1. Introduction
This case summary and analysis concerns the case of Zongo and others v Burkina Faso. This case is only the third to be decided on its merits, and the third in which the Court found in favour of the applicants, meaning that at present applicants enjoy a 100% success rate before the Court. In addition to the Judgement on the Merits, rendered on 28 March 2014, which contains important developments on Article 7 of the African Charter and a new approach to assessing preliminary matters, the case also resulted in a subsequent Reparations Judgement (in French), on 5 June 2015, where for the first time reparations were awarded to the Applicants.
The case concerns the murder of Norbert Zongo, an investigative journalist and director of the weekly magazine L’Indpéndenant, and three work companions on 13 December1998. The case was brought before the Court by the families of Norbert Zongo and his colleagues (“Individual Applicants”) and the NGO Burkinabé Human and Peoples’ Rights Movement (“NGO Applicant”, together “the Applicants”). The Applicants alleged that the murders of Zongo and his colleagues were related to their investigations into various political, economic and social scandals in Burkina Faso. In essence, the Court found that Burkina Faso had failed in its duty to properly investigate the deaths and identify and bring to justice those who had committed the murders.
2. Judgement on the Merits
The Applicants alleged that Burkina Faso’s failure to properly investigate the death of Norbert Zongo and his companions and bring those responsible to justice amounted to violations of African Charter Article 1, (the obligation to take appropriate measures to give effect to the Charter rights), Article 3 (equality before the law and protection under the law), Article 4 (right to life), Article 7 (right to have ones cause heard before a competent national court) and Article 9 (freedom of expression). The Applicants also alleged violations of the International Covenant on Civil and Political Rights (ICCPR), specifically Article 2(3) (right to be heard in cases of violation of rights), Article 6(1) (right to life), Article 14 (right to have ones cause heard by a competent, impartial and independent tribunal) and Article 19(2) (freedom of expression). The Applicants further alleged violations of the ECOWAS Treaty, in particular Article 66.2(c) (the obligation to ensure respect for the rights of journalists) and Article 8 (right to effective remedy) of the Universal Declaration of Human Rights.
(i) Jurisdiction and Admissibility
Interestingly, and for the first time, the Court dealt with a number of preliminary matters concerning admissibility and jurisdiction in a separate hearing and decision prior to considering the merits of the application. This new process included holding a preliminary public hearing in March 2013 after which in a decision on 21 June 2013 (“Preliminary Decision”) the Court upheld the Applicants claims, apart from alleged violations of Article 4 African Charter (right to life) on the basis that the Court lacked ratione temporis (passage of time) jurisdiction. In the Preliminary Decision the Court also found that Burkina Faso’s arguments regarding the Applicant’s failure to exhaust local remedies was not an exclusively preliminary matter and therefore it would consider these arguments at the merits stage.
(ii) Exhaustion of Local Remedies
Having made its finding that the issue of exhaustion of local remedies would be considered at the merits stage, the Court considered Burkina Faso’s arguments the Applicants had failed to exhaust local remedies. In particular, Burkina Faso argued that the application was inadmissible since the Applicants had failed to bring the matter before the highest court in Burkina Faso, the Court de Cessation, and because the procedure before the domestic courts had not been unduly protracted.
The Court noted that there was no dispute that the Individual Applicants had not exhausted all local remedies available to them, since they acknowledged they had made a decision to leave the domestic system and instead petition the Court. The Court therefore examined: (i) the effectiveness of any appeal to the Court de Cessation; and (ii) whether the entire process had been unduly prolonged which, as mentioned in Article 56 (5) of the Charter and Article 6(2) of the Protocol, is capable of providing an exception to the need for exhaustion of local remedies.
Regarding the effectiveness of an appeal to the Court de Cessation, the Individual Applicants explained that whilst an appeal was possible, they had deliberately decided not to peruse the case further domestically and instead petitioned the Court because the judicial remedies it had sought for nine years in Burkina Faso had proved inefficient and an appeal would have been a “waste of time”.
The Court recalled that the effectiveness of an appeal is measured in terms of its ability to solve the problem raised by an applicant. As such, the Court found that no doubt had been cast on the ability of the Court de Cessation to solve the Individual Applicant’s problems and therefore it was not a waste of time as suggested. Accordingly, the Court found that the domestic appeal route was an effective remedy which the Individual Applicants could have accessed.
As to whether the process was unduly prolonged, which would create an exception to the need to exhaust local remedies, the Court made clear that the “unduly prolonged” nature of a procedure applies to local remedies in their entirety as utilised or likely to be utilised by those concerned and therefore it is not appropriate just to consider remedies not yet utilized as argued by Burkina Faso. As to the duration itself, the Court stated this must be carried out on a case-by-case basis.
The Court therefore examined the processes at the national level in detail and concluded that the process had taken seven years, eight months and ten days (from 13 December 1998 to 21 August 2006). The Court found that this time period was unduly prolonged. As a consequence, the Court found that an exception to the local remedies requirement existed.
As to the NGO Applicant requirement to exhaust local remedies, the Court examined Burkina Faso law, and concluded that Article 56(5) of the African Charter requires the exhaustion of local remedies only where those remedies exist. Given that under the Burkina Faso system NGOs are not entitled to bring such actions before the court, Burkina Faso could not object to the admissibility of the NGO application since they could not exhaust local remedies.
(iii) Alleged Violations
Having found that the Applicants had straddled the exhaustion of local remedies hurdle, the Court went on to consider the specific alleged violations of the African Charter and other international human rights instruments.
(a) The Right to Have One’s Cause Heard Before a Competent National Court (Article 7(1) African Charter, Article 14 ICCPR and Article 8 of the UDHR)
The Court found that the right to have one’s cause heard before a competent national court contained several aspects including: (i) duration of proceedings in the local courts; (ii) the role of the Prosecutor; (iii) involvement of parties in a civil suit; and (iv) the dispatch with which Burkina Faso guaranteed this right.
With regards the duration of proceedings, the Court stated that Article 7(1) of the African Charter is fulfilled where the proceedings take place within a reasonable time. Given that the Court had already found that the process was unduly prolonged in terms of exhaustion of local remedies, the Court was obliged for the same reasons to find that the case was not addressed within a reasonable amount of time pursuant to Article 7(1) of the African Charter.
As to the role of the Prosecutor, the Applicants had argued that the Prosecutor’s position as serving under the Minister of Justice and their interference in the case at the national level violated their Article 7(1) rights. However, the Court found that Article 7(1) of the African Charter relates to the right to have one’s cause heard by a competent national court, and therefore what is important is the judge who is seized of the matter. Given that the judiciary are independent of the Prosecutor, it could not be said there was a violation of Article 7(1) of the African Charter as long as the Prosecutor’s conduct cannot be specifically demonstrated to interfere with the judiciary.
Concerning the involvement of parties in a civil suit, the Court considered the issue was whether the family members now bringing the case on behalf of the deceased had been involved in a civil case for damages against Burkina Faso in the domestic courts. The Court noted that it appeared that the family were heard by an investigating Magistrate, and that the investigating Magistrate’s decision not to pursue adversarial procedure did not amount to a violation of Article 7 (1) of the African Charter.
Finally, as to the dispatch with which Burkina Faso guaranteed this right, the Court stated that under Article 7 of the African Charter, Burkina Faso was compelled to make all necessary efforts to search, prosecute and bring to trial the perpetrators of crimes such as murder. It once again noted the unreasonable length of time taken to investigate the matter and also Burkina Faso’s failure to explore other possible explanations for the deaths. The Court was also concerned by the late hearing of the civil damages case, which was only heard close to eight years after the deaths, whereas the Individual Applicants had initiated their case in January 1999. It further found that after an order was issued in August 2006 to terminate the case against the main accused, Burkina Faso failed to pursue any further investigation “as if the matter had come to an end”. Accordingly, the Court considered that Burkina Faso had not acted with due diligence in seeking out the killers of Norbert Zongo and his associates. The Court therefore found that Burkina Faso had violated the rights of the Applicants to have their case heard by competent national courts as guaranteed under Article 7 of the African Charter.
Since the Court found a violation of Article 7 of the African Charter, it deemed it unnecessary to consider the allegations of a similar nature under Articles 2(3) and 14(10) of the ICCPR and Article 8 IDHR.
(b) The Right to Equal Protection of the Law and Equality before the Law (Article 3 African Charter)
The Court dismissed claims by the Individual Applicants that their case should have been dealt with as quickly as other similar cases, finding that equality before the law does not necessarily mean all cases should be disposed of in the same amount of time.
(c) The Protection of Journalists (Article 9 African Charter, Article 66(2)(c) ECOWAS Treaty, Article 19(2) ICCPR)
The Court found that Article 9 of the African Charter and Article 66(2)(c) ECOWAS Treaty should be read jointly; albeit Article 66(2)(c) ECOWAS Treaty specifically protects journalists whereas Article 9 of the African Charter covers more generally freedom of expression. The Court noted that the Applicants argued that the rights of journalists which should be guaranteed are the right to life and the right to freedom of expression. Since the Court had determined in its Preliminary Decision that it did not have jurisdiction to deal with right to life, the Court did not examine this aspect further. As to the right to freedom of expression, the Court considered this related to the general right to freedom of expression and not that of Zongo in particular, and that it did not involve the specific rights of the individual applicants who are not journalists. The Court found that whilst the allegation may be of interest to the NGO Applicant, they had failed to show proof that the Burkinabe media had not been able to exercise freedom of expression. It opined that Burkina Faso could not be accused of violating these provisions simply because it had not acted with due diligence and efficiency in identifying and bringing to trial the assassins of Zongo and his colleagues.
(d) Respect for Human Rights (Article 1 African Charter)
The Court split consideration of the general Article 1 African Charter right into two: (i) legislative measures; and (ii) other measures. As to legislative measures, the Court found that Burkina Faso had adopted a number of legal measures to guarantee the right to have one’s cause heard by an independent and impartial judge and it was therefore clear that it could not be blamed for not having taken general legislative measures. As to other non-legislative measures, the Court considered whether by failing to properly seek out the killers of Zongo and his colleagues, Burkina Faso had failed to take measures to ensure respect for the rights of the Applicants cause to be heard by competent national courts. Since the Court had already found that Burkina Faso had violated Article 7 of the African Charter it found that Burkina Faso had also simultaneously violated Article 1 of the African Charter.
3. Reparations Judgement
The Reparations Judgement, rendered on 5 June 2015, addressed the Court’s deferred ruling on the issue of damages to be awarded to the Applicants following their successful application.
Importantly, despite the reparations Judgement stating that the Court had found violations of not only Article 7 of the African Charter (right to have one’s cause heard) it also stated that the Court had found a violation of Article 9(2) of the African Charter, to be read jointly with Article 66 (2) (c) of the ECOWAS Treaty. However, the Court found that since no arguments were put forward regarding reparations for violation of Article 9(2) of the African Charter and Art 66(c) of ECOWAS Treaty, the Court would only consider reparations concerning the violation of Article 7 of the African Charter defined as Burkina Faso “did not act with due diligence in seeking out, prosecuting and putting on trial those responsible for the murder of Norbert Zongo and his three companions.”
(i) Reparations Framework
The Court began by setting out in detail the framework to be used by the Court when considering reparations and damages. Relying on the 1927 Permanent Court of International Justice The Factory at Chorzów case the Court recalled the basic premise that any country in violation of international human rights provisions is required to make full reparation for the damage caused.
As to the Court’s powers in particular, it noted that if it finds a violation, Article 27(1) of the Protocol empowers the Court to “make appropriate order to remedy the violation, including the payment of fair compensation or reparation”.
The Court recognized two types of damages; material and moral. The Court took its definition of material damages from the Dictionnaire de Droit International Public as “one that affects economic or material interest, that is, interest which can immediately be assessed in monetary terms”. It took its definition of moral damages from the IACHR case Cantoral Benavides v. Peru which defines moral damages as “one that affects the reputation, sentiments or affection of a natural person”.
(ii) Moral Prejudice
(a) Individual Applicants
The Individual Applicants claimed reparations on account of the pain, physical and emotional suffering and trauma endured throughout the duration of the lengthy legal procedure, which they argued was entirely ascribable to the Bukinabè authorities. The Individual Applicants requested lump sum payments to each of the families including payments to spouses, parents, children and step-brothers and step-sisters.
Burkina Faso argued that the Individual Applicants had failed to adduce sufficient evidence either under Bukinabè or international law to justify their status as beneficiaries. In particular, it submitted that the Individual Applicants had failed to provide sufficient documentation to prove their relationship to the deceased, or were too remote to qualify for reparations. Burkina Faso also pointed to international human rights jurisprudence which it argued demonstrated that only members of a family that have close filial relations with the direct victim are considered as indirect victims with a right to reparation, and that the Individual Applicants had failed to prove such a relationship.
The Court broke the matter into four “issues”: (i) the notion of victim; (ii) the type of evidence required to establish victim status; (iii) proof of causal link between the wrongful act and the moral prejudice suffered; and (iv) the amount of reparation.
With regards the notion of victim, the Court found that Burkina Faso incorrectly placed victims entitled to reparations on the same footing as heirs under Bukinabè law. It was of the opinion that according to international human rights law, the notion of victims must not necessarily be limited to that of heirs, and that it may include other close relatives who can reasonably be considered as having suffered moral prejudice as a result of the violation of the human rights in question. The Court found that there is no doubt that many people suffered morally to varying degrees from Burkina Faso’s lack of due diligence in seeking out, prosecuting and putting to trial the perpetrators of the killing of Nortbert Zongo and his colleagues, but that in this case those at the “very front line” suffered the most; the spouses, children, fathers and mothers. Accordingly, the Court found that these persons may claim status as victims and therefore were eligible for reparation.
As to the type of evidence required to establish victim status, the Court considered that in order to establish status as a victim, prospective victims need not produce a certificate of hereditary as required under Bukinabè law, since the relevant issue is not to know whether the person is an heir but rather to know whether such a person is recognized victim under international human rights law. Therefore the Court required spouses to produce marriage certificates and life certificates, for children to produce their birth certificate and life certificates, whilst fathers and mothers must produce proof of paternity. Regards proof of causal link between the wrongful act and the moral prejudice suffered, the Court considered that such a link may result from the violation without any need to prove otherwise.
Finally, as to the amount of reparations, the Court stated that the applicable principle is that of full reparation, commensurate with the prejudice suffered. The Court noted that the lump sum amounts submitted by the Individual Applicants were not contested by Burkina Faso who had instead sought to argue that their status as victims had not been established. The Court found that in these circumstances on the grounds of equity and considering the suffering of the victims occurred over many years it saw no reason not to award the amounts as requested by the victims. The lump sums requested and awarded being 25 million CFA F per spouse (approximately $41,500), 15 million per child (approximately $25,000), and 10 million CFA F per mother or father (approximately $16,500). The Court dismissed the claims for reparation for moral prejudice for step-mothers, uterine sisters and brothers and step-sisters and step-brothers.
(b) NGO Applicant
The Court also considered reparations for moral prejudice for the NGO Applicant, the NGO Applicant having made a submission for the token payment of 1 CFA F for the “damages caused to it for its involvement in the search for truth”. Burkina Faso indicated it found no inconvenience in paying the token damages.
The Court accepted that a legal entity can suffer moral prejudice. In this case, the Court considered that the prejudice may have resulted from the frustrations experience for years by the MBDHP trying to gain justice for the families of the deceased. The Court found that it’s Judgement on the Merits already constituted a form of reparation for the moral prejudice caused to the MBDHP. But in the “special circumstances of this case” where Burkina Faso had not raised any objection to the token payment granted the sum of 1 CFA F to be paid to the MBDHP.
(iii) Material Prejudice
The Court considered the NGO Applicant’s claim for reimbursement of expenses for organizing demonstrations use to try to force Burkina Faso to track down the killers of Zongo and his colleagues. Burkina Faso argued that claim for reimbursement of MBDHP’s expenses was groundless since the MBDHP had been in existence before the killing of Zongo and his companions, Burkina Faso already contributes to the running of MBDHP (a claim MBDHP flatly denied), that demonstrations were organized with other NGOs and were not solely based on the Zongo case but against impunity for generally, and that it had failed to provide documentation of the costs.
The Court found that the organization of demonstrations as detailed by the NGO Applicant fell within its general mandate and the ambit of its normal activities, and as such the Court found that there was no basis to grant the claim for reimbursements for organizing demonstrations.
(iv) Expenditure and Costs by Beneficiaries
The Applicants requested Burkina Faso reimburse lawyers fees and also the expenses incurred for transport to Arusha, where the Court is based.
With regards lawyer’s fees, the Court found that the reparations paid to the victims of human rights violations may also include the reimbursement of lawyers fees, a position stated in the Mtikila v Tanzania case. The lawyers representing the Applicants submitted claims for fees totaling 100 million CFA F (approximately $166,000). The Court calculated the amount to be awarded should take into account the “difficulties the lawyers must have faced” in the domestic proceedings especially considering the length of time taken, the highly politically sensitive nature of the case and the work required to bring the case before an international court.
The Court determined the lawyer’s fees on the basis of equity, going by what it considers reasonable in each case. Taking into account t amounts stipulated in Burkina Faso Indicative Scale of Costs and Fees, the amounts stipulated in fee agreements and the amount proposed by Burkina Faso itself (some 200 million CFA F) a lump sum comprising expenses and lawyers fees in the amount of 40 million CFA (approximately $66,500) was considered equitable and reasonable.
With regards transport and sojourn expenses in Arusha, the Applicants claimed the costs for their lawyers and a member of the MBDHP to attend the public hearings. The Court considered that reparations could include reimbursement of transport fares and sojourn expenses. It found however that only expenses supported by proof of payment such as receipts can be considered. The Court therefore granted claims backed up by receipts to the spouse of Zongo, lawyers and NGO representatives for hotel and flight costs.
(v) Measures of Satisfaction and Guarantees of Non-Repetition
The Applicants requested the Court to order the publication of its judgments in various newspapers in order to disseminate it as widely as possible. Burkina Faso did not object to such publications but argued that measures of satisfaction should not lead to the humiliation of the member state concerned. Recalling its order in Mtikila v Tanzania to publish the judgment as a measure of satisfaction, the Court found that such publication does not amount to public humiliation. Accordingly, it ordered within six months of the date of the Reparations Judgement that the judgement be published in a national newspaper and a summary be posted on an official government website for one year.
As to guarantees of non-repetition, the Applicants requested that the Court order the re-opening of the investigations in the killings so that the perpetrators can be brought to trial. Burkina Faso argued that such an order would be “contemptuous” of Burkina Faso law and procedure and that it continues to make the commitment that as soon as new facts emerge the investigation will be reopened.
The Court considered an order to re-open the investigation was not really a measure of non-repetition but rather the cessation of a violation already established, i.e. Burkina Faso’s failure to properly investigate and bring to justice those responsible for the killings. The Court was therefore of the view that such an order was a legitimate measure likely to forestall the continued violation of Article 7 of the African Charter. In doing so, it found that an order to re-open the investigation is unlikely to be considered contempt for Burkinabè legislation since the order is to offer the possibility of the investigation being re-opened. The Court made clear that in making the order it did not deem it necessary to indicate how it should comply with the order, leaving this to the discretion of Burkina Faso.
4. Conclusion
With regards the Judgement on the Merits, this case contained the new procedure of a hearing on the merits of the case only after a preliminary matters hearing. It is interesting to note that this preliminary hearing included issues of jurisdiction but stopped short of assessing exhaustion of local remedies. This new procedure in some ways may assist the Court in its work as cases which fail on jurisdiction can be dealt with quickly without the need to hear arguments on the merits. Of course the concern is that with a preliminary hearing, a case can now contain three parts: preliminary, merits, and reparations which may necessitate three separate court hearings and additional travel for applicants and their lawyers as well as lengthening the overall time frame of a successful application.
As to the exhaustion of local remedies, the interesting development here is in the “unduly prolonged” exception. The Court made clear that the period of time being considered is the whole of the time from the start of the litigation and not just any possible future litigation at the national level as argued by Burkina Faso. This standard is likely to produce more cases where undue delay exceptions are granted. In addition, the Court’s statement that the assessment of the duration of litigation should be done on a case-by-case basis is a sensible and welcome development and seeks to allow flexibility in future assessments.
With regards the central finding on violation of Article 7 of the African Charter I am not convinced why if the “unduly prolonged” test is met for exhaustion of local remedies this automatically obliges the Court to find duration also violated Article 7 of the Charter. It might, but I don’t see why one automatically leads to the other. It is also worth noting that once again having found a violation of the African Charter, the Court elected not to make a finding on the possible violation of other international human rights instruments. As I have mentioned previously, whilst this may be an issue of brevity in the judgement, it is disappointing that the Court does not also make a finding on the violation of international human rights treaties. Theses treaties do not represent an either/or option to the African Charter and should be instead considered to be important in setting a record of violations of these treaties for future cases and for consideration by other international human rights organizations who monitor such violations.
Despite these developments the Zongo case really establishes itself for the reparations awarded to the applicants. Certainly the Mtikila case first considered the issue of reparations, and in many ways opened the door for the awarding of reparations by stating that reparations were very much part of the Court’s remit, but undoubtedly as the first judgement in which the Court has awarded reparations Zongo should be considered another landmark judgement.
A few issues on the reparations are worth teasing out. First, is the symbolic awarding of 1 CFA F to MBDHP for moral reparations which seems somewhat to miss the point. Burkina Faso agreed that it would have no problem paying the amount. But symbolic amounts are always small. The point is whether it should be paid at all not whether the amount is manageable. To this end, possibly wary as to whether future NGO applicants can claim moral reparations, the Reparations Judgement seems clear that the main reparation is the finding in the Judgement on the Merits and only because Burkina Faso did not object to the payment of the token amount is it granted. This I believe will make it more difficult for the Court to pay it moral reparations to NGOs in the future where the state member objects.
Second, the payment of lawyers fees and travel and accommodation costs should be roundly welcomed. Whilst the Court is now operating a legal aid scheme which may alleviate the need for the Court to award lawyers fees directly, its willingness to award fees and costs association with litigating a case should be seen as a positive step in ensuring that applicants are represented by high quality legal representatives, and that the applicants have some hope of regaining the sometimes enormous costs of traveling to the Court in Arusha to have their case heard.
Third and finally, as to the order to reopen the investigation, leaving it to the discretion of Burkina Faso as to how they will comply with the order to reopen the investigation may, I am afraid to say, lead to disappointment for the families of the deceased. Since there appears to be no new evidence or information at this stage, in order to comply with this order Burkina Faso may have to simply reopen the investigation but this may result in no real progress being made- lets hope I am wrong.
In conclusion, the Zongo case marks a welcome development on the jurisprudence of Article 7 of the African Charter as well as indicating a new possible procedural regime. Where the case gains most attention is in the awarding of reparations for the first time. Where Mtikila hinted at the possibility of reparations being paid, the Zongo case represents an unmistakable clarion call that, where appropriate, the Court will not shirk from awarding significant levels of reparations to those whose rights have been violated.