ORGANISATION OF AFRICAN UNITY
ORGANISATION DE L’UNITE AFRICAINE
=================
P. O. Box 3243, Addis Ababa, ETHIOPIA Tel.: 51 77 00, Telex 21046; 513822 Fax: (251-1) 519321
E-mail: oau-ews@telecom.net.et
CONFERENCE OF HEADS OF
STATE AND GOVERNMENT
Thirty-seventh Ordinary Session
74th Session of the Council of Ministers
2ND – 12 July 2001
AHG/229(XXXVII)
ORIGINAL: ENGLISH
FOURTEENTH ANNUAL ACTIVITY REPORT OF
THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS
2000 - 2001
AHG/229(XXXVII)
ORIGINAL:ENGLISH
FOURTEENTH ANNUAL ACTIVITY REPORT OF THE AFRICAN
COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS 2000 - 2001
I.
ORGANISATION OF WORK
A.
Period covered by the Report
1. The 13th Annual Activity Report was adopted by the 36th Ordinary Session of the
Assembly of Heads of State and Government of the Organisation of African Unity
(OAU) meeting from 10th to 12th July 2000 in Lomé, Togo.
The Fourteenth Annual Activity Report covers the 28th and 29th Ordinary Sessions of the
Commission respectively held from 23rd October to 6th November 2000 in Cotonou,
Benin and from 23rd April to 7th May 2001 in Tripoli, Libya.
B.
Status of ratification
2. All OAU Member States are parties to the African Charter on Human and Peoples’
Rights.
C.
Sessions and Agenda
3. Since the adoption of the Thirteenth Annual Activity Report in July 2000, the
Commission has held two Ordinary Sessions as indicated in the paragraphs above.
The agenda for each of the sessions is contained in Annex I to this report.
D.
Composition and participation
4. The Commissioners whose names follow participated in the deliberations of the 28th
Ordinary Session:
-
Commissioner E.V.O. Dankwa,
Commissioner K. Rezag-Bara,
Commissioner A. Badawi El Sheikh
Commissioner Isaac Nguema
Commissioner N. Barney Pityana
Commissioner H. Ben Salem
Commissioner Florence Butegwa
Commissioner A. Raganayi Chigovera
Commissioner Vera M. Chirwa
2
Chairman
Vice Chairman
AHG/229(XXXVII)
ORIGINAL:ENGLISH
-
Commissioner Jainaba Johm
Commissioner Julienne Ondziel-Gnelenga was sick and could not attend the session.
5. Representatives from the following States Parties participated in the deliberations of the
28 th Ordinary Session and most of them made declarations: Algeria, Benin, Burkina Faso,
Burundi, Central Africa Republic, Congo Brazzaville, Democratic Republic of Congo,
Egypt, Eritrea, Ethiopia, Libya, Mauritania, Mozambique, Nigeria, Rwanda, Senegal,
South Africa, Sudan and Uganda.
6. The members of the Commission whose names follow participated in the deliberations of
the 29th ordinary session:
-
Commissioner E.V.O. Dankwa,
Commissioner K. Rezag-Bara,
Commissioner A. Badawi El Sheikh
Commissioner Isaac Nguema
Commissioner N. Barney Pityana
Commissioner H. Ben Salem
Commissioner J. Ondziel-Gnelenga
Commissioner A. Raganayi Chigovera
Commissioner Vera M. Chirwa
Commissioner Jainaba Johm
Chairman
Vice Chairman
Commissioner Florence Butegwa was absent with apology.
7. Representatives from the following States participated in the deliberations of the 29th
Ordinary Session and most of them made declarations: Algeria, Benin, Burundi, Burkina
Faso, Cameroon, Central Africa, Congo Brazzaville, Côte d’Ivoire, Democratic Republic
of Congo, Egypt, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Libya, Mali, Mauritania,
Mozambique, Namibia, Niger, Nigeria, Rwanda, Saharawi Arab Democratic Republic,
Senegal, South Africa, Sudan, Togo and Tunisia and Uganda.
8. A Number of National Human Rights Institutions and Non Governmental Organisations
(NGOs) also participated in the deliberations of the two Ordinary Sessions.
E. Adoption of the Activity Report
9. The Commission considered and adopted its Fourteenth Annual Activity Report at its
sitting of 6th May 2001.
II.
ACTIVITIES OF THE COMMISSION
A. Consideration of Periodic Reports of State Parties
10. In accordance with the provisions of Article 62 of the African Charter on Human and
Peoples’ Rights, each State Party undertakes to present every two years from the date of
3
AHG/229(XXXVII)
ORIGINAL:ENGLISH
entry into force of the Charter, a report on legislative and other measures taken with a
view to giving effect to the rights and freedoms guaranteed under the Charter.
11. It is within this framework that the Periodic Reports of Benin (combining all the overdue
reports) and the 1st Periodic Report of Egypt were considered during the 28th Ordinary
Session. The Commission was pleased with the quality of the reports and expressed its
appreciation to the representatives of Benin and Egypt for the efforts that their
Governments had employed in the field of promoting and protecting human rights.
12. During the 29th Ordinary Session, the Commission considered the initial report of
Congo-Brazzaville (combining all overdue reports), the second periodic report of Algeria
(combining all the overdue reports) and the second periodic reports of both Ghana and
Namibia. The Commission expressed its satisfaction with the quality of the reports and
the ensuing dialogue and encouraged the States to continue their efforts in fulfilling their
obligations under the Charter.
13. The status of submission of Initial and Periodic reports by State parties is contained in
Annex II of this report.
14. The Commission strongly appeals to those States Parties that have not yet submitted their
initial and periodic reports to do so as soon as possible and where possible compile all the
overdue reports into one report.
B. Promotional Activities
(a) Report of the Chairman of the Commission
15. In presenting his activity report, the Chairman of the Commission reported that he had
carried out the following activities in his capacity as the Chairman -:
-
-
Participated in the Session of the Inter-American Commission on Human in
Washington;
Undertook a working visit to the Secretariat of the African Commission in
September. During his stay in the Gambia, he held discussions with the Secretary
of State for Interior and Religious Affairs of The Gambia on issues relating to the
country's penal system. He also met the Secretary of State for Justice of the
Republic of the Gambia and other officials with whom he discussed the issue of
the construction of the Headquarters of the Secretariat of the African
Commission;
Undertook a Promotional Mission to Côte d’Ivoire where he had discussions with
the relevant State Authorities relating to the respect and observance of the
provisions of the African Charter within that country.
(b) Activities of other Members of the Commission
16. The Members of the Commission also presented reports on the inter-session activities
that they had undertaken in the promotion and/or protection of human rights. Such
4
AHG/229(XXXVII)
ORIGINAL:ENGLISH
activities included undertaking promotional missions to countries they had been assigned
and attending meetings, seminars and symposia.
(c) Seminars and Conferences
17. The Commission was represented in the OAU Statutory Meetings and organised in
collaboration with Article XIX, a Seminar on Freedom of Expression and the African Charter,
which was held from 22nd to 25th November 2000, in Johannesburg, South Africa. The
Commission was also represented in many other meetings relating to human rights
including -:
-
The Workshop on Multiculturalism in Africa, organised by the United Nations from
8 th -13 th January 2001, in Kidal, Mali.
The African Regional Preparatory Meeting to the World Conference Against
Racism, Xenophobia and Related Intolerance, held from 22nd- 24 th January 2001,
in Dakar, Senegal.
18. The Commission decided to organise the following seminars and conferences:
-
Contemporary Forms of Slavery in Africa;
The Right to Education and Development in Africa;
Seminar on the Settlement of Social and Ethnic Conflicts;
The Rights of Persons with Disabilities in Africa;
Economic, Social and Cultural Rights in Africa
Workshop on the Prevention of Torture;
The African Union and the African Charter on Human and Peoples’ Rights;
Refugees and Displaced Persons.
19. The Commission sought for the support of Member States, International Organisations
and NGOs in organising the above mentioned seminars and conferences and designated
Commissioners to co-ordinate their organisation.
C. Report of the Special Rapporteur on Extra-judiciary, Summary or Arbitrary Executions in
Africa
20. During the 29th Ordinary Session, there was no report presented as Commissioner Hatem
Ben Salem had resigned as Special Rapporteur on Extra-Judiciary, Summary or Arbitrary
Executions.
D. Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa
21. At the 28th Ordinary Session, the Chairman Prof. E.V.O. Dankwa and Special
Rapporteur on Prisons and Conditions of Detention in Africa, informed the Commission
that his mission report to Benin had been published. He indicated that he had
recommended that Government urgently address the problem of the health of the
prisoners and was pleased to learn that the Government had allocated funds to address
this problem. He informed the Commission that the report on his second visit to Mali
was translated into Arabic and that the report on Central African Republic will soon be
5
AHG/229(XXXVII)
ORIGINAL:ENGLISH
published. He also informed the Commission that he had received comments and
observations on his reports from the relevant authorities in the Gambia and
Mozambique.
22. Following a decision of the Commission that Members of the Bureau should not hold
positions as Special Rapporteurs, Commissioner E.V.O. Dankwa thereby resigned from
his position as a Special Rapporteur on Prisons and Conditions of Detention in Africa. At
the 28th Ordinary Session Commissioner Vera M. Chirwa was appointed to complete the
term of the outgoing Special Rapporteur on Prisons and Conditions of Detention in
Africa. During the 29th ordinary session Commissioner Chirwa presented a report on the
activities that she had undertaken which included a visit to the prisons in Mozambique.
E. Report of the Special Rapporteur on the Rights of Women in Africa
23. During the 28th ordinary session the Commission noted that the mandate of the Special
Rapporteur on the Rights of Women in Africa had come to an end. However, at the 29th
Session, the Commission decided to extend this mandate to October 2001.
24. At the 29th Ordinary Session, the Special Rapporteur on the Rights of Women in Africa,
Commissioner Julienne Ondziel-Gnelenga, reported on the process of the preparation
and adoption of the Draft Protocol to the African Charter on the Rights of Women. She
also informed the Commission that she had carried out the following activities -:
- Initiated, in collaboration with other partners, studies on Poverty amongst
Women in Francophone West and Central Africa and Violence Against Women.
- Undertook promotional mission on women’s rights in Chad, Côte d’Ivoire and
Nigeria.
F. Process of preparation of the draft Protocol to the African Charter on the Rights of
Women in Africa
25. The Special Rapporteur on the Rights of Women informed the Commission that in
accordance with her mandate, she had kept up to date with the arrangements being made
by the OAU General Secretariat to convene meetings of Inter-Governmental Experts to
examine the Draft Protocol. She stated that she had received information that two
Experts' meetings are planned to be held in September/October and December 2001
respectively. These meetings would be followed immediately by the meeting of Ministers
and Plenipotentiary, who will adopt the Draft prepared by the Experts.
G. Ratification of Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment African Court on Human and Peoples’ Rights
26. The Commission, at its 28th and 29th Sessions, deplored the delay in ratification of the
above mentioned Protocol. It noted that only Senegal, Burkina Faso, The Gambia, and
Mali had deposited their Instruments of ratification. Eleven (11) Instruments of
ratification are still required for the Protocol to come into force. The Commission, called
upon States Parties and the Human Rights Defenders’ Community to work together to
ensure quick ratification of this important Instrument.
6
AHG/229(XXXVII)
ORIGINAL:ENGLISH
H. Promotional Missions to State Parties
27. Following the events that took place in the Republic of Côte d’Ivoire during its
presidential elections of 2000, the African Commission at its 28th Ordinary Session
resolved to send a human rights promotional mission to the country comprising of the
Chairman, the Vice Chairman and the Member of the Commission responsible for that
country. The African Commission successfully undertook that mission from 2nd to 4th
April 2001.
28. The Commission also undertook promotional missions to the folowing States Parties-:
Botswana, Benin, Chad, Nigeria, Côte d’Ivoire and Saharawi Arab Democratic Republic.
The Commission will continue carrying out promotion and protection missions to States
Parties.
29. The distribution of State Parties among Commissioners for their promotion and
protection activities is contained in Annex III of the report.
I. Adoption of Resolutions
30. At its 28th and 29th Ordinary Sessions, the African Commission adopted eleven (11)
Resolutions on various issues relating to human and peoples’ rights. The list and texts of
these Resolutions are contained in Annex IV of this report.
J. Relations with observers
31. At its 29th Ordinary Session, the African Commission deliberated further on its cooperation with NGOs and the co-operation framework amongst the NGOs. The matter
remains on the Agenda of the Commission.
32. At its 28th and 29th Ordinary Sessions, the African Commission granted Affiliate Status to
the following National Human Rights Institutions:
-
Comité Sénégalais des Droits de l’Homme;
Commission Nationale des Droits de l’Homme et des Libertés Fondamentales du
Niger ;
National Commission for Democracy and Human Rights (Sierra Leone);
Commission Nationale des Droits de l’Homme du Tchad.
Altogether the African Commission has granted affiliate status to Seven (7) National
Human Rights Institutions.
33. The Commission reiterated its appeal to State parties to create National Human Rights
Institutions and strengthen the capacities of those already in existence.
34. At its 28th and 29th Ordinary Sessions, the Commission granted Observer Status
following NGOs:
7
to the
AHG/229(XXXVII)
ORIGINAL:ENGLISH
-
Aliancia Muçulmana de Angola (ALMUA);
Ligue Nationale des Droits de l’Homme du Cameroun;
Human Rights Network (HURINET-Uganda);
Arab Programme for Human Rights Activists;
Social Alert;
Association Béninoise d’Assistance à l’Enfant et à la Famille;
Volunteers for Prison Inmates;
Legal and Human Rights Centre;
Association pour la Promotion des Libertés Fondamentales;
Association des Femmes Juristes du Tchad;
Association Algérienne d’Alphabétisation;
ONG «l'œil d’Aujourd’hui »;
CI-AF Bénin;
Survival International;
Centre for Democracy and Development;
Centre Africa Obota;
Association Nigérienne pour la Défense des Droits de l’Homme;
Que Choisir Bénin;
CADDHOM absl;
Human Rights Institute of South Africa;
Académie de la Théorie des Droits de l’Homme.
This brings the total number of NGOs granted Observer Status with the African Commission to
two hundred and fifty eight (258) as at 7th May 2001.
K.
Tribute to Commissioner Isaac Nguema
35. The Commission was informed that Commissioner Isaac Nguema’s would be retiring at
the end of his term in October 2001.
36. In recognition of the services he rendered, in his capacity as member and Chairman of
the Commission since 1987, (13 years including 6 years as Chairman), the Commission
decided to confer upon him the unique title of “Chairman Emeritus of the African
Commission on Human and Peoples’ Rights”.
37. Representatives of States Parties and NGOs attending the 29th Ordinary Session joined
the Commission in paying tribute to Commissioner Isaac Nguema.
L.
Protection Activities
38. The African Commission considered twenty-two (22) Communications at its 28th
Ordinary Session and delivered decisions on the merits on six (6) communications.
39. At its 29th Ordinary Session, the Commission considered twenty-one (21)
Communications and delivered decisions on the merits on three (3).
The decisions on these communications are contained in Annex V of the report.
8
AHG/229(XXXVII)
ORIGINAL:ENGLISH
M. Administrative and Financial Matters
a) Administrative Matters
40. The Secretary to the African Commission presented a report on the financial and
administrative situation of the Secretariat. The Members of the Commission exchanged
views on the administrative situation of the Secretariat. The Commission commended the
excellent work done by the Secretariat and encouraged the latter to keep it up.
41. The Commission also deplored the precarious situation suffered by legal officers
recruited under extra budgetary subventions who, because of different sources of
funding, are paid different salaries for the same work done. Furthermore, the
Commission expressed its dissatisfaction at the fact that officers recruited under such
subventions usually have to leave the Secretariat at the end of the projects. The
Commission therefore loses the services of those officers who have undergone training
and are therefore experienced in the work of the Commission. The Commission
requested the Secretariat to increase its efforts in sensitising more donors on the urgent
need to ensure more stable and equal working conditions for staff paid under extrabudgetary projects.
b) Financial matters.
1. O.A.U Budget
42. Under Article 41 of the Charter, the General Secretariat of the OAU is responsible for
meeting the costs of the African Commission’s operations including provision of staff,
resources and services. The Commission expressed appreciation for the improvement of
its working conditions (such as extension of the duration of the Ordinary Sessions from
10 days to 15 days, the possibility of undertaking more promotion and protection
missions within Member States, publication of documents etc.) as a result of the
additional budgetary allocation by the OAU.
2. Extra-Budgetary Funds
43. In order to complement the limited resources allocated by the OAU, the Commission
had to solicit financial and material assistance from the following partners.
a) Assistance from the African Society of International and Comparative Law
44. With the assistance of the African Society of International and Comparative Law, the
Secretariat enjoys the services of two (2) Legal Officers for a period of one year.
Publication of the Review of the Commission is also done through technical assistance
from the Society, which has also assumed responsibility for its printing and distribution.
b) Assistance from the Danish Centre Human Rights
45. The working conditions of the Secretariat of the Commission have improved remarkably
thanks to the assistance of the Danish Centre for Human Rights, which has enabled the
9
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Secretariat to hire additional staff, produce documents, acquire computer equipment and
documents for the library. The Danish Centre for Human Rights is presently assisting the
Secretariat and the Commissioners in developing a three-year plan of activities and
mobilising resources for the implementation of these activities.
c) Assistance from SIDA
46. The Swedish Government granted the Commission a subvention of four million five
hundred thousand Swedish Kroners (SEK 4,500,000.00) for a period of three years.
SIDA is responsible for managing this subvention which covers the promotion and
protection activities of the Commission, particularly the on-site visits of the Members of
the Commission, publications, activities of the Special Rapporteur on the Rights of
Women and preparation of the Draft Protocol on the Rights of Women in Africa.
d) Assistance from the Government of the Netherlands
47. The Government of the Netherlands granted the Commission a subvention amounting to
nine hundred and sixty-five thousand, one hundred and seventy-five Netherlands
Guilders (NLG 965,175) aimed at strengthening the Information and Documentation
Centre as well as the Press and Information Section at the Secretariat of the Commission.
This subvention is granted for a period of three (3) years (2000-2002).
e) Assistance from the Irish Government
48. The Irish Government granted the Commission a Subvention amounting to thirty seven
thousand six hundred and seventy eight Irish Pounds (IR£ 37,678.00) to support the
activities of the Special Rapporteur on the Rights of Women in Africa.
f) Assistance from Friedrich Naumann Foundation
49. The Friedrich Naumann Foundation continues to mobilise resources for the Commission
especially with the European Union and other European partners.
g) International Commission of Jurists (ICJ)
50. The ICJ has continued its co-operation with the Commission. Within the framework of
this co-operation, it organised the 14th NGO Forum in Cotonou (Benin), before the 28th
Ordinary Session in preparation of their contributions to the work of the African
Commission.
h) Other partners
51. The Commission enjoys various forms of assistance from other African and Non-African
partners, which enables it to carry out some of its work of promoting and protection
human and peoples’ rights. The Commission intends to strengthen such co-operation and
collaboration.
10
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Contacts are being made with the Office of the United Nations High Commission for
Human Rights, the European Union, Great Britain and Italy, to conclude co-operation
and/or assistance agreements.
52. The African Commission expresses its profound gratitude to all the donors and other
partners whose financial, material and other contributions has enabled it to carry out its
mandate during this past period.
N. Adoption of the Report by the Assembly of Heads of State and Government of the OAU.
53. The Assembly of Heads of State and Government of the OAU, after due consideration,
adopted the present report by a decision in which it expressed its satisfaction at the
Report and authorised its publication.
11
AHG/229(XXXVII)
ORIGINAL:ENGLISH
LIST OF ANNEXES
Annex I
Agenda of the 28th Ordinary Session (23rd October to 6th November
2000, Cotonou, Benin)
Agenda of the 29th Ordinary Session (23rd April to 7th May 2001,
Tripoli, Libya)
Annex II
Status of Submission of State Periodic Reports to the African
Commission on Human and Peoples’ Rights (as at 30th March 2001)
Annex III
Geographical Distribution of State Parties among Commissioners
Annex IV
Resolutions adopted during the 28th and 29th Ordinary Sessions
Annex V
Decisions on Communications brought before the Commission
12
AHG/229(XXXVII)
ORIGINAL: ENGLISH
Annex I
Agenda of the Twenty-eighth Ordinary Session
(Cotonou, Benin, 23rd October to 6th November 2000)
Agenda of the Twenty-ninth Ordinary Session
(Tripoli, Libya, 23rd April to 7th May 2001)
18
AHG/229(XXXVII)
ORIGINAL: ENGLISH
African Commission on Human &
Peoples’ Rights
Commission Africaine des Droits
de l’Homme et des Peuples
Kairaba Avenue
P.O. Box 673
BANJUL, The Gambia
Tel.: (220) 392962
Fax: (220) 390764
Telex: 2346 OAU BJL GV
e-mail: achpr@achpr .gm
OAU – OUA
28th Ordinary Session
23rd October - 6th November 2000
Cotonou, Bénin
Distribution: General
AGENDA
DOC/OS (XXVIII)/178a
Original: FRENCH
ENGLISH
1. Opening Ceremony (public session).
2. Adoption of the Agenda (private session).
3. Organisation of work (private session).
4. Election of Vice-President (private session).
5. Designation of the Special Rapporteur on Prisons and Conditions of Detention in
Africa (private session).
6. Observers : (public session):
a. Statements by State Delegates and guests;
b. Co-operation between the Commission and the National Human Rights
Institutions;
c. Consideration of applications for Affiliate status;
d. Relationship and co-operation between the Commission and NGOs;
e. Consideration of applications for observer status.
7. Consideration of periodic Reports (public session) :
a) Status of submission of Periodic Reports by States Parties;
b) Periodic Report of Egypt;
c) Periodic Report of Bénin;
d) Periodic Report of Namibia;
e) Periodic Report of Ghana.
8. Promotional Activities (public session):
a) Human Rights situation in Africa;
b) Activity report of the Chairman and the Members of the Commission;
19
c)
d)
e)
f)
g)
h)
i)
j)
k)
AHG/229(XXXVII)
ORIGINAL: ENGLISH
Consideration of the report of the Special Rapporteur on Extra-judicial,
Summary or Arbitrary Executions;
Consideration of the report of the Special Rapporteur on Prisons and Conditions
of Detention in Africa;
Consideration of the report of the Special Rapporteur on the Rights of Women
in Africa;
Situation of Refugees and Internally Displaced Persons in Africa;
Situation of people with disability;
Organisation of Seminars and Conferences;
Situation of Indigenous People/Communities;
World Conference on Racism, Racial Discrimination, Xenophobia and Related
Intolerance;
Situation of Human Rights Defenders in Africa.
9. Review and Newsletter of the African Commission on Human and Peoples’
Rights (public session).
10. Protection Activities (private session): Consideration of Communications.
11. Administrative and financial matters (private session):
a. Financial and administrative situation of the Secretariat;
b. Construction of the Commission’s Headquarters;
c. Participation of the Commission in certain activities of the OAU.
12. Methods of work of the Commission: Operational system of the Special Rapporteurs of
the Commission, Commissioners’ approach to Promotional Activities (private session).
13. Adoption of resolutions, recommendations and decisions of the 28th Ordinary Session
(private session).
14. Dates, venue and provisional Agenda for the 29th ordinary session (private session).
15. Any other business (private session).
16. Preparation of :
a. The Session Report;
b. The Final Communiqué.
17. Adoption of the Session Report and the Final Communiqué (private session).
18. Reading of the Final Communiqué and Closing ceremony (public session).
19. Press Conference.
20
AHG/229(XXXVII)
ORIGINAL: ENGLISH
African Commission on
Human & Peoples’ Rights
Commission Africaine des
Droits
De l’Homme et des Peuples
Kairaba Avenue
P.O. Box 673
BANJUL, The Gambia
OAU – OUA
29 th Ordinary Session
23 April – 7 May 2001
Tripoli, Libya
Tel.: (220) 392962
Fax: (220) 390764
Telex: 2346 OAU BJL GV
e-mail: achpr@achpr.gm
Distribution: General
DOC/OS (XXIX)/208a/Rev.2
Original: FRENCH / ENGLISH
AGENDA
1. Opening Ceremony (public session).
2. Adoption of the Agenda (private session).
3. Organisation of work (private session).
4. Adoption of the Report of the 28 th Ordinary Session.
5. Observers : (public session).
a) Statements by State Delegates and guests;
b) Co-operation between the Commission and the National Human Rights
Institutions;
c) Consideration of applications for Affiliate status;
d) Relationship and co-operation between the Commission and NGOs;
e) Consideration of applications for observer status.
6. Consideration of States Reports (public session)
a) Status of submission of Periodic Reports by States Parties;
b) Periodic Report of Namibia;
c) Periodic Report of Ghana;
d) Periodic Report of Algeria;
e) Initial Report of Congo (Brazzaville).
7. Promotional Activities (public session):
a) Human Rights situation in Africa;
b) Activity report of the Chairman and the Members of the Commission;
c) Consideration of the report of the Special Rapporteur on Extra-Judicial,
Summary or Arbitrary Executions;
21
AHG/229(XXXVII)
ORIGINAL: ENGLISH
d) Consideration of the report of the Special Rapporteur on Prisons and
Conditions of Detention in Africa;
e) Consideration of the report of the Special Rapporteur on the Rights of
Women in Africa;
f) Situation of refugees and displaced persons in Africa;
g) Situation of people with disability;
h) Organisation of Seminars and Conferences;
i) Situation of Indigenous People/Communities
j) World Conference on Racism, Racial Discrimination, Xenophobia and
Related Intolerance;
k) Situation of Human Rights defenders in Africa;
l) The African Charter on Human & Peoples’ Rights and the African
Union.
8. Review and Newsletter of the African Commission on Human and Peoples’
Rights (public session).
9. Protection Activities (private session): Consideration of Communications.
10. Administrative and financial matters (private session):
a) Financial and administrative situation of the Secretariat;
b) Construction of the Commission’s Headquarters;
c) Participation of the Commission in certain activities of the OAU.
11. Methods of work of the Commission (private session).
12. Adoption of resolutions, recommendations and decisions of the 29th Session (private
session).
13. Dates, venue and Provisional Agenda for the 30 th Ordinary Session (private session).
14. Any other business (private session).
15. Preparation of :
a) The Session Report;
b) The 14 th Annual Activity Report;
c) The Final Communiqué;
d) Adoption of the Session Report, 14th Annual Activity Report and the
Final Communiqué (private session);
e) Reading of the Final Communiqué and Closing ceremony (public
session);
f) Press Conference.
22
AHG/229(XXXVII)
ORIGINAL: ENGLISH
Annex II
Status of Submission of Periodic Reports
to the
African Commission on Human and Peoples' Rights
(As at May 2001)
23
AHG/229(XXXVII)
ORIGINAL:
ENGLISH
African Commission on Human
& Peoples’ Rights
Commission Africaine des
Droits de l’Homme et
des Peuples
Kairaba Avenue
P.O. Box 673
BANJUL, The Gambia
Tel.: (220) 392962
Fax: (220) 390764
Télex: 2346 OAU BJL GV
Email: achpr@achpr.gm
OAU – OUA
Statistics on States Initial/Periodic Reports
(As at May 2001)
I- General Information
1. Number of States that have not submitted any
Report
24
2. Number of States that have submitted one (1)
Report but owe more
09
3. Number of States that have submitted two (2) or 4
more Reports but owe more
4. Number of States that have submitted all their
Reports:
16
a) States that have submitted and presented all
their reports
15
b) States that have submitted all their reports
but have not presented all
1
II - States that have not submitted any report:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Botswana
Cameroon
Comoros
Congo (D.R.C.)
Côte d'Ivoire
Djibouti
Eritrea
Ethiopia
Gabon
(7 overdue reports)
(5 overdue reports)
(7 overdue reports)
(6 overdue reports)
(4 overdue reports)
(4 overdue reports)
(1 overdue report)
(1 overdue report)
(7 overdue reports)
22
AHG/229(XXXVII)
ORIGINAL:
ENGLISH
10. Guinea-Bissau
11. Equatorial Guinea
12. Kenya
13. Lesotho
14. Liberia
15. Madagascar
16. Malawi
17. Mauritania
18. Niger
19. Central African Republic
20. Saharawi Arab Democratic Republic
21. Sao Tome and Principe
22. Sierra Leone
23. Somalia
24. Zambia
(7 overdue reports)
(7 overdue reports)
(4 overdue reports)
(4 overdue reports)
(7 overdue reports)
(4 overdue reports)
(5 overdue reports)
(7 overdue reports)
(7 overdue reports)
(7 overdue reports)
(7 overdue reports)
(7 overdue reports)
(7 overdue reports)
(7 overdue reports)
(7 overdue reports)
III - States that have submitted one report but owe more:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Angola
Cape Verde
Guinea
Mauritius
Mozambique
Nigeria
Seychelles
Sudan
Tanzania
(1 overdue report)
(2 overdue reports)
(1 overdue report)
(2 overdue reports)
(2 overdue reports)
(3 overdue reports)
(3 overdue reports)
(1 overdue report)
(4 overdue reports)
IV - States that have submitted two or more reports but owe more:
1.
2.
3.
4.
Gambia
Senegal
Tunisia
Zimbabwe
(3 overdue reports)
(4 overdue reports)
(2 overdue reports)
(2 overdue reports
V- States that have submitted all their reports:
1. Algeria
2. South Africa
3. Benin
4. Burkina Faso
5. Burundi
6. Congo Brazzaville
7. Namibia
8. Chad
9. Egypt
10. Ghana
11. Libya
12. Mali
13. Rwanda
14. Swaziland
(next report due in 2003)
(next report due in 2001)
(next report due in 2002)
(next report due in 2001)
(next report due in 2002)
(next report due in 2003)
(next report due in 2003)
(next report due in 2001)
(next report due in 2002)
(next report due in 2003)
(next report due in 2002)
(next report due in 2001)
(next report due in 2002)
(next report due in 2002)
23
AHG/229(XXXVII)
ORIGINAL:
ENGLISH
15. Uganda
16. Togo
(next report due in 2002)
(next report due in 2003)
VI- States that have submit ted and presented all their Reports:
1. Algeria
2. Benin
3. Burkina Faso
4. Burundi
5. Chad
6. Congo Brazzaville
7. Egypt
8. Ghana
9. Libya
10. Namibia
11. Mali
12. Uganda
13. Rwanda
14. Swaziland
15. South Africa
VII - States that have submitted all their reports but have not presented all:
1. Togo (2nd Report scheduled to be presented before the ACHPR at the 30th Session, October 2001)
VIII - States who have submitted a report but have never presented it before the
Commission
1. The Seychelles (1st Report submitted in 1994 but never presented before the ACHPR since)
Annex III
Geographical Distribution of Countries
Among Commissioners
24
AHG/229(XXXVII)
ORIGINAL:
ENGLISH
25
AHG/229(XXXVII)
ORIGINAL:ENGLISH
African Commission on Human &
Peoples’ Rights
Commission Africaine des Droits
de l’Homme et des Peuples
Kairaba Avenue
P.O. Box 673
BANJUL, The Gambia
Tel.: (220) 392962
Fax: (220) 390764
Telex: 2346 OAU BJL GV
e-mail: achpr@achpr.gm
OAU – OUA
Geographical Distribution of Countries among
Commissionersfor their Promotion Activities
1. Prof. E.V.O. Dankwa
Ghana, Cameroon, Guinea-Bissau, Sierra Leone and
Ethiopia.
2. Mr. Kamel Rezag-Bara
Algeria, Saharawi Arab Democratic Republic,
Mauritania, Chad, Central African Republic
and Djibouti.
3. Mrs. Julienne Ondziel-Gnelenga Burundi, Côte d’Ivoire, Rwanda, Mauritius,
Madagascar and Niger.
4. Prof. Isaac Nguema
Gabon, Equatorial Guinea, Sao Tome & Principe,
Burkina Faso and Republic of Congo (Brazzaville).
5. Dr. Ibrahim A. Badawi
Egypt, Sudan, Somalia and Seychelles
6. Dr. Mohamed H. Ben Salem
Tunisia, Libya, Mali, Comoros and Guinea
7. Dr. Nyameko B. Pityana
Zimbabwe, Botswana, Mozambique, Swaziland and
Lesotho
8. Mrs. Jainaba Johm
Nigeria, Togo, Senegal, Cape Verde, Gambia, Benin
and Liberia
9. Dr. Vera M. Chirwa
Malawi, Kenya and Tanzania
10. Mr. Andrew R. Chigovera
South Africa, Namibia, Angola, Democratic Republic
of Congo
11. Mrs. Florence Butegwa
Uganda, Zambia and Eritrea
Annex IV
13
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Resolutions adopted
at the
28th and 29th Ordinary Sessions
RESOLUTION ON THE RIGHTS OF INDIGENOUS
PEOPLE/COMMUNITIES IN AFRICA
The African Commission on Human and Peoples’ Rights meeting at its 28th Ordinary
Session in Cotonou, Benin from 23rd October to 6th November 2000,
14
AHG/229(XXXVII)
ORIGINAL:ENGLISH
-
Recalling that at its 26th Ordinary Session held in Kigali, Rwanda, it constituted
a Committee made up of 3 Commissioners to further consider the issue of
Indigenous People in Africa and advise accordingly;
-
Having reconsidered the issue and its implications;
Resolves to:
1. Establish a working group of experts on the rights of indigenous or ethnic
communities in Africa ;
2. Set up a working group constituted of 2 members of the African Commission, one
of whom should be designated as convenor and 2 African experts in the field of
human rights or indigenous issues;
3. Assign the following mandate to the working group:
a) Examine the concept of indigenous people and communities in Africa;
b) Study the implications of the African Charter on Human Rights and well
being of indigenous communities especially with regard to :
- the right to equality (Articles 2 and 3);
- the right to dignity (Article 5);
- protection against domination (Article 19);
- on self-determination (Article 20); and
- the promotion of cultural development and identity (Article 22).
c) Consider appropriate recommendations for the monitoring and protection of
the rights of indigenous communities;
4. Have a funding proposal prepared with a view to raising donor funds to meet the
costs of the work of the working group;
5. Submit a report at the 30th Ordinary Session of the Commission.
Done in Cotonou, Benin, 6th November 2000
RESOLUTION ON COTE D’IVOIRE
The African Commission on Human and Peoples’ Rights meeting at its 28th Ordinary
Session in Cotonou, Benin from 23rd October to 6th November 2000,
Considering that Côte d’Ivoire is a party to the African Charter on Human and Peoples’
Rights and other international human rights instruments;
15
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Deploring the events of Wednesday 25th and Thursday 26th October 2000 in Côte d’Ivoire,
which were marked by shootings, wounding and massacres of innocent civilians;
Welcoming with appreciation the Government’s statement that it is going to set up a
Commission of Enquiry;
1.
Urges the OAU to set up an International Commission of Enquiry, which would
involve the African Commission, to investigate all human rights abuses that
occurred on or about Wednesday 25th October through to Friday 27th October
2000 and all consequences thereof;
2.
Urges the Ivorian Government to co-operate closely with the Commission of
Enquiry and give it all the necessary assistance;
3.
Calls on the Ivorian Government to undertake to bring to justice all persons
who would have been found to be involved in the human rights violations by the
investigation;
4.
Further calls upon the Ivorian Government to ensure full compliance with the
provisions of the African Charter on Human and Peoples’ Rights and other
international human rights instruments.
Done in Cotonou, Benin, 6th November 2000
RESOLUTION ON THE SITUATION IN PALESTINE
AND THE OCCUPIED TERRITORIES
The African Commission on Human and Peoples’ Rights, meeting at its 28th Ordinary
Session held in Cotonou, Benin, from 26th October to 6th November 2000;
16
AHG/229(XXXVII)
ORIGINAL:ENGLISH
-
-
-
-
-
Considering the values and fundamental principles of the African Charter on Human
and Peoples’ rights and the commitment to the people of Africa and to the human
and people’s rights and freedoms contained in the Declarations, Conventions and
other instruments adopted within the framework of the Organisation of African
Unity, and the United Nations Organisation;
Noting the status of the Palestine Liberation Organisation within the O.A.U. and the
concerns that a prolonged state of conflict and instability in the Middle East will
adversely affect a number of States Parties to the Charter;
Noting with deep indignation the excessive and inconsiderate use of military force against
civilians which has led since the beginning of the conflict to about 150 deaths,
including the death of children, and to more than 3000 wounded;
Bearing in mind the Resolution adopted during the Special Session of the United
Nations Human Rights Commission held in Geneva from 17 to 19 October 2000
devoted to the situation of human rights in occupied Palestine;
Calls upon the competent organs of the OAU. to:
1. Condemn strongly the repression and the inconsiderate and disproportionate
use of force by the army of Israel in Palestine and in the occupied territories
which resulted in many deaths and injuries among the Palestinian civilians,
especially children;
2. Support the efforts of the International Community for the creation of an
International Commission of Inquiry into the events that occurred in
September 2000 and that led to the killings of Palestinian civilians, including
children, by the Israel occupation forces.
Done in Cotonou, Benin, 6th November 2000
RESOLUTION ON COMPLIANCE AND IMMEDIATE
IMPLEMENTATION OF THE ARUSHA PEACE AGREEMENT FOR
BURUNDI
The African Commission on Human and Peoples’ Rights meeting at its 28th Ordinary
Session in Cotonou, Benin, from 23rd October to 6th November 2000,
17
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Considering the massacres of innocent people committed in Burundi since 21st October
1993;
Considering the effects of the protracted civil war on the economy and well-being of the
people of Burundi;
Considering with concern that the on-going armed conflict between the rebels and the
Government army has caused serious violations of human rights and freedoms of the
people of Burundi;
-
Expresses its support for the Arusha Peace Agreement for Burundi and urges the
conflicting parties to conclude a cease-fire and immediately and unconditionally
implement the Arusha Accord signed in Arusha on 28th August 2000;
-
Congratulates former President Nelson Mandela for the progress achieved
through his mediation and exhorts him to continue with his efforts towards
achieving lasting peace in Burundi;
-
Calls upon the rebel groups who have not yet signed the peace agreement
concluded under the auspices of former President Nelson Mandela to do so
urgently;
-
Makes an urgent appeal to the Great Lakes countries to give their full support
to the peace process and put pressure on all the belligerents to renounce violence;
-
Calls upon the OAU and UN to take all appropriate measures to put a stop to
the hostilities in Burundi and bring the belligerents to give greater importance to
negotiation for the resolution of their dispute ;
-
Urges the International Community to support the peace process and settlement
of the conflict that has rocked Burundi.
Done in Cotonou, Benin, 6th November 2000
RESOLUTION ON THE WORLD CONFERENCE AGAINST RACISM,
RACIAL DISCRIMINATION, XENOPHOBIA
AND RELATED INTOLERANCE
The African Commission on Human and Peoples’ Rights, meeting at its 28 th Ordinary
Session in Cotonou, Benin, from 23rd October to 6th November 2000,
18
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Having considered the report on the UN World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance due to take place in South Africa
from 31st August to 7th September 2001;
Noting that the African Commission and the OAU have not been adequately involved in
the regional preparations for the World Conference;
Noting further that a regional experts seminar in preparation for the World Conference was
held in Addis Ababa, 4th - 8 th October 2000 and that a regional preparatory Conference is
scheduled to take place in Dakar, Senegal in January 2001;
Considering that it is critical that African States in general, including regional institutions
and civil society be fully involved in the preparations for, and to influence the outcomes
of the World Conference;
Recalling its decision to nominate Commissioner Jainaba Johm as the focal point for the
preparation of this World Conference;
1.
Resolves to seek observer status with the Preparatory Committee of the World
Conference, the next session of which will take place in Geneva in May 2001;
2.
Nominates a Committee of 4 members with the focal point as a convenor with
the following mandate as follows:
•
To represent the Commission in all matters relating to the
preparation for the World Conference and invite the OAU to take an
active part in the preparation and holding of the Conference ;
•
To prepare a document on the issues to be considered by the World
Conference and propose a strategy for effective participation by the
Commission;
•
To disseminate within Member States information materials likely to
raise awareness of the World Conference;
•
To encourage State parties to the African Charter and civil society to
organise national preparatory meetings and to engage in preparations
for the World Conference with all diligence ;
•
To report on developments at the 29th Ordinary Session of the
African Commission;
3.
Resolves to have this item on the Agenda of its 29th and 30 th Ordinary Sessions;
of the African Commission;
4.
Requests the Secretariat to make all appropriate arrangements for the
implementation of this resolution and report to the 29th Session.
19
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Done in Cotonou, Benin, 6th November 2000
RESOLUTION ON THE AFRICAN UNION AND THE AFRICAN
CHARTER ON HUMAN AND PEOPLE’S RIGHTS
The African Commission on Human and Peoples’ Rights, meeting at its 29th Ordinary
Session in Tripoli, Great Socialist People’s Libyan Arab Jamahiriya, from 23rd April to 7 th
May 2001,
20
AHG/229(XXXVII)
ORIGINAL:ENGLISH
-
Recalling the Sirte Declaration of 9th September 1999, adopted during the 4th
Extraordinary Session of the Assembly of Heads of State and Government of the
Organisation of African Unity;
-
Recalling the adoption of the Constitutive Act of the African Union by the 36th
Ordinary Session of the Assembly of Heads of State and Government of the
OAU held in Lomé, Togo, from 10th to 12th July, 2000;
-
Noting that all Member-States have signed the Constitutive Act of the African
Union and that the legal conditions for its entry into force are now met, after the
deposit of the 36th instrument of ratification;
-
Recalling that one of the objectives of the African Union, aims at “promoting and
protecting human and peoples’ rights in accordance with the African Charter on
Human and Peoples’ Rights and other relevant human rights instruments”
(Article 3 of the Constitutive Act);
-
Noting with satisfaction the substantial contributions made by the participants
during the consideration of this agenda item at the 29th Ordinary Session;
-
Noting the need to initiate in-depth discussion on all the implications of the entry
into force of the Constitutive Act of the African Union on the provisions of the
African Charter on Human and Peoples’ Rights and on the functioning of the
African Commission on Human and Peoples’ Rights;
1. Expresses its total adherence to the noble ideals, principles and objectives
contained in the Constitutive Act of the African Union, in particular the
commitment of States Parties “to promote and protect human and peoples’
rights, promote gender equality consolidate democratic institutions and culture,
to ensure good governance and the rule of law, to promote the respect for the
sanctity of human life, condemnation and rejection of impunity and political
assassination, acts of terrorism and subversive activities as well as
unconstitutional changes of governments;
2. Decides to set up a three-member working group of the Commission with a
mandate to initiate an in-depth discussion on all the implications of the entry
into force of the Constitutive Act of the African Union on the African Charter
and the African Commission on Human and Peoples’ Rights;
3. Requests the working group to present an interim report at the 30th Session
and a final report at its 31st Session;
4. Requests the Secretariat to provide the working group with the necessary
means to carry out its mandate and decides to keep this issue on its agenda.
21
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Done in Tripoli, 7th May 2001
RESOLUTION ON HIV/AIDS PANDEMIC – THREAT AGAINST HUMAN
RIGHTS AND HUMANITY
The African Commission on Human and People's Rights, meeting at its 29th Ordinary
Session in Tripoli, the Great Socialist Peoples' Libyan Arab Jamahiriya from 23rd April to
7 th May 2001,
22
AHG/229(XXXVII)
ORIGINAL:ENGLISH
-
Noting the rampant escalation of the HIV/AIDS pandemic in Africa especially in
sub-Saharan Africa where estimates show that some 9 million people have died and
within the next decade some 25 million people will become infected;
-
Noting with satisfaction the convening of the Africa Summit on HIV/AIDS in Abuja,
Nigeria, from 24th to 26th April 2001 where the crisis was declared and interventions
of emergency proportions called for;
-
Welcoming the statement of the Abuja Summit and the emergency measures declared
there especially the announcement by the Secretary General of the UN on the
establishment of a US$10 billion war chest to fight HIV/AIDS in Africa;
-
Welcoming the forthcoming UN General Assembly Special Session on HIV/AIDS to
be held in June 2001 and trusting that it will increase awareness of the need for
international action to fight the pandemic and devise strategies by international cooperation against HIV/AIDS;
-
Mindful of the mandate of the Commission in terms of the Charter to “promote
human and peoples’ rights and ensure their protection in Africa” and especially in
this regard allow the right of every individual to “enjoy the best attainable state of
physical and mental health” (Article 16);
1.
Declares that the HIV/AIDS pandemic is a human rights issue which is a threat
against humanity;
2.
Calls upon African Governments, State Parties to the Charter to allocate
national resources that reflect a determination to fight the spread of
HIV/AIDS, ensure human rights protection of those living with HIV/AIDS
against discrimination, provide support to families for the care of those dying of
AIDS, devise public health care programmes of education and carry out public
awareness especially in view of free and voluntary HIV testing, as well as
appropriate medical interventions;
3.
Calls upon the international pharmaceutical industries to make affordable and
comprehensive health care available to African governments for urgent action
against HIV/AIDS and invites international aid agencies to provide vastly
increased donor partnership programmes for Africa including funding of
research and development projects.
Done in Tripoli, 7th May 2001.
RESOLUTION ON THE SITUATION OF
HUMAN RIGHTS DEFENDERS IN TUNISIA
The African Commission on Human and Peoples’ Rights, meeting at its 29th Ordinary
Session in Tripoli, Great Socialist People's Libyan Arab Jamahiriya, from 23rd April to 7 th
May 2001,
23
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Considering that the Republic of Tunisia is a party to the African Charter on Human and
Peoples’ Rights;
Considering the relevant provisions of the African Charter on Human and Peoples’ Rights,
in particular articles 9(2), 10(1), 12(1) and 12(2);
Considering the provisions of other international and regional human rights instruments on
freedom of conscience, freedom of movement, and right to association;
Considering the Declaration of 9 th December 1998 of the United Nations General
Assembly on the “rights and responsibilities of individuals, groups and organs of society
to promote and protect universally recognised human rights and basic freedoms” and in
particular Article 1 which states that “every individual has the right, individually, or in
association with others, to promote the protection and the implementation of human
rights and basic freedoms”;
Concerned by the decision dated on 27th November 2000 suspending the activities of the
Ligue Tunisienne de Défense des Droits de l’Homme (LTDH), one of the oldest human
rights NGOs in Africa;
Welcoming with satisfaction the recent initiatives by Tunisian authorities to address the
situation.
1. Invites the Chairman of the African Commission on Human and
Peoples’ Rights to write to the President of the Republic of Tunisia to
express its concerns about the situation of human rights defenders in
Tunisia;
2. Offers to send a mission of good offices, if necessary, led by the
Chairman of the Commission, in view of addressing the problem of the
suspension of the Ligue Tunisienne de Défense des Droits de l’Homme.
Done in Tripoli, 7th May 2001
RESOLUTION ON THE RECENT VIOLENCE
IN KABYLIA, ALGERIA
The African Commission on Human and Peoples’ Rights, meeting at its 29th Ordinary
Session in Tripoli, the Great Socialist People's Libyan Arab Jamahiriya, from 23rd April to
7 th May 2001,
24
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Noting the recent upsurge of violence in the Kabylia region of north-east Algeria where
some 50 people are reported to have died and scores of others injured or arrested. The
riots were sparked by the death of a student, Guermah Massinissa while held at a police
station on 18th April 2001;
Encouraged by the announcement by President Abdelaziz Bouteflika on Monday 30 April
2001 of the establishment of a national commission of inquiry to bring light into the
circumstances of the events and also the establishment of a Parliamentary Commission
of Enquiry;
Mindful of its obligations in terms of the African Charter “to promote human and
peoples’ rights and ensure their protection” and especially conscious of the rights in the
Charter to enjoy the rights and respect to economic, social and cultural development;
Recalling its Resolution on the rights of Indigenous Populations/Communities and the
establishment of a Working Group to propose appropriate mechanisms for the
promotion and protection of the rights of indigenous populations/communities in terms
of the Charter;
Inspired by the leadership of President Abdelaziz Bouteflika in Africa and the hopes his
democratic election aroused in 1998 for an end to sectarian violence, the establishment
of human rights, good governance and security as well as the end to impunity especially
within the security forces;
Satisfied that Algeria presented its periodic report, which was examined at the 29th
Ordinary Session in Tripoli, the Great Libyan Jamahiriya and commending this country
on the measures taken to give effect to the rights, duties and freedoms enshrined in the
Charter.
1.
2.
3.
4.
Requests the Chairman of the Commission to write to the Government of
Algeria and convey its deep concerns of the Commission at the recent events
especially as it concerns a vulnerable community;
Commends the Government of Algeria on the speedy establishment of a
National Commission of Enquiry and also a Parliamentary Commission of
Enquiry and seeks the assurance that those responsible for human rights
violations will be brought to justice;
Offers its good offices to help resolve the human rights problems underlying the
disturbances and to send a fact-finding mission to Algeria at the earliest
opportunity;
Sends condolences to the families of those who died during the tragic events.
Done in Tripoli, 7th May 2001.
RESOLUTION ON FREEDOM OF EXPRESSION
The African Commission on Human and Peoples’ Rights meeting at its 29th Ordinary
Session in Tripoli, the Great Socialist People's Libyan Arab Jamahiriya, from 23rd April to
7 th May 2001,
25
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Recalling Article 9 of the African Charter on Human and Peoples’ Rights which
guarantees the right to freedom of expression;
Recognising that freedom of expression in an essential attribute of human existence in all
spheres of life and that there is now widespread international recognition of the cardinal
role of freedom of expression in human progress;
Noting that freedom of expression is a potent and indispensable instrument for the
creation and maintenance of a democratic society and the consolidation of development;
Concerned at the widespread violation of this right by States parties to the Charter through
the harassment, arbitrary arrest and detention of journalists, victimisation of media
houses deemed critical of the establishment, inadequate legal frameworks for regulating
electronic media especially broadcasting, and criminal and civil laws that inhibit the right
to freedom of expression;
Mindful of the potentially narrow scope of protection given by Article 9 of the African
Charter on Human and Peoples' Rights;
Recognising the increasingly specialised nature of information technology and its impact on
various aspects of the right to freedom of expression;
Recalling the recommendations of the Seminar on Freedom of Expression and the African
Charter, it held in Johannesburg, South Africa, from 22nd to 25th November 2000;
Decides:
1. To develop and adopt, through a consultative process, a Declaration of Principles on
Freedom of Expression, drawn from a comprehensive range on international
standards and jurisprudence, to elaborate and expound the nature, content and
extent of the right to freedom of expression provided for under Article 9 of the
African Charter,
2. To initiate an appropriate mechanism to assist it review and monitor adherence
to freedom of expression standards in general, the Declaration in particular to
investigate violations and make appropriate recommendations to the
Commission,
3. To hold periodic meetings with NGOs and African journalists to review
progress in guaranteeing freedom of expression across the continent and in
implementing the Declaration of Principles.
Done in Tripoli, 7th May 2001.
RESOLUTION ON THE IMMEDIATE LIFTING OF SANCTIONS
IMPOSED ON LIBYA
The African Commission on Human and Peoples’ Rights, meeting at its 29th Ordinary
Session in Tripoli, The Great Socialist People's Libyan Arab Jamahiriya, from 23rd April
to 7th May 2001;
26
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Having considered the evolution of the Lockerbie case and in particular the fact that the
Government of Libya has complied fully with the resolutions of the United Nations;
Bearing in mind that the sanctions imposed on Libya has seriously affected the enjoyment
by the people of Libya of the rights enshrined in the African Charter on Human and
People’s Rights;
Taking note of the motion on the Lockerbie affair adopted by the Assembly of the OAU
Heads of State and Government, meeting at its 5th Extraordinary Session held on 1st
and 2nd March 2001 in Sirte, The Great Socialist People's Libyan Arab Jamahiriya ;
Bearing in mind the relevant OAU resolutions and decisions and those of other
international and regional organisations;
1.
Notes with satisfaction the motion on the Lockerbie affair adopted by the
Extraordinary Session held on the 1st and 2nd March 2001 in Sirte, the Great
Socialist People’s Libyan Arab Jamahiriya.
2.
Urges the Security Council of the United Nations Organisation to consider the
immediate lifting of sanctions imposed on Libya.
3.
Decides to monitor all further aspects of the legal proceedings initiated in the
Lockerbie affair in conformity with the principles of the right to a fair trial.
Done in Tripoli, 7th May 2001.
Annex V
Decisions on Communications
before the Commission
27
AHG/229(XXXVII)
ORIGINAL:ENGLISH
At the 28th and 29th Ordinary Sessions
97/93 John K. Modise v. Botswana
Rapporteur: 17 th Session: Commissioner Umozurike
18 th Session: Commissioner Umozurike
19 th Session: Commissioner Umozurike
20 th Session: Commissioner Umozurike
21st Session: Commissioner Umozurike
22 nd Session: Commissioner Dankwa
23 rd Session: Commissioner Dankwa
24 th Session: Commissioner Dankwa
25 th Session: Commissioner Dankwa
26 th Session: Commissioner Dankwa
27 th Session: Commissioner Dankwa
28 th Session: Commissioner Dankwa
_____________________________________________________________________
Summary of Facts
28
AHG/229(XXXVII)
ORIGINAL:ENGLISH
1. The Complainant is claiming the right to Botswana citizenship, under the following
circumstances: his father, a Botswana citizen, immigrated to South Africa to work
there. During his stay, he got married and the Complainant was born of that
marriage. His mother died shortly after his birth, and he was thus brought to
Botswana, where he grew up. The Complainant is therefore claiming Botswana
nationality by ancestry.
2. He alleges that in 1978, he was one of the founders and leaders of an opposition
party called Botswana National Front. He is of the view that it is because of his
political activities that he was declared an “undesirable immigrant” in Botswana by
the government.
3. On 17th October 1978, he was arrested and handed over to the South African police
without being brought before a tribunal. He already had a judicial action pending
before a Botswana court, regarding a temporary work permit, but with his
deportation, he was unable to follow the case.
4. Having returned to Botswana, he was once again arrested and deported without trial.
After his third attempt at returning, he was charged, convicted of illegal entry and
declared an undesirable immigrant. He was serving a ten-month prison term and had
filed an appeal when he was deported for the fourth time to South Africa, before the
case was concluded.
5. Since the Complainant did not have South African nationality, he was obliged to
settle in the homeland of Bophutatswana. He lived there for seven years until the
government of Bophutatswana issued a deportation order against him and he found
himself in the no-man’s land between Bophutatswana and Botswana, where he
remained for five weeks, when he was admitted into Botswana on a humanitarian
basis. He obtained a three-month entry permit, renewable at the entire discretion of
the competent Ministry, until June 1995.
6. The Complainant does not and has never held a South African passport or
citizenship of Bophutatswana.
7. He claims to have suffered heavy financial losses, since the government of Botswana
confiscated his belongings and property. He cannot work, since he does not have the
relevant permit, and he is constantly under threat of deportation. He has gone to
great lengths to try to prove his Botswana nationality, and the appeal against his
prison sentence is still pending. He presently has no funds to prosecute his claims in
court.
8. He is asking the government to concede him his nationality by birth.
Complaint
The Complainant alleges that he has been unjustly deprived of his real nationality and
claims violation of articles 3(2), 5, 7(1)(a), 12(1) and (2), 13(1) and (2), 14, 16(1) and (2)
and 18(1) of the African Charter.
Procedure:
9. John K. Modise presented the communication on 3rd March 1993.
29
AHG/229(XXXVII)
ORIGINAL:ENGLISH
10. The Commission was seized of it at its 13th Session, held in March 1993.
11. The government was notified of it on 12th April 1993 without any reaction coming
from its side.
12. On 13th May 1993, a letter was addressed to Mr. John K. Modise informing him that
the communication had been examined at the 13th Session, and that the Commission
required some clarifications from him regarding the exhaustion of local remedies.
13. A second notification was addressed to the government on 12th August 1993, with
the same result.
14. On 7th September 1993, the Complainant replied to the Secretariat’s letter dated 13th
May 1993 emphasising that he had exhausted the available local remedies. He added
that he could no longer pursue his case before the national jurisdictions due to lack
of financial resources.
15. Another notification was sent to the government on 29th January 1994, with a copy to
the Complainant.
16. On 30th January 1994, the Secretary to the Commission received correspondence
from the spouse of the Complainant, stressing that Mr. John K. Modise had no more
money to pursue the case brought before the national jurisdiction, since he had been
forced into exile and that he had suffered heavy financial losses due to the
confiscation of his belongings by the Botswana Police.
17. On 22nd February 1994, the Complainant acknowledged receipt of the copy of the
notification addressed by the Secretariat to the government on 29 January 1994. He
also called on the Commission to consider his case, as he believed that he had
exhausted all the available local remedies. A short chronicle of the case was attached
to the said correspondence.
18. The Complainant wrote again on 24th October 1994 in reply to the Secretariat’s
correspondence dated 8th August 1994, to confirm having exhausted local remedies.
19. At its 16th Session held in October 1994, the Commission re-examined the
communication and decided to defer its decision until it received information on the
manner in which other human rights bodies handle cases involving Complainants
who are lacking financial means.
20. At the 17th Session, the communication was declared admissible. It was considered
appropriate to assign the case to the Commissioner covering Botswana to deal with
under his human rights promotion activities. Consequently, responsibility was
assigned to Commissioner Janneh. However, no concrete measures were taken.
21. On 20th April 1995, a correspondence was dispatched to the Complainant to inform
him of the decision regarding the admissibility of the communication.
22. On 18th May 1995, a letter was received from the European Commission on Human
Rights in reply to the Secretariat’s request regarding the issue of financial difficulties.
23. On 26th May 1995, a correspondence was sent to the Botswana government to
inform it of the decision on admissibility taken by the Commission and to request it
30
AHG/229(XXXVII)
ORIGINAL:ENGLISH
to consider an amicable settlement of the case. There was no response from the
government of Botswana.
24. On 23rd September 1995, the Commission received a correspondence dated 15 May
1995 from the non-governmental organisation, Interights informing it that it had
been designated by Mr. Modise to represent him at the next session of the
Commission. Mr. Modise’s letter to Interights dated 2nd December 1994 in this
regard was annexed to the said correspondence.
25. The same envelope contained a second letter from Interights dated 15th May, stating
that the NGO had just been informed of the decision on admissibility taken by the
Commission at its 17th Session and requesting, therefore, that a formal notification of
the said admissibility be addressed to it. Interights also enclosed an explanatory note
on the case and the demands of the Complainant, and indicated its intention to be
present at Praia, at the 18 th Session, to argue the case.
26. At the 18th Session held in October 1995, the Commission heard the counsel of the
Complainant, Mr. Odinkalu. It was decided to defer the decision on the merits in
order to allow some time for the efforts at arranging an amicable settlement and, if
necessary, the case would be re-examined at the 19th Session.
27. On 19th October 1995, the Secretariat received by fax a Note Verbale from the
Ministry of Foreign Affairs of Botswana with the information that the Head of State
had granted Botswana nationality to Mr. Modise, and that his certificate of nationality
had been sent to him by post on 26th June 1995.
28. On 30th November 1995, a copy of this Note Verbale was dispatched to Mr.
Odinkalu with a letter informing him that if the Commission did not receive any
contrary information before its next session, the granting of nationality would be
considered an amicable settlement.
29. On 14th December 1995, the Secretariat received a letter from Mr. Odinkalu, counsel
to the Complainant, indicating that he did not consider the granting of nationality as
an amicable settlement and asking the Commission to continue the examination of
the case.
30. On 28th December 1995, the Secretariat received correspondence from
Commissioner Dankwa asking for copies of all documentation relevant to the case
for his use during a mission to Botswana.
31. On 25th January 1996, the Secretariat received faxed correspondence from Mr.
Odinkalu indicating his intention to send some supplementary information to the
Commission.
32. On 13 th February 1996, the Secretariat received a letter from Commissioner Dankwa
asking for copies of certain pages of Mr. Modise’s passport. The Secretariat
forwarded them to him by fax.
33. On 23rd February 1996, the Secretariat sent a fax message to Commissioner Dankwa
inquiring about the results of his mission to Botswana.
31
AHG/229(XXXVII)
ORIGINAL:ENGLISH
34. On 28th February 1996, Mr. Odinkalu, counsel for the Complainant presented an
additional note describing the special conditions of the nationality by naturalisation
granted to Mr. Modise.
35. On 1 st March 1996, the Secretariat received a fax message from Commissioner
Dankwa informing it that he had not been able to carry out his mission to Botswana
before the 19th Session.
36. During the 19th Session, the communication was not examined.
37. On 8th May 1996, a letter was sent to the Botswana government, acknowledging
receipt of its Note Verbale of 19th October 1995, and informing it that the
communication was not examined at the 19th Session, but that it would be done at
the 20th Session slated for October 1996.
38. On 8 th May 1996, a letter was sent to the Complainant giving him the same
information as above. A copy of the Note Verbale addressed to the Commission by
the government on 19th October 1995 was attached to the letter.
39. On 9th October 1996, the Secretariat of the Commission received a fax message from
Interights mainly to transmit a copy of Mr. Modise’s letter stating that all domestic
remedies had been exhausted, and that even though the government of Botswana
had promised Commissioner Dankwa that Mr. Modise would be issued with a
passport, his application had still not been approved by the competent authorities.
40. On 10th October 1996, the Secretariat acknowledged receipt of Interights’
correspondence.
41. At its 20th Session, held in Grand Bay, Mauritius in October 1996, the Commission
heard a presentation made by Interights. Following the hearing, it decided to defer a
decision on the merits to its next session in order to give more time to explore the
avenue of an amicable settlement.
42. On 12th December 1996, the Secretariat addressed a Note Verbale to that effect to
the government.
43. On 12th December 1996, the Secretariat addressed a letter to that effect to Interights.
44. At its 21st Session in April 1997, the Commission decided to close the case, by
considering that Mr. Modise’s naturalisation constituted an amicable settlement of
the matter.
45. On 11th June 1997, the Secretariat notified the Complainant, the State Party and
Counsel to the Complainant.
46. On 16th June 1997, the Secretariat received a fax message from Interights, indicating
that it was not satisfied with the Commission’s decision and that it was consequently
calling for the matter to be reopened.
47. On 19th June 1997, the Secretariat acknowledged receipt of Interights’ letter of 16th
June 1997, while also explaining the decision taken by the Commission.
32
AHG/229(XXXVII)
ORIGINAL:ENGLISH
48. On 26th June 1997, a letter was written to Mr. Modise on the subject, with a copy to
Interights.
49. On 18th July 1997, the Secretariat received a letter from Interights subtitled
“Reopening of Communication 97/93” with a nine-page explanatory note.
50. On 29th July 1997, the Secretariat wrote a letter to Commissioner Dankwa, with
Interights’ explanatory note attached, calling for his opinion as rapporteur on the
communication.
51. At its 22nd Session, held from 2 nd to 11th November 1997, the Commission decided to
accede to Interights’ request, to reopen the case and therefore to re-examine the
reasons that led its previous decision which considered that the communication had
been closed on the basis of an amicable settlement. The Commission further
requested Botswana to provide it with information on the terms of the settlement
reached between the two parties, the directives regarding its implementation, as well
as the type of citizenship granted to Mr. Modise.
52. On 18th November 1997, the Secretariat wrote to the parties to inform them of the
Commission’s decision.
53. On 11th February 1998, the Secretariat addressed a reminder Note Verbale to
Botswana’s Ministry of Foreign Affairs.
54. By the 23rd Session, the government of Botswana had not yet reacted to the abovementioned request. The Commission consequently requested the Secretariat to
remind the government about the request.
55. On 10th August 1998, the Respondent State responded to the request.
56. At its 24th Ordinary Session held from 22nd to 31st October 1998, the Commission
heard Mr. Botsweletse Kingsley Sebele, Secretary General of the Botswana Ministry
of Labour and Home Affairs. He stated that the laws of his country could not give
Mr. Modise any status other than that which he has already been granted, adding that
Mr. Modise had obstinately refused to co-operate with the government of Botswana.
The Commission thereafter deferred a decision on the merits to its 25th Session.
57. On 10th November 1998, the Secretariat wrote to the parties concerned informing
them of the Commission’s decision.
58. By two Note Verbales dated 6 th October 1998 and 9 th December 1998, the
Government of Botswana reiterated its position as contained in its earlier Note of
27 th May 1998.
59. On 16th April 1999, Interights, wrote to the Commission requesting a deferral of the
hearing of the case to the 26th ordinary session due to Mr. Odinkalu’s illness.
60. At the 25th ordinary session of the Commission held in Bujumbura, Burundi, the
Commission deferred hearing of the communication to its 26th ordinary session.
61. On 6th July 1999, the Secretariat of the Commission wrote letters to the parties
informing them of the Commission’s decision.
33
AHG/229(XXXVII)
ORIGINAL:ENGLISH
62. On 29th September 1999, the Government of Botswana replied through fax
confirming its position contained in its Note Verbale of 9th December 1998, and
requesting that the information therein be brought to the attention of the
Commissioners and the Legal representatives of the Complainant.
63. On 1st October 1999, the Secretariat of the Commission replied to the said Note
Verbale. A copy of the government's response was forwarded to Interights for
information and necessary action.
64. On 20th October 1999, Interights sent to the Secretariat of the Commission its
written response to the observations of the government of Botswana.
65. At its 26th ordinary session held in Kigali, Rwanda, the Commission reviewed the case
and noted that the government of Botswana had indicated that if it did not hear
anything contrary to its position, it would consider the case closed. Since Interights
had submitted a brief to the contrary, the Commission, therefore, decided to bring it
to the attention of the government of Botswana. A final decision on the merits was
deferred to the next ordinary session.
66. The above decision was conveyed to parties on 18th January 2000. A copy of
Interights' brief was attached to the letter sent to the government of Botswana. No
response has been received from the competent authorities of Botswana.
67. At the 27th ordinary session of the Commission held in Algeria from 27th April to 11th
May 2000, the Commission examined the case and deferred its further consideration
to the next session.
68. Parties were informed of the said decision on 12th July 2000.
LAW
Admissibility
69. This communication has a long history before the Commission. It was declared
admissible at the 17th ordinary session of the Commission on grounds that local
remedies were unduly prolonged and the legal process wilfully obstructed by the
government through repeated deportations of the Complainant. The case was later
closed because the Commission considered that the Complainant's naturalisation
constituted an amicable settlement of the matter. It was however re-opened upon
the application of Interights on behalf of the Complainant.
Merits
State Party's Response
70. The Respondent State later responded to the Commission's request on the terms
of the settlement reached with the Complainant. It submitted, among others,
that Mr. Modise had been naturalised as a Botswana citizen on 28th February
1995. By virtue of that, he enjoyed all the rights inherent to his status as
provided in chapter II of the country’s constitution. Furthermore, a document
attached to the note from the Respondent State contained the relevant
constitutional provisions regarding Botswana citizenship as at the time of the
country’s independence. The document provides explanatory details on the birth
34
AHG/229(XXXVII)
ORIGINAL:ENGLISH
and parentage of the Complainant, who was born in the territory of what was
then the Union of South Africa (which became the Republic of South Africa in
1961), of a father who had the status of a protected person of the British crown,
though originating from the protectorate of Bechuanaland (present day
Botswana). The Respondent State points out that Mr. Modise and his counsel
had probably innocently misunderstood and misinterpreted section 20(2) of the
Botswana constitution. The Respondent State avers that the place of birth of an
individual immediately confers its nationality on that person. This nationality-bybirth may later be rejected or given up by that person, his parents or legal
custodian. To avoid a child being born stateless, the law operates in such a way
that the place of birth confers its nationality to an individual. It is not necessary
to take any legal steps to guarantee that nationality. Section 20(2) of the
constitution concerns those individuals born outside the protectorate of
Bechuanaland and who were at the time of their birth either subjects of Her
Majesty or crown protected persons and whose fathers had acquired Botswana
citizenship in compliance with the provisions of section 20(1). John K. Modise
could have benefited from the provisions of section 20(1) of the constitution if
his father, born in the protectorate territory and having the status of a crown
protected person were alive at the time of Botswana’s independence. John K.
Modise does not meet the conditions of section 20(2) because, having been born
in South Africa, he is by that fact a South African citizen by simple application of
the law and without him having to take any legal steps to prove his nationality.
Hence, in 1966, he was not a subject of Her Britannic Majesty and of her
colonies, nor a protected person of the English crown. South Africa was not, in
1966, a British colony. Consequently, he did not meet the conditions required for
acquiring Botswana nationality under section 20(2).
71. Section 23(1) concerns the case of those individuals who found themselves in a
similar situation to that of Mr. Modise: in the sense that it provided the possibility of
acquiring Botswana nationality to those persons whose fathers had acquired that
nationality in compliance with section 20(1); but even the children of such persons
were excluded in the light of the provisions of section 20(2). Since Mr. Modise, by
virtue of the legal provisions, could not lay claim to the nationality of the new State
of Botswana either by birth or by parentage [section 20(2)], the law gave him the
possibility of choosing that nationality by naturalisation, section 23(1). This text
provides that all those who had reached the age of majority should apply for their
naturalisation before 1 October 1968. It seems that Mr. Modise who was 33 years old
as of that date had not taken advantage of that possibility which was open to him for
a period of two years. This explains his present difficulties, for since he had not taken
the steps necessary for his naturalisation, in the eyes of the law he was considered as
not being interested.
72. The argument of Mr. Modise and his counsel that he was a Botswana citizen by
birth and by parentage does indeed seem tenuous. In terms of the legal
provisions in force in September 1966, he could not lay claim to the said
nationality. He was born in South Africa and not in the protectorate of
Bechuanaland. He could not claim Botswana nationality by parentage because he
was explicitly excluded therefrom by section 20(2). The proposition that he has
never claimed any other nationality is entirely immaterial – for he did not have
any reason to do so. Having been born in South Africa, he automatically enjoyed
the nationality of that country. That automatically disqualified him from holding
35
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Botswana nationality in compliance with section 20(2). He could, however, by
virtue of the provisions of section 23(1), have opted for the said nationality, but
he did not. The State of Botswana has offered all and sundry the possibility of
making a conscious choice between keeping their nationality-by-birth and
naturalisation as citizen of the new State of Botswana. Mr. John Modise could
not, in this regard, hide behind the excuse of ignorance, because no one is
expected to be ignorant of the law.
73. In reaction to the above claims by the Respondent State, the Complainant's legal
representative submitted that such claims contained several adverse claims of facts,
law, and of mixed facts and law that were untrue, self-contradictory and contested.
74. He contended the claim that when Mr. Modise was deported to South Africa, the
authorities there accepted him as a citizen. He pointed out that Mr. Modise was first
deported to South Africa from Botswana on 17 October 1978, pursuant to a directive
issued on 16 October 1978 by the Permanent Secretary in the Office of the President
of the Respondent State. Upon returning to Botswana four days later on 21 October
1978, he was arrested and charged with re-entering Botswana, while being a
prohibited immigrant.
75. The question as to whether or not South Africa accepted Mr. Modise as a national
was directly addressed in the decision of Hayfron-Benjamin (Chief Justice) in the
appeal of Mr. Modise against his conviction in the case of John K. Modise v The
State, decided by the High Court of the Republic of Botswana on 20th September
1979. The relevant part of the said decision reads:
The acceptance warrant, Exhibit P2, was issued at the Kopfontein Border
Post and was dated 18th December 1978, i.e. two months after the
Immigration Officer says he handed the accused over to the South African
authorities. Cross-examination of the witness (the Immigration Officer,
testifying for the Prosecution) disclosed that he was mistaken as to which
document the South African authorities had signed that day.
He said: " the document P2, the acceptance warrant, is not the one which
was signed by the Immigration Post in South Africa at the time I handed
the accused to the border post…" The prosecution, therefore, closed its case
without clearing up a matter, which apart from any other considerations,
would be a factor in the assessment of the sentence to be imposed. If the
South African authorities were only prepared to accept the appellant in
December, the indications are that he was bundled out of the country
before the necessary preparation for his acceptance had been completed
and before the accused, who had been in the country (Botswana) from
infancy had settled his affairs here.
76. From the above therefore, he claims that this decision, which is still uncontested,
shows that the government of Botswana has never shown and was unable to show
that Mr. Modise had indeed been accepted by the South African authorities as a
national of South Africa. On the contrary, he submits that South Africa did not
accept Mr. Modise, but that Mr. Modise was then banished to the defunct South
36
AHG/229(XXXVII)
ORIGINAL:ENGLISH
African Homeland of Bophuthatswana, whose then government by a letter to Mr.
Modise (Ref. No. 4/6/2/8/818/78) of 6 October 1986 wrote that:
Modise does not appear in the population register of the Citizens of
Bophuthatswana. And that the subject of citizenship is a matter between
you (Mr. Modise) and the Botswana government.
To validate their point, in the same year, the then government of the defunct
Homeland of Bophuthatswana deported Mr. Modise back to Botswana.
77. Regarding the claim that there is no citizenship that can be offered or granted to Mr.
Modise, he averred that such is contradicted by the other claim in the letter to the
Commission by Mr. B. K. Sebele, Permanent Secretary, Ministry of Foreign Affairs
dated 9 December 1998 that: Mr. Modise registered as a citizen under special
circumstances at the direction of the President of the Republic of Botswana,
although he failed to indicate the date on which Mr. Modise was so registered.
He submits that it is impossible to reconcile the claim that the Complainant
registered as a citizen under special circumstances at the direction of the President of
Botswana with the claim by Mr. B. K. Sebele in his letter aforesaid that "There is no
citizenship that can be offered or granted to Mr. Modise". He attested that Mr.
Modise had reported that sometimes in 1998, immigration officials in Lobatse,
Botswana visited him and invited him to sign a document to facilitate the renewal of
his residence permit in Botswana that had expired. When he tried to verify the
document, he was warned that he risked immediate and prompt deportation unless
he signed the document, whereupon he promptly signed. Although he is physically in
Botswana, he has not received any documentation or indication on his current
nationality status from the Respondent State.
78. He disputes as factually untrue the claim that Mr. Modise is responsible for his failure
to enjoy his rights as a citizen of Botswana, by refusing to produce the necessary
documents as proof of his citizenship. In any case, he points out that their
production would not remedy the violations asserted by him in this case.
79. On the issue that Mr. Modise could not and did not become a citizen by descent
under the repealed section 20(2) of the Constitution of Botswana, because he was
neither a British Protected Person nor a citizen of the United Kingdom and colonies
on 29th September 1966, the counsel submits as follows:
The repealed section 20 of the Constitution of Botswana referred to in the letter of
Mr. B. K. Sebele provides:
(1) Every person who, having been in the former Protectorate of
Bechuanaland, is on 29th September, 1966, a citizen of the United
Kingdom and Colonies or a British Protected Person, shall become a
citizen of Botswana on 30th September 1966.
(2) Every person who having been born outside the former Protectorate of
Bechuanaland, is, on 29th September, 1966, a citizen of the United
Kingdom and Colonies or a British protected person, and is not a
citizen of any other country, shall, if his father becomes, or would, but
37
AHG/229(XXXVII)
ORIGINAL:ENGLISH
for his death have become a citizen of Botswana in accordance with the
provisions of sub-section (1) of this section, become a citizen of
Botswana on 30th September, 1966.
80. Counsel submits that since it is common ground that Mr. Modise was born in South
Africa of parents from Botswana, section 20(1) is inapplicable to him. Section 20(2)
is, therefore, the applicable provision. However, in determining whether or not Mr.
Modise was a citizen of the United Kingdom and Colonies or a British Protected
Person on 29th September 1966 can only be made in terms of the British nationality
Act of 1948. The provision of that Act which applies to Mr. Modise is section 12(2),
which provided that:
A person who was a British subject immediately before the date of the
commencement of this Act shall, on that date become a citizen of the
United Kingdom and Colonies and possessed any of the qualification
specified in the last foregoing subsection
The last foregoing subsection referred to in this provision is section 12(1) of the same
Act that provides:
A person who was a British subject immediately before the date of the
commencement of this Act shall on that date become a citizen of the United
Kingdom and Colonies if he possesses any of the following qualification,
that is to say:
(a) That he was born within the territories comprised at the
commencement of this Act in the United Kingdom and Colonies, and
would have been such a citizen if Section four of this Act had been in
force at the time of his birth;
(b) That he is a person naturalised in the United Kingdom and Colonies;
(c) That he became a British subject by reason of the annexation of any
territory included at the commencement of this Act in the United
Kingdom and Colonies;
81. Counsel submits further that it is not in dispute that Mr. John Modise's father,
Samuel Remaphoi Modise and his mother, Elizabeth Ikaneng Modise, were both
born in Goo-Modultwa ward in Kanye of the Bangwaketse in the former
Protectorate of Bechuanaland (now Botswana). John Modise, their son and
Complainant in this case, was born in Cape Town where his father, Samuel
Remaphoi Modise was an immigrant worker, about 1943. Had he (Mr. Samuel
Remaphoi Modise) been alive on 30th September 1966, Samuel Remaphoi Modise
who was born in 1912 would have fulfilled the requirement of Section 12(1)(a) of the
British Nationlity Act of 1948 and, thereby been a national of the United Kingdom
and the Colonies. Thus, by the combined operation of Section 12(1) and (2) and
Section 1 of the British Nationality Act, John Modise, his son, was both a British
subject and a citizen of the United Kingdom and Colonies on the day preceding 30th
September 1966. As a result, he became a citizen of Botswana by descent on 30th
38
AHG/229(XXXVII)
ORIGINAL:ENGLISH
September 1966. The relevant provision of Section 1 of the British Nationality Act
provides:
(1) Every person who under this Act is a citizen of the United Kingdom
and Colonies or who under any enactment for the time being in force in
any country mentioned in subsection (3) of this section is a citizen of
that country, shall, by virtue of that citizenship have the status of a
British subject…
(2) The following are the countries herein before referred to, that is to say,
Canada, Australia, New Zealand, The Union of South Africa,
Newfoundland, India, Pakistan, Southern Rhodesia (now Zimbabwe)
and Ceylon (now Sir Lanka)
82. On the claim by the Respondent State that there are no classes of citizenship in
Botswana for purposes of enjoying rights and privileges, the Complainant's counsel
asserts that apart from the concession by Mr. B. K. Sebele, Permanent Secretary,
Ministry of Foreign Affairs, that 'as a registered or naturalised citizen, one is not
eligible for election as a President', there remain, in addition, in Botswana three more
serious consequences of citizenship by registration. These are:
(a) Citizenship by descent arises by operation of law and by biological facts over which the claimant
has no control. Citizenship by registration on the other hand arises by the interposition of an
administrative act facilitated by acts and facts supplied by the beneficiary.
(b) Citizenship by descent can be transmitted down the line to the children; but citizenship by
registration can only be transmitted to children born after it has been acquired. This is
particularly relevant in this case as all the children of the Complainant are now adults (above
21 years) and would therefore remain stateless even if their father were granted citizenship by
registration.
(c) The manner in which different classes of citizenship may be lost differs. While it takes a
voluntary act of renunciation to lose citizenship by descent, citizenship by registration or
naturalisation can be withdrawn by a directive issued by a Minister of the ruling party or
government.
83. While the decision as to who is permitted to remain in a country is a function of the
competent authorities of that country, this decision should always be made according
to careful and just legal procedures, and with due regard to the acceptable
international norms and standards. In order for the Commission to determine
whether there have been violations of the Charter as alleged by the Complainant, it is
incumbent on it to assess the nationality of the Complainant based on the facts
presented before it. The current circumstances of the Complainant are a result of a
policy decision taken by the Botswana government.
84. The Complainant argues that he has been unjustly deprived of Botswana citizenship.
In the brief submitted by his counsel, it is claimed that the Complainant was born in
South Africa of Samuel Remaphoi Modise (father) and Elizabeth Ikaneng Modise
(mother) from Goo-Modultwa ward in Kanye of the Bangwaketse in the former
Protectorate of Bechuanaland (now Botswana). His father went to work in South
Africa as a migrant worker. These facts are not contested by the Respondent State
39
AHG/229(XXXVII)
ORIGINAL:ENGLISH
(see a copy of a document outlining Botswana Citizenship Law attached to the Note
Verbale of 27 May 1998). In fact, paragraph 3(a) and (b) of the said document
emphatically assert concerning John Modise's father thus: "He was therefore a British
Protected person…At all times he remained a British Protected person" (see also
paragraph 6 of the said document). Paragraph 3(d) and (e) of the said document
assert that John Modise's mother died when he was three months old and his father
brought him to the then Bechuanaland Protectorate (Botswana) to ensure that
relatives take care of him; while his boyhood days are outlined in paragraph 3(e) to
the effect that John subsequently grew up in the Protectorate and regularly travelled
in and out of the Protectorate. The attainment of independence by Botswana on 30th
September 1966 changed things and a new citizenship law was incorporated into the
new Constitution. The State Party reproduced some of the relevant provisions of the
said Constitution. They are sections 20(1) and (2) and 23(1).
85. The main point of contention of the Respondent State is that Mr. Modise could not
and did not become a citizen by descent under the repealed section 20(2) of the
Constitution of Botswana because he was neither a British Protected Person nor a
citizen of the United Kingdom and Colonies on 29th September 1966, being a person
who was born outside the former Protectorate of Bechuanaland (now Botswana).
Granted that John Modise's father was at all times a British Protected person, the
question for determination is what then was his son's (John Modise's) nationality? To
successfully do this, it is necessary to look at the relevant provision of the Botswana
Constitution. The government has cited three provisions, to wit: sections 20(1) and
(2) and 23(1) of the Constitution. Section 20(1) provides:
(1) Every person who, having been born in the former Protectorate of
Bechuanaland, is on 29th September, 1966, a citizen of the United
Kingdom and Colonies or a British Protected Person, shall become a
citizen of Botswana on 30th September 1966.
(2) Every person who having been born outside the former Protectorate of
Bechuanaland, is, on 29th September, 1966, a citizen of the United
Kingdom and Colonies or a British protected person, and is not a
citizen of any of other country, shall, if his father becomes, or would,
but for his death have become a citizen of Botswana in accordance
with the provisions of sub-section (1) of this section, become a citizen of
Botswana on 30th September, 1966.
86. Section 20(1) of the said Constitution is not applicable to this case, for the simple
reason that Mr. John Modise was not born in the former Protectorate of
Bechuanaland. Section 20(2) of the Constitution is the applicable law in this regard,
since Mr. John Modise was born outside the former Protectorate of Bechuanaland of
a British Protected person (his father). Had Mr. Samuel Remaphoi Modise lived on
30 th September 1966, he would, of course, have been a citizen of Botswana by virtue
of the provision of sub-section (1) of this section. The Respondent State does not
dispute this fact. Following the clear wordings of the sub-section, Mr. John Modise
having been born outside the former Protectorate of Bechuanaland of a British
Protected person, would have become a citizen of Botswana but for his father's
death. Mr. John Modise would therefore have become a citizen of Botswana by birth
by the operation of this sub-section. The government's position, stated in its brief
accompanying its Note Verbale of 27th May 1998, and Mr. B. K. Sebele's statement
40
AHG/229(XXXVII)
ORIGINAL:ENGLISH
contained in his letter of 9th December 1998 (Ref: CHA 4/19X(88)PS), that Mr. John
Modise is not covered by section 20(2) of the Constitution of Botswana are neither
convincing nor satisfactory. The Respondent State's Note Verbale referred to above
assigns South African citizenship to Modise as at 30th September 1966 without proof.
Nothing is produced about South African law that confers citizenship on Modise. It
should not be assumed that it is a universal principle that a person automatically
acquires citizenship of the place of birth. It is not Botswana law that determines
South African law.
87. In any event, evidence abounds that the Complainant, Mr. John Modise is not and
has never been accepted in South Africa as a citizen. If that had happened, Mr.
Modise would not have suffered the fate of being deported four times. The refusal
of South Africa to accept him as its citizen forced Mr. Modise to live for eight years
in the "homeland" of Bophuthatswana, and then for another seven years in "No
Man's Land", a border strip between the former South African Homeland of
Bophuthatswana and Botswana. The then government of the defunct Homeland of
Bophuthatswana deported Mr. Modise back to Botswana (see paragraph 75 and 76
above).
88. John Modise's father was a Tswana at the time of independence, 30th September 1966
and his son, the Complainant not having been shown to have any other citizenship,
acquired Botswana citizenship by virtue of section 20(2) of the Constitution of
Botswana in force at the time. The denial of this right is in violation of Articles 3 (2)
and 5 of the Charter. Article 3(2) provides:
Every individual shall be entitled to equal protection of the law
Article 5 on the other hand provides:
Every individual shall have the right to the respect …to the recognition of
his legal status
Having arrived at this, it is therefore not necessary to consider the other provisions
of the Constitution cited by the State Party.
89. The Commission takes notice of the fact that the Complainant, Mr. John Modise as
indicated in the above judgement, had lived in the Republic of Botswana from his
infancy. Mr. John Modise had also worked in Botswana and until 1978, without being
subjected to the rigours of obtaining necessary nationality documents applicable to
citizens by registration, whom the government claims he is. The Commission also
takes notice that the government of Botswana, without acknowledging any
responsibility did take some steps to remedy the Complainant's situation by granting
him a certificate of citizenship in June 1995, under section 9(2) of the Citizenship Act
of Botswana.
90. Deportation or expulsion has serious implications on other fundamental rights of the
victim, and in some instances, the relatives. Having decided on the issue of Modise's
citizenship, the Commission would now advert its mind to the other claims made by
the Complainant, in order to determine whether his rights guaranteed under the
Charter have been violated.
41
AHG/229(XXXVII)
ORIGINAL:ENGLISH
91. The Complainant contends that his incessant deportation, constant threats of
deportation and the accompanying disastrous consequences constitute a violation of
Article 5 of the Charter. The facts of this case reveal that the Complainant was
deported four times to South Africa, and on all these occasions, he was rejected. He
was forced to live for eight years in the "homeland" of Bophuthatswana, and then for
another seven years in "No Man's Land", a border strip between the former South
African Homeland of Bophuthatswana, and Botswana. These acts exposed him to
personal suffering and indignity in violation of the right to freedom from cruel,
inhuman or degrading treatment guaranteed under Article 5 of the Charter. Article 5
of the Charter provides:
Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly…torture, cruel, inhuman
and degrading punishment and treatment shall be prohibited.
92. The deportation also deprived him of his family, and his family, of his support. The
Commission finds this in violation of the Complainant's right to family life enshrined
under Article 18(1) of the Charter. Article 18(1) provides:
The family shall be the natural unit and basis of society. It shall be
protected by the State which shall take care of its physical health and
moral.
93. The Complainant alleges, and the State has not contested that he had been deported
four times from Botswana. The Complainant also detailed his plights as a result of
these acts. In this circumstance, the Commission finds that the said deportations had
greatly jeopardised the Complainant's right to freedom of movement, as a citizen of
Botswana in contravention of his rights under Article 12(1) of the Charter. It also
infringed upon his right to leave and to return to his country guaranteed by Article
12(2) of the Charter. Article 12(1) and (2) provide:
(1) Every individual shall have the right to freedom of movement and
residence within the borders of a state provided he abides by the law.
(2) Every individual shall have the right to leave any country, including
his own, and to return to his country. This right may only be subject to
restrictions, provided for by law for the protection of national security,
law and order, public health or morality
94. The Complainant also claimed to have suffered heavy financial loses, since the
government of Botswana confiscated his belongings and property. The government
of Botswana has not refuted this allegation. It is trite law that where facts go
uncontested by a party, in this case, the Respondent State, such would be taken as
given. The Commission therefore finds the above action of the government of
Botswana an encroachment of the Complainant's right to property guaranteed under
Article 14 of the Charter. Article 14 reads:
The right to property shall be guaranteed. It may only be encroached upon
in the interest of public need or in the general interest of the community
and in accordance with the provisions of appropriate laws.
42
AHG/229(XXXVII)
ORIGINAL:ENGLISH
95. The Complainant alleges that in 1978, he was one of the founders and leaders of an
opposition party, the Botswana National Front. He alleges further that it was as a
result of his political activities that he was declared an "undesirable immigrant" in
Botswana by the government. He contends that citizenship by registration, which the
Respondent government granted to him is in several ways inferior to citizenship by
birth, which he deserves as of right. One of such consequences is that he cannot vie
for the highest elected political office in the country, that is, the presidency of the
Republic of Botswana. This fact has been admitted by B. K. Sebele, Permanent
Secretary, Ministry of Labour and Home Affairs of the Respondent State to the
effect that "Except for being barred to be elected or becoming President of
Botswana, he enjoyed all other rights enjoyed by a citizen of Botswana." (see
paragraph 2, page 3 of Mr. Sebele's letter of 9 December 1998)
96. While this may not seriously affect most individuals, it is apparent that for Mr.
Modise such is a legal disability of grave consequence. Considering the fact that his
first deportation came soon after he founded an opposition political party, it suggests
a pattern of action designed to hamper his political participation. When taken
together with the above action, granting the Complainant citizenship by registration
has, therefore, gravely deprived him of one of his most cherished fundamental rights,
to freely participate in the government of his country, either directly or through
elected representatives. It also constitutes a denial of his right of equal access to the
public service of his country guaranteed under Article 13(2) of the Charter. Article
13 of the Charter provides:
(1) 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
(2) Every person shall have the right of equal access to the public service of his
country.
For the above reasons, the Commission
Finds the Republic of Botswana in violation of Articles 3(2), 5, 12(1) and (2), 13(1) and
(2), 14 and 18(1) of the African Charter
Urges the government of Botswana to take appropriate measures to recognise Mr. John
Modise as its citizen by descent and also compensate him adequately for the violations of
his rights occasioned.
Done at the 28th ordinary session held in Cotonou, Benin
from 23rd October to 6th November 2000
223/98Forum of Conscience / Sierra Leone
Rapporteur:
25 th Session: Commissioner Dankwa
26 th Session: Commissioner Dankwa
27 th Session: Commissioner Dankwa
28 th Session: Commissioner Dankwa
43
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Summary of Facts:
1. The complaint is submitted by the Forum of Conscience, a Sierra Leonian Human
Rights NGO on behalf of 24 soldiers who were executed on 19th October 1998 in
Freetown, Sierra Leone.
2. The Complainant alleges that the 24 soldiers were tried and sentenced to death by a
Court Martial for their alleged roles in the coup that overthrew the elected
Government of President Tijan Kabah.
3. The communication alleges further that the trial of the soldiers by the Court Martial
was flawed in law and in violation of Sierra Leone’s obligation under the African
Charter.
4. It is also alleged that the Court Martial which tried and convicted the above
mentioned victims allowed no right of appeal against conviction or sentence to a
higher tribunal and therefore in breach of Article 7(1) of the African Charter on
Human and Peoples’ Rights.
5. The Complainant contends that the public execution of the 24 soldiers on 19th
October 1998 after being denied right of appeal to a higher tribunal also amounts to
an arbitrary deprivation of the right to life contrary to Article 4 of the African
Charter.
Complaint:
The Complainant alleges violation of articles 1, 4 and 7 (1) (a) and 7(1)(d) of the African
Charter.
Procedure:
6. The communication was received at the Secretariat on 24th October 1998.
7. At its 25th ordinary session held in Bujumbura, Burundi, the Commission postponed
consideration of the communication to its 26th ordinary session.
8. On 11th May 1999, the Secretariat of the Commission notified the parties of this
decision.
9. At its 26th ordinary session held in Kigali, Rwanda, the Commission decided to be
seized of this communication.
10. Between 14th and 19th February 2000 when the Commission’s delegation visited Sierra
Leone on a promotional mission, the subject of the complaint was taken up with
relevant government officials, including the Attorney General of Sierra Leone.
11. On 2nd March 2000, the Secretariat of the Commission informed the parties of the
decision taken by the Commission at its 26th ordinary session.
44
AHG/229(XXXVII)
ORIGINAL:ENGLISH
12. At its 27th ordinary session held in Algeria, the Commission examined the case and
declared it admissible. It requested the parties to furnish it with arguments on the
merits of the case.
13. The above decision was communicated to the parties on 12th July 2000.
LAW
Admissibility
14. The Commission takes note of the fact that the complaint was filed on behalf of
people who were already executed. In this regard, the Commission held that there
were no local remedies for the Complainant to exhaust. Further that even if such
possibility had existed, the execution of the victims had completely foreclosed such a
remedy.
Merits:
15. The Complainant alleges that the decision of the court-martial is not subject to
appeal and is therefore a violation of the victims' rights to fair trial.
16. The facts as submitted by the Complainant disclose that the 24 soldiers were
executed publicly after being deprived of the right of appeal to a higher tribunal. In
its Resolution on the Right to Fair Trial and Legal Assistance in Africa, the
Commission had, in adopting the Dakar Declaration and Recommendations, noted
thus:
"In many African countries Military Courts and Special Tribunals exist
alongside regular judicial institutions. The purpose of Military Courts is
to determine offences of a purely military nature committed by military
personnel. While exercising this function, Military Courts are required
to respect fair trial standards."
17. The Commission notes that the trial in issue was that of a purely military nature, i.e.
for their alleged roles in the coup which overthrew the elected Government. The
Commission is however constrained to hold that the denial of the victim's right of
appeal to competent national organs in a serious offence as this is falls short of the
requirement of the respect for fair trial standards expected of such courts. The
execution of the 24 soldiers without the right of appeal is therefore a violation of
article 7(1)(a) of the Charter. This is more serious given the fact that the said
violation is irreversible.
Article 7(1)(a) of the Charter states:
An individual shall have… the right to appeal to competent
national organs against acts violating his fundamental rights…
18. The Complainant alleges a violation of Article 4 of the African Charter on Human
and Peoples’ Rights which provides that:
Human beings are inviolable. Every human being shall be entitled
to respect for his life… No one may be arbitrarily deprived of this
right.
45
AHG/229(XXXVII)
ORIGINAL:ENGLISH
19. The right to life is the fulcrum of all other rights. It is the fountain through which
other rights flow, and any violation of this right without due process amounts to
arbitrary deprivation of life. Having found above that the trial of the 24 soldiers
constituted a breach of due process of law as guaranteed under Article 7(1)(a) of the
Charter, the Commission consequently finds their execution an arbitrary deprivation
of their rights to life provided for in Article 4 of the Charter.
Although this process cannot bring the victims back to life, it does not exonerate the
government of Sierra Leone from its obligations under the Charter.
20. The Commission notes the failure of the competent authorities of the Republic of
Sierra Leone to respond to its request for additional information and arguments on
the admissibility and merits of the case. It is noted that the Minister of Justice and
Attorney General explained to the Commission’s mission referred to above that the
regulations of the military did not allow for the right of appeal. However, before the
Commission, the African Charter is the yardstick for determining violations. The
rules and regulations governing court martial, to the extent that they do not allow the
right of appeal offend the Charter. But it is noted with satisfaction that the law has
been amended, subsequent to the mission to Sierra Leone, to bring it into conformity
with the Charter.
For the above reasons, the Commission:
Finds the Government of Sierra Leone in violation of Articles 4 and 7(1)(a) of the
African Charter on Human and Peoples' Rights.
Done at the 28th Ordinary Session held in Cotonou, Benin
from 23rd October to 6th November 2000
224/98 Media Rights Agenda / Nigeria
Rapporteur:
25 th Ordinary Session: Commissioner Ben-Salem
26 th Ordinary Session: Commissioner Ben-Salem
27 th Ordinary Session: Commissioner Ben-Salem
46
AHG/229(XXXVII)
ORIGINAL:ENGLISH
28 th Ordinary Session: Commissioner Ben-Salem
______________________________________________________________
Summary of Facts:
1. The communication, which was sent through e-mail is dated 25th May 1998, and was
received at the Secretariat on 26th May 1998
2. The Complaint is filed by Media Rights Agenda, a Nigerian Human Rights NGO
based in Lagos on behalf of Niran Malaolu, Editor of an independent Nigerian daily
Newspaper, The Diet.
3. The author complains that Mr. Niran Malaolu was arrested together with three other
staff of the Newspaper by armed soldiers at the editorial offices of the Diet
Newspaper in Lagos on December 28th, 1997.
4. Neither Niran Malaolu nor his three colleagues were informed of the reasons for
their arrest or shown a warrant of arrest.
5. The three other colleagues who were arrested along with Malaolu were later released.
6. Niran Malaolu continued to be held without charges until 14th February 1998 when
he was arraigned before a Special Military Tribunal for his alleged involvement in a
coup.
7. Throughout the period of his incarceration, Niran Malaolu was not allowed access to
his lawyer, doctor or family members.
8. On 28th April 1998, after a secret trial, Niran Malaolu was found guilty by the tribunal
of the charge of concealment of treason and sentenced to life imprisonment.
9. The Complainant further alleges that Niran Malaolu’s alleged involvement in the
coup is connected with the news stories published by his Newspaper on the coup
plot involving the then Chief of General Staff, Lt. General Oladipo Diya, as well as
other military officers and civilians who have also been convicted by the tribunal and
given sentences ranging from prison terms to death by firing squad.
10. One of such stories was an article entitled "The Military Rumbles Again", which was
published in the Sunday Diet of 28th December 1997 based upon the announcement
by the Military Government of the alleged coup plot it claims to have uncovered.
11. Further, the Complainant alleges that Niran Malaolu was denied the right to be
defended by lawyers of his choice, and instead, assigned a military lawyer by the
tribunal in contravention of the right to fair hearing.
12. The Special Military Tribunal which tried Niran Malaolu was neither competent,
independent nor impartial in that members of the tribunal were hand-picked by the
Head of State, General Sani Abacha, and the Provisional Ruling Council (PRC)
against whom the alleged offence was committed. Besides, the President of the
tribunal, Major-General Victor Malu is also a member of the PRC, which is
47
AHG/229(XXXVII)
ORIGINAL:ENGLISH
empowered by the Treason and Other Offences (Special Military Tribunal) Decree
No. 1 of 1986, to confirm the death sentences passed by the tribunal. These are
alleged to be in violation of the rules of natural justice and, in particular, article 7 (b)
of the Charter.
13. The arraignment and trial of Niran Malaolu, a civilian before the Special Military
Tribunal using special procedures is a breach of Principle 5 of the United Nations
Principles on the Independence of the Judiciary and article 7 of the Charter.
14. The Complainant alleges further that under the provisions of the Treason and Other
Offences (Special Military Tribunal) Decree No. 1 of 1986, which established the
tribunal that tried and convicted the accused, the right of appeal to a higher judicial
authority is completely extinguished and those convicted may only appeal to the
PRC, which composition and interests are as indicated in paragraph 12 above.
15. The Author also contends that the trial of Niran Malaolu in camera was a violation of
recognised international human rights standards, to wit: the right to a fair and public
hearing.
16. Finally, that the arrest, detention, arraignment, trial, conviction and sentence of
Malaolu were in grave breaches of the norms of fair trial as guaranteed in the Charter.
Complaint
17. The Author alleges that the following articles of the African Charter on Human and
Peoples’ Rights have been violated:
Articles 6, 7, 9 and 26.
Procedure:
18. At its 25th ordinary session held in Bujumbura, Burundi, the Commission decided to
be seized of the communication, and requested the Secretariat to notify the Nigerian
Government. It also requested the Secretariat to submit an opinion on the
admissibility of the communication, particularly in accordance with Article 56(7) of
the Charter, vis-à-vis Nigeria's current political situation.
19. On 19th August 1999, the Secretariat of the Commission notified the parties of this
decision.
20. At its 26th ordinary session held in Kigali, Rwanda, the Commission declared the
communication admissible and requested parties to submit written arguments on the
merit of the case.
21. On 17th January 2000, the Secretariat notified parties of the above decision.
22. On 17th February 2000, the Secretariat received a Note Verbale from the High
Commission of the Federal Republic of Nigeria in Banjul, referring to the above
Note Verbale and requesting the Commission to forward the following documents to
the country's competent authorities to enable them prepare for appropriate responses
to the alleged violations:
a) The Draft Agenda for the 27th ordinary session and the letter of invitation to
the session from the Secretariat;
48
AHG/229(XXXVII)
ORIGINAL:ENGLISH
b) A copy of the complaint that was attached to the Secretariat’s Note;
c) A copy of the Report of the 26th ordinary session
23. Further to the above request, the Secretariat of the Commission on 8th March 2000,
forwarded all the documents as requested, except the Report of the 26th ordinary
session, together with a copy of the summary and status of all pending
communications against Nigeria, a copy each of the three communications (Nos.
218/98, 224/98 and 225/98) as submitted by their authors, and a copy of the
written response of the Complainant on the merits of this communication.
24. At its 27th ordinary session held in Algeria, the Commission reviewed the case and
postponed its further consideration to the next session to enable the government of
Nigeria respond to its request for arguments on the merits of the case.
25. On 31st May 2000, the Secretariat received a letter from the Complainant inquiring
about the decision of the Commission at the 27th ordinary session.
26. The above decision was communicated to parties on 6th July 2000. The Secretariat
also acknowledged receipt of the Complainant's letter of 31st May 2000.
27. On 27th September 2000, the Secretariat received a response from the High
Commission of the Respondent State in the Gambia intended to be arguments on
the merits of communications 224/98 and 225/98. The facts therein however
focused on the former communication.
28. On 3rd October 2000, the Secretariat of the Commission acknowledged receipt of
Note Verbale and indicated the discrepancy. Also, a copy of the submission was
forwarded to the Complainant for its observations.
29. During the session of the Commission in Benin, the Respondent State submitted
additional arguments on the matter.
State Party's Response
30. The Government of Nigeria contends that the trial was conducted under a law which
was validly enacted by the competent authority at that time. The Treason and Other
Offences (Special Military Tribunal) Act, Cap 444 of the Laws of the Federation of
Nigeria, 1990 under which Malaolu was tried arose from the ashes of the Treason
and Other Offences (Special Military Tribunal) Decree No.1 of 1986 enacted by the
Military government headed by General Ibrahim Babangida (Rtd.). Malaolu was,
therefore charged, tried, convicted and sentenced to life imprisonment in accordance
with the provisions of a known law.
31. The Government argues that Malaolu was tried along with a number of people
accused of involvement in alleged plot to overthrow the late Gen. Sani Abacha. It
asserts that without going into the merits or demerits of the trial, it was not an
ostensible case of victimisation against Malaolu or his profession. Indeed, one or two
other journalists were also sentenced to imprisonment at the same trial.
32. It claims that the whole episode took place during a prolonged military regime. It is
well known all over the world that military regimes are abnormal regimes and a
49
AHG/229(XXXVII)
ORIGINAL:ENGLISH
painful aberration. There was no way of controlling any wanton acts of abuse of
fundamental rights by a military junta determined to stay in power at all costs, no
matter whose ox was gored.
33. In respect of the allegation that the trial was not fair, it argued that the right to fair
hearing in public was subject to the proviso that the court or tribunal might exclude
from the proceedings persons other than the parties thereto in the interest of
defence, public safety, public order, etc.
34. The government of Nigeria affirms and reiterates its capacity and determination to
defend and promote the rights of its citizens and intends to provide effective and
adequate representation at the hearing of the case.
Additional Response by State Party
35. Mr. Malaolu was arrested, detained, tried and convicted under an existing legislation
made by a “legitimate” military administration, which was imposed on the people of
Nigeria. Be that as it may, the military regime of General Abdulsalami Abubakar,
caused Mr. Malaolu to be granted pardon and he can institute an action in the
ordinary courts on violation of his rights and also petition the Judicial Commission of
Inquiry of Human Rights violations. Meanwhile, the obnoxious enactment has been
repealed.
LAW
Admissibility
36. At its 25th ordinary session held in Bujumbura, Burundi, the Commission requested
the Secretariat to give its opinion on the effect of article 56(7) of the Charter in view
of the prevailing political situation in Nigeria. Relying on the case law of the
Commission, the Secretariat submitted that based on the well established principle of
international law, a new government inherits the previous government’s international
obligations, including responsibility for the previous government’s misdeeds (see
Krishna Achutan and Amnesty International / Malawi, communications
62/92, 68/92 and 78/92).
37. The commission has always dealt with communications by deciding upon the facts
alleged at the time of submission of the communication (see communications
27/89, 46/91 and 99/93). Therefore, even if the situation has improved, such as
leading to the release of the detainees, repealing of the offensive laws and tackling of
impunity, the position still remains that the responsibility of the present government
of Nigeria would still be engaged for acts of human rights violations which were
perpetrated by its predecessors.
38. Furthermore, the Commission noted that although Nigeria is under a democratically
elected government, the new constitution provides in its section 6(6)(d) that no legal
action can be brought to challenge ‘any existing law made on or after 15 January,
1966 for determining any issue or question as to the competence of any authority or
person to make any such law’.
50
AHG/229(XXXVII)
ORIGINAL:ENGLISH
39. For the above reasons, and also for the fact that, as alleged, there were no avenues
for exhausting local remedies, the Commission declared the communication
admissible.
Merits
40. The Complainant alleges that the arrest and subsequent detention of Malaolu was
arbitrary as he was neither shown any warrant of arrest nor informed of the offences
for which he was arrested. Further, that Malaolu was arrested by armed soldiers from
the Directorate of Military Intelligence at his office on 28 December 1997 and
detained incommunicado at a military facility in Lagos until he was moved to Jos,
where his trial took place.
41. This, it is contended, is in contravention of Article 6 of the African Charter on
Human and Peoples’ Rights. The said article provides inter alia:
Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for the reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested and detained.
42. Further to this, the Complainant alleges that until 14 February 1998 (that is, about
two months after his arrest) when he was arraigned before a Special Military Tribunal
for his alleged involvement in a coup, Mr. Malaolu was neither informed of the
reasons for his arrest nor of any charges against him.
43. In its Resolution on the Right to Recourse Procedure and Fair Trial, the
Commission had, in expounding on the guarantees of the right to fair trial under
the Charter observed thus:
… the right to fair trial includes, among other things, the following:
(b) Persons who are arrested shall be informed at the time of arrest, in a
language which they understand of the reason for their arrest and shall be
informed promptly of any charges against them;
44. The failure and/or negligence of the security agents who arrested the convicted
person to comply with these requirements is therefore a violation of the right to
fair trial as guaranteed under Article 7 of the Charter.
45. Complainant alleges a violation of article 7 (1) (a) of the African Charter on Human
and Peoples’ Rights which states:
Every individual shall have the right to have his cause heard. This
comprises:
(a) 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;
46. Complainant contends that the decision of the Tribunal which tried and convicted
Malaolu is not subject to appeal, but confirmation by the Provisional Ruling Council,
51
AHG/229(XXXVII)
ORIGINAL:ENGLISH
the composition of which is clearly partisan. Non-compliance of the competent
authorities of Nigeria to this requirement is in breach of the provision of Article
7(1)(a) of the Charter.
47. Complainant alleges a violation of article 7(1) (b) of the Charter which provides that:
Every individual shall have …the right to be presumed innocent
until proven guilty by a competent court or tribunal
The Complainant alleges in this respect that prior to the setting up of the tribunal,
the Military Government of Nigeria organised intense pre-trial publicity to persuade
members of the public that a coup plot had occurred and that those arrested in
connection with it were guilty of treason. In this regard, it alleges further, any
possible claim to national security in excluding members of the public and the press
from the actual trial by the tribunal cannot be justified, and therefore in breach of the
right to fair trial, particularly, the right to presumption of innocence.
48. The Government has not contested the veracity of the Complainant's submissions.
In this circumstance, the Commission is obliged to accept this as the facts of the case
and therefore finds the Government of Nigeria in violation of Article 7(1)(b) of the
Charter.
49. The Complainant alleges that the exclusion of the members of the public and the
press from the actual trial by the tribunal was not justified, and therefore in breach of
the right to fair trial.
50. The Government argues that the right to fair hearing in public was subject to the
proviso that the court or tribunal might exclude from the proceedings persons other
than the parties thereto in the interest of defence, public safety, public order, etc.
51. Neither the African Charter nor the Commission's Resolution on the Right to
Recourse Procedure and Fair Trial contain any express provision for the right to
public trial. That notwithstanding, the Commission is empowered by Articles 60 and
61 of the Charter to draw inspiration from international law on human and peoples'
rights and to take into consideration as subsidiary measures other general or special
international conventions, customs generally accepted as law, general principles of
law recognised by African States as well as legal precedents and doctrine. Invoking
these provisions, the Commission calls in aide General Comment 13 of the UN
Human Rights Committee on the right to fair trial. Paragraph 6 of the said
Comment states:
The publicity of hearings is an important safeguard in the interest of
the individual and of society at large. At the same time Article 14,
paragraph 1, acknowledges that courts have the power to exclude
all or part of the public for reasons spelt out in that paragraph. It
should be noted that, apart from such exceptional circumstances, the
Committee considers that a hearing must be open to the public in
general, including members of the press, and must not, for instance,
be limited only to a particular category of persons...
52
AHG/229(XXXVII)
ORIGINAL:ENGLISH
52. The exceptional circumstances under the International Covenant on Civil and
Political Rights, which the above Committee monitors are for reasons of morals,
public order or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice the
interests of justice. The Commission notes that these circumstances are exhaustive, as
indicated by the use of the phrase "apart from such exceptional circumstances"
53. The Government has only presented an omnibus statement in its defence to the
effect that the right to fair hearing in public was subject to the proviso that the court
or tribunal might exclude from the proceedings persons other than the parties
thereto in the interest of defence, public safety, public order, etc. It has not
specifically indicated which of these circumstances prompted it to exclude the public
from such trial. The Commission therefore considers the argument not sufficient
enough to avail the Government of Nigeria such defence.
54. Considering the fact that as alleged by the Complainant, prior to the setting up of the
tribunal, the Government had organised intense pre-trial publicity to persuade
members of the public of the occurrence of a coup and the involvement of those
arrested in connection to it, the Commission is constrained to find the exclusion of
the same public in the actual trial unjustified and in violation of the victim's right to
fair trial guaranteed under Article 7 of the Charter.
55. It is alleged that prior to his arraignment, precisely, for the 49 days he was detained,
Mr. Malaolu was not allowed access to his lawyer, neither was he given the
opportunity to be represented and defended by a Lawyer of his own choice at the
trial. Rather, he was assigned a military Lawyer by the Tribunal. The Complainant
submits that by refusing Mr. Malaolu access to his lawyer, the government of
Nigerian was in contravention of Article 7(1) (c) of the Charter which provides:
Every individual shall have the right to defence, including the right to be
defended by counsel of his choice.
56. In its Resolution on the Right to Recourse and Fair Trial, the Commission in reenforcing this guarantee observed in paragraph 2 (e) (i) thus:
In the determination of charges against individuals, the individual shall be
entitled in particular to:
(i) … communicate in confidence with counsel of their choice
The denial of this right therefore is a violation of these basic guarantees.
57. The Complainant alleged that the Special Military Tribunal which tried the convicted
person was neither competent, independent nor impartial because members of the
Tribunal were selected by the Head of State, General Sani Abacha, and the
Provisional Ruling Council (PRC), against whom the alleged offence was committed.
Some members of the Tribunal are also serving army officers. For instance, the
President of the Tribunal, Major-General Victor Malu is also a member of the
Provisional Ruling Council, which is empowered by the Treason and Other Offences
(Special Military Tribunal) Decree No. 1 of 1986, to confirm the sentences passed by
53
AHG/229(XXXVII)
ORIGINAL:ENGLISH
the Tribunal. This is a breach of the right to a fair trial as stipulated in article 7(1) (d)
of the Charter.
Article 7 (1) (d) states:
Every individual shall have… the right to be tried… by an
impartial court or tribunal
58. The Government has not refuted this specific claim. It only states that the Treason
and Other Offences (Special Military Tribunal) Act, Cap 444 of the Laws of the
Federation of Nigeria, 1990 under which Malaolu was tried arose from the ashes of
the Treason and Other Offences (Special Military Tribunal) Decree No. 1 of 1986
enacted by the then Military Government headed by General Ibrahim Babangida
(Rtd.). Further, it asserts that its submission would not address the merits or demerits
of the trial.
59. The Commission is not taking an issue with the history and origin of the laws nor the
intention why they were promulgated. What is of concern here to the Commission is
whether the said trial conforms to the fair hearing standards under the Charter. The
Commission is of the opinion that to answer this question, it must necessarily
consider the merits or demerits of the trial, an issue the Government does not want
to be involved in.
60. Consequently, the Commission finds the selection of serving military officers, with
little or no knowledge of law as members of the Tribunal in contravention of
Principle 10 of the Basic Principles on the Independence of Judges. The said
Principle states:
Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law.
61. In the same vein, the Commission considers the arraignment, trial and conviction of
Malaolu, a civilian by a Special Military Tribunal, presided over by serving military
officers, who are still subject to military commands, without more, prejudicial to the
basic principles of fair hearing guaranteed by Article 7 of the Charter.
62. It is fitting, in this regard, to cite the Commission's general position on the issue of
trials of civilians by Military Tribunals. In its Resolution on the Right to Fair Trial
and Legal Assistance in Africa, the Commission had, while adopting the Dakar
Declaration and Recommendations noted thus:
"In many African countries Military Courts and Special Tribunals exist
alongside regular judicial institutions. The purpose of Military Courts is to
determine offences of a pure military nature committed by military
personnel. While exercising this function, Military Courts are required to
respect fair trial standards."
They should not, in any circumstances whatsoever, have jurisdiction over civilians.
Similarly, Special Tribunals should not try offences that fall within the jurisdiction of
regular courts.
63. The Commission considers the said trial, which has not been refuted by the
Respondent State, save to the extent that it was done under a law validly enacted by
54
AHG/229(XXXVII)
ORIGINAL:ENGLISH
the competent authority at the time, in contravention of the right to fair trial
guaranteed under Article 7 of the Charter. The Commission also finds the setting up
of the said tribunal for the trial of treason and other related offences as impinging on
the independence of the judiciary, in as much as such offences are being recognised
in Nigeria as falling within the jurisdiction of the regular courts.
64. The Commission also finds the trial in contravention of the basic principle of fair
hearing contained in Principle 5 of the United Nations Basic Principles on the
Independence of the Judiciary (The UN Basic Principles) and article 7 (1) (d) of the
African Charter. Principle 5 of the UN Basic Principles stipulates:
Everyone shall have the right to be tried by the ordinary courts or
tribunals using established legal procedures. Tribunals that do not use the
duly established procedures of the legal process shall not be created to
displace the jurisdiction belonging to the ordinary courts or judicial
tribunals..
65. Furthermore, in its General Comment on a similar provision of Article 14 of the
International Covenant on Civil and Political Rights, the Human Rights Committee
observed:
The provisions of article 14 apply to all courts and tribunals within the
scope of that article whether ordinary or specialise. The Committee notes
the existence, in many countries, of military or special courts which try
civilians. This could present serious problems as far as the equitable,
impartial and independent administration of justice is concerned…While
the Covenant does not prohibit such categories of courts, nevertheless the
conditions which it lays down clearly indicate that trying of civilians by
such courts should be very exceptional and take place under conditions
which genuinely afford the full guarantees stipulated in article 14.
(See also its Comment on the Report of Egypt - UN Doc. CCPR/79/Add.
3, paragraph a of August 1993)
66. It could not be said that the trial and conviction of Malaolu by a Special Military
tribunal presided over by a serving military officer, who is also a member of the PRC,
a body empowered to confirm the sentence, took place under conditions which
genuinely afforded the full guarantees of fair hearing as provided for in Article 7 of
the Charter. This is also in contravention of Article 26 of the Charter which states:
State parties to the present Charter shall have the duty to guarantee the
independence of the courts and shall allow the establishment and
improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the
present Charter.
67. It is also contended by the Complainant that Malaolu is being punished by Nigeria’s
Military Government over news stories published by his Newspaper relating to an
alleged coup plot involving Nigeria’s’ Chief of Staff and Second -in- Command, Lt.
General Oladipo Diya and other military officers and civilians. This is alleged to be in
55
AHG/229(XXXVII)
ORIGINAL:ENGLISH
contravention of his right to freedom of expression enshrined in Article 9 of the
Charter.
68. The Government argues that Malaolu was tried along with a number of people
accused of involvement in alleged plot to overthrow the late Gen. Sani Abacha. It
contends that the trial was not an ostensible case of victimisation against Malaolu or
his profession, but rather that one or two other journalists were also sentenced to
imprisonment at the same trial.
69. Considering the facts at the disposal of the Commission and the response of the
Government, the Commission takes the view that it was only Mr. Malaolu’s
publication which led to his arrest, trial and conviction and therefore finds that in
violation of Article 9 of the Charter as alleged.
70. The Complainant avers that while Mr. Malaolu was in detention, he was subjected to
such cruel, inhuman or degrading treatment, as having his legs and hands chained to
the floor day and night. From the day he was arrested and detained, until the day he
was sentenced by the tribunal, a total period of 147 days, he was not allowed to take
his bath. He was given food twice a day, and while in detention, both in Lagos and
Jos before he faced the Special Investigation Panel that preceded the trial at the
Special Military Tribunal, he was kept in solitary confinement in a cell meant for
criminals. The Complainant submits further that the treatment meted out to Mr.
Malaolu contravened Article 5 of the Charter. Article 5 provides:
Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.
Principle 1 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment provides:
All persons under any form of detention or imprisonment shall be treated
in a humane manner and with respect for the inherent dignity of the
human person.
Further, Principle 6 states:
No person under any form of detention or imprisonment shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment. No
circumstance whatever may be invoked as a justification for torture or
other cruel, inhuman or degrading treatment or punishment.
71. It is worth noting that the term ‘cruel, inhuman or degrading treatment or
punishment’ is to be interpreted so as to extend to the widest possible protection
against abuses, whether physical or mental.
56
AHG/229(XXXVII)
ORIGINAL:ENGLISH
72. The Government has not denied these allegations. Indeed, it has made it clear that it
is not contesting the merits or demerits of the case. In the absence of any
information to the contrary from the Government, the Commission finds the various
forms of treatments meted to Mr. Malaolu while in detention, in violation of the
victims right to respect and dignity and right to freedom from inhuman or degrading
treatment guaranteed under Article 5 of the Charter and reinforced by the above
Basic Principles. (See communications 64/92, 68/92 and 78/92 ( Krishna
Achuthan on behalf of Aleke Banda, Amnesty International on behalf Orton
and Vera Chirwa) / Malawi), communications 27/89, 46/91, 49/91 and
99/93 ( Organisation Mondiale Contre La Torture and Association
Internationale des Juristes Démocrates, Commission Internationale des Juristes
(C.I.J), Organisation Mondiale Contre La Torture and Union Interafricaine
des Droits de l'Homme / Rwanda), respectively.
73. Although not an issue, the Commission notes that the alleged violations took place
during a prolonged military rule and that such regimes, as rightly pointed out by the
Government are abnormal (see the Commission's Resolution on the Military,
adopted at the 16th ordinary session in Banjul, the Gambia). The Commission
sympathises with the Government of Nigeria over this awkward situation but
however asserts that this does not in any way diminish its obligations under the
Charter, nor the violations committed prior to its coming into office.
74. Finally, the Commission finds it necessary to clarify the position regarding the claim
of the Government of Nigeria to the effect that the trial was conducted under a law
validly enacted by the competent authority at the time. Also that the victim was
charged, tried, convicted and sentenced in accordance with the provisions of such a
law.
75. In this regard, the Commission recalls its decision in communication 147/95 and
149/96, Sir Dawda Jawara / The Gambia, wherein it stated thus: "For a State to
avail itself of this plea, it must show that such a law is consistent with its
obligations under the Charter". It is therefore not enough for a State to plead the
existence of a law, it has to go further to show that such a law falls within the
permissible restrictions under the Charter and therefore in conformity with its
Charter obligation. No such reasons have been adduced in the instant case. The
Commission therefore rejects this argument.
For these reasons, the Commission
Finds the Republic of Nigeria in violation of Articles 3(2), 5, 6, 7 (1) (a), (b), (c), (d), 9
and 26 of the African Charter and Principle 5 of the UN Basic Principles on the
Independence of the Judiciary.
Urges the Republic of Nigeria to bring its laws in conformity with the provisions of the
Charter.
Done at the 28th session held in Cotonou, Benin
from 23rd October to 6th November 2000.
225/98
Huri-Laws / Nigeria
_______________________________________________________________
57
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Rapporteur:
25 th Ordinary Session: Commissioner Ben-Salem
26 th Ordinary Session: Commissioner Ben-Salem
27 th Ordinary Session: Commissioner Ben-Salem
28 th Ordinary Session: Commissioner Ben-Salem
Summary of Facts:
1.
The communication is submitted by Huri-Laws, a Non-Governmental
Organisation (NGO) registered in Nigeria on behalf of the Civil Liberties
Organisation (CLO), another Nigerian human rights NGO based in Lagos.
2.
This communication was received at the Secretariat on 24th October 1998, during
the 24th ordinary session.
3.
It alleges that since the formation of Civil Liberties Organisation on 15th October
1987, it has experienced all forms of harassment and persecutions from the
Nigerian Government.
4.
These harassment and persecutions have always been carried out in the form of
arrests and detention of key members and staff of the Organisation and by way of
raids and searches without warrants in the Organisation’s offices by its Security
Agency, the State Security Services (SSS).
5.
One of such acts occurred on 7th November 1997, when Mr. Ogaga Ifowodo. A
Lawyer with the Organisation was arrested at the Nigeria - Benin border while
returning from the Commonwealth Summit in Edinburg, Scotland.
6.
It is alleged that officers of the National Drug Law Enforcement Agency initially
arrested Mr. Ogaga.
7.
He was first detained at 15 Awolowo Road, Ikoyi, Headquarters of the State
Security Service (SSS) for a few weeks before being transferred to Ikoyi Prisons,
where he was held until April 1998.
8.
The Complainant alleges that the victim was detained in a sordid and dirty cell
under inhuman and degrading conditions. He was denied medical attention and
access to his family and lawyer. He was also denied access to journals, newspapers
and books.
9.
It is further alleged that he was tortured and rigorously interrogated, and that at
no time during his detention was he informed of any charges against him, nor
were any charges ever brought against him.
10.
In another incident which the Complainant contends adds up to the policy of
persecutions on the part of the Respondent State, it is alleged that the Federal
Military Government of Nigeria and its agents, in exercise of the powers under
the State Security (Detention of Persons) Decree No. 2 of 1984 (as amended in
58
AHG/229(XXXVII)
ORIGINAL:ENGLISH
1990), arrested and detained Mr. Olisa Agbakoba without charge or trial between
8 May and 26 June 1998.
11.
It is alleged that Agbakoba, founder and board member of Civil Liberties
Organisation was arrested at Lagos airport on his return from Europe and
detained at the SSS detention centre at Awolowo Road, Ikoyi, Lagos for 5 weeks.
12.
On 10th May 1998, Mr. Agbakoba accompanied by officers of the SSS was
brought to the offices of Civil Liberties Organisation for a search of the premises.
Finding few employees present, because it was a non-working day, they departed.
13.
On 11th May 1998, at about 10.30 a.m. Mr. Agbakoba was again brought by about
30 agents of the SSS, who raided Civil Liberties Organisation’s headquarters in
Lagos, apparently in search of incriminating materials on the activities of the
United Action for Democracy (UAD) and CLO’s involvement in its activities and
rallies against the military dictatorship of Late General Sani Abacha and his selfsuccession bid.
14.
It is further alleged that for about 7 hours, the agents of SSS carried out a
thorough search on the offices of CLO from room to room, breaking down
doors and ripping open drawers and cabinets in search of documents. During this
time, all the staff present were kept confined to the library, only one at a time
being summoned to assist with the searching of their desks.
15.
At the end of the search, thirteen computers, official files and diskettes were
carted away by the SSS operatives. Most of files and documents were copied and
photocopied.
16.
Despite various protests by the staff, no warrant of arrest was presented to justify
the search.
17.
Furthermore, 5 staff of CLO were arrested and detained at the Awolowo Road
office of the SSS. Three were released the same night, while Mr. Okezie
Ugochukwu and Ibrahim Ismail were detained for 2 days and nights and made to
pass through very horrendous interrogation proceedings.
18.
After their release, they were mandated to report on a daily basis to the SSS
office, where they underwent continuing interrogations.
19.
The Complainant alleges further that all but one computer were released.
20.
It is also alleged that Mr. Agbakoba was later removed to Enugu Prison, 600 km
east of Lagos.
21.
The Complainant alleges further that throughout his period of detention, Mr.
Agbakoba was neither charged with any crime, nor allowed access to his family,
friends, doctors, or lawyers. He was later released on 26 May 1998.
It is alleged that lawsuits were filed at the Federal High Court by Huri-laws
challenging the arrest and detention of Mr. Agbakoba, and by CLO challenging
the arrest and detention of Mr. Ifowodo, but these suits were unsuccessful since
22.
59
AHG/229(XXXVII)
ORIGINAL:ENGLISH
the State Security (Detention of Persons) Decree No. 2 of 1984 oust the
jurisdiction of the regular courts.
Complaint
23.
The Complainant alleges violations of articles 5, 6, 7, 9, 10, 14 and 26 of the
Charter.
Procedure:
24.
At its 25th ordinary session held in Bujumbura, Burundi, the Commission decided
to be seized of the communication, and requested the Secretariat to notify the
Nigerian Government. It also requested the Secretariat to submit an opinion on
the admissibility of the communication, particularly in accordance with Article
56(7) of the Charter, vis-à-vis Nigeria’s current political situation.
25.
On 19th August 1999, the Secretariat of the Commission notified the parties of
this decision.
On 21st October 1999, the Secretariat received a letter from the Complainant
informing it that they would not attend the 26th ordinary session due to lack of
funds, but authorised Ms Julia Harrington of the Institute for Human Rights and
Development to represent them.
26.
27.
During the 26th ordinary session held in Kigali, Rwanda, the Secretariat received a
submission from Ms Julia Harrington on Additional Information relating to the
Admissibility of the communication.
28.
At its 26th ordinary session held in Kigali, Rwanda, the Commission declared the
communication admissible and requested parties to submit written arguments on
the merit of the case.
29.
On 17th January 2000, the Secretariat notified parties of the above decision.
30.
On 17th February 2000, the Secretariat received a Note Verbale from the High
Commission of the Federal Republic of Nigeria in Banjul, referring to the above
Note Verbale and requesting the Commission to forward the following
documents to the country's competent authorities to enable them prepare for
appropriate responses to the alleged violations:
(a) The Draft Agenda for the 27th ordinary session and the letter of invitation
to the session from the Secretariat;
(b) A copy of the complaint that was attached to the Secretariat’s Note;
(c) A copy of the Report of the 26th ordinary session.
31.
Further to the above request, the Secretariat of the Commission on 8th March
2000, forwarded all the documents as requested, except the Report of the 26th
ordinary session, together with a copy of the summary and status of all pending
communications against Nigeria, as well as a copy each of the three
communications (Nos. 218/98, 224/98 and 225/98) as submitted by their
authors.
60
AHG/229(XXXVII)
ORIGINAL:ENGLISH
32.
On 21st March 2000, the legal representative of the Complainant sent a letter to
the Secretariat informing it that she would present oral arguments on the merits
of the case and requested for likely dates of such presentation.
33.
By letter of 22nd March 2000, the Secretariat informed her of the possible date
and drew her attention to the necessity of submitting a copy of the address to it
before presentation.
34.
At its 27th ordinary session held in Algeria, the Commission deferred taking a
decision on the merits of the case to the 28th ordinary session scheduled for
Republic of Benin.
35.
The above decision was communicated to parties on 6th July 2000.
LAW
Admissibility
36.
At its 25th ordinary session held in Bujumbura, Burundi, the Commission
requested the Secretariat to give its opinion on the effect of article 56(7) of the
Charter in view of the prevailing political situation in Nigeria. Relying on the case
law of the Commission, the Secretariat submitted that based on the well
established principle of international law, a new government inherits the previous
government’s international obligations, including responsibility for the previous
government’s
misdeeds
(see
Krishna Achutan and Amnesty
International/Malawi, communications 62/92, 68/92 and 78/92).
37.
The commission has always dealt with communications by deciding upon the
facts alleged at the time of submission of the communication (see
communications 27/89, 46/91 and 99/93). Therefore, even if the situation has
improved, such as leading to the release of the detainees, repealing of the
offensive laws and tackling of impunity, the position still remains that the
responsibility of the present government of Nigeria would still be engaged for
acts of human rights violations which were perpetrated by its predecessors.
38.
Furthermore, it submitted that the Commission should not be swayed by the
political situation in the country as that is capable of foreclosing the
Complainants’ right to fair hearing, especially where they may be desirous of
remedying the alleged violations. In any case, it noted that although Nigeria is
now under a democratically elected government, the new constitution provides
by its section 6(6)(d) that no legal action can be brought to challenge ‘any existing
law made on or after 15th January, 1966 for determining any issue or question as
to the competence of any authority or person to make any such law’.
39.
For the above reasons, and also for the fact that, as alleged, there were no
avenues for exhausting local remedies, the Commission declared the
communication admissible.
Merits
40.
The Complainant alleges a violation of article 5 of the Charter with respect to Mr.
Ogaga Ifowodo only. Article 5 states:
61
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status.
All forms of exploitation and degradation of man particularly
slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited.
It is alleged that Mr. Ogaga Ifowodo was detained in a sordid and dirty cell under
inhuman and degrading conditions. Also that being detained arbitrarily, not
knowing the reason or duration of detention, is itself a mental trauma. Moreover,
added to this deprivation of contact with the outside world and health
threatening conditions, it amounts to cruel, inhuman and degrading treatment.
Principle 1 of the UN Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment provides:
All persons under any form of detention or imprisonment shall be
treated in a humane manner and with respect for the inherent
dignity of the human person.
Further, Principle 6 states:
No person under any form of detention or imprisonment shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment. No circumstance whatever may be invoked as a
justification for torture or other cruel, inhuman or degrading
treatment or punishment.
It is worth noting that the term ‘cruel, inhuman or degrading treatment or
punishment’ is to be interpreted so as to extend to the widest possible
protection against abuses, whether physical or mental (See UN Body of
Principles).
41.
The prohibition of torture, cruel, inhuman or degrading treatment or punishment
is absolute. However, as observed by the European Court of Human Rights in
Ireland v. United kingdom when called upon to decide on similar provision of
the European Convention on Human Rights “…the treatment prohibited under
Article 3 of the Convention is that which attains a minimum level of severity
and…the assessment of this minimum is, in the nature of things, relative…. It
depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age and state
of health of the victim etc." (Judgement of 18th January 1987, series A no. 25
para. 162; see also the European Commission on Human Rights decision in Jose
Antonio URRUTIKOETXEA v. France, Decision of 5th December 1996, p.
157). The treatment meted out to the victim in this case constitutes a breach of
the provision of Article 5 of the Charter and the relevant international human
rights instruments cited above. Also the denial of medical attention under health
threatening conditions and access with the outside world do not fall into the
province of ‘the respect of the dignity inherent in a human being and to the
recognition of his legal status’, nor is it in line with the requirement of Principles
1 and 6 of the UN Body of Principles for the Protection of All Persons under
62
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Any Form of Detention or Imprisonment. This, therefore, is a breach of article 5
of the Charter.
42.
The Complainant alleges that the detention of Ogaga Ifowodo and Olisa
Agbakoba under the State Security (Detention of Persons) Decree No. 2 1984
(as amended in 1990) is a violation of their guaranteed right to freedom from
arbitrary detention under Article 6 of the Charter. This is a violation of
Article 6 of the Charter which provides:
Every individual shall have the right to liberty and to the security
of his person. No one may be deprived of his freedom except for the
reasons and conditions previously laid down by law. In particular,
no one may be arbitrarily arrested and detained.
43.
Closely related to the above violation of Article 6 provision is the violation of the
victims’ right to fair hearing. The Complainant states that up to the date of filing
this communication no reason has been given for the victims’ arrest and
detention, nor has any charges been pressed against them.
In expounding on the guarantees of the right to fair trial under the Charter, the
Commission observed in its Resolution thus:
…the right to fair trial includes, among other things, the
following:
(b) Persons who are arrested shall be informed at the time of arrest,
in a language which they understand of the reason for their arrest
and shall be informed promptly of any charges against them;
44.
The failure and/or negligence of the security agents of the Respondent
Government to scrupulously comply with these requirements is therefore a
violation of the right to fair trial as guaranteed under the African Charter.
45.
The Complainant alleges violation of Article 7 (1) (a) and (d) of the Charter in
that Mr. Ifowodo and Agbakoba had no legal remedies available with which
they could challenge their detentions. Further, that the absolute ouster of the
jurisdiction of the court to adjudicate on the legality or otherwise of acts done
under the Decree is a violation of the above provision, and also a
contravention of Article 26 of the Charter.
Article 7(1) of the African Charter states:
Every individual shall have the right to have his cause heard. This
comprises:
(a) 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;
Article 7 (1) (d) states:
63
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Every individual shall have… the right to be tried within
reasonable time by an impartial court or tribunal .
This is reinforced by Paragraph 2 (c) of the Commission’s Resolution on Fair
trial, which provides:
Persons arrested or detained shall be brought promptly before a
judge or other officer authorised by law to exercise judicial power
and shall be entitled to trial within reasonable time or to be
released.
46.
The refusal and/or negligence on the part of the Respondent Government to
bring Messrs. Ifowodo and Agbakoba promptly before a judge or other judicial
officer for trial is therefore a violation of Article 7 (1) (d) of the Charter. This is
also in violation of Article 26 which stipulates:
State parties to the present Charter shall have the duty to guarantee
the independence of the courts and shall allow the establishment
and improvement of appropriate national institutions entrusted
with the promotion and protection of the rights and freedoms
guaranteed by the present Charter.
47.
The Complainant contends that CLO is human rights organisation, permitting its
employees the opportunity to work together towards respect for human rights
through organised programmes. Such programmes are aimed at enlightening the
people of their rights. The persecution of its employees and raids of its offices in
an attempt to undermine its ability to function in this regard, amount to an
infringement of Articles 9 and 10 of the Charter providing for the rights to
freedom of expression and association respectively.
Article 9 of the Charter provides:
(1) Every individual shall have the right to receive information.
(2) Every individual shall have the right to express and disseminate
his opinions within the law.
48.
The complaint above is therefore a violation of this provision. On the other
hand, Article 10 states:
(1) Every individual shall have the right to free association
provided that he abides by the law.
In its Resolution on the Right to Freedom of Association, the Commission
observed thus:
(1)
The competent authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by
the constitution and international standard;
64
AHG/229(XXXVII)
ORIGINAL:ENGLISH
(2)
In regulating the use of this right, the competent authorities
should not enact provisions which would limit the exercise of
this freedom;
(3)
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.
49.
The above acts of the Respondent State constitute a violation of Article 10 of the
Charter.
50.
The Complainant alleges that the arrest and detention of Messrs Ifowodo and
Agbakoba while returning from trips abroad is a violation of Article 12 (2) of
the Charter. In this regard, it is contended that when re-entry points become
sites of frequent harassment and arrest, freedom of movement is infringed.
Further that the Charter provides for restrictions on the right to freedom of
movement only by law for the protection of national security, law and order,
public health or morality. The arrest and subsequent detentions of the two
men is unjustified by any appeal to these restrictions.
Articles 12 (1) and (2) state:
(1) Every individual shall have the right to freedom of movement
and residence within the borders of a state provided he abides
by the law.
(2) Every individual shall have the right to leave any country
including his own, and to return to his country. This right may
only be subject to restrictions, provided for by law for the
protection of national security, law and order, public health or
morality.
51.
The said encroachment, not being in consonance with the above restrictions is,
therefore a violation of the victims' right to freedom of movement under Article
12 (1) and (2) of the African Charter.
52.
The Complainant alleges that the search without warrant of CLO's premises
and the seizure of its property is a violation of Article 14 of the Charter. It is
contended that Article 14 implies that owners have the right to undisturbed
possession, use and control of their property however they deem fit.
Article 14 of the African Charter provides:
The right to property shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general
interest of the community and in accordance with the provisions of
appropriate laws.
65
AHG/229(XXXVII)
ORIGINAL:ENGLISH
53.
54.
The Complainant further contends that no evidence was ever offered of public
need or community interest to justify the search and seizure. The said
encroachment therefore is a violation of Article 14 of the Charter.
Unfortunately, to date, the government of the Federal Republic of Nigeria has
neither responded to the Commission's request for additional
information/observations nor for the arguments on the merits of the case. In
these circumstances, the Commission is therefore compelled to accept the facts
of the Complainant as the facts of this case.
For the above reasons, the African Commission
Finds the Federal Government of Nigeria in violation of Articles 5, 6, 7(1)(a) and (d), 9,
10(1), 12(1) and (2), and 14 of the African Charter.
Done at the 28th Ordinary Session held in Cotonou, Benin
from 23rd October to 6th November 2000
66
AHG/229(XXXVII)
ORIGINAL:ENGLISH
231/99 - Avocats Sans Frontières (on behalf of Gaëtan Bwampamye)/ Burundi
________________________________________________________________
Rapporteur:
26 th Session: Commissioner Rezag-Bara
27 th Session: Commissioner Rezag-Bara
28 th Session: Commissioner Rezag-Bara
Summary of Facts:
1. Lawyers Fabien Sagatwa, Moussa Coulibaly and Cédric Vergauwen, respectively
called to the bars of Burundi, Niger and Brussels and members of ‘‘Avocats Sans
Frontières’’ in Burundi and acting on behalf of Mr. Gaetan Bwampamye, currently
detained at the Mpimba Prison (Bujumbura) present the facts of the case as follows:
2. On 25th September 1997, Mr. Gaëtan Bwampamye was sentenced to death by the
Criminal Chamber of the Appeal Court of Ngozi after being convicted for having in
Ruhoro on 21 October 1993, as author, co-author or accomplice, incited the
population to commit crimes and for having under the same circumstance, organised
as attack geared towards provoking massacres, set up barricades with a view to
hindering the enforcement of public order; all offences under Articles 212, 417 and
425 of the Penal Code of Burundi.
3. On 2nd October 1997, he filed an appeal with the Supreme Court of Burundi. In
support of his appeal, he invoked six grounds, including the violation of article 75 of
the Penal Procedure Code of Burundi, Article 14 paragraph 3(d) of the International
Covenant on Civil and Political Rights, as well as Article 51 of Decree No. 100/103
of 29 August 1979, defining the status of the profession of Lawyers. According to
the Complainants, the latter argument was invoked by the accused to denounce the
fact that he was denied the services of his counsel during the public prosecution’s
closing address and that, in spite of his request for assistance, he was compelled to
prepare his own defence.
4. The Complainants assert that on 3rd June 1997, the Criminal Chamber of the Court
of Appeal closed the hearing of the witnesses, and on account of the volume of the
case, decided to adjourn the hearing to 20th August 1997.
5. During the hearing of 20th August 1997, the prosecution refused to make its closing
address, arguing that it needed more time to study the contents of the statement of
the defence counsel. The Criminal Chamber therefore decided to adjourn the case to
25 th September 1997. On that day, the counsel for the defence was unable to attend
the hearing due to ill-health. Inspite of the repeated request of Mr. Bwampanye for
the case to be adjourned to another date, the Chamber decided to hear the
prosecution, and compelled the accused to defend himself, without the assistance of
his lawyer. The verdict sentencing him to death was rendered that same day at the
end of the submissions.
67
AHG/229(XXXVII)
ORIGINAL:ENGLISH
6. The Complainants point out that the Supreme Court had rejected this argument
invoked before it by the accused, who wanted the ruling of the Ngozi Court of
Appeal quashed on the grounds that for the Court, the law does not obligate the
judge to designate a lawyer, but he may do so.
7. The Supreme Court continues in the following terms “further whereas for the
specific case in question, the accused has always been assisted by a lawyer, the
evidence being, that his lawyer had already submitted his 19 page written arguments
on 20th August 1997, that furthermore they had already pleaded together in the public
hearing, whereas in the face of such situation, the plaintiff has no justification in
saying that the judge should have designated a lawyer for him whereas he already had
one who had already accomplished all the essential duties expected of a lawyer; that
consequently, this argument is also to be rejected”.
8. This line of argument of the Supreme Court is challenged by the Complainants who
raise a certain number of points of law, including inter alia, the ignorance according
to them by the said Court of the principles of the right of defence and judicial
assistance. They claim that, this ruling of the Supreme Court is not only contrary to
the provisions of article 73 of Burundi’s Criminal Procedure Code which
unequivocally establishes the right to judicial assistance but also the general principle
of oral submissions in criminal proceedings.
9. They assert on the one hand that “whilst it is customary for a lawyer to communicate
his pleas to the prosecution before the closing address of the latter, no written rule
requires him to do so”. On the other hand, the Complainants assert that “the lawyer
is obviously never bound by the contents of a statement of defence deposited before
the hearing. Such a statement therefore is not exhaustive and may only be confined
to certain aspects of the case and not focus on issues that the defence intends to
elaborate on later at the bar. Counsel for the defence may also renounce certain
arguments contained in his note, depending on for instance the issues raised by the
prosecution. This freedom is at the very core of the rights of the defence. Before any
decision, they assert, there is the unconditional right to oral submissions and freedom
of speech”.
10. The Complainants assert that this same freedom of speech was accorded to the
prosecution, and recall that the “ prosecutor is never bound by the written closing
speeches of his office.” The principle is furthermore established by the old saying
that “the written word is not, as free as the spoken word”. They vehemently assert,
that in indicating in its judgement that the lawyer had already submitted a 19-page
statement of defence and that in this respect, he had accomplished all the
fundamental duties of a lawyer” the Court ignores all the principles that have just
been set forth and, consequently, authorises a blatant violation of the rights of the
defence in general and the rights of judicial assistance in particular”.
11. On the basis of the foregoing, the Complainant whilst stressing that the aim of the
present complaint is to highlight the above-mentioned violations, call on the
Commission to rule that:
(a) By refusing Mr. Gaetan Bwampamye the assistance of his legal Counsel to
plead his case, the Criminal Chamber of the Ngozi Court of Appeal held a
hearing which was not equitable under the African Charter on Human and
People’s Rights and all the relevant international instruments.
68
AHG/229(XXXVII)
ORIGINAL:ENGLISH
(b) To establish the violation by the Republic of Burundi of the rights enshrined
in the Charter more specifically, the violation of article 7, paragraph ( c) of
the Charter and the general principles on the rights of the defence;
(c) To report its findings to the parties concerned and to the Assembly of Heads
of State and Government of the OAU.
Procedure:
12. The communication is dated 11th April 1999. It was sent to the Secretariat by E -mail.
13. On account of the fact that the judgement of the Ngozi Court of Appeal (a major
piece written in Kirundi) was still being translated, the communication could not be
brought before the Commission during its 25th Ordinary Session held in Bujumbura
in May 1999. Towards the end of the said Session however, the plaintiffs forwarded
to the Secretariat the outstanding documents, thus enabling it to complete the file on
the communication and bring the matter before the 26th Session of the Commission.
14. At its 26th session, the Commission heard from the representatives of Mr.
Bwampamye who had come to present their position on the matter. After a long
debate, the Commission reached a decision to be seized of the communication. Mr.
Bwampamye was represented by:
Lawyers:
- Segatwa Fabien;
- A. Moctar;
- Seydou Doumbia and
- Boubine Touré.
All members of Avocats Sans Frontières.
15. On 13th December 1999, the Secretariat informed the parties of this decision and a
letter signed by the Chairman of the Commission, requesting a stay of execution was
addressed to the Burundian Head of State.
16. On 15th February 2000, the Burundi office of Avocats Sans Frontière acknowledged
receipt of the letter of 13th December 1999, addressed to it by the Secretariat
without, however communicating its observations as regards the admissibility of the
communication.
17. At its 27th ordinary session held in Algiers, Algeria, the Commission examined the
case and declared it admissible and requested parties to furnish it with arguments on
its merits. It also requested the Chairman of the Commission to repeat its earlier
appeal for stay of execution pending the determination of the communication.
18. The above decision was communicated to parties on 1st August 2000.
19. During its 28th Session, the Respondent State and Counsel for the Complainant
presented their written and oral submissions before the Commission
69
AHG/229(XXXVII)
ORIGINAL:ENGLISH
LAW
Admissibility
20. Article 56(5) of the Charter stipulates that “communications relating to Human and
Peoples’ Rights…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…”
21. It is apparent from an examination of the documents appended to the dossier that
the verdict handed down on 25th September 1997, by the Ngozi Court of Appeal,
sentencing Mr Gaëtan Bwampamye to death was confirmed on 5th October of the
same year by the Supreme Court of Burundi. The Commission notes, consequently,
that the domestic remedies had been duly exhausted. For these reasons, it declares
the communication admissible.
22. In its oral submission, the Respondent State argued that the Complainant had not
exhausted other local remedies which include "le recours dans l' interet de la loi", revision
and the plea for pardon.
23. The Commission however holds the view that the Complainant could only benefit
from the first two remedies at the initiative of the Ministry of Justice and also as a
result of discovery of new facts that may lead to reopening the file. With regard to
the plea for pardon, it is not a judicial remedy but serves to affect the execution of a
sentence. For these reasons the Commission maintains its decision on admissibility.
Merits:
24. Article 7,1(c) of the Charter states that “every individual shall have the right to have
his cause heard. This comprises:
…the right to defence, including the right to be defended by counsel of his
choice…"
25. In its verdict of 5th October 1997, the Supreme Court of Burundi adjudged and
stated:
“Whereas this Court is of the view that the law implies no obligation on the part
of the judge to nominate a lawyer, though he may do so;
Whereas in the case under consideration, the accused had always been assisted by
a lawyer, proof being that his 19 page written plea of 20th August was filed by his
lawyer; and that they had appeared together at the public sitting;
Whereas, in view of such situation, the appellant has no reason to claim that the
judge should appoint a lawyer for him, since he already had one who had
performed all essential functions of a lawyer for him; this procedure is, therefore,
also hereby rejected…”
26. The Commission recalls that the right to fair trial involves fulfilment of certain
objective criteria, including the right to equal treatment, the right to defence by a
lawyer, especially where this is called for by the interests of Justice, as well as the
obligation on the part of Courts and Tribunals to conform to international standards
in order to guarantee a fair trial to all. The Commission shall examine the verdict of
70
AHG/229(XXXVII)
ORIGINAL:ENGLISH
the Ngozi Court of Appeal, as well as that of the Supreme Court in light of the above
criteria.
27. The right to equal treatment by a jurisdiction, especially in criminal matters, means, in
the first place, that both the defence and the public prosecutor shall have equal
opportunity to prepare and present their pleas and indictment during the trial. Simply
put, they should argue their cases before the jurisdiction on an equal footing.
Secondly it entails the equal treatment of all accused persons by jurisdictions charged
with trying them. This does not mean that identical treatment should be meted to all
accused. The idea here is the principle that when objective facts are alike, the
response of the judiciary should also be similar. There is a breach of the principle of
equality if judicial or administrative decisions are applied in a discriminatory manner.
In the case under consideration, it is expected of the Commission to attend to the
first aspect, that is, observation of the rule of equality of the means utilised by the
defence and the prosecution.
28. The right to defence also implies that at each stage of the criminal proceedings, the
accused and his counsel be able to reply to the indictment of the public prosecutor
and in any case, to be the last to intervene before the court retires for deliberations.
29. The Ngozi Court of Appeal had on 25 th September 1997, handed down a verdict
sentencing Mr. Bwampamye to death, thereby following the prayer of the public
prosecutor, paying no heed to the accused’s prayer for adjournment of the case,
pleading the absence of his lawyer. The Commission holds the view that the judge
should have upheld the prayer of the accused, in view of the irreversible character of
the penalty involved. This was all the more imperative considering that during the
20 th August 1997 hearing, he had upheld the arguments of the prosecutor who had
refused to proceed with his pleading claiming that he needed time to study the
written plea presented by counsel for the accused. The criminal court then decided to
adjourn the case to 25 th September 1997. The Commission holds that by refusing to
accede to the request for adjournment, the Court of Appeal violated the right to
equal treatment, one of the fundamental principles of the right to fair trial.
30. The Supreme Court, in its verdict, upholds the position of the lower court judge in
refusing to designate a defence lawyer as follows: “… this Court is of the view that
the law implies no obligation on the part of the judge to nominate a lawyer, though
he may do so”. The Commission emphatically recalls that the right to legal assistance
is a fundamental element of the right to fair trial. Moreso where the interests of
Justice demand it. It holds the view that in the case under consideration, considering
the gravity of the allegations brought against the accused and the nature of the
penalty he faced, it was in the interest of Justice for him to have the benefit of the
assistance of a lawyer at each stage of the case.
31. In its consideration of what appears to be the liberty allowed the judge under
Burundian law to designate or not to designate a defence lawyer for the accused, the
Commission recalls the fundamental principle enshrined in Article 1 of the Charter,
that not only do the States Parties recognise the rights, obligations and freedoms
proclaimed in the Charter, they also commit themselves to respect them and take
measures to give effect to them. In other words, if a State Party fails to ensure respect
for the rights contained in the African Charter, this constitutes a violation of the said
Charter. (See communication 74/92, para. 35). It is apparent, consequently, that
71
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Burundian legislation, in this regard, does not comply with the country’s treaty
obligations emanating from its status as a State party to the African Charter. The
Court’s argument flies in the face of a well-known general legal principle, which
states that “no one may profit from his own turpitude”. The argument should
furthermore be rejected because by considering the various instruments cited in his
opening statement by counsel for the accused, the Court, though admittedly it does
not state a position on them, had become aware of the country’s obligations as
regards human rights, especially the provisions of the International Covenant on Civil
and Political Rights and, subsequently, those of the African Charter on Human and
Peoples’ Rights. By upholding the position of the appellate judge, the Court ignored
the obligation of Courts and Tribunals to conform to international standards of
ensuring fair trial to all.
For these Reasons, the Commission:
Finds the Republic of Burundi in violation of Article 7(1)(c) of the African Charter;
Requests Burundi to draw all the legal consequences of this decision; and to take
appropriate measures to allow the reopening of the file and the reconsideration of
the case in conformity with the laws of Burundi and the pertinent provision of the
African Charter on Human and People's Rights;
Calls on Burundi to bring its criminal legislation in conformity with its treaty
obligations emanating from the African Charter.
Done at the 28th ordinary session held in Cotonou, Benin
from 23rd October to 6th November 2000
72
AHG/229(XXXVII)
ORIGINAL:ENGLISH
232/99 - John D. Ouko / Kenya
Rapporteur:
26 th Session: Commissioner Ben Salem
27 th Session: Commissioner Ben Salem
28 th Session: Commissioner Ben Salem
________________________________________________________________
Summary of Facts:
1. The Complainant claims to be a Student’s Union leader at the University of Nairobi,
Kenya.
2. He alleges that he was forced to flee the country due to his political opinions.
3. He mentions the following as issues which led to his strained relations with the
government and to his arrest and detention and eventually to his fleeing the country:
(a) The demand for the setting up of a Judicial Commission of Inquiry into the
murder of his late uncle and former Kenyan Minister of Foreign Affairs, Mr.
Robert Ouko;
(b) His condemnation of the seeming government involvement in the murder of
his predecessor at the Students' Union, Mr. Solomon Muruli;
(c) His condemnation of corruption, nepotism and tribalism in government;
(d) His condemnation of the frequent closure of public universities.
4. Prior to his fleeing the country, he was arrested and detained without trial for 10
months at the notorious basement cells of the Secret Service Department
headquarters in Nairobi.
5. The detention facility was a two by three metre basement cell with a 250 watts
electric bulb, which was left on throughout his ten months detention.
6. The Complainant alleges that throughout his period of detention, he was denied
bathroom facilities and was subjected to both physical and mental torture.
7. The Complainant claims that he fled the country on 10th November 1997 to Uganda,
where he initially sought political asylum but was denied.
8. The Complainant alleges that since he could not obtain any protection in Uganda, he
had to leave to the Democratic Republic of Congo (DRC) in March 1998, and has
been residing there to date.
73
AHG/229(XXXVII)
ORIGINAL:ENGLISH
9. The Complainant claims to be living presently in Aru, North-East of the Democratic
Republic of Congo.
10. The Complainant further alleges that until August 1998, when the war broke out in
the DRC, he was under the United Nations High Commissioner for Refugees’
(UNHCR) assistance programme.
11. Since the said war started, leading to the evacuation of UNHCR staff, he has been
living in a very desperate and despicable situation.
Complaint:
The Complainant alleges violations of Articles 5, 6, 9, 10 and 12 of the African Charter.
Procedure
12. At its 26th ordinary session held in Kigali, Rwanda, the Commission decided to be
seized of the communication and requested the Secretariat to notify the parties.
13. On 18th January 2000, letters were dispatched to the parties notifying them of the
Commission's decision.
14. On 23rd May 2000, during the 27th ordinary session held in Algeria, the Secretariat of
the Commission received a letter from the Complainant stating, among other things,
that he has been in Kampala for medical reasons since November 1999. In addition,
he informed the Commission of his ordeals in the Democratic Republic of Congo,
including his being kidnapped and forced to work as a computer operator for the
rebels in Kisangani.
15. At its 27th ordinary session held in Algeria, the Commission examined the case and
declared it admissible and requested parties to furnish it with arguments on the
merits of the case.
16. On 12th July 2000, the Secretariat communicated the Commission's decision to the
parties.
LAW
Admissibility
17. The admissibility of communications brought pursuant to Article 55 of the Charter is
governed by Article 56 of the Charter. The applicable provision in this particular case
is Article 56(5) of the Charter, which provides inter alia “communications relating to
Human and Peoples’ Rights…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…”
18. The facts of this case reveal the following:
• The Complainant is no longer in the Republic of Kenya;
74
AHG/229(XXXVII)
ORIGINAL:ENGLISH
•
•
The above condition is not based on his voluntary will - he has been forced
to flee the country because of his political opinions and Student Union
activities;
An attestation dated 30th October 1999, issued by one Mr. Tane Bamba,
Head of Sub Office of the United Nations High Commissioner for Refugees,
indicates that the Complainant "is recognised as a refugee Under UNCHR
mandate in accordance with the provisions of the OAU Convention of
September 10th, 1969 to which he satisfied."
19. Relying on its case law (see communication 215/98 - Rights
International/Nigeria), the Commission finds that the Complainant is unable to
pursue any domestic remedy following his flight to the Democratic Republic of
Congo for fear of his life, and his subsequent recognition as a refugee by the Office
of the United Nations High Commissioner for Refugee. The Commission therefore
declared the communication admissible based on the principle of constructive
exhaustion of local remedies.
Merits:
20. The Complainant alleges that prior to his fleeing the country, he was arrested and
detained for 10 months without trial at the notorious basement cells of the Secret
Service Department headquarters in Nairobi.
21. The Respondent State Party has not contested this claim. In fact, it has not
responded to the many requests made by the Secretariat of the Commission. In this
circumstance and following its well laid down precedent on this, the Commission
accepts the facts of the Complainant as the facts of the case and finds the
Respondent State in violation of Article 6 of the Charter.
Article 6 provides:
Every individual shall have the right to liberty and to the security
of his person. No one may be deprived of his liberty except
for the reasons and conditions previously laid down by law.
In particular, no one may be arbitrarily arrested or detained.
22. The Complainant claims that the detention facility had a 250 watts electric bulb,
which was left on throughout his ten months detention. Furthermore, that
throughout his period of detention, he was denied bathroom facilities and was
subjected to both physical and mental torture.
23. The Commission finds the above condition, which the Complainant was subjected to
in contravention of the Respondent State Party's obligation to guarantee to the
Complainant the right to the respect of his dignity and freedom from inhuman and
degrading treatment under Article 5 of the Charter.
Article 5 provides:
Every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status.
All forms of exploitation and degradation of man particularly
slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited.
75
AHG/229(XXXVII)
ORIGINAL:ENGLISH
24. Such condition and treatment also runs contrary to the minimum standards
contained in the United Nations Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, particularly, Principles 1 and 6.
25. Principle 1 provides:
All persons under any form of detention or imprisonment shall be treated
in a humane manner and with respect for the inherent dignity of the
human person.
Principle 6 on the other hand states:
No person under any form of detention or imprisonment shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment. No
circumstance whatever may be invoked as a justification for torture or
other cruel, inhuman or degrading treatment or punishment.
26. Although the Complainant has claimed a violation of his right to freedom from
torture, he has not substantiated on this claim. In the absence of such information,
the Commission cannot find a violation as alleged.
27. The Complainant alleges that he was forced to flee his country because of his
political opinions. He details some of the events that led to his strained relationship
with the government. Article 9 of the African Charter provides:
(1)
Every individual shall have the right to receive information.
(2)
Every individual shall have the right to express and disseminate his
opinions within the law.
28. The above provision guarantees to every individual the right to free expression,
within the confines of the law. Implicit in this is that if such opinions are contrary to
laid down laws, the affected individual or government, has the right to seek redress in
a court of law. Herein lies the essence of the law of defamation. This procedure has
not been followed in this particular instance. Rather the government has opted to
arrest and detain the Complainant without trial and to subject him to series of
inhuman and degrading treatments. The Commission finds this in violation of Article
9 of the Charter.
29. The Complainant claims that being a victim of political persecution, he has been
deprived of his right to freedom of association guaranteed by Article 10 of the
Charter. The Commission notes that the Complainant was a Student Union leader
before fleeing the country.
30. The Respondent State Party has not refuted this fact. The Commission therefore
finds the persecution of the Complainant and his subsequent flight to the
Democratic Republic of the Congo to have greatly jeopardised his chances of
76
AHG/229(XXXVII)
ORIGINAL:ENGLISH
enjoying his right to freedom of association guaranteed under Article 10 of the
Charter. Article 10 states:
(2) Every individual shall have the right to free association
provided that he abides by the law
31. The Complainant claims that his rights to freedom of movement and to egress and
ingress have been violated. Taking the circumstances of the case into consideration,
the Commission finds this claim to have been substantiated and therefore finds the
Respondent State in violation of Article 12 of the Charter. Article 12 provides:
(1) Every individual shall have the right to freedom of movement
and residence within the borders of a state provided he abides
by the law.
(2) Every individual shall have the right to leave any country
including his own, and to return to his country. This right may
only be subject to restrictions, provided for by law for the
protection of national security, law and order, public health or
morality.
For these reasons, the Commission
Finds the Republic of Kenya in violation of Articles 5, 6, 9, 10 and 12 (1) and (2) of the
African Charter on Human and Peoples' Rights.
Urges the Government of the Republic of Kenya to facilitate the safe return of the
Complainant to the Republic of Kenya, if he so wishes.
Done at the 28th Ordinary Session held in Cotonou, Benin
from 23rd October to 6th November 2000.
77
AHG/229(XXXVII)
ORIGINAL:ENGLISH
204/97 - Mouvement Burkinabé des Droits de l’Homme et des Peuples /
Burkina Faso
___________________________________________
Rapporteur:
23 rd Session: Commissioner Ben Salem
24 th Session: Commissioner Ben Salem
25 th Session: Commissioner Ben Salem
26 th Session: Commissioner Ben Salem
27 th Session: Commissioner Ben Salem
28 th Session: Commissioner Ben Salem
29 th Session: Commissioner Ben Salem
Summary of Facts
1. The Complainant is the Chairman of the Mouvement Burkinabé des Droits de
l’Homme et des Peuples (MBDHP), an NGO that enjoys observer status with the
Commission. He cites a series of human rights violations reported to have been
committed in Burkina Faso from the days of the revolutionary government to date.
He therefore requests the Commission to strive to reveal the truth with regard to
each of the cases reported not to have been reacted to by the competent bodies in
his country.
2. According to the Complainant, Burkina Faso, on 11th December 1991, reestablished the rule of law by adopting a new constitution. This rekindled the
hope that all human rights violations committed between 1983 and 1991 would be
treated for the common good of the citizens of that country. Unfortunately, this
was not the case. Furthermore acts prejudicial to civil and political liberties have
been recorded.
3. The Complainant alleges that since the creation of the Mouvement Burkinabé des
Droits de l’Homme et des Peuples in 1991, the latter has recorded several cases of
human rights violations in the country after having been informed on several
occasions by the victims and has unsuccessfully requested the Judiciary to
investigate the said cases. The most important case to be brought to the notice of
this NGO was that of the suspension, discharge and removal of magistrates which
took place on 10th June 1987. It is reported that the state afterwards granted
amnesty as part of the reinstatement of workers wrongly laid off under the regime
called the National Revolutionary Council that ruled Burkina Faso from 1983 to
1987. Many workers are reported to have been reinstated while many others were
not.
78
AHG/229(XXXVII)
ORIGINAL:ENGLISH
4. The Chairman of MBDHP Mr. Halidou Ouedraogo, a Magistrate by profession
belongs to this second category as well as another magistrate, Mr. Compaore
Christophe. Both of them are claiming damages in kind. Their claim has remained
in vain to date. The Supreme Court, which is reported to have been informed
about the case fifteen years ago, has never taken a decision on the case.
5. According to the Complainant, although the situation has slightly improved, the
Magistrates concerned continue to suffer from harassment ranging from arbitrary
postings to manipulations by the Supreme Council of Judges and Magistrates and
irregularities in the promotion of some Magistrates. The two unions of Judges and
Magistrates are reported therefore to have, in a joint communiqué, denounced the
subordination of their profession, corruption of judges and irregularities observed
in the deliberations of the Supreme Council of Judges and Magistrates.
6. The Complainant alleges that many cases brought by him before Criminal Courts
in 1990, 1991, 1994 and 1996 have not been examined.
7. In October 1991, the Organisation Pour la Democratie, Mouvement du Travail
(ODP/MT), the ruling party, is reported to have put on fire, through its militants,
a Peugeot 505 vehicle of the Chairman of MBDHP. This incident is reported to
have taken place in front of the headquarters of another political party now
dissolved. La Convention pour le Peuple (CNPP/PS) whose militants, fearing to
see their headquarters burnt down, are reported to have called on Mr. Halidou
Ouedraogo to prevent the crime. The Complainant maintains that the authors of
this act of hooliganism are known and that some of them are reported to have
been active again with the task of intimidating any person, especially workers and
students, suspected of being against the powers that be.
8. Following the above-mentioned destruction of his vehicle, the complaint filed at
the Ouagadougou Criminal Court by Mr. Ouedraogo in October 1991 is said to
have no effect.
9. In June 1994, after closing from work, Mr. Ouedraogo is reported to have been a
victim of an assassination attempt. When he put his car on, it is reported to have
exploded and he survived only by a miracle. A complaint filed against X at the
Ouagadougou Criminal Court for assassination attempt and destruction of
personal property is reported to have no effect.
10. The Complainant claims that in May 1995 a student demonstration took a dramatic
turn for the worse in a locality called Garango, two hundred kilometres from
Ouagadougou. A gendarme identified by MBDHP is reported to have shot dead
at close range two students. The enquiry speedily launched by the said Movement
which led to the submission of the case to the Criminal Court of the said locality is
reported not to have been examined. On the other hand, one Ouya Bertin, a
Member of Parliament representing his state, is reported to have accused the
Chairman of MBDHP of manipulating the pupils and students. The former is
reported to have declared at a gathering that Mr. Halidou Ouedraogo should be
got rid of and that in any case “measures have been taken to liquidate him”
MBDHP filed a complaint of libel and death threats against its Chairman. This
complaint is also reported to have remained without effect to date.
79
AHG/229(XXXVII)
ORIGINAL:ENGLISH
11. The Complainant also alleges several human rights violations as well as threats
reported to have been made against his movement and person during successive
Burkina students’ strikes in February, March and April 1997.
12. Referring to the turbulent political situation that prevailed in Burkina Faso between
1989 and 1990, the claimant alleges that there were many kidnapping cases
followed by executions. He cited the disappearance of persons suspected or
accused of plotting against the State among them Mr. Guillaume Sessouma who, at
the time he was kidnapped/arrested, was a lecturer at the University of
Ouagadougou and who has not been seen since 1989. Similarly, Dabo Boukary, a
medical student arrested in May 1990 by the Presidential Guard has not reappeared
to this day. According to the claimant, the authorities are reported to have said
that the latter might have fled.
13. As for assassinations, he cited those of Mr. Clement Oumarou Ouedraogo, a
University Professor and erstwhile representative of Burkina Faso at UNESCO,
gunned down in the middle of a street in Ouagadougou on 9th December 1991,
two farmers killed in 1996 at 120 kilometres from Ouagadougou during a so-called
police routine check, as well as the 1994/95 assassinations of people in the locality
of Kaya (Nahouri). He claims that commandos of the Po Military garrison are
reported to have a hand in the latter assassinations.
14. The Complainant alleges that his organisation has submitted all these cases of
human rights violations, but without response to this day, to the following
Burkinabe institutions:
•
•
•
•
competent jurisdictions;
the Ministries concerned (Justice, Interior and Defence);
the Prime Minister; and
the President of the Republic of Burkina Faso.
The Complaint:
15. The Complainant claims that Burkina Faso has violated Articles 3,4,5,6,7,8,9(2),
10,11,12 and 13(2) of the African Charter on Human and Peoples’ Rights. He
requests the Commission to investigate the said violations and get the Respondent
State to:
• explain the fate of the student Dabo Boukary;
• disclose the conclusions of the inquiry on the assassination of Mr.
Clement Oumarou Ouedraogo;
• take measures that can help find a legal solution to all these human
rights violation cases; and
• compensate the victims of such violations.
16. In support of his petition, the Complainant provided abundant documentation on
most of the alleged human rights violation cases.
80
AHG/229(XXXVII)
ORIGINAL:ENGLISH
Procedure
17. The communication is dated 25th April 1997. It was received by the Secretariat of
the Commission by fax on 25th May 1997. However, the Complainant observed
that there were annexes to the communication and the Secretariat had to wait to
receive them.
18. On 20th August 1997, the Secretariat acknowledged receipt of the communication
and asked the Complainant to indicate precisely the points contained in the
communication on which he wanted the Commission to look into and to attach
the documents mentioned.
19. On the same day, a Note Verbale was faxed to the Burkinabe Ministry of External
Relations and Co-operation forwarding a copy of the communication and
requesting for the Ministry's reaction within three months in accordance with the
relevant provisions of the Rules of Procedure. There was no reaction to this Note
Verbale.
20. On 5 th December 1997, the Secretariat received correspondence from the
Complainant reiterating the grievances in his earlier complaint instead of
providing the clarifications requested.
21. At its 23rd Session, the Commission decided to be seized of the communication
and deferred examination of the issue of admissibility to the 24th Session.
22. On 1 st June 1998, a Note Verbale was sent to the Burkinabe Government
informing it of this decision and calling for its reaction as to the admissibility of the
communication was sent. A similar letter was also addressed to the Complainant.
23. On 13th July the Secretariat received a fax from the Burkinabé Minister of Justice
and Guardian of the Seals stating that the Ministry of Foreign Affairs had
informed him of a complaint submitted against Burkina Faso by Mouvement
Burkinabé des Droits de l’Homme. He stated that the complaint was written in
English and requested that the Secretariat provide him with the French version of
the complaint since the working language of the country is French.
24. On the same day, the Secretariat reacted to the above-mentioned fax. The Minister
was informed that the Commission had been seized of the communication and
that the Respondent State was required to forward its submissions on the issue of
admissibility for examination at the 24th Session scheduled to be held in October
1998.
25. At its 24th Ordinary Session, the Commission heard the parties. Both parties
expressed the desire to settle the dispute amicably and requested the Commission’s
assistance to that effect.
26. The Commission declared the communication admissible. However, in view of the
desire of the parties to settle the dispute amicably, it offered its good services for
that purpose.
81
AHG/229(XXXVII)
ORIGINAL:ENGLISH
27. On 10th November 1998, the parties were informed by the Secretariat of the
Commission’s decision.
28. At its 25th Session, the Commission requested for information on the progress of
the settlement between the parties.
29. During the 26th Session, the Commission learnt that there had been no reaction
from the parties with regard to the progress of the settlement. The Commission
therefore decided to defer examination on the merits of the communication to the
29 th Session.
30. On 10th December 1999, the Secretariat informed the parties of the Commission's
decision.
31. At the 27th Ordinary Session held in Algiers, Algeria, the Commission heard parties
to the complaint and decided that the Respondent State should take the initiative
in inviting the Complainant for an amicable settlement of the case, failing which,
the Commission would proceed to consider the case on its merits.
32. On 20th July 2000, the Secretariat of the Commission conveyed the above decision
to the parties.
33. On 17th August 2000, the Secretariat of the Commission received a Note Verbale
from the Respondent State informing the Commission that they had complied
with its decision and invited the Complainant for a meeting on 14th August 2000.
34. At the 28th Ordinary Session, the Commission heard both parties. The Respondent
State informed the Commission that the case of the victims of massacres
committed by police officers had been settled but that the other cases were
pending. The Complainant confirmed that a meeting had been held but that there
had been no progress in so far as settling the matter was concerned.
Law:
Admissibility
35. Article 56(5) of the African Charter on Human and Peoples’ rights requires, prior
to any recourse being addressed to the Commission that communications received
in accordance with article 55, should be “…sent after exhausting local remedies, if
any unless it is obvious that this procedure is unduly prolonged”.
36. In this particular case, the Complainant had approached the competent national
authorities with a view to obtaining redress for the alleged violations and to clarify
the cases of disappearances and assassinations that had remained unpunished. At
its 24th Ordinary Session, the Commission heard both parties. They expressed their
desire to reach an amicable solution and requested its assistance to this end. The
Commission informed the parties that it was at their disposal for purposes of
reaching an amicable settlement but the parties did not utilise this avenue. The
communication was declared admissible.
Merits:
82
AHG/229(XXXVII)
ORIGINAL:ENGLISH
37. Article 3 of the Charter, stipulates that:
(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law.
38. In order to redress the effects of the suspensions, dismissals and retirements of
magistrates which took place on 10th June 1987, the Burkinabé State introduced an
amnesty, aimed at rehabilitating workers abusively removed under the so-called
“Conseil National de la Révolution” regime, which ruled over Burkina Faso from 1983
to 1987. As part of the said measure, many workers were restored to their posts,
while many others, according to information available to the Commission,
remained unaffected by the measure. The Complainant, Mr. Halidou Ouédraogo
and Mr. Compaoré Christophe, both magistrates, fall in the latter category. They
both demanded to be compensated in kind. The request made by Mr. Compaore
has not been met to date. The Supreme Court, before which the case was filed
over fifteen years ago has passed no verdict on it. The Commission further notes
that no reason with a basis in law was given to justify this delay in considering the
case. Nor does the Respondent State give any legal reasons to justify the retention
of the punishment meted out to these two magistrates. The Commission considers
therefore that this is a violation of Articles 18 and 19 of the Fundamental
Principles on the Independence of the Judiciary, adopted by the seventh United
Nations Congress on Crime Prevention and the Treatment of Offenders, held
from 26th August to 6th September 1985, and confirmed by the General Assembly
in its Resolutions 40/32 of 29 November 1985 and 40/146 of 13th December
1985.
39. In communication 39/90, A. Pagnoule (for A. Mazou) /Cameroon, para. 17,
the Commission stated:
“Considering that the case under examination concerns the possibility
of Mr. Mazou exercising his profession and that there are undoubtedly
some people who depend on him for their survival, two years without
any action on a case… constitutes a violation… of the Charter”.
40. It is abundantly clear, as the Commission has already noted that the Respondent
State has shown reasons as to why the rehabilitation measure was applied in a
selective manner. The Commission also wonders at the reasons behind the
Supreme Court’s failure to proceed with the case. Fifteen years without any action
being taken on the case, or any decision being made either on the fate of the
concerned persons or on the relief sought, constitutes a denial of justice and a
violation of the equality of all citizens before the law. It is also a violation of Article
7(1)(d) of the African Charter, which proclaims the right to be tried within a
reasonable time by an impartial court or tribunal.
41. Article 4 of the Charter states that:
“Human beings are inviolable. Every human being shall be entitled
to respect for his life and the integrity of his person. No one may be
arbitrarily deprived of this right”.
83
AHG/229(XXXVII)
ORIGINAL:ENGLISH
42. The communication contains the names of various people who were victims of
assassinations, forced disappearances, attacks or attempted attacks against their
physical integrity, and acts of intimidation. The Respondent State did not deny
these facts. Also, the State has never published the results of the commission of
enquiry set up following the assassination of Mr. Clement Oumarou Ouédraogo,
nor did it identify the perpetrators of the offences or take any measures against
them. In conformity with its own jurisprudence which states that “whenever
allegations of human rights abuses are not contested by the accused State, … the
Commission shall decide on the basis of the facts provided by the plaintiff and
treat such facts as they are presented to it” (See communications 25/89, 47/90,
56/93 and 100/93, para. 49). The Commission therefore applies the same
reasoning to the facts related in the present communication. The Commission
would also like to reiterate a fundamental principle proclaimed in Article 1 of the
Charter that not only do the States Parties recognise the rights, duties and
freedoms enshrined in the Charter, they also commit themselves to respect them
and to take measures to give effect to them. In other words, if a State Party fails to
ensure respect of the rights contained in the African Charter, this constitutes a
violation of the Charter. Even if the State or its agents were not the perpetrators of
the violation. (See communication 74/92, para. 35).
43. The communication points to a series of human rights violations linked to certain
events that occurred in Burkina Faso in 1995 and additional elements attached to
the dossier describe the human rights violations perpetrated at Garango, Kaya
Navio, as well as the murder of a young peasant at Réo. The communication also
mentions the deaths of citizens who were shot or tortured to death, as well as the
deaths of two young students who had gone onto the streets with their colleagues
to express certain demands and to support those of the secondary school and
higher institution teachers. The Commission deplores the abusive use of means of
State violence against demonstrators even when the demonstrations are not
authorised by the competent administrative authorities. It believes that the public
authorities possess adequate means to disperse crowds, and that those responsible
for public order must make an effort in these types of operations to cause only the
barest minimum of damage and violation of physical integrity, to respect and
preserve human life.
44. Article 5 of the Charter guarantees respect for the dignity inherent in the human
person and the recognition of his legal status. This text further prohibits all forms
of exploitation and degradation of man, particularly slavery, slave trade, torture
cruel, inhuman or degrading punishment and treatment. The guarantee of the
physical integrity and security of the person is also enshrined in Article 6 of the
African Charter, as well as in the Declaration on the Protection of all Persons
against Forced Disappearances, adopted by the General Assembly of the United
Nations in Resolution 47/133 of 18th December 1992, which stipulates in article
1(2) that “any act leading to forced disappearance excludes the victim from the protection of the
law and causes grave suffering to the victim and his family. It constitutes a violation of the rules of
international law, especially those that guarantee to all the right to the recognition of their legal
status, the right to freedom and security of their person and the right not be subjected to torture or
any other inhuman or degrading punishment or treatment. It also violates the right to life or
seriously imperils it”. The disappearances of persons suspected or accused of plotting
against the instituted authorities, including Mr. Guillaume Sessouma and a medical
student, Dabo Boukary, arrested in May 1990 by the presidential guard and who
84
AHG/229(XXXVII)
ORIGINAL:ENGLISH
have not been seen since then constitute a violation of the above-cited texts and
principles. In this last case, the Commission notes the submission of a complaint
on 16th October 2000.
45. Article 8 of the Charter provides for the guarantee of the freedom of conscience,
the profession and the free practice of religion. While the Complainant claims
violation of these treaty provisions, the communication does not contain any
elements that could reasonably lead to such a conclusion. Information before the
Commission provides no indication that the Complainant or that any other person
cited in the communication had tried to express or exercise their freedom of
conscience or to profess their faith. The Commission is of the view, therefore, that
violation Article 8 has not been established. It adopts the same position as regards
the allegations of violation of Articles 9(2), 10 and 11 of the Charter.
46. Article 12(2) stipulates that:
“Every individual shall have the right to leave any country
including his own, and to return to his country. This right may only
be subject to restrictions, provided for by law for the protection of
national security, law and order, public health or morality”.
47. The communication alleges that on 6 th August 1995, Mr. Nongma Ernest
Ouédraogo, Secretary General of the political party known as “Bloc Socialiste
Burkinabé” was prevented from leaving the national territory, following the
publication by the said party of a statement on the situation in the country.
Information available to the Commission does not point to any threat to public
security or morality that either the journey or even the person of the said Mr.
Ouédraogo could have represented. Therefore, it agrees that there was violation of
Article 12(2).
48. The Complainant claims that there was dismissal of many workers at Poura on
account of a strike. Unfortunately, the information provided to the Commission
do not allow it to establish in any certain manner that there was violation of article
13(2).
For these reasons:
The Commission finds the Republic of Burkina Faso in violation of Articles 3, 4, 5,
6, 7(1)(d) and 12(2) of the African Charter.
Recommends that the Republic of Burkina Faso draws all the legal consequences of
this decision, in particular by:
•
Identifying and taking to court those responsible for the human rights
violations cited above;
•
Accelerating the judicial process of the cases pending before the courts;
•
Compensating the victims of the human rights violations stated in the
complaint.
Done at the 29th Ordinary Session held in Tripoli, Libya
85
AHG/229(XXXVII)
ORIGINAL:ENGLISH
from 23rd April to 7th May 2001
211/98 - Legal Resources Foundation v/ Zambia
___________________________________________
Rapporteur:
23 rd Session:
24 th Session:
25 th Session:
26 th Session:
27 th Session:
28 th Session:
29 th Session:
Commissioner Nyameko Pityana
Commissioner Nyameko Pityana
Commissioner Nyameko Pityana
Commissioner Nyameko Pityana
Commissioner Nyameko Pityana
Commissioner Nyameko Pityana
Commissioner Nyameko Pityana
Summary of Facts:
1. The Complainant, an NGO that has Observer Status with the African
Commission and is based in Zambia, is bringing this complaint against a State
Party to the Charter, Zambia.
2. The Complainant alleges that the Zambian Government has enacted into law, a
constitution which is discriminatory, divisive and violates the human rights of 35
percent of the entire population. The Constitution (Amendment) Act of 1996, it
is alleged, has not only violated the rights of its citizens, but has also taken away
the accrued rights of other citizens, including the first President, Dr. Kenneth
Kaunda.
3. The Complainant alleges that the said Constitution of Zambia Amendment Act
of 1996 provides inter- alia, that anyone who wants to contest the office of the
president has to prove that both parents are/were Zambians by birth or descent.
4. Article 35 of the said Constitution Amendment Act further provides that nobody
who has served two five-year terms as President shall be eligible for re-election to
that office.
5. Complainant alleges that the amended constitutional provisions are in
contravention of international human rights instruments in general and the
African Charter on Human and Peoples’ Rights in particular.
6. Complainant has taken the case to the Supreme Court of Zambia between May
and August 1996 seeking:
86
AHG/229(XXXVII)
ORIGINAL:ENGLISH
• A declaration that Articles 34 and 35 of the amended Constitution are
discriminatory.
• A declaration that Parliament lacks the power to adopt a new constitution;
and
• An injunction restraining the President from assenting to the constitution.
7. Complainant alleges that while the case was pending in court, the ruling party
dominated parliament went ahead to adopt and enact the controversial
constitution which the President assented to one week later.
8. The Complainant's case was therefore thrown out of court.
9. The Supreme Court of Zambia is the highest Court of jurisdiction in the land,
thus all local remedies have been exhausted.
Complaint:
10. The Complainant alleges that the following provisions of the African Charter
have been violated;
• Article 2 - which prohibits discrimination of any kind including place of birth,
social origin and other status;
• Article 3 - which provides for the equality of all individuals before the law;
• Article 13 - which guarantees every citizen the right to participate freely in the
government of his or her country;
• Article 19 - which provides for the equality of all peoples, irrespective of their
place of origin etc.
Procedure:
11. The communication is dated 12th February 1998.
12. On the 10th March 1998, the Secretariat sent a letter acknowledging receipt of the
complaint.
13. At its 23rd ordinary session held in Banjul, The Gambia from 20th to 29 th April
1998, the Commission decided to be seized of this case and requested further
information in order to decide on admissibility at the next session.
14. On 25th June 1998, the Secretariat sent letters to the parties notifying them of the
Commission’s decision.
15. At its 24th ordinary session held in Banjul, The Gambia from 22nd to 31st October
1998, the Commission postponed consideration of admissibility of the
communication to the 25th ordinary session and instructed the Secretariat to
request more information from the Parties.
16. On 26th November 1998, the Secretariat informed the Parties of the decision
accordingly.
87
AHG/229(XXXVII)
ORIGINAL:ENGLISH
17. At its 25th ordinary session held in Bujumbura, Burundi, the Commission
declared the communication admissible and postponed its consideration on the
merit to the 26th ordinary session.
18. On 13th May 1999, the Secretariat of the Commission notified the parties of this
decision.
19. At the 26th ordinary session of the Commission held in Kigali, Rwanda, the
Commission considered the communication and invited parties to present oral
arguments o the merits of the case.
20. Letters conveying this decision were dispatched to the parties by the Secretariat
on 18th January 2000.
21. Reminders to this effect were sent on 14th March 2000, with a copy to the
Embassy of the Republic of Zambia in Addis Ababa.
22. On 30th March 2000, the State Party responded to the above request.
23. On 31st March 2000, the Secretariat of the Commission acknowledged receipt of
the document, but reminded it of the necessity of it sending the relevant sections
of the Constitution together with the Supreme Court's decision on the case, as
soon as possible. A copy of this Note was forwarded to its Embassy in Addis
Ababa. A copy of the State Party's submission was also forwarded to the
Complainant in Lusaka.
24. On 7th April 2000, the State Party sent a fax to the Secretariat requesting for a
copy of the report of the 26th ordinary session.
25. In view of the requirements of Article 59 of the Charter, the Secretariat instead
sent to the State Party a copy of the Final Communiqué of the said session. It
also intimated it of the decision of the Commission during that session.
26. On 30th April 2000, the Respondent State submitted additional arguments to its
initial response of 30th March 2000.
27. On 2nd May 2000 while at the session, the Secretariat received a letter from the
Complainant expressing its desire to continue with the case.
28. At the 27th ordinary session held in Algeria, the Commission heard
representatives of the Respondent State. It decided that parties should address it
on specific issues, particularly on whether or not the provisions of the amended
Constitution were in conformity with the Republic of Zambia's obligations under
the Charter. In addition, the Secretariat was requested to seek an independent
legal expert opinion on the issues raised for determination.
29. Parties were informed of the above decision on 7th July 2000.
30. On 31st August 2000, the Secretariat of the Commission wrote reminders to the
parties and emphasised the necessity for them to furnish it with their submissions
88
AHG/229(XXXVII)
ORIGINAL:ENGLISH
as soon as possible for use in the preparation of the draft decision for the 28th
session.
31. On 26th September 2000, the Secretariat received a response from the
Respondent State on the issues raised by the Commission during the 27th
ordinary session.
32. On 2nd October 2000, the Secretariat of the Commission acknowledged receipt of
the submission and also forwarded a copy of it to the Complainant for its
comments
33. At the 28th Ordinary session in Cotonou, Benin the communication was
considered and further consideration of the merits was deferred until the 29th
Ordinary session.
34. The parties were informed of this decision on the 14th November 2000.
35. A Note Verbale was sent to the Government of Zambia requesting a copy of the
Commission of Inquiry report on the 5th April 2001.
State Party's Response
36. The matter concerns the Republican Constitution of Zambia and is therefore an
open matter for discussion. The background to the Constitution of Zambia
(Amendment) Act of 1996 is attributable to the desire of the Zambian people to
save and preserve the Office of the President for Zambians with traceable
descent.
37. The position was arrived at in the Mwanakatwe Commission of Inquiry Report
commissioned to gather views on the content of the Republican Constitution.
The amendment to the Constitution was not targeted at any person in the
country.
38. Zambia welcomes views expressed on its Republican Constitution as a way of
building a strong democracy. It is open to expert opinions on the issue, and will
continue to listen to views expressed on it.
39. Zambia views the complaint filed by the Legal Resources Foundation as an
opinion on the Constitution. The variance of opinion of the Complainant from
that of the majority therefore is in accordance with democratic principle of
freedom of opinion. Despite this difference, democracy entails the rule of the
majority. Hence the amendment to the Republican Constitution incorporating
the views expressed in the Mwanakatwe Commission of inquiry Report for an
indigenous Zambian to hold Office of President.
40. Zambia is prepared to co-operate with the Commission and to elaborate further
on the issues, if necessary.
Additional Arguments from the Respondent State to its Initial Response
89
AHG/229(XXXVII)
ORIGINAL:ENGLISH
41. The Government avers that although the communication is vague as to the
details of the judicial process that was exhausted, Zambia would however assume
that the issues raised by the Complainant were finally settled by the Supreme
Court in Zambia Democratic Congress and the Attorney General SCZ Appeal
No. 135/96, SCZ Judgement No. 37/99.
42. The Zambian Parliament has the power to adopt an alteration to the Constitution
and the President may assent to a Constitution that has been altered. However, if
Parliament had amended the entire Constitution, there would have been a
mandatory need for a national referendum in respect of Article 79 and Part III of
the Constitution, which contains the Bill of Rights.
43. The Government contends that the powers, jurisdiction and competence of
Parliament to alter the Constitution of Zambia are extensive provided that
Parliament adheres to the provisions of Article 79 of the Constitution. The
constitutional history of Zambia has shown that the alteration of the Constitution
has depended on who controls the majority in Parliament. The ruling Party
dominated Parliament could therefore adopt the altered Constitution.
44. All individuals in Zambia are equal before the law and everyone enjoys the
protection of his/her human rights and fundamental freedoms as provided for by
the law.
45. Zambia abhors any type of discrimination. Article 23(1) of the Republican
Constitution provides that:
Subject to clauses (4), (5) and (7) a law shall not make any provision
that is discriminatory either of itself or in its effect.
This Article, however, needs to be read and understood with the provision of
Article 23(5), which states that:
Nothing contained in any law shall be held to be inconsistent with
or in contravention of clause (1) to the extent that it is shown
that it makes reasonable provision with respect to qualifications
for service as a public officer.
46. The Government points out that it is in this context that Zambian people were
of the view that it was reasonable for the Office of the President to be subject to
other qualifications i.e. an indigenous Zambian candidate of traceable descent.
Therefore there was no contravention of Article 2 of the Charter.
47. To ensure Zambia' s policy of non-discrimination, Article 11 of the Constitution
provides that:
It is recognised and declared that every person in Zambia has been
and shall continue to be entitled to the fundamental rights and freedoms
of the individual, that is to say, the right, whatever his race, place
of origin, political opinions, colour, creed, sex or marital status,
but subject to limitations…
90
AHG/229(XXXVII)
ORIGINAL:ENGLISH
The limitations being reasonable within the law, the Government avers further
that there has therefore been no violation of Article 2 of the Charter as the
limitations provided for by Article 34 of the Republican Constitution are within
the law. Zambia also submits that there is no violation of Article 13 of the
Charter, which guarantees every citizen the right to participate in government. If
anything, there is a proviso that such should be "in accordance with the
provisions of the law."
48. It underscores the fact that Articles 34 and 35 of the Constitution are within
Zambia's laws and therefore there is no violation of Article 13 of the Charter.
49. It stated that Zambia considers the inclusion of a violation of Article 19 of the
Charter by the Complainant as not being within the purview of the present
communication. It is of the opinion that Article 19 of the Charter relates to the
principle of "self-determination" by the mere mention of the term "peoples".
This position notwithstanding, the peoples of Zambia are equal. It urges the
Commission not to entertain this ground, as it is inappropriate to the issues
raised in the communication.
50. It argues that the discrimination alleged in Articles 34 and 35 of the Constitution
is not unlawful and it reflects the popular desire of the majority of the Zambian
people to save and preserve the "Office of the President" for Zambians. The
Constitution of Zambia (Amendment) Act, 1996, therefore, seeks to give effect
to the will of the people.
THE LAW
Admissibility
51. Having considered that the communication satisfied the provisions of Article 56
of the Charter, the communication was declared admissible.
Merits
52. The allegation before the Commission is that Respondent State has violated
Articles 2, 3 and 19 of the Charter in that the Constitution of Zambia
Amendment Act of 1996 is discriminatory. Article 34 provides that anyone who
wishes to contest the office of President of Zambia had to prove that both
parents were Zambian citizens by birth or descent. The effect of this amendment
was to prohibit a Zambian citizen, former President Dr Kenneth David Kaunda
from contesting the elections having been duly nominated by a legitimate political
party. It is alleged that the effect of the amendment was to disenfranchise some
35% of the electorate of Zambia from standing as candidate Presidents in any
future elections for the highest office in the land.
53. The enactment of the amendment to the Constitution is not in dispute. Neither is
it denied that Dr Kenneth Kaunda was thus denied the right to contest the
elections for the office of President. Respondent State, however, denies that
some 35% of Zambian citizens would be constitutionally denied the right to
stand as President and alleges that in any event such facts have no relevance to
91
AHG/229(XXXVII)
ORIGINAL:ENGLISH
the matter at hand. It nevertheless argues that the said amendment was
constitutional, justifiable and not in violation of the Charter.
54. In the matter of Zambia Democratic Congress v The Attorney General (SCZ Appeal No:
135/1996), the Zambia Supreme Court was petitioned to declare the then
proposed amendments to the Constitution unconstitutional in that the
amendments contained in Articles 34(3)(b) and 35(2) of the Constitution
(Amendment) Act bar persons qualified to stand for election as President of the
Republic under the 1991 Constitution and deny them the right to participate fully
without hindrance in the affairs of government and shaping the destiny of the
country and undermine democracy and free and fair elections which are the basic
features of the Constitution of 1991.
55. It is alleged that the matter was rushed through parliament by the ruling party and
enacted into law while the legal and constitutional principles were before the
courts for adjudication. In the event, the court dismissed the appeal for the
reason that the petition was “attacking an Act of Parliament on the ground that it
violated Part III of the Constitution relating to Fundamental Rights. We are
satisfied that the application was commenced by a wrong procedure and that in
our jurisdiction the application was untenable” (per Sakala JS at 292).
56. The following provisions of the African Charter have relevance:
Article 1:
The Member States of the Organisation of African unity parties to the present
Charter shall recognise the rights, duties and freedoms enshrined in this Charter
and shall undertake to adopt legislative or other measures to give effect to them.
Article 2:
Every individual shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction of any kind
such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national or social origin, fortune, birth or other status.
Article 3:
1.
Every individual shall be equal before the law.
2.
Every individual shall be entitled to equal protection of the law.
Article 13:
1.
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.
2.
Every citizen shall have the right of equal access to the public service of
his country.
3.
Every individual shall have the right of access to public property and
services in strict equality of all persons before the law.
57. The African Commission on Human and Peoples’ Rights is a creature of the
Charter (Article 30). It was established “to promote human and peoples’ rights
and ensure their protection in Africa.” The functions of the Charter are spelt out
in Article 45 of the Charter, inter alia, as follows:
92
AHG/229(XXXVII)
ORIGINAL:ENGLISH
§
§
Give its views or make recommendations to Governments;
Formulate and lay down principles and rules aimed at solving legal
problems relating to human and peoples’ rights and fundamental
freedoms upon which African Governments may base their legislation;
§ Ensure the protection of human and peoples’ rights under the conditions
laid down by the present Charter;
§ Interpret all the provisions of the present Charter at the request of a State
Party…;
58. In the task of interpretation and application of the Charter, the Commission is
enjoined by Articles 60 and 61 to “draw inspiration from international law on
human and peoples’ rights” as reflected in the instruments of the OAU and the
UN as well as other international standard setting principles (Article 60). The
Commission is also required to take into consideration other international
conventions and African practices consistent with international norms etc.
59. Although international agreements are not self-executing in Zambia, the
government of Zambia does not seek to avoid its international responsibilities in
terms of the treaties it is party to (vide Communication 212/98 Amnesty
International / Zambia). This is just as well because international treaty law
prohibits states from relying on their national law as justification for their noncompliance with international obligations (Article 27, Vienna Convention on the
Law of Treaties)1. Likewise an international treaty body like the Commission has
no jurisdiction in interpreting and applying domestic law. Instead a body like the
Commission may examine a State’s compliance with the treaty in this case the
African Charter. In other words the point of the exercise is to interpret and apply
the African Charter rather than to test the validity of domestic law for its own
sake. (vide cases of the Inter American Commission against Uruguay (Nos 10.029,
10.036, 10.145, 10.10.372, 10.373, 10.374, 10.375 in Report 29/92, October 2,
1992).2
1 Vide General Comment No 9 (XIX/1998) on The Duty to Give Effect to the Covenant in the Domestic
Order. The UN Committee on Economic and Social Rights has established that “legally binding
international human rights standards should operate directly and immediately within the domestic legal
system of each State Party, thereby enabling individuals to seek enforcement of their rights before national
courts and tribunals.” The Committee argues that States have an obligation to promote interpretations of
domestic laws which give effect to their Covenant obligations” (COMPILATION OF GENERAL
COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS
TREATY BODIES; HR1/GEN/Rev.4; February 2000; pp48-52.
Although directed at the application of international law in domestic courts, Benedetto Confortu’s note of
caution is appropriate::
In our view, it is necessary to take a cautious approach in accepting the existence of an
exceptional category of international norms that owe their non-executing nature to their
substantive content. Such an exception must not lead to political manoeuvring in the form of
non-implementation of rules found to be ‘undesirable’, either because they are considered
contrary to national interest, or because they entrench progressive values, or finally, because they
are viewed suspiciously by an internal judge purely by reason of their origins.
With F Franscioni (Eds) in ENFORCING INTERNATIONAL HUMAN RIGHTS IN DOMESTIC
COURTS; 1997: The Hague; Martinus Nijhoff; 8.
2 The Commission held in respect to the amnesty laws promulgated by the Government of Uruguay: where
it had been argued that these were valid and legitimate in terms of domestic law and the constitution and
that they had approval by the democratic majority in a referendum:
93
AHG/229(XXXVII)
ORIGINAL:ENGLISH
60. What this does mean, however, is that international treaties which are not part of
domestic law and which may not be directly enforceable in the national courts,
nonetheless impose obligations on State Parties. It is noticeable that the
application of the Charter was not part of the argument before the national
courts.
61. Conscious of the ramifications of any decision on this matter, the Commission
had invited the parties to address the question of the extent of the jurisdiction of
the Commission when it comes to domestic law including as is the case in this
instance the Constitution. Counsel for the Respondent State argued that the
Commission had no locus standi to adjudicate on the validity of domestic law. That
position is correct. What must be asserted, however, is that the Commission has
the duty to “give its views or make recommendations to Governments…/ to
formulate and lay down principles and rules aimed at solving legal problems
relating to human and peoples’ rights and fundamental freedoms upon which
African Governments may base their legislation / and interpret all the provisions
of the present Charter…”(Article 45).
62. In addition, the Commission is mindful of the positive obligations incumbent on
State Parties to the Charter in terms of Article 1 not only to “recognise” the
rights under the Charter but to go on to “undertake to adopt legislative or other
measures to give effect to them” The obligation is peremptory, States “shall
undertake” Indeed, it is only if the States take their obligations seriously that the
rights of citizens can be protected. In addition, it is only to the extent that the
Commission is prepared to interpret and apply the Charter that Governments
would appreciate the extent of its obligations and citizens understand the scope
of the rights they have under the Charter.
63. Article 2 of the Charter abjures discrimination on the basis of any of the grounds
set out, among them “language… national or social origin,… birth or other
status…” The right to equality is very important. It means that citizens should
expect to be treated fairly and justly within the legal system and be assured of
equal treatment before the law and equal enjoyment of the rights available to all
other citizens. The right to equality is important for a second reason. Equality or
lack of it affects the capacity of one to enjoy many other rights3. For example,
one who bears the burden of disadvantage because of one’s place of birth or
social origin suffers indignity as a human being and equal and proud citizen. He
may vote for others but has limitations when it comes to standing for office. In
other words the country may be deprived of the leadership and resourcefulness
such a person may bring to national life. Finally, the Commission should take
note of the fact that in a growing number of African States, these forms of
discrimination have caused violence and social and economic instability which
… it should be noted that it is not up to the Commission to rule on the domestic legality or the
constitutionality of national laws. However, the application of the Convention and the
examination of the legal effects of a legislative measure, either judicial or of any nature, insofar as
it has effects compatible with the rights and guarantees embodied in the Convention or the
American Declaration, are within the Commission’s competence.
3 Vide UN Committee on Human Rights General Comment No 18 (XXXVII/1989), pp103-106) for a
fuller discussion on non-discrimination in the ICCPR.
94
AHG/229(XXXVII)
ORIGINAL:ENGLISH
has benefited no one. It has cast doubt on the legitimacy of national elections and
the democratic credentials of States.
64. All parties are agreed that any measure which seeks to exclude a section of the
citizenry from participating in the democratic processes as the amendment in
question has managed to do, is discriminatory and falls foul of the Charter.
Article 11 of the Constitution of Zambia provides that there shall be no
discrimination on the grounds of “race, place of origin, political opinions, colour,
creed, sex or marital status…” The African Charter has “national or social
origin…” which could be encompassed within the expression “place of origin” in
the Zambian Constitution. Article 23(1) of the Zambian Constitution says that
parliament shall not make any law that “is discriminatory of itself or in its
effect…”
65. The Respondent State, however, seeks to rely on some exceptions as justification
in Zambian law for the exception. It is held that the right to equality has
limitations which are justifiable and that the justifications are based on Zambian
law and the Charter.
66. Article 11 of the Zambian Constitution states clearly that the right to nondiscrimination is “subject to limitations…” Among the limitations reference is
made to Article 23(5) which provides that:
… nothing contained in any law shall be held to be inconsistent with or in
contravention of clause (1) to the extent that it is shown that it makes
reasonable provision with respect to qualifications for service as a public
officer…” It is argued that following a consultative process, the Zambian
people were of the view that the Office of President be subject to the
additional qualification that the President be “an indigenous Zambian
candidate of traceable descent.”
67. There has been some persistent confusion in arguments before us between
“limitations” and “justification”. Limitations refer to what may be referred to as
the statute of limitations which gives a lower threshold of enjoyment of the right.
Such limitations are allowed by law or provided for in the Constitution itself. In
the African Charter these would typically be referred to as the ‘claw-back’ clauses.
“Justification” however applies in those cases where justification is sought setting
perimeters on the enjoyment of a right. In other words, there has to be a twostage process. First, the recognition of the right and the fact that such a right has
been violated but that, secondly, such a violation is justifiable in law. The Vienna
Declaration and Programme of Action (1993) has affirmed that “all human rights
are universal, interrelated, interdependent…” and as such they must be
interpreted and applied as mutually reinforcing. It is interesting to note for
example, that Article 2 does not have a ‘claw-back’ clause while Article 13 limits
the right to “every citizen” but goes on to state that “in accordance with the law.”
68. In the matter before us therefore the Government of Zambia concedes that the
measures were discriminatory but then goes on to argue (1) a limitation of the
right, and (2) justification of the violation. It is argued that the measure was
within the law and Constitution of Zambia. It was stated before the Commission
that Zambia has a constitutional system of parliamentary sovereignty hence even
the Supreme Court could not “attack” an Act of Parliament (as Sakala JS put it).
95
AHG/229(XXXVII)
ORIGINAL:ENGLISH
The task of the Commission, however, is not to seek to do that which even the
Zambian courts could not do. The responsibility of the Commission is to
examine the compatibility of domestic law and practice with the Charter.
Consistent with decisions in the European and Inter-American jurisdictions, the
Commission’s jurisdiction does not extend to adjudicating on the legality or
constitutionality or otherwise of national laws. Where the Commission finds a
legislative measure to be incompatible with the Charter, this obliges the State to
restore conformity in accordance with the provisions of Article 1 (cf Zanghi v Italy,
194 Eur Ct HR (Ser A) 48 (1991).
69. It is stated further that the limitation of the right is provided for in the Zambian
Constitution and that it is justifiable by popular will in that, following the work of
the Mwanakatwe Commission on the Constitution, it was recommended that the
Zambian people desired “to save and preserve the Office of the President for
Zambians with traceable descent…” Regarding the claim that the measure
deprived some 35% of Zambians of their rights under the previous Constitution,
counsel for Respondent State dismisses this as mere speculation.
70. The Commission has argued forcefully that no State Party to the Charter should
avoid its responsibilities by recourse to the limitations and '‘claw-back'’ clauses in
the Charter. It was stated following developments in other jurisdictions, that the
Charter cannot be used to justify violations of sections of it. 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. Having arrived at this
conclusion, it does not matter whether one or 35% of Zambians are
disenfranchised by the measure, that anyone is, is not disputed and it constitutes
a violation of the right4.
71. The Commission has arrived at a decision regarding allegations of violation of
Article 13 by examining closely the nature and content of the right to equality
(Article 2). It cannot be denied that there are Zambian citizens born in Zambia
but whose parents were not born in what has become known as the Republic of
Zambia following independence in 1964. This is a particularly vexing matter as
the movement of people in what had been the Central African Federation (now
the States of Malawi, Zambia and Zimbabwe) was free and that by Zambia’s own
admission, all such residents were, upon application, granted the citizenship of
Zambia at independence. Rights which have been enjoyed for over 30 years
cannot be lightly taken away. To suggest that an indigenous Zambian is one who
was born and whose parents were born in what came (later) to be known as the
sovereign territory of the State of Zambia may be arbitrary and its application of
retrospectivity cannot be justifiable according to the Charter.
72. The Charter makes it clear that citizens should have the right to participate in the
government of their country “directly or through freely chosen
Vide UN Human Rights Committee General Comment No 25 (XXXVII/1996) where it says that
“Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or
discriminatory requirements such as education, residence, or descent, or by reason of political affiliation…”
(para 15 @ p.127).
4
96
AHG/229(XXXVII)
ORIGINAL:ENGLISH
representatives…” The pain in such an instance is caused not just to the citizen
who suffers discrimination by reason of place of origin but that the rights of the
citizens of Zambia to “freely choose” political representatives of their choice, is
violated. The purpose of the expression “in accordance with the provisions of the
law” is surely intended to regulate how the right is to be exercised rather than
that the law should be used to take away the right.
73. The Commission believes that recourse to Article 19 of the Charter was
mistaken. The section dealing with “peoples” cannot apply in this instance. To do
so would require evidence that the effect of the measure was to affect adversely
an identifiable group of Zambian citizens by reason of their common ancestry,
ethnic origin, language or cultural habits. The allegedly offensive provisions in the
Zambia Constitution (Amendment) Act, 1996 do not seek to do that.
For the above reasons, the Commission,
Finds that the Republic of Zambia is in violation of Articles 2, 3(1) and 13 of the
African Charter;
Strongly urges the Republic of Zambia to take the necessary steps to bring its laws and
Constitution into conformity with the African charter; and
Requests the Republic of Zambia to report back to the Commission when it submits its
next country report in terms of Article 62 on measures taken to comply with this
recommendation.
Done at the 29th Ordinary Session, held in Tripoli, Libya
from 23rd April to 7th May 2001.
97
AHG/229(XXXVII)
ORIGINAL:ENGLISH
218/98 - Civil Liberties Organisation, Legal Defence Centre, Legal Defence and
Assistance Project / Nigeria
Rapporteur:
24 th Session: Commissioner Pityana
25 th Session: Commissioner Pityana
26 th Session: Commissioner Pityana
27 th Session: Commissioner Pityana
28 th Session: Commissioner Pityana
29 th Session: Commissioner Pityana
SUMMARY OF FACTS:
1. The authors of the communication are three NGOs based in Nigeria with
observer status with the African Commission. Nigeria is a State Party to the
African Charter on Human and Peoples’ Rights.
2. The Communication was received on 3rd August 1998.
3. The authors allege a violation of the African Charter in that
i) An unfair trial in respect of the trial and conviction of Lt. Gen. Oladipo Diya
and four other soldiers and a civilian;
ii) The above mentioned victims were convicted and sentenced to death by a
Special Military Tribunal for an alleged coup plot to overthrow the
Nigerian Military Government under Gen. Sani Abacha;
4. It is alleged that on December 21st 1997, the Nigerian Military Government
announced that it had uncovered a coup plot. Following this, 26 persons were
arrested including Lt. Gen. Oladipo Diya, Major General Abdukadir Adisa, Lt.
Gen. Olarenwaju, Col. Akintonde and Professor Odekunle.
5. It is also alleged that in January 1998, the Nigerian Military government set up a
Military Panel of Inquiry to investigate the alleged coup plot. Before the trial, the
government displayed to a selected audience, videotapes of supposed confessions
by the suspects.
6. On 14th February 1998, a Special Military Tribunal was constituted. Members of
the tribunal included serving judges, but the Chairman is a member of the
Provisional Ruling Council (PRC).
7. The decision of the tribunal is not subject to appeal, but confirmation by the
PRC, the members of which are exclusively members of the armed forces.
8. The Tribunal concluded its proceedings in early April 1998 and on 28th April
1998, announced the conviction and sentencing to death of six of the accused,
including the five persons mentioned above.
98
AHG/229(XXXVII)
ORIGINAL:ENGLISH
9. The authors contend that the arrest, detention, arraignment and trial of the
convicted and sentenced persons was unlawful, unfair and unjust and as such a
violation of the provisions of the African Charter on Human and Peoples’ Rights.
10. The communication alleges that the following Articles of the African Charter on
Human and Peoples’ Rights have been violated: Articles 4, 5, 6, 7, and 26.
PROCEDURE:
11. At the 24th ordinary session, the Commission considered the communication and
decided to be seized of it.
12. On 26th November 1998, letters were sent to the parties involved informing them
of the Commission’s decision.
13. At its 25th ordinary session held in Bujumbura, Burundi, the Commission
requested the Secretariat to give its opinion on the effect of article 56(7) of the
Charter in view of the political developments in Nigeria, and postponed
consideration on admissibility to the 26th ordinary session.
14. On 13th May 1999, the Secretariat of the Commission dispatched letters to all the
parties notifying them of this decision.
15. At its 26th ordinary session held in Kigali, Rwanda, the Commission declared the
communication admissible in line with the recommendation of the Secretariat
and requested parties to submit arguments on the merits of the case.
16. By separate letters dated 17th January 2000, all the parties were informed of the
decision.
17. On 17th February 2000, the Secretariat received a Note Verbale from the High
Commission of the Federal Republic of Nigeria in Banjul, requesting the
Commission to forward the following documents to the country’s competent
authorities to enable them prepare appropriate responses to the alleged
violations:
(a) The Draft Agenda for the 27th ordinary session and the letter of invitation to
the said session;
(b) A copy of the complaint that was attached to the Secretariat’s Note; and
(c) A copy of the Report of the 26th ordinary session
18. Further to the above request, the Secretariat of the Commission on 8th March
2000, forwarded all the documents requested, except the Report of the 26th
ordinary session, together with a copy of the summary and status of all
communications filed against Nigeria which were pending before the
Commission during the 26th ordinary session, a copy each of the three
communications (Nos. 218/98, 224/98 and 225/98) as submitted by their
authors, and a copy of the written response of Media Rights Agenda on the
merits of communication 224/98.
99
AHG/229(XXXVII)
ORIGINAL:ENGLISH
19. At its 27th Ordinary Session held in Algiers, Algeria, the Commission found a
violation of Article 7 of the Charter and requested the Government of Nigeria to
compensate the victims accordingly.
20. At its 28th Ordinary Session held in Cotonou, Benin, the rapporteur noted that
although a decision had been taken at the 27 th Ordinary Session, some
amendments were necessary in order to reflect the peculiar nature of trials of
soldiers by military tribunals. He undertook to continue working on the case and
the matter was deferred to the 29th Ordinary Session.
THE LAW:
Admissibility
21. At its 25th ordinary session held in Bujumbura, Burundi, the Commission
requested the Secretariat to give an opinion on the effect of Article 56(7) of the
Charter in view of the changing political and constitutional situation in Nigeria.
Relying on the case law of the Commission, the Secretariat submitted that based
on the well established principle of international law, a new government inherits
its predecessor’s obligations, including responsibility for the previous
government’s misdeeds (see Krishna Achutan and Amnesty International /
Malawi, communications 62/92, 68/92 and 78/92).
22. The Commission has always dealt with communications by deciding upon the
facts alleged at the time of submission of the communication (see
communications 27/89, 46/91 and 99/93). Therefore, even if the situation has
improved, such as leading to the release of the detainees, repealing of the
offensive laws and tackling of impunity, the position still remains that the
responsibility of the present government of Nigeria would still be engaged for
acts of human rights violations which were perpetrated by its predecessors.
23. It was noted that although Nigeria was under a democratically elected
government, section 6(6)(d) of the Constitution provides that no legal action can
be brought to challenge ‘any existing law made on or after 15th January 1966 for
determining any issue or question as to the competence of any authority or
person to make any such law’. This means that there is no recourse within the
Nigerian legal system for challenging the legality of any unjust laws.
For the above reasons, and also for the fact that, as alleged, there were no avenues for
exhausting local remedies, the Commission declared the communication admissible.
Merits
24. In interpreting and applying the Charter, the Commission relies on the growing
body of legal precedents established in its decisions over a period of nearly fifteen
years. The Commission is also enjoined by the Charter and international human
rights standards which include decisions and general comments by the UN treaty
bodies (Article 60). It may also have regard to principles of law laid down by
State Parties to the Charter and African practices consistent with international
100
AHG/229(XXXVII)
ORIGINAL:ENGLISH
human rights norms and standards (Article 61). In this matter, the Charter is
silent on its application to military courts or tribunals.
25. The issues brought before the Commission have to be judged in the environment
of a military junta and serving military officers accused of offences punishable in
terms of military discipline in any jurisdiction. This caution has to be applied
especially as pertaining to serving military officers. The civilian accused is part of
the common conspiracy and as such it is reasonable that he be charged with his
military co-accused in the same judicial process5. We are making this decision
conscious of the fact that Africa continues to have military regimes who are
inclined to suspend the constitution, govern by decree and seek to oust the
application of international obligations. Such was the case in Nigeria under
Military strongman Sani Abacha.
26. We believe that this decision must indicate the durability of the norms prescribed
by the Charter and the duties on whatever system of governance may be in place,
to abide by the international norms as well as duties established in international
human rights law. It must be clearly understood that the military tribunal here is
one under an undemocratic military regime. In other words, the authority of the
executive and the legislature has been subsumed under the military rule. Far from
this suggesting that military rulers have carte blanche to govern at the whim of a
gun, we wish to underscore the fact that the laws of human rights, justice and
fairness must still prevail6.
27. It is our view that the provisions of Article 7 should be considered non-derogable
providing as they do the minimum protection to citizens and military officers
alike especially under an unaccountable, undemocratic military regime. The
Human Rights Committee in its General Comment No 13 states that Article 14
of the ICCPR applies to all courts and tribunals whether specialised or ordinary.
The Committee went on to note the existence of military or special courts in
many jurisdictions which, nonetheless, try civilians. It is noted that this could
present serious problems as far as equitable, impartial and independent
administration of justice is concerned. Such courts are resorted to in order to
justify recourse to exceptional measures which do not comply with normal
procedures. The European Commission has ruled that the purpose of requiring
that courts be “established by law” is that the organisation of justice must not
depend on the discretion of the Executive, but must be regulated by laws
emanating from parliament. The military tribunals are not negated by the mere
fact of being presided over by military officers. The critical factor is whether the
process is fair, just and impartial.
5 In General Comment No 13 (XXI/1984) para.4 the UN Human Rights Committee argues that “While
the Covenant does not prohibit such categories of courts (military or special courts which try civilians),
nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts
should be very exceptional and take place under conditions which genuinely afford the full guarantees
stipulated in article 14.”
6 In Communications No: 137/94, 139/94, 154/96 and 161/97 International PEN, Constitutional Rights
Project, and Civil Liberties Organisation, Interights on behalf of Ken Saro-Wiwa, Jr/Nigeria, the
Commission found that trials held under the Civil Disturbances (Special Tribunals) Decree No 2 of 1987
were in violation of the Charter in that the judgements of the tribunals were not subject to appeal but had
to be confirmed by the Provisional Ruling Council, the members of which were military officers. The
decree effectively ousts the jurisdiction of the ordinary courts and as such they had no access to a
competent, independent, fair and impartial court ( vide Compilation; ibid; paras 89-101).
101
AHG/229(XXXVII)
ORIGINAL:ENGLISH
28. It is alleged that in contravention of Article 7(1)(c) of the Charter, the convicted
persons were not given the opportunity to be represented and defended by
counsel of their choice, but rather that junior military lawyers were assigned to
them and their objections were overruled. The fairness of the trial is critical if
justice is to be done. For that especially in serious cases, which carry the death
penalty, the accused should be represented by a lawyer of his choice. The
purpose of this provision is to ensure that the accused has confidence in his legal
counsel. Failure to provide for this may expose the accused to a situation where
they will not be able to give full instructions to their counsel for lack of
confidence.
29. Besides, it is desirable that in cases where the accused are unable to afford legal
counsel, that they be represented by counsel at state expense. Even in such cases,
the accused should be able to choose out of a list the preferred independent
counsel “not acting under the instructions of government but responsible only to
the accused”. The Human Rights Committee also prescribes that the accused
person must be able to consult with his lawyer in conditions which ensure
confidentiality of their communications. Lawyers should be able to counsel and
to represent their clients in accordance with established professional standards
without any restrictions, influences, pressures or undue interference from any
quarter (Burgos v Uruguay and Estrella v Uruguay).
30. The right to fair trial is essential for the protection of all other fundamental rights
and freedoms. In its Resolution on the Right to Recourse Procedure and Fair
Trial, the Commission has observed that the right to fair trial includes, among
other things, that:
a)
In the determination of charges against individuals, the individual shall be entitled in
particular to: (i) have adequate time and facilities for the preparation of their defence and to
communicate in confidence with counsel of their choice.
31. The assignment of military lawyers to accused persons is capable of exposing the
victims to a situation of not being able to communicate, in confidence, with
counsel of their choice. The Commission therefore finds the assignment of
military counsel to the accused persons, despite their objections, and especially in
a criminal proceeding which carries the ultimate punishment a breach of Article
7(1)(c) of the Charter (vide the Ken Saro-Wiwa decision cited above).
32. The communication alleges that under the military rule, the decision of the
military tribunal is not subject to appeal, but may be confirmed by the Provisional
Ruling Council. The PRC in this instance arrogates to itself the role of
Complainant, prosecutor and judge in its own cause. This, it alleged, is a violation
of Article 7(1)(a) of the Charter.
Article 7 (1)(a) of the Charter provides:
Every individual shall have the right to have his cause heard. This comprises: (a) the right to
appeal to competent national organs against acts violating his fundamental rights as recognised
and guaranteed by conventions, laws, regulations and customs in force.
33. The foreclosure of any avenue of appeal to competent national organs in a
criminal case attracting punishment as severe as the death penalty clearly violates
the said Article. It also falls short of the standard stipulated in paragraph 6 of the
102
AHG/229(XXXVII)
ORIGINAL:ENGLISH
UN Safeguards Guaranteeing Protection of the Rights of Those Facing the
Death Penalty, to wit:
Any one sentenced to death shall have the right to appeal to the court of higher jurisdiction,
and steps should be taken to ensure that such appeals shall become mandatory.
34. Article 6(4) of the ICCPR also makes provision for this protection. In a case
against Nicaragua in 1986, the Inter-American Commission of Human Rights
(IACHR) stated that “the existence of a higher tribunal necessarily implies a reexamination of the facts presented in the lower court” and that the omission of
the opportunity for such an appeal deprives defendants of due process. In other
words, a higher threshold of rights is intended for those who are charged with
crimes the sentence of which might be the death penalty (vide: ACHPR
Communications 60/91 and 87/93 Constitutional Rights Project/Nigeria).
35. The communication further alleges that except for the opening and closing
ceremonies, the trial was conducted in camera in contravention of Article 7 of the
Charter. The Charter does not specifically mention the right to public trials;
neither does its Resolution on the Right to Recourse Procedure and Fair Trial.
Mindful of developments in international human rights law and practice, and
drawing especially from General Comment of the Human Rights Committee to
the effect that “the publicity of the hearings is an important safeguard in the
interest of the individual and of society at large…, apart from exceptional
circumstances, the Committee considers that a hearing must be open to the
public in general, including members of the press, and must not, for instance, be
limited only to a particular category of persons…”7
36. The publicity of hearings is an important safeguard in the interest of the
individual and the society at large. At the same time article 14, paragraph 1
acknowledges that courts have the power to exclude all or parts of the public for
reasons spelt out in that paragraph. It should be noted that, apart from such
exceptional circumstances, the UN Human Rights Committee considers that a
hearing must be open to the public in general, including members of the press,
and must not, for instance, be limited only to a particular category of persons.
37. In Le Compte, van Leuven & de Meyere v Belgium, the European Commission held
that there is no public hearing unless the court dealing with the matter holds its
proceedings in public both when considering the facts and when deciding on the
law. While it may be acceptable in certain circumstances for the hearing to be
held in camera, the proceedings should remain fair and in the interests of the
parties. While there may be circumstances where a trial in camera may be held,
for example, where the identity of the accused or the safety of witnesses need to
be protected, this does not prescribe a right but is subject to the discretion of the
judicial officer.
38. Article 14 of ICCPR explains that the trial should also guarantee the right of the
accused “to examine or have examined the witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him.” Where the trial is held in camera, there can
be no independent demonstration that these requirements have been met.
7 UN Human Rights Committee General Comment No 13 (XXI/1984) para 6.
103
AHG/229(XXXVII)
ORIGINAL:ENGLISH
39. The State party has not shown that the holding of the proceedings in secret was
within the parameters of the exceptional circumstances contemplated above. The
Commission therefore finds this a violation of the victims’ right to fair hearing
guaranteed under Article 7 of the Charter.
40. Article 7(1)(b) stipulates that
Every individual shall have the right to have his cause heard. This comprises:
(b) the right to be presumed innocent until proven guilty by a competent court or
tribunal.
The presumption of innocence is universally recognised. With it is also the right
to silence. This means that no accused should be required to testify against
himself or to incriminate himself or be required to make a confession under
duress (Article 6(2) and 14(3)(g) of ICCPR).
41. In Krause v Switzerland the European Commission noted that this principle
constituted a fundamental principle, which protects everybody against being
treated by public officials as if they were guilty of an offence even before such
guilt is established by a competent court. It has been alleged that videotapes show
the accused making confession before other military officials. It is suggested that
the officials affirmed the guilt of the accused on the basis of the “confessions”.
No evidence was led showing that these were the same officials who presided or
participated in the Military Tribunal that tried them. The alleged tapes were not
presented to the Commission as evidence. In the circumstances, the Commission
cannot make a finding on hearsay evidence. We cannot therefore find that the
right to presumption of innocence has been violated.
42. The communication alleges that the trial, conviction and sentence of civilians (as
at the time of filing of the complaint, one civilian was convicted and sentenced to
death) by the tribunal, composed of military personnel as judges, was a breach of
Article 7 of the Charter. The Commission is not convinced that in the
circumstances of this case, it was possible to have a separation of trials nor has it
been alleged that the civilian accused applied for such separation. It may well be
that the cause of justice would not have been served by such a separation. In the
circumstances and in this respect, we are not in a position to find a violation
Article 7(1)(d) of the Charter.
43. The communication alleges that the composition of the tribunal which was
presided over by a serving military officer did not meet the requirement of an
independent and impartial judicial panel to try the accused, and therefore a
violation of Article 7(1)(d) of the Charter.
Article 7(1)(d) of the Charter provides:
Every individual shall have the right to have his cause heard. This comprises:
(d) The right to be tried within a reasonable time by an impartial court or tribunal.
44. It has been stated elsewhere in this decision, that a military tribunal per se is not
offensive to the rights in the Charter nor does it imply an unfair or unjust
process. We make the point that Military Tribunals must be subject to the same
requirements of fairness, openness, and justice, independence, and due process as
any other process. What causes offence is failure to observe basic or fundamental
104
AHG/229(XXXVII)
ORIGINAL:ENGLISH
standards that would ensure fairness. As that matter has been dealt with above, it
is not necessary to find that a tribunal presided over by a military officer is a
violation of the Charter. It has already been pointed out that the military tribunal
fails the independence test.
45. The Complainant alleges a violation of Articles 5 and 6 of the Charter. No details
of the specific elements which constitute such claims are made in the complaint.
In the absence of such information, the Commission cannot find a violation as
alleged.
For the above reasons, the Commission
Finds violation of Articles 7(1)(a), (c) of the Charter
Urges the Government of the Federal Republic of Nigeria to bring its laws in conformity
with the Charter by repealing the offending Decree.
Requests the Government of the Federal Republic of Nigeria to compensate the victims
as appropriate.
Done at the 29th Ordinary Session held in Tripoli, Libya,
from 23rd April to 7th May 2001.
105