Communication

Author
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Judgment date
Case number
Communication 444 of 2013
Court name
African Commission on Human and Peoples Rights

Communication 444/13: Justice Thomas S. Masuku v. The Kingdom of Swaziland

SUMMARY OF THE COMMUNICATION

  1. The Communication was received at the Secretariat of the African Commission on Human and Peoples' Rights on 11 April 2013. It is submitted by Justice Thomas S. Masuku (the Victim), who is represented by Lawyers for Human Rights - Swaziland (the Complainant). >
  2. The Communication is submitted against the Kingdom of Swaziland (the Respondent State), now officially the Kingdom of Eswatini, a State Party to the African Charter on Human and Peoples' Rights (the Charter), which it ratified on 15 September 1995.
  3. The Complainant states that the Victim was appointed as Judge of the High Court of Swaziland with effect from 01 July 1999.
  4. The Complainant avers that in 2003 the Victim was demoted to the Industrial Relations Court of Swaziland, which is inferior to the High Court. The Complainant further avers that, given the glaringly unlawful demotion which violated the Victim's security of tenure as Judge which is protected under Section 3 of the High Court Act, the Victim challenged it before the High Court. However the judges of the High Court recused themselves from hearing the application on the ground that the Judges were members of the same court and the Judges were very close to each other. In the recusal ruling the court recommended that an ad hoc judge be promptly appointed to hear and determine the application.
  5. The Complainant submits that eight months later the Victim was reinstated as Judge of the High Court. Shortly after his reinstatement, however, he was appointed as Judge of the High Court of the Republic of Botswana for four years.
  6. Upon ret rn from serving as Judge of the High Court in Botswana, the Victim resumed his duties as Judge of the High Court and occasionally also sat in the Supreme Court in an acting capacity.
  7. On 28 June 2011, the Chief Justice Michael M. Ramodibedi, acting in his capacity as the Chairperson of the Judicial Service Commission (JSC), laid charges against the

Victim and called him to show cause why he should not be removed as Judge of the High Cou t. The Victim was invited to make representations on why he should not be removed from office for alleged serious acts of misbehaviour, and was invited to attend an oral hearing and make oral representation before the JSC on 11 August 2011. In total, twelve charges were levelled against the Victim; however Charge number 12 was subsequently withdrawn:

  1. Failing to deliver judgments on time e.g. R v. Vusumuzi Dlaminu, Case No 375/09.
  2. Defying the Chief Justice's directive to prepare and submit a monthly schedule of pending judgments.
  3. Insulting His Majesty the King by using the words "forked tongue" with reference to him.
  4. By touting yourself to be appointed Chief Justice, especially amongst the chiefs,
  5. Actively associating with those who want to bring about unlawful change to the regime.
  6. Destabilising the High Court Judges and staff.
  7. By sending one Gugu Vilakati, a High Court staff member, to a workshop in Hong Kong without the Chief Justice's approval, purportedly in your capacity as Chairman of a law reporting board under the Chief Justice.
  8. By absenting yourself from work without the Chief Justice's permission particularly on 30 March 2010.
  9. By threatening the Chief Justice with resignation when you were confronted with your absenteeism from work without leave on 30 March 2010.
  10. By attacking the Chief Justice at a symposium of the International Commission of Jurists (ICJ) held in Lesotho on 29 July 2010 for banning Judges from giving interviews to the news media, thus demonstrating both insubordination and disloyalty to the Chief Justice.
  11. By joining a toyi toyi by CTA staff at the gate of the High Court on 17 June 2011. This was a protest to show dissatisfaction against the fact that the Judge President of the Industrial Court cannot finalize the CTA case due to his suspension.[1]
  1. By Legal Notice No.88 of 2011 issued on 28 June 2011, the Victim was suspended pending an inquiry into the question of his removal from office, with effect from 01 July 2011.
  2. The Complainant submits that on 25 July 2011 the Victim's legal representative filed his defence with the JSC, denying all the charges, and on 04 August 2011 filed preliminary objections. The preliminary objections submitted the following: that the Chief Justice ought to recuse himself from the proceedings in the matter; that the procedure by which the JSC's inquiry in the matter had been initiated and convened, was fatally flawed; and that the JSC inquiry in the matter must allow for a public hearing.
  3. The Complainant submits that, on 11 August 2011, the JSC convened for the disciplinary hearing, where the Victim's preliminary objections were rejected. Further, after the hearing concluded the JSC came to its conclusion and recommended to His Majesty that the Victim should be removed from office. On 27 September 2011, the King, as he is constitutionally bound, removed Justice Masuku as a High Court Judge.

Articles alleged to have been violated

  1. The Complainant alleges that Articles 1, 7 and 26 of the African Charter on Human and Peoples' Rights (the African Charter) have been violated.

 

Prayers

  1. The Complainant requests the Commission to:
  1. find that the hearing and subsequent dismissal and removal of Justice Thomas Masuku as a judge of the High Court violated Articles 1, 7, and 26 of the African Charter, as read with the Constitution (2005);
  2. order the Respondent State to reinstate Justice Thomas Masuku to the High Court Wb. Z
  3. that Justice Masuku is compensated for the loss he suffered as a result of the unlawful removal.

Procedure

  1. The Communication was received at the Secretariat on 11 April 2013, and the Secretariat acknowledged receipt on 10 June 2013.
  2. The Commission decided to be seized of the Communication during its 14th Extra-Ordinary Session, held from 20 to 24 July 2013, in Nairobi, Kenya.
  3. On 28 July 2013, the Commission's decision was transmitted to the Complainant with a request to the latter to file written arguments and evidence on the admissibility of the Communication within two months, in terms of Rule 105(1) of the Rules of Procedure. On the same date, the Secretariat also notified the Respondent State about the Communication, and transmitted the Commission's decision on seizure together with a copy of the Complaint to the Respondent State.
  4. Before the expiry of the two months period, the Complainant submitted written—... arguments and evidence on admissibility.
  5. The Secretariat transmitted a copy of the Complainant's submissions on Admissibility to the Respondent State on 06 September 2013, requesting the State to present its written submissions on Admissibility within two months, in terms of Rule 105(2) of the Rules of Procedure. The Respondent State was further notified that the Commission would take a decision on the available information if the former did not present its written submissions within the prescribed time.
  6. During the holding of the 16th Extra-Ordinary Session, from 20 to 29 July 2014, Kigali, Rwanda, the Commission noted that the Complainant had not made any submission on the admissibility requirement stipulated at Article 56(6) of the Charter. By a letter dated 16 July 2014, the Complainant was requested to provide an explanation in light of Article 56(6) of the Charter. The Complainant provided the requested explanation by letter received by the Secretariat on 22 July 2014 during the holding of the 16th Extraordinary Session.
  7. The Commission declared the Communication admissible during the 16th Extra-Ordinary Session.
  8. The Commission's decision was notified to both the Complainant and the Respondent State, by letter and Note Verbale dated 08 August 2014. Alternatively, the Commission requested the Complainant to confirm if the submissions on the merits contained in the initial Complaint would stand as his submissions on the merits.
  9. At the time the Commission held its 17th Extra-Ordinary Session in February 2015, the Complainant had neither submitted the merits submissions, nor confirmed that the submissions in the Complaint shall stand as the merit submissions. Accordingly, the Communication was struck out for want of diligent prosecution during the 17th Extra-Ordinary Session.
  10. The decision striking out the Communication was transmitted to the Complainant by letter dated 02 March 2015, and to the Respondent State by Note Verbale dated 04 March 2015.
  11. By letter dated 12 April 2015 from Professor Michelo Hansungule, who had been retained to represent the Victim in the Communication, the Victim submitted an application for the Communication to be re-listed. The application for re-listing was transmitted to the Respondent State on 25 April 2015; however the State did not present any observations on the application.
  12. During the 18th Extra-Ordinary Session, held in August 2015, the Commission re­listed the Communication for consideration on the merits.
  13. The decision to re-list the Communication was transmitted to the parties on 14 August 2015. The Complainant's initial Complaint, which contains the Complainant's submissions, were re-transmitted to the Respondent State with a request to the latter to submit its observations on the merits.
  14. On 30 October 2015 the Respondent State transmitted a letter to the Secretariat, confirming receipt of the Commission's correspondence of 04 March 2015, however indicated that the State had not received the annexed decision. On 10 November 2015, the Secretariat transmitted a Note Verbale to the State, transmitting proof of delivery of the documents by email and DHL. On 02 December 2015, the Respondent State transmitted a letter to the Secretariat, once again reiterating that it did not receive the submissions of the Communication.
  15. In response, on 09 December 2015 the Secretariat transmitted a Note Verbale to the Respondent State which provided information on proof of delivery by email and courier, in addition to transmitting the Complainant's merits submission and requesting the Respondent State's submissions on the merits within thirty (30) days from the date of notification. Additionally, during the Commission's Promotion Mission, the Secretariat transmitted a hard copy of the Complainant's submissions on the Merits on 08 August 2016.
  16. On 13 December 2017, the Respondent State transmitted submissions on the Merits, which we"? transmitted to the Complainant.
  17. Informational letters were transmitted to the Parties from the 62nd to the 68th Ordinary Session.

 

ADMISSIBILITY

 

The Complainant's Submissions

  1. In the written submissions the Complainant initially addressed one admissibility requirement only: the exhaustion of local remedies as stipulated at Article 56(5) of the Charter. As noted above, the Complainant provided an explanation relating to Article 56(6) of the Charter in response to a request by the Commission.
  2. In respect of Article 56(5) of the Charter, the Complainant argues that there are no remedies a Swaziland to redress the Victim's removal as Judge of the High Court, and advances several reasons to make out that proposition.
  3. Firstly, the Complainant contends that the judiciary to which the Victim would have to lodge an application to review and set aside his dismissal is highly perceived as, and is in fact, not independent. The Complainant submits that perception is a significant factor in determining the independence of a judiciary, citing in support thereof, among others, the cases of Van Rooyen v. S (General Council of the Bar of South Africa Intervening) 2002(5) SA 246 (CC) para. 32 and South African Personal Injury Lawyers v. Heath 2001 SA 883 (CC) paras. 25-5 (sic), decided by the Constitutional Court of South Africa.
  4. The Complainant avers that the situation regarding the independence of the judiciary in Swaziland has kept worsening despite the promulgation of a new Constitution in 2005. As indicators, the Complainant states that 'in the recent past' the Government has recorded 100% success in matters where it is a party, particularly in the Supreme Court. Further, the Government through the Prime Minister has openly declared its support for the Chief Justice in the latter's stance and manner of heading the judiciary.
  5. To buttress the point regarding the alleged lack of independence of the Respondent State's judiciary, the Complainant cites Communication 251/2002: Lawyers for Human F'ghts v. Swaziland in which the Commission stated and held that: "[it] believes that taking into consideration the general context within which the judiciary m Swaziland is operating and the challenges that they have been faced with, especially in the recent past, any remedies that could have been utilised with respect to the present communication would have likely been temporary. In other words, the African Commission is of the view that the likelihood of the complainant succeeding in obtaining a remedy that would redress the situation complained of in this matter is so minimal as to render it unavailable and therefore ineffective. For the reasons stated herein above, the African Commission declares this communication admissible."[2]
  6. Secondly, the Complainant argues that domestic courts are likely to be partial and biased towards or be influenced by the Chief Justice. The Complainant states that any application the Victim would have to lodge before domestic courts, challenging his dismissal, would necessarily have to include the Chief Justice as respondent, or in any event the matters arising from his interaction with the Chief Justice and the measures taken by t ie latter against him that would be challenged.
  7. The Complainant claims that the Chief Justice has demonstrated that he wants judges of the High Court to abide by his directives. For example, in his address on the occasion of the opening of the High Court on 18 January 2010, the Chief Justice ordered judges to stop expressing themselves to the media and associating with some people.
  8. Further, the Complainant states that the Chief Justice has issued a directive on allocation of cases which gives him the capacity to direct and influence the allocation of matters to specific judges to secure outcomes that favour particular interests. In the same vein, when a case has to be heard before a panel of judges, the Chief Justice also directs which judge should preside and which judge should write the judgment of the court, as it happened in the case of Law Society of Swaziland v. The Speaker of the House of Assembly and Another Case No. 1145/12 High Court of Swaziland. When empanelling the court for that case, the Chief Justice directed a specific judge to preside during the hearing and another particular judge to write the majority or unanimous judgment of the court
  9. The Complainant contends that the practice of choosing the presiding judge and the judge who drafts the judgment interferes with the decisional independence of the judges, and creates the perception that he gives specific instructions on the conduct and outcome of the case to the judges that he prefers for those specific roles.
  10. Furthermore, the Complainant contends that it is inconceivable that judges of the High Court would possibly make a finding against the Chief Justice who is the head of the judiciary.
  11. From the above, the Complainant surmises that there is a veritable likelihood that the Chief Justice will influence the outcome on any application lodged with the domestic courts challenging his dismissal.
  12. Thirdly, the Complainant avers that local remedies are not available because judges who would hear his application against the dismissal will be apprehensive to make a finding against the King who ultimately dismissed him. He contends that the judges would be apprehensive of the repercussions of sitting to hear and decide a matter possibly against the King's decision, a task that partly earned the Victim the charges which led to his dismissal.
  13. Fourthly, and more importantly, the Complainant maintains that local remedies are not available because the Chief Justice has, suo motu, and administratively issued a Practice Directive to the effect that legal suits against His Majesty the King, or any person acting for and on his behalf, should not be accepted by the Registrar of the High Court or any court staff, purportedly pursuant to Section 11 of the Respondent State's Constitution. The Complainant further states that attempts by the Law Society of Swaziland to have the Practice Directive reviewed administratively have not been successful. Such attempts included the lawyers' boycott of court attendance that lasted four months.
  14. Fifthly, the Complainant states that in terms of the existing domestic case law, courts are indisposed to hear and determine matters in which one of the parties is a fellow judicial officer. The Complainant cites two previous cases which articulate the position of courts in such matters: the case of Law Society of Swaziland v. The Swaziland Government and Two Others, Civil Case No. 743/2003 (as yet unreported) decided by the High Court; and the case of Minister of Justice and Constitutional Affairs v. Stanley Wilfred Sapire, Civil Appeal Case No 49/2001 (as yet unreported) decided by the Court of Appeal.
  15. In the former case, the Law Society of Swaziland lodged an urgent applicant before the High Court challenging the variation of terms and conditions of appointment of the Complainant from the High Court to the Industrial Relations Court. The High Court judge before whom the urgent application came for hearing and determination recused himself on the grounds that the High Court being a small institution, judges interact and have proximate relations with each other, that they cannot be or be perceived to be impartial in hearing and determining cases in which a fellow judge is a party. The Court in that case recommended the appointment of a judge from outside the jurisdiction in accordance with Swazi law.
  16. The latter case of Sapire, was an application by the then Chief Justice Stanley Wilfred Sapire before the High Court seeking an order determining the age and date of his retirement. On appeal against the refusal by the three High Court Judges to recuse themselves, the Court of Appeal ordered the High Court Judges to recuse themselves on the basis of proximate relations between the judges and the Chief Justice who was the applicant.
  17. The Complainant contends that in terms of the doctrine of stare decisis, there is a great likelihood that the High Court before which he would lodge any application challenging his dismissal would decline to hear and determine the matter pursuant to the existing case law.
  18. The Complainant invokes the established jurisprudence of the Commission that the local remedies that ought to be exhausted as required under Article 56(5) of the Charter must be: (a) available in the sense of a complainant pursuing them without impediment; (b) effective in the sense of offering a prospect of success; and (c) sufficient in the sense of being capable of redressing the complaint.[3] The Complainant concludes by submitting that no remedies fitting these criteria are presently available within the Respondent State's legal system.
  19. Accordingly, the Complainant prays that the Commission should declare this Communication admissible.

 

The Commission's Analysis on Admissibility

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  1. As stated above the Respondent State has not presented its submissions on Admissibility, despite the opportunity accorded to it to do so in terms of Rule 105(2) of the Rules of Procedure. The Commission has time and again bemoaned the lack of written submissions from one of the parties to a Communication. Inevitably in such cases, the Commission has to adopt its decision on the basis of information provided by one party, which deprives the Commission the benefit of a balanced version of the complaint under consideration.
  2. Regarding Admissibility of a Communication submitted pursuant to Article 55 such as the present, Article 56 of the Charter stipulates seven conditions which have to be satisfied for such Communication to be considered on the merits.
  3. The Commission adopts the position that the requirements for admissibility under Article 56 of the Charter are cumulative and must each be adequately addressed and fulfilled for a Communication to be declared admissible. Consequently, if upon the Commission's assessment of the information submitted any one of the conditions is not satisfied, the Communication will be declared inadmissible entirely or to the extent of non-conformity as the case may be: see, among others, Communication 304/05: FIDH and others v. Senegal (2006) ACHPR para 38; Communication 338/07: Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria (2010) ACHPR para 43; and Communication 284/03: Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v. Zimbabwe (2009) ACHPR para 81; and Communication Anuak Justice Council v. Ethiopia (2006) ACHPR para. 44.
  4. In that regard, the Commission's practice is to examine a Communication in light of each admissibility requirement as stipulated under Article 56 of the Charter,[4] even if the parties have not advanced any arguments on any of the conditions.

Indication of the Authors, Article 56(1) of the Charter

  1. The Commission notes that the identities of the Victim in the present Communication and the Complainant are clearly indicated respectively as Justice Thomas S. Masuku and Lawyers for Human Rights - Swaziland respectively, with full contact details of the latter. Clearly, Article 56(1) of the Charter requiring that the author must be indicated, as read together with Rule 93(3) of the Rules of Procedure, are duly satisfied and the Commission finds accordingly.

Compatibility with the Charter, Article 56(2) of the Charter

  1. Regarding Article 56(2) of the Charter, the Commission notes that the present Communication alleges violations of Articles 1, 7 and 26 of the Charter. In the broad terms of Article 55 of the Charter providing for Communications other than those brought ^y State Parties, the Complainant is entitled to submit the present Communication. Further, the Communication is brought against a Party to the Charter. The violations complained of allegedly occurred within the jurisdiction of the Respondent State and apparently at the instance of its institutions and officials. Furthermore, the violations occurred after the Charter had become enforceable against the Respondent State. There is nothing in the information submitted by the Complainant indicating to the contrary on each of these elements.
  2. The Commission is accordingly satisfied that the present Communication is compatible with the Charter by reasons of the subject matter, the parties, the location of the alleged violations, and the time the alleged violations occurred, all in terms of Article 56(2) of the Charter.

Language of the Communication, Article 56(3) of the Charter

  1. The Commission does not include any disparaging or insulting language in the Complainant's submissions directed against the Respondent State and its institutions or the AU. Accordingly the Commission holds that the Communication complies with Article 56(3) of the Charter.

Source of evidence or information relied on, Article 56(4) of the Charter

  1. The Commission observes that the Communication is not exclusively based on news disseminated through the mass media. As a matter of fact it is almost entirely based on the Victim's own account of his involvement in, and written records of various proceedings at the domestic level leading to his dismissal. Accordingly, Article 56(4) of the Charter is accordingly satisfied.

Whether settled in terms of Article 56(7) of the Charter

  1. There is no information to the Commission's knowledge indicating that the subject matter of the present Communication has been settled in terms of Article 56(7) of the Charter. Consequently, the Commission deems the Communication compliant with Article 56(7) of the Charter.

Exhaustion o local remedies, Article 56(5) of the Charter

  1. Regarding Article 56(5) of the Charter, the rule is that a Communication will be considered on the merits if it is "sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged." From the language of the rule, firstly, where a Complainant successfully makes out the case that the procedure for pursuing local remedies is unduly prolonged, the requirement to exhaust local remedies before submitting a Communication would not apply. For this purpose, whether the procedure is unduly prolonged is a question of both law and fact to be settled on the circumstances in each case. The Commission does not wish to belabour this point as it does not arise for consideration in the present Communication.
     
  2. In furtherance of compliance with Article 56(5) of the Charter, Rule 93(2)(i) of the Rules of Procedure requires a Complainant to outline the steps taken to exhaust domestic remedies, or if the applicant alleges the impossibility or unavailability of domestic iemedies, the grounds in support of such allegation.[5]
  3. Further, the Commission's jurisprudence is well established that the local remedies required to be exhausted must be (a) available,[6] (b) effective, and (c) sufficient. A remedy is considered available it firstly it exists, and secondly a victim can access, pursue or make use of it without impediment; it is considered effective if it offers a prospect of success; and it is considered sufficient if it is capable of redressing the wrong established to have been suffered: see, among others, Communication 147/95- 149/96: Sir Dawda K. Jawara v. The Gambia (2000) ACHPR paras. 31-32; Communication 299/05: Anuak Justice Council v. Ethiopia (2006) ACHPR paras. 51-52; Communication 250/02: Liesbeth Zegveld and Mussie Ephrem v. Eritrea (2003) ACHPR para. 37; Communication 334/06: Egyptian Initiative for Personal Rights and Interights v. Egypt (2011) ACHPR para. 93.
  4. The Commission wishes to highlight that availability of a remedy entails both its existence in law and its accessibility in practice. There must exist in the municipal legal order both substantive and procedural provisions for redressing complaints. Secondly, in practice, such remedies must be accessible to the victim. There must be no umustifiable obstructions in the victim's way to access such remedies. 
  5. Accordingly, a remedy will be considered as unavailable to a given victim if it does not exist at all, or if it does exist, it cannot be accessed or used by that particular victim. The latter comports the result that even if a remedy may exist in law and is accessible generally, it may nevertheless be unavailable to a given victim because of circumstances unique to such victim's case. This is a question of fact to be settled on the evidence in each case.
  6. Another point to note is that any evaluation regarding "effectiveness" and "sufficiency" of a remedy presupposes at least the availability of some remedy. Where a given remedy is not available, the criteria of effectiveness and sufficiency do not arise. On the other hand, if the argument be that a given remedy does not offer prospects of success, the conclusion would be that such remedy is ineffective and if so accepted by the Commission, the Communication would be admitted for consideration on the merits. The same applies where the remedy is found to be insufficient because it is not capable of redressing the wrong suffered.
  7. It is an epic non sequitur to argue that a remedy is 'ineffective' or 'insufficient' and conclude that it is therefore 'unavailable.' For the avoidance of doubt, when in Communication 251/02: Lawyers of Human Rights v. Swaziland (2005) ACHPR para. 27 the Commission stated that it was "... of the view that the likelihood of the complaint succeeding ... is so minimal as to render it unavailable and therefore ineffective", both the preposition "it" and the word "unavailable" referred to the "likelihood of ...succeeding" or the prospects of success which is used to assess the effectiveness of a remedy.
  8. Furthermore, the Commission has adopted the position that even though there may be a range of other local remedies for redressing a given violation, it is particularly important for purposes of Article 56(5) of the Charter that the remedy must be of a judicial nature; a remedy sought from the municipal courts: see Communication 221/98: Alfred B. Cudjoe v. Ghana (1999) ACHPR para. 14;[7] Communication 313/05: Kenneth Good v. Botswana (2010) ACHPR para. 88; Communication 375/09: Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and the International Centre for the Protection of Human Rights) v. Kenya (2011) ACHPR para. 53.
  9. In the present Communication, the Complainant contends that "no remedies fitting the standard [of availability, effectiveness and sufficiency] are at present available within the [Respondent State's] constitutional and judicial framework." To make out this submission, the Complainant advances five grounds as summarised above. The Commission will first consider the fourth ground as it is critical.
     
  10. The Complainant avers that domestic remedies are not available because civil claims against the King are not entertained by domestic courts. In this regard, the Complainant produces a Practice Directive issued by the Chief Justice on 16 June 2011 addressed to all courts and legal practitioners. In the operative part, the Practice Directive stipulates as follows:-

It has come to the attention of the Chief Justice that some legal practitioners issue summonses or applications for civil claims against His Majesty the King and iNgwenyama. The attention of legal practitioners and litigants is hereby drawn to s. 11 of the Constitution which provides as follows:

'11. The King and iNgwenyama shall be immune from -

              (a) Suit or legal process in any cause in respect of all things done or omitted to be done by him; and
             (b) Being summoned to appear as a witness in any civil or criminal proceedings." Accordingly, the Chief Justice hereby issues the following Practice Directive:-
     (1) Summonses or applications for civil claims against His Majesty the King and iNgwenyama, either directly or indirectly, shall not be accepted in the High Court or any other Court in the country.

   (2) The Registrar of the High Court and/or all those entrusted with receipt of court process in this country are hereby directed to refuse to accept any summons or application specified in 2(1) above.

  1. The Complainant avers that the Victim's dismissal is an act of the King and iNgwenyama. In terms of the above Practice Directive, which is being followed in practice, any possible suit the Victim might institute will not be entertained by the domestic courts because such suit would be challenging the King's decision. Accordingly, domestic remedies are not available in the circumstances of the Victim's complaint.
  2. Notably, the Complainant notes that the Victim does not appear to agree with the Chief Justice's adumbration of Section 11 of the Constitution, as in the Practice Directive quoted above. However that is immaterial for the present purposes. What is material is whether in practice the Victim can access the domestic courts to challenge his removal from the position of Judge of the High Court and seek the appropriate remediation.
  3. Hie Commission finds itself of one mind with the Victim that his complaint inseparably relates to both the disciplinary inquiry which recommended his dismissal, as well as the very formal act of dismissal. The Complainant produces, and the Commission has perused, a copy of Legal Notice No. 140 of 2011 done under the hand of Mswati III, King and iNgwenyama of Swaziland dated 27th day of September 2011. In h the King and iNgwenyama removes Justice Thomas Masuku, the Victim, from the office of Judge of the High Court of Swaziland for serious misbehaviour. The King and iNgwenyama does this in exercise of the powers provided for under Section 158(2) of the Constitution of the Kingdom of Swaziland. Clearly, the formal removal of the Victim is an act of the King and iNgwenyama. To this extent, any legal suit the Victim would have to institute would have to deal with this official act of the King and iNgwenyama, in addition to its antecedent disciplinary hearing.
  4. Given the plain language of the Practice Directive quoted above, and considering that the Practice Directive is being implemented in practice, it is clear that even though judicial remedies may generally exist in the Respondent State's legal system, such remedies cannot be accessed by the Victim, as suits against the King and iNgwenyama cannot even be registered by domestic Courts.
  5. Accordingly the Commission is satisfied that domestic remedies are not available in the circurmstances of the Victim and consequently the requirement to exhaust local remedies does not apply.
  6. Having found that domestic remedies are not available in the circumstances of the Victim, the Commission does not consider it necessary to examine the other grounds advanced by the Complainant. This is because the remaining grounds relate to effectiveness and sufficiency, as opposed to availability even though the Complainant advanced them to make out the submission that local remedies are not available.

Whether Communication submitted within reasonable period, Art 56(6) of the Charter

  1. Lastly, Article 56(6) of the Charter requires that a communication must be brought within a reasonable period from the time local remedies are exhausted. As the Commission has already found, domestic remedies are not available in the circumstances of the Victim. However, this does not mean that the requirement of Article 5tv6) of the Charter does not arise. In cases where local remedies are unavailable, the communication must be brought within a reasonable period from the time the alleged violation occurs or in appropriate cases from the time the

Complainant becomes aware of the violation, or indeed when the Complainant becomes aware that local remedies are not available.

  1. Further, it is important to highlight that Article 56(6) of the Charter does not prescribe a specific ime limit It merely requires that a Communication must be submitted "within a reasonable period." What constitutes a "reasonable period" is a question of both law and fact. To the extent that it is a question of fact, it will be settled on the circumstances of each case. In this regard, previous instances where specific periods were accepted or rejected as reasonable or unreasonable are of very limited consequence in assessing whether a Communication at hand has been submitted within a reasonable period of time. Thus the Commission has previously held that whereas six months appears to be the standard time limit applied by the Inter­American Commission and European Court of Human Rights, "each case must be treated on its own merits."[8]
  2. In the present Communication, local remedies are not available in the circumstances of the Victim in light of the Practice Directive barring suits against the King issued on 16 June 2011. Accordingly, the relevant period would be reckoned from the date he was ultimately removed as Judge of the High Court of Swaziland: 27 September 2011. This Communication was submitted on 11 April 2013. The Complainant did not initially advance any arguments on the requirements of Article 56(6) of the Charter.
  3. Upon being requested by the Commission, the Complainant referred the Commission to documents already filed together with the submissions on admissibility. In particular, there is correspondence indicating that after the Victim had been dismissed, he sought to obtain a record of the disciplinary inquiry, written rulings on the preliminary objections he had raised during the disciplinary inquiry, and the reasons supporting the recommendation for his removal, all to assist him in seeking local remedies. Further, the Complainant states that since there is a Practice Directive which bars registration of suits against the King, the first step in pursuing local remedies entailed challenging the Practice Directive. Before the Victim could file the necessary application for that purpose, the Courts went on recess from November 2011 to February 2012. The Victim was only able to attempt to file the necessary application after the Courts resumed around February 2012.
  4. However, the Victim's application challenging the Practice Directive could not also be registered by the Registrar of the Court because it was deemed to be indirectly against the King since the Practice Directive is for the benefit of the King. It was only upon these frustrations that the Victim finally resolved that domestic remedies were not available and decided to approach the Commission with the present Communication in April 2013.
  5. The Commission notes that there elapsed a period of about one year from around February 2012 when he attempted to initiate domestic proceedings to April 2013 when the Complainant finally submitted the present Communication. Having regard to the circumstances of this case and the efforts deployed by the Victim in trying to seek local remedies, the Commission considers that this Communication was submitted within a reasonable period of time and therefore complies with Article 56(6) of the Charter.
  6. Accordingly, the Commission declares the Communication admissible.

DECISION ON STRIKE OUT

  1. Rule 108(1) of the Commission's Rules of Procedure (the Rules) provides that once a Communication has been declared admissible, the Commission shall set a period of sixty (60) days for the Complainant to submit observations on the merits.
  2. Rules 113 of the Rules provides that when a deadline is fixed for a particular submission, either party may apply to the Commission for extension of the period stipulated, and the Commission may grant an extension which shall not exceed one month.
  3. The Commission notes that, as at 24 February 2015 when this Communication is being considered during the holding of the 17th Extra-Ordinary Session, the Complainant's observations on the merits are over four months overdue from the stipulated deadline, to wit, latest from 19th October 2014.
  4. The Commission also notes that neither during the stipulated two months, nor during the four months outside of that period did the Complainant seek an extension of the time within which to submit observations on the merits.
  5. The Commission considers that the Complainant's failure to submit observations on the merits within the prescribed time or at all, or indeed to seek an extension of the time with which to do so amount to want of diligent prosecution of this Communication. 
  6. In light of the Complainant's failure to prosecute the Communication diligently, or at all, after the decision on admissibility, the Commission decides to strike out this Communication.

RELISTING THE COMMUNICATION

The Application for re-listing

  1. By letter dated 12 April 2015, but received at the Secretariat on 15 April 2015 from Professor Michelo Hansungule who had just been retained as the Complainant to represent the Victim, the Complainant submitted an application for the Communication to be re-listed. The application is supported by affidavits of the Victim and the Chairperson of Swaziland Lawyers for Human Rights, which submitted the Communication on behalf of the Victim. In the same application for relisting, Professor Hansungule requested to be heard orally on the application during the 56th Ordinary Session of the Commission which was due to be held from 21 April to 07 May 2015.
  2. With only about six (6) days to the 56th Ordinary Session in respect of which the agenda had already been settled, and with the impossibility of affording the Respondent State a fair notice of the requested hearing, the request for an oral hearing on the application could not be granted. The new Complainant was promptly informed of the impossibility of holding the oral hearing.
  3. The Complainant's application for re-listing was transmitted to the Respondent State by e-mail of 25 April 2015 and by courier delivered on 6 May 2015 at 10:32 am. The application for re-listing was transmitted to the Respondent State because it had received notice of the strike out decision and it was deemed necessary in the interest of transparency and due process to avail it the opportunity to present observations on the application. As at the date of adopting the present decision, the Respondent State has neither acknowledged receipt of the application for re-relisting, nor presented any observation on the application.

r r ' V                                                                                                  ■

  1. In the application for re-listing, the Complainant submits on behalf of the Victim that the failure to present merits submissions, or indeed to confirm that the submissions in the Complaint shall stand as merits submissions was no fault of the Victim himself. Rather the default was as a result of "the regrettable oversight which is entirely due to negligent and unprofessional handling of the Communication by the [previous] legal representatives of the victim.

- ■ ' , ■

  1. In his supporting affidavit, the Victim himself states that he retained the services of Swaziland Lawyers for Human Rights to submit and prosecute the present Communication before the Commission on his behalf. With shock and dismay, he learnt on 17 March 2015 that his complaint had been struck out. All the while the Victim labored under the impression that the Communication is due for consideration on the merits. The Victim firmly states that at no point did he have the intention to abandon the complaint, and he is ever desirous to see it through to the merits with a view to vindicate his rights. Accordingly, he prays that the Commission may exercise its discretion to re-list the Communication and consider it on the merits.
  2. Additionally, the Chairperson of Swaziland Lawyers for Human Rights affirms that upon receiving the Commission's decision on admissibility, the Board of Trustees of Swaziland Lawyers for Human Rights (the Board) met and resolved that it was not necessary to file additional submissions to those advanced in the Complaint. The previous Complainant states with regret that by pure oversight and not intentionally, the decision was erroneously not communicated to the Commission. In his testimony, the entire Board was under the impression that its decision had since been communicated to the Commission, until he learnt of the Commission's decision striking the Communication out. Finally, he highlights the importance of the matter to the Victim, and the possible implications of the Commission's ultimate decision on the merits for the independence of the Respondent State's judiciary. He accordingly prays that the Communication may be reinstated for consideration on the merits.

The Commission's assessment of the application

  1. It must be noted at the outset, that despite stipulating definite periods within which parties must present their written submissions, the Rules of Procedure do not expressly provide for striking out of a Communication for the Complainant's failure to diligently prosecute the complaint. Indeed it might either have been considered unnecessary to so expressly stipulate, preferring that the Commission should exercise discretion n each case; or merely an oversight to so stipulate.
  2. Whatever the case may be, the Commission retains the inherent power to deal with matters that are not expressly provided for under the Rules of Procedure. The Commission bears in mind its duty to invoke and exercise such inherent power judiciously, to various ends which include upholding the authority of the Rules of Procedure which are meant to facilitate adjudication of complaints in such a manner that a single complaint does not clog the complaints handling mechanism to the detriment of other existing and prospective complaints.
  3. To this and other legitimate ends, the Commission may sanction inexplicable defaults by the parties: for example by proceeding to adopt a decision based on the Complainant's submissions only where the Respondent State does not submit its observations, as was the case with the admissibility decision, or indeed where the State is so tardy in presenting its submissions. Similarly, where the Complainant does not present submissions at any stage of the procedure on time or at all, the Commission may expunge the Communication from consideration for failure to prosecute the complaint.
  4. By the same inherent power, the Commission can consider an application for an expunged Communication to be re-listed for consideration. For purposes of such an application, the Complainant must offer a cogent explanation or reason for the default which resulted in the strike out. In considering such an application, the Commission will take into account, as principal considerations, the object and purpose of the Charter and the Rules of Procedure being the protection of the rights and freedoms guaranteed under the Charter. The Commission will also consider the possible prejudice that may be occasioned to the Respondent State as a result of the default or indeed if the Communication were to be revived after being struck out. Other than these factors, the Commission will consider all the circumstances of the case in exercising its discretion on whether or not to re-list the Communication.
  5. In the case at hand, the Commission notes the explanations offered by the Victim, who seems to have been unaware of the developments on the Communication since it was submitted, until he was notified of the decision striking out the Communication. On its part, Swaziland Lawyers for Human Rights through its Chairperson explains that the default was as a result of a pure oversight in failing to confirm to the Commission that the merit arguments advanced in the Complaint shall stand as submissions on the merits and no further papers would be filed.
  6. Further, the Commission notes the Respondent State's failure to present any observations on the application for re-listing, by which observations it would have raised prejudice, if any, in presenting its case henceforth. The Commission does not perceive any such prejudice. The Commission also notes the prompt manner in which the Victim responded to the strike out decision by retaining new legal representation and filing the present application. This demonstrates the resolve and commitment to prosecute the matter to finality. Indeed as the procedural history of this matter indicates, the Complainant has been so timely as to even beat the time stipulated for submission of arguments and evidence on admissibility.
  7. In the circumstances of this case, the Commission finds the Victim's default excusable as a mere lapse on the part of the previous Complainant (Lawyers for Human Rights - Swaziland). The Commission does not consider it to serve any legitimate end to deny the Victim at least adjudication of his complaints on the merits on account of a default that in all earnest cannot justifiably be imputed to him directly.
  8. Accordingly, the Commission decides to re-list the Communication for consideration on the merits.

THE MERITS

The Complainants' Submissions on Merits

Article 1

  1. The Complainant submits that, in terms of Article 1, Swaziland has an obligation it cannot renege from, to respect and perform its obligations under the Charter.
  2. The Complainant avers that many of the provisions of the African Charter were incorporated in the Constitution and must be respected.
  3. The Complainant refers to Civil Liberties Organization v. Nigeria, in which the Commission held that "any doubt that may exist as to Nigeria's obligations under the African Charter is dispelled by reference to Article 1 of the Charter."[9] The Complainant submits that this statement applies with equal force in relation to Swaziland, as a State Party to the African Charter.

Article 7

  1. The Complainant submits that Article 7 of the Charter, read together with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), guarantee the right to a fair and just hearing.
  2. The Complainant further submits that the ingredients of such a hearing are that a person, against whom certain accusations have been levelled, has a right to have the matter determined by a competent, impartial and just tribunal.

Right to apperr before, and to be heard by an impartial, independent and competent tribunal

  1. The Complainant avers that the Victim's right was violated, because the Judicial Service Commission (JSC), the tribunal which tried him, was chaired by the Chief Justice who became the accuser, prosecutor, witness and Judge, all at the same time, which offends the rules of natural justice, fairness and common sense.
  2. The Complainant avers that the Chief Justice was the complainant in the proceedings, which appears in the charges against the Victim. The Complainant further avers that the Chief Justice would ordinarily be required to be a witness and give evidence, in light of the fact that a number of the charges related to him or his office; therefore the Chief Justice should have been open to cross-examination.

I

  1. The Complainant avers that, at the heart of the application for the Chief Justice to recuse himself was the observation that he was likely to be biased in his determination of the matters, given the charges related to him or his office. Accordingly, the Complainant avers that the refusal of the Chief Justice to recuse himself at the hearing was a violation of Justice Masuku's right to a fair trial.
  2. The Complainant referred to Lawyers for Human Rights v. Swaziland[10] in which the Commission held that Article 7 of the African Charter provides for fair trial guarantees - safeguards to ensure that any person accused of an offence is given a fair trial. Further, in Zimbabwe Human Rights NGO Forum v. Zimbabwe,[11] the Commission stated that the protection afforded by Article 7 is not limited to the protection of the rights of arrested and detained persons, but encompasses the right of every individual to access the relevant judicial bodies competent to have their causes heard and be granted adequate relief. The Complainant submits that the JSC is one such body enjoined to respect fair hearing rights.
  3. The Complainant argues that the lack of impartiality and independence of the JSC, and in particular the refusal by the Chief Justice to recuse himself rendered the proceedings irregular, unlawful and unconstitutional, and liable to be found to have violated the State's Constitution and obligations under the Charter and international law.
  4. The Complainant further argues that the Victim appeared before the JSC in its capacity as the administrative body, headed by the Chief Justice, therefore the provisions of Section 33(1) of the Constitution were supposed to be followed. In this regard the Complainant makes reference to the United Nations Human Rights Committee which stated that "Article 14 requirements and procedures of the fair administration of justice applies not only to procedures for the determination of criminal charges against individuals, but also to procedures to determine their rights and obligations in a suit at law."

Right to a fair public hearing

  1. The Complainant submits that the JSC was wrong to refuse the Victim the right for his case to be heard in public. The Complainant further submits that although serious allegations were levelled against the Victim, he desired that he be vindicated in public.
  2. The Complainant submits that the request and desire by the Judge for the hearing to be heard in public was in line with the provisions of Section 21(11), read with Section 33 of the Constitution, and further that, in the context of the disciplinary hearing against the Victim, the JSC was sitting as a quasi-judicial body, and therefore an adjudicating authority within the provisions of Section 21(11) of the Constitution. Accordingly, the Complainant urges the Commission to find that the manner in which the JSC conducted the disciplinary hearing violated Article 7 of the African Charter.
  3. Furthermore, the Complainant avers that the JSC refused independent observers to observe the hearing. In this regard, the Complainant references General Comment No. 13 of the Human Rights Committee, which states that "the publicity of hearings is an important safeguard in the interest of the individual and society at large." The Complainant concludes that the failure to afford the Victim a public hearing, when he asked for it, rendered the hearing arbitrary.

Article 26

  1. The Complainant submits that charging the Victim with an offence while in the course of duty was gross interference with his individual and decisional independence as a judicial officer. The Complainant further submits that, the fact that the Victim was dismissed while he exercised his functions properly granted by the law and the Constitution is a gross violation of his independence as a judicial officer, and a violation of the independence of the judiciary as a whole.
  2. The Complainant contends that the dismissal of the Victim violated and undermined the independence of the judiciary as guaranteed by Article 26 of the Charter and Section 141(1) of the Constitution. Further, the Complainant contends that the judiciary is the bastion of the protection and promotion of human rights, as stated in Section 14(2) of the Constitution.
  3. The Complainant avers that the unlawful and unconstitutional manner in which the JSC conducted the hearing, violated the provisions of the Charter and the Constitution and undermined the rule of law.
  4. The Complainant cites Lawyers for Human Rights v. Swaziland,[12] in which the Commission emphasized the independence of the courts, stating that "it is the duty of all government and other institutions to respect and observe the independence of the judiciary."
  5. The Complainant contends that the reasons for the Victim's dismissal are not in line with the international standards that justify the dismissal of a judge. The Complainant further contends that the members of the JSC are appointed by the King; however this is not in compliance with the provisions of Section 173(4) which requires that the process of appointment must be done in a competitive, transparent and open manner. In this regard, the Complainant references the Commission's decisions, including, Media Rights Agenda v. Nigeria[13] and Civil Liberties Organization v. Nigeria,[14] in which the Commission questioned the independence of bodies whose membership is composed by members who were hand-picked and appointed by the Executive, in particular the Head of State.
  6. The Com[ ’ainant submits that, the fact that the members of the JSC are hand-picked by the King, offends the principle of separation of powers. The Complainant notes that in its jurisprudence the Commission held: "By entrusting all judicial powers to the head of state with powers to remove judges, the Proclamation of 1973 seriously undermines the independence of the judiciary."[15] The Complainant further submits that the recommendations issued by the Commission following its Promotion Mission to Swaziland in August 2006, underscored that Swaziland must ensure that the monarch respects the doctrine of separation of powers and the rule of law, to ensure that power belongs to the people.
  7. The Complainant avers that the Victim's dismissal demonstrates the sad reality and experience of interference with the judges' decisional independence. The Complainant contends that under the rule of law, judges are free to decide their cases without any interference from any authority.
  8. Additionally, the Complainant submits that, despite the fact that the charge relating to decisional independence was withdrawn, the Victim was still found guilty.
  9. The Complainant further submits that the Victim was not afforded an opportunity, as is customary, to be advised of the conviction by the JSC. It is contended that the Victim was not afforded an opportunity to make submissions in mitigation of sentence; the JSC proceeded to recommend his sanction to the King, with no reference to what he would have wished to state in mitigation of sentence.

The Respondent State's Submissions on Merits

  1. Firstly, the Respondent State rebutted the Admissibility of the Communication, averring that the State Party denies the Complainant's allegation that there are no available remedies in Swaziland because the judiciary is not independent. The State referenced Section 141(1) of the Constitution (2005), which endows the judiciary with judicial independence.
  2. The Respondent State further avers that there is no evidence to suggest that the Victim was never afforded an opportunity to be fully heard by the judicial system of Swaziland, or that the case was never decided on the merits, or that the remedies would be ineffective. Accordingly, the State submits that the Complainant is put to strict proof of any allegations of ineffectiveness of domestic remedies.
  3. In response to the Complainant's submissions on the Practice Directive No.4/2011, the Respondent State submits that this has been overtaken by events, given that the Directive has been withdrawn. The State further submits that Section 152 of the Constitution empowers the High Court to exercise review and supervisory jurisdiction over all subordinate courts and tribunals or any lower adjudicating authority, and may issue orders for the purpose of enforcing its review or supervisory powers.
  4. Regarding the demotion of the Victim to the Industrial Court of Swaziland, the Respondent State avers that the variation of terms and conditions of appointment was an administrative decision, made independently by the judiciary, in order to address the backlog of cases at the Industrial Court, which affected other Judges in addition to the Victim.
  5. The Respondent State contends that the Judicial Service Commission is constitutionally empowered, as a competent and independent structure to investigate and advise on the removal of Justices of the Superior Court, in terms of Section 158(3) and 159 of the Constitution.
  6. Regarding the allegation of holding the JSC proceedings in private, the Respondent State concedes that, at the time the Communication was filed, impeachment proceedings were considered as merely administrative proceedings which did not require any public hearing. The State submits that it has since taken steps to ensure that impeachment of Justices of the Superior Courts are conducted publicly, as evidenced in the impeachment process of the then Chief Justice and another High Court Judge, who were found to have compromised the independence of the judiciary.
  7. The Respondent State further submits that conducting impeachment proceedings in camera does not automatically render the proceedings arbitrary. The State referenced Rule 99(8^ of the Commission's Rules of Procedure (2010) which provides that hearings on communications before the Commission shall be held in camera. The State avers that an inference may be drawn that the intention of the Rule is to protect the integrity of the parties to the Communication, as was the case with regards to the Victim's case.
  8. The Respondent State submits that the proceedings against the Victim were administrative and not criminal, therefore the protection of whistle blowers was important. The State avers that corrective measures have been undertaken in subsequent proceedings of a similar nature.
  9. Regarding the question of the independence of the judiciary, with regards to the appointment of members of the JSC by the King, the Respondent State submits that the Complainant's assertions are intended as a direct attack on the country's supreme law and should not considered. The State further submits that Section 173(3) and (4) is irrelevant for advancing the Complainant's argument in so far as it relates to the independence of the judiciary and the appointment of the JSC, as all provisions relating to the JSC are specifically outlined in Chapter VIII of the Constitution.

 

  1. Regarding the principle of the separation of powers, the Respondent State contends that the appointment of Justices of Superior Courts is entrusted to Heads of State in many Member States. The State avers that progressive steps have been undertaken to facilitate the independence of the judiciary, including through adherence to the rule of law, strengthening the judiciary through the appointment of permanent High and Supreme Court judges, the removal from office of the then Chief Justice and another judge who were found to have compromised the independence of the judiciary, as well as the removal of the Practice Directive.
  2. In conclusion, the Respondent State requests the Commission to recommend that the parties should resolve the matter amicably at the domestic level, based on the fact that the cause of action is contractual. The State also calls on the Commission to disregard the request of the Complainant "that the Government of Swaziland be ordered to reinstate Mr. Justice Thomas Masuku to the High Court unconditionally," given that this would pre-empt the State's request to resolve the matter at the domestic level.
  3. Accordingly, the Respondent State calls on the Commission to find that it has not violated Articles 1, 7 and 26 of the African Charter.

THE COMMISSION'S ANALYSIS ON THE MERITS

  1. This Communication concerns the alleged unlawful and unconstitutional removal of the Victim as a judge of the High Court, in which the Complainant bases the claims against the Respondent State on violations of Articles 1, 7 and 26 of the African Charter.
  2. The Commission will analyse each of the articles alleged to have been violated by the State individually, followed by a discussion on Article 1 of the African Charter.
  3. At the outset, the Commission observes that the Judicial Service Commission (JSC) is a constitutional body established under Article 159 of the Respondent State's Constitution, of which the Chief Justice is the chairman.[16] The JSC is mandated, inter alia, to investigate and advise whether a Justice of the Superior Court of Judicature should be removed from office.[17] The Constitution further stipulates that, acting on the advice of the Chief Justice in the case of any Justice of a superior court, the JSC enquires into the matter and recommends to the King whether the Justice should be removed from office.[18]
  4. The Commission notes that strictu sensu the JSC is not a judicial body - the Complainant refers to the JSC as a quasi-judicial body,[19] whereas the Respondent State refers to the JSC proceedings as 'administrative proceedings.'[20]
  5. Regardless, as noted in the Commission's jurisprudence: "The right to a fair hearing is based on key elements including in particular the principle of equality of arms for the parties to the case, whether administrative, civil, criminal or military, the opportunity to properly prepare the defence, to present arguments and evidence and to respond to the arguments and evidence of the prosecution or the defendant."[21] Accordingly, the Commission observes that the principles on the right to a fair trial should be observed and respected in the disciplinary proceedings of the JSC.
  6. With these preliminary considerations in mind, the Commission will proceed to analyse the alleged violations of the African Charter.

Violation of Article 7

  1. Article 7(1) of the African Charter stipulates thus:
  1. Every individual shall have the right to have his cause heard. This comprises:
  1. the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
  2. the right to be presumed innocent until proved guilty by a competent court or tribunal;
  3. the right to defense, including the right to be defended by counsel of his choice;
  4. the right to be tried within a reasonable time by an impartial court or tribunal.
  1. In the present Communication, the Complainant avers that Article 7 of the African Charter, read together with the UDHR and the ICCPR, guarantee the right to a fair and just hearing. The Complainant contends that the ingredients of such a hearing include "the right to appear before and to be heard by an impartial, independent and competent tribunal," in addition to "the right to a fair public hearing," drawing inspiration from Article 10 of the UDHR and Article 14 of the ICCPR.[22] 
  2. In light of the fact that the Complainant has argued these two elements individually, the Commission will analyse them separately.

The right to appear before, and to be heard by an impartial, independent and competent tribunal

  1. Whereas the African Charter provides that the right to a fair trial includes the right to be tried within a reasonable time by an impartial court or tribunal, the Complainant does not specifically refer to a violation of Article 7(1)(d) in the present Communication. Rather the Complainant refers to the "right to appear before, and to be heard by an impartial, independent and competent tribunal" as one of the requirements of a fair trial.
  2. However, it is instructive to note that the Commission's Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (the Principles on the Rights to a Fair Trial),[23] stipulate the following in Principle 1: "In the determination of any criminal charge against a person, or of a person's rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body." As earlier noted, whereas this principle refers to criminal cases, the Commission has determined that the right to a fair hearing applies equally to administrative, civil, criminal or military cases,[24] and therefore would apply to the JSC discipinary proceedings.
  3. The Complainant avers that the Victim's right to appear and be heard by an impartial, independent and competent tribunal was violated because the JSC was chaired by the Chief Justice who became the "accuser, prosecutor, witness and Judge all at the same time, which offends the rules of natural justice, fairness and common sense." The Complainant submits that the Chief Justice was the accuser in the proceedings, because a number of the charges related to his office, therefore the Chief Justice would ordinarily be required to be a witness and give evidence. The Complainant avers that by the time the Chief Justice presided over the hearing, his independence had long been compromised and concludes that the refusal of the Chief Justice to recuse himself from the JSC hearing was a violation of the Victim's right to a fair trial.
  4. The Respondent State, on the other hand, submits that the JSC is constitutionally empowered as a competent and independent structure to investigate and advise on the removal of Judges, as stated in Section 158 and 159 of the Constitution respectively.
  5. In Communication 281/03 Marcel Wetsh'okonda Koso and others v. DRC, the Commission stated that it "read Articles 7and 26 together and held that Article 7 deals with the right to be heard by impartial courts, and Article 26 insists on the independence of courts; the Commission notes that States have the duty to put in place credible institutions for the promotion and protection of human rights. Article 26 being the necessary appendix of Article 7, one can expect a fair trial only before impartial courts."[25]
  6. To this end, the Commission notes that" the notions of independence and impartiality tend to have different meanings in different contexts. Generally speaking, both impartiality and independence are understood to safeguard the objectivity and fairness of judicial proceedings."[26]
  7. Regarding impartiality, "the UN Human Rights Committee stated that it 'implies that judges must not harbour any preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties."[27] In contrast, "judicial independence safeguards the judiciary against any interference by state organs or private persons with the performance of judicial duties. Thus, while impartiality reflects an open-mindedness on the part of the judges, independence describes functional and structural safeguards against extraneous intrusion into the administration of justice."[28]
  8. Taking into account the definition of 'independence' prescribed above, the Commission is of the view that the information and evidence provided in relation to the present Communication does not demonstrate a lack of independence of the JSC, or of the disciplinary proceedings which were held regarding the Victim. The Commission observes that the JSC is duly established by law, and from the evidence provided, the JSC disciplinary proceeding against the Victim was not subject to any undue "restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter."[29]
  9. As to the issue of 'impartiality/ the Commission takes notes that the premise of the allegation is founded on the Complainant's submission that, in the disciplinary proceedings against the Victim, the Chief Justice was the 'accuser, prosecutor, witness and Judge all at the same time;' therefore the Chief Justice should have recused himself from the JSC hearings against the Victim.
  10. Taking into account the information provided, the Commission observes that approximately six (6) of the charges which were laid against the Victim, out of a total of twelve (12), relate to the Chief Justice.
  11. Specifically, the Commission considers that the following charges relate to the Chief Justice:
  • Charge 2: Defying the Chief Justice's directive to prepare and submit a monthly schedule of pending judgments;
  • Charge 4: By touting yourself to be appointed Chief Justice, especially amongst the chiefs;
  • Charge 7: By sending one Gugu Vilakati, a High Court staff member, to a workshop in Hong Kong without the Chief Justice's approval;
  • Charge 8: By absenting yourself from work without the Chief Justice's permission particularly on 30 March 2010;
  • Charge 9: By threatening the Chief Justice with resignation when you were confronted with your absenteeism from work without leave on 30 March 2010.
  • Charge 10: By attacking the Chief Justice at a symposium of the International Commission of Jurists (ICJ) held in Lesotho on 29 July 2010 for banning Judges from giving interviews to the news media, thus demonstrating both insubordination and disloyalty to the Chief Justice.
  1. In light of the fact that these charges against the Victim emanated from the Chief Justice, given that the Chief Justice would have had to report them to the JSC in order for the disciplinary proceedings to be instituted against the Victim, the Commission is of the view that the Chief Justice ought not to have chaired the JSC proceedings against the Victim, given the likely perception that the Chief Justice could not be impartial in the disciplinary proceedings.
  2. To this end, the Commission takes note of the provisions in the Principles on the Rights to a Fair Trial on an impartial tribunal:

Principle 5: Impartial Tribunal

d) The impartiality of a judicial body would be undermined when:

  1. a former public prosecutor or legal representative sits as a judicial officer in a case in which he or she prosecuted or represented a party;
  2. a judicial official secretly participated in the investigation of a case;
  3. a judic al official has some connection with the case or a party to the case;
  4. a judicial official sits as member of an appeal tribunal in a case which he or she decided or participated in a lower judicial body.

In any of these circumstances, a judicial official would be under an obligation to step down.

  1. In the instant case, the Chief Justice can be said to have "some connection with the case," given that a number of the charges against the Victim related to the Chief Justice and even expressly referred to him; therefore in principle the Chief Justice was under an obligation to step down from the JSC disciplinary inquiry of the Victim.
  2. Furthermore, in its jurisprudence, the Commission has held the following: "Impartiality may be perceived in a subjective and objective manner. In a subjective manner, the impartiality of a judge is gauged by his internal inclinations. Since it is impossible to infer from this inclination objectively, it was simpler to conclude that subjective impartiality be assumed until proven otherwise. However, appearances cannot be ignored while gauging the impartiality of a jurisdiction."[30]
  3. Taking this into consideration, the Commission finds that the information provided in the present Communication does raise doubts on the impartiality of the Chief Justice in relation to the JSC proceedings against the Victim.
  4. Based on this analysis, the Commission finds that the Chief Justice's participation in the JSC disciplinary proceedings violated the Victim's right to appear before an impartial tribunal.

 

The right to a fair public hearing

  1. With regard to the alleged violation of the right to a fair public hearing, the Commission notes the Complainant's assertion that the JSC was wrong to refuse the Victim's request to have his case heard in public, regardless of the fact that he desired to be vindicated in public. Furthermore, the Complainant avers that the JSC rejected the Victim's request for independent observers to observe the hearing. Therefore, the Complainant avers that the failure to afford the Victim a public hearing, when he asked for it, rendered the hearing arbitrary.
  2. For its part, the Respondent State concedes that, at the time the Communication was filed, impeachment proceedings were considered as merely administrative proceedings which did not require any public hearing, and further that conducting impeachment proceedings in camera did not automatically render the proceedings arbitrary. The Respondent State referenced Rule 99(8) of the Commission's Rules of Procedure (2010), averring that an inference could be drawn that the intention of the Rule was to protect the integrity of the parties to the Communication, as was the case with regards to the Victim's case.
  3. In determination of this allegation, the Commission notes that Article 7 of the African Charter does not expressly refer to the 'right to a public hearing.'
  4. However, Principle 1 of the Principles on the Rights to a Fair Trial stipulates that, "in the determination of any criminal charge against a person, or of a person's rights and obligations everyone shall be entitled to a fair and public hearing [...]," which the Commission considers should apply equally to administrative, civil or military hearings.
  5. Additionally, Principle 3 stipulates a number of exceptions which would justify denying a public hearing and would not violate the right to a fair trial:

Principle 3: Public hearing                                                                                                                

f) The public and the media may not be excluded from hearings before judicial bodies except if it is determined to be:

  1. in the interest of justice for the protection of children, witnesses or the identity of victims of sexual violence
  2. for reasons of public order or national security in an open and democratic society that respects human rights and the rule of law.
  1. The Commission also takes note of the UN Basic Principles on the Independence of the Judiciary, which stipulate that: "A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge."[31]
  2. In the present Communication, the Victim expressly requested that the JSC disciplinary proceedings considering his removal from judicial office should be held in public, as recounted below from his response to the JSC which was submitted on 04 August 2011, in advance of the JSC disciplinary proceedings:

"Disciplinary inquiries of the JSC may sometimes be held behind closed doors for the protection of the Justice who stands accused of unsubstantiated charges. I prefer any inquiry into my conduct to be held in public however, because the charges against me have been widely publicised and I am entitled an opportunity to refute them in public."[32]

  1. However, the JSC dismissed the request for a public hearing for the following reasons:

"The JSC appalled by the suggestion to open an investigation of this nature to the public. It is hard to conceive of a need for public hearing even in a pure matter of discipline between an employer and employee relationship. In any event, there is no provision in this country entitling the JSC to open an investigation of this nature to the media and public."[33]

  1. Whereas the Commission takes note of the fact that the legal framework for the JSC, that is the Constitution of the Respondent State and the Judicial Service Commission Act (1982), do not have a provision for the JSC to hold its proceedings in public, there is equally no express provision mandating that its' proceedings should be held in private. Furthermore, the Commission notes that both the Constitution and the JSC Act prescribe that the JSC may regulate its own procedure.[34]
  2. Hie Commission also observes that none of the exceptions to holding a public hearing, which are stipulated in Principle 3(f) of the Principles on the Rights to a Fair Trial, were cited by the JSC when it declined the Victim's request for a public hearing. Furtherm re, whereas there is no explicit provision stipulating that the JSC's proceedings should be held in public, the JSC's legal framework authorizes it to regulate its procedure; therefore it should not have been out of the realm of possibility for the JSC to grant the Victim's request for a public hearing of the JSC disciplinary proceedings.
  3. Additionally, the Commission takes note of the information provided by the Respondent State, in paragraph 130 above, stating that steps have since been taken to ensure that impeachment of justices of the superior courts are conducted publicly.
  4. Taking all these factors into account, the Commission is of the view that the JSC should have granted the Victim's request for a public hearing, and concurs that he should have been given the opportunity to refute the charges against him in public. The Commission also notes that the reasons given for rejecting the Victim's request do not meet the standard stipulated in the Principles on the Rights to a Fair Trial.
  5. Accordingly, the Commission finds that the failure to accord the Victim a public hearing of the JSC disciplinary hearing violated his right to a fair trial.
  6. In light of the fact that the Commission has determined that the JSC disciplinary proceedings against the Victim were not impartial, and further the Victim's request for a public hearing was wrongfully denied, the Commission finds that this amounts to violation of the Victim's right to a fair trial, and accordingly finds a violation of Article 7.

Violation of Article 26

  1. Article 26 of the African Charter stipulates thus:

States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

  1. This provision of the African Charter is buttressed in the Commission's Principles on the Rights to a Fair Trial:

Principle 4: Independent tribunal

"a) The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities;"

  1. In the present Communication, the Complainant avers that charging the Victim with an offence while in the course of duty was gross interference with his individual and decisional independence as a judicial officer. Additionally, dismissing the Victim while he exercised his functions, amounted to a gross violation of his independence as a judicial officer, and a violation of the independence of the judiciary as a whole.
  2. The Respondent State however, submits that the Complainant's assertions are intended as a direct attack on the country's supreme law and should not be considered. Further, the Respondent State denies the Complainant's allegation of a violation of the Victim's decisional independence, and puts the Complainant to strict proof.
  3. In order to understand the Complainant's allegation on interfering with judicial independence, the Commission notes that, among the twelve charges of misbehaviour which the Victim was accused of committing, one of the charges levelled against the Victim states as follows: "Charge 3: Insulting His Majesty the King by using the words "forked tongue" with reference to him."[35] From the Complainant's submissions, the Commission notes that the Victim used these words in a written judgement, in a case referenced 'Maseko v. Commissioner of Police (Civil High Court case 1778/09).[36]
  4. However, the Commission also notes that the Complainant made a serious error in its submissions, when it stated the following:

“Despite the fact that the charge relating to decisional independence was withdrawn, Judge Masuku was still found guilty .”[37]

  1. Indeed, from the information submitted in support of the Communication, the Commission observes that this charge was not withdrawn, and further the Victim was found guilty of serious misbehaviour in relation to the charge.
  2. In finding the Victim guilty of this charge, the JSC stated the following:

"In the present investigation, although the Judge said that he did not believe that the King could speak with a forked tongue,' it is the very use of those words which constitutes an insult. Mr. Sinielane's view on this point is accepted by all Swazi members of the JSC. [...] It would have been the simplest thing for the Judge to say that he did not believe the story which was imputed to His Majesty the King. But for him to have gone further and used the words 'forked tongue' with reference to His Majesty was not only reckless and unwarranted but it was also plainly insulting to His Majesty. Such inappropriate and uncalled for language can only be explained on the basis of malice in the circumstances of the investigation. [...] Accordingly, the JSC unanimously finds the Judge guilty of serious misbehaviour on this charge."[38]

  1. Based on this, the Commission concludes that the Victim was found guilty of serious misbehaviour on account of specific language which he had used in the written judgment of Maseko v. Commissioner of Police (Civil High Court case 1778/09).                                      '                     
  2. To this end, the Commission notes that "judicial officials may only be removed or suspended from office for gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties."[39] The corresponding language used in Respondent State's Constitution refers to 'serious misbehavior,[40] whereas the UN Basic Principles state plainly that "judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties."[41]
  3. With regard to the present Communication, the Commission is of the view that instituting disciplinary proceedings against a Judge based on language which was used in a judgment does not constitute 'serious misbehavior/ rather this charge amounts to interference with the Victim's judicial independence.
  4. Judicial independence refers to the ability of courts and judges to perform their duties free of influence or control by other actors. Whereas the notion judicial independence is more commonly understood from the perspective of the principle of separation of powers, judicial independence is equally impeded if Judges have reason to fear disciplinary or other consequences due to their exercise of judicial functions.
  5. One of the requirements for an independent tribunal stipulated in the Commission's Principle, on the Rights to a Fair Trial is that; "there shall not be any inappropriate or unwarranted interference with the judicial process nor shall decisions by judicial bodies be subject to revision except through judicial review, or the mitigation or commutation of sentence by competent authorities, in accordance with the law."[42] Additionally, the principle on an impartial tribunal stipulates that; "Judicial officers shall decide matters before them without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason."[43]
  6. Furthermore, in Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe, the Commission held that: "It is impossible to ensure the rule of law, upon which human rights depend, without guaranteeing that courts and tribunals resolve disputes both of a criminal and civil character free of any form of pressure or interference;" and further that: "the credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure."[44]

; ' ' ' '■ .

  1. In the same vein, the Commission finds that charging the Victim with serious misbehaviour, warranting removal from judicial office, partly on the basis of language which he used in a written judgment, amounts to exerting influence or pressure on the Victim. Likewise, this amounts to exerting influence or pressure on the Respondent State's judiciary, given that this action may cause other members of the judiciary to fear disciplinary or other consequences if they use language which is similarly questioned, while in the exercise of their judicial functions.
  2. Taking this into account, the Commission finds that charging the Victim with serious misbehaviour, warranting removal from judicial office, partly on the basis of language which he used in a written judgment, is an action which directly threatened both the Victim and the judiciary's judicial independence.
  3. Accordingly the Commission finds that Article 26 of the African Charter has been violated in the present Communication.

Violation of Article 1

  1. According to its well established jurisprudence, the Commission holds that "a violation of any provision of the Charter automatically means a violation of Article 1. If a State party to the Charter fails to recognise the provisions of the same, there is no doubt that it is in violation of this Article. Its violation, therefore, goes to the root of the Charter."[45]
  2. Thus, having found violations in the above analysis, the Commission also finds that the Respondent State has violated Article 1.

Decision of the Commission on the Merits

  1. In light of the foregoing, the African Commission on Human and Peoples' Rights:
  1. Finds a violation of Articles 1, 7 and Article 26 of the African Charter;
  2. Urges the Government of Eswatini to compensate the Victim a fair and equitable

amount for the violation of his right to a fair trial in the Judicial Service Commission disciplinary proceedings;

  1. Urges the Government of Eswatini to request the Judicial Service Commission to review the charges which were laid against the Victim;
  2. Urges the Government of Eswatini to review the Judicial Service Commission's legal framework to include a provision which allows judicial officers to seek judicial review of the disciplinary proceedings; and
  3. Urges the Government of Eswatini to review the Judicial Service Commission's legal framework to include a provision which entitles judicial officers facing disciplinary proceedings to object to the participation of a member of the Commission in the proceedings and decisions of the Commission on the ground of bias.

Done virtually, during the 33rd Extra-Ordinary Session of the African Commission on
Human and Peoples' Rights, from 12 to 19 July 2021

 

 

[1] Complainant submissions, Annex No.LHR9, Letter from the Judicial Service Commission to Justice Masuky^^ June 2011

[2] Communication 251/2002: Lawyers for Human Rights v. Swaziland (2005) ACHPR para. 27

[3] Communication 275/03: Article 19 v Eritrea (2007) ACHPR para. 46; Communication 146/96: J aw ar a v The Gambia (2000) ACHPR; and Communication 307/05: Chinhanto v Zimbabwe (2007) ACHPR.

[4] Communication 308/05: Michael Majuru v. Zimbabwe (2008) ACHPR para. 69

[5] See also Communication 308/05: Michael Majuru v. Zimbabwe (2008) ACHPR para. 102

[6] The words “... if any ...” in Article 56(5) of the Charter imply that if there are no remedies, the requirement to exhaust local remedies does not apply.

[7] The Complainant produced a decision handed down by the Ghanaian Human Rights Commission in his favour. He did not indicate any steps he had taken before the municipal courts. Neither did he suggest that beyond the decision of the Ghanaian Human Rights Commission he was precluded or impeded from approaching the municipal Courts. The Commission declared the Communication inadmissible.                                                                                                                                     >.

[8] Communication 308/05: Michael Majuru v. Zimbabwe (2008) ACHPR. para. 109

[9] Communication 129/94: Civil Liberties Organization v. Nigeria (2000) ACHPR, para 16

[10] Communication 251/02: Lawyers of Human Rights v. Swaziland (2005) ACHPR, para 53

[11] Communication 245/02: Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006) ACHPR, para 128

[12] Communication 251/2002: Lawyers for Human Rights v. Swaziland (2005) ACHPR, para 55

[13] Communications 105/93, 128/94, 130/94, 152/96: Media Rights Agenda v. Nigeria, Complainants submissions, para 17.7.1

[14] Communication 129/94 Civil Liberties Organisation v. Nigeria (1995) ACHPR

[15] Communication 251/2002: Lawyers for Human Rights v. Swaziland (2005) ACHPR, para 56

./s' •

[16] Section 159(2)(a), Constitution of the Kingdom of Swaziland (2005)

[17] Section 158 (1) and (3), Constitution

[18] Section 158(3) and (4), Constitution

[19] Complainant submissions, paragraph 10.3.1, pg. 16

[20] Respondent State submission, page 4

[21] Communication 286/04: Dino Noca v. Democratic Republic of the Congo (2012) ACHPR, para 186

[22] Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. (UDHR)

Article 14(1): All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. (ICCPR)

[23] Adopted by the Commission during its 33rd Ordinary Session, held in May 2003

[24] Communication 286/04: Dino Noca v. Democratic Republic of the Congo (2012) ACHPR, para 186

[25] Communication 281/03: Marcel Wetsh’okonda Koso and others v. DRC (2009) ACHPR, para 77

[26] “Independence and Impartiality of Judges,” by P. Radler, in The Right to a Fair Trial, Weissbrodt, D., Wolfrum, Rudiger (Eds.), Snringer-Verlag Berlin Heidelberg, 1997, http://hrlibrary.umn.edu/fairtrial/wrft-rae.htm

[27] “Independence und Impartiality of Judges,” by P. Radler

[28] “Independence und Impartiality of Judges,” by P. Radler

[29] Communication 334/06: Egyptian Initiative for Personal Rights and Interights v. Egypt (2011) ACHPR, para 112

[30] Communication 281/03: Marcel Wetsh’okonda K.oso and others v. DRC (2009) ACHPR, para 80, 81

 

  1. [31] Basic Principles on the Independence of the Judiciary, Principle 17 on Discipline, suspension and removal; adopted by the seventh UN Congress on the prevention of Crime and the Treatment of Offenders on 06 September 1985 and endorsed by the UNGA in Resolution 40/146 on 13 December 1985

[32] Complainant submissions, Annex LHR12, Letter from Magagula & Hlophe to the Judicial Service Commission, para 19, pg. 12

[33] Complainant submissions, Annex LHR13, Judicial Service Commission Referral under Section 158(3) of the

Constitution to His Majesty King Mswati III, para 19

[34] Section 159(8) Constitution (2005) and Article 7(3) Judicial Service Commission Act (1982)

[35] Complainant submissions, Annex No.LHR9, Letter from the Judicial Service Commission to Justice Masuku, 28 June 2011

[36] Complainant submissions, Annex LHR13, Judicial Service Commission Referral under Section 158(3) of the Constitution to His Majesty King Mswati III, para 47

[37] Complainant submissions, Para 17.9.2, pg.38

[38] Complainant submissions, Annex LHR13, Judicial Service Commission Referral under Section 158(3) of the Constitution to His Majesty King Mswati III, para 53

[39] Principles on the Rights to a Fair Trial Principle 4(p)

[40] Removal of Justices of superior courts, Section 158(2): ‘M Justice of a superior court shall not be removed from office except for stated serious misbehavior or inability to perform the functions of office arising from infirmity of body or mind."

[41] Principle 18 of ie UN Basic Principles

[42] Principle 4(f), Principles on the Rights to a Fair Trial

[43] Principle 5(a), Principles on the Rights to a Fair Trial

[44] Communication 294/04: Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe (2009) ACHPR, para 118, 119

[45] Communications 147/95 and 149/96: Sir Dawda K. Jawara v. The Gambia (2000) ACHPR, paragraph 46

Author
admin
Judgment date
Case number
Communication 4 of 2020
Court name
African Committee of Experts on the Rights and Welfare of the Child
Flynote local
Communication
Flynote
Children
Sexual violence and exploitation
Admissibility

The African Committee of Experts on the Rights and Welfare of the Child
(ACERWC)

Ruling on Admissibility

Communication No: 0016/Com/004/2020

Decision on Admissibility No: 002/2021

Author: African Centre for Justice and Peace Studies (ACJPS)

(on behalf of Ms Umjumah Osman Mohamed)

Against: The Republic of Sudan

 

i.    Submission of Communication

1.   The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 24 June 2020 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by the African Centre for Justice and Peace Studies (ACJPS) on behalf of Umjumah Osman Mohamed (the Complainant). According to Section IX (2) (i) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communication Guidelines), the Committee transmitted a copy of the Communication to the Respondent State party on 16 July 2020. The State Party submitted its response in December 2020.

ii.   Summary of alleged facts

2.   The Complainant is a Sudanese national born on 6 June 2000 in Khashm el Girba town in Kassala State, Eastern Sudan. It is alleged that in 2016, the Complainant was raped by Mr Tarig Idriss Daoud, an adult who also resides in Khashm el Girba town in Kassala state, Eastern Sudan. As a result of the rape, the Complainant got pregnant. It is further submitted that the matter was reported by the Complainant’s father, Mr Osman Mohamed on 31 August 2016 at Khashm el Girba police station.

3.   The Complainant alleges that investigations were carried out by the Prosecution Attorneys Bureau and the case was referred to the Child Court since the Complaint was 16 years at the time of the alleged offence.

4.   The Communication alleges that on 20 September 2017, the case was heard before the Child Court and Mr Tarig Idriss Daoud was convicted for rape and sexual abuse of a child under Article 45(b) and (c) of the Child Act 2010 respectively. It is alleged that he was sentenced to 20 years imprisonment and a fine of 20 thousand Sudanese pounds.

5.   It is submitted that in 2017 Mr Tarig Idriss Daoud appealed against his conviction to the Appeal Court under Appeal Case Number 9 of 2017 and on 29 October 2017, the Appeal Court passed a ruling where it upheld the decision of the Child Court.

6.   The Complainant indicates that Mr Tarig Idriss Daoud appealed against the decision of the Appeal Court to the High Court in 2018 under case number 12 of 2018. It is alleged that the High Court overturned the decision of the previous courts and acquitted Mr Tarig Idriss Daoud of rape on grounds that the complainant is not a child in accordance with the definition in Article 3 of the Criminal Act 1991 which states that an adult is a person whose puberty has been established by definite natural features and has completed fifteen years of age and whoever attains eighteen years of age is an adult even if the features of puberty do not appear. The Complainant alleges that the court used an ambiguous determination of childhood as ‘attainment of puberty’ in accordance with Article 3 of Sudan’s Criminal Act 1991 to rule that the complaint is not a child thus her case should not have been heard by the Child Court.

7.   It is alleged that the High Court further held that being an adult who understood the sexual act, both the complainant and Mr Tarig Idriss Daoud should instead be tried for the offence of adultery (zina) under Section 145(1) (a) of the Criminal Act 1991 by the Criminal Court.[1] It is further alleged that the High Court also directed the Criminal Court to grant bail to Mr Tarig Idriss Daoud pending his trial for adultery.

8.   The Communication alleges that the Complainant filed for a review of the decision of the High Court by the High Court Review Chamber and in 2019 the High Court Review Chamber approved the ruling of the High Court stating that it is in line with Sudanese and Sharia law.

9.   It is alleged that thereafter, the Complainant petitioned before the Constitutional Court to annul the decision of the High Court on grounds that it was unconstitutional because it violates Article 27(1) and 31 of the 2005 National Interim Constitution,[2] and it was contrary to Article 4 of the Child Act 2010 which defines a child as a person below the age of 18. The Complainant alleges that on 11 December 2019, the Constitutional Court in its ruling agreed with the decision of the High Court and dismissed the petition. It is further alleged that the Constitutional Court held that the decision of the High Court was in line with the Sudanese legislation and the 2005 Interim National Constitution.[3]

1.   .lt is alleged that Umjumah Osman Mohamed is thus currently awaiting trial for the crime of adultery before the Criminal court. The Complainant alleges that since pregnancy is conclusive proof of adultery under Article 62 of the Evidence Act 1994, the Complainant will be convicted and eventually subjected to 100 lashes pursuant to Article 145 of the Criminal Act 1991. The Complainant alleges that pregnancy rebuts the legal and constitutional presumption of innocence and immediately shifts the burden of proof to her to prove her innocence.

11. Based on these facts, the Complainant alleges that the Republic of Sudan has violated the rights guaranteed under the Charter, particularly article 1,2, 3, and 16 as well as rights guaranteed under the African Charter on Human and Peoples’ Rights, particularly article 3,5, and 7.

111.           Applicant’s submission on admissibility

12. The Complainant submits that the Communication fulfils the requirement of admissibility under Section IX (1) of the Revised Communications Guidelines. The complainant focuses on all the requirements provided for in section IX (1) of the Revised Communication Guidelines.

13. The Complainant submits that the Communication is brought in conformity with the provisions of the Charter and the Constitutive Act of the African Union. The Complainant submits that the Communication alleges specific provisions of the Charter that have been violated by the Republic of Sudan and which Sudan has undertaken to respect by virtue of articles 3 (h) and 4 (m) of the Constitutive Act.

14. The Complainant further submits that the Communication is not exclusively based on information obtained from the media. The Complainant submits that the information contained in the Communication is supported by unofficial translations of the laws of Sudan, the 2019 Constitutional Charter for the Transitionary period, the decision of the High Court and the petition submitted to the Sudanese Constitutional Court.

15. The Complainant further submits that the Communication is not before any other investigation, procedure or international human rights mechanism. Further, the question of violation of Umjumah -Osman Mohamed’s rights has not been submitted to any other international tribunal or adjudicating body for determination.

16. The Complainant submits that all the local remedies available have been exhausted. The Complainant submits that after the High Court over turned the decision of the Child Court and the Appeal Court, the Complainant applied for a review of the decision of the High Court by the High Court Review Chamber. In 2019, the High Court Review Chamber passed a ruling that agreed with the High Court. Thereafter, the complainant petitioned the Constitutional Court to hold the decision of the High Court unconstitutional. Unfortunately, on 11 December 2019, the Constitutional Court passed a judgment that the decision of the High Court is constitutional.

17. Furthermore, the Complainant submits that the Communication is presented within a reasonable period after the exhaustion of local remedies. The Complainant submits that after the High Court (Kassala and Red Sea Chamber) overturned the decision of the Appeal Court, the Complainant filed for a review of the decision of the High court by the High Court Review Chamber in 2017. The High Court Review Chamber upheld the decision of the High Court and thereafter, the complainant lodged a Constitutional petition to have the decision of the High Court pronounced unconstitutional on grounds that it deprived the complainant of protections granted to a child under Article 4 of the Child Act 2010. On 11 December 2019, the Constitutional Court dismissed the petition on the grounds that the ruling of the High Court was in line with the Constitution and Sudanese law.

18. Lastly, the Complainant submits that the wording used in the Communication is not offensive. The Complainant submits that the Communication has not been cast in any offensive language or suggests any offensive language and the language used was carefully chosen and the document deals with legal arguments rather than political motives.

19. Based on these submissions, the Complainant seeks that the Communication be declared admissible.

iv. Respondent’s submission on admissibility

20. In its response to the arguments of the Complainant on the admissibility of the Communication, the Respondent State submits that the Communication is not admissible as it does not fulfil the conditions listed below under the Revised Communication Guidelines. The Respondent State’s arguments are based on three issues.

21. Firstly, the Respondent State submits that the Communication is not compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter. The Respondent State argues that there is an emphasis on the support of all African Union Institutions to the Member States without intervention into the internal affairs of such States and without interfering with the administration of justice. In that regard, the Respondent State argues that the Complainant’s incident is an isolated individual incident that has not been repeated in such a large and systematic manner to render a violation that obligates the State to assume the stance of the defender of committing or the recurrence of such violations. The Respondent State further argues that the case is still pending before the national courts and has not been finalised and therefore the submission of the Communication should be deemed as a blatant interference in the provisions, measures and procedures of the domestic judiciary and is contrary to the Constitutive Act of the African Union.

22. Secondly, the Respondent State submits that the Communication does not satisfy the requirement that a Communication should not raise cases pending before another international body. The Respondent State argues that the case is pending before the Criminal Court in the city of Khashm el Girba hence the Complainant’s actions in taking fear as a reason to resort to international institutions is unwarranted. The Respondent State further submits that no final decision was issued on the case, no appeal of the final decision was filed, and the decision has not become res judicata yet. The Respondent State emphasizes that the decision of the Criminal Court has not been passed and in any event, it may exonerate the Complainant or apply the provisions of the Child Act of 2010. The Respondent State therefore submits that the fear of the likelihood of the sentence of flogging being passed on the Complainant notwithstanding the form of the decision of Court that might exonerate her, according to the recently introduced Amendments to the Criminal Code abolishing the flogging penalty, renders such fears groundless.

23. Thirdly, the Respondent State submits that the Complainant has not exhausted all the local remedies. The Respondent State argues that the Communication does not indicate that the Complainant filed a complaint to the National Commission of Human Rights and no advisory decision was issued prior to its dissolution in September 2020, knowing that the Commission is an independent human rights entity that was established in accordance with the 2007 Paris Principles on establishing independent national human rights mechanism. The Respondent State submits that such a Commission is recognised by the African Union and United Nations and enjoys the status of an advisory mechanism by several similar mechanisms. The Respondent State further argues that the Complainant did not lodge a complaint to the General Grievances and Corrections Corporation established in Sudan as an internal remedy path to be resorted to after the exhaustion of other justice and judiciary mechanisms. The Respondent State submits that the General Grievances and Corrections Corporation is deemed a supervisory body monitoring the judiciary and justice institutions performance and their enforcement of the National Sudanese law and international and regional obligations of Sudan, in particular in the domain of human rights.

24. Based on these submissions, the Respondent State seeks that the Communication be dismissed for lack of fulfilling admissibility requirements.

v. The Committee’s analysis on admissibility

25. In analysing the admissibility of the Communication, the Committee relies on article 44 of the Charter and the Revised Communication Guidelines. The provisions of article 44 of the Charter and Section I (1) of the Revised Communication Guidelines stipulate that ‘non-governmental organisations legally recognized by one or more of the Member States of the African Union or State Party to the Charter or the United Nations, among others can submit a Communication before the Committee.’ The Committee notes that ACPJS is a registered non- governmental organization working to monitor and promote respect for human rights and legal reform in Sudan and is making the application on behalf of a Sudanese national. Moreover, Sudan is a state party to the Charter as it ratified the Charter in 2008. Furthermore, in terms of Section I (4) (a) of the Revised Communication Guidelines, the Committee’s jurisdiction is determined by the complainant’s age at the time of the alleged violation. Although the complainant is 20 years old, the Committee notes that she was 16 at the time of the alleged violation. As such, the Committee holds that the Complainant has locus standi to submit the case.

26. The admissibility of a Communication determined based on the conditions of admissibility provided under Section IX (1) of the Revised Communications Guidelines. Therefore, the Committee assesses whether or not the Communication meets those conditions. From the Complainant and the Respondent State’s submissions on admissibility, the Committee has identified three issues that require analysis namely;

a)   Whether or not the Communication is compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter;

b)  Whether or not the Communication raises matters pending settlement by another international body; and

c)   Whether or not the Complainant has exhausted local remedies, and whether the Complainant should be exempted from exhausting local remedies.

A. Whether or not the Communication is compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter

27  . Section IX (1) (a) of the Revised Communication Guidelines provides that a Communication is admissible if ‘it is compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter.

28  .The Respondent State has invoked the principle of non-intervention into the internal affairs of States and argues that the Communication does not meet this requirement. The Committee however acknowledges that ‘ once a State commits itself to a treaty or its membership of an organisation, that act implies agreement to be bound by decisions from these institutions that are responsible for implementing and giving effect to the treaty.’[4] The Committee further acknowledges that ‘by ratifying the African Children’s Charter, states automatically accept the competence of the Committee to ‘receive’ individual and inter-state communications.’[5] Article 1 of the Charter places an obligation on Member States to recognise the rights, freedoms, and duties enshrined in the Charter, and by ratifying the Charter, the Respondent State bound itself to the provisions of the Charter, including this obligation. Further, the Respondent State bound itself to the mandate of the Committee to promote and protect the rights enshrined in the Charter provided in article 42 of the Charter. This also includes the mandate to receive Communications against Sudan, relating to matters covered by the Charter as stipulated in article 44 of the Charter.

29  .The Committee notes that the principle of non-intervention is not absolute as it is subject to limitations and there are exceptions to the principle. Indeed, the Committee acknowledges that under international law, particularly article 2(7) of the Charter of the United Nations, the principle ‘concerns the duty not to intervene in matters within the domestic jurisdiction of any State’, and this implies that States should be given an opportunity to redress violations within their own system. However, in the report of the UN Secretary General ‘In Larger Freedom: Towards Development, Security and Human Rights for Alf, the Secretary General, while acknowledging that the responsibility to protect citizens lies first and foremost with each individual state, stressed that ‘ if national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian, and other methods to help protect the human rights and well­being of civilian populations.’[6] Drawing from these sentiments, the Committee is of the view that the principle of non-intervention does not entirely preclude intervention and in the event that a particular state fails to redress violations in its own system, intervention is warranted.

30  .The Committee notes from the Communication that the Respondent State was given an opportunity to remedy the alleged violations at the national courts but it is alleged that the Respondent State failed to do so. The Applicant has thus approached the Committee for redress and refusal by the Committee to deal with the matter on the basis of the principle of non-interference will be undermining the objectives and purpose of the Charter. While giving regard to the concept of State sovereignty and non-interference in terms of article 4(g) of the Constitutive Act, the Committee acknowledges that intervention is required in order to protect and promote children’s rights. The Respondent State cannot therefore seek to absolve itself from the obligations of the Charter by invoking the principle of non-interference.

31 .The Committee notes that the substantive requirement of compatibility with the AU Constitutive Act and the Charter entails the necessity that complainants make reasonable claims that articles of the Charter have been violated. The Committee reiterates its decision in the Talibes case where it held that the condition of compatibility with the AU Constitutive Act and the Charter is met if a Communication alleges violations of the African Children’s Charter.[7] The same was stated by the Committee in its admissibility ruling of Ahmed Bassiouny v Egypt,[8] where the Committee held that in order to be accepted by the Committee, a communication should show prima facie violation of the provisions of the African Children’s Charter. The Committee notes that the present Communication alleges violation of specific provisions of the Charter (articles 1, 2, 3, and 16) and is therefore brought in conformity with the provisions of the Charter and the Constitutive Act of the African Union.

32  . In light of the above, the Committee notes that the Communication fulfils the requirements of section IX (1) (a) of the Revised Communication Guidelines on compatibility with the Constitutive Act and the Charter.

B. Whether or not the Communication raises matters pending settlement by another international body

33  . Section IX (1) (c) of the Revised Communication Guidelines provides that a Communication is admissible if it does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the African Union and principles of the United Nations Charter.

34  .The Committee makes reference to its admissibility ruling in the case of Legal and Human Rights Center and Center for Reproductive Rights (on behalf of Tanzanian Girls) v Tanzania where it stated that the intention of this condition is to avoid subjecting States to similar international and regional judicial or quasi-judicial procedures on similar alleged violations.[9] As stated in the same admissibility ruling, the Committee further acknowledges that a hierarchy should not be created among the various international judicial or quasi-judicial organs where one can appeal against the other.[10] Furthermore, as held in the Committee’s admissibility ruling in the case Prcject Expedite Justice and others v Sudan, the Committee notes that ‘ such requirement is provided to prevent conflicting decisions and ensure efficiency of transnational tribunals.’[11]

35  .On the basis of this requirement and the Respondent’s State submission, the Committee notes that the key issue of determination in this Communication is the nature of the adjudicating body where the Respondent State alleges that the matter is pending. The provisions of section IX (1) (c) of the Revised Communication Guidelines are straightforward as they refer to matters pending before ‘international’ bodies or procedures and not ‘national’ bodies or procedures.

36  .The Committee notes that the Sudanese Criminal Court is not an international body hence the Respondent State’s argument is misplaced and would only affect the condition of exhaustion of local remedies, which the Committee will address in detail below.

37  .The Committee notes that there is no other indication to the effect that the matters raised in the present Communication are pending settlement or have been previously settled by another international body or procedure in accordance with any legal instruments of the AU and principles of the UN Charter. In light of that, the Committee holds that the Communication fulfils the requirements of section IX (1) (c) of the Revised Communication Guidelines.

C. Whether the Complainant has exhausted local remedies, and whether the Complainant should be exempted from exhausting local remedies.

38. Section IX (1) (d) of the Revised Communication Guidelines provides that a Communication is admissible if submitted ‘after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective.’ As this Committee in the Children of Nubian descent case noted, ‘one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State to be the first port of call to address alleged violations at the domestic level.’[12]Drawing from the Respondents State’s argument, the Committee will determine whether or not the Complainant has failed to exhaust local remedies by failing to submit the case to the National Human Rights Commission and the General Grievances and Corrections Corporation.

39. Drawing from its jurisprudence in the Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on behalf of children of Nubian descent in Kenya v. The Government of Kenya (Children of Nubian descent case), the Committee reiterates that what is envisaged under the Revised Guidelines with regards to the exhaustion of local remedies is that ‘extra-ordinary remedies of a non-judicial nature do not fall within the notion of local remedies and need not necessarily be exhausted for a communication to be declared admissible.’[13] This position has also been adopted by the African Commission on Human and Peoples’ Rights in the case of Cucjoe v Ghana where it was stated that the requirement of the rule of exhaustion of local remedies is that only ordinary judicial remedies need to be exhausted.[14] The African Courton Human and Peoples’ Rights in its jurisdiction and admissibility ruling in the case of Hamad Mohamed Lymbaka v the Republic of Tanzania,'[15] also held that an applicant is not compelled to exhaust remedies that are non­judicial in nature.

40. Judicial remedies can be understood as remedies that are ‘provided by independent tribunals on a non-discretionary basis according to law and provide remedies as a matter of right and in a binding and enforceable manner.’[16] As noted by the Human Rights Committee in the case of Brough v Australia, the Committee recognises that administrative bodies or National Human Rights Commissions that meet all of these standards may constitute appropriate domestic remedies as well.[17] In the event that such bodies do not meet these standards, for example as a result of their issuing non-binding recommendations, or as a result of failure to issue their holdings according to clear legal rules, or due to other characteristics that give them a less-than judicial character, they do not constitute remedies that must be exhausted.[18]

41. The Committee notes that the National Human Rights Commission of Sudan has a status of an advisory mechanism, while the General Grievances and Corrections Corporation is a supervisory body monitoring the judiciary and justice institutions’ performance and enforcement of the national laws as well as the international and regional obligations of Sudan. In that regard it is clear that these two bodies do not provide remedies that are binding and enforceable and are thus non-judicial in nature hence the Complainant cannot be compelled to approach these bodies.

42. The Committee notes from the alleged facts of the Communication that after the High Court overturned the decision of the Child Court and the Appeal Court, the Complainant approached the High Court Review Chamber and upon being disgruntled with the decision of the High Court Review Chamber, the Complainant approached the Constitutional Court. The Sudanese Constitutional Court is the custodian of the Constitution and is the highest court on matters dealing with the constitutionality of laws and provisions in accordance with the Constitution. In that regard, the Complainant exhausted all local remedies available.

43. Regarding the Respondent State’s argument that the matter is pending before the Criminal Court, the Committee notes that the Respondent State is referring to the adultery matter which is yet to be heard by the Criminal Court. The Committee notes that the subject matter of the Communication is the decision of the High Court, the High Court Review Chamber, and the Constitutional Court of Sudan in respect of the rape matter, which decision is alleged, to have a bearing on the victim as she will be prosecuted for adultery before the Criminal Court. The Committee sees no reason why the Complainant should be expected to wait for the adultery trial which is a result of the decisions of the other courts, to be completed before approaching the Committee.

44. In light of that, the Committee holds that the Complainant exhausted all local remedies available and therefore the Communication fulfils the requirement of exhausting local remedies provided in section IX (1) (d) of the Revised Guidelines.

45. As to the other conditions of admissibility, the Committee does not observe any irregularity and no contention has been raised by any of the parties to the Communication.

vi. Decision on admissibility

46. On the basis of all the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has fulfilled all the admissibility conditions laid down in the Committee’s Revised Guidelines on Consideration of Communications; and it is accordingly declared admissible.

Adopted in March 2021 during the 37th Ordinary Session of the ACERWC

Honorable Joseph Ndayisenga

Chairperson of the African Committee of Experts on the Rights and Welfare of the Child

 

[1] Zina is defined under Article 145 (1) of the Criminal Act 1991 as : "There shall be deemed to commit adultery (a) every man, who has sexual intercourse with a woman, without there being a lawful bond between them; (b) every woman, who permits a man to have sexual intercourse with her, without there being a lawful bond, between them"

[2] Article T1 (1) of the 2005 National Interim Constitution provides that "The Bill of Rights is a covenant among the Sudanese people and between them and their governments at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the Corner stone of social justice, equality and democracy in the Sudan" whilst Article 27 (3) states that, "All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of this Bill".

[3] The 2005 National interim constitution does not define a child but states that, "the "state shall protect the rights of the child as set forth in international and regional agreements ratified by Sudan."

[4] GM Wachira, Sovereignty and the 'United States of Africa' Insights from the EU, Institute for Peace Studies (June 2007), 2.

[5] F Viljoen, International Human Rights Law in Africa (2012) 399.

[6] Report of the UN Secretary-General 'In larger freedom: towards development, security and human rights for all' 2005, para 135.

[7] ACERWC, Communication No 003/Com/001/212, The Centre for Human Rights (University of Pretoria) and another v The Government of Senegal, para 18.

[8] ACERWC, Communication No 009/Com/001/2016, Decision on Admissibility No 002/2017, Ahmed Bassiouny v Egypt, para 18.

[9] ACERWC, Communication No 0012/Com/001/2019, Decision on Admissibility No 001/2020, Legal and Human Rights Center and Center for Reproductive Rights v United Republic of Tanzania, para 21.

[10] As above.

[11] ACERWC, Communication No OOll/Com/OOl/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 33.

[12] ACERWC, Communication No 002/Com/002/2009, The Institute for Human Rights and Development in Africa and another (on behalf of children of Nubian descent in Kenya) v The Government of Kenya para 26.

[13] As above, para 30.

[14] ACHPR, Communication 221/1998, Cudjoe v Ghana, (1999), para 14.

[15] AC+HPR, Application 010/2016, Hamad Mohamed Lyambaka vThe Republic of Tanzania, para 39.

[16] C Roberts, Admissibility of Complaints before the African Court Practical Guide (2016), 37.

[17] Human Rights Committee, (HRC) Communication 1184/2003, Brough v Australia, (17 March 2006), para 8.6.

[18] D Sullivan, Overview of the Rule Requiring the Exhaustion of Domestic Remedies under the Optional Protocol to CEDAW, (2008), 5.

Author
admin
Judgment date
Case number
Communication 2 of 2020
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
Flynote
Children

The African Committee of Experts on the Rights and Welfare of the
Child (ACERWC)

Admissibility Ruling
Communication No: 0014/Com/002/2020
Decision on Admissibility No. 0001/2021

Ramphele Attorenys on behalf of Thlodi Tloubatla and Thibedi
Tloubatla

V

Republic of South Africa (the Respondent)

Original: English

  1. Submission of Communication
  1. The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC/the Committee) received a Communication dated 13 January 2020 in accordance with article 44 of the African Charter on the Rights and Welfare of the Child (ACRWC/the Charter) submitted by Ramphele Attorneys on behalf of Thlodi Tloubatla and Thibedi Tloubatla (the Complainants) against the Republic of South Africa (the Respondent). Having received the Communication, pursuant to Section III of the Committee’s Revised Guidelines for Consideration of Communications (Revised Communications Guidelines), the Secretariat of the Committee conducted preliminary review and processing of the Communication and registered the submission as Communication No: 0014/Com/002/2020. In accordance with Section IX (2) of the Communications Guidelines, the Communication was duly transmitted to the Respondent State through Note Verbal DSA/ACE/64776.20 dated 23 January 2020 inviting the Respondent State to submit its argument on the admissibility of the Communication. The Respondent State requested for extension to submit its arguments on admissibility through Note Verbal SAEMB/AUC/5264 dated 03 September 2020, SAEMB/AUC/5273 dated 16 September 2020, and SAEMB/AUC/5345 dated 01 December 2020. Following the several requests, the Committee granted a final extension of 20 days through Note Verbal DSA/ACE/64/545.20 dated 10 December 2020. The Respondent State submitted its argument on admissibility of the Communication through Note Verbal SAEMB/AUC/5382 dated 31st December 2020 which was transmitted to the Complainants. The Complainants did not submit any comment on response of the Respondent State.
  2. Summary of alleged facts
  1. The Complainants allege that the South African Revenue Services (SARS) obtained provisional preservation order against the assets of their client Mr Norman Tloubatla in accordance with the Tax Administration Act of the Respondent State for allegations of Tax Froud. The provisional preservation order was given by the Gauteng Division of the High Court of the Respondent State. The Complainants explain that the effect of the provisional orders is that their client is not able to deal with the assets anymore. The Provisional Order appointed a Curator who is vested with the assests of Mr. Tloubatla and who has been given the power to allow for reasonable living expense given that Mr Tloubatla discloses full information about his assets. The High Court, when giving the provisional preservation order, provided that the application for living expense needs to be launched in 24-hour notice. Mr Tloubatla applied for the payment of living expense for his dependents, health expense as he was sick, and cost of legal representation. The Curator did not allow to provide for the cost of any expense sought on the basis that there was no full disclosure of assets. The Complainants allege that the decision that full disclosure of assets was made by the Curator while it should have been made by a court. The High Court did not rule in favor of the Complainants to avail living expense for Mr Tloubatla or his dependents on the basis that Mr Tloubatla did not disclose all his assets as required. The Complainants submit that Mr Tloubatla passed away after falling ill but was not convicted for any crime. The Complainants further explain that they were forced to cover cost of legal fees by the Court. The Complaints submit that they took the matter up to the Constitutional Court of the Respondent State but failed to get any favorable decision from all the superior courts. The High Court decided against their application for disposal of funds and ordered punitive cost against the Attorneys. The decision of the Hight Court provides that the Curator reported that Mr Tloubatla’s children’s school fee was being paid from the Companies under scrutiny which used to be run by Mr Tloubatla. Therefore, the Curator reported that Mr Tloubatla had funds at his disposal which were not disclosed as per the Preservation Order. The High Court agreed with the Curator’s finding and therefore rejected the application of the Complainants. The Complainants submit that they submitted an application for leave to appeal which was rejected by the Hight Court and they appealed up to the Constitutional Court with no success. The Complaints allege that all the courts disregarded the best interest of the child which is protected funder article 4 of the Charter in reaching at their final rulings and hence the decisions violate the Charter.
  1. Applicant’s Submission on Admissibility
  1. The Complainants submit that the application is made on behalf of children and that the Communication is submitted against a State Party to the Charter. The Complainants further allege that they have exhausted local remedies as the matter has been taken up to the Constitutional Court of the Respondent State.

IV. Respondent’s Submission on Admissibility

  1. In its response, the Respondent State argues that the Complaint is not in line with the Charter as there is no violation of the Charter from the facts. The Respondent State argues that there is no action or inaction of the State Party so as to say that there is a violation of the Charter. The Respondent State submits that the Complainants are rather filing this case to raise their disagreement with the decision of the Hight Court. Moreover, the Respondent State argues that the Communication is not submitted against a State Party rather against one organ, mainly the judiciary. The Respondent provides that the Government will not interfere in the functions of the Court and therefore a Communication submitted disagreeing with the judiciary of the Respondent State cannot be said that it is submitted against a State party particularly when the Complainants fail to articulate the link between the decision of the Courts and complicity on the part of the Government. Moreover, the Respondent State argues that the Complainants have not exhausted local remedies as the issue of the best interest of the child was not raised before local courts. The Respondent submits that the Complainants only raised the issue of punitive cost that was ordered against them in their application for leave to appeal while no issue of maintenance was raised. The Respondent State therefore argues that the best interest of the child is raised for the first time before the Committee and hence the requirement of exhaustion of local remedies has not been met. Furthermore, the Respondent State provides that the Complainants can only raise the matter for the first time if local remedy is prolonged or ineffective. In this regard, the Respondent State submits that its local courts provide swift decision and have progressive decisions on child rights issues. The Respondent therefore submits that the Communication be declared inadmissible.

V. The Committee’s Analysis on the Admissibility of the Communication

  1. The Committee basis its analysis of the admissibility of this Communication on article 44 of the African Charter on Rights and Welfare of the Child and its Revised Guidelines on the Consideration of Communications. After considering the submission of both parties, the Committee notes that the requirement of form and content as enshrined under Section II of the Revised Communications Guidelines are fulfilled. The Communication is submitted by Ramphele Attorenys on behalf of Thlodi Tloubatla and Thibedi Tloubatla, who were both children during the alleged violation. Given Section 1(1) of the Revised Communications Guidelines which provides that any person acting on behalf of children can have access the Committee, the Committee accepts the standing of the Complainants.
  2. As to the Requirements of form provided under Section II (2) of the Guidelines, the Committee notes that the Communication is not anonymous, and it is duly signed by the Complainants. Concerning the requirement that a Communication should be directed against a State Party to the Charter, the Respondent State also contends that the Communication is not submitted against a State Party, rather one organ of the State namely the Judiciary. The Committee stresses here that any organ of the State can lead to international responsibility of the State. The Committee wishes to make reference to article 4 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts which provides ‘The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State’[1]. The Committee highlights that the State is composed of various organs and entities the action of which are attributable to the State. Despite the fact that the Judiciary is an autonomous organ, it remains to be one of the main organs of the State. Therefore, any action or omission of the Judiciary of a State can make the State responsible at supranational level given the fact that other requirements are fulfilled. In this regard, the Committee rejects the argument of the State that the Communication is not submitted against a State Party. The Respondent State ratified the African Charter on the Rights and Welfare of the Child in January 2000 and is therefore a State Party to the Charter against whom complaints alleging violations of the Charter can be brought.
  3. The Committee also notes that the Complaint fulfils the requirement of content stipulated under Section II (3) as it identifies the Respondent State; it provides for the alleged violations and provision of the Charter alleged to have been violated; it highlights measures undertaken to exhaust local remedies; and also outlines remedies sought.
  4. Moving forward, the Committee assesses whether or not the Communication satisfies the conditions of admissibility provided under Section IX (1) of the Revised Communications Guidelines. In doing so, the Committee notes that issues that need analysis relate to Section IX (1) (a) and (d) on compatibility of the Communication with the Charter and exhaustion of local remedies respectively.
  5. On the issue of compatibility, the Respondent State argues that the Communication is not compatible as there is no action or omission of the Respondent State that led the violation of a Charter. The Committee has previously explained what is entailed under Section IX (1) (a) of the Revised Communications Guidelines in its admissibility analysis on Center for Human Rights and other v Senegal decision.[2] In that decision, the Committee provided that compatibility of a communication with the Charter entails that a Communication invokes provisions of the Charter. Moreover, in line with article 46 of the Charter, the Committees draws inspiration from the African Commission on Human and Peoples’ Rights (ACHPR/Commission) concerning the understanding and definition of Compatibility. The Commission in various decisions has elaborated that a Communication is found to be compatible if the allegation invokes a prima facie violation of the African Charter on Human and Peoples’ Rights.[3] The Commission has further explained that prima facie case means that the facts of the case, or the allegations raise violations of the African Charter on Human and Peoples’ Rights.[4]Therefore, if a Communication raises provisions of the Charter or matters covered by the Charter, then a Communication is deemed to be compatible with the Charter as per the Revised Guidelines of the Committee. Whether or not there is an actual violation of the alleged provision is a matter that will be settled at the merit stage once a Communication is admissible. What is important at the admissibility stage is the fact that the Complainants are raising allegations that could give rise to violations of the Charter. In this Communication, the Complainants have raised alleged violation of article 4 of the Charter on the best interest of the child. Therefore, the Committee decides that the Communication is compatible with the Charter as it raises matters covered by the Charter.
  6. The Complainants submit that they have exhausted local remedies as they have pursued the case up to the Constitutional Court of the Respondent State. Contrary to this, the Respondent State submits that the Complainants have not exhausted local remedies on the issue of the best interests of the child or the maintenance of the children of Mr Tloubatla. The Respondent State alleges that the Complaints submitted leave to appeal concerning only the issue of the punitive cost that was ordered against the Complaints by the Hight Court. The Respondent submits that the issue of the best interest of the child is being raised at the Committee for the first time.
  7. The Committee reiterates its position from its previous admissibility ruling on Legal and Human Rights Center and other v United Republic of Tanzania that the requirement of exhaustion of local remedies is provided to ensure that ‘States are given the information about the alleged violations and an opportunity to redress such violations within their available means’.[5] This reflects the fact that regional or international mechanism are supplementary to the national system. Therefore, States can be subjected to international mechanisms only after they have been given ample notice about the alleged violation that has occurred or is occurring in their respective territories.[6] States must be given the opportunity to remedy the alleged violation using their local systems.[7]
  8. Bearing in mind the rationale for exhaustion of local remedies, the Committee is convinced that the issue that is being alleged at its jurisdiction should be the same issue for which local remedies must have been exhausted. The ACHPR has clearly stated that ‘In assessing whether states have been given this opportunity is of prime importance to make sure that they have been addressed on all the substantive issues complained of and that the domestic procedures as provided by the laws of the country have been properly pursued, unless they are apparently unjust or prolonged’.[8] In the present Communication, the Complainants filed leave to appeal up to the highest level of the Respondent State’s judicial structure, however, the main issue which formed their application for leave to appeal was the punitive cost that was ordered against the Complaints by the Hight Court. The Courts were not given the chance to analyze and decide on the best interest of the child which the Complainants allege to have been compromised by the decision of the Curator not to make funds available for the dependents of Mr Tloubatla. The Committee therefore is not in a position to consider the issue of whether or not the decision of the High Court to dismiss the claim of Tloubatla for funds to be released by the Curator violates the principle of the best interest of the child as the local courts were not given the opportunity to rule on this substantive issue which is the main allegation raised by the Complaints. In this regard, the Committee agrees with the submission of the Respondent State that the Committee is not a first instance court where new issues are presented before it unless the conditions for exemptions from exhaustion of local remedies are fulfilled.
  9. For the forgoing reasons, the Committee, decides that the Communication does not meet the requirement of admissibility as it relates to exhaustion of local remedies set forth under Section IX (1)(d) of the Revised Communications Guidelines. Hence, the Committee declared the Communication inadmissible.

Adopted in March 2021 during the 37th Ordinary Session of the ACERWC

Honorable Joseph Ndayisenga

Chairperson of the African Committee
of Experts on the Rights and Welfare of the Child

 

[1] Article 4, Draft Articles on Responsibilities of States for International Wrongful Acts.

[2] ACERWC, Communication No 003/Com/001/2012, Center for Human Rights and other V Senegal, Decision No 003/Com/001/2012, para 18

[3] ACHPR, Communication 310/2005, Darfur Relief and Documentation Centre v Republic of Sudan, Decided at the 46th ordinary session, November 2009, para 63; Communication 293/2004, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development v Republic of Zimbabwe Decided at the 43rd ordinary session, May 2008, para 45;

[4] As above; Communication 300/2005, Socio-Economic Rights and Accountability Project v Nigeria Decided at the 5th extraordinary session, July 2008,para 38.

[5] ACERWC, Communication No: 0012/Com/001/2019 Legal and Human Rights Center and other v United Republic of Tanzania, Decision on Admissibility No: 001/2020, para 26

[6] ACHPR, Communication 155/96, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (Oct 2001) para 38

[7] ACHPR, Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, Decided at the 9th extraordinary session, 23 February to 3 March 2011, para 87

[8] ACHPR, Communication 306/05 - Samuel T Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe Decided at the 9th extraordinary session, 23 February - 3 March 2011, para 71.

Author
admin
Judgment date
Case number
Communication 1 of 2019
Court name
African Committee of Experts on the Rights and Welfare of the Child
Flynote local
Communication
Flynote
Children
Harmful practices affecting the rights of children
Admissibility
Education

The African Committee of Experts on the Rights and Welfare of the Child
(ACERWC)

Admissibility Ruling

Communication No: 0012/Com/001/2019

Decision on Admissibility No: 001/2020

Legal and Human Rights Center and Center for Reproductive Rights (on behalf of
Tanzanian girls)

v

United Republic of Tanzania

Original- English

I.        Submission of Communication

1.   The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a Communication dated 17 June 2019 pursuant to article 44 of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Legal and Human Rights Center and Center for Reproductive Rights (on behalf of Tanzanian girls) (the Complainants) against the United Republic of Tanzania (the Respondent State). Receiving the Communication, pursuant to Section III of the Committee’s Revised Guidelines for Consideration of Communication (the Revised Communications Guidelines), the Secretariat of the Committee conducted a preliminary review and registered the submission as Communication No: 0012/Com/001/2019. To facilitate the determination on the admissibility, the Communication was duly transmitted to the Respondent State through a Note Verbal, Ref DSA/ACE/64.2604.19 dated 25 June 2019, pursuant to Section IX (2) of the Revised Communications Guidelines. The Committee received a Note Verbal from the Respondent State, Ref. CHAD/239/738/01/10, dated 01 October 2019, which contains the Respondent State’s submission on the admissibility of the Communication. The response submitted by the Respondent State was not accepted by the Committee as it was signed by one of the Members of the Committee, thus raising conflict of interest contrary to what is prescribed under Rule 4 of the Rules of Procedures of the ACERWC. Hence, the Committee, through a Note Verbal, Ref. DSA/ACE/64/5333.19, dated 09 December 2019, requested the Respondent State to revise and re-submit its response. Accordingly, the Respondent State submitted its revised response on the admissibility of the Communication with a Note Verbal, Ref. No. CHAD 239/780/01/35, dated 27 August 2020 which was also sent to the Complainants on 31 August 2020. Following the Respondent State’s submission, on 01 September 2020, the Complainants, pursuant to Section IX (2) (Vi) of the Revised Communications Guidelines, further submitted their observations on the response of the Respondent State.

II.       Summary of alleged facts

2.   The Complainants allege that primary and secondary school girls are subjected to forced pregnancy testing and expulsion from schools in events where they are found pregnant or married. While acknowledging that the exact number of children expelled from schools for reasons of pregnancy or marriage is unknown, the Complainants submit that Tanzania’s 2013 Basic Education Statistics provides that 2433 primary schoolgirls and 4705 secondary schoolgirls dropped out of school due to pregnancy in 2012. Moreover, the Complainants allude to reports from Human Rights Watch that over 15,000 girls drop out of school every year due to pregnancy. It is also submitted that the study conducted by one of the Complainants, Center for Reproductive Rights, provides that over 55,000 female students dropped out of school due to pregnancy between 2003 and 2011.

3.   The Complainants allege that mandatory pregnancy testing is practiced in almost all public schools subjecting girls as young as 11 years of age to pregnancy testing. It is submitted that the testing does not follow any standard and sometimes painful methods such as poking are applied to check for pregnancy by school personnel. The Complainants allege that pregnancy testing is undertaken without the consent of the girls and most often the results are not communicated to the girls but rather shared with school staff without the consent of the girls. Girls are also required to take pregnancy test when they enroll in schools.

4.   The allegation of the Complainants provides that girls who are found to be pregnant before being enrolled will not be accepted to schools and those girls who are found to be pregnant in the school year are expelled from schools. The Applicants allude to the fact that neither pregnancy testing nor expulsion of students due to pregnancy is prescribed by the Education Regulations. The Applicants provide that pregnancy is not included as a ground of expulsion in the Education (Expulsion and Exclusion of Pupils from School) Regulation 2002 G.N. No. 295 of 2002, however, school administrators interpret pregnancy to be an offence against morality which is one of the grounds of expulsion under the Regulation. The Complainants also indicate that some school administrators expel pregnant girls from school claiming that it is government policy. As expulsion is a universal practice in public schools, girls who find out about their pregnancy by themselves dropout of school to escape the humiliation and stigma they will be subjected to if school administers find out about their pregnancy during mandatory testing. Moreover, the Complainants submit that the expulsion and exclusion of pregnant school girls has no exception such as in cases where girls fall pregnant due to sexual abuse or incest even in cases where police report can be produced to that effect.

5.   The Communication further alleges that married girls are not allowed to register or remain in school once married and this is vividly provided by the Respondent State’s Regulation on Expulsion and Exclusion of Pupils. The Complainants submit that the Education (Imposition of Penalties to Persons who marry or Impregnate a School Girl) Rules 2003, G.N. No. 265 of 2003 penalizes anyone who marries or impregnates a schoolgirl. The Communication highlights that this is in contradiction with the laws of the Respondent State as the Marriage Act allows girls as young as 14 to get married. The Communication also indicates that there is a court decision which rules that the age of marriage for girls set below 18 has been declared unconstitutional but has not entered into force due to an ongoing appeal on the decision of the High Court.

6.   Moreover, the Complainants allege that the expulsion and exclusion policy of the Government is a permanent one as school girls are not readmitted to the public school after delivery. School girls who have been expelled due to pregnancy or marriage can only be readmitted to private schools or vocational training schools. The Complainants further allege that these options are not always accessible or limit the education path girls wish to pursue. While noting that since 2014 the Education and Training Policy has incorporated a provision which provides that students who left school for any reason should be readmitted, the Complainants submit that this has never been implemented. The Communication also submits that recent statements by high level officials of the Respondent State including the President have alluded to the fact that the Government of the Respondent State will intensify its effort to expel students who fall pregnant and also to ensure their non-readmission to schools. The Complainants also submit affidavits of girls who have been denied to re-enter school after giving birth due to the statements of the officials, mainly the President.

7.   The Communication includes facts that school personnel usually report pregnancies as the Child Act and the Ministry of Education Rules prescribe penalty against those who impregnate girls. The Complainants submit that such reports are subjecting girls to unlawful detention or harassment as they are often detained or harassed until they expose the identity of the person who impregnated them. Furthermore, the Communication alleges that girls who fall pregnant due to sexual abuse are exposed to the same risk of detention and harassment subjecting them to secondary victimization. The Complainants refer to the assessment undertaken by the Tanzanian Commission on Human Rights and Good Governance to allege that children are detained in harsh conditions, denied of visits by caregivers, and subjected to delayed case hearings. The Communication therefore alleges that girls are being detained when they refuse or are unable to testify against who impregnated them although being pregnant by itself is not provided as a crime. The Communication cites the statement of the Regional Commissioner who ordered regional and district commissioners of education to arrest pregnant girls who refused to identify the person who impregnated them. Following the order, the Communication alleges that 55 pregnant school girls were arrested in Tandahimba District. Such practices and policies discourage pregnant girls or parents from seeking information or assistance including reporting cases of sexual abuse especially in cases where the perpetrators are unknown. Even when the perpetrators are known, the Complainants allege that proper investigation is not carried out to prosecute them.

8.   The Communication finally alleges that girls in the Respondent State are deprived of access to sexual reproductive health information and services to prevent unplanned pregnancies. Girls who are pregnant are not also provided with pregnancy related services such as information on family planning, and transmittable diseases. The Complainants allege that lack of information and services on sexual reproductive health issues has resulted in a high rate of teenage pregnancy and unsafe abortion as well as disproportionate risk of teenage pregnant girls’ death in the Respondent State. The number of teenage girls who fall pregnant is higher among those with lower education, lower income and girls in rural areas. The Complainants claim that there is lack of comprehensive sexual education in schools as sexuality education mainly focuses on abstinence and is provided in secondary education level where girls are already sexually active. In addition, girls are not provided with any kind of sexual reproductive health services or information during mandatory pregnancy testing such as contraception options or prevention of sexually transmitted diseases. The sexual reproductive health services available in the Respondent State are not youth friendly and hence girls are not encouraged to access such services even when they are available. The Communication submits that lack of information and services on sexual reproductive health result in unwanted and unplanned pregnancy of girls who are then forced to leave their education as a result of pregnancy. It is also increasing the number of unsafe abortions among adolescent girls which is also exacerbated by restrictive abortion law of the Respondent State.

III.      Applicants’ submission on admissibility

9.   The Complainants argue that the Communication fulfills the requirement of admissibility under Section XI (1) of the Revised Communications Guidelines.

10. The Complainants particularly focus on the requirement of exhaustion of local remedies, where they submit that the communication fulfills the requirement of exhaustion of local remedies. The Communication provides that one of the

Complainants, Legal and Human Rights Center (LHRC), along with the National Organization for Legal Assistance filed a case at the High Court of the Respondent State on behalf of school girls against the Minister of Education and Vocational Training and the Attorney General alleging that forced pregnancy testing and the practice of expelling pregnant girls from school violates the Constitution of the Respondent State. The case was filed on 13 September 2012 and after receiving the reply of the Respondents in that case, the High Court rescheduled the case three times the final of which was scheduled for 02 May 2013. The Complainants submit that hearing could not be held on the scheduled day as the assigned judge decided to recuse himself from the case. The High Court announced that the case has been reassigned to another judge on 26 November 2013 and rescheduled the preliminary hearing twice after which it decided to get the preliminary objection in writing. The Communication alleges that after numerous appointments, the Court dismissed the preliminary objection on 13 November 2015, more than three years after the filing of the case. The Communication also provides that the hearing of the merits was withheld by the Court for various reasons until 04 May 2017 when the Court decided to receive arguments on the merit in writing. The Court rendered decision on 04 August 2017 dismissing the case of the petitioners entirely on the basis of lack of evidence of discrimination and further decided that pregnancy is a matter of discipline that should be left for schools. Following the decision, the Complainants indicate that a notice of appeal was submitted to the Court of Appeal on 14 August 2017, however, the certified judgment and proceedings of the High Court were provided only on 11 April 2018. The Complainants allege that despite all procedures fulfilled, the Court of Appeal has not given a hearing date on their appeal until the day they submitted the current Communication to the Committee.

11. Based on these facts, the Complainants argue that local remedies have been unduly prolonged, hence they should not be required to wait any further for remedy at local level. The Complainants refer to Section IX (1)(d) of the Guidelines for Consideration of Communications which provides that local remedy may not be exhausted if it is unduly prolonged or ineffective. The Communication also makes reference to the Minority Rights Group International v. Mauritania case and IHRDA et.al on behalf of Children of Nubian descent v. Kenya case (Children of Nubian Descent case) Where the Committee ruled that seven and four years of delay respectively fulfill the requirement of unduly prolonged local remedies. Moreover, the Communication alleges that the best interest of the child should be the primary consideration in determining whether a local remedy is unduly prolonged given the irreparable harm the children will suffer. The Communication also reiterates the decision of the Committee in the Children of Nubian Descents Case where the Committee stated that one year delay constitutes 6 percent of childhood and hence it found that over 6 years delay in local court proceeding is not in the best interest of the children.

12. The Complainants further argue that the local remedies are not effective as local authorities are informed about the situation but have failed to act on it. The Complainants cite the Committee from its decision on the Michelo Hunsungule and others (on behalf of children in Northern Uganda) v. The Government of Uganda case (Children of Northern Uganda case) whereby the Committee stated that the purpose of having the requirement of exhaustion local remedies is to prevent international tribunals from serving as appellate courts and also to give States the opportunity to be able to address violations that occur in their territory. The Complainants also support their arguments with the jurisprudence of the African Commission on Human and Peoples’ Rights (African Commission) citing various cases including Article 19 v Eritrea and FIDH and OMCT v Sudan where the African Commission held that local remedies are ineffective and need not be exhausted in cases where the State has been provided with ample notice of the alleged violations and yet the State fails to take measures. The Communication further makes reference to Amnesty International and Others v. Sudan where the African Commission held that in cases of clear human rights violations, domestic and international attention alone may suffice to confirm that the State has received notice. In the current case, the Complainants argue that the practice of expelling pregnant girls from school is a widespread practice which the Respondent State is aware of and tries to defend and further that international reports as well as appeals including by the Committee, the Commission and the UN Committee on the Rights of the Child have been provided for the Respondent State. Therefore, the Complainants submit that local remedies are ineffective as the Respondent State has failed to act on the violations that have been brought to its attention.

13. Finally, the Complainants argue that local remedies are not available as the violations are massive and serious. The Communication makes reference to the decision of the Committee in the Children of Northern Uganda case in which the Committee granted exemption from exhausting local remedies on the basis that the violation affected thousands of children and the violation occurred on a large scale. The Complainants further support their argument by the jurisprudence of the African Commission where the Commission decided that local remedies need not be exhausted in massive and serious human rights violation cases. The Complainants rely on the definition of massive and serious human rights violation by the Commission in the Open Society Justice Initiative v. Cote d’Ivoire case where the Commission held that ‘a massive violation is one that affects a large number of persons, either in a specific region or all over the territory of a State Party. Concerning the nature, the violation must be the consequence of continual and pre-determined actions having an impact on a right or a group of rights under the African Charter’. The Communication argues that there are a large number of girls who are being affected by the expulsion which makes it massive and it would be impractical to require all these girls to exhaust local remedies.

IV.      Respondent’s submission on admissibility

14. In its response to the arguments of the Complainants on the admissibility of the Communication, the Respondent State submits that the Communication is not admissible as it does not fulfill the conditions listed down under the Revised Communication Guidelines.

15. The Respondent State submits that the Communication raises matters pending before another international human rights body, hence does not fulfill the requirement of admissibility under Section IX (1(c) of the Revised Communication Guidelines. The Respondent State submits that a similar joint communication has been submitted to the Special Mechanisms of the Human Rights namely the Working Group on Discrimination of Women in Law and Practice under Reference No. AL TZA 3/2017 dated 14 August 2014 and Special Rapporteur on the Right to Education under Reference No JAL TZA 1/2018 dated 22 February 2018. The Respondent State supports its submission using various decisions of other treaty bodies among others the decision of the African Commission in the Amnesty International v Tunisia, Mpaka- Nsusu V Zaire, and Interights v Eritrea and Ethiopia cases where it declared the Communications inadmissible as they were pending before the UN Human Rights Commission. The Respondent State argues that the Special Mechanisms are part of the Human Rights Council mechanism and hence fits in the UN Charter Procedure in accordance with Section IX 1(c) of the Guidelines of the ACERWC.

16. Furthermore, the Respondent State argues that the Communication is inadmissible as the Complainants have not exhausted local remedies available in the Respondent State. In its submission, the Respondent State argues that the Complainants should not be granted an exemption from exhausting local remedies as local remedies are available, effective, and sufficient in the domestic system. The Respondent State argues that the fact that one of the Complainants filed a case against the Ministry of Education before the High Court and later filed an appeal at the Court of Appeal reveals that there is a judicial remedy available at domestic level. The Respondent State, making reference to the Decision of the African Commission in the Amnesty International and Other V Sudan, submits that the existence of the right to appeal satisfies the condition of effectiveness of local remedies. The Respondent State further submits that its judiciary is independent and the effectiveness of a local remedy is assessed on the basis of prospect of success, not the awareness of authorities about the violation, hence the judicial and administrative role of the State should not be confused. The Respondent State also relies on the decision of the Committee on Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in submitting that evidence should be produced to show ineffectiveness of local remedies and a mere doubt does not make a remedy ineffective. In providing evidence that a local remedy is effective, the Respondent State cites Rebeca Z. Gyumi v The Attorney General where both the High Court and the Court of Appeal Tanzania declared Section 13 and 17 of the Law of Marriage Act unconstitutional for providing lower age of marriage for girls. The Respondent State submits that the Complainants should follow their appeal up to the end and their decision to abandon the local remedy they started to exhaust is against the principle of subsidiarity and complementarity of international tribunals. In supporting these arguments, the Respondent State among others refers to the decision of the Committee in the Sohaib Emad v Arab Republic of Egypt case that international and regional bodies do not serve as a first instance courts, rather as a last resort after exhausting local remedies.

17. In addition, the Respondent State submits that the Communication does not fulfill the requirement under Section IX 1(e) of the Guidelines on Consideration of Communications as it is premature and not submitted within reasonable time. The Respondent State alludes to the fact that the Court of Appeal is yet to rule on the case and the delay is normal like in other cases. Only cases that require urgency are given priority and the Respondent submits that this case is not urgent, hence the Complainants should wait for the decision of the Court of Appeal.

Highlighting the fact that conditions of admissibility are cumulative, the Respondent State seeks that the Communication is dismissed for lack of fulfilling admissibility requirements.

V. The Committee’s analysis on admissibility of the Communication

18. The Committee’s analysis of the admissibility of a Communication is guided by article 44 of the Charter and the Revised Communication Guidelines. According to article 44 of the Charter and Section I (1) of the Revised Communication Guidelines, non­governmental organizations legally recognized by one or more of the Member States of the African Union or State Party to the Charter or the United Nations, among others can submit a Communication before the Committee. The Committee notes that LHRC is a non-governmental organization registered in Tanzania and holds an observer status before the Committee since March 2019; similarly, the Center for Reproductive Rights is an international non-governmental organization which has a regional office in Nairobi and also has an observer status before the Committee since November 2018. Considering that the Complainants fulfill the requirement to access the Committee as they are registered in Member States of the African Union, and noting that their application is filed on behalf of pregnant and married school girls, the Committee accepts the standing of the Complainants to submit the case.

19. The Committee in analyzing the admissibility of the Communication assesses whether or not the conditions of admissibility provided under Section IX (1) of the Communications Guidelines are fulfilled. After considering the argument of the Complainants and the Respondent State, the Committee has identified three contentious issues that need to be analyzed in line with the requirement listed in the Revised Communication Guidelines; these are:

i.   Whether or not the Communication raises matters pending settlement by another international body;

ii.   Whether the Complainants have exhausted local remedies, and whether they should be exempted from exhausting local remedies;

iii.  Whether the Communication is presented within a reasonable time after exhaustion of local remedies.

i.        Whether or not the Communication raises matters pending settlement by

another international body;

20. Section IX (1) (c) of Revised Communication Guidelines states that a Communication is admissible if it ‘does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter’. The Respondent State submits that the same issue is raised before the Special Mechanisms of the Human Rights Council, hence it falls within the exclusionary requirement of ‘matter pending before another international procedure’. On the basis of the requirement in Section IX (1) (c) the Revised Communications Guidelines and the submission of the

Respondent State, the Committee notes that the key issue of investigation is the nature of the adjudicating body where the current Communication is pending to be settled, which is the procedure within the Special Mechanisms of the Human Rights Council.

21. While examining the matter, the Committee notes that understanding the background importance of having the above-mentioned requirement as a condition for considering admissibility of a case is crucial. The Committee recognizes that States should not be subjected to similar international and regional judicial or quasi-judicial procedures on similar alleged violations. The Committee further recognizes that having various international judicial or quasi-judicial organs should not be used in a way that creates hierarchy among such organs where one can appeal against the other. As stated in the admissibility ruling of the case Project Expedite Justice and others v The Sudan, the Committee notes that such requirement under its Guidelines are provided to prevent conflicting decisions and ensure efficiency of transnational tribunals.[1] Such criterion of admissibility has a role to play in ensuring ‘certainty and finality of international adjudications’.[2] The same has been upheld by the African Commission, from whose jurisprudence the Committee draws inspiration in line with article 46 of the Charter, where the Commission held that the rationale behind having such requirement of admissibility is ‘to desist from faulting Member States twice for the same alleged violations of human rights and ensures that no State may be sued or condemned for the same alleged violation of human rights’.[3] The Committee further reiterates the Commission’s elucidation that the requirement is a principle that guarantees the res judicata status of decisions issued by international and regional bodies mandated to adjudicate human rights cases.

22. In line with the above, regarding the current Communication, the Committee notes that the requirement of ‘pending settlement or has been settled by another body’ shall be understood in the sense that the case in question should be pending or already settled by a body that has a mandate to reach at a decision that binds that State concerned. The spirit and wording of Section IX (1)(C) of the Revised Communication Guidelines is clear that it is not referring to all kinds of mechanisms available at international or regional levels, rather it is referring to procedures that are capable of redressing a violation as it uses the term ‘settlement’. In its admissibility ruling on the case of Project Expedite Justice and others v The Sudan, where the Respondent State argued that the same matter is pending before another procedure as the issue was being considered by the United Nations Security Council, the Committee held that ‘[f]or the Committee to consider any other procedure as considering or having settled a matter, the body or procedure must be able to address in substance the rights given to the child by the African Children’s Charter. Hence, the organ or body in question must have a mandate comparable to the Committee.’[4] Since, the UN Security Council does not have a mandate comparable to the Committee, the Committee decided that the matter cannot be regarded as pending before another international procedure and therefore dismissed the argument of the Respondent State in the stated case. Drawing inspiration from other jurisdictions, the Committee refers to the decision of the Human Rights Committee (HRC) on the Celis Laureano v Peru case, where the HRC held that international settlement for the purpose of admissibility does not include extra- conventional procedures that are tasked with assessing or reporting on certain human rights violations in specific territories.[5] More similar to the case at hand, in the Madoui V Algeria case, the HRC declared the case admissible despite the fact that the same issue has been submitted before the UN Working Group on Enforced or Involuntary Disappearances as such mechanisms are not what are meant by international settlement under its Optional Protocol.[6] Likewise the African Commission spelled out that a case is deemed to be settled if it is considered by an international treaty body or adjudication mechanism.[7] The Commission further mentions that consideration by another international procedure entails a procedure that ‘is capable of granting declaratory or compensatory relief to victims, not mere political resolutions and declarations’, hence matters considered by the UN Security Council or Human Rights Council are not precluded from being entertained by the Commission.

23. The Committee also notes that the mandate of the Special Rapporteurs or Working Groups of the Human Rights Council is limited to sending communications to the concerned State in a form of letters or reports and requesting the State to respond on the same.[8] The Special Mechanisms then report their communications and the replies of States to the Human Rights Council. As such, they do not have the mandate to issue any form of relief or decision on the complaints they receive. If the Committee considers the current communication, it cannot be said that the Respondent State is being subjected to an international procedure more than once on the same matter as no decision or relief was or can be issued to the victims by the above-mentioned special mechanisms.

24. The Respondent State relied on various cases in substantiating its argument that the case is pending before another procedure including the Mpaka-Nsusu V Zaire case and Interights v Eritrea and Ethiopia case of the African Commission among others. However, the Committee notes that the jurisprudences in which the Respondent State relied on are not similar to the case at hand. The Mpaka-Nsusu V Zaire case was declared inadmissible by the African Commission because it was already considered by the Human Rights Committee which is a treaty body with a quasi-judicial human rights mandate similar to the Commission.[9] The Commission in the Interights v Eritrea and Ethiopia case did not declare the case inadmissible; rather admitted the case and suspended the consideration until the Claims Commission make a decision.[10]

25. On the basis of the above, the Committee decides that the complaints that have been submitted to the Special Rapporteur on Education and the Working Groups on Discrimination against Women in Law and Practice do not qualify as matters ‘pending settlement or previously settled’ under Section IX (1) (c) of the Guidelines, hence the Committee is not prevented from considering the Communication.

11.     Whether the Complainants have exhausted local remedies, and whether they

should be exempted from exhausting local remedies

26. The second issue in relation to admissibility in the current Communication is the requirement of exhaustion of local remedies. The Committee notes, Section IX (1) (d) of the Revised Communication Guidelines provides that a Communication is admissible, among others, if submitted ‘after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective’. While the Complainants argue that local remedy has been unduly prolonged and is not available and effective, the Respondent State, referring to the previous cases, argues that local remedies are indeed available and effective. Examining the matter in contestation, the Committee refers to the long established principle that only judicial remedies that are ‘available, effective, and sufficient’ should be exhausted.[11] The availability of a local remedy is assessed in terms of the ability of the Complainants to make use of the remedy in their case.[12] The rationale behind the requirement of exhaustion of local remedies is not to create impediment on access to redress at supranational level, but rather to make sure that States are given the information about the alleged violations and an opportunity to redress such violations within their available means. States should be given ample notice about the violation that is occurring before being called at international or regional level to account for those violations.[13] Moreover, Complainants are required to exhaust local remedies because local remedies are ‘cheaper, quicker, and more effective’.[14] However, treaty bodies, like this Committee, may entertain a case without a local remedy being exhausted to the end when such remedy is unduly prolonged[15] despite the fact that a remedy is available or could be effective if pursued.

27. In the current Communication, it is submitted that one of the Complainants has attempted to exhaust local remedies since 13 September 2012 when the case was initially filed at the High Court of Tanzania and the High Court gave its decision on 04 August 2017, 5 years after the submission of the case. It was further submitted that even though the Complainants filed a notice of Appeal at the domestic level on 14 August 2017, the Court of Appeal has not given them a hearing date until this case was filed before the Committee in 2019. The Committee believes that time is of a crucial essence of local remedy particularly for children as their best interests demands it and also they have a limited period to enjoy the rights accorded to them as such rights are prescribed by time. As the Committee, in the children of Nubian Descents Case pronounced, a court proceeding that is pending for over 6 years is not in line with the obligation of States to take proactive action and give immediate attention for the realization of children’s rights.[16] Likewise in the case Minority Rights Group International and other v Mauritania, the Committee found that four years of pending case at an appeal stage without any decision amounts to an unduly prolonged domestic remedy, hence the Committee concluded such instance forms a sufficient ground for exemption from exhaustion of local remedies requirement.[17] Referring to the practice with other jurisdictions, the Committee notes that a similar approach is followed by various international and regional bodies. The Human Rights Committee has declared that a proceeding that lasted 6 years at domestic level is an unduly prolonged local remedy which makes a case admissible at the Committee without having the need to wait for the final result of the court proceeding.[18] The Inter American Human Rights Court has also held that a case that has taken 5 years or more since the initial process can result in exemption of the requirement of local remedies.[19] The Committee is cognizant of the fact that there is no fixed amount of years to say that a local remedy is unduly prolonged, rather it is decided on a case by case basis giving due regard to the rights of children at stake. The Committee, while drawing inspiration from the above-mentioned cases, is in no way attempting to prescribe a definitive amount of time for what needs to be considered as ‘unduly prolonged local remedy’. It is the view of the Committee that the amount of time and the nature of the right invoked along with the best interests of the child should determine whether a local remedy is unduly prolonged or not.

28. In the current Communication, the Committee notes that the domestic remedy has taken over 7 years in total and the appeal has taken 2 years without the Court fixing a date for a hearing of the case. Given the time that has lapsed during the consideration of the case by the High Court and the rights of children at stake, the Complainants should no more be subjected to wait for the decision of the Court of Appeal whose proceeding so far has not demonstrated to be any faster. The right to education that is being alleged to have been violated is an essential right for children, which has a long-lasting effect on the wellbeing of children. Education determines the future of children and a domestic proceeding that is prolonged on such fundamental right should not be regarded as a remedy that should be sought till the end process. The Committee, therefore, holds the view that the domestic remedy is unduly prolonged.

29. The Committee does not find the argument of the Respondent State acceptable where it relies on previous cases of the Committee namely Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in arguing that local remedies are effective. The Committee would like to differentiate between the case at hand and the abovementioned two cases invoked by the Respondent State. Both in Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt cases the Committee declined the communication as the Applicants were anticipating the ineffectiveness of the local remedy by relying on previous cases or merely casting doubts without trying to exhaust any remedy at local level.[20] However, in the present case, the Committee notes that the Complainants have attempted to engage the domestic courts and waited for 5 years to get a decision from the High Court, and appealed to the Court of Appeal which took long time to fix the hearing date. Such practices entail that the domestic remedy is proved to be unduly prolonged while the State has been given ample time to address the violation. Hence, it is the view of the Committee that the Complainants argument is not based on a mere anticipation, rather proven records of unduly prolonged domestic proceedings. The Committee reiterates, one of the reasons for exhaustion of local remedies is to give notice to the concerned State about the alleged violations so that it gets the opportunity to address the allegation. In this regard, the Committee, in addition to the local remedies sought by one of the Complainants, refers to the attempts by various international and regional interventions that have drawn the attention of the Respondent State on the same matter covered in the current Communication. In this regard, the Committee particularly refers to the Committee’s and African Commission’s joint letter of urgent appeal sent to the Respondent State regarding the right to education of pregnant girls on 21 July 2017 with        Ref:

ACHPR/LPROT/SM/652/17 regarding the school attendance by pregnant girls and young mothers in the Respondent State. In such circumstance, the Committee takes a strong view that it is against the best interests of the girls in the Respondent State to subject them to prolonged domestic proceedings on a matter that the Government of the Respondent State is well aware of. Moreover, the Committee declines the argument of the Respondent State that resorting to international human rights mechanism without finalizing cases at domestic level is against the subsidiarity principle of transnational systems. The Committee is duly cognizant that reginal and international mechanisms are subsidiary to domestic systems and such principle is reflected under its Revised Communications Guidelines as it prescribes exhaustion of local remedies as one criterion for admissibility of any communication. However, as explained earlier this criterion is not without exception and the exceptions in no way compromise the principle of subsidiarity.

30. With regard to the submission of both parties on the availability of domestic remedy, the Committee makes reference to some of the instances where the remedies have been rendered to be unavailable including when the power or competence of the local courts have been ousted by decrees or any form of decisions; when there is fear for life if the case is brought before local courts,[21] and when the remedies available are non-judicial or are discretionary.[22] The Respondent State argues that the attempt of the Complainants to seek remedy is a proof that remedy is available and cited cases where courts ruled favorably in cases that involved systematic issues like child marriage. The Committee takes the view that exemptions to exhaustion of local remedies are assessed on a case by case basis. The African Commission as well as the Inter American Court of Human Rights have both indicated the same, that the availability and effectiveness of a local remedy is assessed on a case by case basis.[23]A remedy may be available according to the general principle or practice of the Respondent State, however, if the Complainants are not able to use it in their circumstances, it may be regarded as unsuitable for the case.[24] While the Committee is convinced that a remedy may be available in the Respondent State for cases like the current one, it, however, notes that the remedy is unjustifiably and unduly prolonged which makes it not suitable for the Complainants to pursue.

111.   Whether the Communication is presented within a reasonable time after

exhaustion of local remedies.

31. The third issue on admissibility relates to time. The Respondent State submits that the Communication does not satisfy the requirement under Section IX (1) (e) of the Revised Communication Guidelines which requires complaints to be submitted within reasonable time after exhausting local remedies. The notion of this requirement is to ensure that Complainants who allege violations act in due diligence in pursing their cases. The requirement aims at preventing delays in reaching out to international bodies after exhausting local remedies the main goal being to prevent what is known as ‘abuse of right to submission’ in other jurisdictions.[25] Even though there is no provided time under the Revised Communication Guidelines on the number of years within which cases should be submitted before the Committee after the period of exhaustion of local remedies, the Committee draws inspiration from the approach of the Human Rights Committee where it says no delay is acceptable without reasonable justification.[26] Hence, given this rationale of the provision under the Guidelines, the argument of the Respondent State that the case is premature and hence not submitted within reasonable time is misguided and out of the context of the requirement under Section IX (1) (e).

32. As to the other conditions of admissibility, the Committee does not observe any irregularity and no contention has been raised by any of the parties to the Communication.

33. For the forgoing reasons, the Committee finds that the present Communication is admissible as per its requirements under article 44 of the Charter and Section IX (1) of the Revised Guidelines for Consideration of Communications.

Adopted in September 2020 during the 35th Ordinary Session of the ACERWC

Honorable Joseph Ndayisenga

Chairperson

The African Committee of Experts on the Rights and Welfare of the Child

 

[1] ACERWC, Communication No 0011/Com/001/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 33.

[2] Frans Viljoen, International Human Rights Law in Africa, 2012, 2nd ed, Oxford University Press, p321.

[3] ACHPR, Communication 260/2002, Bakweri Land Claims Committee v Cameroon, (2004), para 52.

[4] ACERWC, Communication No 0011/Com/001/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 37.

[5] Human Rights Committee (HRC), Communication 540/1993, Celis Laureano v Peru, (25 March 1996), para 7.1

[6] HRC, Communication 1495/2006, Zohra Madoui (represented by counsel, Nassera Dutour) v Algeria Decided at 94th session, 28 October 2008, CCPR/C/94/D/1495/ 2006 para 6.2.

[7] ACHPR, Communication 279/03, Sudan Human Rights v The Sudan; ACHPR, Communication No 296/05 Centre on Human Rights and Evictions v The Sudan, May 2009, para 104.

[9] ACHPR, Communication No. 15/88 Mpaka - Nsusu Andre Alphonse v. Zaire, para. 2; HRC, Communication No. 157/1983, Andre Alphonse Mpaka-Nsusu v Zaire, Twenty Seventh Session.

[10] ACHPR, Communications 233/99- 234/99: Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) / Eritrea para 55.

[11] ACERWC, Communication 002/2009 Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya, para 28; ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 31.

[12] ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 33.

[13] ACHPR, Communication 155/96, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (Oct 2001) para 38; ACHPR,Communications 25/89, 47/90, 56/91, 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de I’Homme, Les Te'moins de Jehovah v Zaire (Oct 1995) para 37;

[14] ACHPR, Communication 299/05, Anuak Justice Council v Ethiopia (May 2006), para 48

[15] ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 32; Guidelines for Communications, section IX (1)(d).

[16] ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 33-34.

[17] ACERWC, Communication no 007/Com/003/2015, Minority Rights Group International and SOS- Esclaves on behalf of Said Ould Salem and Yarg Ould Salem v Mauritania, (2017), Para 28

[18] HRC, Communication 1085/2002, Louisa Bousroual (on behalf of Salah Saker) v Algeria (15 March 2006), para 8.3.

[19] Inter-American Court of Human Rights (IACtHR), Genie-Lacayo v. Nicaragua, Merits, para 81; IACtHR, Las Palmeras v. Colom-bia, preliminary objections, para 38

[20] ACERWC, Communication No 008/Com/002/2016, Sohaib Emad v Arab Republic of Egypt, (2017) para 18; ACERWC, Communication No 009/Com/001/2016, Ahmed Bassiouny v Arab Republic of Egypt, (2017) para 24 and 30.

[21] ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 34­35.

[22] H Onoria ‘The African Commission on Human and Peoples’ Rights and the exhaustion of local remedies under the African Charter’ (2003) 3 African Human Rights Law Journal 5; ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 30.

[23] ACHPR, Communication 299/05, Anuak Justice Council v Ethiopia (May 2006), para 49; Inter American Court of Human Rights, Fairen-Garbi and Sol^s-Corrales v. Honduras, Preliminary Objection, para 89.

[24] Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Preliminary Objection, 1999.

[25] Article 3, Optional Protocol of the HRC

[26] HRC, Communication 767/1997, Mr Vishwadeo Gobin v Mauritius (16 July 2001), para 6.3.

Author
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Judgment date
Case number
Communication 1 of 2018
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE
CHILD (ACERWC)

ADMISSIBILITY RULING

Communication No: 0011/Com/001/2018

Decision on Admissibility No:001/2019

AUTHORS:

Project Expedite Justice

The Al Khatim Adlan Centre for Enlightenment and Human Development

The International Refugee Rights Initiative

African Centre for Justice and Peace Studies

Horn of Africa Civil Society Forum

National Human Rights Monitors Organization

(Project Expedite Justice et al)

Respondent: The Government of the Republic of the Sudan

  1. Registration of the Communication
  1. The current Communication is submitted pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC) and duly registered by the Secretariat of the ACERWC on 26 August 2018. The Communication is submitted by Project Expedite Justice, The Al Khatim Adlan Centre for Enlightenment and Human Development, The International Refugee Rights Initiative, African Centre for Justice and Peace Studies, Horn of Africa Civil Society Forum and National Human Rights Monitors Organization (herein after referred to as Project Expedite Justice et al or the Complainants), on behalf of children in South Kordofan and Blue Nile states (jointly the “Two Areas”) against the Government of the Republic of the Sudan (“the Respondent State”).
  1. Summary of Alleged Facts
  1. The Complainants allege that in June 2011, conflict erupted in the Blue Nile and South Kordofan regions of The Sudan between the Respondent State and the Sudan People’s Liberation Army-North (SPLA-N). It is alleged that the Respondent State has deliberately and indiscriminately targeted civilians and engaged in a campaign of aerial and ground attacks by the Sudanese Armed Forces (SAF). The Complainants stated that as a direct result of the Respondent State’s campaign, infants and children have been killed, entire towns and villages have been depopulated, and over a million people have been forced into camps as Internally Displaced People (IDPs) or abroad as refugees.
  2. The Complainants further allege that the Respondent State’s persistent bombing of civilians has killed and maimed children far from the frontlines of the conflict, and served no legitimate military purpose. As part of their submission, the Complainants refer to various instances of bombing that targeted civilians, including high number of children, particularly the May 2015 areal bombardment that caused displacement and a disruption of basic services, including children’s access to vaccination and health services, and the destruction of schools; and the bombing campaigns in 2014 and 2015, called “Operation Decisive Summer,” which allegedly resulted in an increase in the violent deaths of civilians, widespread displacement and extreme food insecurity. The Complainants stated that Barrel bombs are released from high-flying Antonov aircrafts and there is an increased use of cluster munitions.
  3. The Complainants further site various examples of instances of attacks against children. On 18 November 2012, four children were playing under a fruit tree in Al Dar, Buram locality, when a SAF Antonov plane dropped a bomb on them. Two brothers, ages five and ten were killed instantly. Their two cousins, ages three years and two months, were injured when pieces of flying shrapnel hit their limbs. Less than one month later, on 12 December 2012, a second Antonov bombed their family’s home. All eight members of their family, including the remaining seven children, were forced to flee. On 3 November 2013, a family was in their home in Farandala when it was bombed at approximately 9:00 am, as a result a five-year-old sustained serious injuries to his stomach, causing his intestines to fall out. While they were on the way to the hospital, the hospital was also bombed and the facilities to treat the injured boy were all destroyed. It is also alleged that on 16 October 2014, six children in Heiban village were killed when a bomb hit a house in which seven children between the ages of five and twelve were hiding. Only one child survived. On 7 January 2015, a seven-year-old boy was hit by shrapnel from a SAF fighter jet attack on Abu Lila, South Kordofan. The boy’s right foot was severely damaged. He also had deep cuts on his back and suffered blood loss from other injuries sustained by the shrapnel. Though the child was taken to the nearest clinic, he eventually died from the injuries. Moreover, according to the Complainants, in February 2015 in Umdorein, a family of eight children ran to a foxhole for shelter. As they hid, their foxhole caught on fire, burning one child to death immediately. Four siblings were severely burned and driven to Gidel Hospital, a four-hour drive away. The three-year-old girl died from her injuries within a few days. Her ten-year-old sister died after becoming infected with tetanus, and her eight-year-old brother died after maggots swarmed into his wounds. Only a five-year-old boy survived the attack, and he now suffers from severe PTSD. On 1 May 2016, the Respondent State’s aerial bombardment on Heiban violently killed six children aged between four and twelve years. The Complainants state that between 1 March 2011 and 21 December 2016, 328 cases of children either maimed or killed has been recorded in the Two Areas.
  4. The Complainants allege that as early as 2014, SAF began employing Sukhoi jets to attack civilians. Despite the increased accuracy, improved technology and the ability of the Sukhoi jet to deliver a wider range of destructive weapons, such as FAB 500 parachute bombs with a destructive area of 1,500 square meters and S-8 rockets, civilian causalities increased following their introduction. Drawing from the above instances, the Complainants submit that the high increase in civilian causality, considering the fact that Sukhoi jets are designed to reduce civilian causality, proffes that the Respondent State deliberately targeted civilians.
  5. Following aerial bombing campaigns, according to the Complainants the Government armed groups continued to carry out ground attacks on villages, looting and arbitrary arrests, including of children, and that the Government allowed such attacks to continue with impunity.
  6. It is alleged that the Respondent State has also obstructed humanitarian access including the distribution of foreign food aid, and has failed to reach a permanent solution that will end the conflict and ease the suffering of the children in the Two Areas.
  7. The Complainants state that after seven years of attacks, unexploded ordnance litters the Two Areas, posing an additional and ongoing danger, especially to children. It was alleged that the Respondent State employed anti-personnel mines in clear violation of its obligations under the Convention on the Use, Stockpiling, Production and Transfer of Anti-Personnel Land Mines.
  8. The Complainants allege that bombings intensify during key planting and harvesting seasons, thereby severely impacting civilians’ ability to cultivate crops. Approximately 2.1 million children in Sudan are reportedly malnourished, most of which live in the Two Areas. It is alleged that 1205 people, half of them children, starved to death in Payam Wadaka, Blue Nile Region, from 2011 to 2012.
  9. The Complainants also allege that persistent bombing destroyed hospitals and clinics and forced their closure, leaving only a few functioning health services in all of the Two Areas. It is stated that the Gidel Hospital, which attends to a population of more than half a million people, was targeted by 60 bombs between May and June 2014, including eleven times in a two-day period on 1 and 2 May 2014. When UNICEF and the Ministry of Health launched a measles immunization campaign, the Respondent State prevented them from accessing SPLM-N controlled areas of South Kordofan, resulting in a widespread outbreak. The lack of access to vaccines in the Two Areas has placed approximately 160,000 children under five, at risk of polio and other preventable diseases since 2011.
  10. It is alleged that schools were targeted by bombing campaigns despite the fact that they are far from the frontline and are not used as garrisons by the SPLM-N. In 2015 the bombings destroyed approximately 20 schools in the Nuba Mountains, forcing most remaining schools to operate outdoors and others to cease operations.
  11. The Complainants allege that on 28 February 2012, twenty-two children perished along the road as a group of 4,500 civilians fled conflict that had erupted in Trugi, South Kordofan Region. Between January and June 2016, 7,500 people fled South Kordofan to South Sudan refugee camps, 3,000 of them in May alone. Almost 90% were women and children, and about 10% were children travelling alone.
  12. The Complainants claim that the Respondent State has committed violations, including harassment, arbitrary detention, and torture of those perceived to be supporters of the SPLM/A-N or based on their non-Arab ethnicity. Children experience torture in detention such as beaten with sticks, hoses and gun butts, suspended up-side down from the ceiling and burnt with molten plastic bottles. Minors have been victims of rapes including by the police, Government forces, and Government aligned militias. In other instances, minors witnessed the rape of their family members including their mothers and sisters.
  13. The Complainants narrate that on 25 October 2011, six boys ages twelve to eighteen were stopped by Popular Defense Force (PDF) forces in Dilling and accused of being SPLM-N, likely because they were of Nuban ethnicity. The six children were taken away in different directions. Five boys were killed. A thirteen-year-old child was arrested in Shamshaga village, Abu Kershola, South Kordofan in November 2013 during a raid of the village by SAF, Military Intelligence, National Intelligence Security Service (NISS), PDF and (Rapid Support Forces) RSF personnel. While in detention, the child was beaten with sticks, hoses and gun butts, suspended up-side down from the ceiling and burnt with molten plastic bottles. The child was brought before a military court on charges of undermining the constitutional system and waging war against the state. On 15 May 2012, a nine-year-old boy was reportedly raped by a police officer at the Al Guenis Market outside of Alrois, Blue Nile. A 14-year-old girl from Khor Maganza, Blue Nile was arrested in September 2014 alongside her mother and sister and taken to the military barracks, where she was raped by four different soldiers. On 22 March 2015, a sixteen- year-old girl from Damazin, Blue Nile was raped by a SAF soldier. She reported the incident to Family and Child Protection Police; the Medical Assessment Report confirmed that rape had occurred and that the victim suffered injuries to her head and shoulder. However, the police failed to follow up and the perpetrator was never summoned to the administration unit as promised. On 2 January 2016, five women, including an eleven­year old girl, were raped by the RSF when it attacked the main market in El Abbasiya.

 

  1. The Complaint
  1. On the basis of the above facts, the Complainants submit that the Government of The Sudan has failed to protect the children in the two areas from various forms of harms, hence it has violated the following provisions of the African Charter on the Rights and Welfare of the Child:
  1. Article  1- obligation to give effect to the charter;
  2. Article  5- right to life, survival and development;
  3. Article  11- right to education;
  4. Article  14- right to health and health services;
  5. Article  17- administration of juvenile justice;
  6. Article 22- rights of children during armed conflict and
  7. Article 27- sexual abuse and violence.
  1. Preliminary Examination and Transmission of the Communication
  1. The Secretariat of the ACERWC received the Communication on 26 August 2018.
  2. In accordance with Section III of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Guidelines), the Secretariat of the ACERWC undertook preliminary review of the Communication. The Secretariat reviewed the Communication against the requirements of form and content and noted that the Communication is directed against a State Party to the Charter, as the Respondent State, within whose jurisdictions violations of the rights enshrined in the Charter have allegedly been committed, ratified the ACRWC on the 18 July 2010. The Communication was brought by organizations legally recognized by Member States of the African Union.

It is brought on behalf of children in Blue Nile and South Kordofan regions of the Sudan. It is also duly signed by the Complainants and written in an official language of the Committee. Therefore, as the Communication meets the requirements of form and content, the Secretariat, according to Section IX (2) (I) of the Guidelines, transmitted a copy of the Communication to the respondent State Party.

  1. The Respondent State submitted a written response on the issue of admissibility on 4 December 2018.

V. Consideration of Admissibility

Complainants’ submission on admissibility

  1. The complainants claim that the Communication is compatible with the provisions of the Constitutive Act of the African Union, the African Children’s Charter, and it is in compliance with the requirements set forth in the Revised Guidelines.
  2. The Complainants state that the information contained in the Communication was collected through onsite investigations, including interviews with victims and witnesses. The investigations and interviews were conducted by, inter alia, Project Expedite Justice and local human rights activists who have documented the Respondent State’s aerial and ground attacks. A vast majority of the illustrative incidents referred to in this brief are also corroborated by documentary, photographic, and video evidence, as shown in Annex B of the Complainants’ application document. The information and evidence presented also includes official reports from the UN, foreign governments, and NGOs.
  3. The Complainants provide that local remedies have not been exhausted because of the following reasons: due to the number of victims, domestic remedies would be neither practicable nor desirable, and would be unduly prolonged; domestic remedies for serious human rights abuses are unavailable, ineffective and insufficient in Sudan; the Respondent State fails to remedy the situation despite ample notice; and climate of fear which prevents exhaustion of domestic remedies in the Respondent State.

Respondent State’s submission on admissibility

  1. The Respondent State on its part submits its responses to the allegations and argues that the Communication should be declared inadmissible as it is not in line with the requirements under the African Children’s Charter and the Revised Guidelines.
  2. The Respondent State submits that the Communication is not compatible with the Constitutive Act of the African Union and the African Children’s Charter. The Respondent State argues that it is the duty of the State to maintain security and peace for the citizens of these Two Regions and to maintain the integrity of the country's territory from violent armed rebel groups. The Respondent State further mentions various treaties that recognize the duty of the state to maintain peace and security.
  3. The Respondent state also submits that all the allegations in the Communication are based on second hand information which is gathered only from the media and various websites.
  4. The Respondent State further alleges that the matters in the Communication are still pending before the African Commission on Human and Peoples’ Rights (the Commission) and under other mechanisms. The Respondent State argues that there are 14 United Nations Security Council resolutions, which resulted in the establishment of country monitoring and reporting task forces. Following the establishment of the task force, the Government of the Republic of the Sudan prepared and signed an action plan with the aim of enhancing the overall protection of children in conflicts. Furthermore, a technical committee was formed under the chairmanship of the National Council for Child Welfare and the membership of the concerned bodies. The Respondent State adds that the UN and armed groups in the Two Areas, with the agreement of the Government, signed two actions plans. The Respondent State further argues that the Communication should not be admissible because it creates a situation of conflict with the obligations under Article 103 of the Charter of the United Nations and that if such a complaint is accepted, a conflict of jurisdiction arises between the Security Council and the Committee, as the matter is being addressed by the Security Council.
  5. The Respondent State argues that the justifications given by the Complainants for not exhausting local remedies are unfounded and incorrect. The Sudan has a functional system for the protection of children in armed conflict established by Presidential Decree No. (89) of 2016 operated through a Higher Ministerial Committee represented by all relevant Ministries and Government institutions.
  6. With regard to the allegation that there is an atmosphere of apprehension preventing the exhaustion of national remedies and that Sudanese legislation lacks provisions protecting victims and witnesses, the Respondent State submits the following arguments. The Respondent State refers to article 115 (2) of the Penal Code of 1991 which prohibits and punishes any public authority personnel who lures, threatens or tortures any witness, defendant or opponent to testify and not to give any information in any case. Further reference is made to article 156 of the Criminal Procedure Act of 1991 (Witnesses Protection) which requires the court to prevent any act that affects witnesses or to pose any questions that are irrelevant to the case and to protect them from statements and comments that frighten or harm them. Following the enactment of the Children's Act in 2010, according to the Respondent State, specialized courts and prosecution agencies for the childhood sector are instituted, as well as the Child's Units in the Ministry of the Interior. Public Prosecution, the National Council for Child Welfare, National Assembly and the State Legislature, Ministerial committee established through presidential decree for them protection of children in armed conflicts, ministerial level technical committee. Despite the existence of all these mechanisms, the Respondent State submits that it has not received any formal complaint, notice or report on the occurrence of any of the allegations contained in the current Communication.
  7. The Respondent State also argues that the Communication contains derogatory and inappropriate terms which are not supported by any evidence or legal basis. The Respondent State particularly identifies the following statement by the Complainants derogatory: 'the State has launched a campaign of ground and air attacks by the armed forces led by President Omar al-Bashir, resulted in the killing of a group of infants and children, the emptying of a number of towns and villages and the displacement of more than one million people to camps for displaced persons and refugees'. According to Respondent State the above-mentioned statement is insulting and the inclusion of the name of the President of the Republic in this Complaint, is inappropriate as he is a symbol of the State sovereignty and is an elected President assuming the post after a legitimate election; and who does not exercise any military commanding functions in the Armed Forces or carrying out ground or air campaigns, but exercises his functions consistent with the law and the Constitution as the supreme commander of the armed forces like any other head of state.
  8. The Respondent State further argues that the Communication should be inadmissible as it shows political motivation. It was stated that the political motivation can be inferred from the inclusion of the name of the head of State in the report and some State leaders, and expressions of views that justify the position of the armed movements.

The ACERWC’s Analysis and Decision on Admissibility

  1. The ACERWC notes that the current Communication is submitted pursuant to Article 44 of the African Children’s Charter which gives the Committee the mandate to receive and consider complaints from “any person, group or non-governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter’’. In addition to the provisions of the Charter, the Committee analyses on admissibility of the Communication is also based on Section IX of the Revised Guidelines.
  2. In the matter of compatibility with the Charter and the AU Constitutive Act, provided in Section IX (a) of the Revised Guidelines, the Committee reiterates its Decision in

Talibes case[1] and notes that the condition of compatibility with the African Union Constitutive Act and the Charter is met if a Communication alleges violations of the African Children’s Charter. The present Communication alleges violations of various provisions of the Charter and hence fulfils the criteria of compatibility.

  1. Section IX (b) of the Revised Guidelines provides that a Communication must not be exclusively based on media information. The Committee notes that from the text of the Communication and the annexed documents, the Communication is based on reports and official documents of various United Nations agencies and treaty bodies, reports from international non-governmental organizations with observer status at the Committee and international media sources. Hence the Committee notes that the Communication is not exclusively based on media sources.
  2. Section IX (1) (C) of the Revised Guidelines states that for a Communication to be admissible it should not ‘raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter’. The Committee notes that a similar criterion, albeit with slight variations, is applied in other treaty bodies including in the African Commission on Human and Peoples’ Rights. The rational for such criteria is mainly to prevent conflicting judgments and to promote efficiency by ensuring that the same case is not considered by multiple separate bodies. This can be inferred from decisions of various treaty bodies. In its decision, on Mpaka-Nsusu Andre Alphonse v. Zaire, the African Commission on Human and Peoples’ Rights, ‘Considering that the communication had already been referred for consideration to the Human Rights Committee established under the International Covenant on Civil and Political Rights’[2] declared the Communication inadmissible.
  3. The Respondent State argues that the same matter is pending in other international procedures, hence it is important to clarify what is meant by “another international body or procedure” and what is meant by “matters” in the Guidelines. The term “matters” should be understood to include the alleged violations and victims whether or not they are lodging the complaint themselves or through representatives. In the case of Leirvag v. Norway[3] the Committee on Civil and Political Rights noted that the words “the same matter” within the meaning of article 5, paragraph 2 (a), of the Optional Protocol to the ICCPR, must be understood as referring to one and the same claim concerning the same individual, as submitted by that individual, or by some other person empowered to act on his behalf, to the other international body”. Similarly, in the case of Fanali v. Italy, the UN Human Rights Committee while disagreeing with the Respondent State which argued that the same matter had been brought before the European Commission of Human Rights, held that the concept of "the same matter" had to be understood as including the same claim concerning the same individual, submitted by him or someone else who has the standing to act on his behalf before the other international body.[4] In the case of Kayhan v. Turkey, the Committee on the Elimination of Discrimination against Women, taking inspiration from the Human Rights Committee noted that one of the elements for determining whether a case was settled by another body is the identity of the complainant.[5]
  4. In determining weather or not the same matter is pending or settled before another procedure, the ACERWC takes inspiration from the above-mentioned jurisprudence and underscores the importance of the identity of the child/children whose are victims and the rights that are allegedly violated in accordance with the Communication. In the present Communication, the Respondent State claims that the matter is pending before the African Commission on Human and Peoples’ Rights. In this regard, the Committee has got confirmation from the Commission that there is no Communication with similar facts or parties pending at the Commission.
  5. The Respondent State further argues that the issue is under the jurisdiction of the UN Security Council and is being addressed by mechanisms created by the council, and argues that this amounts to a similar matter pending in another procedure in accordance with the Guidelines.
  6. The Committee notes that its mandate pertains to monitoring the implementation of the rights recognized in the Charter. For the Committee to consider any other procedure as considering or having settled a matter, the body or procedure must be able to address in substance the rights given to the child by the African Children’s Charter. Hence, the organ or body in question must have a mandate comparable to the Committee. Furthermore, as the Committee is a quisi-judicial treaty body that monitors the Charter with independence and impartiality, hence the procedure or body in question must be an independent and impartial mechanism free from political influence.
  7. The Committee notes that in a similar Communication in which the Respondent State argued that the matter is already being handled by the UN Security Council, the African Commission raised the importance of the mandate and nature of the organ in question. The Commission noted that “while recognizing the important role played by the United Nations Security Council, the Human Rights Council (and its predecessor, the Commission on Human Rights) and other UN organs and agencies on the Darfur crisis, it is of the firm view that these organs are not the mechanisms envisaged under Article 56(7). The mechanisms envisaged under Article 56(7) of the Charter must be capable of granting declaratory or compensatory relief to victims, not mere political resolutions and declarations.”[6]
  8. In another case, Madoui v. Algeria, the Human Rights Committee noted that the matter was submitted to the United Nations Working Group on Enforced or Involuntary Disappearances. However, it recalled that “extra-conventional procedures or mechanisms established by the Commission on Human Rights or the Economic and Social Council, and whose mandates are to examine and publicly report on human rights situations in specific countries or territories or on major phenomena of human rights violations worldwide, do not constitute procedures of international investigation or settlement” Accordingly, it was ruled that the fact that Menouar Madoui's case was registered before the Working Group on Enforced or Involuntary Disappearances does not make it inadmissible.[7]
  9. In light of the foregoing, the ACERWC notes that the argument of the Respondent State, that the Communication should be inadmissible as the matter is being handled by mechanisms of the UN Security Council, is not tenable. While noting the significant contribution of the UN Security council and other UN and AU agencies in the conflict in the Two Regions, the Committee notes that such mechanisms do not address the rights of the child from a human rights protection angle by finding the State accountable for violations and rendering corresponding recommendations. Hence, the fact the matter is being addressed by the UN Security Council does not preclude the Committee from admitting the Communication under its Guidelines.
  10. Section IX Article 1(d) of the Revised Guidelines further provide that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. As this Committee in the Children of Nubian descendants case[8] noted, “one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level.”
  11. The Committee notes that according to Section IX (1) (d) of the Guidelines Communication must be submitted after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective.
  12. The Respondent State, as mentioned above, argues that local remedies are available, accessible and effective in the Sudan and the Complainants should have exhausted the remedies. While the Complainants argue that due to the number of victims, domestic remedies would be neither practicable nor desirable, and would be unduly prolonged; and that domestic remedies for serious human rights abuses are

unavailable, ineffective and insufficient in Sudan, among other things.

  1. The Committee notes that the requirement of exhaustion of local remedies is only applicable if the remedies are available, effective, accessible and not unduly prolonged. The Committee reiterates the jurisprudence of the Commission in this matter and notes that a remedy is considered available if the petitioner can pursue it without impediment; it is deemed effective if it offers a prospect of success and it is found sufficient if it is capable of redressing the complaint. In the case that involved a grave and massive violation of human rights, the Commission noted that it “has never held the requirement of local remedies to apply literally in case where it is impractical or undesirable for the Complainant to seize the domestic courts in the case of each violation.’[9] The Commission further noted that ‘given the vast and varied scope of the violations alleged” exhaustion of local remedies can be exempted.
  2. In another Communication against Sudan in which it was alleged that tens of thousands of people have allegedly been forcefully evicted and their property destroyed, the Commission ruled that it is impracticable and undesirable to expect these victims to exhaust local remedies. The Commission added that “the scale and nature of the alleged abuses, the number of persons involved ipso facto make local remedies unavailable, ineffective and insufficient”[10] Additionally in its Decision in the Talibes case[11], this ACERWC also noted that when a remedy is impractical due to the number of victims and the practically challenging process of exhausting it, then it is considered unavailable.
  3. The Committee notes that the requirements of availability, accessibility and effectiveness contained in Section IX (1) (d) of the Revised Guidelines, are cumulative. If one of them are not met then the requirement of exhaustion of local remedies can be set aside. In the present Communication, millions of children have allegedly been forcefully displaced, malnourished, died of starvation, killed or maimed as a result of armed conflict. Hence, even though various remedies may be put in place, due to the scale and nature of the alleged violations, it is indeed unreasonable to expect the Complainants to comply with the requirement of exhaustion of local remedies. The large number of victims and the complexities of the violations raise concerns of efficiency; it is wishful thinking to expect local courts to try the cases of millions of children in a reasonable time in keeping with the best interest of the child. The Committee also notes that in a situation of armed conflict in which the Government is involved, as alluded to by the Respondent State, it is unreasonable to expect local remedies to offer a likelihood of success as it relates to alleged violation resulting from the conflict itself, thus rendering the remedies ineffective. Furthermore the delicate situation of instability and insecurity on the ground resulting from armed conflict is an impediment to exhausting local remedies, thus making them in fact unavailable. The Respondent State failed to show the effectiveness and efficiency of the remedies put in place to address violations arising from the conflict. Additionally, a large number of the victims have allegedly been forced to flee to other countries, making domestic remedies inaccessible for them. Hence the Committee notes that local remedies are inaccessible for a large number of the victims, ineffective and unavailable. Furthermore, the rational of the requirement of exhaustion of local remedies is to give States the opportunity to address human rights violations domestically. [12] As can be adduced from various reports, including UN Security Council resolutions, the Respondent State had adequate notice of the impact of the conflict in the Two Areas on the rights of children, and hence had ample opportunity to address the matter.
  4. Section IX (1) (e) of the Revised Guidelines provides that the Communication must be presented within reasonable time after exhaustion of local remedies. The Respondent State argues that the alleged facts and the associated information thereof date back to the years 2011, 2012 and 2013 with the latest referring to the middle of 2016 - more than two years before the submission of the Communication to the Committee, which is considered an unreasonable period of delay. While the Complainants state that the Communication was filed in a timely fashion, as it concerns ongoing violations. They further state that although active hostilities have eased since the most recent ceasefire, the Respondent State’s assault on the Two Areas continues, as demonstrated by their unwillingness to negotiate a peace settlement that will allow people to return to normal life; and that the Respondent State continues to violate children’s rights by its actions and inactions, and the situation of instability, coupled with the Respondent State’s unwillingness to undertake measures to improve the lives of children in the Two Areas,
  5. The Committee notes that the Communication contains alleged violations that took place in events starting from 2011 to July 2018 and certain violations that are allegedly still ongoing. The alleged armed attack of children, as contained in the Communication dates up to 2018, while threats to the lives of children cause by unexploded ordnance, is allegedly ongoing. Furthermore, the consequences of armed conflict such as forced displacement, lack of access to medical services, and destruction of food sources leading to malnutrition are allegedly ongoing violations. Hence the ACERWC notes that most of the allegations and their impacts are ongoing.
  6. Moreover, the Committee refers to Section IX (1) (e) of the Revised Guidelines which states that Communication must be presented within reasonable time after exhaustion of local remedies. The rational for this rule is ensuring legal certainty, if a specific case is settled in national courts, in order to ensure certainty there ought to be a time limit to take the matter to any other forum. The same reasoning is used by the Inter-American Court of Human Rights in the case of Plan de Sanchez Massacre v. Guatemala. The Court noted that rule of brining a case within in a timely manner after exhaustion of local remedies (which is within six months from the date on which the complaining party was notified of the final judgment at the domestic level, in accordance with the Inter-American system) “ensures legal certainty and stability once a decision has been taken” and that it “does not apply when it has been impossible to exhaust internal remedies”.[13] Additionally the African Court on Human and Peoples’ Rights, in the case of Late Nobert Zongo et al V Burkina Faso, noted that the requirement of submission within a reasonable time after exhaustion of local remedies does not apply when an exception to the rule of exhaustion of local remedies is applied. [14]
  7. With regards to reasonable time period for brining Communications that benefit from exceptions to the rule of exhaustion of local remedies, the Inter-American Court has adopted a case by case approach. The Court noted that in situations where local remedies are not exhausted due to permitted exceptional grounds, the timeliness of a Communication should be assessed “considering the circumstances of each specific case”[15]
  8. In the present Communication, as stated above, local remedies are not exhausted and the Communication falls in the exception to this rule. This renders Section IX (1) (e) non-applicable as it related to communications that come after exhaustion of local remedies. Moreover, the Committee notes that Communications should be brought within reasonable time even in situations where local remedies are not available. Communications are based on facts and events that need to be proved by the complainants; hence if a Communications is lodged after unreasonable delay from the time of acts/events allegedly causing violation, it is detrimental to ascertaining the truth. However, the present case deals with a situation of armed conflict that has started in 2011 and continued up to 2018 with most of its elements allegedly still ongoing. Hence the Committee notes that the Communication is brought within a reasonable time.
  9. Section IX (1) (e) of the Revised Guidelines provides that a Communication should not contain disparaging or insulting language. In this regard, the Committee takes inspiration from the Commission in striking balance between freedom of expression and the prohibition of the use of insulting language. While discouraging insulting

 

language, the enjoyment of human rights such as the right to freedom of expression should not be violated.[17] In view of this, the Committee notes that Section IX (1) of the Revised Guidelines should be interpreted looking at whether or not the alleged insulting language is a factual allegation or a derogatory characterization of a Government body or official. Criticism of the actions and policies of government organs or individuals is an integral part of democratic exercise in an open society and necessary in building good governance and hence should not be condemned.

  1. In the present case, the inclusion of the name of the head of state in the Communication as leader of the armed forces of the country is a factual claim that does not contain any derogatory characterization of the head of state. Therefore, Committee notes that the Communication does not contain any language that is disparaging or insulting.
  2. In determining the alleged political nature of the Communication, the Committee notes that the text of the Communication is limited to explaining various facts that are relevant to the alleged violations. As the situation in the Two Areas is characterized by armed conflict, the mere mentioning of the various actors involved in the conflict and the steps taken or lack of actions towards peace building, does not amount to politicization of the Communication.

iv. Decision on Admissibility

  1. On the basis of all the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has fulfilled the admissibility conditions as laid down in the Charter and the Committee’s Guidelines on Consideration of Communication. The Committee will proceed to consider the merits of the Communication.

Done in March 2019

Goitseone Nanikie Nkwe
Chairperson
ACERWC

 

 

 

[1] The Centre for Human Rights (University of Pretoria) and La Rencontre Africanine Pour La Defence Des Droits de L’Hommes Vs the Government of Senegal, ACERWC 2014, Para 18.

[2] Mpaka-Nsusu Andre Alphonse / DRC ACHPR para 2.

[3] Leirvag v. Norway, Comm. 1155/2003, U.N. Doc. A/60/40, Vol. II, at 203 (HRC 2004).

[4] Fanali v. Italy, Comm. 75/1980, U.N. Doc. A/38/40, at 160 (HRC 1983) 7.2

[5] Kayhan v. Turkey, Comm. 8/2005, U.N. Doc. A/61/38, at 69 (2006) Para 7.3

[6] Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v. Sudan

[7] Madoui v. Algeria, Comm. 1495/2006, U.N. Doc. CCPR/C/94/D/1495/2006 (HRC 2008) para 6.2.

[8] The Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) against The Government of Kenya (2011) para 26.

[9] Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Temoins de Jehovah / DRC ACHPR para 37.

[10] Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) / Sudan, ACHPR para 100

[11] The Centre for Human Rights (University of Pretoria) and La Rancontre Africanine Pour la Defense des Droits de L’homme versus the Government of Senegal para 23.

[12] Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les

Temoins De Jehova V. DRC

[13] Plan de Sanchez Massacre v. Guatemala IACHR 1999 para 29.

[14] Beneficiaries of Late Norbert Zongo et al. v. Burkina Faso, Af. Ct. H.P.R, 2014.

[15] Plan de Sanchez Massacre v. Guatemala, App. No. 11,763, Int.-Am. Ct. H.R., para. 29.

[17] Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa Vs Zimbabwe 2008 ACHPR para 52.

Author
admin
Judgment date
Case number
Communication 3 of 2016
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF
THE CHILD (ACERWC)

ADMISSIBILITY RULING

Communication No: No. 010/Com/003/2016

Decision on Admissibility No:

Authors: Mr. and Mrs. Elogo Menye and Rev. Daniel Ezo’o Ayo

Represeted by Etoungou Nko’o Law Firm

Against: The State of Cameroon

I. Submission of Communication

I.  The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 22 April 2016 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Mr. and Mrs. Elogo Menye and Rev. Daniel Ezo’o Ayo (the Complainants). According to Section IX (2) (i) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communication Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party. Upon receipt of the Communication, the State Party should have submitted its response within 60 days from the date of the request from the Secretariat. As the Committee did not receive a response from the Government, it decided to proceed considering the admissibility of the Communication without the response from the Respondent State.

II. Summary of Alleged Facts

2.  The complainants allege that Elisabeth Gloria aged 4 and Jacques Le Juste aged 6 died on November 2012 at the Catholic hospital Notre Dame de l’Amour of Logpom in Douala, Cameroon. It is further alleged that the children lost their lives at the hospital because the person in duty was not a doctor and could not diagnose febrile gastroenteritis. The complainants allege that the fact that the children died of the reason stated above has been confirmed by the autopsy report conducted on 8 January 2013.

3.  The complainants allege that the hospital refused to issue documents ascertaining the state of health of the children when they were admitted to the hospital or death certificate. Furthermore it is alleged that the hospital falsely stated that the children arrived at the hospital dead, after being ritually tortured by their parents who are members of a sect.

4.  The complainants allege that after the death of the children, their corpses were sexually defiled as coitus was performed on the remains of Elizabeth Gloria and the remains of Jacques Le Juste was sodomized. These acts were allegedly undertaken as rites of worship that provide access to immeasurable degrees of power.

5.  The complainants, taking the facts into consideration, claim the Republic of Cameroon is in violation of Articles 14 (Health and Health Services) and 16 (Protection Against Child Abuse and Torture) of the Charter by virtue of the sexual acts performed on the bodies of the children after they lost their lives.

III.The African Committee’s Analysis on the Decision of Admissibility

6.  The current Communication is submitted pursuant to Article 44 of the Charter which allows the Committee to receive and consider complaints from “any person, group or non-governmental organization recognised by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter’’. The Complainants, therefore, have identified themselves as Mr. and Mrs. Elogo Menye and Rev. Daniel Ezo’o Ayo represented by the law firm of Etoungou Nko’o Henry Charles. The Complainants also stated that the communication is directed against a State Party to the African Children’s Charter, as the respondent State ratified the Charter on 5 September 1997, and within whose jurisdictions the violations of the rights enshrined in the Charter have allegedly been committed.

7.  As provided under Section II and Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is subject to conditions relating to authorship, form and content as considered below:

i. Requirement as to Authorship

8.  Section I Article1(C) of the Revised Communications Guidelines provides that a Communication may be presented by any individual or group of natural or legal persons.

9.  The Committee notes that the Communication explicitly states the names of the authors, Mr. and Mrs. Elogo Menye and Rev Danield Ez’o Ayo. Therefore, the Committee holds the view that the Complainants have complied with Section 1 Article 1(C) of the Revised Communication Guidelines.

ii. Requirements as to Form

10. The Complainants submitted that the present Communication satisfies the requirement as to form as set out in Section 2 (2) of the Revised Communication Guidelines, which states that a Communication can only be considered by the Committee if it is not anonymous, it is written in one of the official languages of the Committee, it concerns a State signatory to the Charter and it is duly signed by the complainant or her/his representatives. In this regard, the Committee notes that the Communication submitted is written in English and French, which are the Official languages of the Committee, and it is made against a State Party to the Charter. Therefore, the Committee concludes that the complainants have complied with the requirement as to form as laid down in the Communication Guidelines.

iii.Requirements as to Content

11. Laying down the conditions of admissibility, Section IX (1) (A) of the Revised Communication Guidelines (Revised Guidelines) prescribes that a Communication has to be compatible with the provisions of the Constitutive Act of the African Union or with the Charter on the Rights and Welfare of the Child. The complainants submitted that this condition is satisfied since the Communication is presented pursuant to Article 44 of the African Children’s Charter.

12. The Communication is brought on behalf of two children who have passed away. The Complainants allege that the Communication concerns violations of the provisions of the Charter. They further argue that the Charter should protect the rights of deceased children.

13. According to Section II (1) of the Revised Guidelines, the Committee considers Communications alleging violations of the rights and welfare of the child pursuant to the Charter. The complainants allege that the Communication concerns violations of articles 14,16 and 44 of the Charter. In this regard the Committee would like to refer to the decision of the Commission in Korvah v Liberia in which it was decided that the case is inadmissible due to the fact that the allegations thereunder did not amount to human rights violation under the African Charter on Human and Peoples’ Rights. [1] Hence, for the purpose of admissibility of this Communication, it is paramount to analyse if the allegations relate to violations of the rights and welfare of the child under the Charter.

14. Taking in to consideration the fact that the Communication was brought mainly on the assertion that acts committed on the deceased children should be considered a violation of their human rights under the Charter, the main issue in assessing the admissibility of the communication is the extent of protection accorded in the Charter as a human rights instrument. In other words, does the Charter protect the right of deceased children? The Committee duly notes that, according to article 2 of the Charter (definition of a child), it is stated that a child is a human being under the age of 18. This provision makes the extent of protection of the Charter clear and excludes deceased children. However, the Complainants request that the Charter should be interpreted to extend its protection to the remains of deceased children. Responding to this request demands an exploration of the issue in relation to foundations of human rights.

15. The Committee recognises that the philosophical foundation of human rights is a contentious matter, however the Universal Declaration of Human Rights (UDHR) and consecutive instruments indicate that the justification for human rights is the inherent dignity of human beings. The Vienna Declaration and Plan of Action (VDPA) on the other hand states that human rights emanate from ‘the dignity and worth inherent in the human person.’[2] The key in these justifications is human beings or the human person; the obvious question with a seemingly obvious answer is what is a human being? Moreover, the less obvious question is where does dignity, which is the source of the inalienable rights bestowed upon the human beings emanate from? Central to being a human being is life, as simple as that appears the question of when does life begin is rather a difficult one on which consensus is very far from being reached. However, the question of when does life end is far less controversial, death is the end of life and thereby the end of being considered a human person.

16. In addition to the theoretical bottlenecks, the Committee notes the practical problems that may arise in attributing human rights to the dead. Dignity, as a foundation for universal human rights, needs a universal standard; that is how rights such as prohibition of cruel and inhumane treatment can be implemented. Human rights bodies develop standards that can be applied universally to ensure the implementation of such rights. However, if remains of humans are to be granted dignity and human rights this will prove to be an impossible task. Remains of humans are treated differently in different cultures, religions and jurisdictions. There are ancient ritual such as mummification, the most common once such as burial and cremation as well as the latest modern once such as Plastination, Eternal-reefs, Freeze-drying and Space Burial. There rituals range from preserving the body in a recognisable form up to mixing the crushed bones of the remains of a human with concrete to make underwater reefs that can be habitat for fish.

17. The Committee notes that jurisprudence dealing with a human rights question in relation to the remains of a human is rare. The European Court of Human Rights (ECHR) in the case of Elberte v Latvia dealt with an issue concerning removal of a body tissue from a corpse, for pharmaceutical use, without the consent of the deceased’s wife according to an agreement approved by the state. The court ruled that the removal is violation of article 3 (prohibition of inhumane and degrading treatment) and article 8 (the right for respect to private and family life) of the European Convention on Human Rights.[3] However, the violations were not of the rights of the deceased but of the rights of the applicant who was the wife of the deceased under the European Convention. The court stated that the applicant’s right to private life was violated and she suffered metal torture ‘due to the intrusive nature of the acts carried out on her deceased husband’s body and the anguish she suffered in that regard as his closest relative.’[4]

18. The Committee recognises that the universality of human rights comes from its definition, it refers to rights human beings possess simply because they are human beings. Human beings have basic life sustaining interests that inspired and helped formulate various groups of rights. Human corpses on the other hand do not have any vital, life sustaining, interests. Human rights are intended and designed to protect human beings and not remains of humans. The treatment of human corpses is at best a question of Ethics and morality, which should be dealt with in private or criminal law. Therefore, the Committee concludes that all the allegations of the Complainants relating to the postmortem treatment of the Children do not relate to the rights and welfare of the child under the Provisions of the Charter.

19. The Committee notes that the Communication is not strictly limited to the abuse of the children’s bodies postmortem, albeit that is the main focus. The facts of the case include scattered allegations of lack of professionalism leading to the death of the children in Catholic Hospital Notre Dame de l’Amour. The Complainants allege that the person on duty was not a doctor but a nurse and was not able to properly diagnose the children, resulting in their death.

20. The Committee notes that at the admissibility stage complainants are not required to provide detailed arguments on the alleged violations, however, in order to comply with the requirement of compatibility stipulated in the provisions of the Charter under Section IX (1) (A) of the Revised Communication Guidelines, the applicants have to establish a prima facie violation of the right. In the same manner, the African Commission has interpreted compatibility with the African Charter on Human and Peoples’ Rights to mean that “the communication must reveal a prima facie violation of the Charter”[5]

21. In the case at hand, the complainants did not adequately explain the facts of the case in light of article 14 of the Charter in order to establish a prima facie violation of the provision. Furthermore, under the allegation of article 14, the Complainants stress on the need to establish jurisprudence on dead children without explaining how it is connected to article 14. Even though article 14 of the Charter provides various protections relating to the right to health of the child, the Complainants fail to establish a prima facie violation of the right in conjunction with the facts of the case in accordance with the provision of the charter and to substantiate such allegation.

22. The Complainants further allege a violation of article 44 of the Charter, which is a procedural provision on the mandate of the Committee to receive Communications. This allegation does not relate to the rights ad welfare of the Child under the Charter. Moreover the facts under this allegation are related to the action taken at the High Court of Wouri in Duala and the cause of death of the Children, which are not related to the general provision of the Charter under article 44 that bestows the mandate to receive Communications to the Committee.

23. Section IX Article 1(d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. The rule of exhaustion of local remedies reinforces the subsidiary and complementary relationship of the international system to domestic system. In principle a tribunal like the ACERWC should not assume the place of first instance court or appealate court. It should come in to the picture only as a last resort after the domestic remedies have been exhausted and failed. In the case of Mouvement des Refugies Mauritaniens au Senegal v Senegal, the African Commission stated that failure to provide a proof of attempting to exhaust local remedies available to complainant can render a communication inadmissible. [6]

24. Furthermore, in the case of Anuak Justice V Ethiopia, the African Commission held that ‘’Applicants must indicate that they have had recourse to all domestic remedies to no avail and must supply evidence to that effect. If they were unable to use such remedies, they must explain why.’’ [7] In the case at hand, the complainants have stated that they have taken unsuccessful action at the High Court of Wouri in Duala. Moreover, aside from stating the failure of this one action at the high court, the Complainants did not indicate all the available remedies and the steps taken to exhaust them, nor did they explain why or adduce evidence to that effect.

iv. Decision on Admissibility

25. On the basis of the aforementioned arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has not fulfilled the admissibility conditions as laid down in the Charter and the Committee’s Guidelines on Consideration of Communication. The content of the Communication is outside the mandate of the Committee and beyond the scope of protection given in the Charter. Furthermore the Complainants failed to establish a prima facie violation of the Charter and to exhaust local remedies. The Communication is accordingly declared inadmissible.

     Done in                              

      Prof. Benyam Dawit Mezmur
Chairperson of the African Committee of Experts on the Rights and Welfare of
the Child

 

[1] Korvah v Liberia (2000) AHRLR 140 (ACHPR 1988)

[2] Vienna Declaration and Programme of Action, preamble

[3] Elberte v Latvia, ECHR Para 117

[4] Elberte v Latvia, ECHR Para 142

[5] Mouvement Ivoirien des Droits Humains (MIDH) v Cote d’Ivoire (2008) AHRLR 75 (ACHPR 2008) para 44.

[6] Mouvement des Refugies Mauritaniens au Senegal v Senegal (2003) AHRLR 131 (ACHPR 2003)

[7] See Anuak Justice V Ethiopia (n 2 above) para 50.

Author
admin
Judgment date
Case number
Communication 2 of 2016
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF
THE CHILD (ACERWC)

ADMISSIBILITY RULING

Communication N2: No. 008/Com/002/2016
Decision on Admissibility N2:001/2017

AUTHOR: Sohaib Emad represented by advocate Dalia Lotfy and Samar Emad AGAINST: Government of Arab Republic of Egypt

  1. Submission of Communication
  1. The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 31 March 2016 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Sohaib Emad represented by advocate Dalia Lotfy and Samar Emad, sister of the alleged victim Sohaib Emad (hereinafter “the Complainants”). According to Section IX (2) (I) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communications Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party.
  2. In a letter dated 6 May 2016, the respondent State expressed its views on the proceedings stating that the ACERWC does not have a mandate to proceed with the case because the State party had entered reservations on articles 44 and 45 of the ACRWC. On 30 January 2017, the ACERWC wrote to the State party clarifying and stating that the reservations entered by the state party are not compatible with the purpose and object of the ACRWC. The ACERWC reasoned that the reservations are incompatible with the object and purpose of the treaty, and in particular contrary to article 19(c) of the Vienna Convention, mainly because the provisions subjected to reservation were among the core rationales for the creation of the treaty. Furthermore the Committee explained that placing a reservation on procedural matters of a human rights treaty is generally incompatible with the purpose and objective of the treaty under international human rights law. Following the exchange of this dialogue, the Committee continued with the proceedings of the Communication.
  1. Summary of Alleged Facts
  1. Sohaib Emad is an Egyptian bom on 12 December 1998 and resides in Mansoura City. At the time of his arrest, he was aged 15 and was attending secondary school in Al Terraa Street, in Mansoura City.
  2. The Complainants allege that Sohaib took part in demonstrations on the 2014th anniversary of the 2011 January uprising. Consequently on 11 February 2014, Sohaib Emad was arrested at his house without being informed of any charges and taken to Mansoura Police Station. He remained in the police station for 40 days. He had no access to a lawyer and family members for the first four days. He was allegedly subjected to beating

including kicks and punches in different parts of his body and face to force him to admit to being a member of a gang involved in, burning police vehicles, possession of Molotov cocktails and targeting police officers and academics to kill them. The Complainants allege that, after Mansoura, he was taken to Dekernes Correctional Facilities where he has been held in an inhumane condition until the time of the submission of the communication.

  1. The Complainants allege that Sohaib did not have any physical problem before the detention; however, in April 2014 he started suffering from swelling and pain in his right knee for which he did not receive medical treatment until May. The doctor diagnosed him with Rheumatoid and instructed the detaining authorities to administer anti-inflammatory injections once every 3 weeks. According to the Complainants, on 29 August 2014 after the pain became sharper, Sohaib was transferred to Dekernes Hospital for examination to be diagnosed with dislocated knee cap. The examining doctor advised an urgent operation to his knees but he was not transferred for surgery until 29 September 2014. The Complainant allege that the delay in providing him with prompt surgery coupled with poor detaining conditions and absence of care and attention exacerbated his condition. They allege that Sohaib was not provided with sufficient recovery time following the operation and was transferred from hospital to detention 1.5 days after the operation. It was also alleged that the detaining officers did not allow him to have the right amount of medication and treatment prescribed to him. In December 2015, Sohaib started to complain of pain in both knees. It is alleged that following many requests, medical professionals at the premises examined him and claimed that the rheumatoid moves from right to left and that all he needed is painkillers. On 1st January 2016, his family noticed that he walks with difficulty and both knees are red and swollen. A doctor outside prison advised the family that what prevented right knee from recovering is failure to complete treatment and therapy. Sohaib remains deprived from any treatment bar for the painkillers. His family complained to the public attorney and ministry of interior on March 16 but allegedly to no avail. The Complainants argue that due to the conditions in detention, humidity, overcrowding and sleeping on the floor, his left knee now suffers the same fate.
  1. The African Committee’s Analysis and Decision on Provisional Measure
  1. in their submission, the Complainants requested the Committee to intervene immediately and request the government of Egypt to release the child and provide him with treatment before his condition worsens.
  2. According to section VII (1) of the Revised Communication Guidelines (hereinafter the Revised Guidelines), the Committee may adopt a provisional measure where it considers that one or more Communications submitted to it or pending before it reveal a situation of urgency, serious or massive violations of the African Children’s Charter and the likelihood of irreparable harm to a child or children in violation of the African Children’s Charter.
  3. The African Court of Human and People’s Rights, in the case of The African Commission on Human and Peoples’ Rights Vs. The Republic of Kenya, stated that for a provisional order to be issued there needs to be a situation of ‘extreme gravity and urgency, as well as a risk of irreparable harm’. In the case of John Lazaro Vs. The Republic of Tanzania as well as in the case of the African Commission on Human and Peoples’ Rights Vs. Great Socialist People’s Libyan Arab Jamahiriya, the Court looked in to the gravity and urgency of the violation in conjunction with the eminence of an irreparable harm in contrary to rights recognized in the relevant treaty in order to decide the necessity of a provisional measure.
  4. In the present communication, the Complainants stated that there is an urgent need for the Committee to intervene immediately to stop the violation of the rights under the Charter. However, the Complainant has not stated the likelihood of an irreparable harm on the enjoyment of the rights under the Charter. In determining the need for a provisional measure, the Committee looks in to the gravity and urgency of the situation, and the irreparable nature and imminence of the harm in question.
  5. The Committee has not been provided with adequate evidence that there is a situation of gravity and urgency that can result in an irreparable harm in violation of the rights provided in the Charter. Therefore the Committee does, inspired by the jurisprudence of the Court and in line with its Guidelines, finds that the requirements for issuance of provisional measure are not met.

IV. The African Committee’s Analysis and Decision on Admissibility

11 .The current Communication is submitted pursuant to Article 44 of the African Children’s Charter which allows the Committee to receive and consider complaints from “any person, group or non-governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter”. The Complainants, therefore, have submitted that they have the competence to submit the communication based on this provision. The Complainants also stated that the communication is directed against a State Party to the African Children’s Charter, as the respondent State ratified the ACRWC on the 9th of May 2001, and within whose jurisdictions the alleged violations of the rights enshrined in the Charter have allegedly been committed.

  1. As provided under Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is, inter alia, subject to the condition of exhaustion of local remedies.

V. Exhaustion of local remedies

  1. Section IX Article 1(d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. The issue of exhaustion of local remedies requires detailed consideration. At the outset, under international law a local remedy is understood to be "any domestic legal action that may lead to the resolution of the complaint at the local or national level." As this Committee in Nubian case noted, “one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level.”
  2. International human rights law obliges a person whose rights have been violated to rely on domestic remedies to rectify the wrong before he/she takes the issue to an international tribunal. The idea behind this rule is that the full and effective implementation of international obligations in the field of human rights is intended to boost the enjoyment of human rights and fundamental freedoms at the national level. As the Commission in the case Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les Temoins De Jehova V. DRC noted, “A government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before an international body.”
  3. The rule of exhaustion of local remedies is also of a paramount importance since it reinforces the subsidiary and complementary relationship of the international system to domestic system. In principle, neither international tribunal nor regional tribunal like the ACERWC should assume place of first instance court. The fact that international and regional forums like ACERWC should be accessible is undisputable. However, such kind of forums should come in to the picture only as a measure of last resort after the domestic remedies have been exhausted and their failure is apparent.
  4. However, from Section IX Article 1(d) of the Revised Communication Guideline, it can be understood that there are exceptional circumstances in which the requirement of exhaustion of local remedies can be left aside. In applying the

rule of exhaustion of local remedies, this Committee takes into account the circumstances of each case, including the general context in which the formal remedies operate and the personal circumstances of the complainant.

  1. As established by ACERWC, the requirement to exhaust domestic remedies is only with regard to remedies, which are 'available, effective and sufficient'. The question that begs answer in the present communication is whether it can be concluded that local remedies in the Respondent State are not available, ineffective or insufficient based on the allegations made by the complainant.
  2. In the present case, the Complainants did not attempt to exhaust local remedies. The Complainants are arguing that there are no local remedies to be exhausted.
  3. In their submission, the Complainant argued that the State is well aware of the series of serious and massive human rights violations occurring and has taken little or no steps to remedy those violations. According to the Complainants, these impediments render local remedies unavailable to the victims.
  4. The Complainants further submitted that the Egyptian judiciary has been used by the regime as a tool of repression against many citizens including the vulnerable. Noting that recently a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime 2 years ago and on the basis of other reported incidents, the complainant argued that there is no functioning judicial system in the respondent state.
  5. Although the Complainant argued that the State is well aware of the series of serious and massive human rights violations occurring in the respondent state, they did not adduce any evidence to prove this allegation. A mere allegation cannot be held to be adequate enough to the respondent state responsible. From the submission of the Complainants, it cannot be concluded that the state is well aware about the wrongs done to the victim. In this regard, the Committee is not convinced by the submission of the Complainants.
  6. On the other hand, as outlined above, the Complainants alleged that there is no functioning judiciary in the respondent state as it has been used by the regime as a tool of repression. Apart from casting vilification on the function of judiciary, the Complainants have not buttressed their argument. In other words, they could not prove sufficiently that this allegation is well founded. In the view of the Committee, the Complainants are simply casting doubts about the effectiveness/existence of the domestic remedies. In the case A V Australia,^ has been noted that “mere doubts about the effectiveness of local remedies or the prospect of financial costs involved did not absolve an author from pursuing such remedies.”

1 See the UN Human Right Committee A v. Australia, Communication No. 560/1993, para 6.4.

  1. In the case Anuak Justice V Ethiopia,[2] the African Commission held that “it is incumbent on every complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies.” The Commission further underscored that it is not enough for the complainant to cast aspersion on the ability of the domestic remedies of the State due to isolated or past incidences. For instance, the fact that a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime as the Complainants mentioned in their submission, cannot render the whole judiciary dysfunctional as it is one of past incidences. The fact that one court gives such kind of decision does not mean all courts in the respondent state will have the same stand on the same issue. An error committed by the lower court can be corrected by the higher court. In any case the functionality of judiciary of a given state cannot be judged by an isolated incidence or the error committed by one court.

iv. Decision on Admissibility

  1. On the basis of all the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has not fulfilled the admissibility conditions as laid down in the Charter and the Committee’s Guidelines on Consideration of Communication; it fails to comply with the requirement of exhaustion of local remedies. The Communication is accordingly declared inadmissible.

Done in May 2017

Benyam Dawit Mezmur
Chairperson of the African Committee of Experts on the Rights and Welfare
of the Child

 

[2] See Anuak Justice Council V Ethiopia Communication no. 299/2005, para 50.

Author
admin
Judgment date
Case number
Communication 1 of 2016
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Imprisoned/detained people
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD (ACERWC)

Ruling on Admissibility

Communication No: 009/Com/001/201

Decision on Admissibility No: 002/2017

 

 

AUTHOR: Ahmed Bassiouny represented by advocate Dalia Lotfy and Amal

 

AGAINST: Government of Arab Republic of Egypt

 

I.   Submission of Communication

1. The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 31 March 2016 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Ahmed Bassiouny represented by advocate Dalia Lotfy and Amal, mother of the child (hereinafter “the Complainants"). According to Section IX (2) (I) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communications Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party.

II.  Summary of Alleged Facts

2. Ahmed Bassiouny is an Egyptian citizen born on 16th April 1998 and resides in Al Raml Area in Alexandria. At the time of his arrest, he was aged 15 and was attending primary school at Al Raml School in Alexandria.

3. According to the Complainants, Ahmed was born with partial paralysis in his right arm (known as Erg’s palsy) and regularly attended physiotherapy and occupational therapy sessions to improve his sensation and motor abilities. He further suffers from very poor immune system, Favism and G6PD and poor vision and wear spectacles at all times.

4. The complainants allege that on 1st January 2014, Ahmed was on his way to his friend’s house in Jankleez Area in Alexandria, to borrow some notes, when the police forces threw tear gas on a protest nearby his friend’s house; Ahmed covered his face with his clothes and ran away from the tear gas; and fifteen minutes later, after his arrival to his friend’s house, the state security police came to the building calling on the family to hand the child who just entered the building. They allegedly threatened to break the door of his friend’s flat if the "the terrorist was not handed to them” as stated by the forces.

5. Upon entering the flat, the police allegedly grabbed Ahmed by his clothes, slapped him on his face, breaking his glasses before covering his face with his shirt while dragging him to the floor and pushing him to a police van. The Complainants allege that Ahmed was being verbally and physically assaulted at the time of arrest and continued during the journey to the police station.

6. Ahmed was allegedly then taken to Ramal 1 Police Station in a room with adult criminals. The following day he allegedly faced prosecution and was accused of killing a police officer and two aides, possessing Molotov and disturbing the public peace. The lawyer attending the prosecution avers that he saw injuries to the arms of the child. Furthermore, the child complained of being beaten at different parts of his body, subjected to electricity in his paralyzed arm despite informing the officers of his disability and cold water was poured on him to confess to the killing the officer and the aides. His lawyer alleges that the child’s clothes were torn and smelt drugs and that he looked lethargic. His lawyer’s request of medical referral to the forensic doctor for examination was allegedly denied.

7. On January 26, the child was transferred to Kom Al Dekka Correctional Facility until 16th March 2014 when he was transferred to Merg Youth Centre. The Complainants allege that he was held with adult common criminals who smoked drugs ail the time. The adult criminals also allegedly took the money and the food provided to the child by their families during visitation.

8. The Complainant allege that immediately before Ahmed’s transfer to the Youth Detention, the news of ill treatment and torture of child prisoners held in the Centre, aged between the age of 12 and 17, came to light. The prisoners were initially held in the Youth Detention Centre and due to the overcrowdings of the center; the authorities transferred them from to Kom Al Dekka Correctional Facility. Upon return, they allege about the inhumane treatment and the sexual abuse they faced in the Detention Youth Centre. As a result, the Children in Kom Al Dekka, including Ahmed, allegedly felt terrified of the transfer and entered into a hunger strike to protest their transfer and refused to leave their rooms.

9. The news of abuses in the Youth Centre was leaked to the media and the authorities postponed the transfer to avoid further media coverage. According to the Complainants, at the same time the common criminals started assaulting the children and threatening to cut their parts with razors to force them out of the room.

10.  According to the complainants, on 2nd September 2015, Alexandria Criminal Court sentenced the child to 5 years imprisonment and 5 years under surveillance. No dates or evidences were provided by the prosecution to prove the child’s involvement in killing the officer and his aides or possession of firearms. Despite many requests made to the judge by defense team, the child was denied to call families of the deceased officers who were to attest in his favor. Contrary to the Egyptian Child Act, the child was sentenced in an adult court rather than Court of Juvenile. The family allege that the other 3 defendants were acquitted and that Ahmed suffered from psychological shock after the sentence, refusing to eat and confined himself to his room.

11.  The child alleges that after his sentencing he was transferred to Section C, where convicted children are held. In section C, children are allegedly kept in the same rooms with adult criminals convicted of murder, rape and sale of body part. According to the child, these criminals keep razors in their rooms and continually threaten the child with the razorblades with knowledge of the officers. The child alleges that a criminal convicted of sale of bodies used a razorblade against another child badly injuring him. In response to the shocking incident, Ahmed told the head of the Centre that he will inform his parents who will file complaints and reach the media and international community to expose the violations committed against the children in both the Centre and Correctional Facilities.

12.  The head of the Centre allegedly offered to transfer Ahmed to Section A, where he will be held in more humane conditions and separate from adult criminals, if he remains silent about the incident and does not report it to his parents, which Ahmed did at the time.

13.  According to the Complainants, since birth, the child suffers from partial paralysis to his right arm affecting his motor skills. Before detention, he attended weekly physiotherapy and occupational therapy to improve his motor skills. It is alleged that he was deprived of the sessions throughout his detention due to the absence of a specialist in the Correctional Facility and the Youth Centre and the refusal of the authorities to transfer him weekly to the hospital for sessions.

14.  The Complainants further allege that Ahmed missed 3 final exams at school and had to retake eight subjects as a result. The Centre allegedly made it difficult for the child to pursue his studies as he has to be transferred from Cairo to Alexandria for his exams which resulted in him missing the 3 final exams.

III.The African Committee’s Analysis and Decision on Admissibility

15.  The current Communication is submitted pursuant to Article 44 of the African Children’s Charter which allows the Committee to receive and consider complaints from “any person, group or non-governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter”. The Complainants, therefore, have submitted that they have the competence to submit the communication on the basis of this provision. The Complainants also stated that the Communication is directed against a State Party to the African Children’s Charter, as the respondent State ratified the ACRWC on the 9th of may 2001, and within whose jurisdictions the alleged violations of the rights enshrined in the Charter have allegedly been committed.

16.  As provided under Section II and Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is subject to conditions relating to authorship, form and content as considered below.

i.          Requirement as to Authorship

15.  The Committee notes that the Communication explicitly states the names of the authors. Therefore, this communication satisfies the requirement as to authorship.

ii.         Requirements as to Form

17.            The Complainants submitted that the present communication satisfies the requirement as to form as set out in Section 2 (2) of the Revised Communication Guidelines, which states that a Communication can only be considered by the Committee if it is not anonymous, it is written in one of the official languages of the Committee, it concerns a State signatory to the Charter and it is duly signed by the complainant or her/his representatives. In this regard, the Committee is of the view that the Author of the Communication has been identified and relevant details of the Communication have been provided to the Committee. The Communication is written in English which is one of the Official languages of the Committee and it is made against a State Party to the Charter. Therefore, the Committee concludes that the Complainants have complied with the requirement as to form as laid down in the Communication Guidelines.

iii.      Requirements as to Content

18.    Section IX (1) (a) of the Revised Communications Guidelines prescribes that a Communication has to be compatible with the provisions of the Constitutive Act of the African Union or with the African Children’s Charter. The Complainants submitted that this condition is satisfied since the Communication is presented pursuant to Article 44 of the African Children’s Charter in order to strengthen the observance of the ACRWC’s provisions in Egypt. The Committee notes that the Communication is compatible with the Constitutive Act of the AU and the Charter as it concerns allegations of violations of the provisions of the Charter. The Committee recognises the African Commission on Human and Peoples’ Rights’ approach that for a communication to be compatible with African Charter on Human and Peoples’ Right, a communication must allege prima facie violations of the Charter.[1] Drawing inspiration from the jurisprudence of the Commission, the Committee also requires communications to show prima facie violation of provisions of the African Children’s Charter in order to be accepted by the Committee. Therefore, it is the Committee’s position that the Communication meets the requirements under Section IX (1) (a) of the Revised Communications Guidelines.

19.    The Committee also notes that the Communication is presented in a professional, polite and respectful language, making it compatible with Section IX (1) (F) of the Revised Communication Guidelines.

20.    Pursuant to Section IX (1) (b) of the Revised Communication Guidelines, the Communication should not be exclusively based on information circulated by the media. The Committee learns that the factual basis of the present Communication rests on the information gathered from the child and his parent. Hence the Committee is satisfied that this criterion is met by the Communication.

21.    In compliance with Section IX Article 1(C) of the Communication Guidelines, the Complainants submitted that this communication does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter. As far as the investigation of Committee goes, the Communication under consideration does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter. Consequently, the Committee holds

that the Communication has complied with the requirement in Section IX Article 1(C) of the Revised Communication Guidelines.

22. Section IX Article 1(d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. The issue of exhaustion of local remedies requires detailed consideration. At the outset, under international law a local remedy is understood to be "any domestic legal action that may lead to the resolution of the complaint at the local or national level."[2] As this Committee in the children of Nubian descent case noted, “one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level.”[3]

23. In general, international human rights law obliges a person whose rights have been violated to rely on domestic remedies to rectify the wrong before he/she takes the issue to an international tribunal. The idea behind this rule is that the full and effective implementation of international obligations in the field of human rights is intended to boost the enjoyment of human rights and fundamental freedoms at the national level. As the Commission in the case Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les Temoins De Jehova V. DRC noted, “A government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before an international body.”[4] The same stand was reflected by the Commission in the case Rencontre africaine pour la defence des droits De L’Hommes (RADDHO) V Zambia.[5]

24. The rule of exhaustion of local remedies is also of a paramount importance since it reinforces the subsidiary and complementary relationship of the international system to domestic system. In principle, neither international tribunal nor regional tribunal (like the ACERWC) should assume place of first instance court. The fact that regional forums like ACERWC should be accessible is undisputable. However, such kind of forums should come in to picture not as a first resort but after the domestic remedies have been exhausted.

25. In their submission, the Complainants argued that the State is well aware of the series of serious and massive Human Rights violations occurring in it and

has taken little or no steps to remedy those violations. According to the complainants, these impediments render local remedies unavailable to the victims.

25. The Complainants further submitted that the Egyptian judiciary has in general been used by the regime as a tool of repression against many citizens including the vulnerable. Noting that recently a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime 2 years ago and there are other reported incidents, the Complainant argued that there is no functioning judicial system in the respondent State. From the submission of the complainants, it can be discerned that they did not approach any court to expose the fact that the victim faced torture and to rectify the wrong done to the victim.

26. From Section IX Article 1(d) of the Revised Communication Guideline, it can be understood that there are exceptional circumstances in which the requirement of exhaustion of local remedies can be left aside. In applying the rule of exhaustion of local remedies, this Committee takes into account the circumstances of each case, including the general context in which the formal remedies operate and the personal circumstances of the complainant.

27. In the present case, there is no indication that the Complainants approached the judicial system with a view to attempt to exhaust local remedies. The complainants are arguing that there are no local remedies to be exhausted.

28. As the ACERWC indicated in its previous decisions, the requirement to exhaust domestic remedies is only with regard to remedies that are 'available, effective and sufficient’.[6] The main question that begs a detailed look in the present communication is whether it can be concluded that local remedies in the Respondent State are not available, ineffective or insufficient based on the allegations made by the complainant.

29. Although the Complainants argued that the State is well aware of the series of serious and massive human rights violations occurring in the respondent State, they did not adduce any evidence to prove this allegation. For any allegation to be considered by the Committee, it should be backed by the evidence that can prove it. A mere allegation cannot hold responsible the respondent State. From the submission of the Complainants, it cannot be concluded that the state is well aware about the wrongs done to the victim. In this regard, the Committee is not convinced by the submission of the complainants.

30. On the other hand, the Complainants alleged that there is no functioning judiciary in the respondent State as it has been used by the regime as a tool of repression. Apart from casting vilification on the function of judiciary, the Complainants have not buttressed their argument by concrete evidence. In other words, they could not prove sufficiently that this allegation is well-founded. In the view of the Committee, the Complainants are simply casting doubts about the effectiveness/existence of the domestic remedies. In the case A V Australia, the Human Right Committee noted that “mere doubts about the effectiveness of local remedies or the prospect of financial costs involved did not absolve an author from pursuing such remedies.”[7]

31. In the case Anuak Justice V Ethiopia, the African Commission held that “it is incumbent on every complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies.”[8] The Commission further underscored that it is not enough for the Complainant to cast aspersion on the ability of the domestic remedies of the State due to isolated or past incidences.[9]For instance, the indication that a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime as the Complainants mentioned in their submission, cannot be read to render and characterize the whole judiciary dysfunctional. In other words, the fact that one court gives such kind of decision does not mean all courts in the respondent State will have the same stand on the same issue. In any case the functionality of judiciary of a given state cannot be judged by an isolated incidence or the error or violation committed by one court.

32. In their submission, the Complainants mentioned that on 2nd September 2015 Alexandria Criminal Court sentenced the victim to 5 years imprisonment and 5 years under surveillance. Following this sentence, the Complainants have not attempted to use the appellate channel to change the sentence. As the African Commission noted, “If a remedy has the slightest likelihood to be effective, the applicant must pursue it.” The Complainants are arguing that local remedies are not likely to be successful, without exerting an effort to test them. Looking at the situation in perspective, it is difficult to conclude, before trying the appellate channel, and/or on the basis of a seemingly one case, that the respondent State’s judiciary is not functioning in the case at hand.

33. In general, the Complainants have not presented conclusive evidence that demonstrates the judiciary of the respondent State is not functioning, and that local remedies are not available, effective, and sufficient. Hence the Committee is not convinced that this communication should benefit from exceptions of rule of exhaustion of local remedies.

IV. Decision on Admissibility

34. On the basis of the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the authors has not fulfilled all the admissibility conditions as laid down in the Committee’s Revised Guidelines on Consideration of Communication; and it is accordingly declared inadmissible.

Done in May 2017

Benyam Dawit Mezmur

Chairperson of the African Committee of Experts on the Rights and
Welfare of the Child

 

[1] See African Commission on Human and Peoples' Rights, Frederick Korvah v. Liberia, Communication No. 1/88 (1988) para 6 and Ligue Camerounaise des Droits de I'Homme V. Cameroon communication no. 65/92

[2] See Anuak Justice Council V Ethiopia Communication no. 299/2005, para 50.

[3] See Institute for Human Right and Development in Africa (IHRDA and other on behalf of Children of Nubian descent v. KenyaCommunication No. Com/002/2009, para 26.

See African Commission, Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les Temoins De Jehova V. DRC Communication no. 25/89, 47/90, 56/91, 100/93 (Joined) para 36.

[5] See African Commission, Rencontre africaine pour la defence des droits De L’Hommes (RADDHO) V Zambia Communication no. 71/92 para 10.

[6] See IHRDA and other on behalf of Children of Nubian descent v. Kenya (n 3 above) para 28.

[7] See the UN Human Right Committee A v. Australia, Communication No. 560/1993, para 6.4.

[8] See Anuak Justice V Ethiopia (n 2 above) para 58.

[9] See Anuak Justice V Ethiopia (n 7 above).

Author
admin
Judgment date
Case number
Communication 3 of 2015
Court name
African Committee of Experts on the Rights and Welfare of the Child
Flynote local
Communication
Flynote
Children
Harmful practices affecting the rights of children
Slavery

THE AFRICAN COMMITTEE OF EXPERTS
ON THE RIGHTS AND WELFARE OF THE CHILD (ACERWC)

DECISION ON THE COMMUNICATION SUBMITTED BY MINORITY
RIGHTS GROUP INTERNATIONAL AND SOS-ESCLAVES ON BEHALF OF

SAID OULD SALEM AND YARG OULD SALEM AGAINST THE
GOVERNMENT OF THE REPUBLIC OF MAURITANIA

Communication No: 007/Com/003/2015

Decision No: 003/2017

Original: English

 

Decision on a communication submitted before the African Committee
of Experts on the Rights and Welfare of the Child

On the matter between

Minority rights group international and Sos-esclaves on behalf of Said
Quid Salem and Yarg Ould Salem

V

The Government of the Republic of Mauritania

i.      Submission of communication

1.  The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 15 December 2015 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Minority Rights Group International and SOS-Esclaves (the Complainants). According to Section IX (2) (i) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communication Guidelines), the Committee transmitted a copy of the Communication to the Respondent State Party through a Note Verbal written on 05 January 2016.

2.  Upon receipt of the Communication, the State Party should have submitted its response within 60 days from the date of the request from the Secretariat. The Committee then sent additional Note Verbal on 15 August 2016. As the Committee did not receive a response from the Government, and given the serious nature and time sensitiveness of the allegations by the Complainants, it decided to proceed considering the admissibility of the Communication without a response from the Respondent State.

3.  After declaring the Communication admissible Committee conducted a hearing on the 28th Ordinary Session held from 21 October to 1 November 2016 in Banjul, the Gambia. At the hearing, the Complainants and the Respondent State made oral submissions and examined Said Ould Salem and Yarg Ould Salem. The hearing shed light on the arguments of both sides, in addition to giving the children an opportunity to express their views on the matter.

4.  Following the hearing, the Committee conducted an on-sight investigation in Mauritania in accordance with article 45 of the Charter and section XV of the Revised Communication Guidelines. The investigation took place from 27 to 30 March 2017. The aim of the investigation was to ascertain fact with regards to the allegations of the practice of slavery in Mauritania.

ii.     Summary of Alleged facts

5.  The Complainants allege that Said Ould Salem, born in 2000 and his younger brother, Yarg Ould Salem, were born in 2003 to a Haratine mother, part of Mauritania's slave class. It is therefore alleged that Said and Yarg became automatically slaves to the to the El Hassine family.

6.   The Complainants further allege that Said was required to look after the family's herd of camels, spending the majority of his time out in the bush with the animals, sleeping and eating in a make-shift camp. Yarg was also forced to undertake domestic chores including cooking, cleaning, washing closes and buying goods from the market. Besides, Yarg is required to assist his brother Said in looking after the camels from time to time.

7.   The Complainants allege that the two boys worked seven days a week without pay, with no time off (even on Fridays), no time to play; instead they regularly faced corporal punishments. According to the Complainants, both Said and Yarg were not called by their given names in the El Hassine family rather they were called 'slaves'. The children were allowed to eat only leftovers. Furthermore, unlike the other children in the family, the two boys did not attend school nor did they learn the Quran.

8.   The Complainants further allege that Said went to the Police Commissioner with his aunt after escaping in April, 2011 and the aunt filed a complaint on 19 April 2011 against Cheik Quid Hassine and his brothers Nedhirou Quid El Hassine, Mohamed Ould El Hassine and Tijani Quid El Hassine for holding her sister's children as slaves. The complaint was reportedly duly investigated, and charges were brought under the 2007 law, which criminalizes slavery. The charges were laid against Ahmed Ould El Hassine and his sister Oumekelthoum Mint El Hassine for practicing slavery over a child and depriving a child of education; against Mohamed Ould Sidi Mohamed, an employee of the El. Hassine family, against whom charges have not been pursued, at least for the time being, because of uncertainty over his identity. Charges were also brought against the remaining El Hassine brothers for failing to denounce a crime of which one was aware and the boys' mother for assisting in the deprivation of a person's liberty.     The case was then referred to the Criminal Court in Nouakchott.

9.   It is the Complainants allegation that in November, 2011 Ahmed Ould El Hassine was found guilty of holding the two brothers in slavery and depriving them of schooling. He was sentenced to two years of imprisonment and fined 500,000 MRO (roughly USD$1500) while his sister was acquitted of the same charges. The complainants further allege that the other four El Hassine brothers were convicted and each received 2 year suspended sentence and were each fined 100,000 MRO (roughly USD$300) while the boys' mother received a two years suspended sentence and was fined 500,000 MRO (roughly USD$1500) awarding a joint compensation of 840,000 MRO (roughly USD$2500) for Said and 240,000 MRO (roughly USD$700) for Yarg.

10. Despite the unsatisfactory decision of the Court, the Complainants allege that the State Prosecutor did not appeal the judgment on time. Moreover, according to the Complainants, in less than four months’ time after conviction, the slave-owner was released on bail for the sum of 200,000 MRO (roughly USD$600) without any prior communication to the lawyer representing the victims.

11. Finally, the Complainants allege that an appeal hearing, initially scheduled for November 2, 2015 was repeatedly postponed due to, initially, the absence of the President of the Criminal Chamber of the Court of Appeal and subsequently due to the inability of the authorities to locate Ahmed Ould El Hassine following his change of address. The Complainants submitted that it is unclear what, if any, steps have actively been taken by the authorities to locate the convicted slave owner who is also presumably in breach of his bail conditions.

iii.     The Complaint

12. Based on the above facts, the Complainants allege that the Republic of Mauritania is in violation of Articles 1 (Obligation of State Parties), 3 (Non-Discrimination), 4 (Best Interests of the Child), 5 (Survival and Development), 11 (Education), 12 (Leisure, Recreation, and Cultural Activities), 15 (Protection from Economic Exploitation), 16 (Protection Against Harmful Social and Cultural Practices) and 29 (Prevention of Sale, Trafficking and Abduction of Children) of African Charter on the Rights and Welfare of the Child.

iv.     The African Committee’s Analysis on Decision of Admissibility

13. The ACERWC notes that the current Communication is submitted pursuant to Article 44 of the ACRWC which allows the Committee to receive and consider complaints from “any person, group or non­governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by [the Charter]”. The Complainants, therefore, have submitted that they have the competence to submit the communication as a recognized Non- Governmental Organisations. The Complainants also stated that the communication is directed against a State Party to the African Children’s Charter, as the Respondent State ratified the ACRWC on 21 September 2005, and the alleged violations of the rights enshrined in the Charter have allegedly been committed in the jurisdiction of the Respondent State.

14. The Committee also notes that MRG is an international human rights organization registered in the UK and SOS-Esclaves is a Non- Governmental Organization based in Mauritania. Moreover, it is also noted that the Communication is submitted on matters covered under the ACRWC. Therefore, the Committee is of the view that the Complainants have the capacity to submit a Communication in accordance with Article 44 of the ACRWC.

15. As provided under Section II and Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is subject to conditions relating to authorship, form and content as considered below.

Requirement as to Authorship

16. Section I (3) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communication Guidelines)provides a communication may be presented on behalf of a child victim without her/his agreement on condition that the complainant is able to show that her/his action is taken in the supreme interest of the child. The Complainants have submitted the communication on behalf of Mauritanian children; Said Ould Salem who is 16 years old and Yarg Ould Salem who is 13 years old, whose rights under the Charter have been violated by the Respondent State.

17. The Committee notes that the communication explicitly states the names of the authors, which are recognised Non-Governmental Organizations; and the complaint is submitted on behalf of Said Ould Salem and Yarg Ould Salem, Mauritanian children in the Respondent State. In addition, the Committee notes that the Complainants have provided arguments that the submission is made in the best interests of the victims. Therefore, the Committee holds the view that the Complainants have complied with Section 1(3) of the Revised Communication Guidelines.

Requirements as to Form

18. The Complainants submit that the present Communication satisfies the requirement as to form as set out in Section 2 (2) of the Revised Communication Guidelines, which states that a Communication can only be considered by the Committee if it is not anonymous, it is written in one of the official languages of the Committee, it concerns a State Party to the Charter and it is duly signed by the applicant or her/his representatives. In this regard, the Committee is of the view that the Author of the Communication has been identified and relevant details of the Communication have been provided to the Committee. The Communication is written in English which is one of the official languages of the Committee and it is made against a State Party to the Charter. Therefore, the Committee concludes that the Complainants have complied with the requirement of form as laid down in the Communication Guidelines.

Requirements as to Content

19. Laying down requirements as to the content of a communication, Section IX (1) (a) of the Revised Communication Guidelines prescribes that a Communication has to be compatible with the provisions of the Constitutive Act of the African Union or with the Charter on the Rights and Welfare of the Child. The Complainants submitted that this condition is satisfied since the Communication is presented pursuant to Article 44 of the African Children’s Charter in order to strengthen the observance of the ACRWC’s provisions in Mauritania and to contribute to the establishment of a vibrant, legally coherent African children’s rights regime. The Committee notes that the communication is compatible with the Constitutive Act of the AU and the Charter as it concerns alleged violations of the provisions of the Charter. In this regard, the Committee makes reference to the Decision of the African Commission on Human and Peoples’ Rights (the Commission/ACHPR) in the case Frederick Korvah v. Liberia[1] which sets the jurisprudence that for the content of the Communications to be considered compatible with the concerned instrument, it suffices to prove that the applicant invokes provisions of the particular law which are presumed to have been violated. Therefore, it is the Committee’s position that the Communication meets the requirements under Section IX (1) (a) of the Revised Communications Guidelines.

20. The Committee also notes that the communication is presented in a professional, polite and respectful language, making it compatible with Section IX (1) (F) of the Revised Communication Guidelines.

21. Pursuant to Section IX (1) (b) of the Revised Communication Guidelines, a communication should not be exclusively based on information circulated by the media. The Committee has learned that the factual basis of the present Communication rests on the information gathered through a direct contact between SOS-Esclaves and a local lawyer with the two boys, as well as from country visits by Minority Rights Group International to Mauritania and meetings with the two boys. Therefore, the Committee is of the view that the alleged facts are not solely based on information circulated by the media; hence it satisfies the requirement under Section IX (1) (b) of the Revised Communication Guidelines.

22. According to Section IX (1) (C) of the Communication Guidelines, a communication shall not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the African Union and principles of the United Nations Charter. As far as the inquiry made by the Committee goes, the Communication under consideration does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter. In this regard and as part of the investigation, the Committee officially requested the African Court on Human and Peoples’ Rights and the ACHPR if the matter in the Communication at hand has ever been brought to their attention. In its response, the ACHPR informed the Committee that the matter has never been presented to the Commission. Consequently, the Committee holds the view that the Communication has complied with the requirement in Section IX (1) C) of the Revised Communication Guidelines.

23. Section IX (1) (d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee. The issue of exhaustion of local remedies requires further explanation. As the ACERWC elucidated in its previous decisions, the requirement to exhaust domestic remedies is only applicable with regards to remedies, which are 'available, effective and sufficient'.[2] As the Commission clarified in many of its decisions, a remedy is considered to be available if the petitioner can pursue it without impediment or if he/she can make use of it in the circumstances of his/her case. According to the Commission, “the word 'available' means 'readily obtainable; accessible'; or 'attainable, reachable; on call, on hand, ready, present; convenient, at one's service, at one's command, at one's disposal, at one's beck and call'. In other words, remedies, the availability of which is not evident, cannot be invoked by the State to the detriment of the Complainant[3] The Commission defined the word ‘effective’ as “adequate to accomplish a purpose; producing the intended or expected) result,” or ‘functioning, useful, serviceable, operative, in order; practical, current, actual, real, valid’”[4] As the Commission underscored, a remedy is effective if it offers a prospect of success. If its success is not sufficiently certain, the remedy cannot meet the requirements of availability and effectiveness.[5] A remedy is considered to be sufficient if it is capable of redressing the complaint.

24. In the matter at hand, the Complainants indicated that the Respondent State has enacted penal laws that criminalise holding persons as slaves. On its face value, Mauritania's legal and institutional framework appears to offer protection against slavery. The adoption, on 3 September 2007, of the Slavery Act criminalizing slavery and punishing slavery-like practices appeared as a significant step in combating against. However, various reports show that there is lack of effective implementation of this law. For instance, in 2014, the UN Special Rapporteur on Contemporary Forms of Slavery noted that “the enforcement of the 2007 anti-slavery law relies solely upon the police and judiciary, who have shown a reluctance to follow up on allegations of slavery-like practices, with most cases being closed without any proper investigation."[6] Similarly, in its 2014/15 Report, Amnesty International reported that implementation of the anti-slavery law in practice remained poor, stating that "court cases were subject to long delays."[7] Amnesty International further indicated that between 2010 and the end of 2014, at least six cases of slavery were submitted to the Public Prosecutor but no ruling on any of them had been made by the end of 2014.[8]

25. This shows that seeking a criminal conviction of one's slave master and obtaining compensation for one's deprivation of liberty, which exists in theory, is not effective in practice. In defining “effective remedy”, the Commission emphasized that the remedy should be practical, current, actual, real and valid to be considered as effective remedy.[9] According to the Commission, the remedy, which exists in theory but not in practice, cannot be considered to be effective. Moreover, as the Council of Europe in its practical guide on admissibility criteria underscored, "the existence of remedies must be sufficiently certain not only in theory but also in practice. ”[10]

26. Dealing on similar issues, the ACERWC, in the Center for Human Right and other on behalf of Talibes v. Senegal case, held the view that: ‘while it was apparent that penal laws were in existence proscribing the practice of forcing children to beg, Senegal had made little effort to enforce such provisions: as of 2011, only 10 cases had been brought resulting in 9 convictions but with the duration of imprisonment being minimal. In such circumstances, this Committee was of the view that the avenue of pursuing a criminal complaint was inefficient’.[11] Similarly, in the present communication, the Committee concurs with the Complainants submission that ‘any remedies that may be available in theory under the 2007 Act, under which there has only been one conviction to date with a sentence not meeting the minimum prescribed by law, are neither effective nor sufficient in practice.’

27. In their submission, the Complainants argued that it is not the obligation of victims but that of the Respondent State’s to move criminal process forward. According to the Complainants, victims of human rights violations (where are considered as criminal offences under a State's domestic laws) have little control over the criminal process. In this regard, the ACHPR has consistently ruled that: ‘Whenever there is a crime that can be investigated and prosecuted by the State on its own initiative, the State has the obligation to move the criminal process forward to its ultimate conclusion. In such cases, one cannot demand that the complainants or the victims or their family members assume the task of exhausting domestic remedies when it is up to the State to investigate the facts and bring the accused persons to court in accordance with both domestic and international fair trial standards.’[12] Instead, by failing to properly investigate a criminal matter of which it has been notified and to move the criminal process forward to its ultimate conclusion within a reasonable time, a State ‘forfeit[s] its prerogative to deal with the matter domestically.’[13]

28. In the matter at hand, four years have lapsed since an appeal was lodged by the State Prosecutor against the decision of the Criminal Court of Nouakchott. However, after four years, no decision was given on the file lodged by the prosecutor. This indicates that the Respondent State failed to properly investigate a criminal matter of which it has been notified and to move the criminal process forward to its ultimate conclusion within a reasonable time. Consequently, the Committee believes that the two boys in the present case cannot be expected to assume the task of exhausting domestic criminal remedies but that it is instead for the Respondent State to move the criminal process forward to its ultimate conclusion in a timely manner, which it has failed to do.

29. In the Communication of children of Nubian descents V Kenya, the Committee took the view that “the Complainants can be exempted from exhausting local remedies if such an attempt would be or is unduly prolonged, which is an explicitly mentioned exception under Article 56[5] of the African Charter.”[14] The Committee further underscored that “an unduly prolonged domestic remedy cannot be considered to fall within the ambit of ‘available, effective, and sufficient’ local remedy.”[15] In the present matter, the Committee has learned that the victims have not caused the delay, and indeed through their lawyer they have repeatedly sought to ensure a hearing of the appeal. The Committee notes that four years have lapsed by the time the Complainants lodged this communication. As it is noted in the Children of Nubian Descendants Communication “a year in the life of a child is almost six percent of his or her childhood... the implementation and realization of children’s rights in Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.” The Committee is of the view that, the delay caused in relation to the present communication is not in the best interest of the child and amounts to undue delay that triggers the exception to the requirement to exhaust any local remedies.

30. Pursuant to Section IX (1) (E) of the Revised Communication Guideline, the Communication should be presented within a reasonable period after exhaustion of local remedies at the national level. The Committee is of the view that this requirement is fulfilled since this Communication is brought within a reasonable period of time, after waiting for four years to get remedy from local arena.

v.   Decision on Admissibility

31. On the basis of the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the authors has fulfilled all the admissibility conditions as laid down in the Committee’s Guidelines on Consideration of Communication; and it is accordingly declared admissible.

vi.    Submissions on the Merits of the Communication

The Complainants’ Submission on the Merits

32. The Complainants’ allegations are based on the fact that Mauritania has failed to adequately and effectively enforce the 2007 law criminalizing slavery and to ensure that the members of the family who have held the two boys in slavery were charged with offences and received sentences and punishments commensurate to the seriousness of their actions.

33. The Complainants argue that Mauritania has failed to ensure that the appeal against the unduly lenient sentences and the amount of compensation awarded is heard promptly; and has failed to ensure that the absconded slave master is located and brought to justice.

34. The Complainants submit that through its failure to adequately enforce the provisions of the 2007 anti-slavery law in respect of those who held the two boys in slavery, the Government of Mauritania is in breach of its negative and positive obligations in relation to various rights under the Charter. The complainants therefore argue that the Government is necessarily in breach of its duty under article 1 (obligation to take measures) of the Charter.

35. The Applicants submit that the difference in treatment faced by Said and Yarg in respect of their rights amounts to discrimination. In this regard, the Complainants submit that the Respondent State assumes the responsibility of preventing and investigating acts of discrimination, and punishing perpetrators with a view to ensuring redress to the victims. In the same token, the Complainants argue that the treatment of Said and Yarg and the failure of the Government to prevent such treatment and provide effective remedy violated their rights to education, survival and development, leisure, recreation, and cultural activities, protection form economic exploitation, protection against harmful social and cultural practices, and protection from sale, trafficking and abduction of children. The Complainants further argued that the delay in the court proceedings is a violation of the best interest of the child.

The Respondent State’s Submission on the Merits

36. The Respondent State submitted that the legislative framework of Mauritania provides a solid basis for the protection of children against abuse and all forms of exploitation; specific protection measures indicated include act 2003-025 on the Trafficking in Persons and act 2015-031 which strengthened the protection in relation to slavery and slavery-like practices on minors. The Respondent State indicated that in the law of Mauritania no one can be subject to slavery, torture and other cruel, inhuman or degrading treatment or punishment. According to the Respondent State, these practices clearly constitute crimes against humanity and are punishable by the law. It was also the Respondent State’s submission that in 2014, the Mauritanian Government, reiterating its commitment towards implementing the recommendations of the Special Rapporteur of the United Nations against contemporary forms of slavery, has adopted a roadmap which outlines a series of concrete measures which are deemed to be taken to address the challenges of slavery and slavery like practices in the Country.

37. The Respondent State further stated that Mauritania is in the process of developing a plan of action against child labor in partnership with the International Labor Organisation to combat the exploitation of children. Among the key activities of this Action Plan was the adoption Act 2015- 031 on 10 September 2015, which amended the 2007 Slavery Act, and makes slavery a crime against humanity, imprescriptible and aggravates the penalty. The 2015 Act also established specialized courts, which have been created in each area to support more effectively the claims brought against slavery.

38. The Respondent State also submitted that beyond taking legislative measures, other appropriate measures have been taken to enable the victims of slavery to get civil status, through which Said and his brother Yarg have benefited from ease of enrolment into schools.

39. The Respondent State further informed the ACERWC that the Government of Mauritania undertook the necessary measures to prosecute the El Hussain family without reluctance. The Respondent State argued that the granting of bail to Ahmed Ould Hassine was done after several requests and contrary to opposition by the public prosecutor. On 22 June 2011 and 25 January 2012 Ahmed Ould Hassine requested for bail and was denied because of the seriousness of the alleged offences. After 11 months of detention, bail was granted by the criminal chamber of the Supreme Court despite the constant opposition by the Public Prosecutor owing to the gravity of the offence in question.

40. The Respondent State submitted that, basic education is compulsory and free. Act 2001-054 imposes the schooling of children up to the age of 14 years. Measures are being taken to reduce the disparities in school enrolment in geographic areas where disadvantaged groups exist.

41. The Respondent State evasively denied all the allegations of the violations of the rights of Said and Yarg under the Charter; by submitting that there is no phenomenon of slavery in Mauritania and indicating the due diligence of the Government of Mauritania in responding to the challenges faced by Said and Yarg by prosecuting El Hassin family and according social protection mechanisms to the children.

vii.   Third Party intervention

42. On 7 October 2016, Anti-Slavery International, a London-based INGO that has over 20 years working experience in the Respondent State, applied to be allowed to make third party intervention submissions. The third party intervener submitted that many descendants of slaves in the Respondent State remain in slavery to this day, under the full control of their traditional masters. They are treated as property, and receive no payment for their work. Men primarily herd cattle or work on their masters’ farmland, while women are mostly engaged in domestic work, carrying and nursing the master’s children and often shepherding animals. Girls and boys start work for their masters a very young age, the domestic duties include fetching water from wells, collecting firewood, cooking washing clothes, cleaning, caring for the children of their master, and setting up and moving tents. It was also submitted that the children of slaves are considered the masters’ property and, like other slaves, can be rented out, loaned, given as gifts in marriage or inherited by the masters’ children.

43. Anti-Slavery International submitted that the total destitution in which children in Mauritania find themselves leaves them highly vulnerable to further exploitation (including sexual exploitation). Girls in slavery are often subjected to rape and sexual violence, and other men they encounter on leaving slavery may also view them and treat them as sexual property. Additionally, girls may have children themselves, which involves additional economic and care responsibilities and stigma. For those who do find sources of support in the short-term (usually family members who are no longer in slavery, or anti-slavery organizations), the lack of identity documents creates a huge barrier to access State services. In this regard, it was further submitted that to obtain ‘civil status’, the applicant must provide parents’ details, which are often unknown to children who are victims of slavery. As a result, children therefore have difficulty accessing education; they are often years behind other children, so need time to catch up before they can integrate into formal schools, but public schooling beyond the age of 10 is only available to those with identity cards. This perpetuates children’s social isolation and disempowerment; it prevents their access to the key opportunity to break the generational cycle of poverty and exploitation.

viii.  Issues for investigation by the ACERWC

44. Following the arguments made by all the parties involved in the Communication, the ACERWC has framed the following issues as matters of deliberation and investigation with a view to informing its Decision:

i.     Whether the Respondent State has failed to discharge its obligation, under the principle of the best interest of the child, in effectively and promptly prosecuting the perpetrators of the individuals involved in the alleged violations of the rights of the two children, Said Ould Salem and Yarg Ould Salem;

ii.    Whether the Respondent State has violated the various rights and obligations as they are prescribed in the African Children’s Charter, and as they are related to the two brothers Said Ould Salem and Yarg Ould Salem; the rights and obligations include education, survival and development, leisure, recreation, and cultural activities, protection from economic exploitation, protection against harmful social and cultural practices, and prevention of sale, trafficking and abduction of children; and

iii.   In cases where the Respondent State has not found in compliance with its obligations as they are prescribed in the African Children’s Charter, what remedies are the victims entitled for.

ix.     The Committee’s analysis on the merits of the alleged violations

Alleged violation of article 1 on general measures of implementation

45. Article 1 of the African Children’s Charter provides for the obligation of State Parties with respect to the provisions of the Charter. According to Article 1 of the African Children’s Charter, State Parties are expected to take legislative and other measures such as administrative or judicial measures to realize the rights of children enumerated under the Charter.

46. As part of the Respondent State’s obligation under article 1, the Committee notes that the Government of Mauritania is under legal obligation to take legislative and other measures in protecting children from acts of slavery and its inevitable consequences.

47. The Committee notes that the obligation ‘to take legislative measures’ recognises actions to promote and protect the rights of the child and needs a clear foundation in national legislation, as well as accompanying policies and guidance that support its implementation. This in turn requires the enactment and continuous review of national legislation and related administrative guidance to ensure their compatibility with relevant international norms and related standards on the rights of the child.

48. It is also the Committee’s stance that implementation of the obligation as to ‘legislative measure’ should be viewed in light of child protection approach. Legislation which underscores the right of children to protection from all forms of abuse, neglect, maltreatment and degradation is a necessary element of the fulfillment of the obligation provided under article 1 of the Charter. The legislations should also contain the entire array of protective measures, which shall include effective procedures for the establishment of special monitoring units to provide support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up in instance of child abuse and neglect.

49. With regard to the obligations of taking ‘other measures’, the Committee at the outset notes that it is an overarching obligation, which also requires a legislative basis for its implementation. ‘Other measures’ should therefore not be seen as entirely separate from legislative measures. In this regard, the Committee focuses on administrative and judicial measures that State Parties are obliged to undertake with a view to protect and promote children’s rights.

50. The Committee notes that administrative measures are broad as they cover a wide range of actions such as allocating sufficient resource, coordination, and collaboration with other stakeholders. For instance, considering the multi-sectoral nature of children’s rights, State Parties should take in to account the fact that it is almost impossible to implement the obligations under the African Children’s Charter fully under a single agency. In this regard, the overarching responsibility of governments is therefore to put in place a child rights governance system that ensures the visibility, advancement and realisation of all children’s rights across the full implementation processes of all role players. Further, State Parties should also design and implement child sensitive national budgeting by developing and using tools for making children visible in budgetary processes at the national and sub-national levels, including in the context of international cooperation, and in the context of regional economic imperatives.

51. Regarding ’judicial measures’ the Committee notes that State Parties should provide for judicially enforceable children’s rights with a view to ensuring that children have access to the judicial system, if needs be without parental assistance, to enable them to enforce their rights. The Committee also endorses the need for the establishment of child-friendly procedures as well as appropriate compensation in cases of breach of the rights of children.[16]

52. Following the above discussion, the Committee also approaches the implementation of the obligations of State Parties as it is included in article 1 of the Charter in the context of the requirement of ‘due diligence’. The Committee notes that while discharging their human rights obligations, States are obliged to show due diligence to ensure the full realization of human rights.[17] States’ due diligence is translated in the form of prevention of human rights violations, investigation of violations, prosecution of perpetrators, and ensuring punishment of perpetrators.[18] In order to prevent violation of human rights, States must therefore identify vulnerable groups prone to abuse and take special measures to prevent violence from occurring. In cases where the violence has already occurred, Governments are required to undertake exhaustive investigation and ensure that commensurate compensation is rewarded to the victims.[19] In the event where the State fails to show due diligence to prevent or investigate violence perpetrated by third parties, it assumes responsibility under international law for non-state actors.[20] In this regard, all organs of the State are required to act in due diligence and a breach caused by any of the organs of the Government in preventing and investigating a violation makes the State responsible under its international human rights obligations.[21] As the Inter American Court of Human Rights alluded, a state is in violation of its duties ‘when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention’[22] (in this case the African Children’s Charter).

53. In the matter at hand, the Committee’s decision should hence be based on the assessment of the due diligence of the Respondent State. Put differently, the issue is whether or not the Government of Mauritania acted in due diligence in discharging its obligation towards Said and Yarg in terms of prevention, investigation, prosecution, punishment, and remedy by taking legislative and other measures. This begs the question as to what determines if States have acted in due diligence or not.

54. International human rights jurisprudence including that of the African Commission on Human and Peoples’ Rights suggests that human rights obligation of States are that of obligation of result, not obligation of diligence.[23] Therefore, the Committee is of the view that the due diligence of the Respondent State is assessed by the result it has achieved through the legislative and other measures it has taken in relation to the respective issue. Of course, the Respondent State is not always breaching its obligation whenever there is a violation of rights; rather the State is said to be in violation of international duties when it has failed to undertake an objective and government driven investigation towards the violation.[24] If a State is found to be in complicity by overlooking or condoning a certain pattern of violence, the State has not shown due diligence to ensure the realization of human rights.[25] Moreover, it is the duty of the Respondent State to prove that it has shown due diligence in implementing the laws or redressing the alleged violation. Even though burden of proof lies on the Applicants, jurisprudence suggests that unless the State proves the contrary of what has been alleged, the Committee considers the allegation of the Complainants to be true.[26]

55. The Complainants allege that the Respondent State is in violation of its obligation under article 1 of the African Children’s Charter by failing to prevent violation of the rights of Said and Yard through its inaction, and failing to enforce the 2007 Slavery Act to prosecute and punish the former slave masters and mistresses. The Committee notes with appreciation the legislative measures the State Party has adopted including the 2015 Anti­Slavery Act, which criminalizes slavery. Nevertheless, the Respondent State has not indicated the specific measures it has been undertaking to prevent slavery and to free children who are under slavery. The case concerning Said and Yard was brought before the domestic courts after the aunt of the children conveyed an application. The lower court only convicted Ahmed Ould El Hassine for the crime of slavery but left the other family members with impunity. Furthermore, its decision sentenced Ahmed Ould El Hassine to 2 years of imprisonment, which is less than the minimum years of imprisonment provided in the 2007 Slavery Act.

56. The Committee found from its fact-finding mission that the appeal has been considered by the appellate court and a decision in favor of the two victims has been given. Even though the situation of the two children has improved currently, this does not relieve the Respondent State from being accountable for the violation Said and Yard faced during the time of slavery, by lack of appropriate prosecution, and prolonged court proceeding. A change in the status of victims for better does not change the status in relation to the ‘accountability of the government in terms of the act of violation committed against human rights’.[27]

57. Concerning the decision of the lower court and the prolonged appeal, the Respondent State argued that the judiciary has its independence in handling cases and hence other organs may not interfere in proceedings. The Committee views the State apparatus as one entity. All organs of the Government have a duty to respect, protect and fulfill the rights recognized under the Charter. Moreover, States may not invoke their internal Government structures as a justification for their failure to meet their obligations under the Charter. In this regard the Committee shares the view of the UN Human Rights Committee in that “the executive branch that usually represents the State Party internationally...may not point to the fact that an action ... was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility.”[28]

58. As aforementioned, the duty of due diligence is measured by result and requires prevention, investigation, prosecution and punishment. The Committee notes that the Government of Mauritania has taken legislative and other measures to criminalize slavery and prosecute the El Hassin family. However, the measures taken by the Government fall short of preventing the violations of the rights of Said and Yarg, which took place for more than 11 years. The Committee further notes that the investigation was not State driven as the aunt of the victims took the initiative to bring the case to the attention of the police and the appeal was also initiated by the lawyer of the victims. Moreover, the investigation and court proceeding was unduly prolonged and contrary to the best interest of the child as indicated in the admissibility ruling of this decision. With regards to prosecution and punishment, the Committee finds that the Respondent State has not shown due diligence to prosecute all the perpetrators of the violations, furthermore the one that was prosecuted has been released on bail and the police are not able to locate him. Such failure on the part of the Respondent State reflects ignorance that leaves perpetrators with impunity and does not send a deterring massage for other slave masters. Therefore, due to lack of due diligence in preventing the enslavement of Said and Yarg, taking proactive measures to investigate the violation and effectively prosecute and punish all perpetrators, as well as failing to ensure effective remedy to the victims, the Committee finds the Respondent State in violation of its obligation under article 1 of the African Children’s Charter which requires it to take all the necessary measures possible to respect, protect, promote, and fulfill the rights enumerated in the Charter.

Alleged violation of article 3 on non-discrimination

59. Article 3 of the African Children’s Charter provides that “Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, color, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.” The Complainants alleged that the two brothers were treated differently from other children in their former master’s house. They were held as slaves, required to work seven days a week without pay, without rest, were not allowed to attend school and were not afforded time for play. It was further alleged that the discrimination the children has faced resulted in violation of their right to development, education, leisure, their right not to be subjected to child labor as well as their right not to be subjected to inhumane and degrading treatment. The Complainants also stated that while other children in the house were referred to with their names, the two brothers were simply called ‘slave’. The Applicants further alleged that the differential treatment to which the two boys were subjected was solely based on the fact that they belonged to the Haratine ethnic group, who are victims of slavery in Mauritania.

60. Moreover, the Committee, from the records of the hearing, learned that Said and Yarg testified that they are subjected to different treatment which amounts to discrimination. Both from the submissions of the Complainants and the testimony of the two brothers, the Committee noted that the two brothers were treated differently than the other children in the household due to their status as slaves.

61. Following the submissions, the Committee deliberated on whether the different treatment that the two brothers have been subjected to amounts to discrimination or not. The Committee shares the view that for a differential treatment to be justified “the reasons for possible limitations must be founded in a legitimate State interest and limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained”.[29] The Committee notes that slavery is clearly prohibited under the national law of Mauritania and various international human rights laws. In the matter at hand the differential treatment that Said and Yarg have been subjected to emanates from the fact that they are considered as slaves of the El Hassin family, and that does not in any way justify the different treatment; hence it amounts to discrimination under the Charter.

62. The Committee then proceeded in analysing the legal responsibility of the Respondent State taking the fact that the act of discrimination was committed by private individuals. It is the Committee’s view that the Respondent State has the duty to protect children from discrimination in the enjoyment of their rights in the Charter. The duty to protect has two limbs. The first is the duty to take preventive measures against occurrences of violations of human rights by private actors; and the second is the duty to take remedial measures once the violations have occurred.[30] In line with the preventive aspect of the duty to protect, States ‘must take reasonable steps to prevent human rights violations and carry out investigation to impose the appropriate punishment and to ensure the victim’s adequate compensation .

63. In the Communication at hand, Said and Yarg were facing discriminatory treatment in the exercise of their rights recognized in the Charter by the members of the El Hassin family for 11 years until they escaped from the house. Even though the Government ratified international treaties and enacted laws that protect children like Yarg and Said from discriminatory treatment, such laws were not effectively implemented to their benefit. The failure by the Government to effectively implement laws and its inability to prevent the discriminatory treatment of Said and Yarg is a violation of the duty to protect under Article 3 of the African Children’s Charter.

64. Moreover, the Committee shares the position that the duty to protect extends to conducting investigation, identifying those responsible for the violation, imposing punishment and providing effective remedy to the victims, when the right is violated.[31] The effectiveness of a remedy can be measured by its proportionality to the harm caused and its timeliness. In the Communication at hand, the Government prosecuted only few members of the El Hassin Family and only one of them (Ahmed Ould El Hassine) was convicted for the crime of enslavement that resulted in the discriminatory treatment. However, all the members of the family participated in the discriminatory treatment of the brothers, ended up with impunity. Additionally the judicial remedy was unduly prolonged, placing the victims in a legal limbo. Furthermore, the Government did not provide Said and Yarg with the necessary support to integrate them in to the society to ensure their equal enjoyment of rights under the Charter. Hence, the Committee concludes that the failure of the Government to prevent the discriminatory treatment in the enjoyment of rights recognized under the Charter, as well as the failure to provide effective remedy is a violation of the Respondent State’s duty to protect the right to non-discrimination under article 3.

65. The Committee also deliberated on the Applicant’s submission regarding Mauritania’s breach of its negative obligation to respect, by systematically failing to enforce the 2007 anti-slavery law. The Committee notes that the duty to respect requires states to refrain from interfering with or inhibiting the exercise of a right. In this regard, it is the Committee’s view that the Complainants could not provide sufficient evidence which proves that the Respondent State directly interfere in the enjoyment of the rights to non­discrimination of the two brothers. Hence, the Committee is not in a position to pronounce that the Respondent State has breached its duty to respect the right to non-discrimination.

Alleged violation of article 4 on the best interest of the child

66. The best interest of the child, as provided in article 4 of the African Children’s Charter, should be the primary consideration in all actions involving and affecting children. The Committee considers the best interest of the child to be one of the general principles which guide the interpretation and implementation of the rights contained in the Charter. The principle of the best interest of the child is applicable in all actions or omissions undertaken by any person including State and non-State actors.[32] In addition, the UN Committee on the Rights of the Child (UNCRC) indicated that the best interest of the child has a procedural content in the sense that the decisions concerning children should be made after assessing the possible implication on the rights and welfare of the child.[33] Hence all actions and inactions that concern children must be undertaken only if they are in the best interest of the child.[34] The Committee concurs with the UNCRC that the best interest of the child is flexible and adaptable so that it can be applied to the needs of children taking into account their specific circumstances.[35]

67. In the current Communication, the Complainants alleged that Mauritania has contravened article 4 of the Charter on the best interest of the Child as it failed to implement its anti-slavery law; to bring prompt action against the slave masters of Said and Yarg; to bring charges against all persons involved in the slavery; and to hear the appeal on time.

68. In assessing the best interest of Said and Yarg, the Committee pays due regard to factors such as their identity, protection of their rights, and vulnerability as suggested by the UNCRC?7 Said and Yarg are born to a slave mother which automatically placed them in the situation of slavery or slavery like practices. This puts the two children in a vulnerable situation requiring the Respondent State to take special measures of protection. In the present Communication, the Respondent State has taken legislative measures to address the scourge of slavery and slavery like practices, however, it has not taken sufficient administrative measures to prevent slavery or slavery like practices and protect the rights of children affected by slavery or slavery like practices. This is further accompanied by lack of prosecution of all persons who involved in the servitude of Said and Yarg, lenient sentence against the slave master, and a prolonged appeal procedure, which has left Said and Yard with no compensation.

69. The failure of the Respondent State to duly investigate and prosecute all perpetrators of slavery or slavery like practices, and the decision of the lower courts which opted for a lower sentence than the minimum sentence prescribed in the 2007 Slavery Act does not serve the best interest of Said and Yarg as well as other children who are in the situation of slavery or slavery like practices. Moreover, a prolonged decision even if it favors the victims could lead to a violation of substantive rights.[36] Ensuring the best interest of the child necessitates that procedural safeguards must be established including prioritizing children’s issues and completing decisions in the shortest time possible.[37] It follows from this that the failure of the Appellate Court to hear the appeal timely is also not in the best interest of the child.

70. Therefore, the Committee finds that the Respondent State is in violation of article 4 of the African Children’s Charter by failing to prioritize the best interest of Said and Yard in the investigation and prosecution of their slave masters as well as in the prolonged appeal.

Alleged violation of article 5 on survival and development

71. The African Children’s Charter provides that States Parties shall ensure, to the maximum extent possible, the survival, protection and development of the child. The right to survival and development encompasses all aspects of the development of the child as the physical and psychological wellbeing of the child are interrelated. The right to survival and development can only be realized through the implementation of all of the rights under the Charter including the right to health, education, protection from abuse and torture and child labor. In this regard, the Committee share the view of the UNCRC as it is stated in its General Comment that the physical health and physiological wellbeing of the child that are critical for the child’s development, “may be put at risk by adverse living conditions, neglect, insensitive or abusive treatment and restricted opportunities for realizing human potential.”[38]

72. The Committee notes the crucial link between child labor and child development. Child labor, in all its forms[39], severely impedes the overall development and wellbeing of a child. In the Communication at hand, Said and Yarg have been subjected to one of the worst forms of child labor, which is modern slavery or slavery like practices. They were treated as properties of the El Hassine family and were required to work long hours without pay, suffering physical and physiological abuse and deprived of education and recreation. It is the Committee’s view that the situation they were in severely limited their physical and psychological development and deprived them of their childhood.

73. In this regard, the Committee has deliberated on what would be the duty of the Respondent State in ensuring that the rights to survival and development of the two children are uphold. The Committee notes that the Respondent State has a duty to protect the survival and development of the child from encroachment by third parties. The duty to protect this right requires the Respondent State to ensure that the survival and development of the child by ensuring, inter alia, the right to education, health, nutrition, leisure and recreation are realized. The Respondent State has to also ensure that the child is protected from any form of abuse, violence and torture. Said and Yarg were in a situation that severely hindered their development throughout their childhood. The failure of the Respondent State to prevent this and to prosecute and punish all those involved in the enslavement of the children as well as to provide timely and adequate remedy to the children is contrary to the obligation of the Government of Mauritania under the Charter. Therefore, the Committee finds that the Respondent State has failed to holistically realize the rights under the Charter to ensure the survival and development of the Said and Yarg, thereby violating its duty under article 5(2) of the African Children’s Charter.

Alleged violation of article 11 on the right to education

74. State Parties’ obligation with respect to the right to education entails, among other things, the provision of free and compulsory basic education and undertaking special measures to ensure that disadvantaged children have equal access to education.[40] The compulsory aspect of education calls upon States to take positive measures to ensure that all children are enrolled in school. The UN Committee on Economic, Social, and Cultural Rights expounded that the right to education entails elements of availability, accessibility, acceptability, and adaptability[41] The same Committee further specified that the obligation of States to ensure that the right to education is exercised without any discrimination is an immediate obligation and hence States need to take ‘deliberate, concrete, and targeted’ action to ensure the same.[42] Particularly, in events where the right holders are not in a position to enjoy the right to education by their own means, States are expected to take positive measures to provide for and fulfill the right to education.[43] Deprivation of access to education through exclusion is considered to be discrimination in education.[44] This does not change even when the exclusion is caused by private non-state actors. The right to education, as all other human rights, levies an obligation to respect, protect, promote and fulfill.[45] The duty of States’ to protect the right to education includes the obligation to prevent and redress the exclusion of children from education caused by third parties.

75. The facts in the current Communication clearly demonstrate that Said and Yarg were not enrolled in school during the 11 years of slavery. Neither the Government of the Respondent State nor the El Hassine family took any step to enroll the two children in school. The Respondent State failed to employ the required effort to take special measures with a view to assisting Said and Yard to attend school during their stay in the El Hassine family or even after they were freed. It took Said and Yarg 4 years after their freedom to be enrolled in school. The Committee further notes from the Complainants’ submission that both children are currently attending private school as they were not able to attend public schools due to lack of identity documents. The Respondent State has also failed to appropriately and sufficiently redress the violence that was inflicted by the El Hassine family. The Committee therefore reaches on a conclusion that the Respondent State failed to ensure compulsory education for Said and Yarg, failed to take special measures to assist their vulnerability, and failed to protect their right to education from being violated by private parties. Accordingly, the Committee finds Government of Mauritania in violation of its obligations under article 11 of the African Children’s Charter.

Alleged violation of article 12 on leisure, recreation and cultural activities

76. The Committee notes that the role of leisure, recreation and cultural activities in the overall wellbeing of the child should not be underestimated. Considering its importance, article 12 of the African Children’s Charter recognizes the right of the child to rest and leisure, engage in play and recreational activities and participate in cultural activities. In this regard, the Committee joins the view of the UNCRC as it is pronounced in its General Comment. The UNCRC states that play and recreation are essential to the health and well-being of children and promote the development of creativity, imagination, self-confidence, self-efficacy, as well as physical, social, cognitive and emotional strength and skills’[46]Furthermore, the UNCRC states that ensuring such rights “contribute to all aspects of learning; they are a form of participation in everyday life and are of intrinsic value to the child, purely in terms of the enjoyment and pleasure they afford... Participation in cultural and artistic activities are necessary for building children’s understanding, not only of their own culture, but other cultures, as it provides opportunities to broaden their horizons and learn from other cultural and artistic traditions, thus contributing towards mutual understanding and appreciation of diversity... Rest and leisure are as important to children’s development as the basics of nutrition, housing, health care and education. Without sufficient rest, children will lack the energy, motivation and physical and mental capacity for meaningful participation or learning.”[47]

77. In the Communication at hand, the Applicants submitted that Said and Yarg were not allowed to play and rest adequately or pray. It was therefore argued that the treatment of the boys amounts to the denial of their right to leisure, recreation and cultural activities and this is a breach of the positive obligation of the Respondent State to protect children’s right. The Complainants further argue that the Respondent State has failed in its duty to protect this right by not adequately investigating and punishing those responsible for violating their rights.

78. Deliberating on the submissions, the Committee notes that the Respondent State is required to take the necessary measures to ensure that third parties do not interfere with the enjoyment of the right to leisure, recreation and cultural activities by children. The Committee learns that Said and Yarg were required to engage in domestic work all 7 days of the week without rest. From the testimony of the children during the hearing, the Committee also observed that the children used to be obliged to leave the house of the slave masters 4 O’clock in the morning every day to look after the camel herd and return to the house in the evening to prepare food before they go to bed. This has been the daily routine for the boys. Consequently, for eleven years Said and Yarg were denied of their right to play, rest and participate in cultural activities. This, according to the Committee clearly amounts to a denial of their childhood. The Committee therefore concludes that the Respondent State has violated its duty under article 12 of the Charter by failing to ensure that Said and Yarg are enjoying their right to leisure, recreation and cultural activities, contrary to what is prescribed under article 12 of the African Children’s Charter.

Alleged violation of article 15 on child labour

79. State Parties to the African Children’s Charter are obliged to take all the necessary measures to ensure that children are protected from all forms of economic exploitation and from performing hazardous works or works that affect their physical, mental, spiritual, moral or social development both in the formal and informal sectors.[48] The Committee also shares the view that all forms of slavery and slavery like practices are considered to be worst forms of child labour pursuant to ILO Convention No 182.[49]

80. In the Communication at hand, the Committee notes that Said and Yarg have been placed in the El Hassine family to undertake herding and domestic chores seven days a week with no rest for the exploitation of their labour, which in accordance with the Committee amounts to contemporary form of slavery or slavery like practices.[50] The Committee stresses that the prohibition of slavery and slavery like practices has attained the status of customary international law and jus cogens norms.[51]The International Court of Justice has further established that States’ obligation to prohibit and eliminate slavery is an erga omnes obligation.[52] It therefore follows that States are not allowed to derogate from their obligation to prohibit slavery in any circumstances, and moreover, no justification is acceptable for the failure of States to prohibit slavery or slavery like practices.

81.lt is the Committee’s view that exploitative slavery practices against children impair their survival and development physically, intellectually, socially, spiritually, and morally. Furthermore, the Committee gives due regard to the interrelatedness and interdependence of children’s rights in considering the violation of article 15 of the Charter. The servitude of Said and Yarg in and by itself is a violation of article 15 of the African Children’s Charter and also it leads to other violations of the numerous provisions of the Charter such as the right to birth registration, access to health care and other basic services, family environment and so forth. Additionally, slavery or slavery like practices lead to violation of fundamental freedoms, right to movement, access to fair trial, and subject children to inhuman and degrading treatment.[53]

82. Given the legal status of the prohibition of slavery or slavery like practices and its long lasting impact on the rights and welfare of children, the Government of Mauritania is expected to take concrete and practical steps to prevent and abolish all slavery like practices that persist in its territory. Article 15 of the African Charter provides that children should be protected from economic exploitation and preforming work that is hazardous to their development. It further spells out 4 explicit measures States ought to take to protect children from child exploitation, which includes slavery and slavery like practices as discussed above. The measures are to;

A) provide through legislation, minimum age for admission to every employment;

B) provide for appropriate regulation of hours and conditions of employment;

C) provide for appropriate penalties or other sanctions to ensure the effective enforcement of this article (article 15); and

D) promote the dissemination of information on the hazards of child labour to all sectors of the community.

1.   .lt is of course noted that the Government of Mauritania has prohibited slavery by enacting the 2007 Slavery Act and later on an Anti-Slavery Act in 2015. While the Committee appreciates this as one step ahead towards the prohibition of slavery, more effort is required to practically eliminate slavery and slavery like practices as outlined under article 15 of the Charter.

84. In this regard, the Committee finds that the adoption of legislative measures is not a sufficient effort and that the Respondent State has failed to take other necessary measures to implement all components of article 15 of the Charter to free Said and Yarg, to ensure that their slave masters are appropriately penalized, and to ensure that Said and Yarg get a proper compensation. Therefore, the Committee decides that the Respondent State is in violation of its obligations under Article 15 (1) and 15(2)(c) of the Charter by failing to protect Said and Yarg from slavery or slavery like practices and by failing to ensure effective enforcement of prohibition of slavery or slavery like practices.

Alleged violation of article 16 on protection against child abuse and torture

85. Abuse and torture are among the practices strictly prohibited in the child protection systems. The African Children’s Charter, under Article 16, stipulates that State Parties shall take measures to protect children from all forms of torture, inhumane and degrading treatment and especially physical and mental injury or abuse, neglect and maltreatment, including sexual abuse. In this regard, State parties should take specific legislative, administrative, social and educational measures to protect the child from abuse and torture. The measures taken by States must include preventive measures as well as intervention and prosecution in instances where child abuse and torture are taking place. The provision further provides that protective measures should include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have care of the child as well as other forms of prevention. The Charter also provides for identification, reporting, referral, investigation, treatment and follow-up of instances of child abuse and neglect.

55 OHCHR Abolishing Slavery and its Contemporary Forms HR/PUB/02/4 (2002) p 8.

86. The Committee notes that abuse and torture can be both physical and physiological. As stated by the UNCRC, violence against children takes various forms including, neglect, mental violence, physical violence and corporal punishment.5® In the case of International Pen and Others v Nigeria, the African Commission stated that inhumane and degrading treatment includes ‘not only actions which cause serious physical and psychological suffering but which humiliate the individual or force him to act against his will or conscience.’[54]

87. The Committee reiterates that the condition under which Said and Yarg lived for more than 11 years amounts to contemporary slavery or slave like practices as they have been placed in the El Hassine family to undertake herding and domestic chores seven days a week with no rest for the exploitation of their labour.[55] During this time they were subjected to continuous beatings and mental abuse. They were referred to as slaves as opposed to their actual names and they were not allowed to pray or read the Quran. They were treated differently than other children in the house in every aspect of their lives, including health, education, play and nutrition. The Committee considers this treatment inflicted on them is degrading.

88. The wording of the African Children’s Charter is clear in providing that States should take various measures ‘to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse...’. Furthermore, the Committee is of the view that all forms of corporal punishment should be abolished, either in the home or any other setting. Contrary to this protection, the Respondent State failed in protecting Said and Yarg from physical and metal injury and abuse that was inflicted up on them and from the degrading treatment that they were subjected to. In addition to failing to prevent such an abuse on the children, the Respondent state has also failed to intervene and stop the violation. Furthermore, the Respondent State has failed to prosecute all those involved in the abuse of the children and render adequate and timely remedies to the children. By failing to prevent, intervene in and adequately prosecute and remedy the physical and mental abuse inflicted on Said and Yarg for 11 years, the Committee concludes that the Respondent State has violated its obligation to protect under article 16 of the Charter.

Alleged violation of article 21 on protection against harmful social and cultural practices

89. Article 21 of the African Children’s Charter obliges State Parties to take appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child. State Parties are particularly obliged to eliminate customs and practices prejudicial to the health or life of the child and practices discriminatory to the child on the ground of sex or other status.

90. As cited in its decision in the Nubian case, the African Committee reiterates that according to the Committee on the Rights of the Child and the Committee on the Elimination of all forms of Discrimination Against Women, a harmful practice should, among other things, constitute a denial of the dignity and/or integrity of the individual and a violation of human rights and fundamental freedoms enshrined in the two Conventions.[56]

91. As mentioned above child labor negatively affects the welfare, growth, and development of the child. As one of the worst forms of child labor, slavery impedes the overall wellbeing of the child. It is a practice that constitutes a total denial of the dignity and worth of the child. State Parties are under an obligation to take legislative, administrative and any other measure to eliminate harmful practices affecting the welfare, dignity, normal growth and development of the child; this includes eliminating slavery or slavery like practices in all its forms. The obligation of the Respondent State, in this regard, is therefore not that of conduct but of result.

92. The treatment of Said and Yarg affected their welfare, dignity, normal growth and development; it was prejudicial to their health and it was discriminatory. The Committee notes that this is not an isolated incident in Mauritania. In its fact-finding mission in Mauritania, the Committee has observed that the practice of slavery is widespread throughout the country with certain degree of variation. Even though the Respondent State has indicated the measures taken with regards to eliminating slavery in Mauritania, it was not sufficiently implemented to eliminate the practice and prevent the victimization of Said and Yarg. The two brothers were enslaved for 11 years without any intervention by the State; their eventual escape from slavery was through their own effort. The Committee hence finds that the failure of the Respondent State to eliminate the practice of slavery and the failure to protect Said and Yarg from this harmful practice is a violation of article 21 of the Charter.

Alleged violation of article 29 on Sale trafficking and abduction

93. Under Article 29 of the Charter, State Parties are obliged to take appropriate measures to prevent the abduction, the sale of, or the trafficking of children for any purpose or in any form by any person including parent and legal guardians. State Parties are further obliged to take appropriate measures to prevent the use of children in all forms of begging.

94. The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children defines trafficking in persons as ‘the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation...’[57]

95. The Complainants in the current Communication submitted that trafficking is recognized as one form of slavery or slavery like practice, and that international human rights law standards applicable to Mauritania prohibit slavery in all its modern and traditional forms, of which trafficking is a particular example. The Complainants further argued that the provisions of article 29 of the Charter should be interpreted to include all forms of traditional and modern slavery or slavery like practices. By expanding article 29, the Complainants alleged that, it puts the Respondent state under an obligation to take appropriate measures to prevent slavery and similar practices. It can be concluded that the argument of the Complainants under this provision invokes sale, trafficking and abduction in as far as they relate to slavery and practices similar to slavery.

96. However, the Committee notes that the issue of slavery for the purpose of this case has been adequately dealt with under the provision of the Charter that prohibits child labor. Article 15 is interpreted to include worst forms of child labor, which includes slavery in all its forms. It is the Committee’s view that the Complainants failed to establish the relevance of the provision on sale, trafficking and abduction to the facts of the case. Hence, the Committee concludes that no sufficient legal and factual grounds have been established by the Complainants which put the Respondent State in violation of its obligation under article 29 of the Charter.

x. Decision of the Committee

97. For the aforementioned reasons the African Committee finds the Respondent State in violation of its obligations under article 1 (obligation of states parties), article 3 (non-discrimination), article 4 (best interests of the child), article 5(survival and development), article 11 (education) article 12 (leisure, recreation and cultural activities), article 15 (child labour), article 16 (protection against child abuse and torture) and article 21 (protection against harmful social and cultural practices).

98. The African Committee of Experts on the Rights and Welfare of the Child therefore recommends for the Government of Mauritania to:

A)  Ensure that all members of the El Hassin family are prosecuted for the enslavement of Said and Yarg and the violation of their rights to equality, survival and development, education, leisure, recreation and cultural activities, protection against child abuse and torture, and protection against child labor, and ensure that they receive sentences commensurate to the crimes committed pursuant to the laws of Mauritania;

B)  Take measures to ensure that Said and Yarg obtain all the necessary documents including birth registration certificate and identity cards; this measure should further be extended to all children who find themselves in slavery or slavery like practices;

C)  Ensure that they enjoy their right to education particularly by facilitating their enrolment in public schools within the shortest possible time;

D)  Take special measures to support Said and Yarg in their education in order to accelerate their learning and development;

E)  Provide psychosocial support to Said and Yarg in order to properly rehabilitate them from the physical and mental abuse they suffered, and reintegrate them in the society and to minimize to the maximum extent possible the negative psychological impact of their enslavement for 11 years;

F)  Ensure that all involved in the servitude of Said and Yarg are prosecuted and that the conviction of the slave masters meets at least the minimum years of imprisonment prescribed in the Slavery Act;

G) Provide Said and Yarg with adequate compensation that is commensurate with the 11 years of slavery or slavery like practice they endured and all the above-mentioned violations of their rights;

H)  Ensure the effective implementation of the 2015 anti-slavery law by ensuring the prosecution of perpetrators of slavery and slavery like practices; and other national strategies aiming at the elimination of slavery and slavery like practices;

I)   Give due regard to the issue of slavery or slavery like practices and make the elimination of the same one of its priorities in issuing polices, allocating budget, and training human resources;

J)  Undertake baseline survey to know the number children in slavery or slavery like practices and identify their situation to inform State intervention in the elimination of the practice as well as prosecution of perpetrators;

K)  Take special measures to takeout children from slavery and slavery like practices and ensure that all children in such situations receive psychosocial, educational, as well as all forms of support needed to ascertain that they enjoy their rights as enshrined in the Charter;

L)  Ensure that all the Government organs work in collaboration in issues involving slavery or slavery like practices and to this end give training to law makers, police, prosecutors, judges on the seriousness of slavery and the measure they should be taking to protect children from the scourge of modern slavery;

M)  Undertake an accelerated campaign and sensitization to create awareness on the negative impacts of slavery or slavery like practices and its prohibition under national and international law to fast-track the elimination of slavery or slavery like practices in Mauritania within the shortest possible time;

N)  Closely work with and support civil society and other stakeholders working in the eradication of slavery or slavery like practices in all its forms; and

O)  Design child friendly mechanisms for reporting of instances of any form child abuse in the domestic setting and intervention means.

As per Section XXI (1) of the Revised Communication Guidelines of the Committee, the Government of Mauritania shall report to the Committee on all measures taken to implement the decision of the Committee within 180 days from the date of receipt of the Committee’s decision.

Done at the 30th Ordinary Session held in Khartoum, Sudan on 15
December 2017

Mrs Goitseone Nanikie Nkwe

Chairperson of the African Committee of Experts
on the Rights and Welfare of the Child

 

31 Velasquez Rodriguez v Honduras (n 3 above) para 174.

37                                                           -•

As above para 55, 71, 75.

56 UNCRC General Comment 13 para 19-24.

 

[1] See African Commission on Human and Peoples' Rights, Frederick Korvah v. Liberia, Communication No. 1/88 (1988) para 6

[2] See Institute for Human Right and Development in Africa (IHRDA and other on behalf of Children of Nubian descent v. Kenya, Communication No. Com/002/2009, para 28.

[3]

See Anuak Justice Council V Ethiopia Communication no. 299/2005, para 51.

[4] See Anuak Justice Council v. Ethiopia (n 3 above) para 52.

[5]

See Anuak Justice Council v. Ethiopia (n 4 above).

[6] United Nations General Assembly, Human Rights Council, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Gulnara Shahinian: Follow-up mission to Mauritania, 27^ Session, A/HRC/27/53/Add.l, 26 August 2014, para 11.

[7] Amnesty International Report 2014/15: The State of the World's Human Rights. London: Amnesty International, 2015 p. 245. Available at: https://www.amnesty.orq/en/documents/poll0/0001/2015/en/

[8] Amnesty International (n 7 above). g

See Anuak Justice Council v. Ethiopia (n 4 above).

[10] Council of Europe/European Court of Human Right (2014) Practical Guide on Admissibility Criteria para 72.

[11] Centre for Human Right and other on behalf of Talibes v Senegal Communication No. Com/001/2012, para 38

[12] African Commission on Human and Peoples' Rights, Article 19 v Eritrea, Application No 275/2003, para 72. See also African Commission on Human and Peoples' Rights, Dr Farouk Mohamed Ibrahim v Sudan, Communication No.386/10, 19-25 February 2013.

[13]

Article 19 v Eritrea (n 11 above).

[14] See IHRDA and other on behalf of children of Nubian descent V Kenya (n 2 above) para 31.

[15] See IHRDA and other on behalf of children of Nubian descent V Kenya (n 2 above) para 32.

[16] UNCRC General Comment no 5 para 24.

[17] Zimbabwe Huma Rights NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR) 2006 para 146.

[18] Velasquenz Rodriquez v Honduras July 29, 1988, ICtHR (ser c) No 4/1988para 166.

[19] Bousroual V Algeria Comm No 1588/2007 CCPR/C/99/D/1588/2007 para 11.

[20] Social and Economic Rights Action Center (SERAC) and Another v Nigeria (2001) AHRLR (ACHPR 2001) para 57.

[21] UNHRC General Comment no 31 para 4.

[22] Velasquenz Rodriquez v Honduras July (n 3 above) para 176.

[23] Association of Victims of Post Electoral Violence and Another v Cameroon (2009) AHRLR 47 (ACHPR 2009) para 110, 111 ; De Cubber v Belgium, application 9186/80, European Court of Human Rights, judgment, 26 October 1984 para 35.

[24] Velasquenz Rodriquez v Honduras (n 3 above) 177.

[25] Zimbabwe Huma Rights NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR) 2006 para 160.

[26] Bousroual V Algeria (n 4 above) para 9.4.

[27] Law Office of Ghazi Suleiman v Sudan (2003) AHRLR (ACHPR 2003) para 40.

[28] UNHRC General Comment no 31 para 4.

[29]

Legal resources Foundation v. Zambia, Communication No. 211/98, para 67.

[30] S Manisuli General International Human Rights Law: Six Decades After the UDHR and Beyond (2010) 405.

[31]

As above.

[32] The Centre for Human Rights and La Rencontre Africaine Pour La Defense Des Droits De L’homme V Senegal, ACERWC Communication no. 003/Com/001/2012, 2015 para 35.

[33] UNCRC General Comment no 14 para 6(c).

[34] As above para 17.

[35] As above para 32.

30 Mazou v Cameroon (2001) AHRLR 8 (HRC 2001) para 8.4.

[37] UNCRC General Comment no 14 para 93.

[38] UNCRC General Comment 7 para 10.

[39] ILO Convention 182 article 3 and ILO Convention 190 article 3. According to ILO 182 all forms of slavery and practices similar to slavery are as classifies as worst forms of child labor to be eliminated without delay. Other forms of child labor in this category include the sale and trafficking of children, debt bondage and serfdom, forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict, the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances, the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs and work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

[40] ACRWC article 11(3)(a)&(e).

[41] Committee on Economic, Social and Cultural Rights, General Comment No. 13, Article 13: The Right to Education,1999, para 6.

[42] As above para 43.

[43] As above para 47.

4° UNESCO Convention Against Discrimination in Education article 1.

[45] Committee on Economic, Social and Cultural Rights, General Comment No. 13, Article 13: The Right to Education, 1999, para 46.

[46] UNCRC General Comment 17 p2.

[47] *           ।

As above.

[48] ACRWC article 15(1)(2).

[49] ILO Worst Forms of Child Labour Convention 1999 (No. 182).

[50] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery article 1(d).

[51] Yearbook of the International Law Commission 1963, vol. II, United Nations sales publication No.

63.V.2, pp. 198-199.

[52] Barcelona Traction, Light and Power Co, Ltd. (Belgium v. Spain), Judgment of 5 February 1971, I.C.J.

Reports, 1970, p. 32.

[54] International Pen and Others (on behalf of Saro Wiwa) v Nigeria (2000) para 79.

[55] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery article 1(d).

[56] Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices November 2014 para 15.

[57] Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000) art 3(a).