rapporteur on the Defence of
Human Rights and the recruitment of one assistant to the Rapporteur.
68. The African Commission expresses its profound gratitude to all the donors and all the
partners whose financial, material and other contributions have enabled it to fulfill its
mandate during the period under review.
V. ADOPTION OF THE 17th ANNUAL ACTIVITY REPORT BY THE
CONFERENCE OF HEADS OF STATE AND GOVERNMENT
OF THE AFRICAN UNION
69. The Conference of the African Union Heads of State and Government adopted, after
examination, the 17th annual activity report of the African Commission on Human and
Peoples Rights by a decision in which it expressed its satisfaction on the content of the
report and authorized its publication.
VI. ADOPTION OF THE 18thANNUAL ACTIVITY REPORT BY THE
CONFERENCE OF HEADS OF STATE AND GOVERNMENT OF
THE AFRICAN UNION
70. The Conference of the African Union Heads of State and Government adopted, after
examination and on recommendation of the Executive Council, the 18thannual activity
report of the African Commission on Human and Peoples Rights by a decision in which it
expressed its satisfaction on the content of the report and authorized its publication.
71. The African Commission will pursue the mobilization of resources and hopes that the
voluntary contributions fund will be established in the near future.
Annexe I
Annexe II
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Annexe III - Communications
251/2002 Lawyers for Human Rights/Swaziland
Rapporteur:
32nd Session: Commissioner Barney Pityana
33rd Session: Commissioner Barney Pityana
34th Session: Commissioner Andrew R. Chigovera
35th Session: Commissioner Andrew R. Chigovera
36th Session: Commissioner Andrew R. Chigovera
37th Session: Commissioner Andrew R. Chigovera
Summary of Facts
1. The Complainant is Lawyers for Human Rights, a human rights NGO based in
Swaziland.
2. The Complaint was received at the Secretariat of the Commission on 3 June 2002 and
is against the Kingdom of Swaziland which is a party to the African Charter on Human
and Peoples’ Rights.
3. The Complainant states that the Kingdom of Swaziland gained independence on 6
September 1968 under the Swaziland Independence Constitution Order, Act No. 50 of
1968. The 1968 Constitution enshrined several fundamental principles of democratic
governance such as the supremacy of the Constitution and separation of powers and
clearly laid down procedures for amending the Constitution.
4. The 1968 Constitution also provided for a justiciable Bill of Rights which secured the
protection of fundamental human rights and freedoms including the right to freedom of
association, expression and assembly
5. The Complainant alleges that on 12 April 1973, King Sobhuza /I issued the King’s
Proclamation to the Nation No. 12 of 1973 whereby he declared that he had assumed
supreme power in the Kingdom of Swaziland and that all legislative, executive and
judicial power vested in him. In addition, he repealed the democratic Constitution of
Swaziland that was enacted in 1968.
6. It is alleged that the King’s Proclamation resulted in the loss of the protections
afforded to the Swazi people under the Constitution’s Bill of Rights, which effectively
incorporated the rights ensured by the African Charter.
7. According to the complaint, the provisions of the Proclamation outlawing political
parties violate the Swazi people’s freedom of association, expression and assembly,
thereby diminishing the rights, duties, and freedoms of the Swazi people that are
enshrined in the African Charter on People’s and Human Rights.
8. Furthermore, it is alleged that the Swazi people do not possess effective judicial
remedies because the King retains the power to overturn all court decisions, thereby
removing any meaningful legal avenue for redress.
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Complaint
9. The Complainant alleges that the following Articles of the African Charter have
been violated: Articles 1, 7, 10, 11, 13,26
Procedure
10. At its 32nd ordinary session, the African Commission decided to be seized of the
communication.
11. On 30 October 2002, the Secretariat informed the parties of the decision of the
African Commission and requested them to transmit their written submissions on
admissibility within a period of 3 months.
12. At its 33rd Ordinary Session held in Niamey, Niger from 15 to 29 May 2003, the
African Commission examined the communication and decided to defer its consideration
on admissibility to the 34th Ordinary Session.
13. 0n 10 June 2003, the Secretariat of the African Commission wrote informing the
parties to the communication of the African Commission’s decision and reminded them
to forward their submissions on admissibility within 2 months.
14. During its deliberations at the 34thOrdinary Session held from 6 to 20 November
2003 in Banjul, The Gambia, the African Commission however decided to defer
consideration of the communication
15. On 4 December 2003, the parties to the communication were informed of the decision
of the African Commission and requested the parties to forward their written submissions
on admissibility within 2 months.
16. At the 35th Ordinary Session held from 21 May to 4 June 2004 in Banjul, The
Gambia, the Complainant made oral submissions before the African Commission. The
African Commission considered the communication and declared it admissible.
17. At its 36th Ordinary Session held in Dakar, Senegal from 23 November - 7 December
2004, the African Commission deferred consideration on the merits of 33 the
communication to give the Respondent State one more chance to makes its submissions.
18. At its 37th Ordinary Session held in Banjul, The Gambia from 27 April to 11 May
2005, the African Commission considered the communication took a decision on the
merits thereof.
LAW
Admissibility
19. The African Commission was seized with the present communication at its 32nd
Ordinary Session which was held in Banjul, The Gambia from 17 to 23 October 2002.
The Respondent State has since been requested numerous times to forward its
submissions on admissibility but to no avail. The African Commission will therefore
proceed to deal with this matter on admissibility based on the facts presented by the
Complainant.
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20. Article 56 of the African Charter governs admissibility of communications brought
before the African Commission in accordance with Article 55 of the African Charter. All
of the conditions of this Article are met by the present communication except Article 56
(5), which merits special attention in determining the admissibility of this
communication.
21. Article 56(5) of the African Charter provides-:
Communications...received by the African Commission shall be considered if they-:
(5) are sent after exhausting local remedies, if any, unless it is obvious that this procedure
is unduly prolonged. .
22. The rule requiring the exhaustion of local remedies as a condition of the presentation
of a communication before the African Commission is premised on the principle that the
Respondent State must first have an opportunity to redress by its own means, within the
fraIT1ework of its own domestic legal system, the wrong alleged to have been done to
the individual(s).
23. The Complainant submits that as a result of the King’s Proclamation to the Nation
No. 12 of 1973, the written and democratic Constitution of the Kingdom of Swaziland
enacted in 1968 containing a Bill of Rights was repealed. Furthermore, the Proclamation
prohibited the Courts of the Kingdom of Swaziland from enquiring into the validity of the
Proclamation or any acts undertaken in accordance with the Proclamation.
24. The Complainant indicates that under the Proclamation, the King assumes supreme
power in the Kingdom and judicial power is vested in him and he retains the power to
overturn all court decisions, thereby removing any meaningful legal avenue for redress.
The Complainant quotes the case of Professor Dlamini v The King to illustrate instances
where the King has exercised his power to undermine 34 “ decisions of the courts. In that
case, the Court of Appeal overturned the Non-Bailable Offences Order of 1993, which
ousted the courts’ jurisdiction to entertain bail applications. Following the decision of the
Court of Appeal, the King issued a Decree - NO.2 of 2001 reinstating the Non Bailable
Offences Order. However, due to international pressure, the King later repealed aspects
of the reinstated Non Bailable Offenses Order by Decree NO.3 of 2001.
25. Therefore the Complainant argues they cannot exhaust domestic remedies because
they are unavailable by virtue of the Proclamation and even where a matter could be
instituted and won in the courts of Swaziland, it would not constitute a meaningful,
durable remedy because the King would nullify such legal victory.
26. The Complainant provides all the Proclamations made by the King and after perusing
the Proclamations, the African Commission notes that no where in all the Proclamations
is there an ouster clause to the effect that the Courts of the Kingdom of Swaziland are
prohibited from enquiring into the validity of the Proclamation or any acts undertaken in
accordance with the Proclamation.
27. The African Commission has considered this matter and realises that for the past 31
years the Kingdom of Swaziland has had no Constitution. Furthermore, the Complainant
has presented the African Commission with information demonstrating that the King is
prepared to utilise the judicial power vested in him to overturn court decisions. As such,
the African Commission believes that taking into consideration the general context within
14
which the judiciary in Swaziland is operating and the challenges that they have been
faced with especially in the recent past, any remedies that could have been utilised with
respect to the present communication would have likely been temporary. In other words,
the African Commission is of the view that the likelihood of the Complainant succeeding
in obtaining a remedy that would redress the situation complained of in this matter is so
minimal as to render it unavailable and therefore ineffective2. For the reasons stated
herein above, the African Commission declares this communication admissible.
Decision on the merits
Submission from the complainant
28. The complainant submits that the Kingdom of Swaziland signed the African Charter
on Human and Peoples’ Rights in 1991. The significance of the signing is that the
Kingdom declared an intention to be bound by the Charter.3 The complainant submits
further that on 15 of September 1995, the Kingdom of Swaziland then ratified the Charter
and by ratifying the Charter, the Kingdom declared its final formal intention and
declaration to be bound by the provisions of the Charter. Formal agreements, particularly
unilateral agreements, normally require ratification in addition to the signature. This
requires the representative of the state subsequently to endorse the earlier signature. This
require-s the representative of the state subsequently to endorse the earlier signature. This
provides the state with an opportunity to reconsider its decision to be bound by the treaty,
and, if necessary, to effect changes to its own law to enable it to fulfil its obligation under
the treaty.4
29. The complainant notes that the Kingdom of Swaziland had ample time between 1991
and 1995 to consider whether or not to formally agree to be bound by the Charter or to
change its laws to fulfil its obligations in 1995.
30. The complainant notes that the Respondent State has violated Article 1 of the African
Charter as the latter imposes an obligation on Member States of the African Union to
adopt legislative or other measures to give effect to the rights, duties and obligation
enshrined therein, noting the African Commission’s decision in Communication 147/95
and 149/965 where the African Commission found that:
Article 1 gives the Charter the legally binding character always attributed to
international treaties of this sort. Therefore a violation of any provision of the
Charter automatically means a violation of Article 1. If a State Party to the
Charter fails to recognise the provisions of the same, there is no doubt that it is in
violation of this Article. Its violation, therefore, goes to the root of the Charter.
31. The complainant states further that the African Commission found that the obligation
under Article 1 commences at ratification and that ratification implies that the State party
must also take pre-emptive steps to prevent human rights violations.6 According to the
complainant, it goes without saying that the African Commission must declare the
Proclamation to be in violation of Article 1.
32. The complainant also alleges violation of Article 7 of the African Charter noting that
the Proclamation vests all powers of State to the King, including Judicial powers and the
authority to appoint and remove judges which necessitates the conclusion that Courts are
not independent, especially in view of Decree No.3/2001. This Decree clearly ousts the
Courts’ jurisdiction to grant bail on matters listed in the Schedule, which schedule may
15
be amended from time to time outside Parliament. The complainant made reference to the
African Commission’s decision in Communication 60/91,7 where it was stated that:
Jurisdiction has thus been transferred from the normal courts to a tribunal chiefly
composed of persons belonging to the executive branch that passed the Robbery
and Firearms Decree, whose members do not necessarily possess any legal
expertise. Article 7 1(d) of the African Charter requires Courts or tribunal to be
impartial. Regardless of the character of the individual members of such tribunals,
its composition alone creates the appearance, if not lack, of impartiality.
33. According to the complainant, Decree No.3 of 2001 is in violation of Article 7,
particularly Article 7 1(d) and the African Commission is urged to find as such.
34. The complainant also alleges violation of Article 10 and alleges that Sections 11, 12
and 13 of the Proclamation in very clear terms abolish and prohibit the existence and the
formation of political parties or organisations of a similar nature. In this regard, the
complainant quotes Communication 225/988 and the African Commission’s Resolution
on the Right to Freedom of Association which provides that;
. the competent authorities should not override constitutional provisions or undermine
fundamental rights guaranteed by the constitution and international standard;
. in regulating the use of this right, the competent authorities should not enact provisions
which would limit the exercise of this freedom;
. the regulation of the exercise of the right to freedom of association should
be consistent with state’s obligations under the African Charter on Human
and Peoples’ Rights
35. The Commission then concluded that the Nigerian Government’s acts constituted a
violation of Article 10 of the African Charter. Accordingly, this Resolution equally
applies to the Kingdom of Swaziland, and thus Swaziland is in violation. With
regards to allegations of violation of Article 11, the complainant argues that the King’s
Proclamation does not only prohibit the right to associate but also the right to
assemble peacefully and adds that the right to associate cannot be divorced from the
right to assembly freely and peacefully. In this regard the complainant cites the
African Commission’s decision in Communications 147/95 and 149/96 where it stated
that
the Commission in its Resolutions on the Right to Freedom of Association had also
reiterated that the regulation of the exercise of the right to freedom of association
should be consisted with States obligations under the African Charter on Human
and Peoples’ Rights This principle does not apply to
freedom of association alone but also to all other rights and freedoms enshrined in
the Charter, including, the right to freedom of assembly
36. The complainant also alleged violation of Article 13 of the African Charter and
stated that Section 8 of King’s Proclamation of 1981 provides that “The provisions
of section 11 and 12 of the King’s Proclamation of the 12th April, 1973 shall not be
applicable to the Tinkundla which are hereby declared and recognised as centres for
16
meetings of the nation”. According to the complainant the import of this section is
that citizens can only participate in issues of governance only within structures of the
present system, which does not allow free association and assembly, expression and
conscience (the Tinkhundla System of Government). In this regard, the complainant
refers to the Commission’s decision in Communication 147/95 and 146/96 Sir
Dawda Jawara / The Gambia where it stated that
the imposition of the ban on former Ministers and Members of Parliament is in
contravention of their rights to participate freely in the government of their
country provided for under Article 13(1) of the Charter ‘Also the ban on political
parties is a violation of the complainantso rights to freedom of association
guaranteed under Article 10(1) of the Charter
37.And Communication 211/989 which provides that
the Charter must be interpreted holistically and all clauses must reinforce each
other. The purpose or effect of any limitation must also be examined, as the limitation of
the right cannot be used to subvert rights already enjoyed. Justification, therefore. cannot
be derived solely from popular will. as such, cannot be used to limit the responsibilities
of state parties in terms of the Charter
38.The complainant alleges further a violation of Article 26 of the African Charter
noting that a violation of Article 7 is relevant to Article 26 and in this regard makes
reference to Communication 52/91, Communication 54/91, Communication 61/91
Communication 129/9410 in which the African Commission found that
while Article 7 focuses on the individual’s right to be heard,
Article 26 speaks of the institutions which are essential to give
meaning and content to that right. This Article clearly envisions, the
protection of the Courts which have traditionally been the bastion of
protection of the individual’s rights against the abuses of state power
39.
The complainant noted further that it is beyond doubt that the vesting of
judicial powers in the person of the King undermines the authority and
independence of the Courts, more so because the King with his legislative
powers can easily water down the decision of the Courts as was the case in the
jUdgment of Professor Dlamini v The King, Appeal Case No. 42/2000, where
the King by Decree NO.2 of 2001 overturned the Court of Appeal judgment by
reinstating the Non-Bailable offences Order which had been declared
unconstitutional.
40.
The complainant prays the African Commission to:
finds the King’s Proclamation of 12 April, 1973 to be in violation of the African
Charter on Human and Peoples’ Rights; and
17
recommend and mandate strongly the Kingdom of Swaziland to take constitutional
measures forthwith to give effect to all the provisions of the African Charter,
specifically Articles 1, 7, 10, 11, 13 and 26 thereof. .
Commission’s decision on the merits
41. ln making this decision on the merits, the African Commission would like to point out
that it is disappointed with the lack of cooperation from the Respondent State. The
decision on the merits was taken without any response from the State. As a matter of fact,
since the communication was submitted to the Commission and in spite several
correspondences to the State, there hasn’t been any response from the latter on the matter.
Under such circumstances, the Commission is left with no other option than to take a
decision based on the information at its disposal.
42. lt must be stated however that, by relying on the information provided by the
complainant, the Commission did not rush into making a decision. The Commission
analyzed each allegation made and established the veracity thereof.
43.A preliminary matter that has to be addressed by the African Commission is the
competence of the commission to entertain allegations of human rights violations
that took place before the adoption of the Charter or even its coming into force. In
making this determination the Commission has to differentiate between allegations that
are no longer being perpetrated and violations that are ongoing.
44. ln case of the former, that is, violations that occurred before the coming into force of
the Charter but which are no longer or which stopped before the coming into force of the
Charter, the Commission has no competence to entertain them. The events which
occurred before the date of ratification of the Charter are therefore outside the
Commission’s competence rationae temp oris. The Commission is only competent
ratione temp oris to consider events which happened after that date or, if they happened
before then, constitute a violation continuing after that date.
45.ln the present communication, the violations are said to have started in 1973 following
the Proclamation by the King, that is, prior to the coming into force of the African
Charter and continued after the coming into force of the Charter through when the
Respondent State ratified the Charter and is still ongoing to date. The Commission
therefore has the competence to deal with the communication.
46. The Commission has competence ratione loci to examine the case because the
petition alleges violations of rights protected by the African Charter, which have taken
place within the territory of a State Party to that Charter. It has competence ratione
materFae as the petition alleges violations of human rights protected by the Charter, and
lastly it has competence ratione temporis as the facts alleged in the petition took place
when the obligation to respect and guarantee the rights established in the Charter was in
force for the Kingdom of Swaziland. Given that Swaziland signed the Charter in 1991
and later ratified on 15 September 1995, it is clear that the alleged events continues to be
perpetrated when the State became under the obligation to respect and safeguard all rights
enshrined in the Charter, giving the Commission rationae temporis competence.
18
47. The two stages of signature and ratification of an international treaty provides states
with the opportunity to take steps to ensure that they make the necessary - domestic
arrangements to ensure that by the time they ratify a treaty the latter is in conformity with
their domestic law. When ratifying the Charter, the Respondent State was aware of the
violation complaint of and had the obligation to take all the necessary steps to comply
with its obligations under Article 1 of the Charter - to adopt legislative and other
measures to give effect to the rights and freedoms in the Charter.
48.
From the above, it is the Commission’s opinion that it is competent to deal with
the matter before it.
49.
Having determined that it is competent to deal with the matter, the Commission
will now proceed to examine each of the rights alleged to have been violated by the
Respondent State.
50.The complainant argues that by ratifying the African Charter and not adopting
legislative and other measures to bring the 1973 Proclamation in conformity with the
Charter, the respondent State has violated Article 1 of the African Charter. The use of the
terms “other measures” in Article 1 provides State Parties with a wide choice of measures
to use to deal with human rights problems. In the present situation when a Decree has
been passed by the Head of State abrogating the constitution, it was incumbent on the
same Head of State and other relevant institutions in the country to demonstrate good
faith and either reinstate the constitution or amend the Decree to bring it in conformity
with the Charter provisions during or after ratification.
51. ln the opinion of the Commission, by ratifying the Charter without at the same time
taking appropriate measures to bring domestic laws in conformity with it, the Respondent
State’s action defeated the very object and spirit of the Charter and thus violating Article
1 thereof.
52.
The complainant also alleges violation of Article 7 of the Charter stating that the
Proclamation vests all powers of State to the King, including judicial powers and
the authority to appoint and remove judges and Decree No.3/2001 which ousts
the Courts’ jurisdiction to grant bail on matters listed in the Schedule. According
to the complainant this illustrates that Courts are not independent.
53.
Article 7 of the African Charter provides for fair trial guarantees - safeguards to
ensure that any person accused of an offence is given a fair hearing. In its resolution
on Fair Trial adopted at its Eleventh Ordinary Session, in Tunis Tunisia, from 2 to 9
March 1992, the African Commission held that the right to fair trial includes, among
other things, the right to be heard, the right of an arrested person to be informed at the
time of arrest in a language he/she understands, of the reason for the arrest and to be
informed promptly of any charges against them, the right of arrested or detained
persons to be brought promptly before a judge or other officer authorised by law to
exercise judicial power and be tried within a reasonable time or be released, the right
to be presumed innocent until proven guilty by a competent court.
54.
In the present communication the Proclamation of 1973 and the Decree of 2001
vested judicial power in the King and ousted the jurisdiction of the court on certain
matters. The acts of vesting judicial power in the King or ousting the jurisdiction of
19
the courts on certain matters in themselves do not only constitute a violation of the
right to fair trial as guaranteed in Article 7 of the Charter, but also tend to undermine
the independence of the judiciary.
55. Article 26 of the Charter provides that States Parties shall have the duty to guarantee
the independence of the courts. Article 1 of the UN Basic Principles on 41 the
Independence of the Judiciary 11 states that “the independence of the Judiciary shall be
guaranteed by the State and enshrined in the Constitution or the law of the country. It is
the duty of all governmental and other institutions to respect and observe the
independence of judiciary.” Article 11 of the same Principles states that “the term of
office of judges, their independence, security ...shall be adequately secured by law.”
Article 18 provides that “Judges shall be subject to suspension or removal only for
reasons of incapacity or behaviour that renders them unfit to discharge their duties.”
Article 30 of the International Bar Association (IBA)’s Minimum Standards of Judicial
Independence12 also guarantees that “A Judge shall not be subject to removal unless, by
reason of a criminal act or through gross or repeated neglect or physical or mental
incapacity, he has shown himself manifestly unfit to hold the position of judge” and
Article 1(b) states that “Personal independence means that the terms and conditions of
judicial service are adequately secured so as to ensure that individual judges are not
subject to executive control.”
56.
By entrusting all judicial powers to the Head of State with powers to remove
judges, the Proclamation of 1973 seriously undermines the independence of the
judiciary in Swaziland. The main raison d’être of the principle of separation of powers
is to ensure that no organ of government becomes to powerful and abuses its power.
The separation of power amongst the three organs of government - executive,
legislature and judiciary ensure checks and balances against excesses from any of
them. By concentrating the powers of all-three government structures into one person,
the doctrine of separation of power is undermines and subject to abuse.
57.
In its Resolution on the Respect and the Strengthening on the Independence of the
Judiciary adopted at its 19th Ordinary Session held from 26th March to 4th April 1996
at Ouagadougou, Burkina Faso, the African Commission “recognised the need for
African countries to have a strong and independent judiciary enjoying the confidence
of the people for sustainable democracy and development”. The Commission then
“urged all State Parties to the Charter to repeal all their legislation which are
inconsistent with the principles of respect of the independence of the judiciary,
especially with regard to the appointment and posting of judges and to refrain from
taking any action which may threaten directly or indirectly the independence and the
security of judges and magistrates”.
58.
Clearly, retaining a law which vest all judicial powers in the Head of State with
possibility of hiring and firing judges directly threatens the independence and security
of judges and the judiciary as a whole. The Proclamation of 1973, to the extent that it
allows the Head of State to dismiss judges and exercise judicial
power is in violation of Article 26 of the African Charter.
59.
With regards allegation of violation of Articles 10 and 11, the complainant
submits that the Proclamation of 1973 abolishes and prohibits the existence and the
formation of political parties or organisations of a similar nature and that the
20
Proclamation also violates Article 11 - right to assemble peacefully as the right to
associate cannot be divorced from the right to assembly freely and peacefully.
60. Article 10 of the African Charter provides that “every individual shall have the right
to free association provided that he abides by the law “And Article 11 provides that
every individual shall have the right to assemble freely with others. The exercise of
this right shall be subject only to necessary restrictions provided for by law...” In
Communication 225/9813 the African Commission, quoting its Resolution on the
Right to Freedom of Association held that the regulation of the exercise of the right to
freedom of association should be consistent with state’s obligations under the African
Charter and in regulating the use of this right, the competent authorities should not
enact provisions which would limit the exercise of this freedom. That the competent
authorities should not override constitutional provisions or undermine fundamental
rights guaranteed by the constitution and international standard. The Commission
reiterated this in communications 147/95 and 149/9614 and concluded that This
principle does not apply to freedom of association alone but also to all other rights and
freedoms enshrined in the Charter, including, the right to freedom of assembly.
61. Admittedly, the Proclamation restricting the enjoyment of these rights was enacted
prior to the coming into effect of the Charter. However, the Respondent State had an
obligation to ensure thC;;1t the Proclamation conforms to the Charter when it ratified
the latter in 1995. By ratifying the Charter without taking appropriate steps to bring its
laws in line with the same, the African Commission is of the opinion that the State has
not complied with its obligations under Article 1 of the Charter and in failing to
comply with the said duty, the prohibition on the establishment of political parties
under the Proclamation remained effective and consequently restricted the enjoyment
of the right to freedom of association and assembly of its citizens. The Commission
therefore finds the State to have violated these two articles by virtue of the 1973
proclamation.
62. The complainant also alleges violation of Article 13 of the African Charter
claiming that the King’s Proclamation of 1973 restricted participation of citizens in
governance as according to the complainant the import of sections 11 and 12 of the
Proclamation is that citizens can only participate in issues of governance only within
structures of the Tinkhundla. In Communications 147/95 and 146/96 Sir Dawda
Jawara / The Gambia the Commission held that
the imposition of the ban on former Ministers and Members of Parliament is in
contravention of their rights to participate freely in the government of their
country provided for under Article 13(1) of the Charter Also the ban on political
parties is a violation of the complainants rights to freedom of association
guaranteed under Article 10(1) of the Charter
53. In the present communication, the King’s Proclamation clearly outlaws the formation
of political parties or any similar structure. Political parties are one means through which
citizens can participate in governance either directly or through elected representatives of
their choice. By prohibiting the formation of political parties, the King’s Proclamation
21
seriously undermined the ability of the Swaziland people to participate in the government
of their country and thus violated Article 13 of the Charter.
From the above reasoning, the African Commission is of the view that the Kingdom of
Swaziland by its Proclamation of 1973 and the subsequent Decree NO.3 of 2001 violated
Articles 1, 7, 10, 11, 13 and 26 of the African Charter.
The Commission hereby recommends as follows:
that the Proclamation and the Decree be brought in conformity with the provisions of
the African Charter;
that the State engages with other stakeholders, including members of civil society in
the conception and drafting of the New Constitution; and
that the Kingdom of Swaziland should inform the African Commission in writing
within six months on the measures it has taken to implement the above
recommendations.
Adopted by the African Commission on Human and Peoples’ Rights at its 37th Ordinary
Session held in Banjul, The Gambia, from 27th April to 11thMay 2005.
268/2003 IIesanmi/Nigeria
Rapporteur:
33rd Session: Commissioner Jainaba Johm
34th Session: Commissioner Jainaba Johm
35th Session: Commissioner Jainaba Johm
36th Session: Commissioner Jainaba Johm
37th Session: Commissioner Jainaba Johm
Summary of Facts
1. The Complainant is an individual, a consultant with the Economic Help
Project based in Abuja, Nigeria.
2. The Complaint was received at the Secretariat of the African Commission on
3 April 2002 and is against the Federal Republic of Nigeria which is a party
to the African Charter on Human and Peoples’ Rights.
3. The Complainant states that in 1999, he exposed the smuggling activities of
several companies and individuals, and officials of the Customs and Excise,
Police and various other officials to President Obasanjo of Nigeria and the
Inspector General of Police.
4. The Complainant states that the smuggling activities include -: smuggling of
narcotics and their modified forms, minerals, illegal arms, carcinogen bearing
foods, expired, fake and counterfeit pharmaceuticals, tyres, textiles, steel
products, electronic, electrical products, spare parts, foods, cars and other
products.
22
5. The Complainant also claims that the smugglers are responsible for the
assassinations of several persons including Chief Bola Ige, Nigeria’s Attorney
General and the Confidential Secretary to the Chief Justice of Nigeria.
6. The Complainant alleges that the activities of the smuggling syndicate have
resulted into the shutting down of 41 textile mills, 8 auto assembly and other
manufacturing plants, resulting into the dismissal of millions of workers and
thereby impoverishing them. The smuggling activities have also resulted into
the deaths of many people as a result of use of fake or expired drugs.
7. Through their smuggling activities the said smugglers he claims deprive
Nigeria of about 101 trillion Naira, annually.
8. As a result of his actions to expose the smuggling syndicate, the Complainant
claims that his pregnant wife was assassinated on 8th July 1999. Furthermore,
he was abducted and imprisoned and held at SCID, Panti, Yaba, Lagos under
inhuman conditions between 31 August and 4 September 1999.
9. The Complainant also claims that whilst in detention he was served with
poisoned food by Inspector Okoye under the order of CSP Bose Dawodu,
who both demanded for 10,000 Naira for bail.
10. The Complainant further alleges that between 21 and 23 June 2000 he was
abducted again by Police Commissioner Aniniru, Sergeant Joseph Akinola
and Inspector Paul Ajayi of FCIBs who he claims were acting on behalf of
the smugglers. He was imprisoned at the Divisional Police Headquarters in
Lagos, Nigeria where he was denied water and food.
Complaint
11. The Complainant alleges that the following Articles of the African Charter
have been violated: Articles 2,3,4,5,12, 15,20,21,27,29 Procedure
12. On 8 April 2002, the Secretariat of the African Commission
acknowledged receipt of the complaint and requesting for additional
information from the complainant.
13. At its 33rd Ordinary Session held from 15 to 29 May in Niamey, Niger, the
African Commission considered the complaint and decided to be seized of the
matter.
14. On 10 June 2003, the Secretariat of the African Commission wrote
informing the parties to the communication that the African Commission had
been seized with the matter and requested them to forward their submissions
on admissibility within ‘3 months.
15.At its 34th Ordinary Session held in Banjul, The Gambia from 6 to 20
November 2003, the African Commission examined this communication and
decided to defer further consideration on the admissibility of the matter to the
35th Ordinary Session.
16. On 4 December 2003, the Secretariat wrote informing the parties to the
communication of the African Commission’s decision and requested them to
forward their submissions on admissibility within two months. 17.At its 35th
Ordinary Session held in Banjul, The Gambia, from 21 May to 4 June 2004,
the African Commission examined the communication, heard submissions
23
from the State and decided to defer further consideration on admissibility of
the matter to its 36th Ordinary Session.
18. By Note Verbale dated 15 June 2004 addressed to the State and by letter
bearing the same date address to the complainant, both parties were informed
of the African Commission’s decision.
19. At the 36th Ordinary Session of the African Commission held from 23 November
to 7 December 2004 in Dakar Senegal, the African Commission considered the
communication and deferred its decision to the 3ih Ordinary Session
20. By Note Verbale of 13 December 2004 and letter of the same date the
respondent State and the complainant respectively, were notified of the
decision of the African Commission.
21.At its 37th Ordinary Session held in Banjul, The Gambia from 27 April to
11 May 2005, the African Commission considered the communication and
declared it inadmissible.
LAW
Admissibility
Complainant’s submission on admissibility
22. The complainant submits that all legal, legislative and logical local
remedies have been exhausted, and without explaining, claims further that the
procedure adopted by President Obasanjo and the government has been
“unduly prolonged, apparently unfruitful and grossly ineffective”. That
President Obasanjo is being constantly fooled by false intelligence and
security reports. He noted that only those who cannot handsomely bribe
“settle” corrupt officials get caught - scape goats! He states that this gives the
impression that those indicted are the sacred cows of the Obasanjo’s regime,
the un-touchable merchants of death, whose activities have crippled the
economy of Nigeria, even though they are close to the corridors of power.
23. He noted that this has led to an unprecedented increase in illicit arms
smuggling, armed robberies, abduction, drug abuse and smuggling,
miscellaneous consumer goods smuggling, petroleum products smuggling,
drug money laundering politics, systematic de-industrialization of Nigeria,
massunemploymen!, a constantly devalued Naira, hyper-inflation, infectious
poverty levels, poor healthcare delivery, very poor and dilapidated
infrastructure, infections official and informal corruption levels, low life
expectancy, poor per capita income, low GDP, uncertainty, political/religious
tension and relative insecurity of life and property in Nigeria.
24. He notes further that efforts of the Customs and the Police are cosmetic.
That they advertise very attractive adverts or programmes on TV that deceive
Nigerians that they are working. The culprits are not apprehended or
prosecuted, so far they “settle” very well. The Police wildly extort money
from commercial motorists. Bosses of the Police, Customs, NAFDAC and the
NDLEA do this so as to attract more budgetary allocations. The President
appears content with very attractive security reports. Officers lobby and bribe
to get very lucrative postings and for sure-they pay returns.
24
25. The complainant notes further that the President has “not made good his
promise since 1999 that there shall be no sacred cows and that he shall
investigate and prosecute all the economic saboteurs, once he was notified”.
Apparently, the President is afraid to prosecute smugglers, drug barons and
all those indicted.
26. He states that his late wife was assassinated to stop him in 1999 and he
sued the suspects at the Lagos High Court in 1999 and he was frustrated out
of court by Justice Ashiyanbi and Olugbani who corrupted Judges by
suspiciously adjourning the matter for years without the suspects showing up
in court. The Police illegally abducted him twice, first between August 31 and
September 4, 1999 and served him poisoned food at Panti, Lagos. He was
abducted again by the Police between June 21 and 23 2000 and starved for
the period.
27. The complainant claims further that the Customs and Police collude with
smugglers to defraud Nigeria. This sufficiently explains why they want him
dead. In fact, they openly mock the effectiveness of President Obasanjo’s
approach to smuggling control. They claim that they “settle all the security
chiefs, who they claim, settled the President too”. Settlement day, according
to them is every Friday. This gives an impression that Mr. President’s AntiCorruption and Anti-Smuggling crusades constitute a mere farce! Adding that
those in Aso Rock patronize smugglers.
28. He notes further that the security and democracy of Nigeria are
undoubtedly seriously undermined by smuggling, which in effect, constitutes
an absurd infringement upon the socio-economic and security rights of the
peoples of the Federal Republic of Nigeria. This constitutes an infringement
on articles 2,3,4,5, 6, 12, 15, 19, 20, 22, 23, 24, 27 and 29 of the African
Charter 01] Human and Peoples’ Rights.
29. He concluded by stating that in view of the strategic security and
economic importance of Nigeria to Africa and the world, and the urgent need
to avert an imminent state of anarchy in Nigeria, to be occasioned by a kind
of impromptu anti-democratic chain of fission from aggrieved stakeholders
within the federation, the ACHPR should, without delay, “save our souls by
taking urgent action, which would force president Obasanjo to prosecute all
those indicted”.
Respondent, State’s submissions on admissibility
30. The Respondent State submitted its arguments on admissibility at the 35th
Ordinary Session of the Commission held in Banjul, The Gambia. The State
noted that the, author of the communication is seemingly in quest for
attention, noting that the communication is an “episodic compilation of
issues, lacking focus, depth and substantiation”.
31. The State argued that it would be misleading to attempt to dwell on the
issues in the communication as such will convey a wrong and perhaps
unintended signal to the author and others of his persuasion and inclination to
unduly attempt taking advantage of situations, including the procedural
provisions of well-meaning bodies like the African Commission.
25
32. The State noted that for a communication to pass the admissibility test
under Article 56 of the African Charter it must meet the specific conditions,
failure which the communication should be declared inadmissible. The State
argues further that it is clear from the communication that the author has not
exhausted local remedies as required under Article 56 (5). That the author
merely asserts without evidence that he has availed himself of all available
remedies.
33. The State notes that the communication lacks evidence of the involvement
of the legal institutions as there is no indication that the courts of appellate
jurisdiction in Nigeria have been seized of the matter, adding that to come to
equity, the author must be clean. The State also notes that the author fails to
demonstrate whether the “so called” human rights matters have gone before
the Nigeria National Human Rights Commission. The State noted further that
the Independent Corruption Practices Commission (ICPC), the Economic and
Financial Crimes Commission were also not seized by the author, stating that
the author should be encouraged to take the “right and adequate steps for
intervention in Nigeria”. 34.The Respondent State argues that the author’s
penchant to malign the Nigerian criminal justice system is a deliberate ploy to
mislead the African Commission and take undue advantage of the procedures,
noting that to say individuals are above the law is self-serving but totally
unrealistic and unfounded. The State also argues that the communication is
derogatory and insulting, noting that the State takes strong exception to the
characterization of the Nigerian public functionaries and institutions as
immoral, duplicitous, inept and corrupt and provocative that the author would
be uncharitable and discourteous to claim the President was bribed.
35. The Respondent State finally requested the African Commission not to
waste its valuable time on the communication, that it is unworthy of the
efforts nor does it justify the resources that is invested in determining which
human rights are in contention. That the author fails to invoke any provision
of the Charter alleged to have been violated. The State submitted that the
communication is seriously flawed and glaringly incompatible with the
admissibility criteria in the African Charter
African Commission’s decision on admissibility
36. ln the present communication, the complainant submits that he has complied with
Article 56 of the African Charter that prescribes conditions dealing with admissibility.
The Responding State however argues that the complaint does not meet two of the
conditions set out in Article 56 of the African Charter, namely:
Article 56(3) and Article 56(5).
37. Article 56 (3) provides that communications relating to human and peoples’ rights
referred to in Article 55 received by the Commission shall be considered if:
“they not written is disparaging or insulting
language directed against the State concerned and
its institutions or to the [African Union]”
26
38. The author submitted in his complaint that the police and customs officials
are corrupt, that they deal with drug smugglers, that they extort money from
motorists and added that the President himself was corrupt and had been
bribed by the drug smugglers. The Respondent State claims such language is
insulting to the institutions of the State including the presidency ~nd
provocative, and questions whether the African Commission would allow
itself to be used by authors like this to use “unbecoming language to unjustly
and baselessly vilify leaders”?
39. The operative words in sub paragraph 3 in Article 56 are “disparaging”
and
“insulting” and these words must be directed against the State Party
concerned or its institutions or the African Union. According to the Oxford
Advanced Dictionary, disparaging means to speak slightingly of... or to
belittle and insulting means to abuse scornfully or to offend the self respect or
modesty of... The language must be aimed at undermining the integrity and
status of the institution and bring it into disrepute.
40. To say an institution or person is corrupt or that he/she has received bribes
from drug dealers, every reasonable person would lose respect for that
institution or person. In an open and democratic society individuals must be
allowed to express their views freely. However, in expressing these views due
regard should be taken not to injure the reputation of others or impair the
enjoyment of the rights of others. While the Commission strives to protect the
rights of individuals it must strike a balance to ensure that those institutions
established within States Parties to facilitate the enjoyment of these rights are
also respected by the individuals. To expose vital state institutions to insults
and disparaging comments like those expressed in the communication brings
the institution to disrepute and renders its
50 effectiveness wanting. In the light of the above, the African Commission
finds that the language used in the communication as intended to bring the
institution of the president into ridicule and disrepute and thus insulting.
41. The Respondent State also argues that the complainant has not exhausted
local remedies as required under Article 56 (5) of the African Charter. The
State submits that apart from not seizing the local courts, the complainant has
not indicated that it brought the complaint to the National Human Rights
Commission or to the Independent Corruption Practices Commission. Article
56 (5) provides that communications relating to human and peoples’ rights
referred to in Article 55 received by the Commission shall. be considered if
they”... are sent after exhausting local remedies, if any unless it is obvious
that this procedure is unduly prolonged”.
42. The African Commission would like to deal with the submission of
communications to bodies such as a National human rights Commission or
the Independent Corruption Practices Commission as indicated by the State.
The two institutions mentioned by the Respondent State are non-judicial
institutions even though they can grant remedies. They are not part of the
judicial structure of the Respondent State. While the African Commission
would encourage complainants to seek redress from non-judicial bodies as
27
well, they are not obliged to do so. The remedies required under article 56 (5)
are legal remedies and not administrative or executive remedies.
43. Regarding the non-exhaustion of legal remedies the complainant simply
states that he has exhausted “local, legislative and logical remedies” without
informing the African Commission how. The only time he mentioned having
gone to court is when he said his wife was killed and the case was adjourned
several times. The Respondent State argues that the matters raised in the
communication have never been brought before the local courts.
44. The principle that a person who has suffered a human rights violation must
first exhaust his or her domestic remedies can be found in most international
human rights treaties. International mechanisms are not substitutes for
domestic implementation of human rights, but should be seen as tools to
assist the domestic authorities to develop a sufficient protection of human
rights in their territories. If a victim of a human rights violation wants to bring
an individual case before an international body, he or she must first have tried
to obtain a remedy from the national authorities. It must be shown that the
State was given an opportunity to remedy the case itself before resorting to an
international body. This reflects the fact that States are not considered to
have violated their human rights obligations if they provide genuine and
effective remedies for the victims of human rights violations.
45. The international bodies do recognize however, that in many countries,
remedies may be non-existent or illusory. They have therefore developed
rules about the characteristics which remedies should have, the way in which
the remedies have to be exhausted and special circumstances where it might
not be necessary to exhaust them. The African Commission has held that the
local remedies to be exhausted must be available, effective and sufficient. If
the existing domestic remedies do not fulfil these criteria, a victim may not
have to exhaust them before complaining to an international body. However,
the complainant needs to be able to show that the remedies do not fulfil these
criteria in practice, not merely in the opinion of the victim or that of his or her
legal representative. 46.lf a complainant wishes to argue that a particular
remedy did not have to be exhausted because it is unavailable, ineffective or
insufficient, the procedure is as follows: (a) the complainant states that the
remedy did not have to be exhausted because it is ineffective (or unavailable
or insufficient) - this does not yet have to be proven; (b) the Respondent State
must then show that the remedy is available, effective and sufficient; and © if
the Respondent State is able to establish this, then the complainant must
either demonstrate that he or she did exhaust the remedy, or that it could not
have been effective in the specific case, even if it may be effective in general.
47.ln the present communication, the complainant has failed to demonstrate
that he attempted local remedies or that he was prevented from doing so by
the Respondent State or that the local remedies are not available or are
ineffective or have been unduly prolonged. The exceptions under Article
56(5) can therefore not apply to this communication.
For the above reasons, the African Commission declared the communication
inadmissible.
28
Adopted by the African Commission on Human and Peoples’ Rights at its
37th Ordinary Session held in Banjul, The Gambia, from 27 April to 11 May
2005.
269/2003 -Interights on behalf of Safia Yakubu Husaini and et
al/Nigeria
Rapporteur:
33rd Session: Commissioner Johm
34th Session: Commissioner Johm
35th Session: Commissioner Johm
36th Session: Commissioner Johm
37th Session: Commissioner Johm
Summary of Facts
1. The complaint is filed by Interights on behalf of Safiya Yakubu Husaini and
others who have been allegedly subjected to gross and systematic violations
of fair trial and due process rights in the Sharia Courts in Nigeria.
2. The Complainant alleges that Ms Safiya Hussaini, a Nigerian woman and
nursing mother was sentenced to death by stoning by a Sharia Court in
Gwadabawa, Sokoto State Nigeria, for an alleged crime of adultery, which
sentence was the latest in a series of serious and massive violations of the
right to fair trial and associated guarantees.
3. The Complainant alleges that Safiya’s case is only one of the many cases to
be decided under the recently introduced pieces of Sharia penal legislation in
northern Nigerian States. All laws in Nigeria, at both Federal and State levels,
ought to be compatible with both the constitution of 1999 and international
(including regional) treaties ratified by Nigeria, and are required to
particularly comply with the. African Charter on Human and Peoples’ Rights
which is domestic law in the country.
4. In its complaints, the complainant also enumerates other similar instances of
alleged violations of fair trial, personal dignity and the right to life. It alleged
that in December 2002, a Ms Hafsatu Abubakar from Sokoto State was
charged with “Zina,” which is either voluntary premarital sexual intercourse
or, if the person is married, to adultery.
5. On 19 January 2001, an unmarried woman called Bariya Magazu received
100 lashes in Zamfara State for having committed the offence of Zina. Ms.
Magazu was also initially convicted of false accusation for failing to prove
her declaration that three particular men had coerced her into having sexual
intercourse, which men were not prosecuted. By an order of an Islamic Court
in the same State, a Mr. Umaru Bubeh received 80 strokes of the cane on 9
March 2001 for drinking alcohol. On 4 May 2001, a Mr. Lawal Incitara’s
hand was amputated after a Sharia Court in same State found him guilty of
stealing bicycles.
6. In Sokoto State, Sani Shehu and Garga Dandare were sentenced to have their
right hands and left feet amputated after being convicted by a Sharia Court in
Sokoto State on 20 December 2001. On 27 December 2001, the Upper Sharia
29
Court in the same State convicted a Mr. Aminu Bello of theft and sentenced
him to have his right hand amputated.
7. The Complainant alleges that in none of these case did the victims/accused
persons receive nor were they offered competent or any legal representation.
The rights of legal representation in the Sharia Courts are very limited and,
even where they allow legal representation, only lawyers who are muslims
can practice in them.
8. It is further alleged that the new Sharia penal legislations that are adopted in
the various Nigeria States contain specifications that limit their application to
people of Muslim faith but they dispense with all the fair trial safeguards
recognised in the African Charter. Moreover, unlike in other criminal cases
where accused persons are able to appeal to the Nigerian Supreme Court,
which is the highest court in the country, appeals in the Sharia criminal cases
end before the special Sharia Courts of Appeal. In effect, the Sharia penal
legislation subject persons of Muslim faith to lower standards of fair trial
merely by reason of their faith. In all the cases regarding the application of
Sharia law for criminal cases, there is discrimination on grounds of the faith
of the accused.
9. The Complaint also alleges that the rights of those tried under Sharia law are
protected to a lesser extent than in the Penal Code for Northern Nigeria, valid
for non-Muslim people, particularly concerning the right of representation,
the right of appeal and the lack of knowledge of criminal procedure by the
court. Under Sharia law, the death penalty is applied for offences that are not
punishable with the death penalty under the Penal Code for Northern Nigeria.
The criteria for appointing judges to the same court also fails short of
international standards of training judicial personnel, and there is no
requirement for judges to be legally qualified in law.
10.Together with its Complaint, the Complainant submitted a request for
provisional measures to the African Commission in accordance with Rule 111 of
the Rules of Procedure of the African Commission
Complaint
11. The Complainant alleges serious and massive violations of Articles 2, 3, 4,
5, 6, 7, and 26 of the African Charter on Human and Peoples’ Rights.
Procedure
12. The Complaint was dated 30 January 2002 and received at the Secretariat
on 31 January 2002.
13.0n 5th February 2002, the Secretariat of the African Commission wrote to the
Complainant acknowledging receipt of the complaint, and requesting the latter to
forward the relevant information and evidentiary materials on the developments
surrounding the application of the Penal Provisions of Sharia religious law
before Nigerian Sharia Courts, and to forward to it complete and specific cases
of alleged irregularities supported by relevant documentations. The Complainant
was also asked to indicate to the Commission which of the specific decisions of
the Sharia Courts had been executed, and which were pending.
14. On 6th February 2002, the Chairman of the African Commission addressed
an Urgent Appeal to His Excellency, President Olusegun Obasanjo of the
30
Federal Republic of Nigeria, respectfully urging Him to suspend further
implementation of the Sharia Penal Statutes and decisions as well as
convictions thereof, including the case of Ms. Safiya Yakubu, pending the
outcome of the consideration of the complaints before the African
Commission.
15. On the same date, the Chairman of the African Commission addressed a
similar Urgent Appeal to His Excellency Amara Essy of the African Union,
respectfully urging Him to draw the attention of the President of the Federal
Republic of Nigeria to the Commission’s requests and to and to positively
respond thereof.
16. On 8 February 2002, the Secretariat of the African Commission faxed a
copy of the Chairman’s Urgent Appeal to the High Commission of the
Federal Republic of Nigeria in Banjul, The Gambia for onward transmission
of the same to His Excellency, President Olusegun Obasanjo of the Federal
Republic of Nigeria. 17.On 3 March 2002, the Complainant wrote to the
Secretariat informing the latter that it will assemble as many of the documents
as exist and would get back to the Secretariat on its progress.
18. On 7 March 2002, the Secretariat of the African Commission wrote to the
Complainant confirming receipt of the same and reminding the latter that it
would be awaiting for the relevant information.
19. On 19 March 2002, the Director of the Political Affairs Department of the
African Union wrote to the Chairman of the African Commission that the
Secretary General of the AU had formally taken up the matter at the level of
H.E. Chief Olusegun Obasanjo, President of the Federal Republic of Nigeria.
The Secretariat of the African Commission brought the same to the attention
of the Chairman. 20. On 21 March 2002, the Chief of Staff to the President
of the Federal Republic of Nigeria wrote, on behalf of His Excellency
President Olusegun Obasanjo, to the Chairman of the African Commission
acknowledging receipt of the Urgent Appeal and assuring him that the
administration and many Nigerians equally shared his concern. The letter
further expressed his optimism that, in the long run, justice would be done
and Safiya’s life would be spared. While noting that the Federal Government
could not unilaterally suspend the Sharia Penal Statutes and decisions which
were within the prerogative of the State government in accordance with the
Nigerian Constitution, the letter assured the Chairman that the Administration
would leave no stone unturned in ensuring that the right to life and human
dignity of Safiya, and that of all other Nigerians that may be affected in future
were adequately protected.
21. On 2 April 2002, the Secretariat of the African Commission wrote to the
Complainant reminding it of the need for further information on Ms. Amina
Lawal who was alleged to have been sentenced to a similar punishment by a
Sharia Court in Katsina State. While informing the same of the pledge by the
Nigerian Administration regarding the case of Safiya and the follow up by the
AU Secretary General, the Secretariat reminded the Complainant that it still
awaited for the submission of the documentation and information as
requested in its previous letters. 22. On 19 April 2002, the Political Affairs
31
Department of the AU wrote to the Secretariat of the African Commission
informing the latter of the decision by the Federal Court of Appeal in Nigeria
overturning the death sentence imposed on Safiya by a lower Court in Sokoto
State thereby making the need to make further Presidential intervention
unnecessary.
23. During the 31 Ordinary Session held in Pretoria, South Africa in May
2002, the Complainant orally informed the Secretariat that it was trying to
compile the relevant information on the complaint and that it would be best if
the Secretariat waited for the same before further action on complaint.
24. On 27 August 2002, the Secretariat received a letter from the International
Commission of Jurists expressing its concern in the fate of Ms. Amina Lawal
and her child.
25. By a letter of 27 August 2002, the Secretariat informed the ICJ that the
African Commission was following the developments in Nigeria regarding
the application of Sharia Penal Statutes in the country, including and
particularly, the case of Ms. Lawal, through the appropriate channels.
26. During the 32nd Ordinary Session held in Banjul, The Gambia in October
2002, the complainant orally informed the Secretariat that it was unable to
compile the requested information in time, that it was in touch with its local
partners in Nigeria on the case and suggested the Commission went ahead in
dealing with the complaint. 27. During the intersession period before the 33rd
Ordinary Session, the Secretariat called the complainant to inquire about the
progress it made and on the status of the cases pending before national courts.
28. At its 33rd Ordinary Session held in Niamey, Niger from 15 to 29 May
2003, the African Commission examined the complaint and decided to be
seized thereof. 29. On 12 June 2003, the Secretariat wrote to the
complainants and Respondent State informing them of this decision and
requested them to forward their written submissions on admissibility before
the 34th Ordinary Session of the Commission. 30.A similar letter of reminder
was sent out to the parties on 6 August 2003 and on 17 October 2003.
31. At its 34th Ordinary Session held in Banjul, The Gambia from 6th to 20th
November 2003, the African Commission examined the complaint and
decided to defer its consideration on admissibility to the 35th Ordinary
Session.
32. On 9th December 2003, the Secretariat wrote to the parties informing
them of this decision and further requesting them to forward to the African
Commission their written submissions on the admissibility of the
communication before the 35th Ordinary Session. The same was copied to the
Respondent State’s High Commission in Banjul, The Gambia.
33. The Secretariat sent a similar reminder to both parties on 29th April 2004
to send their written submissions on the admissibility of the communication
before the 35th Ordinary Session.
32
34. At its 35th Ordinary Session held in Banjul, The Gambia from 21st May to
4th June 2004, the African Commission examined the complaint and decided
to defer its consideration on admissibility to the 36th Ordinary Session.
35. At the same Ordinary Session, a copy of the complaint was handed over
the Nigerian Delegation.
36.
On 17th June 2004, the Secretariat wrote to the parties informing them of
this decision and further requesting them to forward to the African Commission
their written submissions on the admissibility of the communication before the
36th Ordinary Session. The same was copied to the Respondent State’s High
Commission in Banjul, The Gambia.
~
37.
The Secretariat sent a similar reminder to both parties on 7th September
2004 to send their written submissions on the admissibility of the
communication before the 36th Ordinary Session.
38.
During the 36th Ordinary Session held in Dakar Senegal from 23rd
November to 7 December 2004, the complainant orally informed the Rapporteur
of the Communication of his wish to withdraw the case.
39. At the same Ordinary Session, the African Commission decided to defer its
decision on the request for withdrawal to the 3ih Ordinary Session, pending a
written confirmation of the same by the complainant.
40.
On 23rd December 2004, the Secretariat wrote to the complainant and
Respondent State informing them of this decision and requesting the former to
forward its written request for withdrawal before the 3ih Ordinary Session of the
Commission.
41.A similar reminder was sent to the complainant on 2nd February and 4th
Apri1200S.
42.
During its 37th Ordinary Session held from 2ih April to 11th May 2005 in
Banjul, The Gambia, the African Commission received a written request for
withdrawal, dated 2nd May 2005, from the complainant.
For the abovementioned reason the African Commission on Human and
Peoples’ Rights, Takes note of the withdrawal of the communication by the
Complainant and decides to close the file.
Adopted by the African Commission on Human and Peoples’ Rights at its
37th Ordinary Session held in Banjul, The Gambia from 27 April to 11 May
2005.
COMMUNICATION 264/2002: Association Que Choisir Benin/Benin
Rapporteur:
33rd Ordinary Session: Commissioner Salamata Sawadogo
34th Ordinary Session: Commissioner Salamata Sawadogo
35th Ordinary Session: Commissioner Salamata Sawadogo
33
36th Ordinary Session: Commissioner Salamata Sawadogo
37th Ordinary Session: Commissioner Salamata Sawadogo
Summary of facts:
1. On the 6thNovember 2002, the Secretariat of the African Commission on
Human and Peoples’ Rights received from Mr. Dossou Dossa Bernard,
Chairperson of the NGO Que Choisir Benin, a Communication submitted on
behalf of Beninese magistrates, in accordance with the provisions of Articles 55
and 56 of the African Charter on Human and Peoples’ Rights (the African
Charter).
2. The Communication was instituted against the Republic of Benin (State party16
to the African Charter and hereinafter referred to as Benin) and in it the NGO
Que Choisir Benin alleges that the report prepared by a Commission of Inquiry
of the Ministry of Finance of Benin) set up to investigate disbursements effected
between 1996 and 2000 concluded that « all sorts of irregularities and fraudulent
dealings in the collection and issue of taxes and memoranda falling under the
jurisdiction of magistrates », had been committed and as a result several
magistrates, court clerks and tax collectors of the Beninese Treasury were
brought before the judicial chamber of the Supreme Court accused of
falsification of public accounts, complicity in embezzlement, fraud, ...
3. Que Choisir Benin furthermore declares that the Constitutional Court of Benin,
by its Ruling DCC 02-097, dismissed, on unconstitutional grounds, the appeal
lodged by the magistrates imprisoned since December 2001.
(Que Choisir Benin is an NGO based in Benin and has had Observer Status with
the African Commission On Human and Peoples’ Rights since May 2001 (29th
Ordinary Session).
(Benin ratified the African Charter on 20th January 1986).
The Complaint:
4. The NGO Que Choisir Benin contends that the provisions of Articles 547, 548
and 549 of the Ruling No 25/PR/MJL of 07/08/67 governing the criminal
procedure code in Benin and by virtue of which the proceedings were brought
(against those accused), violate the principles of equality and the right to defense
provided for under the provisions of Article 26 of the Constitution of Benin and
Article 7-1 © of the African Charter on Human and Peoples’ Rights.
5. Que Choisir Benin consequently requests the African Commission to « consider
this Communication at one of its future sessions ».
Procedure:
6. The Secretariat of the African Commission, by letter ref ACHPR/COMM/2 of
11th February 2003 addressed to Que Choisir Benin, acknowledged receipt of the
Communication, specifying the reference of the Communication and further
informing it that the Communication would be registered on the African
Commission’s roll for examination on seizure at its 33rd Ordinary Session
scheduled from 15 to 19 May 2003 in Niamey, Niger.
34
7. At the 33rd Session, the African Commission considered the Complaint, decided
to be seized of it and deferred consideration on its admissibility to the 34th
Ordinary Session of the Commission.
8. The Secretariat of the African Commission, by Note Verbale and letter dated
23rd June informed the parties of the decision on seizure taken by the African
Commission with regard to the Communication and requested them to convey,
as early as possible, their submissions on admissibility of the Communication.
9. The plaintiff transmitted by electronic mail its submission on the admissibility of
the Communication to the Secretariat on the 18th August 2003.
10.
The Secretariat of the African Commission, by letter dated 19th September
2003, acknowledged receipt of the plaintiff’s letters requesting some documents
mentioned but which were absent from the file.
11.
The Secretariat of the African Commission, by Note Verbale dated 24th
September 2003 transmitted the Complaint’s submission and attachments to the
Respondent State reminding it that the African Commission still awaited its
submission.
12.
The African Commission considered the case during its 34th Ordinary
Session and deferred consideration on its admissibility to the 35th Session.
During the meetings of the 34th Ordinary Session, the Respondent State
delivered its submission on the admissibility of the Communication to the
Secretariat of the African Commission.
13.
The Secretariat of the African Commission, by Note Verbale and letter
dated 15th December 2003 informed the Parties of developments on the file,
forwarding to the Complainant a copy of the Respondent State’s statement of
case.
14.
The Respondent State was also notified that its delegation to the 34th
Session had pledged to provide the African Commission with copies of the
Constitution and the Criminal procedure Code of Benin.
15. Following a reminder by Note Verbale dated 05 March 2004, the Ministry of
Foreign Affairs of the Republic of the Benin forwarded the above-mentioned
documents under cover of a letter dated 19th March 2004 to the Secretariat of the
African Commission.
16.
The Secretariat of the Commission, by letter dated 12 May 2004 also
reminded it to forward its response to the Complainant.
17. During the 35th Ordinary Session which was held in May/June 2004 in
Banjul, The Gambia, the African Commission considered the Complaint and
heard the delegate from the Respondent State.
18.
During the 36th Session, the Commission decided to defer its decision on
admissibility to its 3ih Ordinary Session and notified the State accordingly by
Note Verbale dated 20th December 2004.
19.
The Secretariat also notified the Complainant of the decision taken by
Commission at its 36th Session and reminded him, by letter dated 20/12/04, to
35
convey his conclusions on the admissibility of the Communication as early as
possible.
20.
On the 15th February 2005, the Complainant finally submitted his
memorandum on admissibility and a letter acknowledging receipt was sent to
him on the 22/03/05. The Complainant’s memo was also sent to the Respondent
State by Note Verbale dated 22nd March 2005.
Law:
Admissibility:
21.
The African Charter on Human and Peoples’ Rights provides under its
Article 56 that for Communications covered by the provisions of article 55, to be
considered, they should necessarily have exhausted all local remedies, if any
unless it is obvious that this procedure is unduly prolonged.
22. ln the case at hand, the numerous letters from the Secretariat requesting the
Complainant for evidence that the said requirement had been satisfied remained,
for a long time, without response. In fact, the Secretariat of the Commission lost
contact with the Complainant from October 2003.
23.
However, on the 15th February 2005, the Complainant finally reestablished contact with the Secretariat and conveyed his memorandum on
admissibility through electronic mail. In this memorandum the Complainant
contends that the State of Benin has violated two fundamental principles of
human rights, namely: the principle of equality of all citizens before the law and
in consequence before justice and the principle of the legality of the criminal act.
24.
The Complainant recalls that Articles 547,548 and 549 of the Benin
Criminal Code which form the basis of the procedure thus submitted before the
Supreme Court blatantly violate the Magistrates’ right to defense as they
eliminate the right to appeal in refusing to allow any appeal against the rulings
of the reporting judge acting as examining judge.
25.
The Complainant argues that to defend themselves against the abuse of
power and arbitrary rulings by the examining judge, the magistrates found no
other means than to bring the said Articles before the Constitutional Court
which, evidently, are contrary to the provisions of Article 26 of the Benin
Constitution which stipulates that “the State guarantees the equality of all
citizens before the law without discrimination ..of social position” and that of
Article 3 of the African Charter on Human and Peoples’ Rights which stipulates:
62
“1. All individuals enjoy total equality before the law;
2. All persons have right to equal protection by the law”
26.
The Complainant contends that the Complaint should be declared
admissible by the African Commission in conformity with Article 50 of the
African Charter.
27.
The Respondent State for its part, argues that the Complaint should be
declared inadmissible since the matter at issue is still pending before the Courts
in Benin and if need be, the concerned parties shall have the possibility of
appealing after the Court of Appeal’s ruling to which the Supreme Court’s
judicial chamber had referred the case in April 2003.
36
28.
This argument, posited by the Respondent State in its statement of case of
the 13/11/2003, was reaffirmed by its delegate at the hearing granted by the
African Commission during its 35th Ordinary Session (May/June 2004).
29.
Whilst the Respondent State contends that the Complaint is still pending
before the local Courts, the Complainant has not answered the fundamental
question which is whether local remedies have been exhausted in this particular
case.
30.
Since the Complainant has not proven, contrary to the claims of the
Respondent State, that the case has been settled by the Benin Courts and that
local remedies have been exhausted, the African Commission is compelled to
accept the position of the Respondent State which contends that the case is still
pending before the local Courts.
31. Whereas the established jurisprudence of the African Commission, which is
in conformity with the provisions of Article 56 (5) of the African Charter,
requires that the Communications governed by Article 55 of the said Charter can
only be examined after local remedies, if they exist, are exhausted, “unless it is
clear to the Commission that the recourse to these remedies is unduly
prolonged”.
32.
Such a position which is also contained in the established precedents of
other human rights institutions is based on the principle that the Respondent
State should first of all have the means of rectifying, through its own means and
within the framework of its own national legal system, the alleged violation by
future Complainants.
33. On these grounds, the African Commission declares the Communication
inadmissible for non exhaustion of all local remedies.
Communication 273/2003: Centre for Advancement of Democracy,
Social Justice, Conflict Resolution and Human Welfare/Nigeria
Rapporteur:
33rd Ordinary Session: Commissioner Jainaba Johm
34th Ordinary Session: Commissioner Jainaba Johm
35th Ordinary Session: Commissioner Jainaba Johm
36th Ordinary Session: Commissioner Jainaba Johm
37th Ordinary Session: Commissioner Jainaba Johm
Summary of facts:
1. On 17 March 2003, the Secretariat of the African Commission on Human and
Peoples’ Rights (the African Commission) received a communication from the
Centre for Advancement of Democracy, Social Justice, Conflict Resolution and
Human Welfare, an NGO based in Nigeria, relative to Article 55 of the African
Charter on Human and Peoples’ Rights (the African Charter).
2. The Centre for Advancement of Democracy, Social Justice, Conflict Resolution
and Human Welfare submitted the communication for and on behalf of Mr.
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Abuoma Excellence Emmanuel, 30 years old and Member of the Movement for the
Actualisation of the Sovereign State of Biafra (MASSOB).
3. The communication was submitted against Nigeria (a State party17 to the African
Charter). The communication alleged that in December 2000, the Nigerian Police
Force (NPF) arrested Mr. Abuoma Excellence Emmanuel during a raid at the
MASSOS Headquarters at Okigwe, Imo-State, Nigeria.
4. The communication further alleged that since the arrest of Mr. Abuoma Excellence
Emmanuel (more than two years now), no charges had been brought against him
and attempts to have him released on bail had failed.
The complaint:
5. The Centre for Advancement of Democracy, Social Justice, Conflict Resolution
and Human Welfare contends that the above-described facts constitute a violation
by Nigeria of Articles 2, 3, 4, 5, 6, 7, 8, 10 and 20 (1) of the African Charter on
Human and Peoples’ Rights and therefore, prays that the African Commission
addresses the violations.
(Nigeria ratified the African Charter on 22/06/1983).
The Procedure:
6. By a letter referenced ACHPR/COMM/274/2003 and dated 17 April 2003, the
Secretariat of the African Commission acknowledged receipt of the communication
to the author (Centre for Advancement of Democracy, Social Justice, Conflict
Resolution and Human Welfare) and indicated that the communication would be
considered on seizure at the 33rd Ordinary Session of the Commission scheduled for
the 15th to 29th May 2003 in Niamey, Niger.
7. During its 33rd Session held from the 15th to 29th May 2003, in Niamey, Niger, the
African Commission considered the communication and decided to be seized
thereof.
8. By a Note Verbale referenced ACHPR/COMM/273/2002 and dated 12 June 2003,
the Secretariat of the African Commission notified the republic of Nigeria of the
decision on seizure and requested it to furnish the Commission with its arguments
on the admissibility on the case within three months from the date of notification
for possible consideration during its 34th Ordinary Session.
9. By a letter referenced ACHPR/COMM/273/2002 and dated 12 June 2003, the
Secretariat of the Commission also notified the Complainant of the decision on
seizure and requested for arguments on admissibility within three months from the
date of notification for possible consideration during its 34th Ordinary Session
10. Both parties to the Communication neither responded to the notifications nor
submitted arguments on admissibility. During its 34th Ordinary Session held in
November 2004 in Banjul, the Gambia, the African Commission, requested the
Secretariat to give the parties more time to submit their submissions.
11. The Secretariat of the African Commission tried to contact the Complainant by
telephone and by fax for more information, but in vain, since the contact details
provided by the latter at the time of depositing the communication, were invalid.
12.0n the 2 December 2003, the Secretariat of the Commission sent by fax a Note
Verbale referenced (ACHPR/COMM 273/2002/RK) to the Respondent State
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through its Embassy in Banjul, informing it that the African Commission awaited
its comments on the admissibility of the complaint, attaching a new copy of the
communication to the Note for ease of reference.
13. The Secretariat also sent a letter referenced ACHPR/COMM 273/2002 by
electronic mail and by post on the 3rd December 2003 reminding the complainant to
submit his arguments on admissibility. The Secretariat further informed the
Complainant of the difficulties encountered in contacting him and requested
information as to whether the victim was still detained and about the conditions of
his detention.
14. On 19 April 2004, the Secretariat of the Commission sent a letter to the
complainant again by post informing him that since it had not received any
information despite constant reminders, African Commission had decided to postpone
the case for consideration to its 36th Session. The letter further pointed out that if by
the end July 2004 it did not receive any information enabling it to rule on the
admissibility of the complaint it would be compelled to strike the complaint from its
register for lack of interest by the Complainant.
15. On 20 April 2004, a copy of the letter to the complainant was sent to the
Complainant through the Nigerian National Human Rights Commission, which,
some weeks later, informed the Secretariat of its inability to trace the Complainant
at the indicated address.
16. On 25 May 2004, the Secretariat of the African Commission received an electronic
message from the Complainant, through a one Mr. Gerald Abonyi, informing the
African Commission that the organization was withdrawing. its Complaint. He
specified that his organization would, from henceforth, stop all correspondence on the
subject.
17. At its 35th Ordinary Session, which was held in May/June 2004 in Banjul, The
Gambia, the African Commission realized that the request for withdrawal of the
Complaint came from the email address of the Complainant but not from the usual
correspondent in this case (Mr. Ekene Chukwu, Secretary General of CADSJCRHW).
The Commission requested the Secretariat to send him a note for confirmation on
whether the request for withdrawal was genuine.
18. On the 21/06/2004, the Secretariat sent a letter requesting clarifications and
confirmation of the request for withdrawal of the Complaint from the CADSJCRHW.
However, no response was received from the Complainant.
19. During its 36th Ordinary Session held in Dakar, Senegal from 22 November to 7
December 2004 the African Commission decided to give the complainant one last chance
to confirm withdrawal of his complaint.
20. The Secretariat vide a letter dated 23 December 2004 requested-the complainant to
confirm withdrawal of the complaint. However to date no response to the request has
been received by the Secretariat.
The Law:
Admissibility:
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21. Article 56 of the African Charter on Human and Peoples’ Rights provides that
communications referred to in Article 55, in order for them to be considered, must
necessarily be sent to the African Commission after exhaustion of local remedies if any,
unless it is obvious that this procedure is unduly prolonged.
22.
It is worth noting in the case under study, that from the date the Complaint was
submitted to the Secretariat of the African Commission (17 March 2003) and in spite
of several letters sent to request the Complainant and the Respondent State to submit
on admissibility, there were no responses.
23.
The Complainant in May 2004 requested the withdrawal of the complaint via
email and again despite various efforts to get a written confirmation of the withdrawal
the same was not forthcoming to date.
24. Consequently, the African Commission decides to close the file for lack of further
interest in the communication by the complainant.
Adopted at the 37th Ordinary Session of the African Commission on Human and
Peoples’ Rights, held from 27th April to 11th May 2005 in Banjul, The Gambia.
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