The African Court on Human and Peoples’ Rights recently delivered four judgments, including a noteworthy decision in the case of the Beneficiaries of the Late Norbert Zongo and others v. Burkina Faso. [AfCHPR] The Court rendered its decisions during its 32nd Ordinary Session, held in from March 10 to 28 at the Court’s seat in Arusha, Tanzania.
Beneficiaries of the Late Norbert Zongo and others v. Burkina Faso
Norbert Zongo, an investigative journalist and editor of a weekly paper, was killed along with several companions in 1998. At the time of his death, Zongo was investigating the torture and killing of an employee of the younger brother of Burkina Faso’s president. For years, Zongo’s family sought justice for his murder and the murder of his companions, but none of the suspects were ever effectively prosecuted for the crime. [Open Society Justice Initiative]
With regard to the admissibility of the application, the Government of Burkina Faso argued that the application should be found inadmissible on the grounds that the applicants had failed to exhaust domestic remedies and that the alleged assassination occurred prior to the establishment of the Court. The Court overruled both objections and, in regard to the latter objection, found that the failure to investigate and bring the killers of justice constituted an ongoing violation within its jurisdiction. [AfCHPR] See also AfCHPR, The Beneficiaries of Late Norbert Zongo Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo and MBDHP v. Burkina Faso, App. No. 013/20133, Ruling of 21 June 2013 (French only).
As to the merits, the applicants had alleged that the Government of Burkina Faso had failed to deliver justice in the years following the crime. They claimed violations of: articles 1 (domestic effect), 3 (equal protection), 4 (life), 7 (due process and judicial protection) and 9 (freedom of expression) of the African Charter on Human and Peoples’ Rights; Article 66.2(c) (freedom of the press) of the Revised Treaty of the Economic Community of West African States (ECOWAS); articles, 2(3) (effective remedy), 6(1) (life), 14 (due process) and 19(2) (freedom of expression) of the International Covenant on Civil and Political Rights; and, Article 8 (effective remedy) of the Universal Declaration of Human Rights. [AfCHPR] In their initial submission to the Court, the applicants asserted that the Government of Burkina Faso has “manifestly and repeatedly, chosen to frustrate the efforts of the families of Norbert Zongo and his companions” in their search for justice. See AfCHPR, Case Summary: Claimants of Late Nobert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Liboudo and the Burkinabe Movement on Human and Peoples’ Rights v. Burkina Faso, App. No. 013/2011.
After considering the facts of the case and the parties’ arguments, the Court concluded that Burkina Faso had failed to take appropriate action to “ensure that the rights of the Applicants for their cause to be heard by competent national Courts are respected.” [AfCHPR] The Court held that the inadequacy of the investigation and the prolonged nature of the legal proceedings constituted violations of the State’s legal obligations under articles 7 and 9(2) of the African Charter on Human and Peoples’ Rights, read together with Article 66(2)(c) of the Revised Treaty of ECOWAS, which requires ECOWAS Member States to support freedom of the press and ensure respect for the rights of journalists. [OSJI; AfCHPR]
The Court gave both parties 30 days to submit arguments before making a decision on reparations. [AfCHPR; allAfrica] The full judgment is not yet available on the Court’s website.
The Court struck from the records Mr. Mkandawire’s application for review and interpretation of its previous judgment. [AfCHPR] The applicant sought reconsideration of the Court’s previous decision which declared his application inadmissible. AfCHPR, Urban Mkandawire v. Malawi, App. No. 003/2011, Judgment of 21 June 2013. In its most recent decision, the Court affirmed that it may only interpret a judgment “for the purpose of executing” it. Because the prior decision rejected Mr. Mkandawire’s application for failure to exhaust domestic remedies, it contained no obligations subject to execution or interpretation. [AfCHPR]
Mr. Mkandawire initially brought a complaint to the Court alleging that his unfair termination from his employment resulted in violations of articles 7 (due process) and 15 (right to work) of the African Charter on Human and Peoples’ Rights. In his application to the Court, Mr. Mkandawire requested reinstatement of his position as well as remuneration for damages and legal claims, lost salary and other costs. See Application 003/2011: Summary of the Case.
In 2013, the Court found the application inadmissible for failure to exhaust domestic remedies despite the lack of a preliminary objection on this ground from either party, and no argument on this question during the Court’s public hearing. AfCHPR, Urban Mkandawire v. Malawi, App. No. 003/2011, Judgment of 21 June 2013. In fact, in proceedings before the Court, the Government of Malawi stated that it did not dispute the applicant’s claim that he had exhausted domestic remedies. Id. at para. 12 (Joint Dissenting Opinion of Judges Gerard Niyungeko and El Hadji Guisse). In their dissenting opinion, the two judges expressed dissatisfaction with the Court’s reasoning and opined that the applicant had in fact exhausted domestic remedies. Id. at para. 18.
In its most recent ruling, the Court also held that its prior decision could not be reviewed because the applicant had presented no new evidence, as contemplated in Article 28(3) of the Court’s Protocol or Rule 67(1) of its Rules of Court. The full judgment is not yet available on the Court’s website.
The African Court dismissed both the case of Frank D. Omary and others v. the United Republic of Tanzania and the case of Peter Joseph Chacha v. the United Republic of Tanzania for failure to exhaust domestic remedies. [AfCHPR]
The first case, brought by ex-employees of the East African Community (EAC), concerned the alleged failure to pay “reparations on the assets and liabilities of the EAC” and provide pensions and benefits to former employees.
The applicant in the second case claimed that his rights had been violated when he was “unlawfully arrested, detained, charged and imprisoned” in contravention of the laws of Tanzania. [AfCHPR]
The Government of Tanzania made several preliminary objections in both cases, but the Court only “upheld the preliminary objection on the inadmissibility of the Application for non-exhaustion of local remedies as required by Article 6(2) of the Protocol read together with Article 56(5) of the Charter and Rule 40(5) of the Rules.” [AfCHPR] The full judgments are not yet available on the Court’s website.