LITIGATION AND ADVICE

 INSTITUTION BUILDING

LITIGATION AND ADVICE

Deportation of Botswanan Academic Based on Political Opinion

INTERIGHTS is acting as co-representative for the applicant in the case of Kenneth Good v Botswana before the African Commission on Human and Peoples' Rights. Mr Good is an academic resident in Botswana. He was deported by the state following the publication of his views in an academic paper. The case touches on the violation of due process guarantees during the expulsion of non-nationals and highlights the importance of academic freedom as a form of protected speech. It also concerns violations of the provision to recognise rights and adopt legislative measures to give effect to them, the right to freedom from discrimination based on political opinion, freedom of expression and the right to property. The case was filed before the African Commission at its November 2005 session.

Journalist Gains Freedom of Expression Victory Against Angola

On 31 March 2005, the Human Rights Committee issued a decision in the case of Rafael Marques v Republic of Angola. In two newspaper articles and a radio interview, Marques, a journalist, had criticised Angolan President dos Santos “for the destruction of the country and the calamitous situation of State institutions” and alleged that he was “accountable for the promotion of incompetence, embezzlement and corruption as political and social values.” On this basis, he was detained for forty days without charge, prosecuted for criminal defamation (without the possibility in law of defending himself by claiming the ‘truth’ of the statements), and subsequently denied the opportunity to
leave his country. INTERIGHTS and the Open Society Justice Initiative together represented Marques before the UN Human Rights Committee in September 2002.

The Committee found that these measures constituted an unlawful interference with his freedom of expression, in violation of Article 19 of the Covenant: .

“Given the paramount importance, in a democratic society, of the right to freedom of expression and of a free and uncensored press or other media, the severity of the sanctions imposed on the author cannot be considered as a proportionate measure to protect public order or the honour and the reputation of the President, a public figure who, as such, is subject to criticism and opposition. In addition, the Committee considers it an aggravating factor that the author’s proposed truth defence against the libel charge was ruled out by the courts.”

The Committee also found Marques' arrest and detention to be arbitrary, in violation of Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) which protects the liberty and security of the person. His pre-trial detention was neither reasonable nor necessary, but was in fact punitive, in violation of the Covenant. Ten days of incommunicado detention violated his right to be brought promptly before a judge, and his right to judicial review of the lawfulness of his detention had been violated (Article 9(4)). Finally, the Human Rights Committee found that preventing Marques’ from leaving Angola after the criminal sanction had expired was in violation of Article 12.

The Committee’s decision states that the Angolan authorities should provide Marques with “an effective remedy, including compensation for his arbitrary arrest and detention, as well as for the violations of his rights under articles 12 and 19 of the Covenant” and that they are under an obligation “to take measures to prevent similar violations in the future.” The Committee has requested information from the State party on the measures taken to give effect to its views within 90 days.

Read the legal brief here.

 INSTITUTION BUILDING

Judges Elected to the African Court on Human and Peoples’ Rights

On 21 January 2006 in Khartoum, Sudan, the African Union Executive Council of Ministers to the African Court on Human and Peoples' Rights elected 11 judges out of the 21 nominated candidates put forward by the 16 states that have ratified the protocol on the establishment of the Court.

The elected judges are: Fatsah Ouguergouz (Algeria); Jean Emile Somda (Burkina Faso); Gerard Niyungeko (Burundi); Sophia Akuffo (Ghana); Kellelo Justina Masafo Guni (Lesotho); Hamdi Faraj Fanoush (Libya); Modibo Tounty Guindo (Mali); Jean Mutsinzi (Rwanda); United Nations Special Rapporteur on the right to water, El Hadji Guisse (Sénégal); Bernard Ngoepe (South Africa); and G Kanyiehamba (Uganda). 

The Coalition for an Effective African Court on Human and Peoples’ Rights, of which INTERIGHTS is a member, sent a submission on the nominations and elections procedure of judges to the Assembly of Heads of State and Government, the Executive Council and the Permanent Representatives Committee of the African Union, prior to the elections.

Women's Rights Protocol for Africa Enters into Force

Only two years after its adoption by the Conference of the Heads of States and Governments of the African Union held in Maputo (Mozambique) in July 2003, the Protocol to the African Charter on Human and Peoples’ Rights on the rights of women in Africa entered into force on 25 November 2005. Togo was the 15th country to deposit its instruments of ratification of the Protocol.

The other countries to have ratified the Protocol are Benin, Cap Verde, Comoros, Djibouti, Gambia, Lesotho, Libya, Malawi, Mali, Namibia, Nigeria, Rwanda, Senegal and South Africa.

The drafting of the Protocol began eight years ago under the leadership of the African Commission on Human and Peoples’ Rights, in close collaboration with African and international women’s rights organisations and the support of the International Commission of Jurists. INTERIGHTS was involved in commenting on the draft Protocol. Its main objective is to complement the African Charter in strengthening the protection of the rights of women in Africa, taking into account the cultural specificity of the continent and the special needs of African women which may not yet have been adequately addressed by the current women’s rights treaties.

Significantly, the Protocol includes provisions on specific problems, many of which are peculiar to the situation of African women, namely the protection of women in armed conflicts, the right to peace, inheritance rights, widows’ rights and special protection of elderly women, women with disabilities and women in distress. It also includes provisions proscribing violence against women and protects women’s health and reproductive rights. The Protocol will help the African Commission and African Court to better protect women’s rights in Africa.

Read the full text of the Protocol here.

State Obligations Under African Charter on Human and Peoples’ Rights

Following a memorandum submitted by INTERIGHTS on African states’ responsibilities in the protection of human rights in their territories in the case of Association of Victims of Political Violence & INTERIGHTS v Cameroon, the African Commission on Human and Peoples’ Rights, for the first time, will have to define states’ positive obligations under Articles 1, 4, 7 and 14 of the African Charter on Human and Peoples’ Rights.

Final Green Light for Establishment of African Human Rights Court

Almost two years after the entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the establishment of an African Court on Human and Peoples' Rights, the Assembly of the African Union gave a green light for the establishment of the Court. It will be based in East Africa in a country chosen by East African countries, and Judges were elected in January 2006 (see News page) at the 6th Ordinary Session of the Assembly. The Registrar and the staff will be nominated by the Commission of the African Union, which will also determine the budget allocated to the new body. The relationship between the African Commission, the Committee of Experts on the Rights and Welfare of the Child and the new human rights Court will be discussed when the Court is effectively established.

Read the declaration of the African Union here.

A Human Rights Court for Africa - Focus for INTERIGHTS Bulletin 15(1)

The long overdue African Court on Human and Peoples' Rights (the Court) is now set to become a reality. The Protocol establishing the Court was opened for ratification in 1998 but did not receive the requisite number of ratifications until 2004. While preparations were underway to make the Court operational, the African Union (AU) decided to merge the Court with the AU Court of Justice, and suspend the process until the modalities of the merger had been considered.

There are several legal and practical implications of such a merger which will take an inordinate amount of time to regularise. With the atrocities in Darfur (Sudan), Democratic Republic of Congo, Zimbabwe, and other violations taking place across the Continent as a stark reminder of the fragility of human rights in Africa, it is self-evident that a court of this nature has taken too long to come into being. The AU could not continue to drag its feet while several African peoples continue to be victims of human rights violations. It is thereforecommendable that the AU has decided to continue with the operationalisation of the human rights court despite the fact that the complexities of the merger are still being considered. The momentum of the Commission of the AU in this regard through the hosting of expert meetings has resulted in recommendations and a draft legal instrument which was considered at the next ordinary session of the Executive Council in July 2005. The need for well-resourced institutions – which can be achieved through merger of the courts – cannot be overlooked but cannot also be used as an excuse to unnecessarily delay or frustrate the human rights court.

Volume 15 Issue 1 of the Bulletin addresses a range of issues around the new Court. Articles examine the relationship between the African Commission and the Court, the parallels that can be drawn with the Inter-American system, rights of petition and judicial nomination procedures. Within this issue of the Bulletin is the unabridged Statement from the Seminar on Economic, Social and Cultural Rights held by the African Commission in collaboration with INTERIGHTS and its partners in Pretoria, in September 2004. Also reproduced in full is The Coalition for an Effective African Court on Human and Peoples' Rights' submission to the AU on the possible integration of the Court with the AU Court ofJustice.

The issue also features an invaluable pull-out section - 'International Law Reports' - which holds summaries of major decisions from the African Commission and other regional and mechanisms and international tribunals applying international human rights law. The Bulletin disseminates case law developments and news items on notable legal developments and gives news from within our organisation, as well as providing book reviews of recent pertinent publications.

This Bulletin includes articles on the following:

For subscription details, please click here.

Individuals Given Direct Access to the ECOWAS Court of Justice

The Protocol on the Economic Community of West African States (ECOWAS) Court of Justice has now been amended to allow individual ECOWAS citizens direct access to the Court. Amended in August 2004, the supplementary draft Protocol was formally drafted at the 28th Session on the authority of the Heads of State and Government in January 2005 at Accra, Ghana. INTERIGHTS was involved in the sensitisation of West African states to encourage a speedy ratification of the Protocol, and will also be training lawyers and human rights organisations on how to have access to the Court.

Read the supplementary draft Protocol here in English and French.

INTERIGHTS was part of the Consultative Forum on protecting the rights of ECOWAS citizens through the ECOWAS Court of Justice at a meeting in Dakar, Senegal, between 18-20 October 2004. Organised by the Community Court of Justice in collaboration with the West African Human Rights Forum and the Open Society Initiative for West Africa (OSIWA), the Forum produced a Declaration on the proposed amendments to the ECOWAS Court of Justice Protocol. Read the Declaration in English here.

Coalition Submission on the Merging of the African Court on Human and Peoples' Rights and the AU Court of Justice

Earlier in 2004, the African Union's Assembly of Head of States made the decision to integrate the proposed African Court on Human and Peoples' Rights and the Court of Justice of the African Union. The Coalition for an Effective African Court on Human and Peoples' Rights has made a submission to the African Union on the legal and institutional issues arising from the decision to integrate the two courts, which focuses on the importance of an effective, well-resourced regional judicial system for upholding the rule of law, human dignity and human rights.

INTERIGHTS is one of the six organisations in the Coalition, which was formed in May 2003 to advocate for an effective, efficient, independent and credible African Court on Human and Peoples' Rights. Read the submission in English here.

INTERIGHTS Organises Meeting on Violence Against Women
with African Commission's Special Rapporteur on Women's Rights

INTERIGHTS organised a meeting with the Special Rapporteur on Women's Rights of the African Commission on Human and Peoples' Rights, in Maputo, Mozambique. The meeting brought together approximately 20 experts in the legal protection of the human rights of women in Africa, to critically analyse the recommendations of the studies commended by the Special Rapporteur. The studies, completed in August 2002, collated important information on domestic and community violence, and violence committed by states and non-state actors in six African countries: Cote d'Ivoire, Democratic Republic of Congo, Guinea, Rwanda, Sierra Leone, and South Africa. The meeting also discussed the issue of women and poverty in Africa.

The meeting took place between 17 and 20 January 2005, and was attended by representatives of the Inter-American Commission on Human Rights, the African Commission, sub-regional women's organisations, and poverty experts. At the end of the meeting, the group drafted a set of recommendations for the Special Rapporteur, designed to complement national legislation and policies protecting women's rights in Africa. These are to be included in a plan of action to be adopted by the African Commission, before being recommended to the states at the next summit of the African Union in July.

Special Rapporteur Angela Melo (fifth from right) and participants at meeting in Maputo

Treaty Obligations of States Concerning Appointments to the African Court

The Commission of the African Union has issued a note verbale outlining the treaty obligations of state parties to the Protocol on the African Court on Human and Peoples' Rights concerning the nomination of judges to the Court. The Protocol entered into force on 25 January 2004 (see Africa Programme Activities). State parties are requested to consider and implement these mandatory guidelines in their national selection process.

Read the note verbale in English or French. Click here to read INTERIGHTS' submission to the Commission of the African Union on Guidelines for Nomination and Election of Judges to the African Court on Human Rights.

Economic, Social and Cultural Rights Conference in Pretoria

The Seminar took place from 13–17 September 2004 in Pretoria, South Africa, under the scope of the promotional activities of the African Commission under Article 45 (1) (b) of the African Charter on Human and Peoples' Rights (ACHPR). It was organised in collaboration with the Cairo Institute of Human Rights Studies (CIHRS), the University of Pretoria Centre for Human Rights, and INTERIGHTS. Participants at the workshop included members of the African Commission, representatives of 12 African states, civil society organisations, national human rights institutions, academics and representatives of UN organisations and regional economic communities.

The objectives of the Seminar were to define the nature of state obligations in the economic, social and cultural rights arena, to identify, in the light of African realities, priorities for the African Commission and its partners for the promotion and protection of economic, social and cultural rights, and to determine practical measures to make those rights effective. The participants drafted a statement during the final session, which recommended concrete initiatives to be adopted by the African Commission, international and regional institutions, state parties to the African Charter and members of African civil society in order that economic, social and cultural rights can be promoted and protected on the continent.

Read the Statement on Social, Economic and Cultural Rights in Africa in English here.

Opening ceremony on the first day of the Economic, Social and Cultural Rights Conference held in Pretoria from 13 to 17 September 2004. The keynote speech is being delivered by the Deputy Minister for Foreign Affairs of South Africa, Susan Van der Merwe

From left: Professor Christof Heyns, Director of the Pretoria Human Rights Centre, Germain Baricako, Secretary of the African Commission, Commissioner Nyanduga, Susan Van der Merwe, Ibrahima Kane, INTERIGHTS Legal Officer for Africa and Commissioner Chigovera	Ibrahima Kane, INTERIGHTS Legal Officer for Africa (left) with Professor Christof Heyns, Director of the Pretoria Human Rights Centre

Protocol on African Court on Human and Peoples' Rights Enters into Force

The Republic of Niger was the 16th state to ratify the Protocol on the African Court on Human and Peoples' Rights. Niger deposited its instrument of ratification on 17 May 2004. Read the communiqu� in French here.

The Protocol on the African Court on Human and Peoples' Rights entered into force on 25 January 2004. The Protocol received the required 15 instruments of ratification when the Union of Comoros deposited its instrument of ratification on 26 December 2003. The seat of the court, and the identity of the 11 judges will now be decided in February 2005.

Read the African Union's press release in English and in French, and the final communiqu� here.

Background

The Commission of the African Union, in collaboration with the African Commission on Human and Peoples' Rights, and INTERIGHTS organised a conference for East and Southern African States on the Protocol for the Establishment of the African Court on Human and Peoples' Rights in Gaborone, Botswana on 9-10 December 2003. The Government of the Republic of Botswana hosted the conference.

Representatives of the following States attended the conference: Botswana, Democratic Republic of Congo, Kenya, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Tanzania, Uganda, Zambia and Zimbabwe.

The representatives of the DRC and Lesotho informed the conference that their Governments had completed the instruments of ratification and forwarded these to the AU Commission. In addition, the representative of the AU informed the conference that Libya deposited its instrument of ratification on 9 December 2003, making it the 13th state to do so. Conference delegates applauded this important milestone that would bring into effect the Protocol.Lesotho deposited the 14th ratification.

Adoption of New Protocol to the African Charter on Human and Peoples' Rights Strengthens Women's Rights

The African Union�s adoption of the Protocol on the Rights of Women in Africa is a significant step in the efforts to promote and protect the rights of African women. Adopted on 11 July 2003, at the second summit of the African Union in Maputo, Mozambique, the Protocol requires African governments to eliminate all forms of discrimination and violence against women in Africa and to promote equality between the sexes. In addition, it obligates states to integrate a gender perspective in their policy decisions, legislation, development plans, and activities, and to ensure the overall well-being of women. Once fully ratified and implemented, the Protocol will become an important framework for ending impunity for all attacks on human rights of women in Africa.

The Protocol will enter into force 30 days after the deposit of the 15th instrument of ratification. Complementing the African Charter in promoting and protecting women�s rights, the Protocol�s provisions include the rights to life, integrity and security of person, participation in the political and decision-making process, inheritance, food security and adequate housing, protection of women against harmful traditional practices and in armed conflict, access to justice and equal protection before the law.

The implementation of the Protocol will be supervised by the African Commission on Human and Peoples� Rights, the body established to monitor compliance of states parties to the African Charter, pending the establishment of the African Court on Human and Peoples� Rights. States parties to the Protocol will commit themselves to periodically report to the Commission on the legislative and other measures undertaken to ensure the full realisation of the rights recognised in the instrument. As of August 2004, two states - Comoros and Libya - have fully ratified the Protocol, with Mali having adopted it.

Read the full text of the Protocol to the African Charter here.

Guidelines on the Right to a Fair Trial and Legal Assistance in Africa

The Guidelines on the Right to a Fair Trial were coordinated by INTERIGHTS and drafted jointly by its staff and the Human Rights Institute of South Africa (HURISA). They were developed from the Declaration and Recommendations of the Dakar Seminar on Fair Trial in Africa held during 9 to 11 September 1999. It is hoped that states will adopt these guidelines within their national legislation.

They were adopted by Heads of State at the second summit of the African Union held in Maputo in July 2003.

Read the full text of the Guidelines issued by the African Commission on Human and Peoples' Rights here.

INTERIGHTS Organises Conference for West African States on Ratification of Protocol Establishing African Court on Human and Peoples' Rights 28-29 May

INTERIGHTS collaborated with the Commission Nationale des Droits de l�Homme et des Libert�s Fondamentales (CNDHLF) of Niger and the African Union, under the auspices of the Government of Niger, to organise a Conference for West African States on the Ratification and Implementation of the Protocol Establishing the African Court on Human and Peoples' Rights (the African Court), held in Niamey between 28 and 29 May.

The Protocol was adopted by the then Organisation of African Unity at its 33rd Summit in Ouagadougou, Burkina Faso in July 1998. It complements the African Charter on Human and Peoples� Rights and establishes the African Court, a court to reinforce the protective work currently done by the African Commission.

The Conference heard that the Government of Niger had decided to ratify the Protocol at the highest level. It also heard that the Government of Togo had recently executed an instrument of ratification, that Cape Verde was beginning the process of ratification and that Benin Republic, Guinea Bissau and Niger Republic were in advanced stages of completion. The African Court will be set up after the Protocol has been ratified by 15 African countries. Burkina Faso, Burundi, C�te d�Ivoire, The Gambia, Mali, Mauritius, Senegal, South Africa and Uganda are nine countries that have already done so.

Participants endorsed the establishment of a Coalition on the African Court to facilitate full ratification of the Protocol. The Coalition will work to realise the widest possible ratification of the Protocol and ensure an early establishment of the African Court, as well as liaise with the Commission of the African Union and the African Commission to ensure effective participation of African Civil Society in resolving practical issues associated with an effective African Court. Its membership will be National Human Rights Institutions and national and international NGOs, and its ultimate goal is to enlist membership from every African country.

In July 2002, The Assembly of Heads of State and Governments of the African Union adopted resolution [AHG/Dec 171 (XXXVIII)], requesting member states, who have not yet done so, to expedite the process of ratification of the Protocol so as to ensure establishment of the Court before the end of 2003. Towards this objective, the African Union, in collaboration with INTERIGHTS is organising a series of regional seminars, the first of which will be in West Africa, to bring the Protocol to the attention of member states with a view to facilitating its ratification.

Read the final communiqu� in English and French.