In a judgment issued on July 15, 2020, the African Court on Human and Peoples’ Rights (AfCHPR) again analyzed the independence and impartiality of Côte d’Ivoire’s election oversight body, in the context of an increasingly tense election year. The Court determined that it had competence to decide whether the State had complied with its 2016 judgment regarding the Independent Electoral Commission, and decided that the State had complied by legislating changes to the Commission’s composition. [AfCHPR Press Release: Judgment Summary] However, the AfCHPR found violations in the fact that the local electoral commissions’ membership has not been changed to reflect the new legal requirements, and that the nominating process did not give opposition parties and civil society enough say in choosing their nominees to those commissions. [AfCHPR Press Release: Judgment Summary] The judgment also confirmed that the State’s withdrawal of acceptance of the Court’s jurisdiction over complaints by individuals and nongovernmental organizations will take effect on April 30, 2021. See AfCHPR, Suy Bi Gohore Emile and Others v. Côte d’Ivoire, App. No. 044/2019, Judgment of 15 July 2020, para. 67.
Election-Related Violence & Controversies
In April, the AfCHPR issued provisional measures ordering Côte d’Ivoire not to arrest presidential candidate Guillaume Soro. [IJRC: Withdrawals] In response, the State withdrew its acceptance of the AfCHPR’s jurisdiction over complaints by individuals and nongovernmental organizations; a domestic court sentenced Soro to 20 years’ imprisonment. [IJRC: Withdrawals] Just last week, President Alassane Ouattara announced he intended to seek a third five-year term in the October 2020 election, despite a two-term limit in the country’s 2016 constitution. [Al Jazeera]
The International Criminal Court (ICC) is currently investigating alleged crimes against humanity committed following the 2010 elections, when Alassane Ouattara took power from Laurent Gbagbo. See ICC, Côte d’Ivoire. In 2019, the ICC Trial Chamber I acquitted Gbagbo and Charles Blé Goudé on all charges related to the 2010 election. [IJRC: Gbagbo] Both men have been released pending the Prosecutor’s appeal, and the ICC retains jurisdiction over other possible atrocity crimes committed in Côte d’Ivoire from 2002 through the present. [ICC Press Release: Release] Guillaume Soro, who was a rebel commander during the 2010-2011 post-election violence, has also been accused of atrocities during that time. [JusticeInfo.Net]
Withdrawal of Jursidiction
The Court noted Côte d’Ivoire’s notification withdrawing acceptance of the AfCHPR’s jurisdiction over individual and NGO complaints, which was dated April 29, 2020. Given its previously-established rule, the withdrawal will take effect one year from the date of deposit, on April 30, 2021. In the meantime, it does not affect the Court’s jurisdiction over such complaints against the State. See id. at para. 67.
The AfCHPR has also recently published on its website the list of States that have accepted, and withdrawn acceptance of, the Court’s jurisdiction over individual and NGO complaints. See AfCHPR, Declarations Entered by Member States.
Compliance with APDH v. Côte d’Ivoire
In Suy Bi Gohore Emile and Others v. Côte d’Ivoire, the applicants argued that the State had failed to comply with a 2016 AfCHPR judgment concerning its electoral oversight body, in violation of Article 30 of the Protocol establishing the Court. For its part, Côte d’Ivoire argued that the AfCHPR had no jurisdiction to decide whether it was in compliance with the 2016 judgment. The State asserted that the Court was not authorized to monitor the execution of its judgments, that those judgments were “only of a declaratory nature,” and that it is up to States to decide how to implement them. See AfCHPR, Suy Bi Gohore Emile and Others v. Côte d’Ivoire, Judgment of 15 July 2020, paras. 28-35.
The 2016 judgment concerned a complaint brought by an Ivorian NGO, which alleged that a 2014 law modifying the country’s Independent Electoral Commission violated international human rights standards because it added representatives of the President and other officials to the Commission. [IJRC: APDH] The AfCHPR agreed that the law violated regional standards requiring the State to establish an independent and impartial electoral body and to ensure the right to political participation, as well as the right to equal protection of the law. See AfCHPR, Actions pour la Protection des Droits de l’Homme (APDH) v. Côte d’Ivoire, App. No. 001/2014, Judgment of 18 Nov. 2016, paras. 135, 136, 151. The Court ordered Côte d’Ivoire to amend the 2014 law. See id. at para. 153(8).
In 2017, the AfCHPR ruled that the State’s request for interpretation of its judgment was inadmissible, because the States was essentially seeking guidance on implementation (rather than seeking clarification of specific parts of the Court’s ruling). See AfCHPR, Actions pour la Protection des Droits de l’Homme (APDH) v. Côte d’Ivoire, App. No. 003/20147, Judgment of Interpretation of 28 Sept. 2017.
The AfCHPR determined that it does have jurisdiction to decide alleged violations of Article 30 of the Protocol, which requires States “to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.” See id. at paras. 45-61. It noted that it must be able to assess compliance in order to report on the status of its judgments to the Executive Council of the African Union. See id. at para. 52. The AfCHPR also noted that Article 3(1) of the Protocol grants it jurisdiction over cases and disputes concerning the Protocol itself, among other instruments. It emphasized that the Court, as an international judicial mechanism, has the authority to issue binding judgments that States are obligated to comply with. See id. at para. 58. Accordingly, the AfCHPR characterized any violation of Article 30 of the Protocol as a “violation of a human or people’s rights” over which it had jurisdiction. See id. at paras. 59, 60.
Decision on Compliance
In deciding whether Côte d’Ivoire had failed to comply with its 2016 judgment, the AfCHPR noted that the State had adopted a law in 2019 that changed the composition of the Independent Electoral Commission and amended that law in March 2020. The Court also noted the State’s request for an interpretation of the 2016 judgment. See id. at para. 255. As discussed below, the Court concluded that the current legal framework regarding the Independent Electoral Commission does not violate human rights standards, although its implementation has created imbalances that do constitute violations. See id. at paras. 256-60. Because the 2016 judgment had to do with the law and not its implementation, and given the State’s discretion on how to comply with the judgment, the AfCHPR concluded that the State had “not violated its obligation to execute the judgment.” See id. at para. 263.
The Court rejected the applicants’ argument that the Commission was partisan because it included members proposed by the President and other government officials. See id. at para. 173. In contrast, the AfCHPR concluded that, by reducing the number of members representing the ruling party, the local and central electoral commissions were more balanced thanks to the 2020 changes. See id. at paras. 180-85. The Court also rejected the applicants’ argument that the electoral body was not independent, or that it was perceived as not being independent. See id. at paras. 205, 227. Finally, the Court disagreed with the applicants’ argument that the failure to represent independent candidates on the electoral body violated the rights to political participation or equal protection. See id. at para. 245.
However, the Court noted that the rule allowing the electoral body chairpersons to cast the deciding vote in a tie created a “manifest imbalance” because chairpersons “predominantly originate from the ruling party” due to the election process established under the earlier law. See id. at para. 186. The Court indicated that new elections should be held. See id. at para. 187. It found that Côte d’Ivoire had not “fully complied” with its obligations under Article 17 of the African Charter on Democracy, Elections and Governance (ACDEG) and Article 3 of the ECOWAS Protocol on Democracy and Good Governance. See id. at para. 228. The AfCHPR also concluded that the legal framework did not ensure that political parties and civil society organizations were truly involved in the process for nominating their representatives to the Independent Electoral Commission, and that this also violated the ACDEG and ECOWAS Democracy Protocol. See id. at para. 229.
Based on the violations found, the Court ordered the State – before any public election is held – to organize new elections for the leadership of local electoral commissions and to ensure that the nomination of electoral commission members by political parties and civil society organizations is “driven by those entities.” See id. at paras. 268, 270.
The African Court on Human and Peoples’ Rights began operating in 2006 and complements the role of the African Commission on Human and Peoples’ Rights in protecting fundamental rights across the continent. To date, 30 States have accepted the African Court’s jurisdiction to decide complaints referred to it by the African Commission, States, or African intergovernmental organizations. Acceptance of the Court’s jurisdiction over individual and NGO complaints is separate and optional.
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