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I am delighted to confirm that I have been added to the list of Specialists at the Rule of Law Expertise Programme (ROLE UK) and I thought readers might be interested to know more about this new initiative.

ROLE UK is a new project funded by the UK Department for International Development (DFID). It aims to improve the rule of law in DFID priority countries (which include Democratic Republic of Congo, Ethiopia, Ghana,  Kenya, Liberia, Malawi, Mozambique, Nigeria, Rwanda, Sierra Leone, Somalia, South Africa, Sudan, South Sudan, , Tanzania, Uganda, Zambia and Zimbabwe) by facilitating access to specialist UK legal and judicial expertise.

Specialists offer information, advice, mentoring, training or other assistance to improve the policies, capacity and practices underpinning the rule of law in 27 jurisdictions around the world.  The programme also shares learning and best practice to support  improved collaboration of pro bono working and rule of law programming  across government, private practice and the third sector.

I think ROLE UK has the potential to have real impact in Africa and beyond. To find out more go to the ROLE UK website here.

As many readers will know, I founded The Monitor in January 2014 with the aim of providing news, comment and debate on the African Court on Human and Peoples’ Rights. Why? Because I believe the Court has the potential to be one of the most important courts in the world, yet there seemed no dedicated outlet for discussion and analysis of the Court’s work.

With this in mind, I am so pleased that over the past few years The Monitor has established itself as a place that prospective applicants, academics, lawyers and anyone else interested in the Court can come for independent and accurate information and analysis on the Court. But I can only do so much, and over the past few months I have felt the need to grow The Monitor and add more staff to do justice to the Court’s development and the Monitor’s followers.

I am therefore delighted to introduce Tétévi Davi, pictured here, as Junior Editor of The Monitor. Tétévi holds a degree in Law with French from the University of Nottingham and an LLM from the University of Maastricht, where he wrote his thesis on Transitional Justice in West Africa. He has worked at the International Bar Association’s Human Rights Institute in London and recently completed an internship in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia.

I will continue to write on the Court’s developments as always, but with Tétévi on board I hope we can increase the content of the site, bringing some fresh and creative ideas to the table. Tétévi kicks off his time at The Monitor with a summary of the recent Konaté reparations judgement, which will be available from tomorrow.

As always, if readers have ideas and suggestions for how the site can be improved please do get in touch.

Things have been a little slow at The Monitor over the past few weeks but I am pleased to say we have a number of exciting pieces planned over the summer.

The first is to share with you The Monitor’s recent communication to the African Commission on Human and Peoples’ Rights following its call for public consultation on its Zero Draft of the General Comment on the Right to Redress for Victims of Torture or Ill-treatment under Article 5 of the African Charter on Human and Peoples’ Rights. The draft seems to be no longer available but a press release on its drafting is available here.

The comment, which comes in the form of a letter, is (hopefully) fairly self-explanatory. In essence, the draft currently makes no reference to the potential role of the African Court as part of a comprehensive framework of available remedies to victims of torture or ill-treatment. Of course this role can only be fully empowered if AU member states ratify the African Court Protocol and the Article 34(6) Special Declaration. Our comment therefore urges the African Commission to urge AU members states to do just that, and allow the African Court to form part of the remedies available to all victims of torture across Africa.

Please read the letter below. I hope that the African Commission has the opportunity to read our comments and can include in the next draft reference to the important role that the African Court can play.

Download (DOC, 87KB)

 

 

 

 

 

It promised to be a big day for the Court and so it proved, with the rendering of four judgements and one ruling. The Monitor will be delving into all five decisions over the next couple of weeks, but in the meantime here’s a snapshot of what happened today:

• Frank David Omary v. Tanzania– Court not persuaded by “new evidence” – 2014 judgement remains in force

• Mohamed Abubakari v. Tanzania– Violation of Article 7 African Charter and Article 14 ICCCPR

• Lohé Issa Konaté v. Burkina Faso – Reparations ruling- $70,000 awarded

• African Commission on Human and Peoples’ Rights v. Libya– Violation of Articles 6 and 7 African Charter

• Ingabire Victoire Umuhoza v. Rwanda– Rwanda’s Article 34(6) Special Declaration withdrawal subject to 12 month notice period and will not affect current and pending cases

Look out for our analysis on all these decisions in the coming weeks!

Tomorrow the Court will render judgement in four cases and hand down one ruling, and its promising to be a huge day.

Likely, most eyes will be on the Ingabire v Rwanda judgement. As many readers will be aware, in January 2013 Rwanda signed the Article 34(6) Special Declaration that allows individuals and NGOs with observer status direct access to the Court. Under this provision Victoire Ingabire brought a case against Rwanda alleging violations of several African Charter rights. On the day of the Court hearing, news broke that the Court had suspended the matter following reports that Rwanda was seeking to review its Special Declaration status. As I have written previously here and here, the whole issue appears somewhat confused. It is not entirely obvious whether Rwanda was intending to “review” its commitments or simply withdraw, whether Rwanda can withdraw or if it can withdraw and whether any withdrawal should apply to pending cases.

What is clear, is that the Court is now under huge scrutiny as to how it will handle the matter, especially since this is the first time it has examined such an issue. Will the Court allow Rwanda to withdraw? if it does, will the Court still consider pending cases? Clearly this decision will have much wider repercussions for the Court, with AU member states very likely to be casting a curious eye over the judgement. For current Special Declaration member states (Mali, Cote D’Ivoire, Burkina Faso, Tanzania, Malawi, Benin and Ghana) the interest may lie in the flexibility (or not) the Court gives Rwanda, bringing with it the potential for member states who have signed the Special Declaration to prevent damaging or difficult cases from coming before the Court by withdrawing or “reviewing” their status. For those member states yet to sign the Special Declaration, the Court’s decision may help solidify either their opposition to signing the Special Declaration (if for example Rwanda are not allowed to withdraw, or perhaps a time limit is imposed) or potentially persuade more member states to sign up, especially if Rwanda is allowed to withdraw in some form. High stakes indeed.

The other cases are also very interesting. We have the African Commission v Libya case which has been rumbling on since 2012. As I have written here and here, the Court has continued to valiantly issue orders seeking to protect the African Charter rights of Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, even if such orders are cast into an apparent void, since Libya has failed to acknowledge the Court so far. An interesting wrinkle is that the case was transferred to the Court from the African Commission, so hopefully we may see a little more discussion from the Court on how and why the Commission decided to transfer the case and whether the Court applies any particular test or standard when considering a case from the Commission rather than directly from an individual or NGO. It will also be fascinating to see how the Court handles the general complaint, given that matters have moved on significantly since the application was first lodged before the African Commission in 2012.

The Court will also deliver its reparations judgement in the Konate v. Burkina Faso case. This will be the Court’s third reparations judgements after Mtikila (where no reparations were ordered) and Zongo (where significant reparations were handed out). The Konate case goes some way back, with judgement rendered in December 2014, when the Court found Burkina Faso in violation of several of the applicant’s African Charter rights with regards to his work as an investigative journalist. Hopefully, this long-pending reparations ruling will continue to add to the Court’s jurisprudence and continue to solidify this vital part of the Court’s work. We also expect a ruling in the Omary et al v Tanzania case. The Court’s website is not clear what this ruling will be on, but the Court has previously found the applicants had failed to exhaust local remedies, so this ruling may well be a continuation of this issue.

Lastly, the Court will render judgement on the merits in the Abubakari v Tanzania case. The Court’s website is frustratingly devoid of information on this case, but the African Legal Centre has a good summary of the case, which concerns the fair trial rights of the applicant, currently in the Tanzanian criminal legal system, who challenges a conviction and 30 year sentence for two counts of armed robbery. This judgement will add to the steady flow of cases such as Thomas v Tanzania and Onyango et al v Tanzania, in which the Court has examined the Tanzanian criminal justice system, and so far found it wanting.

All in all, tomorrow promises to be a big day for the Court. The Monitor hopes to be live tweeting tomorrow morning as the judgements roll out. Please be sure to follow us @acthpr_monitor to keep up to date.

The good people at Media Legal Defence Initiative (MLDI) have contacted me about an upcoming event that I thought Monitor readers might be interested in. From 8-11 August MLDI will be hosting an East Africa Freedom of Expression Litigation Surgery in Kampala, Uganda.

I have no formal connection to MLDI, but know their work on freedom of expression to be of the highest quality. Among many important cases, MLDI was crucial in bringing the successful case of Konaté v Burkina Faso before the African Court. I would encourage all eligible Monitor readers to consider applying.This event looks like a great opportunity for high quality training in an important and dynamic field of human rights. The call for applications is below, whilst more details can be found here.

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Call for Applications: East Africa Freedom of Expression Litigation Surgery 

8 – 11 August 2016, Kampala, Uganda

The Media Legal Defence Initiative (MLDI) is pleased to announce that it is calling for applications from lawyers based in Kenya, Tanzania, Uganda, Rwanda, and Burundi to participate in a forthcoming litigation surgery on the right to freedom of expression.

MLDI provides legal support to journalists, bloggers and independent media worldwide to enable them to continue with their reporting. A significant portion of MLDI’s work is currently conducted in the East African region. Consequently, MLDI is continually seeking to strengthen its network of lawyers to work within the region to further the regional freedom of expression framework.

Participants will be selected on the following criteria:

• The surgery is open to lawyers from Kenya, Tanzania, Uganda, Rwanda and Burundi;
• The lawyers can either be working in private practice, or be working for or be affiliated with NGOs promoting the right to freedom of expression in East Africa through litigation;
• Exceptionally strong applications from lawyers who have not yet undertaken freedom of expression work, but have experience litigating other human rights cases and have a strong interest in undertaking freedom of expression work, will be considered as well. A maximum of 12 participants will be selected;
• The lawyers must have a demonstrated interest in and/or knowledge of the right to freedom of expression and international and regional human rights law;
• The lawyers must be involved in, or considering, litigating a case that addresses violations of the right to freedom of expression. With their application, lawyers must submit a case study of a case that they are litigating or intend to litigate that could be discussed and workshopped during the litigation surgery.

Closing date for applications: Monday 16 May 2016

Shortlisted applicants will be notified soon after the closing date and should be available for Skype or telephone interviews on 6 to 8 June 2016.

For more information and the application form please visit http://ow.ly/10gBIE

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On 18th March 2016 the Court issued two sets of provisional measures, ordering Tanzania to refrain from executing several applicants on death row pending the outcome of their cases before the Court. This seemed like a good moment to review the Court’s powers to issue such provisional measures, its previous use of the power and offer some analysis on the latest orders.

What are Provisional Measures?

As the title of this blog post suggests, provisional measures enable the Court to issue interim binding orders, i.e. before full judgement is handed down, on AU member states subject to pending applications. This tool is particularly useful since it is common that cases before the Court take months and (most often) years between the initial application and the rendering of the judgement. In essence, they allow the Court to press the pause button on something happening that would render a full judgement moot, for example, the destruction of forest, or intervene in a matter where irreparable harm would occur before a judgement is rendered, such as in this latest case, the execution of an applicant.

The Court derives its power to issue provisional measures from Article 27 (2) of the Protocol and Rule 51(1) of the Court’s Rules. Article 27 (2) of the Protocol states that:

“in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.”

Whilst Rule 51(1) of the Court’ Rules states:

“Pursuant to article 27(2) of the Protocol, the Court may, at the request of a party, the Commission or on its own accord, prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice.”

Has the Court Issued Provisional Measures Before?

These Tanzania orders are not the first the Court has issued.The Court has used such measures in three previous cases, although their effectiveness is debatable,  since in two cases provisional measures appear to have had limited or no effect.

On 15 March 2013 in the case of The African Commission on Human and Peoples’ Rights v. Libya  the Court ordered provisional measures in response to an application by the African Commission instituting proceedings against Libya alleging violations of the rights of Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi. The Court exercised it powers to order provisional measures in an attempt to force Libya to refrain from instigating judicial proceedings that would impinge on Gadaffi’s fair trial rights. Having issued provisional measures the Court gave Libya 15 days to report back. Libya ignored the order. Then, in August 2015 the Court issued a further order in response to the reports, for example here and here, that Libya had put Gaddafi on trial and sentenced him to death. In this second order the Court set out in detail its attempts to get Libya to comply with its 2013 order and states clearly that Libya’s refusal to comply with the provisional measures and proceed with Gaddafi’s trial was in contravention of its obligations under the Charter, the Protocol  and other international instruments.Until now Libya has failed to respond to this renewed order too. You can read more about this case in my previous post here.

In the pending case of African Commission on Human and Peoples’ Rights v. Kenya, the Ogiek people of the Mau Forest in the Rift Valley, Kenya claim that the Kenyan Government is evicting them from their ancestral land under the auspices of a Kenyan Forestry Service notice to conserve the forest as a ‘reserved water catchment zone’. The Ogiek argue that this eviction will have far reaching consequences on the political, social and economic survival of their community. While still pending, the Kenyan Ministry of Lands issued a directive lifting restrictions on the transfer of small parcels of land in the Mau Forest effectively allowing the forest to be taken out of the hands of the Ogiek people. On 15th March 2013 the Court used its provisional measures powers to order Kenya to immediately reinstate restrictions on the transfer of land in the Mau Forest. I have written about this case before, and have yet to hear anything of Kenya’s compliance with the provisional orders. Indeed the International Network for Economic, Social and Cultural Rights (ESCR-Net) latest report on Kenya’s treatment of the Ogiek people and their land appears to show Kenya’s failure to comply with the Court’s provisional measures order. (Of course please do contact me if you have any information on either the Libya or Kenya case and I will gladly update the post).

In perhaps the most successful example of the Court using its powers to make provisional measures so far, in the Konaté v. Burkina Faso case, following an application for provisional measures by Konaté, the Court ordered Burkina Faso to provide him with medication and healthcare whilst in detention. Having contacted the MLDI who represented Konate in his case before the Court, I understand that the provisional measures order was issued shortly before the completion of Konaté’s prison term, so whilst Burkina Faso was possibly willing to comply, there was not much time for it to do so.

What Do These Latest Two Cases Involve?

The two latest cases are similar in nature and concern applications from convicted persons on death row in Tanzania. The case of Guehi v Tanzania concerns a Cote D’Ivoire national sentenced to death in March 2010 for murder, a conviction that was confirmed by the Tanzanian Court of Appeal in February 2014. Guehi claims his right to a fair trial has been breached including a lack of translation of case papers into French at key stages of this trial and a lack of consular assistance, bringing claims under Article 7 of the Charter (right to fair trial) and Article 14 of the ICCPR (again, right to fair trial).

Rajabu and others v Tanzania relates to five applicants facing execution following convictions of murder. Similar to Guehi, the applicants here allege numerous breaches of their right to a fair trial, contrary to Article 7 of the Charter and Article 14 of the ICCPR, but refers to the misuse of identification evidence as well as procedural deficiencies.

Citing the Libya case discussed above, in both cases the Court made clear that to issue provisional measures the Court need not satisfy itself that it has jurisdiction on the merits of the case, only that it need satisfy itself that prima facie it has jurisdiction. Given that Tanzania has signed the Charter, the Protocol and the Article 34(6) Special Declaration allowing individuals and NGOs direct access to the Court, this prima facie case is made out, although it is perhaps not entirely clear what the difference is between this “prima facie” assessment and the assessment that must be undertaken when considering the merits of the case at the judgement stage.

What Conclusions Can We Draw?

The Court’s reasoning in both cases is sparse, which is typical of the Court’s issuance of provisional measures in previous cases. In both, the Court calls for Tanzania to refrain from carrying out the death penalty until the completion of their cases as there exists a situation of “extreme gravity” and that execution would do “irreparable harm” to the persons, thus hitting the buttons required under Article 27 (2) of the Protocol.

It is interesting to note that in neither case did the applicant’s request provisional measures, the Court instead issuing the orders proprio motu. This position is similar to the Libya and Kenya cases above and is a timely reminder that the Court will step in an use its powers even where the applicants themselves have not requested them and demonstrates the Court’s inherent ability to make quick(ish) decisions amidst the slow process of rendering a judgement on the merits.

As a side note to the provisional measures themselves, the Guehi case in notable as it is likely to be the first cases considered on its merits involving a citizen of a country other than that the application is brought against, with Guehi from Cote D’Ivoire and the application against Tanzania. Whilst this is unlikely to cause a problem at the judgement stage it is nevertheless worth looking out for when the judgement is issued.

The timing of the order is also interesting. The decisions themselves do not shed any light on why the Court is now issuing these provisional measures  instead of when the Court received the applications in  January and March 2015, respectively, although it is possible the Court may have received information that execution was imminent, thus prompting them to act.

As for the enforcement of these provisional measures, Tanzania could comply relatively easily since the provisional measures only request Tanzania not execute the applicants, and gives no other orders requiring any additional effort from Tanzania for example on improvement of prison conditions. Given  the relative ease of compliance, coupled with the battering Tanzania’s criminal justice system has taken from the Court in the past year in Thomas v Tanzania and then Onyango et al. v Tanzania,  in both of which the Court found numerous breaches of the applicants right to fair trials, I would suggest it would be highly unlikely that Tanzania would ignore these orders and go ahead with the execution of the applicants. Hopefully therefore the applicant’s status will be preserved. Of course, if any readers have information on the enforcement of the provisional measures please contact me and I will gladly update the post.

Editorial note: This piece was originally posted on 11 April 2016. The post was updated on 25 April 2016 adding reference to the new report on the Ogiek people by the ESCR-Net, and further clarification on the Konaté provisional measures. My thanks to the ESCR-Net and MLDI for their assistance.

As always, the views expressed herein are those of the author(s) and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author(s).

As regular Court followers will be aware, much ink has been spilled, or probably more accurately keyboards worn down – including at The Monitor– with last month’s news that Rwanda had withdrawn its Article 34(6) declaration which allows individuals and NGOs with AU observer status direct access to the Court (Special Declaration). For those new to the issue, news broke on the day the Court was due to hear the high-profile case of Victoire Ingabire that Rwanda had withdrawn its Special Declaration and the Ingabire case was therefore halted. Exactly how Rwanda had withdrawn and whether the Court was suspending or terminating matters was unclear. What is clear is that Rwanda’s move caused turmoil among Court observers, who have raised questions over whether Rwanda can actually withdraw, if it can then when such a withdrawal takes effect, what effect it has on other Rwandan cases, how the Court will handle the matter and what it means for the future of the Court.

As I have previously suggested, the crucial question in the fall out of this unprecedented development is how the Court will handle Rwanda’s move, with the answer likely in the form of a written judgement or order. Whilst we wait for this, on 18th March the Court issued an interim-type order which provides us with a little bit more information on the withdrawal and the Court’s approach to the issue. The Order is well worth reading in full (in its present state its 10 pages) and raises some interesting issues. Here are five points to consider:

(1) The Order confirms Ingabire’s efforts to adjourn the matter. The Order does not go into detail as to why, but it appears Ingabire’s adjournment request had little to do with Rwanda’s withdrawal of its Special Declaration and everything to do with problems preparing the case for hearing. Despite this seeming disconnect, the Court appears to use Ingabire’s request in its later determination to allow Ingabire to provide submissions on Rwanda’s withdrawal. Despite no link between Ingabire’s attempts to adjourn and the withdrawal of the Special Declaration, it is nevertheless interesting to note that Ingabire and her legal team will have the chance to present full submissi0ns on Rwanda’s withdrawal.

(2) We learn a little more about the nature of Rwanda’s “withdrawal”. And to my mind anyway, its a little confusing. The Order states that Rwanda notified the Court of “withdrawal of its Declaration made under Article 34(6)…”. The Order goes on to quote Rwanda’s withdrawal letter itself, and I re-quote it here:

“The Republic of Rwanda requests that after deposition of the same, the Court suspends hearings involving the Republic of Rwanda including the case referred above [Ingabire, presumably] until review is made to the [Special] Declaration and the Court is notified in due course”

What we therefore seem to have is not so much a “withdrawal” but a suspension of hearings until a “review”, presumably by Rwanda itself, is completed. The result of this review will be communicated to the Court. If this is correct, Rwanda seems to be asking the Court to suspend Rwandan cases until it has reviewed the Special Declaration and what it wants to do with it, rather than withdraw its Special Declaration. Yet the preceding wording very clearly uses the term “withdraw”. Is it possible to withdraw the Special Declaration pending review, akin to a temporary withdrawal? The Court may well have to answer this before addressing the affect of the withdrawal.  In any event, since Rwanda must have “reviewed” the Special Declaration at the time it deposited (it cannot claim to have signed up without reading it and understanding what it means?) I suggest Rwanda will be reviewing how the Special Declaration has been used by applicants since it was deposited. It will be interesting to see if Rwanda does indeed attempt to withdraw after this review based on how, or rather who, used the access afforded by the Special Declaration rather than the notion of the Special Declaration itself. It is also worth noting that the Order does not state how long Rwanda needs for this review, perhaps because the Order does not seem to take much notice of this Rwanda’s pronouncement, instead setting out a time line for submissions without taking into consideration Rwanda reviewing the Special Declaration.

(3) We get a possible insight into Rwanda’s no-show at the public hearing. And again its rather confusing. Following Rwanda’s letter of withdrawal, the Court seems to have informed all parties that the public hearing would still go ahead on 4 March 2016. In response, on 3 March 2016, Rwanda stated, which is again quoted in the Order and which I again re-quote, the following:

“Without prejudice to the foregoing, I respectfully request the Hon. Court. if not granting the Respondent’s request made on 2nd March 2016 [the suspension of cases pending the review] to allow the Respondent being hearing on its request before a Court Order can be made”

This seems to be a request from Rwanda that if the Court will not suspend Rwandan cases as a result of its letter of withdrawal, that it be heard on the matter. But Rwanda did not turn up for the public hearing the very next day. Given that Rwanda seemingly had no way of knowing at the time of the public hearing whether the Court would grant its request in the withdrawal letter to suspend Rwandan cases, it seems strange that Rwanda would explicitly request an opportunity to address the Court, and then not turn up. What I previously described as a “gutsy” move by the Court to hold the public hearing knowing that Rwanda would not attend, becomes a little more confused in light of Rwanda’s request to be heard on the matter. Was the Court, based on the letter it received from Rwanda requesting a hearing, fully expecting Rwanda to be in attendance? Was Rwanda playing an enormous game of chicken, and if so did the Court know it was playing too?

(4) Everyone gets 15 days to file submissions. What is not known is how this time limit accords with Rwanda’s “review” of the Special Declaration or whether it will ask for more time. Given that Rwanda seemed to be asking for a hearing on the matter, is is possible Rwanda had already conducted this “review”? Either way, taking the date of the Order, 18th March, and counting working days only, all submissions should be filed by Friday 8th April.

(5) The Order was not unanimous. The Order states that Judge Ouguergouz and Judge Achour dissented, but the Order currently available from the Court is missing Judge Ouguergouz’s dissent (once I have this I will update this post). Judge Achour takes the position that the Court need not have issued this Order at all and that Rwanda’s withdrawal should be dealt with in the final judgement on the merits rather than in a separate decision. Judge Achour’s dissent also makes the point, as  made here in my last post on the matter, that Rwanda responded to the application on the merits until right before the public hearing, indicating a possible change in tactic from compliance to withdrawal. There is also an interesting difference between Judge Achour’s dissent and the Order. In his dissent Judge Achour recalls the final judgement will be handed down at the Court’s 41st Ordinary session. Yet, the main order says only that the main judgement will be handed down “at a date to be duly notified to the Parties”. It appears that Judge Achour may be quoting a previous draft of the order, and that the final version stepped away from giving such a definitive timeline. Either way, the Court’s 41st Ordinary Session will be worth watching as a possible time for the rendering of the judgement.

In conclusion, this Order sheds some light on Rwanda’s withdrawal of its Special Declaration, but it does not provide a great deal of clarity, possibly even adding some confusion to the mix. Perhaps the somewhat confusing timeline and requests detailed in the Order are the reason why the Court has invited further submissions; an attempt to clarify exactly what Rwanda has done and what it wants to do, since at present the notions of “withdrawal” and “review” raised by Rwanda do not sit easily together. What the Order does not do is provide much indication on which way the Court is leaning on this matter. The final order remains eagerly awaited.

As always, the views expressed herein are those of the author(s) and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author(s).

O heart! O heart! if she’d but turn her head,

You’d know the folly of being comforted

– WB Yeats, The Folly of Being Comforted

To whom does the above quote apply? Not just Victoire Ingabire, the Rwandan applicant who’s case was due to be heard on Friday, but perhaps the Court too. Indeed, no sooner was Ingabire’s case beginning than we learned from the Presiding Judge that the Court was suspending the matter. The reason? Rwanda has reportedly withdrawn its Article 34(6) Special Declaration that allows individuals and NGOs direct access to the Court.

Rwanda’s withdrawal is unprecedented. Until Friday, Rwanda was a member of a select group of eight AU member states that had not only ratified the Court’s Protocol but also signed the declaration allowing its citizens and NGOs direct access to the Court.

The timing is very interesting. Given the relatively high profile Victoire Ingabire enjoys, is this an attempt by Rwanda to simply prevent the Ingabire case being heard? If so, the timing could be seen as either clumsy in that it raised the profile of the matter beyond that which it may ordinarily enjoy, provocative given the Court itself is unlikely to be impressed, or deliberate as a way of sending a message to the Court, and possibly the African Union, on its attitude the Court. This last possibility would it in itself be interesting given that the Court’s case summary of the matter shows that rather than, say, simply ignore the matter or dismiss it out of hand, Rwanda had responded to the applicant’s case,  carefully setting out its arguments in particular with regard to failure to exhaust local remedies; why go to the lengths of setting out legal arguments against the  application, if Rwanda was simply going to withdraw its Special Declaration?

As to how the Court can proceed with Rwanda’s withdrawal, the Court’s Protocol is silent, setting out only how a member state can sign the Special Declaration and not how or even if it can be withdrawn. No doubt Rwanda will argue that it is free to withdraw the Special Declaration whenever it wishes, just as it is free to sign the Special Declaration whenever it chooses. This is probably true to a certain extent- the wording of Article 34(6) certainly allows for member states to sign up when they want. As Nani Jansen states in her excellent piece on Rwanda’s withdrawal, the European and Inter-American Court have “cooling off” periods to account for occasions where member states wish to withdraw, which the Court’s Protocol does not.With no specific terms in the Protocol, and without much in the way of material to imply such terms, in seems that Rwanda may be able to withdraw its Special Declaration for future cases with immediate effect.

The other, possibly more controversial, question is whether this withdrawal applies retrospectively to all matters currently before the Court , i.e. Victoire Ingabire’s case as well as the other pending cases involving Rwanda. Nani Jansen’s piece again suggests any withdrawal cannot be retrospective, and this will be a key issue for the Court to decide. Certainly at the time the pending cases were filed, the Court enjoyed jurisdiction. Before we can get a firm idea of how the retrospective issue will play out we will need to see the exact terms of Rwanda’s withdrawal; it could for example refer only to future cases, thus leaving pending cases within the jurisdiction of the Court, but this would seem unlikely.

As to how the Court will tackle the matter as a whole, it is interesting that the Court decided to hold the public hearing albeit without Rwanda in attendance. This feels like a gutsy move from the Court. Given that reports suggest the notification of the withdrawal came a few days before Friday’s hearing, the Court could have simply cancelled the hearing and put out a press release/statement. Instead, it went to the lengths of congregating and then formally suspending the matter. Perhaps I am reading too much into this, but it seems that this move sends a message that the Court will not simply sweep this matter under the carpet.

Of course the other issue will be how Rwanda’s actions will effect the remaining seven member states who are still signed up under Article 34(6), or for others signing the Special Declaration in the future? Do Rwanda’s actions give carte blanche to member states to sign and withdraw on an ad-hoc basis depending on the cases it faces before the Court? Naturally, we want to say no, but this is difficult to predict without more information. I would however suggest the biggest influence on other members states will now come from how the Court itself handles the matter. In many ways the Court cannot “do” anything. If Rwanda wants to withdraw its Special Declaration and no longer participate in cases involving individuals and NGOs the Court cannot force representatives to come to the Court or make representations.  However, if the Court considers Rwanda’s withdrawal to be contrary to the Protocol, either in spirit or as a contravention of the Vienna Convention on the Law of Treaties, the Court could continue with cases pending before it, including that of Victoire Ingabire. This would be a brave move by the Court and likely lead to not only significant legal issues but huge political ramifications as well.

Just to quickly zoom focus out from the Court itself for a moment though, it seems fair to say Rwanda has suffered a number of disappointing judgements recently, with both English and Dutch courts rejecting applications for extradition of alleged genocidaires in recent months on fair trial concerns (although I understand these are subject to appeal). Member states’ decisions on this Court can rarely take place in a vacuum, and whilst its always dangerous to squeeze too many disparate matters together to try and form a whole, is it possible Rwanda could not face going 0-for-3 on important decisions outside of Rwanda?

Of course, Rwanda’s ratification of the Court’s Protocol remains in place, meaning that it can still face cases transferred from the African Commission on Human and Peoples’ Rights, other AU member states or cases it refers itself. But, rightly or wrongly, the gang of eight (now seven) who have allowed its citizens and NGOs direct access to the Court are lauded by many as progressive AU member states. To lose one is therefore a blow not only to the Court but to human rights in Africa. These Special Declaration member states  can serve as an example to other member states on how to embrace the Court and all its stands for. It is therefore the nature of Rwanda’s withdrawal which might be of greatest concern; an 11th hour move just before a high profile case was to be heard.  Perhaps this reflects worse on Rwanda than the Court, but such a withdrawal no doubt feels doubly disappointing for many involved with the Court. In many ways Rwanda’s actions also potentially demonstrate a larger problem the Court faces; member states wanting a human rights court, but not wanting  to be brought before it themselves (the Ingabire case was to be the Court’s first involving Rwanda). We still need to know a lot more before we can make any definitive conclusions on what occurred on Friday. But whatever Rwanda’s potential concerns were over the Ingabire case or the Court itself, the Court has demonstrated that it considers cases transparently and, for the most part, with sound legal reasoning. Surely the way for Rwanda to deal with any potential issues concerning Article 34(6) would have been with the declaration still in force rather than to simply withdraw, if this indeed proves to be the case.

Reminder: As always, the views expressed herein are those of the author alone and do not necessarily reflect the views of any organisation affiliated to the author.

 

Note: The following is a review of 2015 at the African Court that first appeared as a guest post on Opinio Juris on 19 January 2016 here. If you have already read the Opinio Juris piece then there will be nothing new here, but I post it for our subscribers and those who maybe missed it on Opinio Juris.

Following some positive feedback from last year’s Opinio Juris guest post rounding up the activities of the African Court on Human and Peoples’ Rights in 2014, subsequently cross-posted here at the Monitor, I thought a review of some of the Court’s key 2015 events may be of interest.

For those who are not familiar with the Court, it was established by the African Union (AU) to hear cases relating to alleged violations of the African Charter on Human and Peoples’ Rights (African Charter) and other international human rights instruments. The Court is based in Arusha, Tanzania and is separate to its cousin the African Commission on Human and Peoples Rights. Two key instruments to keep in mind are the Court’s Protocol, ratification of which gives the Court jurisdiction to hear cases referred to it by the African Commission, from the country itself, from other AU members states and from African Intergovernmental Organizations. The other instrument is the “Special Declaration”, found in Article 5 (3) and Article 34 (6) of the Protocol, which must be signed by the member state in addition to the Protocol to allow individuals and NGOs from that member state to petition the Court directly.

May: the Court’s 37^th Ordinary Session

At its 37^th Ordinary Session the Court held public hearings in two cases concerning Tanzania. In Onyango et al v Tanzania the Applicants, all citizens of Kenya, allege they were kidnapped in Mozambique and taken to Tanzania where they were charged with murder and three charges of armed robbery. In Abubakari v Tanzania, the Applicant challenges a conviction and 30 year sentence for two counts of armed robbery. Judgement in both cases is pending.

June: Zongo and others v Burkina Faso reparations judgement

Having handed down judgment on the merits in March 2014 in Zongo and others v Burkina Faso, in which the Court found that with regards to the alleged assassination of investigative journalist Norbert Zongo and colleagues in December 1998, Burkina Faso violated several articles of the African Charter and Article 66 of the ECOWAS Treaty by failing to take measures to ensure the families of the deceased the right to be heard by a competent national court, the Court handed down its judgement on reparations. This judgement is the first in which the Court has awarded reparations to successful applicants. The judgement solidified the Court’s initial findings in June 2014 in the Mtikila v Tanzania reparations judgement that the Court has the power to award reparations to the victims of human rights violations. Zongo builds on this by actually doing so. In fact, the Court awarded the entire amount claimed in reparations by the applicants who consisted of the spouses, children and parents of the deceased. The Court also awarded a symbolic payment to the NGO who assisted in bringing the case and ordered costs for lawyer’s fees, travel and accommodation. As I have written elsewhere, the award of reparation should cement Zongo and others v Burkina Faso as another landmark case for the Court.

July: sensitization visit to Lesotho

 In July, the Court conducted a one-day sensitization visit to Lesotho. The main objective of sensitization visits being to enhance the protection of human rights in Africa and promote the Court and its activities. As the Court’s press release explained, Court officials met with various government officials, lawyers and NGOs. The visit saw further promises from both government and the NGO sector to work toward signing the Court’s Special Declaration that would individuals and NGOs in Lesotho direct access to the Court.

July: the EACJ ruled on the Court’s Special Declaration

In Democratic Party v Secretary General of the East African Community and others the Appellate Division of the East African Court of Justice (EACJ) ruled on whether signing the Court’s Protocol also creates an obligation on the member state to sign the Special Declaration. The EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the Court’s Protocol under the premise of the East African Community Treaty, the wording of Article 5 (3) and Article 34 (6) of the Protocol contained no requirement that a member state who signs the Protocol must also sign the Special Declaration. This important decision seems to preclude, at least for now, reading any obligations into signing the Protocol that are not clearly spelled out, and keeps the process for granting individuals and NGOs access to the Court a definite two stage process.

August: Cameroon ratifies the Court’s Protocol

In August, Cameroon ratified the Court’s Protocol, taking the number of AU member states who have ratified to 29. Still, only seven AU member states have signed the additional Special Declaration. The AU has a total of 54 members.

September: (Then) President Kikwete visits the Court

Tanzanian President Kikwete, as he was prior to Tanzania’s elections, visited the Court in September. During this visit Kikwete announced that Tanzania was pledging $100,000 towards the Court’s legal aid scheme, which was set up in July 2014. Sadly, some 14 months after the fund’s creation, Tanzania’s pledge appears to be the first and only such donation to the legal aid scheme to date.

October: sensitization visit to South Africa

The Court held a one-day sensitization event in South Africa, including an address by the Court’s President Justice Ramadhani encouraging South Africa, which ratified the Court’s protocol some 13 years ago, to make the Special Declaration. More information on the visit can be seen here and here.

November: 39^th Ordinary Session

The Court rendered its judgement on the merits in Thomas v Tanzania at its 39^th Ordinary Session, marking another success for an applicant before the Court, this time relating to fair trial rights.

The Applicant was convicted in Tanzania of armed robbery and sentenced to thirty years imprisonment, a sentence he was serving at the time of the application. The Court found that the trial process leading to the Applicant’s conviction and his subsequent attempts to appeal said conviction were riddled with violations of his right to a fair trial. In particular, the Court found Tanzania in violation of Articles 1, 7(1) (a) (The right to an appeal to competent national organs) , (c) (the right to a defence and counsel of choice), and (d) (The right to be tried within a reasonable time by an impartial court or tribunal) of the African Charter as well as Article 14(3)(d) of the ICCPR. However, despite finding these violations, the Court rejected his request for immediate release from prison, since he had not set out “specific or compelling circumstances”. Instead, it called on Tanzania to remedy the violations within six months, specifically precluding retrial or the reopening of the defence case as remedies, given that the Applicant had served 20 out of 30 years in prison; surely an indirect call by the Court for the Applicant to be released. Issues of costs and reparations have been postponed to a later date.

November: 2^nd Judicial Dialogue

The Court jointly organized with the AU the second “Continental Judicial Dialogue” which took place in Arusha. The event included delegates from AU member states, including Chief Justices, Presidents of Supreme Courts and Constitutional Courts, members of academia, national judiciaries and media. The theme of the three day event was “Connecting National and International Justice”. Interestingly, amongst the attendees were a number of judge from the Inter-American Court of Human Rights who shared their experiences of sitting on human rights cases.

December: sensitization visit to Chad and the results of the Court’s inaugural moot court competition

The Court undertook its third sensitization visit of the year to Chad. From this visit, we received the encouraging promise that Chad will sign the Court’s Protocol and, crucially for access issues, the Special Declaration. Although at the time of writing this has not yet happened, the public declaration will hopefully serve to see Chad go on to fulfil its promise sooner rather than later.

Finally, the Court announced the winners of its inaugural moot court competition, with Moi University in first place, the University of Zambia a close second and Makerere University third.

Conclusion

The Court continued to promote itself with sensizitation visits AU to Leshoto, South Africa and Chad, with this last visit resulting in the promise that Chad will sign the Court’s Protocol and Special Declaration imminently. Whilst there were also rumblings in Uganda about signing the Special Declaration, it is worth noting that no AU member state actually signed the Special Declaration in 2015, meaning further engagement with member states is clearly needed. On actual cases before the Court, applicants continue have a 100% success rate, having now gone a perfect 4-for-4 before the Court, showing that when jurisdictional issues are overcome the Court is not afraid to make findings against member states.

Above all, 2015 felt like a year in which the Court continued to mature and begin to seriously promote itself across Africa. The President of Court himself has been vocal in urging AU members states to sign the Protocol and Special Declaration allowing individuals and NGOs direct access to the Court as can be seen here, here, here, and here. Of course, what continues to hamper the Court is the number of individuals and NGOs who can actually access the Court. To make the Court a truly continental one, AU member states must sign up and embrace the Court in 2016 and beyond.

Reminder: The views expressed herein are those of the author alone and do not necessarily reflect the views of any organisation affiliated to the author.