The African Court on Human and Peoples’ Rights (Court) is currently holding its 28th Ordinary Session at its seat in Arusha, Tanzania through March 15, 2013. The Court, whose mandate is complementary to that of the African Commission on Human and Peoples’ Rights, has announced it expects to focus on several cases during the session.
A New Judge Joins the Court
Prior to the opening of the Court’s session on Monday, Kimelabalou Aba was sworn-in as a judge of the Court. A Togolese national, Justice Kimelabalou Aba was previously President of the Court of First Instance, a trial court, in Vogan, Togo. Earlier, he worked as a prosecutor, then judge, at the Court of First Instance in Lomé.
The Court is composed of eleven Judges who are nationals of African Union Member States and typically serve six-year terms. Justice Kimelabalou Aba was elected on January 28, 2013 by the 20th Ordinary Session of the Assembly of Heads of State and Government of the African Union. He is assuming a vacancy left when Justice Joseph Nyamihana Mulenga passed away last August; as such, Justice Kimelabalou Aba’s term will last only eighteen months.
The Beneficiaries of the Late Norbert Zongo et al. v. Burkina Faso
During two days of the 28th Ordinary Session, the Court will hold a public hearing on Application No. 013/2011– The Beneficiaries of the late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest Zongo, Blaise Ilboudo, and the Burkinabe Movement for Human and Peoples’ Rights v. the Republic of Burkina Faso. The application concerns the 1998 assassinations of investigative journalist Norbert Zongo, his associates Abdoulaye Nikiema, Ernest Zongo, and Blaise Ilboudo and brother, Ernest Zongo. The case was received by the Court in December 2011.
Mr. Zongo was killed after his newspaper began investigating the murder of a driver who had worked for the brother of President Blaise Compaoré. The government of Burkina Faso is alleged to have violated provisions relating to the rights to life, judicial protection and freedom of expression found in the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights. The Court’s hearing will focus on the preliminary objections raised by Burkina Faso.
Urban Mkandawire v. Malawi
The Court is also scheduled to release a draft judgment in the case of Urban Mkandawire v. the United Republic of Malawi, which concerns alleged violations of Articles 7 (due process) and 15 (right to work) of the African Charter on Human and Peoples’ Rights related to Urban Mkandawire’s allegedly arbitrary termination from his position as lecturer at the University of Malawi after he complained of nepotism within the school. The parties in this case presented their oral pleadings to the Court in November 2012.
Pending Draft Rulings
The Court plans to release draft judgments or rulings in additional cases during the ongoing session, including:
Mtikila v. Tanzania
With regard to Application 009/2011 & 011/2011 – Tanganyika Law Society and the Legal and Human Rights Centre & Reverend Christopher Mtikila v. the United Republic of Tanzania, the Court will issue a draft judgment on the merits. The applicants in this case allege violations of Articles 2, 10 and 13(1) of the African Charter on Human and Peoples’ Rights, as well as other provisions of the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, stemming from the enactment of the Eighth Constitutional Amendment of 1992 and the Eleventh Constitutional Amendment Act No 34 of 1994. The applicants believe these amendments, which prohibit independent candidates from running for office in presidential, parliamentary and local government elections, violate the democratic principles and the political rights of its citizens.
Tanzania maintains that the African Charter and the International Covenant on Civil and Political Rights are not directly applicable in Tanzania, and further contends that the disqualification of independent candidates is permissible based on the social needs of Tanzania. The parties in this case presented their oral pleadings to the Court in June 2012.
Atabong Denis Atemnkeng v. the African Union
The Court will also issue a draft judgment regarding Application 014/2011 – Atabong Denis Atemnkeng v. the African Union. The Applicant, a Cameroonian national employed in the African Union Commission as a regular staff member, alleges that the African Court on Human and Peoples’ Rights’ mandate contravenes the African Union Constitutive Act. Here, the Court must clearly establish whether it has jurisdiction to hear cases brought by individual complainants regardless of whether the challenged State party or international organization has accepted the Court’s jurisdiction. Article 34(6) of the African Union Constitutive Act limits the Court’s jurisdiction to cases against those States that have recognized its jurisdiction. Mr. Atemnkeng argues that this requirement is inconsistent with Articles 2, 3, and 7 of the Constitutive Act, which guarantee equal enjoyment of the rights found in the Charter, equality before the law, and the right to have one’s cause heard. The applicant contends that, while individuals can currently bring cases to the African Commission, this avenue does not always provide justice for individuals because decisions from the Commission are not binding.
The African Commission
The African Court’s current session comes on the heels of the African Commission on Human and Peoples’ Rights’ recently-concluded Extraordinary Session, held from February 19 to 25. The Commission took action related to several cases, and also issued statements related to timely matters affecting human rights in the region.
In response to concerns related to upcoming elections in Kenya, Mali and Tunisia, and a constitutional referendum in Zimbabwe, the Commission adopted Resolution 232, which called upon State Parties to the African Charter holding elections in 2013 to:
- Respect their obligations under the African Charter, in addition to other regional and international human rights conventions, and take all necessary measures to preserve and protect the credibility of the electoral process;
- Ensure that all parties participating in the elections, in particular the opposition parties, are allowed to conduct their campaign freely;
- Ensure that citizens exercise their right to vote in a peaceful environment free of intimidation and violence;
- Urge political parties to ensure that their supporters do not engage in, or incite, acts of violence either before, during or after the elections;
- Allow the participation of election observers to observe the entire electoral process;
- Respect the independence of the institution responsible for the management of elections and provide sufficient resources to strengthen them;
- Take all measures to prevent, investigate and prosecute human rights violations which occur during the election period, and provide adequate redress to victims.
During the session, the Commission also expressed grave concern about the trial and sentencing of twenty-five civilians by a Moroccan military court in Rabat during February of 2012. Here, the Commission stated that it was “particularly concerned that the trial took place in a military court without the guarantee of an appeal process: a core element of internationally accepted safeguards of fair trial.”
The Commission also decided several complaints (“communications”) while sitting for 13th Extraordinary Session. Once a communication has been registered, the Commission has to be “seized”with it. Article 55 of the African Charter on Human and Peoples’ Rights provides that “[b]efore each session of the Commission, the Secretary of the Commission prepares a list of all communications submitted to the Secretariat […] and transmits them to the members of the Commission, who shall indicate which communications shall be considered by the Commission. At this session, the Commission shall decide whether to be seized of the communication by determining whether it alleges any violation of the Charter, or whether it is properly submitted according to the provisions of article 55 of the Charter. Article 55 (2) of the Charter provides that “[a] communication shall be considered by the Commission if a simple majority of its members so decide.”
According to the Final Communique, the Commission preliminarily admitted (decided to be “seized of”) twelve communications, while admitting two others, and adopting a decision on the merits of one communication. The Commission also decided to issue provisional measures, of its own initiative, related to one communication.