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Two Times Too Many: Botswana and the Death Penalty

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

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

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

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

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

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

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

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

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

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

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

 

 

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New Friends: The ECOWAS Court and African Court

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

Here’s three quick thoughts:

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

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

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

Here’s the announcement in full

Download (DOCX, 247KB)

Media Legal Defence Initiative Litigation Workshop

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

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

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

Treading a Fine Line: the lngabire Victoire Umuhoza v. Rwanda Judgement (Part Two)

 

Hopefully readers of this post will have seen the first part of my analysis of the Ingabire v. Rwanda judgement. If not, or if you want to reminder, you can find it here. In this second part, I am going to review the African Court’s findings on the right to freedom of expression and opinion (Article 9(2) of the African Charter and Article 19 of the ICCPR) and finish with some analysis and conclusions.

 

Freedom of Expression and Opinion

 

The Arguments

 

Let’s first look at the arguments of Ingabire, Rwanda and the Rwandan organization the National Commission for the Fight against Genocide who submitted an amicus brief in this case.

Ingabire argued that she was convicted for the minimisation of genocide, whereas the opinion she expressed during a speech at the Kigali Genocide Memorial concerned the management of power, the sharing of resources, the administration of justice, the history of the country and the attack that led to the demise of the former President of Rwanda. Ingabire contended that she had no intention to minimise and trivialise genocide or to practice the ideology of genocide. Rather, she argued that the right to express her opinion was protected by the Constitution of Rwanda and other international instruments. Ingabire submitted that the Rwandan laws surrounding the genocide were vaguely drafted, and could be used to restrict legitimate discourse rather than the legitimate aim of preventing anti-genocide rhetoric.

Rwanda submitted that the right to express one’s opinion is subject to limitations. Considering the social context, the history of and environment in Rwanda, it argued that there was reason to enact laws to penalise the minimisation of genocide, something countries around the world have also done.

The National Commission for the Fight against Genocide, argued that Ingabire’s words amounted to support of the “double genocide” theory. It explained that the theory of double genocide is intended to transform the 1994 genocide against Tutsis in Rwanda into an inter-ethnic massacre, and at the same time, exonerate the perpetrators, their accomplices and their sympathisers. Put simply, this theory considers that there were two genocides in Rwanda, and that the Tutsis are therefore as guilty as their executioners.

 

The Law

 

With these arguments in mind, its worth revisiting the wording of Article 9(2) of the African Charter and Article 19 of the ICCPR under which Ingabire brought her claim. Article 9(2) of the African Charter states:

Every individual shall have the right to express and disseminate his opinions within the law

Article 19 of the ICCPR states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

 

The African Court’s Findings

 

Bearing these words in mind, the African Court stated that the right to freedom of expression is one of the fundamental rights protected by international human rights law. It found that as such, respect for this right is crucial and indispensable for the free development of the human person and to create a democratic society. The African Court made clear that this right comprises, amongst others, the freedom to express and communicate or disseminate information, ideas or opinions of any nature in any form and using any means, whether at national or international level. It also requires Member States to protect this right from interferences regardless of whether the interferences originate from private individuals or government agents.

However, as is plain from the wording of the African Charter and ICCPR, this right is not to be enjoyed without limits. Referring to the Konate v Burkina Faso case, the African Court recalled that freedom of expression is not an absolute right and under some circumstances, it may be subject to some restrictions. ln particular, in Konate, relying on Article 19 (3) of ICCPR and the jurisprudence of the African Commission on Human and Peoples’ Rights, and other international and regional human rights bodies, the African Court held that the term ‘within the law’ in Article 9(2) of the African Charter envisage the possibility where restrictions may be put in place on the exercise of freedom of expression, provided that such restrictions are prescribed by law, serve a legitimate purpose and are necessary and proportional as may be expected in a democratic society.

Considering this, the African Court made it clear that there was no question that Ingabire’s convictions represented a restriction of freedom of expression. The question the African Court then needed to consider was whether this restriction was: (i) provided by law; (ii) served a legitimate purpose; and (iii) was necessary and proportional in the circumstances of the case, thus satisfying the limitations found within the African Charter and ICCPR on freedom of expression.

(i) Provided by Law

The African Court made clear that the reference to the “law” in Article 9(2) of the African Charter must be interpreted in the light of international human rights standards which require that domestic laws on which restrictions to rights and freedoms are must be sufficiently clear, foreseeable and compatible with the purpose of the African Charter and international human rights conventions and has to be of general application. Considering then Ingabire’s claims that Rwandan laws on the minimisation of the genocide are vague and unclear, the African Court found that some of the laws are “couched in broad and general terms” and “may be subject to various interpretations”. However, the African Court found that these types of crimes are “difficult to specify with precision”. Combining this with the margin of appreciation that Rwanda enjoys in defining and prohibiting some criminal acts in its domestic legislation, the African Court was of the view that the laws provide adequate notice for individuals to foresee and adapt their behaviour to the rules still specific enough to comply with Art 9(2) of the African Charter.

(ii) Served a Legitimate Purpose

As to the “legitimate “purpose” element, the African Court found that the purpose of the laws themselves- to prevent the minimisation of the genocide in Rwanda- served the legitimate interests of protecting national security and public order, and therefore the restriction was merited.

(iii) Necessary and Proportional

With regards to the “necessary and proportional” element, the African Court made clear that what was required was that the restriction “was strictly necessary in a democratic society and proportional to the legitimate purposes pursued by imposing such restrictions”. The African Court found that when considering the necessary and proportional nature, some speech, such as political speech, in particular, when they are directed towards the government and government officials, or are spoken by persons of special status, such as public figures, deserve a higher degree of tolerance than others.

Importantly, the African Court further stated that freedom of expression also must include not only “information” or “opinions that are favourably received or regarded as inoffensive, but also those that offend, shock or disturb” a State or any section of the Population. In assessing the restriction, the African Court stated that this could not be done in a vacuum and due consideration should be given to particular contexts in which the impugned expressions were made.

The African Court considered, in this particular case the context and background was the 1994 Rwandan genocide, described by the African Court as the “most atrocious genocide in the recent history of mankind”. The African Court therefore found it entirely legitimate for Rwanda to adopt laws concerning the minimisation propagation or negation of the genocide. However these laws cannot be adopted at all cost to freedom of expression and international human rights law. However, these laws could not be applied at any cost to the rights and freedoms of individuals or in a manner which disregards international human rights standards. The legitimate exercise of rights and freedoms by individuals is as important as the existence and proper application of such laws and is of paramount significance to achieve the purposes of maintaining national security and public order. ln all circumstances, it is important that restrictions made on the fundamental rights and freedoms of citizens are warranted by the particular contexts of each case and the nature of the acts that are alleged to have necessitated such restrictions.

In assessing Ingabire’s words, the African Court split them into two categories: (i) concerning the genocide; and (ii) with regard to comments on the Rwandan government, including the President, and judiciary. Concerning the comments on the Rwandan genocide, the Court noted there were three versions of the speech made by the Applicant. The Applicants’ own, the version considered by the Rwanda High Court and the version considered by the Rwandan Supreme Court.

Since the issue is fairly nuanced, it seems prudent to repeat the versions here. Ingabire alleged she said:

“…if we look at this memorial, it only refers to the people who died during the genocide against the Tutsis. There is another untold story with regard to the crimes against humanity committed against the Hutus. The Hutus who lost their loved ones are also suffering; they think about the loved ones who perished and are wondering “When will our dead ones also be remembered?”

The Kigali High Court version is as follows:

“…For example, we are honouring at this Memorial the Tutsis victims of Genocide, there are also Hutus who were victims of crimes against humanity and war crimes, not remembered or honoured here. Hutus are also suffering. They are wondering when their time will come to remember their people ( …)”

Finally, the Rwandan Supreme Court version reads:

“…For instance, this memory has been dedicated to people who were killed during the genocide against the Tutsi, however there is another side of genocide: the one committed against the Hutu. They have also suffered they lost their relatives and they are also asking, “When is our time?” (…)”

Whilst all three versions may appear similar there are some crucial differences. The African Court noted that the Supreme Court version mentioned “another side of genocide: the one committed against the Hutu” which seems to imply the theory of “double genocide” which is illegal under Rwandan law as part of the offence of “negation of genocide”. The High Court version and the applicant’s own meanwhile, refer to the Hutus begin victims of crimes against humanity and war crimes”- two distinct and separate crimes to genocide under international criminal law. The African Court found that where there were three competing versions benefit should go to Ingabire, noting that Rwanda did not formally oppose Ingabire’s version in its response.

Turning then to consider the version submitted by Ingabire, the African Court acknowledged that, as in any country where there is a history of genocide, the issue is very sensitive, and opinions or comments made in relation to the genocide may not be treated in a similar manner as opinions expressed on other matters. The African Court considered that statements that deny or minimize the magnitude or effects of the genocide or that unequivocally insinuate the same fall outside the domain of the legitimate exercise of the right to freedom of expression and should be prohibited by law. In Ingabire’s case however, the African Court found that there was nothing in her statements, which denied or belittled the genocide committed against the Tutsi or propagated the theory of “double genocide”. Whilst the African Court again acknowledged that words said it certain contexts can meet different things, it nevertheless found that putting criminal punishment restrictions on the rights of individuals merely on the basis of contexts would create an atmosphere in which citizens cannot enjoy basic rights including freedom of expression.

As to the second category of comments made of the government and the Rwandan President, the African Court found that some of Ingabire’s comments made may well have been found offensive and could have the potential to discredit the integrity of public officials and institutions. However, these were the very kind of comments expected in democracies, and should be tolerated especially from public figures. The African Court therefore found that Ingabire’s convictions for “inciting strife”, creating “divisions amongst people” or “threatening the security of the state” were not proportionate, and in any event there was no evidence that these comments had resulted in anything simiar to this happening.

The Court therefore found the applicant’s prosecution and conviction was not necessary. The Court finally noted that even it the Court were to accept that such statements needed to be limited, the punishment was still disproportionates to the legitimate need to limit such statements, finding that Rwanda could have adopted less restrictive measure to attain the same objectives.- Violation of Art 9(2) of the Charter and Art 19 of the ICCPR.

 

Conclusion

Firstly, the judgement brings little in the way of new developments on either admissibility or jurisdiction, as I alluded to in part one of this post. For jurisdiction, Rwanda argued the familiar line that the African Court cannot be used as an appeals court for criminal convictions. This line of argument though, misses the point. The African Court itself agrees that it cannot act an appeal court. What the African Court does is to consider convictions against the rights found in the African Charter and other international human rights instruments a Member State has signed up to. The African Court is not asking “can we overturn this conviction?” but rather “does the conviction comply with human rights standards?” This may not be the last time we see a member state argue this line, but there now exists a solid body of jurisprudence that easily rebuts it that hopefully Member States take note of.

Similarly, in terms of admissibility, Rwanda continued the tradition of member states arguing that the applicant had failed to exhaust local remedies. The exhaustion of local remedies requirement is extremely important; the African Court is a court of last resort and, generally speaking, applicants must demonstrate they have taken their case as far as possible domestically before availing itself of the African Court. However, such a requirement cannot be never-ending. Rwanda pointed to the possibility of constitutional review and further reviews of convictions as avenues not yet explored by Ingabire. In fact, in this case Ingabire had pursued a conditional review, but this is not generally required. Applicants must show they have exhausted local remedies but to do this should not be overly burdensome or onerous; typical avenues must be taken, petitions filed, and appeals lodged but not every possible arcane or technical avenue must be explored; to do so leave the bar too high for applicants to access the institution.

Turning now to the merits, this judgement makes important strides on the right to fair trial and the right to freedom of expression. On fair trial, the African Court examined closely Ingabire multiple claims. It is important to note that not all elements were successful. For presumption of innocence and the right to be tried by a neutral and impartial court for example, the African Court was not persuaded by the evidence, demonstrating that to prove these foundational issues is a high bar indeed. Greater success was found in more readily demonstrable actions by the Rwandan courts; barring defence counsel from cross examining witnesses and threats and intimidation of defence witnesses. Here, the African Court was able to consider specific allegations, rather than the more catch-all “its all biased” claims and find that these kinds of actions were indeed violations of Article 7 of the African Charter.

The African Court also engaged in a very interesting examination on the principle of legality of crimes and penalties, and non-retroactivity of criminal law. Taking Article 7(2) of the African Charter as its foundation (“No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed…”) the African Court made clear that criminal responsibility and punishment must be based only on the prior promulgation of laws which prohibit a particular conduct. These laws must also be easy to find or be aware of. In other words, the African Charter (as other international human rights instruments do) ensures that a person can only be convicted of a crime when it is crime before the actions take place and the existence of it as a crime is easily available. This precludes arrests and convictions without legal basis (“no law”) or arrests and convictions on hard to find or obscure laws (“secret laws”).

Similarly, the African Court made clear that non-retroactivity has no place within international human rights law, that is to say the imposition of criminal sanctions on events that took place before the sanctions come into existence, unless the new sanctions are favourable to the accused. However it should be noted that this exception is exactly what the African Court considered happened in this case. Under the “old” laws Ingabire was facing possible prison sentences of life imprisonment and 10-20 years. Under the “new” laws which came into being after the initial convictions, Ingabire faced 20-25 and five-nine years imprisonment respectively. The “new” laws carried shorter sentences and therefore could be considered more favourable, and thus fell into the exemption to non-retroactivity. Of course this was complicated somewhat by Ingabire actually receiving a longer sentence under the “new” laws than the “old”. However, the African Court considered this not to be as a result of the laws themselves but for the rejection of mitigating circumstances and conviction on appeal of charges Ingabire was acquitted of at trial. Of course this begs the question, if the “new” laws were not in place, would Ingabire have been sentenced to? Was Ingabire really enjoying the benefit of the new more lenient laws when their existence allowed for a longer sentence to be imposed?

As to freedom of Expression, the African Court made clear pronouncements that build on the previous Konate case. Of particular note is the African Court’s clear statement that Article 9 of the African Charter protects speech that may be offensive or decidedly uncomfortable to those in power. This notion may be familiar to readers (“I disapprove of what you say, but I will defend to the death your right to say it” to quote Evelyn Beatrice Hall ) but I think its important that the African Court is laying it down once again in its own judgements and aligning it directly with the African Charter. Indeed, the African Court made clear that Ingabire’s comments concerning Rwandan leadership may well have been offensive, but that this is precisely the kind of comments that those in public positions must be willing to deal with. This is the “thick skin” line of argument- if you are in the public sphere then you must be willing to bear criticism which goes as far as to offend. Of course, freedom of expression is a balancing act. It does not possess carte blanche status, and Article 9 (2) recognises that some comments and expressions should be curbed. It is a balancing act: weighing cultural, historical and contextual factors alongside a myriad of other considerations. But again, the African Court made clear that this was entirely appropriate. What the African Court found inappropriate is using laws to quash comments or speech which are uncomfortable to either society or especially a countries’ leaders.

So with this latest judgement, the African Court adds another layer to its incremental journey towards shaping the right to fair trial and the right to freedom of expression across Africa. Lets hope Member States are following this closely and are willing to  proactively revisit their procedures and laws to adhere to this changing landscape.

 

 

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Treading a Fine Line: the lngabire Victoire Umuhoza v. Rwanda Judgement (Part One)

 

In this two-part post, I am going to look at the African Court on Human and Peoples’ Rights (African Court) most recent judgement on the merits, lngabire Victoire Umuhoza v. Rwanda. In this first part, I will introduce the case, give some background and briefly review the jurisdiction and admissibility issues. I will then delve into the merits, specifically on the African Court’s findings on the right to fair trial. In part two of this post, to be posted in the coming few days, I will continue looking at the merits, this time concerning the right to freedom of expression, before finishing with some analysis and concluding remarks.

PART ONE

[highlight dark=”no”]Introduction[/highlight]

Regular African Court followers will likely be very familiar with this case, even before judgement was handed down on 24 November 2017. For those who may be coming a little late to the party, in brief, the case has secured its place in African Court history due to Rwanda’s withdrawal of its Article 34(6) Additional Declaration during the case’s pre-judgement stage. I have written on this issue previously here, here, here and here, but in short, the day of the scheduled public hearing, Rwanda informed the African Court it was going to withdraw its Article 34(6) Additional Declaration (which allowed Rwandans and Rwandan NGOs to petition the African Court directly). It argued that by doing so, the African Court no longer had jurisdiction over cases involving Rwanda, including this one, and promptly refused to comply with the African Court pending further review. The African Court considered Rwanda’s decision to withdraw, finding that Rwanda was entitled to withdraw its Additional Declaration, but that this withdrawal would be subject to a 12 month cooling-off period (regular readers will recall we added a “Rwexit” countdown to our homepage). This meant that Ingabire’s case remained within the African Court’s jurisdiction.

This judgement is therefore the conclusion of a rollercoaster of a case for the African Court. Whilst this background is incredibly interesting and impactful not only on Rwanda, but also on the African Court’s future relationship with all AU member states, the judgement itself also deserves to analysed. In particular, the judgement raises interesting points on the right to fair trial (Article 7 of the African Charter) dealt with in this post and the right to freedom of expression (Article 9 of the African Charter and Article 19 ICCPR) that I will look at in part two.

 

[highlight dark=”no”]Background[/highlight]

The applicant in this case is Rwandan political leader lngabire Viotoire Umuhoza (Ingabire). Between 2003 and 2010 Ingabire made a number of comments, including at the Kigali Genocide Memorial, concerning the 1994 Rwandan genocide and Rwanda’s current leaders. Ingabire was prosecuted for making these comments under various laws designed to prevent the minimisation, or derogation of the Rwandan genocide. In particular, in October 2012 Ingabire was convicted at the High Court of Kigali of “conspiracy to undermine established authority and violate constitutional principles by resorting to terrorism and armed force” and “minimization of the genocide” and sentenced to eight years’ imprisonment with hard labour. Ingabire appealed these convictions. In December 2013, on appeal, the Rwandan Supreme Court reclassified Ingabire’s convictions, finding her guilty of “conspiracy to undermine the Government and the Constitution, through acts of terrorism, war or other violent means, of downplaying genocide, and of spreading rumours with the intent to incite the population against the existing authorities”. Ingabire was re-sentenced to 15 years imprisonment.

In her application before the African Court, Ingabire alleged that her arrest, detention, trial and convictions violated the African Charter on Human and Peoples’ Rights and the ICCPR, specifically the right to fair trial (Article 7 of the African Charter) and the right to freedom of expression (Article 9(2) of the African Charter and Article 19 of the ICCPR).

 

[highlight dark=”no”]Jurisdiction and Admissibility[/highlight]

For regular African Court followers there’s not much new to report in terms of jurisdiction or admissibility. Rwanda attempted to argue the now familiar “Appeals Court” line often favoured by member states in cases involving criminal convictions. In essence, this argument runs along the lines that the applicant is using the African Court as a further criminal appeal court to overturn convictions, which is not the African Court’s purpose. The African Court swiftly disposed of this argument as is has recently done in other cases such as Ernest Francis Mtingwi v. Malawi, Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzania. The African Court once again agreed that it cannot act as a criminal appeal court per se, but what it can do is consider whether criminal convictions, and the process and trial that lead up to them, comply with the African Charter or other international human rights instruments signed by the member state in question.

In terms of admissibility, Rwanda argued failure to exhaust local remedies which, I think, every Member State has raised before the African Court to date.  In particular, Rwanda argued that Ingabire had failed to exhaust local remedies as she could still challenge the laws that underpinned her convictions before the Rwandan Supreme Court on constitutional grounds, as well as the opportunity to seek a review of her convictions. These arguments are, again, familiar. Member State’s often point to the possibility of constitutional challenges or the review of decisions, which fall outside the usual line of trial-appeal-appeal. As the African Court has done before, it dismissed these arguments. In doing so, the African Court noted that Ingabire did in fact bring a constitutional challenge to the laws which was unsuccessful. The African Court further found that in the “circumstances of this case” application for review would be an extraordinary remedy which would not be effective and efficient remedy, and therefore Ingabire was not required to have persuaded it, referring to Alex Thomas v. Tanzania.

 

[highlight dark=”no”]The Merits – the Right to a Fair Trial[/highlight]

Whilst jurisdiction and admissibility bring little new, the merits of the case bear further scrutiny. As mentioned above, Ingabire alleged that her convictions violated the right to fair trial (article 7 of the African Charter) and the right to freedom of expression (Article 9 of the African Charter and Article 19 ICCPR). In this part we will look at the right to fair trial, whilst part two will look at the right to freedom of expression.

The African Court broke the right to fair trial analysis down it down into four parts: i) the right to presumption of innocence; ii) the right to defence; iii) the right to be tried by a neutral and impartial court; and iv) the principle of legality of crimes and penalties and non-retroactivity of criminal law.

Right to Presumption of Innocence

Concerning the right to presumption of innocence, the African Court confirmed that this is a fundamental right, as found in Article 7(1)(b) of the African Charter, and Article 14(2) of the ICCPR. However, the African Court dismissed Ingabire’s allegation that her trial had suffered from a lack of presumption of innocence for lack of evidence.

Right to a Defence

As to the right to defence, the African Court clarified that the right to defence is not limited to choosing one’s own counsel, but also includes the right to call defence witnesses. It found in turn, defence witnesses themselves deserve protection from intimidation and reprisals to ensure that they can assist the accused and the authorities to reach a just decision. Ingabire alleged that this right had been violated through her defence counsel being searched on entry to the Rwandan High Court and the searching of defence witnesses at prison.

The African Court was not convinced however that searching defence counsel at court, and searching witnesses in prison violated Ingabire’s right to a defence. It found that both policies were in line with normal security practice. The African Court was however concerned with the allegations that documents were taken during these searches that were later used in evidence against Ingabire. Furthermore, it highlighted unease over the allegation that the High Court Judge in Ingabire’s trial had refused to allow defence counsel to ask questions in court, and that a defence witness was subject to threats and intimidation after testifying. The African Court also noted defence counsel’s difficulties visiting Ingabire in prison, and the appearance of a co-accused’s statement after he had stayed in a “military camp”. Notably, the African Court remarked that none of these allegations were specifically refuted by Rwanda, which had instead made a general denial that the right to defence had been violated.

In relation to these additional allegations, the African Court recalled that the right to defence includes principles such as access to witnesses, and the opportunity for counsel to express themselves, consult with their clients and to examine and cross-examine witnesses. Moreover, the African Court found that the right to defence also includes the right to know and examine documents used against one’s trial. ln Ingabire’s case, the African Court found that difficulty encountered by defence counsel in putting questions to Ingabire’s co-accused, the threats and environment of intimidation faced by the defence witness and the use of documents seized, that were later used against her without giving her the chance to examined it, were incompatible with international standards pertaining to the right to defence. The African Court therefore held that Ingabire’s right to defence was violated, contrary to Article 7(1)(c) of the African Charter.

In addition, with regards to the questioning of the defence witness by prison authorities over the testimony they gave in Kigali High court, the African Court noted that this is not a conduct consistent with standards that aim to promote a fair trial. Such actions may have an intimidating effect on witnesses’ willingness and disposition to cooperate and adduce evidence against a member state. This is especially so for witnesses in detention or already serving prison sentences. However, the African Court found that as the questioning happened after the witness had given testimony, it concluded that in the circumstances of the case, this did not violate the right to defence of the Ingabire.

Right to be Tried by a Neutral and Impartial Court

With regards to the right to be tried by a neutral and impartial court, Ingabire made several allegations that the judges in her cases were not impartial. Whilst the African Court confirmed that Article 7 (1)(d) of the African Charter provides for trial by an impartial court or tribunal, when examining the evidence adduced by Ingabire against the guidelines found in the African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, it found that the evidence was not sufficient to demonstrate such impartiality.

The Principle of Legality of Crimes and Penalties and Non-Retroactivity of Criminal Law

Finally, the African Court turned its attention to the principle of legality of crimes and penalties, and non-retroactivity of criminal law, going into significant detail. In particular the African Court looked at compliance with Article 7(2) of the African Charter which states:

“No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed…”

Ingabire alleged that she was first charged and convicted for the crime of propagating the ideology of genocide at the Kigali High Court. Subsequently, she argued, the Rwanda Supreme Court found her guilty of minimising genocide, thus requalifying her acts under a new law, which entered into force on 28 October 2013, some three years after the comments which underpinned her conviction occurred. According to her, the use of this new law by the Rwandan Supreme Court violated the principle of non-retroactivity of the law and the non-retroactive application of the criminal punishment.

The African Court made clear that the non-retroactivity of criminal law is an important rule intrinsic to the principle of legality that stipulates, among others, that criminal responsibility and punishment must be based only on the prior promulgation of laws which prohibit a particular conduct. It recalled that the principle of legality requires that society is informed of prohibited behaviour before the law prohibiting or criminalising such behaviour comes into force. ln other words, the prohibited conduct must be clear and verifiable, and the punishment that an infringement entails should be specified before individuals are held accountable for the same.

The African Court also made clear that the rule of non-retroactivity forbids the retrospective application of a criminal law to acts committed before the enactment of that law. Referring to Article 15(1) of the ICCPR, the African Court noted that the only exception to this is where a criminal law applied retroactively favours an individual by decriminalising a previous criminal conduct which they are accused of, or provides a lighter penalty than the law which was in force at the time of the criminal conduct.

In Ingabire’s case, the crimes she was convicted of occurred between 2003 and 2010. During this time, there were four Rwandan criminal laws under which Ingabire was charged, two of which had some offences which overlapped. However, in 2013 two of these laws were replaced by newer legislation covering similar offences relating to the genocide. These newer laws, covered the offence of minimisation of genocide, but reduced the sentence from a range of 10 to 20 years, to five to nine years imprisonment. Similarly, for crimes of conspiracy and threatening state security and the constitution, and spreading rumours with intent to incite the population against the existing authorities, the older laws allowed for punishment up to life imprisonment, whilst the new law set the range between 20 and 25 years.

The African Court noted that Ingabire was initially charged with propagating the ideology of genocide, however, the Kigali High Court re-qualified the charge and convicted her for the crimes of revisionism of genocide and treason to threaten state security and the constitution, and sentenced her to eight years’ imprisonment. On appeal, the Rwandan Supreme Court sustained the conviction but rejected the mitigating circumstances and crimes of which she was acquitted at the Kigali High Court. The Rwandan Supreme Court, citing the existence of concurrence of crimes, imposed a punishment of 15 years imprisonment on for the crimes of minimising genocide and crimes of conspiracy and threatening state security.

The African Court was of the view that the rule of non-retroactivity of the law does not preclude the requalification of a criminal charge during a criminal trial resulting from the same facts. What is prohibited it found, was the application of new criminal laws, in this case the two newer 2013 laws, to crimes alleged to have been committed before the coming into force of such law. However, the African Court found that in this case these new laws carried lesser sentences than the old laws. It therefore found that since these newer laws were in general favourable to Ingabire they complied with the exception to the rule of non-retroactivity.

The African Court held that the fact that the punishment imposed by the Rwandan Supreme Court of 15 years was higher than the penalty that was initially imposed by the Kigali High Court (eight years) was not because of the retroactive application of the new laws, but rather because the Rwandan Supreme Court had rejected the mitigating circumstances considered by the Kigali High Court, and convicted the Applicant for an offense for which she had been acquitted by the Kigali High Court. Accordingly, this was not a violation of the principle of non-retroactivity of criminal law.

Part Two of this post will be added in the coming days, looking at the right to freedom of expression and opinion, analysis and conclusions.

News, comment and debate on the African Court on Human and Peoples’ Rights

@acthpr_monitor | www.acthprmonitor.org

More Questions than Answers? Advisory Opinions Before the African Court

 

*** UPDATE***

I hope you enjoy reading the following post, first published on 13 December 2017.  I have received an overwhelmingly positive response to this piece, mostly asking how African NGOs can now obtain either observer status or sign a memorandum of understanding with the African Union. With this in mind, I have now written to the African Union in my capacity as founder of this website and as a member of the African Court’s List of Counsel (pro bono), to see what further information it can provide. If and when I receive a response that I can share, I will post it here. In the meantime enjoy the post! OW (12 January 2018)

In this post, I want to review the African Court’s recent decisions on advisory opinions, and the rather ambiguous situation we now find ourselves in.

For context, many readers will be familiar with the African Court’s power to consider applications from individuals, NGOs, the African Commission (or another African Union member state in theory) alleging that a member state has violated the African Charter or other international human rights instruments. These applications take the form of “X v. Member State” and are referred to on the African Court’s website as “contentious proceedings”. But the African Court has another less examined role; the power to issue advisory opinions. This power is found in Article 4 of the African Court Protocol. These applications might rightly be considered as non-contentious, since they are not against a member state per se, but rather an application to the African Court seeking to clarify a matter of law, or perhaps to seek the African Court’s position on a certain issue.

The ACERWC used the advisory opinion route to seek clarification from the African Court on its status. Photo Credit: acerwc.org

This advisory opinion power has been used sparingly. In 2014 the African Committee of Experts of the Rights and Welfare of the Child (ACERWC) took this avenue to ask the African Court whether it fell within the definition of “African Intergovernmental Organizations” that can submit cases under Article 5(e) of the African Court Protocol. In its Advisory Opinion the African Court confirmed that indeed it was an intergovernmental organization, and that it could indeed bring cases- a very important development indeed.

In September this year however the African Court issued four decisions on requests for advisory opinions that severely limit those who can make use of this avenue. These decisions were all rendered on 28 September 2017 (Association Africaine de Defense des Droits de l’Homme, The Centre for Human Rights, Federation of Women Lawyers Kenya, Women’s Legal Centre, Women Advocates Research and Documentation Centre, Zimbabwe women Lawyers Association, The Centre for Human Rights, University of Pretoria (CHR) & The Coalition of African Lesbians (CAL), and Rencontre Africain pour la Défense des Droits de l’Homme (RADDHO)).  In all four cases, NGOs were hoping to engage the African Court on various issues of human rights law. I am not proposing to go into the issues themselves since, for the reasons set out below, the African Court never got to consider the merits, but the decisions do set out the issues in a fair amount of detail, if readers would like to read up on them.

For the purposes of this post, what was important is that in all four cases the African Court said the same thing; in order for an NGO to have standing to request an advisory opinion, the NGO must be recognised by the African Union. Crucially, observer status before the African Commission on Human and Peoples’ Rights is not enough. This tranche of decisions is nothing new, since it follows the May 2017 SERAP decision, but what these four decisions have done is to solidify the African Court’s position with little prospect of movement in the foreseeable future.

Given the importance of these four decisions, alongside the SERAP decision, it’s worth looking at the issue a little more closely. Article 4(1) of the African Court Protocol lists four types of entities that can bring a request for a advisory opinion before the African Court: (1) Member States; (2) the African Union; (3) any of its organs; and (4) any African organisation recognised by the African Union.

All the applicants in the latest batch of cases were NGOs, and they all argued that they fell within the fourth category, as “African organisation[s] recognised by the African Union” and were therefore entitled to request an advisory opinion from the African Court. The African Court broke this term down into three sections: (1) “African”; (2) “Organisation”; and (3) “recognised by the African Union”. The African Court saw little problem with the “African” element; NGOs registered in Africa, and working on African issues seem to generally fulfil this. It also held that the term “organisation” could indeed include NGOs as well as intergovernmental organisations. It all came down to the third part, “recognised by the African Union”.

The African Court has now made its position on Article 4 of the African Court Protocol clear.

In all four cases, the NGOs sought to interpret the term in a wide sense, arguing that since they had observer status before the African Commission they satisfied this definition. Put simply, the African Commission is an African Union organ, ergo any NGO with observer status before the African Commission is “recognised by the African Union”.

Not so said the African Court. It found that observer status before the African Commission was not the same as recognition by the African Union. It considered that these are two different matters, and that obtaining the former cannot equate to the latter. These decisions, and the SERAP decision before it, can therefore be seen as the African Court interpreting the phrase “recognition by the African Union” narrowly. Whatever the pros and cons of this interpretation, the reality is that the position is now clear and is unlikely to change in the near future.

Now, the big question is, how does one gain ‘recognition from the African Union’? This is where things become a little less clear. In the SERAP decision, followed in these latest four decisions, the African Court stated that recognition of NGOs by the African Union is through the granting of Observer Status or the signing of a Memorandum of Understanding between the African Union and those NGOS (SERAP Decision, para. 64). But I cannot find anything to suggest how this can be done. I managed to find a 2005 AU Executive Council memo that mentions observer status before the African Union here (see paras. 45-50) but apart from this I have yet to find anything concrete.

The ability to petition the African Court for advisory opinions is crucial. It allows NGOs to approach the African Court on important issues without the need to satisfy prohibitive access issues. It does away with the contentious nature of more familiar X v. Y applications against specific member states. In short, it has a vital role to play. The African Court has chosen to interpret the key phrase on recognition before the African Union narrowly, and there is not much that can done about this right now. What must be done now is determine as quickly as possible how NGOs can comply with the requirements the African Court has set out- namely how to get Observer Status or sign a Memorandum of Understanding with the African Union. The problem is, there seems to be no information on how to do this. Any readers who can help shed light on how NGOs can be granted such status with the African Union are encouraged to contact me and I will be happy to update this post or put up a new guest post with the information. This issue is important and clarity is required sooner rather than later, lest NGOs lose this important avenue to approach the African Court.

An Emerging Framework for All of Africa: The Right to a Fair Trial at the African Court

A few weeks ago, Justice Hub published my analysis of the African Court’s recent judgements concerning Tanzania and its criminal justice system. I am now cross-posting the piece here on The Monitor. This means those readers who read the piece on Justice Hub will not find anything new in the following post. However, I thought there may be some Monitor readers who did not see this when it first went up. As always, I would be very interested in readers views on the post, and more importantly perhaps, the judgements themselves. Enjoy! OW

Introduction

At the end of September, the African Court on Human and Peoples’ Rights (African Court) handed down an unprecedented ten decisions. These decisions, made up of judgements, requests for advisory opinions and applications for interpretation of past judgements each all deserve to be examined in detail. For the purposes of this post however, I want to focus on the delivery of two judgements: Jonas v Tanzania and Onyachi and Njoka v Tanzania. These judgements continue the African Court’s examination of the Tanzanian criminal justice system and are not only important for Tanzania, but also beyond Tanzania’s borders and across Africa as they continue to provide further clarification on what is meant by the right to a fair trial as found under Article 7 of the African Charter on Human and Peoples’ Rights (African Charter).[/tooltip]

Before we look at the two judgements themselves, it may help to put them in a little context. These judgements are the latest in a series of similar cases brought by applicants against Tanzania. In essence, all these cases argue that the Tanzanian criminal justice system fell well short of the right to fair trial as protected under Article 7 of the African Charter. The previous cases worth reading are Alex Thomas v Tanzania, and Abubakari v Tanzania which the African Court refers to in these latest two decisions, plus Onyango et al. v Tanzania . In terms of context, it’s also worth noting that so far Tanzania has lost every one of these cases, with the African Court consistently finding the treatment of those accused and convicted of serious crimes in Tanzania violates the African Charter.

30-year Sentences for Armed Robbery

In both cases the applicants were serving 30 year sentences for armed robbery. Kenyan nationals Kennedy Onyachi, and Charles Njoka were first arrested in Nairobi, Kenya on suspicion of armed robbery in Tanzania in November 2002. In March 2003, they were extradited to Tanzania to face trial. They were met on the Kenyan-Tanzanian border not only by Tanzanian police, but also Tanzanian TV cameras, causing their identity to be widely disseminated across Tanzanian television and newspapers. Shortly after, they were subject to an identification parade where they were positively identified. They were then charged with conspiracy and armed robbery.  In March 2005 following trial the Tanzanian Magistrates Court acquitted Onyachi and Njoka.

However, they were immediately re-arrested and charged with further offences of robbery on the same facts whilst the Prosecution also appealing their acquittals. In December 2005 the Tanzanian High Court overturned the acquittals and convicted Onyachi and Njoka, sentencing them to 30 years imprisonment. Onyachi and Njoka then appealed against conviction, an appeal that was dismissed by the Tanzanian Court of Appeal in December 2009. However, Onyachi and Njoka were only served with copies of the Court of Appeal’s decision in November 2011, almost two years after the judgement was rendered. Attempts were made to lodge a review of the 2009 Court of Appeal decision, but were time barred, since appeals must be lodged within 60 days of judgement.

Christopher Jonas was convicted of similar offences in 2004 and was serving 30 years imprisonment at the time of his application. In his case, its worth nothing that Jonas was originally sentenced to 30 years imprisonment and 12 strokes of the cane. Jonas appealed the case through the Tanzanian criminal justice system, with the Tanzanian High Court and Court of Appeal upholding his conviction and prison sentence, although the Court of Appeal did set aside the 12 strokes of the cane.

Onyachi and Njoka petitioned the African Court in January 2015, whilst Jonas petitioned the African Court in May 2015. Interestingly, in both cases the African Court took it upon itself to ask the Pan African Lawyers Union to represent the applicants who were otherwise unrepresented; a welcome move and evidence of the African Court thinking outside the box.  In both cases the applicants argued that their treatment within the Tanzanian criminal justice system violated various articles of the African Charter.

Tanzania Uses Jurisdiction and Admissibility Arguments

Suffice to say, Tanzania refuted both claims, and did so at every stage of the African Court’s examination of the case. In both cases Tanzania argued that the claims were outside the African Court’s jurisdiction. It argued that the African Court was being asked to act as a quasi-Supreme Court, which was beyond its remit, and that it should simply respect the Tanzanian Court of Appeal’s decisions as the highest judicial body in Tanzania. The African Court however was not persuaded. It made clear that it was not prepared to act as a court of appeal for criminal matters, but that it was entirely within its jurisdiction to examine whether criminal justice processes, including trial and appeal, complied with the right to fair trial as enshrined under Article 7 of the African Charter. These cases further clarify what might already considered the African Court’s clear position; the African Court will not act as an appellate court but it is in no way barred from considering allegations of human rights violations emerging from criminal justice systems. AU Member States will need to work harder than simply saying that the African Court should respect domestic appeal judgements in future cases.

Tanzania also attempted to thwart both claims on issues of admissibility. Under the African Court Rules and African Charter applications must comply with eight conditions in order to be considered admissible. These conditions include two which are almost always raised by AU member states as reasons to find applications inadmissible: exhaustion of local remedies and the filing of applications within a reasonable time after those local remedies are exhausted.

In terms of exhaustion of local remedies, Tanzania raised arguments familiar to African Court followers; that the applicants had failed to properly avail themselves of all domestic remedies. Every country facing an application before the African Court to date has raised this as a reason why the case cannot be considered. In these cases, Tanzania argued that the applicants still had the option to lodge constitutional challenges before the Tanzanian High Court. This argument was however swiftly dismissed by the African Court, as it has done previously.

Tanzania’s submission that the applications were time-barred do however deserve a little more examination. As mentioned above. the African Court Rules and the African Charter set out that to be admissible, an application must be filed within a reasonable time from when local remedies were exhausted or from a date which the African Court deems appropriate. It does not however set out a timeframe. Interestingly, in Jonas although the Court of Appeal rendered its decision in March 2009 the African Court declared that the clock did not start ticking on the reasonable timing of the application until March 2010 when Tanzania signed the Additional Declaration that allows individuals and NGOs direct access to the African Court. This decision has the potential to considerably effect on future applications, since it ensures that claimants will not be time barred simply because member states dragged their heels on fully signing up to the African Court- something every AU Member State bar eight is guilty of.

Taking the starting point then as Tanzania’s signature of the Additional Declaration, the African Court found that the petition had been filed 5 years, 1 month and 12 days since after; a not insubstantial amount of time. Looking to the previous case of Abubakari, the African Court recalled that in assessing whether an application was filed within this undetermined “reasonable time” it will consider whether the applicant was incarcerated, indigent, did not have access to free legal assistance, illiterate, and unaware of the existence of the African Court due to its relatively recent establishment. This non-exhaustive list provides the African Court with a large degree of flexibility that can allow relatively large temporal gaps to be overcome. In this case, given that Jonas met many of the same circumstances listed in the Abubakari case, the period of five years, 1 month and 12 days was deemed reasonable for filing a petition before the African Court. Similarly, in Onyachi and Njoka gaps of three years and two months and about seven months were also considered reasonable.

The African Court Found Violations

Having found that it had jurisdiction to consider the cases and that both cases were admissible, the African Court went on to consider the meat of the applications; the alleged human rights violations themselves. In both cases the African Court made short work of claims that the imposition of a 30 year sentence for armed robbery were in violation of Article 7(2) of the African Charter since Tanzanian law clearly proscribed a minimum of 30 years for this crime. In Onyachi and Njoka, the African Court also rejected claims concerning their extradition and transfer from Kenya to Tanzania since Kenya was not within its jurisdiction.

Onyachi and Njoka did however enjoy more success on their claims relating to the identification parade that formed the basis for their convictions. Here, the African Court found that the way the identification parade occurred; with images of the applicants distributed on local television and newspapers just before the identification parade took place, made the procedure unsafe and therefore in violation of Article 7(1) of the African Charter. Similarly, the African Court found that the Tanzanian courts had failed to give “due and serious consideration” to Onyachi’s and Njoka’s alibi defence and was therefore a further violation of Article 7 (1) (c) of the African Charter. The African Court’s decisions that these two elements of Onyachi and Njoka cases violated the African Charter further bolsters the court’s ability to review criminal procedure as it stacks up against a Member States’ ongoing obligation to adhere to the African Charter.

In both Onyachi and Njoka and Jonas the African Court also found violations of Article 7 of the African Charter concerning the provision of legal representation. All the applicants made claims concerning Tanzania’s failure to provide free legal representation during the entire process of trial and appeal. The African Court followed its previous decision in Thomas, in which it found that provision of legal aid is a right implicit in the right to defence enshrined in Article 7(1) (c) of the African Charter.

The African Court reiterated that the two requirements for provision of free legal aid were: (i) indigence; and (ii) interests of justice. In assessing whether these requirements were met the African Court considered several circumstances including: (i) the seriousness of the crime alleged; (ii) the severity of the potential sentence; (iii) the complexity of the case; and (iv) the social and personal situation of the defendant. In appeal cases, the African Court also looked at the substance of the appeal, such as requiring a certain level of legal knowledge or skill, and the nature of the entire proceedings, such as considerable disagreement on points of law, or fact in the judgements of the lower court.

The African Court concluded that if these conditions exist then free legal assistance should be provided in trial and appellate proceedings as part of the right to fair trial guaranteed under the African Charter. It’s worth noting that Onyachi and Njoka were represented at trial and the first level of appeal, to the High Court. They were not however represented in the appeal to the Court of Appeal. Since they were indigent, included a large number of witnesses and several points of law requiring legal skills which lay persons could not be expected to possess, and the case involved a 30 year prison sentence for serious crimes, the African Court found that both the “indigent” and “interest of justice” requirements were met.

In Jonas, Tanzania adopted a slightly different tack, and argued that legal assistance was available under Tanzanian law but the applicant had never asked for it. The African Court found however that Tanzania should have done more than simply have the possibility of free legal assistance on the books; it should have offered Jonas proprio motu the free services of a lawyer throughout the judicial procedure. In both cases, the African Court therefore found Tanzania in violation of Article 7(1) (c) of the African Charter. This approach is very much in line with the Thomas and Abubakari decisions but may even take things further. It seems to indicate firstly, that legal representation must be provided throughout the criminal process including appeals to the highest courts. Secondly, it is not enough for AU Member States to point to provisions contained in legislation or policies for the free provision of legal assistance. They must do more, and actively offer that assistance to individuals in order to fully comply with the African Charter.

Lastly, on the right to a fair trial under Article 7 of the African Charter, it is worth noting that Onyachi and Njoka also brought a claim for the failure to provide copies of their Court of Appeal judgement until almost two years after the judgement was rendered. The African Court again found in the applicant’s favour, ruling that such an inordinate delay contravened Article 7 (1) of the African Charter, especially where the applicants faced a 60-day window from the time of the judgement being rendered to seek a review of the decisions; an impossible task without the judgement. On this point, an additional wrinkle is that the African Court found that the list of protections to a fair trial under Article 7 of the African Charter is non-exhaustive; a small point perhaps, but one that keeps open the possibility of new and inventive challenges to the right to fair trial before the African Court.

It should also be mentioned that the African Court also found violations of Article 6 of the African Charter (Right to Liberty) in Onyachi and Njoka. We don’t have space to examine this in much detail, other than to say that it found the immediate arrest of Onyachi and Njoka after their acquittal at the Magistrates Cout on similar charges based on the same facts was in violation of Article 6 of the African Charter; a welcome cautionary note to overzealous officials seeking to ensure those acquitted do not walk free.

Lastly, the African Court found that Onyachi and Njoka had failed to prove their allegations that they were detained incommunicado and without food after their Magistrates acquittal in violation of Article 5 of the African Charter. I mention this point since whilst this was no doubt a disappointment to the applicants, this section of the judgement came with a small silver lining. In assessing the claim, the African Court acknowledged that allegations of incommunicado detention are often difficult for applicants to prove since this kind of event tends to occur when “shrouded in secrecy” and “outside the shadow of law and public sight”. The African Court therefore found that it is not for applicants alone to shoulder the burden of proof on these types of issues. So whilst in this particular case the African Court was not convinced that the evidence demonstrated the existence of a violation, it is a welcome sight to see the court at least acknowledging the difficulties of bringing such application which can be seen as a positive step towards further similar cases in the future.

These Judgements do “not make pleasant reading for Tanzania”

Certainly, these judgements do not make pleasant reading for Tanzania. With these two cases building on the previous Thomas, Onyango et al. and Abubakari cases we now have a quintet of judgements demonstrating quite clearly how the Tanzanian criminal justice system has violated the African Charter. However, whilst not wanting in any way to absolve the problems Tanzanian faces, Tanzania’s continued dismal performance before the African Court must be put in some context. Only eight out of 55 AU Member States allow individuals and NGOs to bring cases directly before the African Court, making the percentage of Member States criminal justice systems that can be examined by the court very small. I suspect Tanzania would point to this fact in defending its criminal justice system in the face of the dubious honour of now owning five African Court judgements finding it in violation of the African Charter.

The statistics on access to the African Court cannot be denied, and this does limit the field in terms of access, but this should not serve as an excuse for Tanazania not to fully comply with these latest judgements. What is clear is that the African Court is saying that fundamental parts of Tanzania’s criminal justice system have not met the required standards as protected under the African Charter. Help is at hand though in the form of the judgements themselves, which should be carefully scrutinized by Tanzania in order to improve its criminal justice system and avoid further similar judgements. But expanding this beyond Tanzania, the African Court is also beginning to craft a framework that must be applied across Africa.

Decisions Can Apply Across the AU

Other AU member states must also take these decisions on board, since every AU Member State has ratified the African Charter and is required to ensure that its domestic legislation and policies are in compliance with it. What the African Court has done in these latest cases is to set out clearly a framework which can ensure a Member State can claim compliance with the African Charter. Every AU member state should be examining its criminal justice system based on the African Court’s findings. For the avoidance of doubt, issues top of the list should include: (i) free legal representation for all accused at trial and appeal; (ii) the timely provision of trial judgements, appeal decisions and the like; (iii) due care and consideration given to the use of identification parades; and (iv) proper consideration of defences raised by accused. Should these provisions and others not be ensured, citizens and NGOs across Africa will have every right take copies of these latest African Court judgements and place them before domestic, regional and continental mechanisms to demand immediate and tangible improvements.

University of The Gambia Law Review: Call for Papers

Following on from my short post last week highlighting the Makwanyane Institute’s call for applications for its 2018 workshop (deadline 20th November, more details here), I am pleased to highlight another interesting opportunity. Below is the newly established University of The Gambia Law Review’s call for papers. All the details are set out below on how you can contribute a paper to its inaugural issue looking at the concept of the “New Gambia”. I would urge all our readers to read and consider submitting a paper. Just to make clear, I have no affiliation with the University of The Gambia, or its Law Review, beyond helping if I can and wanting to spread the message on what appears to be a great new inititiative. Enjoy! OW

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University of The Gambia Law Review: Call for Papers

Issue 1: The New Gambia

Theme

Since the recent inauguration of President Adama Barrow, the Gambia has renewed its commitment to the International Criminal Court, sought to re-join the Commonwealth, held legislative elections approved by international observers, and undergone processes towards establishing a truth, reconciliation and reparations commission. Transitional justice measures and infrastructural developments are complementary efforts towards a broader human rights movement that seeks to establish the Gambia as the human rights capital of Africa. Hosting Africa’s flagship human rights institution, the Gambia is the newest sub-Saharan democracy, with the subsequent potential to significantly advance the contemporary, international legal sphere. The immense opportunities and challenges possessed by the ‘New Gambia’ therefore centre upon the creation of laws, institutions and values that are necessary to protect human rights and advance the rule of law.

​The redrafting of the Gambian Constitution amidst increased patriotism and optimism may produce new hopes and fears of justice and impunity. Yet, social issues such as rural to urban migration, poverty, youth unemployment, women’s rights, education and health persist. Thus, here lie the legal and political tasks of the ‘New Gambia’: To reform political peace with dialogue and freedom of expression; to facilitate a culture of possibility and widened economic revenue; and to establish values of justice and human rights amongst remnants of an old Gambian order.

​The Faculty of Law aims to advance recent efforts towards democratic processes and good governance in The Gambia through legal education by strengthening academic credentials and promoting the potential of the legal community. As such, The University of The Gambia Law Review is calling for academic articles, student commentaries and activist contributions that cultivate and critique the concept of a ‘New Gambia’ from varying domestic and international, legal, political and developmental perspectives. Ideas may be based upon, but are not limited to, the following:

  • Transitional justice
  • International human rights law
  • The Gambian Constitution
  • Migration
  • Poverty, unemployment and social exclusion
  • Religion, culture and tribalism
  • The Truth and Reconciliation Commission
  • Gambia and the International Criminal Court
  • Freedom of expression
  • Political pressures in new governance

 Deadline

The applications process is now open.

The deadline for final submission of papers is 15th March 2018.

Authors should submit a first draft of their article no later than this date. The quality of the papers will be screened by the team of editors, whom may request amendments.

Successful authors will be notified by email.

Submission

 All articles, commentaries and contributions must adhere to the Law Review Guidelines. Once complete, papers should be sent to lawreview@utg.edu.gm.

Format

Main text font must be Arial, size 12, and justified with 1.5 line-spacing.

Footnotes must be Arial, size 10, and left-aligned with 1.0 line-spacing.

Articles must be 5,000 – 8,000 words, including footnotes.

Each article must have a 300-word abstract.

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Makwanyane Institute Call for Applications

I am pleased to share with our readers the Makwanyane Institute’s call for applications for its 2018 workshop. The institute is located at Cornell University Law School in the USA. I know of several lawyers who participated last year and had a wonderful time. All the details are below- please note the deadline for applications is 20 November 2017. OW.

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The Cornell Center on the Death Penalty Worldwide is pleased to accept applications for its second Makwanyane Institute, an intensive training workshop for capital defenders, that will take place in the USA from June 18 to 28, 2018. Named in honor of the South African Constitutional Court’s seminal decision abolishing the death penalty, the Institute will offer fifteen Fellows the opportunity to participate in specialized training, litigation support, and community-building.

The Institute invites applications from criminal defense lawyers practicing in common law jurisdictions in Africa, including Botswana, Cameroon, Gambia, Ghana, Kenya, Liberia, Malawi, Nigeria, Sierra Leone, South Sudan, Tanzania, Uganda, Zambia, and Zimbabwe. Applications are due November 20, 2017.

The 2018 Makwanyane Fellows will travel from June 18 to 28, 2018 to Cornell University Law School in the USA to be trained and mentored by a team of leading experts in death penalty representation in the US and internationally. Fellows will be expected to organize follow-up trainings in their country of practice.

Airfare, accommodation, and meals are provided for Makwanyane Fellows.

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You can find the application form and more information here. The completed application form should be returned by email to deathpenaltyworldwide@cornell.edu by November 20, 2017.

On the Road: African Court Sensitization Missions

News reaches us that the African Court will be conducting its latest sensitization mission to Guinea-Bissau next week (14-15 August 2017). With this in mind, I thought it would be a good opportunity to reflect on the objective of sensitization missions and their effectiveness.

According to the African Court, the main objective of sensitization missions are to enhance the protection of human rights in Africa. Specific objectives include raising public awareness about the African Court, encouraging the ratification of the African Court Protocol and the deposit of the Additional Declaration, sensitizing would-be applicants on how to access the African Court and encouraging the utilization of the African Court to render advisory opinions.

From what I can determine, since 2014 the African Court has conducted six such sensitization missions:

  1. Ethiopia (November 2014)
  2. Benin and Togo (May 2015) 
  3. Lesotho (July 2015)
  4. South Africa (October 2015)
  5. Chad (December 2015)
  6. Egypt and Tunisia (April 2017)

(somewhat strangely, I cannot find records of any sensitization missions in 2016?)

All these missions tend to follow a similar pattern, including meetings with senior politicians, judiciary and other important stakeholders. Missions also feature engagement with civil society in the form of workshops or seminars. Representation tends to be fairly small, often comprising three African Court judges plus registry staff.

On one hand, I think these visits can be seen as positive in and of themselves simply by taking the African Court out of Arusha and into AU member states. However, perhaps the biggest question is to their effectiveness. Put simply, given the financial cost and use of staff resources, are these visits making any difference? Well, if we take our six missions again and plug in the member states’ actions (or inactions) since their sensitization visit we see the following:

  1. Ethiopia (November 2014) No Change– Still not ratified the African Court Protocol
  2. Benin and Togo (May 2015) Benin: Change– deposited Additional Declaration in February 2016; Togo: No Change– ratified African Court Protocol, yet to sign Additional Declaration
  3. Lesotho (July 2015)  No Change – ratified African Court Protocol, yet to sign Additional Declaration
  4. South Africa (October 2015) No Change– ratified African Court Protocol, yet to sign Additional Declaration
  5. Chad (December 2015) Change: Ratified African Court Protocol in January 2016, yet to sign Additional Declaration
  6. Egypt and Tunisia (April 2017) Egypt: No Change– Still not ratified the African Court Protocol; Tunisia: Change– Tunisia signed the Additional Declaration in April 2017

There are a number of caveats to this exercise. These results only document signatures and ratifications, and do not take into account behind the scenes negotiations that may contribute towards future ratifications and signatures. They also do not reflect member states’ prior intentions- for example a member state that was going to sign anyway. Still, looking at the results even with these caveats, it is hard to ignore that change occurred in three out of eight countries targeted.

I think the word “targeted” is important here. From my discussions with African Court officials and others, there is a sense that the African Court cannot and should not engage the entire continent at once. Simply put, the African Court has neither the staff or budget to roll out a continent wide campaign. Rather, utilising these sensitization missions allows the African Court to make an intentional sortie into a country or region. This foray then aims at building support and raising the African Court’s profile, whilst securing ratification and/or signature in a piecemeal fashion. Of course, with 55 African Union member states, this approach runs the risk taking a very long time to achieve its goal. But looking at the exercise above, the results are fairly positive. Lets hope this latest visit yields further change.

With this in mind, if you are planning to participate or be involved in the African Court’s Guinea-Bissau mission and would like to share your experience please contact me. I would be very interested to hear any news on how the trip was received, its effectiveness and lessons that could be learned – contact details can be found on the about us section of the website.

Thanks for reading!

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