242/01 : Interights, Institute for Human Rights and Development in
Africa, and Association mauritanienne des droits de l'Homme /
Mauritania
Summary of Facts
1. The complaint was submitted by INTERIGHTS, Institute for Human Rights and Development in
Africa, and Association mauritanienne des droits de l’Homme (Mauritanian Human Rights
Association), on behalf of Mr Ahmed Ould Daddah, Secretary General of Union des forces
démocratiques-Ere nouvelle (UFD/EN, Union of Democratic Forces-New Era), a Mauritanian political
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party, which was established on 2 October 1991.
2. The Complainants, mandated by Mr Ahmed Ould Daddah, allege the following facts. By Decree
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No. 2000/116.PM/MIPT, dated 28 October 2000, Union des forces démocratiques/Ere
nouvelle (UFD/EN), the main opposition party in Mauritania, led by Mr Ahmed Ould Daddah was
dissolved by the Prime Minister of the Islamic Republic of Mauritania, Mr Cheick El Avia Mohamed
Khouna.
3. This measure, taken pursuant to Mauritanian law, (in particular Article 11 and Article 18 of the
Mauritanian Constitution, and Ordinance No.91.024 of 25 July 1991 which deals with political parties in
Articles 4, 25 and 26), was imposed, according to this senior official, following a series of actions and
undertakings committed by the leaders of this political organisation, and which:
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were damaging to the good image and interests of the country;
incited Mauritanians to violence and intolerance; and
led to demonstrations which compromised public order, peace and security.
4. On account of this, all the movable and immovable assets of the said political organisation
were, ipso jure , seized.
5. A few weeks after the proscription of UFD/EN, the Mauritanian authorities arrested several leaders
of the party who had participated in a demonstration against the measure, which they considered
illegal and illegitimate, for breach of public order.
6. The Secretary General of the party, Mr Ould Daddah, on arrival from a journey abroad, was
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himself arrested on 9 December 2000, at Nouakchott airport, and was only released a few days later.
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7. On 25 December 2000, the leaders of UFD/EN filed a motion for the repeal of the government’s
measure before the Administrative Chamber of the Supreme Court, citing:
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Lack of a just cause for the dissolution Decree;
The unjustified nature of the punishment of a political party due to the alleged machinations of
its leaders;
Lack of competence on the part of the authority by whom the Decree was signed; and
Absence of any deliberation by the Council of Ministers on the matter of the dissolution, as
foreseen by law.
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8. On 14 January 2001, the Administrative Chamber of the Supreme Court, ruling as court of
original and final jurisdiction, delivered its verdict (No. 01/2001 UFD/EN vs Prime Minister and Minister
of Interior, Post and Telecommunications of 14 January 2001), throwing out Mr Ahmed Ould Daddah’s
appeal, without really giving the grounds, stating that the claim lacked merit.
9. Since then, the principal leaders and activists of UFD/EN, who did not have the recourse of
appealing the Supreme Court’s judgement before any other Mauritanian court, have been subjected to
a veritable witch-hunt, throughout the Mauritanian territory, and have suffered acts of intimidation and
harassment by the security services.
10. They have also been excluded from participating, under the banner of their political organisation,
in the various elections that have been organised in the country.
Complaint
11. The Complainant claims that there has been a violation of the following provisions of the African
Charter on Human and Peoples’ Rights: Articles 1, 2, 7, 9(2), 10(1), 13 and 14.
Procedure
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12. The communication was submitted on the 25 April 2001, during the 29 Ordinary Session, held
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in Tripoli from 23 April to 7 May 2001.
13. The Secretariat acknowledged receipt of the communication on 2
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May 2001.
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14. At the 30 Ordinary Session, the African Commission considered the communication and
decided to be seized of the case. Consideration of its merits was deferred until the next session and
the Commission asked that the parties be informed accordingly.
15. The Secretariat informed the Respondent State of the decision of the Commission in its Note
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Verbale of 15 November 2001 and the Complainant was informed of the same decision in an official
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letter dated 19 November 2001.
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16. On 22 January 2002, the Secretariat received the observations on the admissibility and merits
of the case from the Respondent State. Those observations were forwarded to the Complainant.
17. The following documents in Arabic were attached to the observations of the Respondent State:
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Petition dated 27/01/2001 of Mr Mohamed Oula Gowj requesting the review of the decision of
the Supreme Court No. 01/2002 of 14/01/2001;
Letter of the Assistant Secretary General of UDF/EN dated 24/01/2001;
Letter of Mr Mohamed O. Gowj cancelling his petition of 27/01/2001;
Statement of no appeal issued by the Registrar of the Supreme Court dated 12/01/2001
Communiqué of UDF/EN to development partners;
Statement of general policy of UDF/EN.
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18. On 25 March 2002, the Complainants, comprising of INTERIGHTS, l’Association mauritanienne
des droits de l’Hommeand l'Institut pour les droits humains et le développement , presented the
Secretariat of the Commission with their written observations on the admissibility of the complaint, in
reply to the arguments on admissibility of the complaint as advanced by the Respondent State.
19. At its 31st Session, held from 2-16 May 2002 in Pretoria, South Africa, the African Commission
declared the communication admissible and called on both parties to submit their observations on the
merits of the case without undue delay.
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20. By letter dated 29 May 2002, the Secretariat of the Commission informed both of the concerned
parties of the Commission’s decision.
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21. On 7 August 2002, the Secretariat of the Commission acknowledged receipt of the written
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observations on the merits of the communication, received on 5 August 2002 from the Complainant.
A copy of these observations was forwarded to the Respondent State.
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22. At its 33 Ordinary Session held in Niamey, Niger, the African Commission listened to the oral
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remarks of both parties and decided to defer its decision on the merits to the 34 Ordinary Session.
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The parties concerned were notified of the decision on 4 July 2003.
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23. At its 35 Ordinary Session held from 21st May to 4 June 2004 in Banjul, The Gambia, the
African Commission considered this communication and decided to deliver its decision on the merits.
Law
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23. At its 35 Ordinary Session held from 21st May to 4 June 2004 in Banjul, The Gambia, the African
Commission considered this communication and decided to deliver its decision on the merits.
Admissibility
24. Article 56 of the African Charter on Human and Peoples’ Rights sets out seven conditions, which,
under normal circumstances, must be fulfilled for a communication to be admissible. Out of the seven
conditions, the government raised the issue regarding the exhaustion of local remedies as provided
under Article 56.5 of the Charter, which stipulates :“Communications… to be considered, are sent after exhausting local remedies, if any unless it is
obvious this procedure is unduly prolonged”.
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25. In its submission of 7 January 2002, the Respondent State requested that the African
Commission: “…enquire whether the Complainants had duly seized the African Commission...”. The
Respondent State also informed the African Commission that the rulings of the Administrative
Chamber of the Supreme Court could not be appealed against. It however went on to say: “appeal is
not the only legal remedy in Mauritanian law. The rulings made by this jurisdiction an often required for
revision on the basis of Article 197 and in accordance with the Civil Commercial and Administrative
Procedure Code (CPCCA). Practically, the Respondent State affirmed that applications for revision
have recently culminated into rulings of withdrawal by the same Chamber.
26. To support its line of reasoning, the Respondent State indicated that one the lawyers of UDF/EN,
Lawyer Mohamed Ould Gowf made a plea in the same vein on 27/01/2001 but withdrew it the same
day. Based on the above facts and on Article 56.5) of the African Charter, the Respondent State
requested that the communication be declared inadmissible due to the fact that the local remedies
were not exhausted.
27. However, the fact remains that the generally accepted meaning of local remedies, which must be
exhausted prior to any communication/complaint procedure before the African Commission, are the
ordinary remedies of common law that exist in jurisdictions and normally accessible to people seeking
justice.
28. However, it is a known fact that the revision procedure is an extraordinary legal remedy that
exists only if a number of conditions specifically stipulated by the law are fulfilled. In this regard,
Articles 197 and 198 CPCCA of the Republic of Mauritania do not allow access to revision unless it is
proven that the legal decision taken was wrong or due to the fact that the other party is in possession
of decisive evidence.
29. Furthermore, the fact that one of the lawyers of the Complainants who was probably not
empowered to do so, had indeed applied for a revision and withdrew it the same day, was a clear
indication of the Complainant’s intention not to resort to such a remedy. In fact, this does not affect at
all the exceptionally legal nature of such a legal remedy as outlined above.
30. Consequently, it is a fact that the party that seized the African Commission had indeed
exhausted, with regard to this particular case, the entire local remedies of common law that exist and
can be resorted to before Mauritanian jurisdictions.
Merits
30. Consequently, it is a fact that the party that seized the African Commission had indeed exhausted, with regard
to this particular case, the entire local remedies of common law that exist and can be resorted to before
Mauritanian jurisdictions.
31. In view of the above-stated reasons, the African Commission declared the communication
admissible.
On the principles governing the right to a fair trial
31. In view of the above-stated reasons, the African Commission declared the communication admissible.
32. The communication relative to the dissolution of the Mauritanian political party UFD/Ere
nouvelle in accordance with established and legally confirmed regulations is attacked by the
Complainant before the African Commission for being in violation of Articles
1, 2, 7, 9(2), 10.1, 13 and 14 of the African Charter, on the basis of the following points:
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The non-conformity of the legal ruling ratifying the dissolution on the principles governing the
right to a fair hearing;
The criticism levelled against the legality of the decision for dissolution in accordance with
established regulations and illegal and unjustified lapses blamed on the political
party UFD/Ere nouvelle .
33. The Complainant contends that the Mauritanian Courts are in violation of the provisions of Article
7.1.a of the African Charter which stipulates:
“Every individual shall have the right to have his cause heard. This comprises the right to an appeal to
competent national organs against acts violating his fundamental rights as recognised and guaranteed
by conventions, laws, regulations and customs in force.”/
34. The Complainant alleges that the dissolution of the main Mauritanian opposition party UFD/EN, the
seizing of its assets and the conditions in which the measure has been confirmed by the highest court
in the land have violated the relevant provisions of the African Charter and other Conventions to which
the country is signatory.
35. The Complainant contends that these violations are both procedural and substantial. Procedural,
because the basic rules and principles of a fair hearing were not respected during the hearing.
Substantial, because the dissolution of the UFD/EN party violated the right of association and freedom
of expression of the members and leaders of this political party and violated the principles of
democracy outlined in the African Charter.
36. The Complainant alleges that the procedure before the Administrative Chamber of the Supreme
Court did not respect the principles relative to the right to a fair hearing in particular that which is
relative to two-tier proceedings. The Complainant also alleges that from the investigation of the case
up to the public hearing which decided the destiny of the UFD/EN, the principles of inter parties had
not been respected and that the final ruling by the Judge did not contain pertinent legal arguments
justifying the dissolution of the said party.
37. The Respondent State emphasises that the judicial examples and arguments and all the
documentation on the right to a fair hearing raised by the Complainant are only applicable in a penal
case. The Respondent State imagines evidently that the accusations levelled against the UFD/EN may
well have a penal qualification according to the law governing the activities of political parties, but this
is not enough to give this case a penal character since no penal lawsuit had been brought against the
leaders of the said Party.
38. The Respondent State indicates that concerning the respect for the principle of two-tier
proceedings, which consists of bringing the entire dossier of the merits of a case before a differently
composed higher legal authority for examination, it is established that it concerns a broad based rule
which can be widely applied, notably in penal cases. This principle forms the basis of proper
administration of justice and allows the well-intentioned applicant to obtain the guarantee of a correct
application of the law.
39. The fact remains however that, as stipulated by Article 7.1.a of the African Charter, every
individual has the right to have his cause heard, which includes: “... The right to appeal to competent
national organs…”
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40. In this particular case, and in conformity with Article 26 of the Decree 91-024 of the 25 July 1991
governing the activities of political parties, the Respondent State underscores the fact that the
competent legal authority to examine the legality and validity of a Decree passed by the Prime Minister
of the Islamic Republic of Mauritania is the Administrative Chamber of the Supreme Court, according
to the procedure in force in this country. However, the Supreme Court is the highest authority in the
Mauritanian legal system and in the matter of appeal against decisions taken by the administrative
authorities; the existing procedure requires that annulment takes place only as a first and last resort.
41. Finally, it means that the Mauritanian legislator, like other similar legislations [sic], has given
exclusive authority to the highest legal body in the country due to the legal and political importance of
the matter relative to the dissolution of a political party. It is before this high authority that the entire
Mauritanian legislative system is built and it is here that the uniform rules for applying the law in this
country, in all fields, are established.
42. Concerning the respect for the principle of judgement after due hearing, the Respondent State
maintains that the Complainant never mentioned in his written submissions, any opposition to or
complaint against the holding of audiences, or of the quality of the representation and the defense of
the political party which was dissolved before the Mauritanian legal authorities.
43. After having studied the comments made by the Complainant and the Respondent State, it is well
established that the representatives of the UFD/Ere nouvelle received, in good time, all the
notifications of the actions and documents relating to this litigation, and had had access to the entire
dossier of the case to study all the points and make the relevant criticisms both in writing and by oral
advocacy before the competent legal authority.
44. However, regarding this particular case, the parties before the Mauritanian administrative court
are, on the one hand, the Minister of the Interior, representing the government and, on the other hand,
the political party UFD/Ere nouvelle. As for the Government Commissioner, he carries out the
functions of the representative of the Department of Public Prosecution i.e. representative of the public
interest charged to ensure, on behalf of society, the sound application of the laws. In this regard, he
can resort to methods of public nature that might not have been resorted to by the parties which might
have escaped the vigilance of the reporting judge.
45. Thus, the criticism levelled against the Government Commissioner, who is the representative of
the Department of Public Prosecution, before the Administrative Division [sic] of the Supreme Court
because of its so called “collusion” with the ruling, seemed to lack merit due to the absence of hard
facts and concrete material evidence to back such a value judgment.
46. In seeking to know if the decision of the Mauritanian highest court had been sufficiently justified
or not, the report on the ruling by the Administrative Chamber of the Mauritanian Supreme Court
amply covers all the arguments raised by the Complainant’s defense, as much in their written
submissions as in their oral address before the audience and provides responses based on the
provisions of the Mauritanian laws. From that moment it is not possible to support this grievance with
regard to the aforementioned decision.
47. In this context, the African Commission does not admit the violation of the provisions of Article
7.1.a of the African Charter for it considers that Mr Ahmed Ould Daddah’s case has been adequately
heard by the Administrative Chamber [of the Supreme Court].
48. Article 9.2 of the African Charter stipulates: “every individual shall have the right to express and
disseminate his opinions within the law” . Article 10.1 of the African Charter stipulates: « every
individual shall have the right to free association provided that he abides by the law”; and Article
13.1 of the Charter indicates: “every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in accordance with the
provisions of the law”.
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49. The Complainant alleges that by a Decree No. 2000/116/PM/MITP dated 28 October 2000 and
signed by the Prime Minister, the Mauritanian Government dissolved the [Union de forces
démocratiques/Ere nouvelle (UFD/EN), the main opposition party in the country. The same day, Mr
Ahmed Ould Daddah, Secretary General of the said political party received, by letter (No. 58/2000)
from the Minister of the Interior, Posts and Telecommunications of even date, notification of the
measure that the political group’s buildings and assets have been impounded.
50. According to the Decree governing the dissolution, the measure had been taken in application of
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the provisions of the Constitution of the 20 July 1991 Article 11 and Article18 and the Decree No. 91
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024 of the 25 July 1991 (Articles 4, 25 and 26) which formally prohibited political parties from
destroying the country’s important image and interests, from inciting intolerance and violence and from
organising demonstrations that are likely to compromise public order, peace and security.
51. The Complainant contends that the acts by the leaders of the political parties mentioned in
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Articles 4 & 5 of the Decree No. 91 – 024 of 25 July 1991 relative to political parties and liable to lead
to the dissolution of their organisation (inciting intolerance and violence, organising demonstrations
likely to compromise public order, peace and security, setting up of military or paramilitary
organisations, armed militia or combat groups) are already considered by Articles 83 and others of the
Mauritanian Criminal Code as offences or punishable crimes.
52. The Complainant points out that the dissolution of the UFD/EN is justifiable by the inflammatory
nature of a certain number of documents and expressions attributed to its leaders. In other words, it is
the abuse of the freedom of expression by the leaders of this party which gave rise to its expulsion
from the Mauritanian political arena. The Complainant specifies that such assertions are unacceptable
in a State which is said to base its activities on the principles of democracy and on the principles of the
African Charter. Indeed, there had been, not only prejudice to the freedom of expression, to the right
of association and to the right of the leaders of the UFD/EN to participate in the management of public
affairs in Mauritania, but also to the fundamental rights of the said party which, through this measure,
has lost all its assets.
53. The Complainant indicates that the notions of the right of association and of the freedom of
expression are complementary in a democratic state, in the sense that the association or the political
party is, the means par excellence, for the freedom of expression. It is well known that political parties
contribute greatly to the political debate of democratic states, notably through elections which are
organised periodically to guarantee the freedom of choice of its leaders by the citizens.
54. In paying special attention to the terms used in the party’s declarations, in the statements of its
leaders and indeed to the context in which these had been published or delivered, the Complainant
voices his surprise to note that the authors of this measure were unaware that the activities for which
the UFD/EN was being blamed had taken place in the context of “training and the expression of the
political will of its members” and in the context of Mauritanians enjoying their right to be differently
informed about the political, economic and social situation of their country.
55. The Complainant alleges that the contentious statements and publications had been made and/or
distributed during a time when Mauritania was making pre-campaign preparations for the legislative
and local elections for the year 2001. In such a context, each party was endeavouring, with due
respect for democratic rules, to put its opponent in a position of weakness before the voters during the
electoral campaign.
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56. The Complainant exposes that it is for this reason that the statement of the 17 September 1998
had been drafted following the dissemination, by several reliable sources, of information relating to the
discovery of a case of misappropriation of public funds, particularly of the aid received from
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development partners, of financial chaos and of the mismanagement of public affairs .
57. According to the Complainant, the objective of this document was, among other things, to remind
Mauritania’s partners that the Mauritanian citizen, in view of the total silence of the authorities on this
issue “has the right and the duty to ask for explanations and to know what happened to the money
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obtained in his name and which should be refunded” , that a happy outcome of this crisis which is
threatening the existence of Mauritania, since more than 57% of the population lived below the poverty
threshold, could only be obtained through “responsible, dispassionate and constructive dialogue the
only means to realise consensual solutions to the major problems which exist”. The document also
insisted on the need for the country to have a pluralist Parliament resulting from transparent elections,
an independent judiciary, a really free press, the opening of the public media for opposition debates
and to give free access to airtime. And in conclusion, the authors of the statement affirmed that “the
UFD/EN, as a political force of major significance, whilst expressing its sincere gratitude to all of
Mauritania’s development partners for their large contributions to this country, and in expressing the
hope to see this assistance increased, invites them to avoid, as much as possible, easy solutions and
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complacent attitudes which is costing [sic] Mauritania enormously for the past several years”
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58. Concerning the statement of the 30 October 1999 made by the UFD/EN, the Complainant
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argues that it had been published at the end of the Party’s 2 Ordinary Congress which had brought
together some fifteen African Political Parties. The text, a report of the 3-day meeting of the Party, had
been divided in two sections, devoted respectively to the political, economic and social situation of the
nation and to the Party’s internal activities.
59. The Complainant claims that the first part of the document was a presentation of the major facts
of life in the nation which had been examined by the participants at the Congress and ideas and
solutions, outlined in the resolutions which had been advocated by the party as definitive solutions.
These were obviously problems which the Authorities did not wish and still do not wish to see exposed
to the public view, such as:
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the threats to national unity brought about by racist, slave-like, tribalistic and regionalistic
practices;
the maintenance of repressive texts which legalise the muzzling of the press, the violation of
individual and collective freedoms and the regular and shameless rigging of elections;
the economic bankruptcy resulting from the systematic looting of national resources and the
diverting of national aid by the ruling clique, giving rise to the aggravation of social inequality,
of unemployment, of impoverishment and the abandonment by the State of its essential
functions of regulation, health, education and security;
the diplomatic isolation of Mauritania from its natural arabo-african environment and its most
spectacular action which was the elevation of Israel’s diplomatic representation to the rank of
Ambassador.
60. The Complainant notes that in these two documents, there is no passage that contains an
insulting or outrageous word against the Authorities or advocating violence and/or calling on the
populations to rise against the leaders of the country. And in the two cases, the Party was acting as an
activist in the national political life and playing its natural and important role in drawing public attention
to the facts outlined by the information disseminated by independent organisations, and all of this with
due respect for the laws and regulations of the country, argues the Complainant.
61. The Complainant party recalls that in a democratic society, “the Authorities should tolerate
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criticism even where it can be considered as insulting or provocative” and one of the characteristics
of democracy is “to allow the proposal and the discussion of diverse political projects even those which
challenge the State’s current mode of organising, so long as these do not cause prejudice to
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democracy itself” , this is what the Mauritanian Constitution requires in its Article 11 .
62. As for the incriminating speech, the Complainant continues, it had been delivered by Mr Ahmed
Ould Daddah in his capacity as Secretary General of the UFD/EN during one of the rare occasions
when the party had obtained approval to hold a rally. The essence of his speech related, that day, to
the respect which should be accorded by the Mauritanian Authorities to the main opposition party of
the country as it’s due. In his view, the party should no longer accept the harassment to which it was
being subjected and if it should continue the changes being fervently called for by its militants would
not come about in a peaceful manner for the UFD/EN would no longer leave the initiative to the
authorities. He ended is speech by calling on all the members of the party to prepare for battle in the
coming elections. The Complainant alleges that nowhere in the speech was there use of a word to
make people think that his party was, from henceforth, going to resort to violence. That was all the
more important considering that at the end of the meeting the thousands of militants dispersed without
any incident in spite of an impressive police presence.
63. The Respondent State alleges that political pluralism in the Islamic Republic of Mauritania has its
political bases in Article 11 and Article 18 of the 1991 Constitution and its legal basis in Articles 4, 25
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and 26 of the Law of 25 July 1991 relative to political parties.
64. In this context, Article 11 of the Constitution of the Islamic Republic of Mauritania
stipulates: “Political parties work towards the formation and the expression of political will. They form
and exercise their activities freely on condition that they respect the democratic principles and do not
jeopardise, either by object or by action, national sovereignty, territorial integrity and the unity of the
nation and of the Republic. The law fixes the conditions for the creation, operation and dissolution of
political parties.”
65. Article 18 of the Constitution of the Islamic Republic of Mauritania puts down all offences
committed, which are prejudicial to the security of the State.
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66. Article 4 of the Decree No. 91-024 of 25 July 1991 relative to Political Parties reads as follows:
[quote]“Political parties are prohibited all propaganda against the principles of Islam. Islam cannot be
the exclusive prerogative of any political party. In their statutes, programmes, in their speeches and in
their political activities, political parties are prohibited from:
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Any form of incitement to intolerance and to violence;
Organisation of demonstrations likely to compromise public order, peace and security;
Any transformation aimed at establishing military or paramilitary organisations or armed militia
or combat groups;
Any propaganda with the objective of causing prejudice to territorial integrity or to the unity of
the nation”
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67. Article 25 of the Decree No. 91-024 of 25 July 1991 relative to political parties makes it possible
for a political party to be dissolved if the latter violates the rules, which govern it.
68. The Respondent States argues that it is on the basis of these two texts that the political
party UFD/Ere nouvelle received its legal sanctioning and was able to carry out its activities normally.
These two texts, one of which has a constitutional value and the other an organic value, fix the
framework for the activities of political parties as organs for participation in the democratisation of
public life and determine the modalities of the sanctions to be imposed in case of transgression of the
constitutional requirements and the legal rules governing the activities of political parties in the Islamic
Republic of Mauritania.
69. Pertaining to the dissolution of the UFD/EN, the Respondent State alleges that the lack of
direction and extremism of this Party was such that the dissolution was not only justified but also
necessary in view of the danger that it represented for the State and for social peace.
70. The Respondent State insists that the UFD/EN, because of its radicalism, constituted a grave
threat to public order and seriously threatened the rules of the democratic game. In this context it was
quite legitimate for the State, in order to avoid a drifting to unforeseeable consequences, to take all the
requisite measures to safeguard the general interest of the country and to preserve the social fabric as
well as to maintain public order and security in a democratic society, and this in conformity with the
relevant provisions of the Decree for the creation and dissolution of political parties.
71. The authorities clearly defined the legal causes and bases of this measure. On the causes
relating to the dissolution, the Respondent State noted as follows:
1. The activities carried out both inside and outside the country to discredit and destroy the
interests of Mauritania. In this regard, the Respondent State cites the communiqué by the
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UFD/EN dated 17 September 1998 addressed to Mauritania’s development partners with the
objective of convincing the donor countries to arrest all economic assistance to Mauritania and
the orchestrated disinformation campaign against the country relating to the dumping in the
national territory of nuclear waste from Israel;
2. The fact that the UFD/EN had advocated violence as an instrument of its political activities. It
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also mentioned the Party’s General Political Statement of the 30 October 1999 certain
passages of which, notably those speaking of the marginalisation and ignorance of the rights
of black-Africans, are seen by the Respondent as trying to re-ignite ethnic and racial
upheavals in a pluri-ethnic country, disturbances against public law and order blamed on this
party and declarations attributed to certain leaders of this party who are reported to have said
that they would no longer organise peaceful demonstrations.
72. With regard to the legality of the measure, the Respondent State affirms that this legality is based
in Article 11 of the Constitution which governs the principle of the freedom to set up political parties, on
condition that they respect the democratic principles and do not cause prejudice either by objective or
by their actions to national sovereignty, to the territorial integrity, to the unity of the Nation of the
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Republic and Articles 4, 25 and 26 of Decree 91-024 of the 25 July 1991 relative to Political Parties
which prohibits any action that may incite intolerance and violence and any effort to organise
demonstrations that may compromise public order, peace and security.
73. The Respondent State reiterates that factual evidence existed whereby the UFD/EN was
advocating violence, was carrying out subversive activities which were prejudicial to national unity,
was training dangerous hooligans who were likely to jeopardise the lives and property of peaceful
citizens.
74. This factual evidence, continues the Respondent State, fully justifies the regulatory measure
taken against the UFD/EN decided by the Council of Ministers since the threat against order, peace
and security was evident.
75. The Respondent State advances several arguments against the authors of the communication to
justify the basis of the decision to dissolve the UFD/EN, in particular:
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•
The fact that the activities of and positions taken by the leaders of this party constituted a
threat to the fundamental interests and image of the country;
The fact that certain actions and declarations by the party appear to be meant to incite
Mauritanians to intolerance and violence;
The fact that some of its members were involved in activities geared towards pushing people
to disobedience and disorder thereby endangering public peace and security.
76. According to the interpretation given by the African Commission to freedom of expression and to
the right of association as defined in the African Charter, States have the right to regulate, through
their national legislation, the exercise of these two rights. Articles 9(2), 10(1), 13(1) of the African
Charter all specifically refer to the need to respect the provisions of national legislation in the
implementation and enjoyment of such rights. In this particular case, the relevant provisions of
Mauritanian laws that had been applied are Article 11 and Article 18 of the Constitution and Articles 4,
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25 and 26 of the Decree 91-024 of the 25 July 1991 relative to political parties.
77. However these regulations should be compatible with the obligations of States as outlined in the
6
African Charter . In the specific case of the freedom of expression that the African Commission
considers as “a fundamental human right, essential for the development of the individual, for his
7
8
political awareness and his participation in public affairs” . A recent decision clearly delineated that
the right of States to restrain, through national legislation, the expression of opinions did not mean that
national legislation could push aside entirely the right to expression and the right to express one’s
opinion. This, in the Commission’s view, would make the protection of this right inoperable. To allow
national legislation to take precedence over the Charter would result in wiping out the importance and
impact of the rights and freedoms provided for under the Charter. International obligations should
always have precedence over national legislation, and any restriction of the rights guaranteed by the
Charter should be in conformity with the provisions of the latter.
78. For the African Commission the only legitimate reasons for restricting the rights and freedoms
contained in the Charter are those stipulated in 27(2), namely that the rights “shall be exercised with
9
due regard to the rights of others, collective security, morality and common interest” And even in this
case the restrictions should “be based on legitimate public interest and the inconvenience caused by
these restrictions should be strictly proportional and absolutely necessary for the benefits to be
10
realised”
79. Furthermore, the African Commission requires that for a restriction imposed by the legislators to
conform to the provisions of the African Charter, it should be done “with respect for the rights of others,
11
collective security and common interest” that it should be based “on a legitimate public interest
12
…and should be strictly proportional and absolutely necessary” to the sought after objective . And
more over, the law in question should be in conformity with the obligations to which the State has
13
14
subscribed in ratifying the African Charter and should not “render the right itself an illusion”
80. It is worthy of note that the freedom of expression and the right to association are closely linked
because the protection of opinions and the right to express them freely constitute one of the objectives
of the right of association. And this amalgamation of the two norms is even clearer in the case of
political parties, considering their essential role for the maintenance of pluralism and the proper
functioning of democracy. A political group should therefore not be hounded for the simple reason of
wanting to hold public debates, with due respect for democratic rules, on a certain number of issues of
national interest.
81. In this particular case it is obvious that the dissolution of the UFD/EN had the main objective of
preventing the party leaders from continuing to be responsible for actions for declarations or for the
adoption of positions which, according to the Mauritanian government, caused public disorder and
seriously threatened the credit, social cohesion and public order in the country.
82. Nonetheless, and without wanting to pre-empt the judgement of the Mauritanian authorities, it
appears to the African Commission that the said authorities had a whole gamut of sanctions which
they could have used without having to resort to the dissolution of this party. It would appear in fact
that that if the Respondent State wished to end the verbal “drifting” of the UFD/EN party and to avoid
the repetition by this same party of its behaviour prohibited by the law, the Respondent State could
have used a large number of measures enabling it, since the first escapade of this political party, to
contain this “grave threat to public order”.
83. The Decree No. 91-024 had in effect, made provision for other sanctions in order to deal
with “slips” of political parties. Furthermore, the African Commission finds that the dissolution of
UFD/EN was in conformity with the provisions of the Decree relating to the political parties.
84. The African Commission observes that the UFD/EN party transformed itself legally into UFD/EN
retaining its recognised representatives on the basis of its political statement and its programmes of
action. The African Commission also calls on all the Republican political forces in the Islamic Republic
of Mauritania to work, within the framework of the Constitution, towards the reinforcement of healthy
pluralist and democratic practice which would preserve social unity and public peace.
85. The African Commission notes that the Respondent State contends rightly that the attitudes or
declarations of the leaders of the dissolved party could indeed have violated the rights of individuals,
the collective security of the Mauritanians and the common interest, but the disputed dissolution
measure was “not strictly proportional” to the nature of the breaches and offences committed by the
UFD/EN.
Holding
For these reasons, the African Commission-:
Finds that the dissolution of UFD/Ere nouvelle political party by the Respondent State was not
proportional to the nature of the breaches and offences committed by the political party and is
therefore in violation of the provisions of Article 10.1, of the African Charter.
Footnotes
1. The Complainant refers particularly to the article which appeared in the French daily Le Monde, which is
generally well informed and which was [e]ntitled “Mauritania plagued by affairism [sic] and a return to
tribalism” and in which could be read the following “the word deprivation is not strong enough (to describe the
situation of the Mauritanian) and that to remain afloat the only solution available for the administration is to divert
for its own benefit, part of the monies given by the international community to finance development projects”.
10. Ibid , para. 69.
11. Cf. Communication 140/94 [sic] cited above, para. 41
12. Cf. Communication 140/94 [sic] cited above, para. 42.
13. Cf. Communication 147/95 and 149/96 Sir Dawda K. Jawara/The Gambia , para. 59
14. Cf. Communication 140/94 cited above, para. 42.
2. Cf. Declaration made for the attention of Mauritania’s development partners, page 2.
3. Cf. Declaration quoted above, page 2.
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4. Cf. Cr.EDH, Arrest of Ozgur Gundem c. Turkey of 16 March 2000, para. 60
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5. Cf. Cr.EDH, Arrest of Ybrahim Askoy c. Turkey of 10 January 2001, para. 78.
6. Cf. Resolution on the Right to Freedom of Association , para. 3
7. Communication 212/98 Amnesty c/Zambia para. 54.
8. Communication 105/93, 128/94, 130/94 and 152/96 Media Rights Agenda and Constitutional Rights Project
v/Nigeria para. 66
9. Ibid , para. 68.