Human rights developments in the African Union (January 2017-September 2018)

6.1 African Court on Human and Peoples’ Rights

The African Court held a number of public hearings and delivered five rulings on admissibility; five rulings on requests for advisory opinions submitted by various NGOs; four rulings on requests for provisional measures;62 13 judgments on the merits; and three judgments on the interpretation of previous merits decisions. The following paragraphs provide brief reviews of some of these decisions.

Of the five rulings on admissibility, four were declared inadmissible for non-exhaustion of local remedies.63 Local remedies were deemed to have been exhausted in the fifth admissibility ruling (Gombert v Côte d’Ivoire).64 The facts giving rise to the Gombert case relate to a dispute between two private companies represented by the two principal shareholders of each of the companies. It was contended that local remedies had not been exhausted because the initial dispute was between two private individuals and the violations were not raised as an issue against the state. The Court, however, concluded that even though the initial dispute was a private dispute and not directly against the respondent state, the applicant had gone through the judicial process of the respondent state and brought the alleged violations of his right to a fair trial to the attention of the state during this process, thereby exhausting local remedies. Indeed, it would be unreasonable to expect an applicant who has raised pertinent issues at various stages of a trial to be told by the African Court to go back and exhaust local remedies. However, the case was declared inadmissible on the basis that it had already been settled by the ECOWAS Court.

In terms of its advisory jurisdiction, the African Court for the first time had the opportunity to consider a request for an advisory opinion submitted by an NGO in the SERAP case.65 The Court had to decide whether the Socio-Economic Rights and Accountability Project (SERAP) is an African organisation recognised by the AU to clothe it with standing to request an advisory opinion from the Court. SERAP argued that the ‘non-restrictive’ use of the word ‘organisation’ in article 4 of the Court’s Protocol suggests that the drafters contemplated both African inter-governmental organisations and NGOs. SERAP further argued that since it is an NGO registered in Nigeria and having been granted observer status before the African Commission, an organ of the AU, it was an African organisation recognised by the AU in terms of article 4 of the Court Protocol and, therefore, had standing to petition the Court for an advisory opinion.66 SERAP’s application was supported by Zambia67 and Cape Verde,68 but opposed by Nigeria and Uganda.69

The Court held that the term ‘organisation’ as used in article 4 of the Protocol covers both intergovernmental organisations and NGOs given that where the drafters of the Protocol wanted to limit its application to intergovernmental organisations, they expressly provided so, as they did in article 5 of the Protocol.70 The Court further held that an NGO qualifies as an African organisation ‘if [it is] registered in an African state, has structures at the sub-regional, regional or continental level, or undertakes its activities beyond the territory where it is registered, as well as any organisation in the diaspora recognised as such by the African Union’.71 The Court consequently declared that SERAP was an African organisation in terms of article 4 of the Protocol. 72

However, on the issue of recognition by the AU, the Court held that article 4 of the Protocol draws a clear distinction between the AU and its organs and, therefore, ‘only African NGOs recognised by the African Union as an international organisation with its own legal personality are covered by this article, and may bring a request for Advisory Opinion before the Court’.73 The Court justified this conclusion by citing article 5 of the Court Protocol, which expressly includes observer status granted by the African Commission as the basis for NGOs to seize the contentious jurisdiction of the Court against countries that have made the article 34(6) declaration.74 Consequently, the Court concluded that since the drafters of the Protocol did not expressly include observer status granted by the African Commission as one of the bases for recognition of NGOs qualified to submit requests for advisory opinions, it could not be implied against the express provisions of the Protocol. The Court concluded that recognition by the AU may be proved by way of observer status before or a memorandum of understanding concluded with the AU.75 Since SERAP did not have observer status before or MOU with the AU, the application was declared inadmissible for lack of personal jurisdiction.

The Court has subsequently applied this precedent to four other requests for advisory opinion brought by various NGOs and dismissed all for want of personal jurisdiction. These requests raised pertinent issues, including the independence of the African Commission;76 the negative impact of mining on local communities;77 unconstitutional changes of government;78 and the registration of marriages.79

On a positive note, it is important that the Court rejected the argument by Uganda that only intergovernmental organisations qualify to request an advisory opinion from the Court. Such a conclusion would have completely closed the door to NGOs and would have rendered the advisory jurisdiction of the Court almost redundant since most cases before the Court have been presented by NGOs. Second, it is also important that the Court rejected arguments by Nigeria that only NGOs from states that have made the article 34(6) declaration should be allowed to petition the Court for an advisory opinion. This argument clearly has no basis since the advisory jurisdiction of the Court is not exercised against any state in particular.

However, the textual interpretation adopted by the Court, as in its previous advisory decision on a request submitted by the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee), raises concerns over how far the Court is willing to go to protect human and peoples’ rights on the continent. As one commentator notes, a purposive interpretation by the Court, taking into consideration the complementary role of the Court in the interpretation of the African Charter as envisaged by the Protocol, provided an avenue for the Court to include NGOs with observer status before the Commission as part of the organisations contemplated by article 4 of the Protocol.80 This restrictive interpretation adopted by the Court means that even though the possibility exists, it is less likely that NGOs will have the opportunity to access the Court’s advisory jurisdiction. This is because the AU has stringent and arguably unreasonable requirements for granting observer status to African NGOs, including the fact that they generate at least two-thirds of their funding from their membership.81 This requirement is paradoxical, given that many African states rely on donor support and the AU itself has the bulk of its budget financed by development partners.82

The majority of the merits judgments delivered by the Court relate to the right to fair trial, which in the recent past has featured prominently on the Court’s cause list, but also include new areas of human rights, such as indigenous peoples’ rights, rights to citizenship and women’s rights.

In Ingabirie Victorie Umuhoza v Rwanda,83 the leader of one of the opposition parties, Forces Démocratiques Unifiées (FDU lnkingi), was sentenced by the Supreme Court to 15 years’ imprisonment. The applicant’s conviction was based on statements that highlighted crimes that were committed during the Rwandan genocide, not only against Tutsis but also against Hutus. The second set of statements were criticisms of government officials. The applicant, therefore, approached the African Court citing violations of her rights to equal protection of the law, fair trial and freedom of expression contrary to articles 3, 7 and 9 of the African Charter and commensurate provisions of the International Covenant on Civil and Political Rights (ICCPR).

On the merits, the Court held that the right to a fair trial of the applicant had been violated by the failure of the High Court to allow the applicant’s legal team to cross-examine her co-accused who testified against her, and denying the applicant access to documents which were used against her at the trial.84 On the issue relating to the crime of ‘negation and minimisation of genocide’ and the right to freedom of opinion and expression, the Court held that such a restriction on freedom of expression served a legitimate purpose given the context of Rwanda in terms of the sensitive issue of the genocide.85 However, on the facts, the Court agreed with the applicant that there was nothing in her statements that suggested that she sought to negate or minimise the genocide.86 On her criticisms of the government, the Court held that while some of the remarks may be offensive and discredit the integrity of the government and public officials in the eyes of citizens, these are expected in a democratic society and should be tolerated.87

The decision in this case is an important affirmation of the Court’s decision in Konaté v Burkina Faso,88 where the Court emphasised the need to ensure that restrictions to the right to freedom of expression in a democratic society should be as minimal as possible and proportionate to the purpose sought to be achieved by the limitation or restriction. However, after the judgment Rwanda has adopted additional legislation curtailing freedom of expression. For instance, in October 2018 it was reported that Rwanda’s revised Penal Code criminalises ‘any writings or cartoons that “humiliates” lawmakers, cabinet members, or security officers’.89 With regard to Ms Ingabire, it was reported in September 2018 that she had been released through a presidential pardon after having served eight years of her 15-year sentence.90

The recurring theme in the remainder of the fair trial cases (all against Tanzania) relates the right to free legal aid which the Court held (applying its previous decision in Abubakari v Tanzania91) to be an important component of the right to fair trial where the accused is facing serious criminal charges, and consequently the failure of the respondent state to provide free legal aid in such circumstances is a violation of the applicant’s right to a fair trial. 92 There was only one case in which the Court found no violation.93 The Court also held that a delay in providing or failure to provide an applicant with witness statements or copies of a criminal judgment against the applicant,94 and the failure of the respondent state to facilitate the attendance of witnesses called by an accused person who is in custody, constituted a violation of the right to a fair trial.95 Another pertinent finding of the Court was to the effect that proof of rape should not be limited to the medical report that the victim has been raped but also confirmation that the offence was committed by the accused person, such as through DNA tests, where possible. The Court in this case ordered the respondent state to reopen a criminal trial because previous trials before the domestic courts were in violation of the applicant’s right to a fair trial.96

One other issue worth noting in the new fair trial cases relates to the fact that the Court seems to have improved on its remedial orders. Notably, in previous cases, after the Court had refused to order the release of the applicants from prison even though it found that their right to a fair trial had been violated and reopening the case would occasion an injustice, it made the rather vague order that the respondent state should take the necessary measures to remedy the violation. This prompted Tanzania to return to the Court to seek clarification about what measures it could take to ensure satisfaction of the order. Consequently, in recent cases, while the Court did not specifically order the release of the applicants, it included in the remedial order that the measures the respondent state could adopt to satisfy the order included the release of the applicants from prison custody. The Court, therefore, should be commended for improving on its remedial orders and providing more guidance to the respondent state on the measures that may be taken to satisfy the order.

In APDF & IHRDA v Mali97 the Court for the first time had an opportunity to pronounce itself on the provisions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol). The Court held that the Persons and Family Code of the respondent state had several provisions that were in contravention of the African Women’s Protocol and the African Charter on the Rights and Welfare of the Child (African Children’s Charter), notably violations of the minimum age of marriage, consent to marriage, rights to inheritance and harmful cultural practices.98 The Court rejected the respondent state’s argument that the law on minimum age of marriage should be seen in the context of the social, cultural and religious realities of Mali, as it serves no purpose to enact laws that would be difficult to implement.99

Anudo v Tanzania100 involved allegations by the applicant that the respondent state had illegally revoked his citizenship and deported him to Kenya even though he had a Tanzanian birth certificate and both his parents were Tanzanians. The Court held that even though the right to nationality is not expressly guaranteed under the African Charter or ICCPR, it is guaranteed by article 15 of the Universal Declaration of Human Rights (Universal Declaration) which, according to the Court, is recognised as forming part of customary international law.101 In this regard, the Court noted that even though the determination of citizenship and revocation lies within the sovereignty of states, this cannot be arbitrarily determined and must be done in accordance with international law to avoid statelessness. The Court also noted that since it was the respondent state that was challenging the citizenship of the applicant, the burden of proof was on the state to prove the contrary.102 Consequently, the Court held that since the respondent state did not deny the nationality of the applicant’s parents and refused to conduct a DNA test to confirm the paternity of the applicant, as requested by the applicant’s father, the deprivation of the applicant’s citizenship was arbitrary and in violation of article 15(2) of the Universal Declaration. The Court also held that the respondent was in violation of article 13 of ICCPR for arbitrarily expelling the applicant from its territory,103 and further that arbitrarily expelling the applicant without the possibility to appeal to national courts was a violation of his right to be heard contrary to articles 7(1)(a), (b) and (c) of ICCPR.104 The Court, therefore, ordered the respondent state to amend its laws to provide individuals with judicial remedies in the event of a dispute over citizenship and to restore the applicant’s rights by allowing him to return to Tanzania.105

African Commission v Kenya106 relates to the eviction in 2009 of the Ogiek indigenous community by the Kenya Forestry Services from the Mau Forest. The case was first filed before the African Commission in 2009 by the Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRGI) on behalf of the Ogiek Community. The African Commission submitted the case to the Court on account of the lack of response from the respondent state when the Commission ordered provisional measures against it.

The Court held that the Ogiek, being an indigenous community, had the right to occupy, use and enjoy their ancestral lands.107 Even though the Court agreed that this right was not absolute and may be restricted in the public interest in terms of article 14 of the African Charter, such measures must be necessary and proportional.108 The Court, therefore, rejected the respondents’ arguments that evicting the Ogiek from the forest was necessary to preserve the natural ecosystem as the evidence showed that the main causes of environmental degradation in the Mau Forest was the encroachment by other groups, government’s excision for settlements and ill-advised logging concessions, rather than the presence of the Ogiek.109 The Court thus found the respondent state in violation of the right to property of the Ogiek in violation of article 14 of the African Charter.110 The Court further held that the right to non-discrimination, freedom of religion, culture, free disposal of natural resources and the right to development had been violated. The Court held that rather than evict the Ogiek from the forest for public health reasons, there were less restrictive measures that the respondent could have taken to ensure the enjoyment of their rights while maintaining law and order and public health. Such measures could include sensitisation about public health requirements on burying the dead and collaboration towards maintaining religious sites. 111

The Court further issued three interpretation judgments.112 In two of the interpretation judgments, Thomas and Abubakari, the Court clarified that its order that Tanzania must take all appropriate measures was intended to offer the state ‘room for evaluation to enable it to identify and activate all the measures that would enable it to eliminate the effects of the violations established by the Court’.113 The Court further clarified that it did not conclude in the merits decisions that the applicants’ request to be released from prison were unfounded, but merely that it could only make such an order directly if there were specific and compelling circumstances which, in the opinion of the Court, the applicants had not established.114 On the issue of how to remedy the violations, the Court clarified that ‘”all necessary measures” included the release of the applicant and any other measure that would help erase the consequences of the violations, establishe and restore the pre-existing situation and re-establish the rights of the applicant[s]’.115

In the third interpretation judgment, occasioned by a request from Côte d’Ivoire, the application was declared inadmissible on the basis that it sought the Court’s opinion on how to implement the judgment rather than clarifying the operative provision of the judgment.116

The fact that the Court has had to issue three interpretation judgments successively should be a cause for concern to the Court and arguably an indication that the Court’s remedial orders do not have sufficient clarity to ensure that states found in violation know what remedial measures to adopt.

6.2 African Commission on Human and Peoples’ Rights

The African Commission was seized of at least 39 communications, issued provisional measures in at least 15 communications, declared at least five communications admissible and decided two communications on merits.117 Only one of the two communications decided on the merits, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda,118 was publicly available. The complainants alleged that they had been arrested together with other individuals in 2004 on suspicion of being members of an armed group working to overthrow the Ugandan government. They were, however, neither charged nor brought before a court of law. Approximately one year later, in 2005, they were charged together with the leader of Uganda’s main opposition party, Kizza Besigye, with treason and concealment of treason. Even though the High Court granted them bail, they were not released and were charged the next day with the offence of terrorism before the General Court Martial on the same facts as those presented before the High Court. Two constitutional petitions were filed to respectively challenge the legality of the concurrent trials and the refusal to release them on bail in breach of the High Court ruling. The Constitutional Court ruled that their continued detention and the trial before the Court Martial were illegal and ordered their release, but this was not complied with. Following the Constitutional Court ruling, a warrant was issued to the Commissioner of Prisons to produce the accused persons before the High Court to have their bail processed, but this was ignored. The Attorney-General subsequently filed an application for review of the High Court’s bail decision, but this was rejected by the Court. Mr Okiring and Mr Samson were subsequently charged with new offences and granted bail, whereupon Mr Okiring was released after having satisfied the bail requirement. The state claims that Mr Samson has also been released but there is no information on his whereabouts. The complainants alleged violations of the right to dignity and freedom from torture, the right to liberty and the right to a fair trial contrary to articles 5, 6 and 7 of the African Charter.

On the allegations of torture, the African Commission held that the complainants had neither presented evidence to substantiate this, nor was it indicated that complaints of torture had been brought to the attention of the respondent state and that nothing had been done about it. The Commission, however, held that the subsequent arrest and detention of the victims after they had been granted bail were arbitrary, unlawful and in violation of the right to liberty, contrary to article 6 of the African Charter. The Commission also held that the trial of the victims, who were civilians, before a court martial, and the denial of access to lawyers were in violation their right to a fair trial. The Commission further found the respondent in violation of its obligation to guarantee the independence of courts in terms of article 26 of the Charter for its failure to comply with the bail orders and constitutional declarations of the courts.

Mr Okiring and Mr Samson were part of the original claimants in the Katabazi case before the East African Court of Justice (EACJ). However, they withdrew from this case before the EACJ handed down its judgment on 1 November 2007. The African Commission, therefore, held that the case was admissible as it had not been considered by another international body. It is not clear why it took the Commission almost a decade longer than the EACJ to hand down its decision.

6.3 African Committee of Experts on the Rights and Welfare of the Child

The African Children’s Committee delivered two rulings on admissibility in the cases of Sohaib Emad v Egypt119 and Ahmed Bassiouny v Egypt,120 both of which were declared inadmissible for failure to exhaust local remedies. In Sohaib Emad, a case dealing with the arrest of a minor, the respondent state objected to the jurisdiction of the Committee on the basis that it had entered a reservation on articles 44 and 45 of the African Children’s Charter from which the African Children’s Committee derives its individual communications mandate. However, the Committee held that the reservation was not compatible with the object and purpose of the Children’s Charter and thus contrary to article 19(c) of the Vienna Convention on the Law of Treaties. The Committee refused a request for provisional measures on the grounds that the complainant had not provided evidence of a situation of gravity or urgency that would result in irreparable harm in violation of the rights provided for in the Children’s Charter. On admissibility, the Committee ruled that the applicant had neither exhausted local remedies nor provided any cogent reasons why an exception to the rule must be allowed in this case, except casting aspersions on the judiciary of the respondent state. The case, therefore, was declared inadmissible for a failure to exhaust local remedies. The Committee’s refusal of the request for provisional measures is an interesting conclusion given the fact that the complainant had indicated that both his knees were swollen and that he only had access to painkillers at the detention centre. The right to health is one of the rights that are protected by the Children’s Charter and the deterioration of the complainant’s health clearly may result in irreparable harm.

Minority Rights Group International and SOS-Esclaves on behalf of Said Ould Salem and Yarg Ould Salem v Mauritania121 was submitted on behalf of two victims of slavery. The complainants alleged that Said and Yarg were born in 2000 and 2003 respectively to a mother from Mauritania’s Haratine slave class. As a result, the children automatically became slaves of the El Hassine family. The boys worked seven days a week herding camels and doing domestic chores. They were called slaves in the El Hassine family rather than by their given names, were only allowed to eat leftovers and did not attend school like the other children of the household.122 Said escaped in 2011 and went with his aunt to file a case at the police station against the El Hassine family, some of whom were charged with the crime of practising slavery and depriving the boys of education. Some members of the family and the mother of the boys were convicted and sentenced to various prison sentences ranging from a maximum of two years and a fine of $1 500 for the slave owner to the lowest of a two-year suspended sentence and a fine of $300 for his brothers. Said was awarded compensation of $2 500 and Yarg $700. The complainants alleged that despite the unsatisfactory decision of the court, no appeal was pursued by the prosecutor and the slave owner was released on bail after four months.123 An appeal hearing requested by the lawyer of the complainants was repeatedly postponed. The whereabouts of the slave owner, who appears to be in breach of his bail conditions, is unknown. The complainant alleged that the respondent state was in violation of the obligation of state parties (article 1) as well as the rights to non-discrimination (article 3); best interests of the child (article 4); survival and development (article 5); education (article 11); leisure (article 12); protection from economic exploitation (article 15); protection against harmful practices (article 16); and prevention of the sale, trafficking in and abduction of children (article 29), contrary to the African Children’s Charter.124 The Children’s Committee undertook a fact-finding mission to familiarise itself with the situation in the respondent state.125

On admissibility, the Committee ruled that since the appeal had been pending before the Court of Appeal for four years without any progress, the local remedies were unduly prolonged and ineffective, which is not in the best interests of the child and, therefore, need not be exhausted by the complainants. On the merits, the Committee held that the obligations of member states under article 1 of the Children’s Charter encompassed a duty to adopt legislative, administrative and other measures, including the obligation to act with due diligence to prevent violations or ensure that appropriate redress is afforded to victims. A state that is found to condone violations has not fulfilled its due diligence obligations. The Committee concluded that even though the respondent had enacted legislation criminalising slavery, there was little evidence that it had actually taken steps to enforce the law. The Committee cited, for instance, the fact that the criminal prosecution had been triggered by the aunt of the victims, that the slave owner was sentenced to only two years’ imprisonment, which is below the minimum sentence required by the anti-slavery law, and that the appeal against the sentence of the slave owner had been pursued by the victims’ lawyer and not the public prosecutor. The Committee also found the respondent in violation of the right of the victims to non-discrimination, on account of its failure to exercise due diligence when the violations were brought to its attention. The Committee further found the respondent in violation of all the rights alleged to have been violated by the complainants, except the sale of and trafficking in children.

In Institute for Human Rights and Development in Africa & Finders Group Initiative on behalf of TFA (a minor) v Cameroon,126 the complainants alleged that a 10 year-old girl had been raped multiple times in 2012. The attention of the respondent state was drawn to this violation through a report to the police. The police requested that the victim be sent to the hospital for a medical examination, which confirmed the allegations. The victim led the police to the house of the suspect, who was an influential figure in the community. The victim was not allowed into the house to identify the suspect. It was further alleged that a subsequent identification parade had been organised by the police at which, due to a combination of heavy disguise worn by the accused and intimidation of the victim by the lawyers for the suspect, the victim was unable to identify him. Evidence was submitted to the examining magistrate after three months and were summarily dismissed for not disclosing any case against the suspect. Requests to the examining magistrate for a copy of the ruling to enable representatives of the victim to pursue an appeal were denied on the grounds that only the state could appeal against the decision. One of the representatives of the victim and the victim’s aunt were subsequently charged with defamation on the basis that a text message sent by the victim’s aunt on a radio show highlighting the victim’s plight was orchestrated to defame the examining magistrate, imputing that he was corrupt. The complainants alleged that the failure of the respondent state to properly investigate the crime and to prosecute the accused amounted to a violation of the obligations of the state (article 1), the right to non-discrimination (article 3) and protection against child abuse and torture (article 16) of the African Children’s Charter. The Committee agreed with the applicants and found the respondent state in violation of its obligation under article 1 for failing to thoroughly investigate the crime and provide a remedy to the victim; a violation of the right to non-discrimination on account of rape being a form of gender-based violence and gender discrimination; and a violation of its obligation to protect children against child abuse for failing to act with due diligence to protect the rights of the victim. The African Children’s Committee consequently ordered the respondent state to ensure the prosecution of the perpetrator, to provide compensation of 50 million CFA to the victim, and to undertake other structural changes such as enacting and implanting legislation on violence against women, and educating the police, prosecutors, judges and other government officials on the protection of children’s rights.