Keep Talking: The Release of the Joint Law Report 2019

Firstly, a belated happy near year to all our Monitor readers!

In this first post of the year, I wanted to highlight something that I hope many readers have already read- the recently released Joint Law Report 2019. The Joint Law Report is a new venture from the African Court on Human and Peoples’ Rights, Inter-American Court of Human Rights and European Court of Human Rights. This product is exactly what it sounds like; a review of the most important 2019 cases from the African Court, Inter-American Court and European Court. In and of itself, this report is notable as the first of its kind, providing rich pickings for legal practitioners, activists and researchers who can use it to quickly review and understand case law from 2019 across three regional human rights courts.

But over and above the Joint Law Report’s obvious use, I wanted to recognise the cooperation required for a product like this. Put simply, cooperation across three courts, especially the first one, is hard. This is a great sign of a burgeoning recognition between regional human rights courts that they are going to be most effective when they work together. Rather than operating in self-contained silos, these courts, not only referencing each other’s case law, but perhaps equally as importantly talking to each other outside the confines of judicial decision making should not only be welcomed but encouraged. The more these courts talk to each other, the more they can explore and share concerns, difficulties and issues. This can in turn improve their work, ultimately leading to better human rights protection for everyone under the jurisdiction of the three courts. I hope this becomes an annual product, not only assisting in disseminating leading caselaw, but keeping the courts talking.

You can find the report here

Another One Bites The Dust: Tanzania Withdraws Its Additional Declaration

Over the last week, observers of the African Court on Human and Peoples’ Rights (African Court) have been gripped as news of Tanzania’s possible withdrawal of its Additional Declaration pursuant to Article 34(6) of the African Court Protocol emerged. At the time of writing, I haven’t seen any official statement from the African Court on this, but we now have a few press articles, plus a statement from Amnesty International denouncing the move. Given the lack of pushback from the African Court and what seems to be quotes from Tanzanian officials confirming the withdrawal, it appears that the withdrawal has indeed taken place.

In this post I want to explore a few issues relevant to the withdrawal based largely on correspondence I’ve had over the last week with people interested in Tanzania’s withdrawal and wanting to know more. Its again worth emphasising that the following is based on my understanding that Tanzania is simply withdrawing its Article 34(6) Additional Declaration with no changes/withdrawals to other related instruments.

What is the Additional Declaration?

A good place to start for those who may be new to the African Court. I go into a lot of detail on how individuals can access the African Court, in an article I wrote for the Wisconsin International Law Journal. But in short, we have three relevant instruments. First, we have the African Charter on Human and Peoples’ Rights (African Charter). The African Charter contains human and peoples’ rights that many will be familiar with, for example the right to fair trial (Article 7) and the right to life (Article 4). Every AU member state, apart from Morocco, has ratified the African Charter. The African Charter makes provision for the African Commission of Human and Peoples’ Rights (African Commission), but not the African Court; this is where there second instrument come in. The African Court Protocol is an additional instrument that essentially creates the African Court and allows AU member states to participate with it. Importantly, when AU member states ratify the African Court Protocol it allows cases to brought before the African Court by AU member states, the African Commission and Intergovernmental organisations. What ratification of the African Court Protocol does not do, is allow individuals or NGOs to directly petition the African Court. There is however a way to do this; an AU state must sign a declaration as found in Article 34(6) of the African Court Protocol, often referred to as the “Additional Declaration” or sometimes the “Special Declaration”. The wording of the Additional Declaration may not be long but it is very powerful. It allows individuals and NGOs to directly bring cases against the state, without having to go through the African Commission or persuade other states or intergovernmental organisations to bring a case on their behalf. Tanzania signed the Additional Declaration in March 2010, and since then Tanzanians and Tanzanian NGOs have been able to bring cases directly to the African Court alleging Tanzania has violated their rights as found under the African Charter or other international human rights instruments ratified by Tanzania. What we understand is that Tanzania has not withdrawn from the African Court entirely, but withdrawn its Additional Declaration.

Can Tanzania Do This?

Yes. This is not the first time this has happened. Last year Rwanda withdrew its Additional Declaration. I wrote an article on this for the African Human Rights Yearbook that is available here. Simply put, Rwanda applied to withdraw its Additional Declaration as it felt that persons accused of genocide-related crimes were using the African Court inappropriately. Putting the rights and wrongs of this argument to one side, the African Court considered the notion of withdrawal and found that Rwandan could indeed withdraw its Additional Declaration (just as a state is free to sign the Additional Declaration, it is also free to withdraw it), albeit with a 12 month notice period.

What Does this Mean for Tanzania?

Its important to note the 12 month notice period, or “cooling off period”. I have seen several reports on Tanzania’s withdrawal that fail to mention this crucial aspect of the Rwandan case. For Rwanda, this meant that the African Court would continue to accept cases relating up to one year after it withdrew its Additional Declaration. Whilst we have yet to receive all the information in the Tanzanian situation, I see no reason on the information I have seen why the same would not apply in this case. Reports tell us Tanzania submitted its withdrawal on 21 November 2019. This would mean applicants would have to submit applications by 21 November 2020.

What Does this Mean for the African Court?

We are going to go into more details of the potential wider ramifications of Tanzania’s withdrawal over the coming weeks on The ACtHPR Monitor, but it is worth flagging right now that (a) the African Court is based in Arusha, Tanzania and (b) that a large majority of cases relate to Tanzania. Whilst there is no reason I am aware of why Tanzania cannot continue to host the African Court even if it is not fully signed up to it, the optics are obviously difficult. In terms of the large majority of cases relating to Tanzania, as I mention above, based on the Rwanda precedent, all current cases on the African Court’s docket remain, as will all future cases for the next 12 months. This means the African Court is likely to rendering judgements relating to Tanzania for a while yet.

Can This Decision be Reversed?

We are hearing that there efforts at the UN level to try and persuade Tanzania to reverse its withdrawal- lets see what happens.

When Can We Expect Further Information?

The issue of timing is one I raised in my article analysing Rwanda’s withdrawal its Addition Declaration. In that case, the decision to impose a 12 month cooling-off period appeared to be handed down some six months after the withdrawal notice was submitted. The delay in part because the matter was litigated extensively. In effect, this appeared to mean that the notice period was only six months (the remainder of the 12 month notice period after the decision was rendered) putting prospective Rwandan applicants at an apparent disadvantage. Given that the issue of if/how long a notice period exists has now been considered, it is hoped the African Court can act quickly to clarify the position in this new case. The bottom line; unless told otherwise, prospective Tanzanian applicants have until 21 November 2020 to file cases before they will lose the opportunity for the foreseeable future.

As I say, we will have further posts in the coming weeks on this, but hopefully this serves as a starting point.

A welcome development: Amnesty’s new annual report on the African Union’s human rights entities.

Just a short post to highlight a really interesting new Amnesty report. The publication, entitled “The State of African Regional Human Rights Bodies and Mechanisms 2018-2019” is an important review of the main African Union-related human rights entities; the African Court on Human and Peoples’ Rights (ACtHPR), the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The report gives a fascinating overview of all three human rights organs, and whilst it does not go into great analysis of individuals decisions (you can get that here at The Monitor!) it does provide invaluable assessment of their operations and picks out some interesting trends, both positive and negative.

Image courtesy of Amnesty International

Equally welcome is Amensty’s declaration that the release of this kind of report will be an annual event, with publication anticipated every October. An annual report of this kind, when done well as appears to be the case here, can only be a good thing; providing much needed analysis and assessment of both the African Court and its human rights cousins, the ACHPR and ACERWC. You can download the report here.

I encourage all our readers to have a look!

Closing the Circle: the Ingabire Reparations Decision

As followers of the African Court and The ACtHPR Monitor will know, the case of Ingabire v Rwanda will undoubtedly rank as a watershed case. For those new to this matter, may I suggest reading previous posts on the case here, here, here, here and here (I’ve posted a lot on this!) I also had an article published in the latest edition of the African Human Rights Yearbook that looks at the case extensively. Its free to download and can be found here.

So, in this post I wanted to close the circle and have a look at this final leg of the case; the reparations decision that came out in December 2018. This decision, barring a request for review or interpretation, sees the end of one of the most fascinating cases before the African Court. As I’ve briefly discussed above, this case had everything; high profile applicant, country withdrawal, unprecedented decisions on that withdrawal, judgement on the merits and more. The reparation judgement continues this theme with some interesting points to note. At the outset, it’s worth noting that this reparations judgement is only the African Court’s fourth reparations judgement (in Mtikila v Tanzania no reparations were awarded, in Zongo et al v Burkina Faso and Konaté v Burkina Faso reparations were awarded). The African Court is beginning to build up a substantial number of judgements on the merits, but the reparations elements for several of these cases remains wanting.

But perhaps it’s still worth just giving a little context about this case in a few sentences. Victoire Ingabire, a prominent Rwandan opposition politician, petitioned the African Court alleging that her trial in Rwanda on genocide-denial type charges fell short of the right to fair trial and the prosecution itself violated her right to freedom of expression, both of which are enshrined under the African Charter and ICCPR. Its very much worth noting that in-between Ingabire’s petition and African Court’s judgement, Rwanda withdrew its Additional Declaration allowing individuals and NGOs direct access to the African Court. Despite this withdrawal the African Court continued to consider the case and found in Ingabire’s favour. However, as is usual practice, the African Court deferred its decision on reparations to a later date, allowing both parties to make further submissions specifically on reparations. In terms of procedure, perhaps unsurprisingly, Rwanda filed no submissions on reparations. Given Rwanda’s withdrawal of its Additional Declaration during this case this is was expected, but it wasn’t necessary. Rwanda could have continued to litigate this case and still preserve its withdrawal. But given Rwanda’s reasons for withdrawal perhaps it simply couldn’t countenance the idea of wading into reparations debates?

Removing the Convictions

The African Court reiterated that reparations are required to make full reparation for the damage caused to the victim. Interestingly, the African Court added that when considering reparations, it will consider the “expressed wishes of the victim” confirming perhaps the African Court’s approach that the reparations stage should very much be victim-lead rather than lead by the African Court and its judges.

Despite noting the need to consider the wishes of the victim, the African Court did not grant Ingabire’s request to for her convictions to be expunged; perhaps her biggest wish? Whilst the African Court stated that the role of reparations is to “erase all consequences of the wrongful act and restore the state which presumably have existed if that act had not been committed” it stopped short of ordering Rwanda to remove Ingabire’s conviction from the record. Whilst the fact that Ingabire was released from prison in November 2018, just before the reparations judgement was released, may have played some role, the fact remains that Ingabire still has a criminal conviction for conduct which the African Court has stated was a legitimate form of freedom of expression, following a trial which it found was unfair. The African Court seems to read Ingabire’s request to be the expunging of the sentence only, but I’m not so sure. I read the request as the expunging of the conviction too (see paragraph 6 of the Reparations Decision) If this is indeed the case, could the African Court not have ordered Rwanda to remove the conviction too? The African Court’s powers would suggest so.

Material Reparations

As to material reparations, Ingabire claimed $200,000 for procedural costs including lawyers’ fees. The African Court examined the fees paid by Ingabire to her lawyers and granted the sums incurred. This sends a clear message that applicants can seek to obtain such costs as long as they are properly detailed and accounted for in supporting documents. What is interesting is that the African Court granted fees not only for litigating the case before the African Court, but for the lawyers defending Ingabire in the domestic courts too. Therefore, the African Court seems to have considered legal fees in the widest possible stance; not only African Court litigation but also the costs of the defence against charges in Rwanda that the African Court ultimately found violated Ingabire’s right to fair trial and freedom of expression. Future applicants should therefore not only seek to cover the costs of African Court litigation but also all other associated lawyers costs in domestic cases too.

Moral Prejudice

Ingabire also made a claim for moral prejudice, arguing that since her imprisonment her political and family life have been shattered.  For Ingabire herself, the African Court seemed to be in little doubt that she had been targeted for her words and views, and that her reputation and political future had suffered, agreeing that she deserved reparations. 

Ingabire also claimed reparations on behalf of her husband and children who had also suffered physically and emotionally as a result of her prosecution and conviction. Taking its lead from its Zongo et al v Burkina Faso reparations judgement, the African Court confirmed that direct or close family members who suffer physically or psychologically from a violation are also victims. This is a welcome continuation of the African Court’s expansive views on who can claim reparations. Like the material costs discussed above, the African Court’s key determination in awarding such reparations was the documentation that Ingabire produced to support these claims. In particular, Ingabire provided medical reports to support her description of her husband’s suffering, although such evidence was not, perhaps sensibly, required of Ingabire’s children. In total, the African Court awarded $100,000 in reparation for moral prejudice. On final point. The African Court noted that Ingabire received a presidential pardon, leading to her release, and that this constitutes a form of reparation for moral damage, but this does not preclude the payment of monetary compensation for the violation of the right to freedom of expression. This stance sets an interesting precedent moving forward. Member states can attempt to rectify a violation that will go some way to easing a situation, but this will not block the African Court’s awarded of financial compensation too.

Conclusion

In conclusion, this case marks only the third time the African Court has awarded reparations, and largely follows the African Court’s previous decisions. In terms of material reparations, it’s interesting to see the expanding the potential costs of lawyers to cover domestic work as well as the African Court litigation. In terms of moral prejudice, the African Court continues to maintain an expansive approach to who can be considered a victim, including direct or close family members. What comes out from all these points however is the requirement that applicants seeking to claim reparations provide as much documentary evidence as possible. With supporting evidence, the African Court seems ready to consider an extensive interpretation of reparations. Without supporting evidence, reparations claims are likely to flounder. Of course, it is Rwanda who is required to pay the reparations, not the African Court, and this is likely to be the sticking point for Ingabire receiving any of the money she has been awarded. I have no inside knowledge of this, but my best guess is that given the context of the case, Rwanda is unlikely to ever pay up. I hope I am wrong, but I suspect Ingabire may be waiting a long time before Rwanda fully closes the circle on this case.

Introducing our new Associate Editor, Misha Plagis

Whilst our twitter presence has remained strong throughout 2018, I am aware that The ACtHPR Monitor hasn’t produced much content on our blog; our last post was in May in fact- yikes!

Despite this fallow period, I’m pleased to say we are redoubling our efforts to produce as much African Court related content as possible in 2019. With this in mind, I am delighted to announce the appointment of Misha Plagis as The ACtHPR Monitor’s new Associate Editor! 

Misha received her LL.B. and LL.M. from Maastricht University, before working with a number of NGOs around the world. Misha then pursued her doctorate at the Freie Universität Berlin, as part of the Human Rights Under Pressure interdisciplinary graduate school. Having completed her doctorate this year, Misha is currently a visiting scholar at the Max Planck Institute for Procedural Law, Luxembourg.

Misha is a South African and Dutch national, who’s scholarship this year has focused on the African Charter and the African Court. I think Misha is going to be a great fit at The ACtHPR Monitor. She will be regularly posting her own content (first post coming this week) as well as facilitating new guest posts and coming up with new and exciting ideas for The ACtHPR Monitor in 2019.

I hope the whole Monitor community will join me in welcoming Misha on board!

One Year On:  Q&A with Daniel Kobei, Executive Director of the Ogiek Peoples’ Development Program.

On 26 May 2017 the African Court rendered judgement in the case of African Commission on Human and Peoples’ Rights v. Kenya (Judgement). As background, this case involves a claim by the Ogiek people, an indigenous group who have called the Mau Forest in Kenya home for time immemorial. In October 2009, the Kenyan government served an eviction notice on the Ogiek people, requiring them to leave the Mau Forest within 30 days. Represented by the Ogiek Peoples’ Development Program (OPDP) and Minority Rights Group, the Ogiek people brought a case before the African Commission on Human and Peoples’ Rights, arguing that this eviction, and their decades-long treatment at the hands of the Kenyan Government was in violation of various African Charter rights. I have written about the case before here and conducted an in-depth roundtable in December 2016 with Lucy Claridge, then Head of Legal at Minority Rights Group and Daniel Kobei Executive Director of the Ogiek Peoples’ Development Program, a Kenyan-based NGO, Vice-Chairman of the Hunter-Gatherers Forum (HUGAFO) and Secretary of the Ogiek Council of Elders which you can find here.

There can be little doubt that this judgement will go down as one of the African Court’s landmark cases. In a resounding success, the African Court found in the Ogiek peoples’ favour, finding that Kenya’s actions violated Articles 1, 2, 8, 14, 17 (2), 17 (3), 21 and 22 of the African Charter. On 26 May 2018, the Ogiek people will celebrate this landmark judgement.

I am delighted that we can now catch up with Daniel Kobei one the eve of the Judgement’s one year anniversary celebrations to see what has occured in the past 12 months.

OW: Firstly, congratulations again on your success at the African Court. Going back to 26 May 2017 how did the Ogiek community think the judgement may change their circumstances?

DK: Thank you!

The community had waited for too long for justice to be served. Eight years is a long time. For a child who was born in 2009, she or he would be in Class Two in the Kenyan education system. That is a huge development and for the Ogiek,the ruling  marked the beginning of a new era. They wanted their rights to be recognised  to start enjoying life just like any other ethnic community in Kenya. The African Court did recognize the Ogiek as an indigenous population that is part of the Kenyan people, having a particular status and deserving special protection deriving from their vulnerability.

They had suffered for too long and the African Court’s decision would not only give them cognizance with the government of Kenya, but also trigger it to correct the wrongs they committed against the community. Ejecting them from their ancestral land being a major one, and so the community expected to be settled back to their homes to continue with their normal lives.

OW: Can you provide an update on what has happened since the judgement was rendered?

DK: The community made submissions for reparations in October last year to the African Court through the African Commission. We are awaiting for the African Court’s decision on that

In November last year, the Kenyan government constituted a 6-month term taskforce of 17 members to oversee the implementation of the case. However, it is yet to yield a interim or final report on implementation of the decision for submission to the African Court as mandated in the gazette notice of Nov.10, 2017.

Its tasks include studying the African Court’s decision and other judgements issued by the local courts in relation to the Ogiek’s occupation of the Mau Forest, together with land related laws and policies to see how they address the plight of the Ogiek in the Mau as well as examine the effect of the judgement on other similar cases in other areas of the country.

It must also help establish the registration and ground status of the claimed land and recommend measures to provide redress to the Ogiek’s claim which would include restitution to the original land or compensation with the case or alternative land.

Also,the Kenyan government through the Solicitor General responded to the community’s submission of reparations, and although it was in acceptance of the African Court’s decision,they discounted some of the reparation requests made and outlined unfriendly pre-requisites for implementation of the decision such as exclusion of intermediary parties mainly referring to OPDP and MRG in the implementation process.

 The Kenyan government wants to directly engage with the community and we strongly oppose that proposition. In fact, the community wants us to represent their voice in the process. They trust in us and know that what we are doing is for their own good. There is also mushrooming of fake title deeds even before the real implementation begins.

OW: Has the relationship between the Kenyan Government and the Ogiek peoples’ changed since the African Court’s judgement and if so, how?

DK: It is a mixed kind of relationship. While on one hand we have seen good things come out of it, on the other hand, the community is still in pain from continued abuse of the same rights they went to the African Court to reclaim.

This year, we had one of our own (Victor Prengei) nominated to the Senate to represent the youth. This is the first ever high ranking legislative position to be held by an Ogiek. Again, an Ogiek woman was nominated to the County Assembly of Nakuru, a regional legislative arm in Kenya. An Ogiek too was appointed to the position of assistant chief for Ndungulu location in  Uasin Gishu County in the Rift Valley region.

Nevertheless, the Ogiek are still being pushed out of their lands by people owning fake title deeds. This is really worrying and that’s why we want the government to speed up the process of actualizing the ruling of the African Court.

 OW: The case was only the second involving a transfer from the African Commission to the African Court. How has the relationship between you and the African Commission developed over the past twelve months?

DK: Our relationship has been cordial and throughout,we have maintained constant communication. The Commission passes to us what has been communicated from the African Court and equally delivers our communication accordingly.We do not communicate directly to the African Court but through the African Commission.

 

A Cause for Optimism: Lesotho Strikes Down Criminal Defamation

Followers of The ACtHPR Monitor’s twitter feed (and if you are not, you can follow us here) may have caught the latest news that Lesotho’s Constitutional Court has just handed down judgement finding that the offence of criminal defamation violates the Lesotho Constitution’s protection of freedom of expression. The judgement is available here and is well worth a read.

This is cause for celebration, especially for those who have long championed for the eradication of defamation as a criminal offence across Africa. What is also great to see is that the Lesotho Constitutional Court relied in part on the African Court’s Konaté judgement (which found Burkina Faso’s criminal defamation laws in violation of the African Charter, as well as other international instruments) as well as the views of the UN Special Rapporteur on Freedom of Expression. On a personal level, given that I am heavily involved in litigating, advising and writing on the African Court and UN Special Rapporteur systems this is really exciting. I am forever the optimist, and a great believer in the systems available to pursue these cases, but I hope this latest result can give everyone, no matter their stance, a little optimism moving forward.

In my experience, when advising on bringing cases before the various human rights mechanisms, one of the most frequently asked questions by prospective applicants (as well as students, other lawyers, activists, journalists etc etc) is will it make a difference? This is entirely understandable. Its easy as the lawyer to set out options and give advice, it is very different for the prospective applicant. They have to live through the often difficult process of explaining what happened, then listening to lawyers, activists and organisations, before making important decisions which is then inevitably followed by a lengthy wait as their case moves through the system.

I hope this latest judgement can therefore serve as encouragement for anyone considering bringing a case, in the midst of a pending case, studying the human rights systems or advocating for change. The Lesotho Constitutional Court has clearly paid careful attention to the continental human rights system and the UN human rights system in reaching its conclusion.

As I say, I am personally optimistic about the human rights systems we have (not that they don’t need improving) but I hope this latest result can give everyone a little bit of optimism moving forward. Bringing these cases can effect real change not only country subject to an application but also far beyond. Congratulations to everyone involved! You can read more on the case on the Southern Africa Litigation Centre’s website here, and once again the judgement can be found here.

Two Times Too Many: Botswana and the Death Penalty

This post first appeared on EJIL:Talk! on 30 March 2018. Following publication I have received a number of enquiries which has prompted me to cross-post this here on The ACtHPR Monitor. If you have already read my post on EJIL:Talk! this will look very familiar, if not, I hope you enjoy! OW.

Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging  is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.)

Despite this apparent victory however, the applicant, Mr Ping, was in fact executed. How did this happen? The decision explains that despite the African Commission using its powers to issue provisional measures preventing execution pending the outcome of the case, a temperamental fax machine prevented this decision being sent directly to the Botswana Office of the President. The provisional measure order to halt the execution therefore never reached Botswanan officials, who went ahead with the execution (yes, you read that correctly, see paragraph 24 of the decision).

So, whilst this decision was rightly lauded, the inescapable tragedy of Mr Ping’s death remains. However, with the decision having been in place and available on the African Commission website for some time, and no doubt with the Botswanan government for years, one could perhaps safely assume that at the very least we would not see an execution by hanging in Botswana any time soon.

Sadly, however news reached us last month that Botswana had executed Joseph Poni Tselayarona; seemingly the first execution since Mr Ping. The reported method of execution? Hanging. As I mentioned at the beginning of this post, another country not implementing a human rights decision may not be particularly novel, but where it involves the use of a form of execution specifically outlawed, involving the very same country subject to the previous decision, this a case worth highlighting.

The African Commission has issued a statement condemning the execution of Mr Tselayarona. In it, the African Commission mentions the death penalty “may” be a violation of Article 4 of the African Charter whilst stating that Article 5 of the African Charter prohibits cruel, inhuman or degrading punishment in broad terms. It does not however reference its own decision on this very issue, involving the exact same country.

Botswana’s failure to not only remove the death penalty but at the very least abstain from using the very mode of execution which the African Commission has decided is in violation of the African Charter merits a further response from the African Commission. But what can be done? The African Commission can send cases to the African Court on Human and Peoples’ Rights (see Rules 118 of the African Commission Rules). However, from the wording of the African Commission rules and the African Court’s reciprocal rules, it appears Botswana must have at the very least signed up to the African Court by signing the African Court Protocol. At present Botswana has not, and therefore a formal transfer from the African Commission to the African Court of the 2015 decision for, say, non-compliance seems off the cards.

Therefore, the matter likely remains within the African Commission’s jurisdiction. One option now is for the African Commission to issue a formal resolution calling on Botswana to implement its 2015 decision and no longer use hanging as a method of execution. Could this resolution could be applied to all 55 African Union member states? Possibly. The African Commission has issued such a resolution once before to my knowledge. In November 2009, the African Commission considered the case of Endorois v. Kenya. In this case, the Endorois people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria, Kenya and Kenya’s failure to adequately compensate them. The African Commission found in the Endorois peoples’ favour, ruling Kenya had violated numerous articles of the African Charter, and recommended several ways to rectify the situation. It appears that Kenya did little to implement the African Commission’s recommendations, and so in November 2013 the African Commission issued a resolution calling on Kenya to implement its recommendations.

Whether the resolution issued in the Endorois case had much effect is up for debate (although it appears that the next time a Kenyan case involving indigenous peoples’ came before the African Commission it transferred the case to the African Court proprio motu). In the current Botswana situation, where we have the same country using precisely the same form of execution found by the African Commission to be in violation of the African Charter, it seems the very least the African Commission should do is issue a similar resolution. Such action would at least go some way to ensuring we are not faced with similar cases such as those of Mr Ping and Mr Tselayarona. It may be a small step, but it would be a start.

 

 

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New Friends: The ECOWAS Court and African Court

Recently, the African Court announced the conclusion of a visit from the ECOWAS Court. At the end of the four day visit the institutions signed a Memorandum of Understanding. I’ve attached the announcement of the MOU below.

Here’s three quick thoughts:

A First? Its good to see the African human rights system coming together. Just the very fact both institutions sat down to talk for a few days is notable. I often hear comments that the African human rights system is complicated and confusing. There is some truth in this, but when the institutions themselves are talking its a good start to demystifying the African human rights systems and its venues.

Overlapping… but not too much The announcement mentions the overlapping jurisdictions of the ECOWAS Court and the African Court. This is certainly correct, but I wonder if the two court’s slightly different roles allows for greater coordination? The ECOWAS Court is a regional institution and is therefore competing for a slightly different place at the table to that of the African Court that aspires to be a continent-wide court. Could it be that the continental and regional can exist more easily than two institutions both looking to achieve continent-wide mandates?

Talking can only be positive It is easy to dismiss these kind of announcements as nothing more than glad-handing. Who knows if this initiative will really gain any traction? But by opening up communication channels things can happen. It might only be one conversation or a shared experience, but something seemingly small can lead to a change in the way an institution approaches an issue or deals with a problem. Lets hope this MOU leads to many such exchanges.

Here’s the announcement in full

Download (DOCX, 247KB)

Media Legal Defence Initiative Litigation Workshop

Readers will be interested to see that the wonderful Media Legal Defence Initiative (MLDI) is calling for applications from lawyers based in Burundi, Kenya, Rwanda, Tanzania and Uganda to participate in a forthcoming litigation workshop on the right to online freedom of expression, digital rights and the Internet.

Successful applicants will attend the litigation workshop and become active members of a digital rights legal network through which there will be opportunity for engagement regionally and internationally.

The deadline for applying to this great event is TOMORROW WEDNESDAY 21 FEBRUARY, so if you are interested in this great opportunity please get applying. More details can be found here.