The African Court on Human and Peoples’ Rights (AfCHPR) has issued a new judgment, holding that Côte d’Ivoire violated various human rights obligations in establishing a partisan election monitoring body ahead of the 2015 national elections, the first held since Alassane Ouattara succeeded Laurent Gbagbo in the presidency following an end to the country’s civil war. See AfCHPR, Actions Pour la Protection des Droits de l’Homme v. the Republic of Cote d’Ivoire, App. No. 001/2014, Judgment of 18 November 2016, para. 153. Gbagbo is currently facing trial at the International Criminal Court on crimes against humanity charges related to violence following his defeat in the 2010 election. In its November 18, 2016 judgment, the African Court held that Côte d’Ivoire’s electoral body lacked the necessary independence and impartiality, thereby violating citizens’ rights to political participation and equal protection, because the body was composed of eight representatives of the ruling party and only four representatives of the political opposition and made decisions by simple majority. See id. at paras. 130-31. The Court ordered the State to amend the relevant law to comply with its international obligations. See id. at para. 153.
This is the first time the Court has found violations of certain provisions of the African Charter on Democracy, Elections and Governance and ECOWAS Protocol on Democracy and Good Governance, which the Court determined are “human rights instruments” within its material jurisdiction. See id. at paras. 47-65. The Court has previously found a violation of the right to participate in government where independent candidates were effectively prevented from running for office. [IJRC]
An electoral body in Cote d’Ivoire was initially established by law in 2000, taking on the duty of organizing elections previously conducted by the government through the Ministry of Internal Affairs. The first electoral body was temporarily given the task of organizing the presidential, legislative, and municipal elections in 2000, but the parliament established a second electoral body, the Independent Electoral Commission, by law in 2001. See id. at paras. 6-7. Parliament subsequently amended the law several times, establishing the Independent Electoral Commission (IEC). See id. at paras. 4, 7-9, 11. National law provided that the IEC members’ mandates would expire upon the 2010 elections. Eventually, in 2014 – a year ahead of the 2015 general elections – parliament adopted Law No. 2014-335 creating the current IEC’s membership of four opposition representatives and eight government representatives. See id. at paras. 12-13.
Immediately, a group of 29 parliamentarians of the National Assembly appealed to the Constitutional Council of the Côte d’Ivoire alleging that four provisions of the law (articles 5, 15-17) were unconstitutional under Article 2 (equal protection) and Article 33(1) (universal and equal suffrage) of the Ivorian Constitution, and in June 2014 that claim was dismissed. See id. at paras. 14, 18-19.
Association pour la Protection des Droits de l’Homme (APDH) then submitted its application to the African Court, in July 2014. As a non-governmental organization with observer status before the African Commission on Human and Peoples’ Rights, APDH is authorized to present complaints to the African Court concerning any of the eight States that have authorized the Court to receive complaints by individuals or NGOs. In other human rights systems, a complaint generally challenging a law’s compatibility with human rights standards would be considered an actio popularis and the NGO bringing the complaint would lack standing. The African system, however, allows such complaints. See, e.g., ACommHPR, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana, Communication No. 277/2003, Merits Decision, 10th Extraordinary Session, December 2011, paras. 73-76.
African Court’s Analysis
APDH, challenging Law No. 2014-335, alleged before the African Court that the State violated the rights to equal protection before the law and to an independent and impartial electoral body as enshrined in articles 3, 13(1), and 13(2) of the African Charter on Human and Peoples’ Rights (African Charter); articles 10(3) and 17(1) of the African Charter on Democracy, Elections and Governance (African Charter on Democracy); Article 3 of the ECOWAS Protocol on Democracy and Good Governance (ECOWAS Democracy Protocol); Article 1 of the Universal Declaration of Human Rights (UDHR); and Article 26 of the International Covenant on Civil Political Rights (ICCPR). See Actions Pour la Protection des Droits de l’Homme v. the Republic of Cote d’Ivoire, Judgment of 18 November 2016. para. 20. APDH alleged that many of the members of the electoral commission are representatives of individual politicians or political parties and are, therefore, not independent and impartial. See id. at para. 109. The State argued that the Independent Electoral Commission members did not report to, or receive instructions from, those politicians or parties and should be considered sufficiently independent. See id. at paras. 111-13.
In order to satisfy the material jurisdiction requirement, the AfCHPR had to determine for the first time whether the African Charter on Democracy and the ECOWAS Democracy Protocol are human rights instruments within the meaning of Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. See id. at paras. 47-50. Pursuant to the AfCHPR’s Rules and Practice Directions, it solicited opinions from the African Union Commission and the African Institute for International Law on whether the African Charter on Democracy is a human rights instruments within the meaning of Article 3. See id. at paras. 49-59.
Taking note of their opinions, the AfCHPR concluded that to determine whether an instrument is a human rights instrument under Article 3, it is necessary to refer to the instrument’s purpose reflected either by “an express enunciation of the subjective rights of individuals, or groups of individuals,” or by establishing mandatory obligations on States parties for the purpose of realizing those rights. See id. at para. 57.
The AfCHPR held that both instruments are human rights instruments under Article 3; the Court found that the obligation of States parties under the African Charter on Democracy and the ECOWAS Democracy Protocol “to establish independent and impartial national electoral bodies is aimed at implementing . . . rights prescribed by Article 13” (the right to participate in government) of the African Charter on Human and Peoples’ Rights. See id. at paras. 63, 65. The AfCHPR noted similar analysis in the jurisprudence of the European Court of Human Rights (ECtHR). See id. at paras. 63-65.
The African Court rejected the State’s objections related to the language used in the complaint and the applicant’s exhaustion of domestic remedies. See id. at para. 72. Côte d’Ivoire argued that the applicant’s description of the domestic proceedings was “insulting” in that it implied corruption, wrongdoing, or incompetence on the part of judges or President Ouattara. See id. at paras. 77-79. The Court limited its analysis to concluding that the applicant’s language was not insulting and that the State had “not produced evidence” to support its allegation. See id. at paras. 82-83.
With regard to exhaustion of domestic remedies, the State had argued that the applicant could have sought review by the Constitutional Council or by an administrative body as to the law’s constitutionality. See id. at paras. 85-88. The applicant argued that an association could only seek Constitutional Council review of laws concerning individual freedoms and only prior to their promulgation. See id. at paras. 89-91. The African Court concluded that the applicant was not required to pursue the administrative remedies mentioned by the State because they could not result in a decision on the constitutionality of the law; it also agreed with the applicant concerning the Constitutional Council’s procedural limitations and further noted that, in a separate proceeding, the Constitutional Council had already concluded that the law was constitutional. See id. at paras. 93-102.
The AfCHPR held that the Independent Electoral Commission did not meet the conditions of independence and impartiality due to the IEC’s imbalance where the ruling political party was allotted eight representatives and the opposition was given only four. See id. at paras. 108-109, 118-119, 123, 125, 128-135. The Court elaborated that an electoral body should have administrative and financial independence and guarantee the independence of its members. See id. at para. 118. Furthermore, the electoral commission should be established according to law with guarantees of impartiality and should be perceived as impartial in order to sufficiently guarantee free and fair elections under the African Charter on Democracy and the ECOWAS Democracy Protocol. See id. at para. 123. Accordingly, it should have a balanced composition and, as the commission in this case did not, the IEC violated Article 17 of the African Charter on Democracy and Article 3 of the ECOWAS Democracy Protocol. See id. at paras. 126-35.
Additionally, the AfCHPR held that the composition of the electoral body violates the right to equal protection of the law under Article 3 of the African Charter, Article 10(3) of the African Charter on Democracy, Article 3 of the ECOWAS Democracy Protocol, Article 1 of the UDHR, and Article 26 of the ICCPR because its composition favors the government, allowing the president or a member of his family to be in a “more advantageous situation in relation to other candidates.” See id. at paras. 137-142, 148-151.
The AfCHPR ruled that the State violated its obligations to establish an independent and impartial electoral body, to protect the right of citizens to participate freely in the public affairs of their country, and to protect the equal protection of the law. The Court ordered the State to amend its law to comply with its international human rights obligations and to submit a report on the implementation of its decision within one year. See id. at para. 153.
Côte d’Ivoire is a party to the African Charter on Human and Peoples’ Rights and its protocol establishing the Court. Côte d’Ivoire has accepted the jurisdiction of the African Court to directly receive cases from individuals and NGOs alleging violations by Côte d’Ivoire. See id. at para. 2.