On 26 May 2017 the African Court finally 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, arguing that this eviction, and Kenya’s treatment of them for decades, 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, Head of Legal at Minority Rights Group and Daniel Kobei from OPDP which you can find here. I am delighted to say that we are going to do a follow-up roundtable with Lucy and Daniel in the coming weeks which delves into the judgement even further. With this in mind, I am going to sidestep some of the indigenous issues in this post which are extremely important but perhaps are best dealt with by Lucy and Daniel. Instead, this post focuses on five other points for a little analysis.
1.This Judgement is a Landmark
There can be little doubt that this judgement will go down as one of the African Court’s landmark cases. It’s the first case to consider indigenous rights and sets out clearly that Kenya’s treatment of the Ogiek violated Articles 1, 2, 8, 14, 17 (2), 17 (3), 21 and 22 of the African Charter. This Judgement will not only have a considerable bearing on Kenya’s treatment of the Ogiek people but also on indigenous rights across Africa. But also consider the tone the African Court adopts. Throughout the Judgement, Kenya makes pretty much the same arguments; that Kenya is equal as evidenced by the Kenyan Constitution that says there is no discrimination against anyone including the Ogiek, that the Ogiek people no longer need the Mau Forest and even that the Ogiek are damaging the Mau Forest. But over and over the African Court dismissed these arguments. Reading the Judgement as a whole, I get the sense that the African Court has no time for Kenya’s ‘equality for all’ arguments. It seems, to me at least, that member states need to work a little harder to convince the African Court on these type of submissions, perhaps best summarised as “how can there be discrimination/violations when our Constitution/Laws state there is none?” in future cases.
2. The Judgement Draws Widely from International Law
Read the Judgement and you see the African Court consider the African Commission’s working group on Indigenous rights and the UN Special Rapporteur on Minorities in determining the criteria for the definition of ‘indigenous’. The African Court also looks at UN General Assembly declarations, the UN Declaration on the Rights of Indigenous Peoples, the Cultural Charter for Africa, and General Comments from the UN Committee on Economic, Social and Cultural Rights. Taking this all in, the reader is struck by the level of international law and procedure relied on by the African Court. This goes to show that whilst the African Court is limited to considering violations of only those international human rights instruments ratified by a member state subject to an application, it will not limit itself to these same instruments in considering a case and making findings on the merits. Applicants and their representatives should take note, and not limit the law relied upon to that ratified by the member state in their petition but look to all international law and procedure in building their case.
3. More Questions than Answers on Commission-to-Court Transfers?
An area which continues to intrigue me is the possibility of Commission-to-Court transfers. The potential is obvious; if you can persuade the African Commission to transfer cases to the African Court as it is entitled to under Article 3(1)(a) of the Protocol, the field increases from the current eight AU member states who have signed the Article 34(6) Additional Declaration to the 30 that have signed up to the African Court Protocol. Whilst Rule 118 of the Commission’s Rules set out the basic structure under which transfers may take place, there is little in the way of concrete discussion or criteria set out by either the African Court or African Commission as to how this is applied.
There was some hope that this Judgement, only the second transfer from the African Commission to African Court (African Commission v Libya being the other) might go into some detail on how these transfer issues are decided by the African Commission and/or African Court. Sadly, although perhaps not unexpectedly, the African Court doesn’t go into any great detail in the Judgement on transfer. As I have written previously, reading between the lines it seems fairly clear that having been burned in the Endorois case, the African Commission was keen to transfer the case, especially when Kenya ignored the African Commission’s order in this case for provisional measures, reminiscent of Kenya’s stance in the Endorois case before.
But leaving aside the process by which the transfer occurred, this Judgement does give us a fascinating window into what happens once a case is transferred. It is clear that the African Court considered the African Commission as the applicant in the case, not the NGOs who brought the case, or the Ogiek themselves. Read this Judgement alongside the African Commission’s statement on the case which seems to confirm that PALU acted as lawyers for the African Commission, and we seem to have at least four different groups under the “applicant” heading: (i) the African Commission; (ii) PALU as the African Commission’s lawyers; (iii) MRG and OPDP as the NGOs; (iv) the Ogiek people themselves. This seems like a lot of people to be acting under the same umbrella of “applicant”. It would be fascinating to know how the African Commission actually worked on the case; did they brief PALU on strategy? Did they take witness statements from the Ogiek? Was strategy formed as to how to bring the case? On this last point, presumably something must have been done in the way of strategy, and if so then the African Commission has, at least in this case, moved away from independent arbitrator of human rights allegations and instead became a litigator. If this is indeed the case, then how does it approach the next indigenous rights case filed before it back in its everyday guise as a human rights commission deciding cases? Is there a conflict of interest then between the African Commission considering future indigenous rights cases and its role as litigant in this case? I can see some merit in the argument that the African Commission is able to separate the two roles out, both in terms of personnel and in its role as an independent commission, but it seems a little strange to one moment be litigating and then the next sitting as independent commission on similar issues. Is it that the Commission would be safest to simply transfer cases and leave the litigation before the African Court to the original complainants?
4. A Helping Hand for Exhaustion of Local Remedies?
The Judgement also adds some interesting new detail to the age-old issue of exhaustion of local remedies. As followers of the African Court will know, member states almost always object to the admissibility of a case based on an applicants’ failure to exhaust local remedies. Member states usually argue that there is at least one more domestic venue, be it a court, commission or other, that the applicants should have tried before bringing a case before the African Court.
In the Judgement the African Court looks at three familiar matters: (i) the primacy of domestic courts; (ii) the “available, effective and unduly prolonged” test and; (iii) domestic remedies must be judicial in nature. But then the African Court does something else which seems to be new. It states that when considering the exhaustion of local remedies, what is important is that the matter or issue has been brought before domestic courts, not necessarily the same applicant. This is very interesting. It is not in doubt that the Ogiek people have been bringing legal cases for decades in an attempt to enforce their rights. What is not necessarily the case is that these particular NGOs and individuals have brought these cases. This situation did not seem to phase the African Court who set out that since the matter had been litigated before domestic courts, the applicants in this case had exhausted local remedies. If applied in the future this approach has the potential to increase the number of applicants who can bring cases before the African Court, as it seems to suggest that applicants can bring cases involving ongoing human rights violations who have not necessarily brought domestic cases themselves. For example, local remedies could be exhausted where an applicant takes up the baton from others within a community to challenge continued to ongoing violations at the African Court where others have been litigating in the past at the domestic level.
5. Amicable Settlement is a Real Thing
Finally, the Judgement mentions that the possibility of an amicable settlement was floated at one stage- a first for the African Court (at least as contained in a written judgement). This scenario moves the amicable settlement provision found at Article 9 of the African Court Protocol and Rule 57 of the African Court Rules away from being just a aspirational goal considered by some destined to be never used, to a real tool to try and bring a case to a conclusion without the need for lengthy litigation. Interestingly, it appears that the African Court itself initiated an attempt to find a settlement in this case after the public hearing. Given the nature of these type of negotiations are typically confidential, we may never find out what exactly was proposed and rejected, but it should be seen as positive that there were at least attempts, and it is something to look out for in future African Court Judgements.
On 16 May 2017 the African Court held the public hearing in APDH and IHRDA v. Mali. This case is chiefly notable as the first African Court case to specifically consider the rights of women. In particular it focuses on a recently enacted Malian law that the applicants allege violates the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (otherwise known as the Maputo Protocol), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on the Rights and Welfare of the Child (ACRWC). You can watch the hearing (in French) here.
The case can also lay claim to another first which is subject of this short post; peruse the African Court’s case summary and you will see the alleged violations of the Maputo Protocol, CEDAW and ACRWC, but no alleged violations of the African Charter on Human and Peoples’ Rights– as far as I can tell, a first for the African Court.
It is important to clarify that nothing in the African Court’s rules or Protocol prevent this situation. Under Article 3.1 of the African Court Protocol, the African Court has jurisdiction to hear applications concerning not only the African Charter, but also “any other relevant human rights instrument ratified by the States concerned”. There is no requirement that an application must contain violations of the African Charter. What is interesting however is that until now it has been common practice for applicants to allege violations of the African Charter and in addition other international human rights instruments, so for example in a fair trial case alleging violations of Article 7 of the African Charter and in addition Article 14 and Article 15 of the ICCPR.
As Tetevi Davi discussed recently at The Monitor, in the 2016 case of APDH v Cote d’Ivoire, the African Court examined the meaning of “any other relevant human rights instrument” under Article 3.1 of the African Court Protocol, giving the term a broad interpretation to include the African Charter on Democracy, Elections and Governance (2007) (Democracy Charter) and the ECOWAS Protocol on Democracy and Good Governance (2001) (ECOWAS Protocol).
This latest Malian case represents a significant upshift for the African Court as it stretches its jurisdiction even further, by considering violations of international human rights instruments other than the African Charter. This evolution is (for international law anyway) taking place at quite a pace. As I have written before, it was not long ago that the African Court purposefully avoided stepping into international waters, making findings on violations of the African Charter, but stopping short of making findings on international inducements such as the ICCPR. For example in the 2014 Zongo et al. v. Burkina Faso Judgement the African Court decided at para. 188 that “having the decided on the alleged violation of the freedom of expression on the basis of article 9 of the [African] Charter, it does not find necessary to rule on the allegation on the basis of article 19(2) of the ICCPR”.
Fast forward to 2017 and we are now seeing the African Court making findings on the ICCPR (see for example the Alex Thomas v. Tanzania Judgement), setting a broad jurisdiction to include international and regional human rights instrument (as in APDH v Cote d’Ivoire) and now handling its first completely non-African Charter case.This move is not only fast but I think also goes to show the African Court growing in confidence. Of course, this case relates to two Africa-specific human rights instruments in the form of the Maputo Protocol and ACRWC, as well as the CEDAW, but there is no reason, at least on paper, why the African Court could not go one stage further and consider cases alleging violations of the ICCPR or other global human rights instruments only. With this in mind though, its worth considering the potential for friction these moves with other African institutions. For example, how does the ECOWAS Court of Justice view the African Court setting out in APDH v. Cote d’Ivore that the Democracy Charter is w
ithin its jurisdiction? Or what is the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) take on the African Court deciding ACRWC specific cases when it is principally in existence to consider these very same issues? This possible tension is partly as a result of the overlapping jurisdictions of various human rights institutions across Africa, and is unavoidable all the while these separate institutions remain in existence.
But should the African Court ‘keep in its lane’ so to speak and consider only alleged violations of the African Charter with other human rights instruments ancillary and in addition to the African Charter? Certainly the African Court Protocol allows the African Court to consider all kinds of cases, not only restricted to the African Charter; in this sense its working within its jurisdictional boundaries. These issues will likely become more prescient depending on whether APDH and IHRDA v. Mali will be a one-off or whether its indicative of a trend that will see the African Court consistently take on non-African Charter cases. Whatever the outcoe, this case serves as another first in the African Court’s continued growth
Just a short post for those who may have missed my recent post on Tunisia’s signature of the Article 34(6) Declaration. The post for the London School of Economics’ Africa blog examines the first signature of the Additional Declaration by a North African country. The post also highlights that, despite the good news of Tunisia’s signature, full access to the African Court remains elusive, with only eight out of 55 AU member states allowing their citizens and NGOs direct access to the African Court. You can read the whole post here.
Things have been a little quiet at The Monitor over the past few weeks. With work trips to beautiful Madison, Wisconsin and then to the seat of the African Court in Arusha, Tanzania the past six weeks have been busy. We’re now focusing on posting some of the fruits born out of our travels. First up is the powerpoint presentation below from my talk at the Wisconsin International Law Journal Annual Symposium, entitled “Regional Human Rights Systems in Crisis”. This symposium brought together a fascinating group of experts and scholars from across the world to discuss human rights systems in South and Central America, Europe, Asia and of course Africa.
My full paper will hopefully be published in the next volume of the Wisconsin International Law Journal, but in the meantime I am posting the slides from my presentation here. The paper and presentation focus on the ongoing thorny issue of access to the African Court and the current problems facing prospective applicants considering bringing cases before the African Court. Enjoy!
I am delighted to welcome back Tétévi Davi, The Monitor’s Junior Editor with this piece on the Court’s recent judgement APDH v Côte D’Ivoire. This is another fascinating judgement, which Tetevi breaks down and analyses in the post below. As always, comments are welcome via email@example.com. Enjoy! OW
On 18 November 2016 the African Court on Human and Peoples’ Rights (Court) handed down its judgement in the case of Actions pour la protection des droits de l’Homme (APDH) v The Republic of Côte D’Ivoire (Judgement). This judgement is notable for its crystallisation of the definition of a ‘human rights instrument’ pursuant to Article 3 of the Court’s Protocol and the meaning of an electoral body’s independence and impartiality. With this judgement, the Court maintains applicants’ 100% success rate in cases decided on their merits and sets valuable precedents which, if effectively implemented, have the potential to strengthen the justness of electoral systems and the electoral bodies that govern them in Africa.
The Applicant in this case was APDH, a human rights NGO based in Abidjan, Côte D’Ivoire. In 2014, APDH made an application to the Court asking it to rule that Ivorian Law no.2014-335 (the law) relating to the functioning and composition of the nation’s Independent Electoral Commission (IEC) was in violation of a number of human rights instruments. The IEC was established in October 2001 and is mandated to organise and supervise elections, accredit national and international observers, count ballots, and proclaim the final results of an election. The IEC is composed of 17 members, most of whom are either representatives of government ministers or representatives of political parties. Civil society representatives do form part of the IEC, however account for only 4 of the 17 positions available. Decisions of the IEC are made by a simple majority.
In its submissions, APDH argued that the law amended the structure of the IEC and ensured that the majority of its members were either government representatives or members of political parties, thus rendering the IEC neither independent nor impartial. As a result, APDH claimed that the law violates Article 17(1) of the African Charter on Democracy, Elections and Governance (2007) (Democracy Charter) as well as Article 3 of the ECOWAS Protocol on Democracy and Good Governance (2001) (ECOWAS Protocol). APDH also claimed that by adopting the law, a situation had been engineered by which the President could influence the electoral system during elections in order to benefit himself and/or candidates which his supports. This, the Applicants claimed, was a violation of the principle of the equality of all citizens before the law and the equal protection of all citizens by the law enshrined in Article 10(3) of the Democracy Charter, Article 3(2) of the ACHPR and Article 26 of the ICCPR.
As is standard, the Court first considered the issue of jurisdiction. In regards to personal jurisdiction, the Court noted that Côte D’Ivoire had deposited its special declaration under Article 34(6) of the Court’s protocol allowing individuals and NGO’s access to the Court. It also noted that as APDH had acquired observer status before the African Commission, an important additional requirement for NGOs under Article 5(3) of the Court’s Protocol, personal jurisdiction had been established. The Court also asserted its temporal jurisdiction, as the alleged violations took place after the special declaration was deposited. In regards to the Court’s material jurisdiction, the critical issue arose as to whether or not the treaties the Applicant claimed had been violated, namely the Democracy Charter and the ECOWAS Protocol, were indeed ‘human rights treaties’ within the meaning of Article 3 of the Protocol.
To answer this question, the Court sought guidance from the African Union Commission and the African Institute for International Law as to what constitutes a human rights treaty. Both institutions answered this question by examining the content and purpose of these treaties and affirmed that as they both confer fundamental rights and freedoms on individuals which states are obliged to protect and respect, they are definable as human rights treaties. In its decision the Court chose to address the issue in an almost identical fashion, opining that if the purpose of a treaty is to enunciate the subjective rights of people or groups and place mandatory obligations on states for the enjoyment of these rights, then it is a human rights treaty. The Court reasoned that the requirement of the Democracy Charter and the ECOWAS Protocol that states establish independent and impartial electoral bodies was aimed, albeit indirectly, at implementing a number of civil and political rights such as the right to vote and the right to participate freely in elections as enshrined in the African Charter. As states were also obliged to respect these rights, then the Court concluded that that they were human rights treaties within the meaning of Article 3 of the Protocol.
The court next addressed the issue of admissibility. Côte D’Ivoire’s first argument was that the case should be declared inadmissible as the APDH had violated Rule 40(3) which prohibits applications containing disparaging or insulting language. Côte D’Ivoire considered that the offensive language was APDH’s questioning as to why the law had not been censored by the Constitutional Judge and why the President of the Constitutional Council had resigned without explanation. It also argued that the very act of questioning the independence and impartiality of the IEC was an indirect assault on the dignity and honour of the President and thus offensive. The Court remarked that in order to fall foul of this particular rule, language must be used “in a manner calculated to pollute the minds of the public or any reasonable man to cast aspersions on and weaken public confidence” , a test previously espoused by the African Commission. The Court held that Côte D’Ivoire had not produced any evidence to show how the language of the application conformed to this definition and that APDH had merely presented the facts as they occurred. It therefore dismissed this argument.
The second issue was whether or not APDH had exhausted domestic remedies in accordance with Rule 40(5). Côte D’Ivoire argued that domestic remedies had not been exhausted as the applicants did not seize the Constitutional Council to assess the law’s constitutionality and neither did they bring an administrative law action to review the legality of the law. In response to these submissions, the Court reiterated the Zongo test for admissibility, namely that a remedy must be “available, effective and sufficient”. The Court reasoned that as Ivorian law only permits the Administrative Chamber to hear a case concerning the abuse of authority from administrative authorities, this jurisdiction was not competent and therefore not sufficient to hear the applicant’s complaint. Furthermore, the Court articulated that as Ivorian law only allows human rights associations to refer cases to the Constitutional Council that concern ‘public freedoms’, the applicants could not refer their case to this court either. Accordingly, the Court found that local remedies had been exhausted.
3. The Merits
Having satisfied itself that the application was admissible and that it had jurisdiction over the matter, the Court considered that the central issue in the application was the independence and impartiality of the IEC and noted that neither the Democracy Charter nor the ECOWAS Protocol defined the terms ‘independent’ or ‘impartial’. The Court therefore took it upon itself to define these terms. In defining the term ‘independent’, the Court referred to the Dictionary of Public International Law which defines the term as “the fact of an entity or person not depending on any authority other than its own or at least not depending on the State”. In regards to ‘impartiality’, the Court also referred to the dictionary’s definition which is “the absence of bias, prejudice and the absence of bias”. Applying these definitions to the structure of the IEC, the Court noted that government representatives outnumbered all others on the IEC, and in particular that the Government was represented by eight members to other parties four which demonstrates a clear imbalance. The Court reasoned therefore that the IEC was neither independent nor impartial and subsequently violated Article 17 of the Democracy charter as well as 3 of the ECOWAS Protocol. Furthermore, the Court held that through the imbalance that the law creates, the President is in a far more advantageous position in the run up to elections as compared with other candidates and that by not placing all candidates on equal footing in the run up to elections, the law also violates the principle of equal protection enshrined Article 10(3) of the African Charter, Article 3 (2) ACHPR and article 26 of the ICCPR.
In light of these violations, the Court ordered Côte D’Ivoire to amend the law and submit a report on the amendments within one year.
Comment and Analysis
A welcome aspect of this judgement was the Court’s broad and inclusive interpretation of a ‘human rights instrument’ for the purposes of determining its jurisdiction pursuant to Article 3 of the Protocol. The Court’s decision to look to the purposes of a treaty which it took to mean the substantive rights a convention confers, in addition to the obligations it places on states, means that following this Judgement a host of treaties which State Parties to the Court have ratified both at the regional and international level, can now likely be relied upon by applicants bringing claims before the Court. Furthermore, the Court’s willingness to interpret provisions guaranteeing fair elections as indirectly protecting other fundamental human rights is also of note, as now it may be only necessary to show some indirect link between the rights in the treaty an applicant is seeking to rely on and other recognised fundamental rights in order for it to be considered a human rights treaty. This marks a positive development in the Court’s jurisprudence because, as has been elsewhere noted, the greater the number of instruments which individuals can have recourse to before the Court, the more robust the system of human rights protection will be in Africa.
As to admissibility, and in particular the prohibition on applications which use abusive or derogatory language, the Court’s endorsement of the African Commission’s test that an application is inadmissible if the language “ is calculated to pollute the minds of the public or any reasonable man to cast aspersions on and weaken public confidence” was both dubious and disappointing. A moment’s contemplation of this test gives rise to a host of questions: What exactly is “polluting the minds” of the public? What kind of statements are capable of achieving this? What does “casting aspersions” mean? Casting aspersions on whom? What is the meaning of “weakening public confidence”? Weakening public confidence in what, or whom? Perhaps more worrying than the ambiguity of this test, is that it seems to suggest that an application could be declared inadmissible because, although entirely factual, some statements used in it cast the respondent state in a negative light. It is one thing for statements to be slanderous and false, but quite another for a perfectly well founded application to be struck out simply because the Court decides that it “weakens public confidence”, even though its contents may be true. This seems a frighteningly vague and arbitrary test for the Court to have endorsed and going forwards, the Court should either make this an insurmountably high threshold or alter the definition in line with other regional courts such as the ECHR, where for an application to be declared inadmissible due to language it must be “knowingly based on untrue facts” or include the “persistent use of insulting or provocative language”.
On the issue of exhaustion of public remedies, the Court’s analysis is to be welcomed. It’s restatement of the Zongo test and its application to this case should be familiar to regular readers and it shows that it is not enough for states to simply have higher courts which people may theoretically appeal to in cases of human rights violations, but that such courts must actually be accessible to applicants in concrete cases. It is worth noting the level of detail that the Court engaged in in this section of this judgement which saw it considering the content and purpose of the domestic laws in question with great care. The Court has done this before in previous cases and in the present case has once again illustrated that it will not simply accept a state’s assurances that domestic remedies are available but will look itself in detail at the content and procedural framework of domestic legislation to determine whether local remedies are genuinely available. Furthermore, the Ivorian Constitutional Court’s requirement that cases brought before it concern ‘public freedoms’ appears to have excessively narrowed the class of cases that could be entertained and the Court’s holding that the remedy was therefore not sufficient sets a precedent that the sorts of cases that national jurisdictions can hear must also not be unduly limited. This is positive, as it encourages states to enable their higher domestic Courts to hear and redress a wider variety of cases or risk them being appealed to the African Court for a ruling.
In finding that the Ivorian law violated the Democracy Charter and ECOWAS Protocol, the Court’s willingness to give the terms ‘independent’ and ‘impartial’ an expansive meaning is also to be commended. The broad definition that the Court gave these terms in line with those expressed in the Dictionary of Public International Law, potentially leaves the door open for many challenges to be brought before it as under these definitions, there are currently many nations which do not have independent or impartial electoral commissions. It is also material that the Court ruled that a lack of independence and impartiality could be inferred from the structure of the Commission. This shows the Court’s willingness to go beyond superficiality and examine state institutions in detail in order to determine whether they are compliant with human rights obligations or not.
Finally, the fact that the Court is now considering violations of a wider class of human rights treaties is a positive step. In earlier judgments such as Zongo and Mtikalia, the Court was only willing to consider violations of the African Charter and nothing else. Its jurisprudence then expanded to using provisions from other treaties to bolster the protections afforded by the African Charter, however now we have seen another evolution in the Court’s jurisprudence whereby the it is willing to consider the rights in other treaties as having been violated. This seems to be an auspicious sign that the Court is moving away from a reliance on the African Charter, finding its footing and growing bolder in its protection of fundamental rights
This post looks at the African Court’s decision on Rwanda’s withdrawal of its Article 34(6) declaration (Additional Declaration). Many African Court observers will be well aware of this decision that was ostensibly made in June 2016, but seems only to have been issued publically in September 2016 (more on this timeline later). So this post comes a little late to the party, but one potentially useful outcome of this delay it that it might turn a little attention back to the Africa Court’s decision, the upshot of which is that Rwanda’s withdrawal takes effect on 1 March 2017 (you can see our Rwexit countdown on The Monitor homepage). Hopefully this post will therefore remind everyone, especially Rwandans, that they have only a short amount of time left before the African Court will be barred from considering their cases- with only one month to go its time to use it before you lose it!
For readers who may be just coming to this only now it is useful to recall that the Additional Declaration discussed here, is a declaration pursuant to Article 34(6) of the African Court’s Protocol that must be signed by a AU member state in addition to signing the Court Protocol. By signing the Additional Protocol individuals and NGOs with observer status before the African Commission can petition the African Court directly. Unless a member state has signed this Additional Declaration, individuals and NGOs cannot apply to the African Court, thus severely curtailing access to the African Court.
The saga of Rwanda’s withdrawal has been played out over almost a year, and I have written about it here , here and here. This latest decision by the African Court is essentially the ‘big one’. In brief, Rwanda signed up to the African Court by ratifying the African Court Protocol in May 2003. In January 2013 Rwanda also signed the Additional Declaration thus allowing Rwandans and NGOs direct access to the Court. One Rwandan who took advantage of this was Victoire Ingabire the leader of the opposition political party FDU Inkingi. Ingabire is currently serving a 15 year prison sentence having been convicted of genocide-denial and terrorism related crimes in 2013. Ingabire petitioned the Court in October 2014 alleging that her trial contravened her right to a fair trial as protected under the African Charter on Human and Peoples’ Rights.
From what happened next it seems fair to say the Rwandan government was not overly pleased with Ingabire taking her case before the African Court. In what could be seen as a direct attempt to stifle the case before it could gain any momentum, Rwanda took the unprecedented decision to withdraw its Additional Declaration by depositing an instrument of withdrawal with the African Union Commission, arguing that with this withdrawal all Rwandan cases (including Ingabire’s) should be suspended. This is the first time in the African Court’s young history that a member state has sought to withdraw its Additional Declaration.
The African Court made a number of preliminary decisions, but on 3 June 2016 rendered its decision on Rwanda’s withdrawal of its Article 34(6) declaration, although to the best of my knowledge this decision was not made public until September 2016, something I will discuss later. To give readers the best chance of understanding this momentous decision I will first review the parties arguments, then summarize the African Court’s decision, before offering a little analysis.
Having deposited its instrument of withdrawal with the African Union Commission (AUC), Rwanda argued that by virtue of the principle of “parallelism of forms” only the AUC was empowered to
decide the withdrawal and its effects. Rwanda contended that the African Court and the parties in the case “have nothing to do” with the withdrawal and its effect once it instrument of withdrawal was deposited with the AUC and that the debate regarding withdrawal was a matter for the African Union.
Ingabire argued that whilst preventing member states from withdrawing made voluntarily may be “too radical a position”, this should not allow member states to withdraw “at any moment and in any manner”. Ingabire contended that since there were no provisions within the African Court Protocol concerning what happens in the case of a withdrawal of the Declaration, the African Court should be guided by Article 56 of the Vienna Convention on the Law of Treaties (Vienna Convention).
Ingabire further argued that the African Court should be guided by the principle of pacta sun servanda, i.e. that parties to a treaty perform their duties in good faith and that this meant any withdrawal must take effect only after a “reasonable amount of time” to serve as a cooling off period. In support, Ingabire pointed to the International Court of Justice case Nicaragua v United States of America, Jurisdiction and Admissibility Judgement, which argued for a reasonable time for withdrawal from treaties that contain no termination provision. Ingabire argued that requiring advance notice of withdrawal is to discourage “opportunistic defections” that would cause the treaty base system to “unravel”. Ingabire also pointed to the European Court of Human Rights and Inter-American Court of Human Rights that provide for notice periods of six and twelve months respectively, arguing that the African Court should apply a similar standard to withdrawals.
As to the effect on her case, Ingabire argued that Rwanda’s withdrawal of its Additional Declaration should have no effect on cases pending before the African Court based on the principle of non-retroactivity, relying on Article 70(1)(b) of the Vienna Convention which provides that the termination of a treaty, unless otherwise agreed, does not effect preexisting obligations or legal situations. Ingabire argued that complaints submitted to The African Court after withdrawal would still be admissible to the extent that they address actions in Rwanda that occurred during the period when Rwandan was still bound by the Additional Declaration.
The Court also considered an amicus brief filed by the Coalition for the African Court (Coalition). In its brief the Coalition focused on two issues: first whether Rwanda was entitled to withdraw its Declaration and second the legal effects of the withdrawal on pending proceedings.
Similar to Ingabire, the Coalition argued that since there was a lack of express provision in the African Court Protocol, Rules of the Court or Charter on the withdrawal of declarations, it should rely on Article 56 of the Vienna Convention. The Coalition further argues that in making the Additional Declaration, Rwanda is under international obligations, and that any reservations included pursuant to Article 19(c) of the Vienna Convention must not be incompatible with the object and purpose of the treaty. It also submitted that withdrawal from the Additional Declaration was inconsistent with the “spirit” of the African Union’s human rights instruments.
As to what effect the withdrawal has on pending proceedings, the Coalition argued that Rwanda is required to serve notice of its intention to withdraw at least 12 months in advance to comply with Article 56(2) of the Vienna Convention and that Rwanda’s request to suspend pending cases breaches the provisions of international law on treaties, the Charter and Protocol. It noted that the role of the Court is to preserve, complement and reinforce progress made in the protection of human rights across Africa by the African Commission which includes ensuring compliance with the criteria on the equality of parties to a trial whether or not a party is a sovereign state. The Coalition also contended that the Court should aim at ensuring observance of the right of any victim to seek effective legal remedy in line with Article 7 of the African Charter and the Principles on the Right to a Fair Trial and Legal Assistance in African, as adopted by the African Commission in 2003.
The African Court first dealt, albeit briefly, with Rwanda’s argument that the African Union Commission rather than the African Court had jurisdiction to decide on the issue of withdrawal. Relying on Article 3(2) of the Protocol, which states that in the event of debate over whether the Court has jurisdiction the Court shall decide, the African Court stated that it was going to do just that and dismissed Rwanda’s submissions.
With regards to whether Rwanda’s withdrawal was valid, the African Court acknowledged that its Protocol does not contain any provisions for the withdrawal from the Protocol or the Additional Declaration. The African Court therefore first considered whether the Vienna Convention applies in the current situation as argued by Ingabire and the Coalition. The Court noted that the Additional Declaration under Article 34(6) emanates from the Protocol which is subject to the law of treaties, but the Additional Declaration itself is a unilateral act that is not subject to the law of treaties, and therefore the Vienna Convention does not apply to the Additional Declaration. In a corrigendum to the ruling issued in September 2016 the African Court amended its reasoning on this point to read that with regard to the applicability of the Vienna Convention on the Additional Declaration, whilst the Additional Declaration emanates from the African Court Protocol which is subject to the law of treaties (i.e. the Vienna Convention) the Additional Declaration itself is a unilateral act that is not directly subject to the law of treaties. The African Court therefore found on the amended reasoning that the Vienna Convention does not apply directly to the Additional Declaration but can be applied by analogy, and the Court can “draw inspiration from it when it deems appropriate”.
Instead the African Court held that it was to be guided by “relevant rules governing declarations of recognition of jurisdiction as well as the international law principle of state sovereignty”. In particular, concerning the rules governing recognition of jurisdiction of international courts, the African Court noted that “related declarations” are generally optional in nature, relying on the provisional provisions relating the recognition of jurisdiction of the International Court of Justice (Art 36(2) of the ICJ Statute), European Court of Human Rights (Art 46 of the European Convention on Human Rights, 1950 (before the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms)) and Inter-American Court of Human Rights (Art 62(1) of the American Convention on Human Rights).
The African Court found that the Additional Declaration is of a similar nature to these other declarations, since although it emanates from the Protocol, the Additional Declaration is optional in nature and is therefore separable from the Protocol and is subject to withdrawal independent of the Protocol. The African Court reinforced this view on the optional nature of the declaration from the principle of state sovereignty. It held that as far as unilateral acts were concerned, state sovereignty commands that states are free to commit themselves and they retain discretion to withdraw their commitments. Therefore, the African Court found that Rwanda was entitled to withdraw its Additional Declaration and that such withdrawal is valid under the Protocol.
Turning then to the conditions of the withdrawal, the African Court held that even if withdrawal is unilateral the discretionary character of withdrawal “is not absolute”, particularly where the act, in this case signing the Additional Declaration, creates rights to the benefit of third parties, the enjoyment of which require legal certainty, in other words, the signing of the Additional Declaration not only effects Rwanda per se but Rwandan individual and NGOs who get the right to directly petition the African Court. The African Court found that in such circumstances when states are allowed to withdraw they should be required to give prior notice. The Court also found that a notice period was necessary to prevent the abrupt suspension of rights which would inevitably impact the rights of individuals and NGOs, the very holders of the rights, and that any immediate withdrawal without notice has the potential to weaken the human rights protection regime provided for in the African Charter. The African Court then considered the case of Bronstein v Peru, where the Inter-American Court of Human Rights made a finding on the basis of the principle of legal certainty, holding that formal notice of 12 months would need to be given in the case of withdrawal for the sake of juridical security and continuity (see in particular para. 24(b)). Taking all this into account, the African Court found notice is compulsory in cases of withdrawal of the Additional Declaration.
As to the period of notice, the African Court was inspired by the practice of the Inter-American Court of Human Rights and Article 78 of the American Convention on Human Rights as applied in the case of Bronstein v Peru which provides for 12 months, and the notice period found in Article 56(2) of the Vienna Convention. The African Court therefore found the period of one year shall apply to the withdrawal of Rwanda’s declaration.
Finally, as to the legal effects of the withdrawal, the African Court considered two distinct issues. The first, that the act of withdrawal will only take effect after the expiry of the 12 month notice period. Therefore, the withdrawal of Rwanda’s Additional Declaration will take effect from 1 March 2017. Second, the possible effect of the withdrawal on pending cases. The African Court found that Rwanda’s actions cannot divest the Court of jurisdiction it has to hear “the matter” (presumably the Ingabire case), a position supported by the principle of non-retroactivity which stipulates that new rules apply only to future situations. The African Court therefore held that Rwanda’s notification of intention to withdraw its Additional Declaration has no legal effects on cases pending before it.
Comment and Analysis
Rwanda’s arguments on withdrawal appear to have been placed solely on submission that having deposited its withdrawal of its Additional Declaration with the AUC, the issue was out of the African Court’s hands. This position can be best described as hopeful and was unlikely to ever to succeed since the African Court is divested with the express power to consider challenges to its jurisdiction itself. Indeed, the chances that the African Court was going to leave a matter as important as this to the AUC was always extremely unlikely.
With jurisdiction firmly established, and Rwanda’s arguments seemingly spent, the African Court was left to consider whether the withdrawal was in fact allowed and if so when it would take effect and what the effect would be. In the end the African Court appears to have taken the pragmatic line to follow the Vienna Convention, Inter-American Court and European Court and grant the withdrawal subject to a 12 month notice period.
It is interesting to note the African Court’s rather complicated finding on why the Additional Declaration was not directly under the remit of the Vienna Convention. This convoluted and somewhat unnecessary line of reasoning seems to have played a large part in the delay of the judgement being rendered publicly which I will discuss further below and seems to have been an attempt to clarify a situation which needed little clarification. To simply say that the Additional Declaration is optional, but is clearly contained within the African Court’s Protocol and Rules and therefore is subject to the Vienna Convention seems like the most common sense approach to the issue and follows international practice. Despite this issue however, the rest of the decision seems entirely in line with international practice and Rwanda can have little to complain about.
Two issues are however worth exploring a little further. The first is the timing of the decision. Rwanda filed its withdrawal at the end of February 2016. The official decision on jurisdiction was dated 3 June 2016 yet to the best of my knowledge this decision was not made public until much later in September 2016. The reason for handing down the decision but not making it public is curious to say the least. It is true that alongside the June “decision” (I put June in quotes since the date seems to lose much of it relevance if it wasn’t actually available to the public at that point) the public decision that did emerge also included a corrigendum dated 3 September 2016. So what appears to have happened is that having rendered the decision in June, the African Court decided to amend its reasoning slightly. But the point of a corrigendum is usually to correct a judgement or decision already out in the public domain. It seems strange not to issue the decision publicly in June and wait until September to issue it publicly but with a corrigendum attached. In these circumstances, the decision should in any event really be considered handed down in September 2016. Of course the point here is that a delay of seven months is huge when considering what was resting on the outcome, and fairly extraordinary bearing in mind the outcome- known by the African Court since June- was a decision to impose 12 month notice period. Simply put then, the African Court rendered its decision telling the public, and most importantly Rwandans, that it had 12 months left before the Additional Declaration was withdrawn with only six months left of the notice period. Put another way, the African Court halved the notice period available to Rwandans, a curious decision to say the least especially given that the route taken was fairly uncontroversial and didn’t have to deal with much in the way of challenges from Rwanda itself.
The second issue to highlight is that whilst the decision is clear that cases currently pending before the African Court are not affected, it leaves at least two other scenarios that the African Court did not explicitly deal with. First, future cases filed before 1 March 2017, that is to say cases filed between the rendering of the decision and 1 March 2017, although these are presumably safe since the African Court clearly stated withdrawal takes effect on 1 March 2017. Second, and this may be more complicated, cases filed after 1 March 2017 but relating to events occurring before the 1 March 2017. This scenario is especially applicable to cases where delays have occurred whilst bringing cases domestically in order to fulfil the exhaustion of local remedies requirement. Certainly the requirement that applicant’s first exhaust local remedies has the potential to stymie cases being filed before the African Court by 1 March 2017 and this may be an ongoing issue that the African Court will have to resolve.
So, in sum we have a fairly uncontroversial but nevertheless momentous decision, the date of which is by far the most important result 1 March 2017. One last thing though, check the African Court website and there is no mention of the momentous decision on its homepage, something we have tried to rectify at The Monitor with out Rwexit countdown, which you can find here. Use it before you lose it!
Readers may recall that in November 2015 we ran a Q&A with Lenser Anyang at the Network of African National Human Rights Institutions (NANHRI). For those readers who may have missed it, the NANHRI is an umbrella organisation representing the interests of 44 national human rights institutions across Africa. I still consider NANHRI’s research on national human rights institutions knowledge of, and attitude toward the African Court remains required reading for anyone trying to understand the African Court’s place in the protection of human rights across Africa.
Well, NANHRI have recently been in touch with their new publication of guidelines for national human rights institutions to assist in monitoring the implementation of African Commission decisions and African Court judgements. The guidelines are well worth a read and should prove invaluable to national human rights institutions working to ensure decisions and judgements are fully implemented by member states, see below.
Whats more, following the fantastic response we received on the launch of our Essential Guide to the African Court, which you can read all about here, I am delighted to report that NANHRI have agreed to send our Essential Guide to its 44 members. This is great news, and we sincerely hope that in the hands of national human rights institutions across Africa the Essential Guide will help contribute to a greater understanding of the African Court.
A very happy new year to all our readers!
2017 is promising to be a very interesting year for the Court, with Rwanda’s withdrawal of its Special Declaration taking place at the end of February and several important judgements expected soon.
We are looking forward to covering the Court as these events unfold and have many exciting plans to keep improving the site. With this in mind, I am delighted to share with our readers The Monitor’s updated “Essential Guide to the African Court on Human and Peoples’ Rights”. This one page document is designed to provide an accurate snap-shot of the Court, covering the essentials of why the Court was created, who can make an application, when an application can be made, how to make an application and what the Court can (and cannot) do. It is hoped that the Essential Guide will aide everyone, whether they are considering bringing a case before the Court or simply curious about the Court and want to know more. Of course, the Essential Guide is very much a starting point, but hopefully it is a useful one from which to pursue matters further.
I would encourage our readers to download the guide and share it with all who are interested in the Court. As always, comments and suggestions are most welcome via firstname.lastname@example.org.
As readers may know, this summer at the 14th colloquium of the IUCN Academy of Environmental Law I gave a presentation on the protection afforded to indigenous peoples under the African Charter and the role that the Court and the Commission can play in the protection of their land and environment. My presentation, which I have posted here, stoked some very interesting debate amongst those attending on the role of the African human rights system and the need to balance the interests of all.
With this in mind, I am delighted to be joined by Daniel Kobei and Lucy Claridge for a round-table discussion on the Court, the Commission and the protection of indigenous peoples’ rights. Both Daniel and Lucy have been heavily involved in a pioneering case on this issue before the Court, whilst Lucy has also worked on the first Commission case recognising indigenous peoples’ rights in Africa. Daniel is 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. Daniel has been at the forefront of the Ogiek case before the Commission and the Court since 2009. Lucy is Legal Director at Minority Rights Group International and runs MRG’s Legal Department. She litigated both the Ogiek case at the Commission and the Court as well as being the lead lawyer working with Kenya’s Endorois since 2009.
As a brief introduction for readers who may be unfamiliar with the provisions of the Charter and the cases discussed, Articles 19 to 24 of the African Charter are unique in that they specifically protect the rights of ‘peoples’, as opposed to individuals. Amongst other rights, these articles give ‘peoples’ the right to self-determination, the right to free disposal of wealth and natural resources, the right to economic, social and cultural development and the right to a general satisfactory environment. All these Articles are particularly relevant to the two cases discussed below: the Commission case CEMIRIDE and Minority Rights Group International (on behalf of Endorois Welfare Council) v. Kenya (276/2003), which we will refer to as the “Endorois Case” and the Court case of African Commission v Kenya (006/2012) that we will refer to as the “Ogiek Case”.
Oliver Windridge (OW): Lucy, can you first introduce the Endorois and Ogiek cases?
Lucy Claridge (LC): The Endorois are a semi-nomadic pastoralist people numbering approximately 60,000 who have lived in and around the Lake Bogoria area of Kenya’s Rift Valley for centuries. In the 1970s, they were evicted from their ancestral lands by the Kenyan Government and the land became Game Reserve, without consultation or compensation. This has had a significant negative impact on their livelihoods. Having failed to find any justice in their national courts, the Endorois took their case – with MRG’s assistance – to the African Commission, alleging violations of the African Charter resulting from their displacement from their ancestral lands and Kenya’s failure to adequately compensate them. In February 2010, the Commission found in their favour, concluding that Kenya was in violation of Articles 1, 8, 14, 17, 21 and 22 of the Charter. The ruling created a major precedent as it represented the first time that indigenous peoples’ rights over the land and natural resources had been legally recognised in Africa. The case was also the first to adjudicate on the right to development, finding that the Kenyan government’s failure to consult or compensate the Endorois in relation to the use of their land amounted to a violation of this right. In doing so, the body has provided a strong incentive to all governments to regard their indigenous peoples as stakeholders in their development projects and to involve them in the development process. Finally, the Commission found violations of the Endorois’ religious and cultural rights because they could no longer access their ancestral lands to practise traditional ceremonies and rituals. In affirming Endorois’ collective right to ancestral lands, the Commission’s decision has not only awarded a full remedy to the Endorois community but has also significantly contributed to a better understanding and greater acceptance of indigenous rights in Africa.
Within the Endorois ruling, the Commission made a number of recommendations to the Kenyan Government, requiring that the Government recognise and restitute the ownership rights of the Endorois, allow access to other important sites in the surrounding areas, pay compensation for the loss suffered, pay royalties for existing economic activities, grant registration of the Endorois Welfare Committee, engage with the Endorois in the effective implementation of the recommendations and provide a progress report back to the Commission within three months. Sadly, it appears that Kenya has done very little to implement the Commission’s recommendations since the 2010 ruling. Indeed, in November 2013, at the Complainants’ request, the Commission issued a resolution (the first of its kind) calling on Kenya to implement its recommendations.
Turning now to the Ogiek case, the Ogiek are a hunter-gatherer community of approximately 35,000 people mainly living in the Mau Forest, in Kenya. For many years they have either been evicted or repeatedly threatened with eviction from their ancestral land by the Kenyan Government. A vast number of cases had already been lodged in the Kenyan courts challenging these evictions but these have largely been either unsuccessful, or remain pending before the Court due to lack of engagement by the Government and lack of progress within Kenya’s judicial system. In 2009, facing another eviction, the Ogiek Peoples’ Development Program started a case before the Commission, arguing that this eviction will have far reaching consequences on the political, social and economic survival of the Ogiek community. Specifically, they submit that the Government is in violations of Articles 1, 2, 4, 8, 14, 17 , 21 and 22 of the Charter. MRG became involved in the case in 2010 and has taking the lead role in litigating it before the Commission and the Court.
In 2012, the case was referred to the Court on the basis that it evinced serious and mass human rights violations. The case has provided the first opportunity for the Court to deal with a case involving indigenous peoples’ rights. It is also only the second case before the Court which started life as an individual communication before the Commission, and the only one to reach hearing stage, thus creating significant procedural precedent, since it tests out the Commission-Court referral procedure.
On 15th March 2013, the African Court issued a provisional measures order under Article 27(2) of the Court’s Protocol mirroring the order already issued by the Commission in 2009, and requiring the Government of Kenya to immediately reinstate restrictions on the transfer of land in the Mau Forest and not take any steps which would prejudice the main application before the Court. This provisional measures order remains in place but unfortunately has not been respected by the Kenyan Government.
OW: Daniel, can you explain a little more about the Ogiek people and their land?
Daniel Kobei (DK): The Ogiek are some of Africa’s last remaining forest dwellers. Traditionally honey-gatherers, they survive mainly on wild fruits and roots, game hunting and traditional bee-keeping. The Ogiek have lived since time immemorial in Kenya’s Mau Forest, and are friendly to the environment on which they depend. They have a unique way of life well-adapted to the forest. To them, the Mau Forest is a home, school, hospital, cultural identity and way of life that gives them pride and destiny. In fact, the term ‘Ogiek’ literally means ‘caretaker of all plants and wild animals’. Unsurprisingly, the survival of the indigenous Mau Forest is therefore inextricably linked with the survival of the Ogiek.
Since independence, and indeed prior to it, the Ogiek have been routinely subjected to arbitrary forced evictions from their ancestral land by the Kenyan Government, without consultation or compensation. The Ogiek’s rights over their traditionally owned lands have been systematically denied and ignored. The frequent evictions led to Ogiek losing their property, increased illiteracy and women being subjected to untold suffering. The evictions have also caused arbitrary loss of the Ogiek language in some parts due to assimilation with other peoples. The Kenyan Government has allocated land to third parties, including political allies, and permitted substantial commercial logging to take place, without sharing any of the benefits with the Ogiek. The eviction of the Ogiek from their ancestral land and the refusal to allow them access to their spiritual home has prevented the Ogiek from practising their traditional cultural and religious practices. The culmination of all these actions has resulted in the Ogiek being prevented from practising their traditional hunter-gatherer way of life, thus threatening their very existence.
OW: Lucy, can you tell us a little more about Minority Rights Group International (MRG)?
LC: MRG is an international NGO working to protect and promote the rights of minorities and indigenous peoples worldwide. Minorities and indigenous communities represent some of the world’s most vulnerable and marginalised people, suffering disproportionately from direct abuse and infringement of their individual and collective rights, but also from invisibility in the social, economic and political spheres of their respective countries. Minority and indigenous communities often lack awareness of their rights and/or lack the necessary know-how or resources to advocate for their causes before official channels. With headquarters in London, as well as offices in Uganda and Hungary and numerous other staff and consultants around the world, MRG empowers minority and indigenous communities to seek their rights, through a combination of advocacy, litigation and capacity building.
MRG’s strategic litigation programme was established in 2002. We assist minority and indigenous communities to bring test cases before international and regional human rights bodies with the specific aim of establishing precedents that will have far-reaching effects, and thus positively influence the position of other minority and indigenous groups suffering similar violations in the same or other countries. This litigation is accompanied by holistic advocacy work which is carefully developed in conjunction with the community and local lawyer(s). We also build the capacity of local communities and those representing them to ensure that these communities are able to demand the implementation of their rights on their own, outside the framework of this Programme, including through the establishment of trained paralegal networks.
OW: Lucy, as you have mentioned the Endorois case was decided in 2010, with a finding that Kenya had violated a number of articles of the African Charter. What is the current situation in terms of Kenya complying with the Commission’s findings?
LC: Unfortunately, the implementation of the Endorois ruling by the Kenyan Government has been slow, despite positive statements on implementation being made by the Minister of Lands in 2010 and the Minister of Justice, in 2012. We have continued to work with the Endorois, assisting them with international, regional and national advocacy seeking enforcement. The Endorois do now enjoy access to their land at Lake Bogoria, although this is an informal arrangement: full formal restitution of the land is yet to take place. The Endorois Welfare Council has also been registered. However, the Endorois have still not been compensated for the loss of their property and the violation of other rights, and have received only minimal payment of royalties from the use of their land by others.
In addition, steps have also been taken by the Government which would appear to violate the ruling. For example, the Endorois were surprised to learn in 2011 that UNESCO had included Lake Bogoria on the World Heritage List, a designation which could greatly affect the Endorois’ rights over their land – and on which they were not consulted. Following complaints by the Endorois, the African Commission expressed its concern in a resolution calling on the government of Kenya and the World Heritage Committee to revise its policies to include participation by indigenous peoples through their own representatives. In May 2014, representatives from KWS, the Baringo County Council, the Kenyan Commission to UNESCO, and the Endorois Welfare Council convened to sign a memorandum of understanding which recognised Lake Bogoria as Endorois ancestral land and required Endorois inclusion in management of the land, and they are now working together on a joint management plan of the Lake Bogoria Game Reserve. The World Heritage Committee has also required the government of Kenya to include the Endorois in management and benefit-sharing of Lake Bogoria.
The non-implementation of the decision is not perhaps unusual in the African context, given the controversy and conflict surrounding land rights, but comes in spite of considerable efforts by MRG, working with the Endorois and the Commission, to obtain its enforcement. In April 2013, the Commission held an implementation hearing pursuant to Rule 112(6) at which the Government was required to present the Commission with a roadmap to implementation, another obligation it failed to meet. The hearing was followed by a meeting of the Working Group on Indigenous Populations (WGIP) in Nairobi in September 2013. In November 2013, at MRG’s request, the African Commission issued a resolution calling on the government of Kenya to take concrete steps towards implementation and to immediately file a comprehensive report on implementation with the Commission.
In September 2014, the Kenyan Government established a Task Force with the specific mandate of implementing the ruling, although concerns with its Terms of Reference – which seem to be addressing whether to implement, rather than how – would suggest that it is less than genuine. The mandate of the Task Force has now expired, and the Task Force has not reached a conclusion.
OW: Lucy, have the Endorois considered applying to transfer their case to the Court too?
LC: The Endorois have considered applying to transfer their case to the Court pursuant to Rule 118(1). However, there are concerns over whether this would lead to a de novo examination of the Endorois case by the Court and, until the Ogiek case is decided, we do not know what the Court’s approach to indigenous peoples’ rights will be. In addition, implementation of the Endorois ruling is clearly only to be achieved practically at the national level, and therefore efforts are currently being focused on national advocacy, rather than regional litigation at the Court.
I should add that MRG and the Endorois have requested several times that the Commission refer the case to the Sub-Committee of the Permanent Representatives Committee and the Executive Council on the Implementation of the Decisions of the African Union, for non-compliance, pursuant to Rule 112(8). This procedure has not yet been used, as far as we are aware, and there is a lack of clarity on the procedure, which might explain why the Commission seems reluctant to use it. We await a decision on this request in the coming months.
OW: Daniel, can you explain how you started working with Minority Rights Group International?
DK: The Ogiek community started working with MRG in 2004 through CEMIRIDE (a Kenyan NGO working with minorities and indigenous peoples and a partner of MRG), who introduced OPDP to MRG. In 2006, OPDP started working closely with MRG directly. Since 2004, Ogiek community members have benefited from training in Geneva and other places on minority rights advocacy and using international human rights mechanisms to protect minority rights. Since 2008, we have been
working together on issues including peacebuilding and governance. In the meantime, the non-recognition of Ogiek rights by both the government and other communities in Kenya led them to the corridors of the courts. The cases that they brought, challenging the denial of Ogiek rights, were delayed – leaving the community with no other available option but to proceed to the Commission. In 2009, MRG became involved in this litigation and, since then, has been leading the African Commission and then the African Court case through their Legal Director, Lucy Claridge. Our work with MRG has led to increased partnership with other organisations globally. We are therefore indebted to MRG and Lucy for our tenacious work together.
OW: Daniel and Lucy, the Ogiek case was originally submitted to the Commission then transferred by the Commission to the Court. Was it your intention to persuade the Commission to transfer the case?
LC: The case was transferred by the Commission to the Court pursuant to Rule 118(1) on the basis that it evinced serious and mass human rights violations. This was despite no decision having been taken on admissibility by the Commission. In reaching its decision to refer the case, the Commission took into account a provisional measures order issued in 2009 requiring the Kenyan Government to respect the Ogiek’s rights and which clearly had not been complied with.
DK: It was not our intention to transfer the case – and in fact, we didn’t make the request: the Commission acted sui moto. However, despite some initial concerns amongst the Ogiek community about the development, we were happy for the case to be transferred, since it provides an opportunity to take the Endorois ruling to another level, as well as setting important procedural precedent. We also hoped that the case would move quickly since the Court is a newer body than the Commission with a smaller caseload although, as Lucy explains below, this has not been the experience in practice.
OW: Daniel and Lucy, the Ogiek case was heard in November 2014 and is now awaiting judgment, but in March 2013 the Court ordered provisional measures, preventing the transfer of land subject to the application. How have these measures been upheld?
LC: I’m sorry to say that the Kenyan Government has consistently and repeatedly failed to comply with the Court’s provisional measures order.
Firstly, Ogiek people continue to be unlawfully evicted from their land with the complicity of Government officials, and are often subsequently charged with trespass on their own land and/or experience arbitrary harassment and detention. Earlier this year, an Ogiek elder was shot and killed during one of these altercations, yet little attempt has been made to investigate the matter or arrest the perpetrator.
In addition, a number of Ogiek activists have suffered violent physical attacks against them because of their advocacy and other work regarding the Ogiek land eviction issue. These attacks appear to be an attempt to silence Ogiek activists in order to prevent them from protesting against the eviction from their ancestral land. Even Daniel has been questioned by the police. Although complaints have been lodged with the local police, they have not been fully investigated.
In addition, Ogiek land in the Mau Forest is still being sold and allocated to non-Ogiek, in clear violation of the court order.
Finally, despite a clear Court order that the Respondent Government should “refrain from any act or thing that would or might irreparably prejudice the main application before the Court, until the final determination of the said application”, logging continues unabated in the Mau Forest.
MRG and OPDP have provided ample evidence of these violations to the Commission, which in turn has submitted the same to the Court. In February 2014, the non-compliance was the subject of an interlocutory application to the Court by the Applicant, requesting the Court to issue a finding of non-compliance against the Kenyan Government. Further, during the November 2014 hearing of the case, MRG was allowed to make an oral intervention in the case pursuant to Rule 29(3)(c), as one of the original Complainants in the case (the first time that such an intervention has been allowed). This oral intervention focused on these concerning violations of the provisional measures order.
It is disappointing that the Court has not taken any action against the Government as a result of the non-compliance. In my view, this undermines the role that the Court could play in upholding human rights in Africa. This inaction is also surprising since the Court has previously clarified, in its 2013 interim report to the Executive Council on Libya’s non-compliance with such an order, that a provisional measures order “is as binding as any judgment of the Court” and failure to report in compliance with that Order “is the same as failure to comply with a judgment of the Court”. The Court noted in its 2013 report that “the failure of Libya not to comply with the Order of the Court threatens the very foundation of the existence of the Court as a judicial arm of the African Union. It erodes public confidence in our judicial system and mobilises negative public precedent about the ability of the Court to protect human rights on the continent…. and puts into question the credible utility of..[the Court]”. Arguably, the same principles should apply to the Respondent Government’s actions on this occasion.
OW: Has there been much communication between the Ogiek and Endorois people over their respective cases?
DK: The Endorois Welfare Council have given us great assistance in mentoring Ogiek on the long journey to the African Court through the ACHPR. OPDP and EWC regularly exchange experiences, approaches and ideas on the many issues that affect both our communities since we have a lot in common, especially regarding our land and natural resources. We share partners and we meet frequently since our offices are in the same town in Nakuru county, Kenya. The Endorois are seen as the champions of the Commission and we are seen as the champions of the African Court as far as African indigenous communities are concerned.
OW: Widening the focus out from the Endorois and Ogiek cases, can you comment on the protection of people and their land and environment in Africa? What is the current situation?
LC: In many countries throughout Africa, and indeed throughout the world, land rights and security of tenure constitute the basis for livelihood, housing and development for a large percentage of the population. Indigenous peoples in particular have an intimate relationship with the land that they have occupied and used for long periods of time, and they depend on it for food, shelter, identity and survival. Access and rights over lands also frequently operate within a hierarchical system in which the poorest, least educated, and otherwise disadvantaged (including minorities and indigenous communities) do not hold security of land tenure, thus making evictions more likely. Such evictions will result in violations of their rights to livelihood, religion, culture, property and natural resources, each of which impacts upon their capacity for meaningful development.
At the same time, demands and competition for access to land are growing as individuals, communities, the private sector, the state and foreign actors seek to use and benefit from these resources for different, often opposing, purposes. This increased pressure on land, including large-scale foreign agricultural investments in developing countries, has heightened the need for respect of indigenous communities’ rights over their ancestral lands. International law, including the Endorois case, has established that they should be fully consulted on use of their land, without coercion, and compensated should they agree to such usage (the principle of free prior and informed consent). Governments, foreign investors and private actors need to ensure that this principle is fully respected. It is disappointing, for example, that the World Bank recently downgraded its own safeguards protecting indigenous peoples’ land rights.
In addition, the role that indigenous peoples can and should play in conserving land needs to be fully recognised and respected. This is an issue we argued in the Ogiek case in particular. Indigenous peoples’ intimate relationship with the land that they have occupied and used for long periods of time, and their dependence on it for food, shelter, identity and survival, has ensured that this relationship has been rooted in respect for that land and the need to conserve it – whether it is savannah or forest.
Indigenous peoples traditionally develop a set of conservation measures that are passed down from one generation to the next, and as a result they should be seen as the best people to conserve that land. However, governments and international investors usually only view conservation of ecosystems as possible if human habitation is limited on those sites – or at least, use it as a reason to evict them.
The role of indigenous peoples, including the Ogiek, in the conservation of land and natural resources has been recognised by a number of international bodies, including the UN Committee on the Elimination of Racial Discrimination (“CERD”), and by conservation organisations themselves such as the International Union for Nature Conservation (IUCN). The common finding is that where local communities and forest-dwelling groups can receive a share in the long-term benefits of the forest land, in particular through community land tenure (as was the case for the Ogiek prior to colonisation and independence), there is an incentive for conservation and sustainable use.
OW: How can the African human rights system help? Do you see the African Court as being an effective arena for peoples’ rights?
LC: I would like to be able to place full confidence in the African Court as an effective body to protect peoples’ rights, but unfortunately my experience with the Ogiek case has created some doubts.
Firstly, as I set out above, it is very disappointing that the Court has not condemned the Government of Kenya for non-compliance with the provisional measures order, despite previously taking such action in relation to Libya.
Secondly, it is very concerning that the Court has not yet issued judgment in the case, especially given the deteriorating situation on the ground and the flagrant violations of the provisional measures order by the Kenyan Government. I understand that this is the most complicated case that the Court has ever had to consider: in contrast with previous cases, such as Zongo or Konate for example, it involves 8 alleged violations of the African Charter and a community of 35,000; it also concerns a hugely controversial issue which will have wide ramifications throughout Africa. However, the Court has had ample time to consider the facts and arguments, since merits submissions were lodged with the Court in late 2013, and the hearing took place in November 2014. A delay of 2 years is unacceptable and arguably violates the Charter’s own fair trial protections. Further, the Ogiek are understandably beginning to lose faith that they will ever be afforded the justice they deserve. We are all hopeful that the Court will adopt a strong judgment, in line with the approach that it has been taking to date, but in the interests of the administration of justice, it needs to issue its ruling soon.
Finally, some fine-tuning of the Court-Commission referral procedure is needed. Although MRG, OPDP and the Ogiek were the original Complainants before the Court, when the case was referred to the Court, the Commission became the Applicant. This effectively side-lined the Ogiek, the victims in this case and, although MRG and OPDP enjoyed an excellent working relationship with the Commission at a practical level, meant that they were not informed of key developments in the case. In addition, in early 2015, the Court decided to recommend amicable settlement to the parties; an option which the Commission accepted, against the Ogiek’s wishes. Although this eventually led to nothing, it caused unnecessary and frustrating delays. The Court and the Commission need to ensure that the interests of the victims are fully represented and included throughout the proceedings.
OW: Following my presentation on the Charter, Court and Commission there was a very interesting debate amongst those attending the session. There seemed to be agreement that the rights of peoples’ should be protected under the African Charter, but also that the rights of peoples’ groups should be balanced against the use and exploitation of natural resources for the good of a whole country. Several comments centered on how protection must also allow for development. How do you respond?
LC: This debate is central to both the Endorois and the Ogiek cases. I think it is very important to understand here the concept of ‘development’ and the rights and obligations that this imposes on states.
In the Endorois case, the Commission highlighted two important facets of the right to development, declaring that it is both constitutive and instrumental, or useful as both a means and an end. The right to development therefore incorporates both the right to participate in the development process and the right to a substantive improvement in well-being. Therefore development processes have both procedural and substantive elements.
Recognising the right to development requires fulfilling five main criteria. Development must be equitable, non-discriminatory, participatory, accountable, and transparent. Moreover, the African Commission has emphasised in the Endorois case that the fundamental goal of development is freedom of choice and that it “must be present as a part of the right to development”.
Further, given that development is understood as an improvement in well-being (measured in terms of capabilities), the right to development ensures the provision of resources essential for survival and well-being. Traditional indigenous land use systems have been recognised as crucial to well-being.
Consequently, the right to development is a right held by all peoples to participate in, and to shape, a comprehensive process of economic, social and cultural development in all areas of life. The Endorois case established that the burden to create conditions favourable to that development fall squarely on the shoulders of the Government. The form that such participation must take in any set of circumstances is left unclear by Article 22 and, in particular, it is not clear what level or mechanism of participation is required in respect of non-indigenous African groups. In the Endorois decision, the African Commission made clear that indigenous communities have rights of prior consultation and consent in respect of their traditional lands. The position is given greater clarity by the case-law on indigenous participation rights, as well as the 2007 UN Declaration on the Rights of Indigenous Peoples.
In essence, therefore, the development process itself must protect peoples’ rights: those whose land or natural resources are the subject of potential development must participate in the process, be consulted, and benefit from any development.
OW: Finally, Daniel, what are the future plans for the Ogiek Peoples’ Development Program?
DK: OPDP will work to secure the Ogiek a respectable life and improve all aspects of their life. This includes protecting their rights over land and natural resources, intertwined with all basic needs. I foresee an educated society in which the Ogiek are able to represent themselves in all walks of life and enjoy the serenity of the Mau Forest, making it a natural resource conservation model for other communities to learn from. I anticipate Ogiek being included in development processes as we implement a Court judgment which I hope will be in our favour, in a case which I hope will take legal prominence both locally and internationally. In this way, the Ogiek can finally be a proud community, after all the discrimination we have suffered.
OW: And Lucy, any other Minority Rights Group International legal work you can tell Monitor readers about?
LC: We will continue our work with the Ogiek and the Endorois, and are hopeful that we will obtain judgment in the Ogiek case in 2017. We will also progress our pending Commission case against the Government of DRC, challenging the eviction of indigenous Batwa from their ancestral home in what has now become Kahuzi-Biega National Park. And we are working with the Maasai of Loliondo, Tanzania, who were evicted from their lands in 2006 when it was sold by the Government to a US based safari company: they are litigating the dispute in Tanzania’s courts.
We are also working to challenge the slavery of ethnic Haratine women and children in Mauritania. We started a case before the ACERWC in late 2015 and the case has already been declared admissible, with a merits hearing taking place in October 2016. Unlike other African human rights bodies, the Committee has progressed the case very quickly which is both encouraging and exciting.
We will also continue to work with minority tribes in Botswana who are prevented from standing for political office – membership of the House of Chiefs – purely on the basis of their ethnicity. This complements our work in Bosnia, where we successfully litigated the case of Sejdic and Finci v BiH, in which the ECtHR found that BiH Government in violation of the ECHR since Bosnia’s constitution prevents non-Bosniaks, non-Serbs and non-Croats from standing for election to the Presidency or the House of Peoples.
 See eg MFTF Report and TJRC findings – paras 108, 116-117 and 175 of Merits submissions.
The following post appeared as a guest post on Opinio Juris last week here. This is a cross-post, so whilst I’ve lightly edited some of the names, statutes etc to fit in with our house style, if you have already read the Opinio Juris piece you won’t find anything new here, but I thought some readers may have missed it. Enjoy!
Following moves from Gambia, Burundi and South Africa in the past weeks to withdraw from the ICC, much thought is now being given, and keyboards worn down, by the international community as it considers what this news will mean for these countries individually, Africa more generally and of course the ICC.
I want to slightly side-step some of these issues though and address the seemingly confused narrative circulating on the African alternative to the ICC. This seems especially important given the South African Minister for Justice Michael Masutha’s first statement on South Africa’s withdrawal from the ICC which reportedly included the line:
“South Africa will work closely with the African Union and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and People’s Rights, created to deal with such crimes and to prosecute the perpetrators, whilst at the same time continuing to participate and honour its commitments under international human rights instruments.”
Let’s be clear, the African Court does not and will not, barring an extraordinary turn of events, ever have the jurisdiction to try cases of genocide, crimes against humanity and war crimes. The African Court is a human rights court, similar in many ways to its European and Inter-American cousins. It has jurisdiction to consider alleged violations of the African Charter and other international human rights instruments to which the member state in question has signed up to, but nothing in the African Court’s statute, Protocol or Rules gives the African Court the power to prosecute individuals for crimes such as genocide, crimes against humanity and war crimes. To point to the African Court as an alternative to the ICC is like Germany or France withdrawing from the ICC and then pointing to the European Court of Human Rights to handle things from now on.
There is another possibility for AU member states though on the horizon and one that not only has the same jurisdiction as the ICC but actually one much greater; the African Court of Justice and Human Rights (ACJHR). At present however this court exists on paper only in the form of the Protocol on the Statue of the African Court of Justice and Human Rights and the subsequent 2014 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Read through this second Draft Protocol and there emerges details of a mega-court that would subsume the current African Court on Human and Peoples’ Right which would then exist as a “Human and Peoples’ Rights Section”, alongside a “General Affairs” section and an “International Criminal Law” section. The International Criminal Law section would have three chambers, a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber and have jurisdiction to try individuals on charges of genocide, crimes against humanity and war crimes. Sound familiar?
There are however a number of differences between the ICC and the International Criminal Law Section of the ACJHR. To start with, in addition to genocide, crimes against humanity and war crimes, the ACJHR would have jurisdiction over a further 11 crimes including corruption, mercenarism and the trafficking in persons and drugs, creating an ambitious roster of 14 crimes under its jurisdiction (Article 28A, Draft Protocol). Additionally, the International Criminal Law Section of the ACJHR would include immunity from prosecution for serving AU heads of state or government and other “senior state officials” whilst in office- a vague definition if there ever was one (Article 46A bis, Draft Protocol). But above concerns over immunity and jurisdiction exists the real kicker; to take the ACJHR off the page and into reality requires at least 15 AU member states to ratify the amended Protocol (Article 11, Draft Protocol). Currently however, not a single AU member state has ratified the Draft Protocol and its international criminal law section- not one. This complete lack of ratification goes some way to demonstrate the clear gap that exists between those advocating for withdrawal from the ICC ostensibly to allow the AU to handle matters, and those who have actually signed up to the AU’s alternative.
So as Gambians, Burundians, South Africans and the wider world starts to come to grips with what withdrawal from the ICC could mean, let’s be clear on the regional alternative – the African Court of Justice and Human Rights and where it currently exists- on paper only.