PALU Newsletter, Issue no. 12, June 2013

Secretariat News

PALU Holds Experts’ Group Meeting

PALU held an experts’ group meeting on 4 and 5 June 2013 on complementarity between the African Court and African Commission in Arusha, Tanzania.The purpose of the experts’ group meeting was to establish the parameters and content of a Litigants’ Guide on Complementarity within the African Human Rights System.

The Guide will aim to serve as a practical and easily applicable litigation tool, aimed for busy lawyers and civil society activists that can adapt it to produce instant advocacy strategies and litigation pleadings as well as highlighting the instances in which litigants can initiate motions for referral: from the Commission to the Court, and vice versa.

The main chapters of the guide are as follows:

General Introduction to Complementarity, and complementarity broadly within the African Human Rights System, Dr. Godfrey Musila;
Complementarity between the African Court and the African Commission, Mr. Dan Juma;
Complementarity between the African Court and the African Committee of Experts on the Rights and Welfare of the Child, Mr. Clement Mashamba;
Complementarity between the African Court and REC Courts, Dr. Solomon Ebobrah;

Legal Assistance and Client Care and Witness Protection (while litigating at Pan African Courts and Tribunals), Ms.Osai Ojigho.

The guide will be made available to PALU members in the Fourth quarter of the year.

PALU would also like to thank the FORD Foundation for the funds it provided for the meeting.

PALU Secretariat Takes Part in Advocacy Training

PALU Advocacy Training group photo

On 6 and 7 June 2013, the PALU Secretariat participated in an inaugural training seminar on the advocacy of Regional Lawyers’ Associations (RLAs) at the African Union level and with Regional Economic Communities (RECs).

The Open Society Foundations (OSF) facilitated the training. Participants included prominent lawyers and programme staff from the African Court Coalition (ACC), East African Law Society (EALS), the Ethiopian Lawyers Association (ELA), the Intergovernmental Authority on Development (IGAD), the SADC Lawyers Association (SADC-LA) and the West African Bar Association (WABA).

The key objectives of the meeting were:

To (re) introduce to the emerging architectures of the AU and the RECs, especially possibilities for advocacy for constitutionalism, democracy, good governance, rule of law, human and peoples’ rights, and generally on the fight against impunity in Africa;
To compare and contrast the various paths that the AU and the different RECs have taken, and to distil best practices from each; and
To build our respective individual and institutional knowledge, skills and capacities to engage in advocacy with the AU and the RECs.

PALU would like to thank OSF for facilitating the training and looks forward to future collaborations with the OSF family.

To download the presentations, please click here for the presentation on the Ratification and implementation of the AU treaties; click here for the presentation on the African Governance Platform and here for the presentation on the African Union

PALU Participates in SADC-LA’s Regional Human Rights Training Workshop

On 13 and 14 June 2013, SADC-LA hosted a Regional Human Rights Training Workshop for approximately forty participants drawn from Civil Society Organisations and National Bar Associations from the SADC region, in Johannesburg.

The Workshop aimed to evaluate the state of human rights in the region as well as train participants on advocacy techniques and strategies to further promote human rights. The key highlights of the workshop included the need to address the worsening situation in the Democratic Republic of Congo, developing security and protection measures for human rights defenders and developing strategies for the reinstatement of the SADC Tribunal.

PALU delivered a presentation on New Policy Trends and Developments in Human Rights and International Criminal Justice.

The African Court Delivers Judgement in the Independent Candidates Case

On 14 June 2013, the African Court delivered its Judgement in the Independent Candidates Case.The case was filed in June 2011 by TLS, LHRC and Reverend Christopher Mtikila. The Applicants argued that the Eight (1992) and Eleventh (1994) Amendments of the Tanzanian Constitution, which require all persons running for Presidential, Parliamentary and Local elections to be a member of and/or to be sponsored by a political party. The amendments thus prohibit independent candidates from contesting these elections. The Applicants submitted that the government of Tanzania had violated the provisions of the African Charter on Human and Peoples’ Rights (African Charter) and the International Covenant on Civil and Political Rights (ICCPR), which guarantee freedom of association, non discrimination, equality before the law and the right for a citizen to participate freely in the government of his/her country, either directly or through freely chosen representatives.

For the full Judgement please click here.

PALU was happy to have been amongst the lawyers representing the Applicant, who included its local Member Organization: the Tanganyika Law Society (TLS). We will continue to assist our member as he pursues full compliance with the Decision of the Court.

This marks the first case in the history of the Court to proceed on merits and in which the Applicants were successful. PALU applauds the African Court for the work it is doing in protecting human and peoples' rights.

PALU Participates in Meeting to End Mass Atrocities

PALU took part as a panellist, moderator and key contributor in the 2013 Convening Meeting to end mass atrocities under the theme “Emerging Powers”. The aim of the meeting were to discuss the rising influence of emerging power countries (Brazil, India, South Africa, etc.) on international human rights and atrocity prevention issues and to strengthen the ability to prevent and respond to mass violence against civilians.

For more information you can contact Sally Smith at sally@nexus-fund.org

Back to top

News from Other Organizations

AU Solemn Declaration Adopted

At the 21st Ordinary Session of Assembly of Heads of States and Governments of the AU, the 50th Anniversary Solemn Declaration was adopted.

Please click here to read the full text of the Declaration.

IRRI Publishes Paper on Marginalised Individuals in Sudan

The paper is the ninth in a series of working papers that form part of a collaborative project between the International Refugee Rights Initiative (IRRI), the Social Science Research Council, and civil society and academic partners in the Great Lakes region. The project seeks to gain a deeper understanding of the linkages between conflicts over citizenship and belonging in the Great Lakes region, and forced displacement. It employs social science research under a human rights framework in order to illuminate how identity affects the experience of the displaced before, during and after their displacement. The findings are intended to facilitate the development of regional policies that promote social and political re-integration of forced migrants by reconciling differences between socio-cultural identities and national citizenship rights that perpetuate conflict and social exclusion

To read the paper, please click here.

TJRC (KENYA) Finalises Report

The Truth, Justice and Reconciliation Commission (TJRC) was established by an Act of Parliament (Truth Justice and Reconciliation Commission Act no. 6 of 2008) to investigate the gross human rights violations and other historical injustices in Kenya between 12 December 1963 and 28 February 2008. The TJRC is part of the accountability component of Agenda Four (4) of the National Accord signed in 2008. By addressing the cause and effects of historical injustices and gross violations of human rights the TJRC will contribute towards national unity, reconciliation, and healing

The objectives of the TJRC are:

Truth: by establishing an accurate, complete and historical record of human rights violations and historical injustices;
Justice: Criminal justice, restorative justice, social justice;
Peace;
National Unity;
Healing and Reconciliation (national and individual);
Restoration of the human dignity of victims and perpetrator.

The Kenya Human Rights Commission and Transitional Justice Network will be reviewing the TJRC final report in the context of the TJRC Act and the politics before its submission to the President.

Click here for the full report of Truth Justice and Reconciliation Commission of Kenya

ECCAS Approves Free Movement in the Region

From 1 January 2014, ECCAS will allow for free movement of citizens of its six members (Cameroon, Chad, Central African Republic, Congo, Equatorial Guinea and Gabon) within this region.

ECCAS has also decided to establish a common policy framework for the protection of trade within the region. This will include the harmonization of policies, the fight against counterfeiting and facilitating access to pharmaceutical companies in the regional market.

PALU would like to applaud the ECCAS states for this positive move.

FHRI Elected to the International Board of FIDH

The Foundation for Human Rights Initiative (FHRI), in Uganda, which is an Affiliate member of FIDH was elected to the post of Vice President.

The organization was represented by Ms.Sheila Muwanga the Ag. Deputy Executive Director (Programmes).

The vote was held during the 38th FIDH Congress in Istanbul held between 23 and 27 May 2013, where over 100 FIDH member organisations were meeting to elect the new International Board and define the main FIDH orientations for the next three years.

PALU would like to congratulate FHRI on its new appointment.

Stakeholders’ Conference on Enhancing the Effectiveness of the African Court

Konrad Adenauer Stiftung, under the aegis of its Rule of Law Program for Sub-Saharan Africa, and in collaboration with the Coalition for an Effective African Court on Human and Peoples’ Rights (CEAC), organized a stakeholders’ conference on the theme “Enhancing the Effectiveness of the AfricanCourt” in Durban, South Africa, from 4to 7June 2013.

Please click here for the full report.

IBA Launches an Anti-Corruption Guidance for Bar Associations

The International Bar Association (IBA) has launched a range of practical and substantive recommendations to assist bar associations in developing their anti-corruption policies. The 13-page document entitled IBA Anti-Corruption Guidance for Bar Associations: Creating, Developing and Promoting Anti-Corruption Initiatives for the Legal Profession (Anti-Corruption Guidance) was drafted by the IBA’s Legal Projects Team in conjunction with an expert consultation group comprised of members of the IBA Bar Issues Commission and the IBA Anti-Corruption Committee.

The purpose of the Guidance is to encourage bar associations around the world to take affirmative steps to support the legal profession in combating corruption. The Guidance aims to complement the IBA Council’s previous resolutions on anti-corruption in particular the Council’s 1995 resolution on Money Laundering and the 2010 resolution on Anti-Corruption.

Click here for the full text of the guidance.

Call for Papers: University of Nairobi Law Journal

The UNLJ invites scholarly articles and reviews on contemporary legal issues from all branches of law. The editor welcomes scholarly articles from legal scholars, legal practitioners and judicial officers. Submissions from law students are encouraged, whether at undergraduate or graduate level. This includes dissertations that have been produced and submitted to the author’s school in fulfilment of his/her degree requirements.

The submission should be in an editable form and should conform to academic citation standards. The submission should not be longer than 15 pages and should be received on or before 12August 2013.

For submission or further information, email the Editor at m.a.majid2011@gmail.com

AUC and CSVR Sign MoU

The Centre for the Study of Violence and Reconciliation (CSVR) has recently signed a Memorandum of Understanding (MoU) with the African Union Commission (AUC). The document that formalises the long-standing institutional relationship between the two entities was signed on the margins of the significant 50th Anniversary Commemorations of the Organisation of African Union (OAU) in Addis Ababa, Ethiopia.

The signed MoU enables the CSVR and the AUC to cooperate on mutual issues of interest in accordance with the relevant policies and procedures of the AU. Some of these issues relate to: promoting and protecting human rights; good governance; rule of law; transitional justice; and human security. These shall be achieved through research, training and capacity building and any other mutually defined area of common interest.

In fulfilment of the MoU, CSVR is committed to continued collaborations with all civil society organisations working towards the promotion of Human rights, democracy and governance on the African continent and achieving sustainable peace, social and transitional justice.

For queries and further comments, please contact:
Shuvai Nyoni: snyoni@csvr.org.za, shuvai.busuman@gmail.com or +27 72 147 1427
Delphine Serumaga: dserumaga@csvr.org.za or +27 11 4035650

African Court Holds 29th Ordinary Session

The African Court held its 29th Ordinary Session from 3to 21 June 2013. The Court held three public hearings and delivered three Judgements. On 14 June 2013, the Court delivered a Judgement in the Independent candidate Case (above).

Delivery of Judgment in the matter of Urban Mkandawire v. Republic of Malawi (Application 003/2011)

On Friday 21 June, during its 29th Ordinary Session, the African Court on Human and Peoples’ Rights delivered its Judgement in this case emanating from Malawi. The Applicant was employed as a French lecturer by the University of Malawi in December 1998 and started teaching in July 1999. The Applicant was later dismissed by the University and was paid only one month salary instead of the three months pay in lieu of leave provided for by the employment contract.

The Applicant seized the national courts in Malawi and his case reached the Supreme Court, where it was ruled that the notice given was in contravention of the contractual terms and an additional two months pay was awarded. The highest Court refused to determine whether the dismissal was fair and referred the case back to the Industrial Board for adjudication. The case went back a second time to the Supreme Court, where the Court refused to pronounce itself, the remedy sought being inadequate.

After first lodging the case before the African Commission on Human and Peoples’ Rights, the Applicant opted to vacate his communication and lodge the case at the African Court in 2011. As a national of Malawi, Judge Tambala did not sit in on the case in accordance with Art. 22 of the Court Protocol and Rule 8(2) of the Rules of the Court.

The Applicant alleged violations of Art. 4, 15, 17 and 19 of the African Charter on Human and Peoples’ Rights. The case was heard during the 27th Ordinary Session of the Court, where arguments were presented on both the preliminary objections and the merits.

The Respondent Government raised the following preliminary objections:

Lack of jurisdiction based on the principle of sub judice, the matter being pending before the African Commission;
Lack of temporal jurisdiction, the events having occurred before the Protocol came into force.

With regard to preliminary objections raised the Court ruled:

For the first objection, the Commission confirmed the Applicant had withdrawn the case and the Court therefore accepted its jurisdiction over the matter.
Regarding the second objection, the Court determined that although the Protocol was not yet in force when the alleged events occurred, the Respondent Government had already ratified the African Charter, giving the Court jurisdiction over Human Rights violations.

Moreover, even though an objection was not raised by the Respondent Government, the Court examined whether the Applicant had exhausted local remedies before seizing the Court.

According to Rule 40 (5), Art. 6 (2) of the Protocol and Art.56 (5) of the Charter, it is a prerequisite that any Applicant should exhaust local remedies before lodging a case at the Court. The absence of an objection by the Respondent does not prevent the Court from asserting its jurisdiction. As such, the Court stated that if local remedies are still open to the Applicant at the time he lodged his application with the Court, then the case should be ruled inadmissible.

In reviewing the decisions of the national courts and tribunals, the Court determined that the Applicant did not seek the appropriate local remedy, based on his course of action. The African Court mentioned that the national jurisdictions are the best placed to make the determination as to whether local remedies exist. Therefore, the failure of the Applicant to seek the appropriate local remedy equalled to the non exhaustion of the local remedies, rendering the Court incompetent. The Court thus dismissed the case, with three Judges dissenting, on the basis of non exhaustion of local remedies.

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. Republic of Burkina Faso

On 21 June 2013, the African Court, pronounced its Ruling on the preliminary objections in the above-mentioned case. PALU was receiving the Ruling on behalf of the Applicants.

The case was brought before the Court on behalf of the family of an investigative journalist Norbert Zongo, who alongside his companions was assassinated in Burkina Faso. He was killed simply because he was investigating various sensitive government activities, including the death of the driver of the President’s brother under suspicious circumstances. The Applicants alleged that the government of Burkina Faso was complicit in the deaths and that it had failed to investigate and bring to justice those responsible. They alleged violations of the African Charter (Art. 1, 3, 4, 7 and 9), the International Covenant on Civil and Political Rights (ICCPR) (Art. 2, 3 6(1), 14 and 19), Universal Declaration on Human Rights (UDHR) (Art 8) and the ECOWAS Revised Treaty (Art. 66 (2) (c)) on the Rights of Journalists.

The Respondent Government raised the following preliminary objections:

Lack of temporal jurisdiction, the acts having taken place before the Court Protocol entered into force;
Lack of exhaustion of local remedies, the Applicants having failed to seize the Supreme Court, the highest Court in Burkina Faso, before approaching the African Court;
Unreasonable delay in seizing the Court on the matter.

After consideration, the Court unanimously ruled as follows:

As regard its temporal jurisdiction, the Court separately adjudicated based on the violations of the rights alleged.

Lack of temporal jurisdiction to adjudicate the violations of the right to life, death being an instantaneous event in nature, which occurred before the Court Protocol entered into force.
The Court has temporal jurisdiction over the violations of the right to seek redress through national jurisdictions, based on the inaction of the Respondent and failure to arrest, try and punish effectively the perpetrators. Although the Protocol was not yet in force when the alleged events occurred, the Respondent had ratified the African Charter which gives the Court Jurisdiction over Human Rights violations. As such, the inaction by the Respondent constitutes an incomplete act, which satisfies the notion of continuous violation. Therefore, the Applicants are not under any obligation to seek ineffective remedies and the Court can be seized without exhausting local remedies.
The Court has not enough information to determine whether it is competent regarding the violations of the rights alleged. Therefore, the Court will reserve its ruling after the parties proceeded on the merits, but only as to these rights are related to the right of the accused to seek remedy though national jurisdictions.

Regarding the delay in seizing the Court, it was ruled that the delay was reasonable. The Court ruled that the delay doesn't start from the last decision of a Court of Justice within the national jurisdiction or the expiration of the delay to appeal from such a decision, but from the date the Court adopted its draft rules of procedures, the earliest date the Court could receive cases and offer remedy to alleged violations. The Court further expressly mentioned that it will determine in each instance what constitutes a reasonable delay based on the elements presented and that in the case at hand, a delay of 3 years and 4 months was reasonable considering the time the Applicants needed to determine the opportunity to seize the Court and prepare its brief.

The Court therefore decided that:

The case should proceed on its merits;
The Respondent has 30 days to submit its brief on the merits;
The Applicants would then have 30 days to respond from the date of submission of the Response.

It is worthy of note that the African Court relied on the Draft Articles on Responsibility of States for Internationally Wrongful Acts to determine what constitutes an instantaneous event and a continuous violation of rights under international law.

AUC Calls for Dialogue and Cooperation on the Issue of the Nile River Water Management

The Chairperson of the AU Commission, Dr. Nkosazana Dlamini Zuma, has been following closely the latest developments in the relations between Egypt and Ethiopia over the issue of the Nile River. She notes with concern the tension resulting from the situation and has released a Press release on the issue.

Click here for the Chairperson’s Press Releases.

For more information you can email the Situation Room at SituationRoom@africa-union.org.

Back to top

Upcoming Events

SADC-LA to Hold AGM and Conference

The Councils of SADC-LA and the Malawi Law Society (MLS) will be holding the Fourteenth SADC-LA Annual General Meeting (AGM) and Conference on 2 and 3 August 2013, under the theme “Constitution-Making and Constitutionalism in SADC: Opportunity or Illusion for Justice, Peace and Shared Values”.

Click here for the Conference information brochure.

The Law Society of Kenya (LSK) to Hold Annual Conference

(LSK) will hold its 2013 Annual Conference from 14 to 18 August 2013, at the Leisure Lodge and Golf Resort in Mombasa. The Conference will be held under the theme: “Realizing Devolution & Decentralization under the Constitution”

For more information you can send an email to angelak@lsk.or.ke or call +254 (020)8155295,
(0720)904983, (0704)442166, (0704)442154

NBA to Hold AGM

The Nigerian Bar Association (NBA) will be holding its AGM from 25 to 30 August 2013. Click here for registration details.

TLS to Hold Half Annual Conference and General Meeting

The Tanganyika Law Society (TLS) will be holding its Half Annual Conference and General Meeting on the 30 and 31 August. The Conference will be held on the 30 August 2013, under the Theme “Constitutional Making Process: Stock Taking”, while the Half Annual General Meeting will take place on Saturday, 31 August 2013, at the Dodoma Institute of Rural Development Planning Hall.

African Legal Awards (ALA) 2013

Legal Week in association with the Corporate Lawyers Association of South Africa (CLASA) is launching the African Legal Awards (ALA) in an event taking place on 24 October 2013, at La Toscana Montecasino, Fourways in Johannesburg, South `Africa.

The awards celebrate legal excellence in Africa and are open to in-house legal teams and lawfirms operating throughout the continent. Categories include General Counsel of the Year, Legal Department of the Year, Legal Team of the Year and Law Firm of the Year. There will also be a series of sector-based awards to celebrate the achievements of law firm teams working across the continent.

For registration dates and deadlines, you can visit the African Legal Awards website at: http://www.africanlegalawards.com/

Advertisements and Vacancies

Call for Applications to be on the List of Counsel at the African Court

The African Court on Human and Peoples’ Rights has adopted a Legal Aid Policy for 2013-2014 to guide the operation of its Legal Aid Scheme and calls for applications of Counsels to assist indigent applicants before the Court.

Please click here for the full call.

Please click here for the Legal aid Policy.

Back to top

The Headlines