Ouattara JA

Author
Judgment date
Case number
ECW/CCJ/APP/ 32 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Bangra JA
Moreira-Costa JA
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Author
Judgment date
Case number
EWC/CCJ/APP/ 40 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Bangra JA
Moreira-Costa JA
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IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) HOLDEN AT ABUJA, IN NIGERIA

ON 3RD, DAY OF FEBRUARY, 2020

SUIT No: EWC/CCJ/APP/40/I7

JUDGMENT NO: ECW/CCJ/JUD/02/20

 

BETWEEN

PROF. (ENGR) JOSEPH ADELEGAN                              - APPLICANT

AND

ECOWAS BANK FOR INVESTMENT AND DEV.            - RESPONDENT

 

COMPOSTION OF THE COURT

Hon. Justice Gberi-Be Ouattara                                     - Presiding

Hon. Justice Keikura Bangura                                        - Member

Hon. Justice Januaria T. Silva Moreira COSTA                - Member

Assisted by Mr. Tony Anene-Maidoh, Esq.                    - Chief Registrar


JUDGMENT


 

Parties

The Applicant is Prof. (Engr.) Joseph Adelegan a former employee of the Respondent. The Respondent is ECOWAS Bank for Investment and Development is an institution created by the new Article 21 of the Revised Treaty of ECOWAS as amended by the Supplementary Act No. A/SA.9/01/07 of 19 January, 2007.

Subject Matter of the Proceedings

The Applicant’s claim is for the alleged non-compliance by the Respondent with provisions of its Staff Rules and Regulations in the recruitment exercise conducted to fill the vacant position of Director, Public Sector Operations of the Defendant. The Applicant claimed to have applied for the position but was wrongfully terminated by the Respondent when he protested that the said recruitment exercise was riddled with anomalies.

The Applicant’s Claim

The Applicant submits that he is a professor of Civil and Structural Engineering, in the employment of the Respondent as the Head, Environment and Sustainable Development Unit. He was appointed by way of letter dated 8th October, 2012 and was subsequently confirmed by a letter dated 1st April, 2015 as a permanent staff. That the conferment of the permanent staff status on him was on the basis of his yearly performance, professional knowledge, self-management, communication skills, creativity and innovation, interpersonal relations, team spirit and orientation on corporate culture among others. That the Applicant alleged that confirmation as permanent staff coupled with the comment of the Respondent (President) encouraging him to “continue in the path” affirms the fact that the Respondent was extremely satisfied with his performance and conduct.

The Applicant avers that while in the employment of the Respondent, he appraised and supervised projects as he was the only environmental and social safeguard expert in the employment of the Respondent in both public and private sector operations without recourse to any consultant.

That by reason of the Applicant’s academic and professional qualification and experience, he applied as an internal candidate for the vacant position of the Director of Public Sector Operation pursuant to an advertisement dated 12th May 2015 made by the Respondent. The Applicant states that to his greatest consternation, he was not shortlisted for the position even though he was allegedly over qualified for the said position, despite the fact that the Respondent’s Staff Rules and Regulations provides that priority should be given to internal candidates among applicants with equal qualifications and skills. That upon the realization he had not been shortlisted for the position, he wrote to the Respondent via a letter dated 14th July, 2016, 15th July, 2016 and 29th August, 2016; and a memo dated 4th July, 2016 respectively in protest. The Applicant claims that as a result of the said letters, the Respondent subsequently invited him for the psychometric test and thereafter he was invited for a written test and oral interview. That shortly after the recruitment exercise was conducted, the Applicant was informed by the Respondent at a panel meeting that he was not successful for the position. That this came as a shock to him considering his academic and professional qualifications as well as his experience, which far exceeds the requirement for the position.

The Applicant claims to have investigated the recruitment exercise conducted by the Respondent and discovered the following irregularities and flaws:

I.     That the Togolese Human Resource firm KAPI Consult initially hired to conduct the recruitment was abruptly disengaged and a supposed South African firm by the name MCA Training International was hired to replace KAPI Consult.

II.     That the MCA Training International was not existing as at the period of time it was hired by the Respondent to conduct the recruitment exercise.

III.     That the said MCA Training International had been struck out of the list of registered companies in South African since 16th July, 2010.

IV.     That to due diligence, conducted on MCA Training International, showed that some of its key personnel only have secondary school level qualification.

V.     That the supposed head office address of MCA Training International located at No. 7 Uizitcht, Sturke Road, Welgemoed, 7530 Cape Town is a private residence.

VI.     That the management of the Respondent during its 53rd meeting of the Board of Directors, requested one of its agenda under the recruitment exercise for a waiver of the age requirement of a 52 years old candidate for the position of Director of Public Sector Operation despite having stated in its advertisement for the position, that all external candidates should not exceed 45 years of age.

The Applicant alleged that by a letter and memoranda dated 14th April, 2017, 4th May, 2017 and 23rd May, 2017 respectively, he wrote to the Board of Directors of the Respondent protesting of the fraudulent acts and irregularities that marred the recruitment exercise. That the Respondent in response expressed its satisfaction with the way and manner the said recruitment exercise was conducted. The Applicant avers that in a bid to seek amicable redress in respect of the said recruitment exercise and injustice meted on him, he requested the Respondent to invoke a mediation mechanism for the settlement in accordance with Article 76 and 77 of its staff rules and regulations. That rather than addressing the Applicant’s complaints, the Respondent summarily and capriciously terminated his appointment without due process and without affording him any opportunity to defend himself.

That the said termination of the Applicant’s appointment is an oppressive retaliation from the management of the Respondent against him for exposing the fraudulent activities during the recruitment exercise.

That the Respondent having received the letters from his solicitors, is yet to redress his complaint and reinstate him.

The Applicant therefore claims the following reliefs:

1.  A DECLARATION that the Respondent acted arbitrarily, capriciously and in breach of the Applicant’s right to fair hearing when the Respondent terminated the Applicant’s appointment with the Respondent in May, 2017 without having given the Applicant notice of allegations of any wrong doing and the opportunity of defending himself before the Applicant’s appointment was terminated.

2.  AN ORDER of the Honorable Court setting aside the decision of the Respondent terminating the appointment of the Applicant as Head, Environment and Sustainable Development Unit of the Respondent.

3.  AN ORDER of the Honorable Court reinstating the Applicant to his position as Head, Environment and Sustainable Development Unit of the Respondent.

4.  AN ORDER of the Honorable Court directing the Respondent to pay the Applicant’s salaries, entitlements and benefits due and payable to the Applicant from May, 2017 till the day judgment is delivered in the suit and Twenty-five (25%) percent interest per annum of total sum from May, 2017 till date of the judgment.

PARTICULARS:

YEARLY EMUNERATION AND ONE TIME EMPLOYMENT BENEFITS OF THE APPLICANT

(1)      YEARLY REMUNERATION (EMPLOYMENT SALARY, ALLOWANCES AND BENEFITS)

a.  12 month(s) salaries (including 13th and 14th months’ salary) = USD 114,184

b.  Educational grant for four (4) children (USD 5000 × 4) = USD 20,000

c.  Home leave travel cost (every two years) for staff, spouse and four children (studying abroad) yearly conversion = USD 6,500 per year

d.  Paid leave (30 days year) converted to cash = USD 12,234

e.  Medical expenses for applicant, spouse and four children to be paid by the Bank up till the day judgment is delivered.

f.   Employee’s yearly contribution to the pension scheme to be paid by the Respondent up till the day judgment is delivered.

g.  Salary increment in Step every two years (yearly conversion) and average compounding = USD 5,341(currently in P5 Step 2 and due for P5 Step 3 on January 2, 2018)

TOTAL REMUNERATION PER YEAR = USD 158,259

(2)  ONE TIME EMPLOYMENT BENEFITS

UNPAID MEDICAL EXPENSES FOR ENGR (PROF) JOSEPH ADELEGAN, SPOUSE AND CHILDREN SUBMITTED TO THE BANK 1, 2017.

Outstanding and unpaid medical expenses = USD 12,054 (these submitted medical expenses was acknowledged by the Bank in their letter dated 8th June, 2017 and Ref. 256/2017/BIDC- EBID/CDRH/AS)

OUTSTANDING LEAVE DAYS FOR 2017 outstanding leave (28 days) for 2017 converted to cash = USD 11,420

TOTAL REMUNERATION PER YEAR= USD 158,259 TOTAL ONE TIME EMPLOYMENT BENFITS = USD 29,474

SUM  TOTAL  SALARIES,  ENTITLEMENTS  AND  BENEFITS USD 187,733.

5.  A DECLARATION that the Respondent’s decision not to pick or select the Applicant as the successful candidate in the recruitment exercise conducted or caused to be conducted by the Respondent in year 2016 for the position of Director, Public Sector Operations of the Defendant is oppressive, unfair and arbitrary having regard to the relevant rules and regulations of the Respondent governing the said recruitment/selection exercise.

6.  In the alternative to relief 5 above, AN ORDER of the Honorable Court setting aside the recruitment exercise conducted or caused to be conducted by the Respondent in year 2016 for the position of Director, Public Sector Operations of the Defendant on the ground that the said recruitment exercise was flawed by fundamental irregularities and fraud.

7.  The sum of One Hundred Thousand Dollars ($100,000) as the cost of this lawsuit.

8.  The sum of Ten Million Dollars ($10,000,000.00) as damages for the wrongful termination of the Plaintiff’s appointment by the Defendant.

9.  10% interest per annum of the total judgment sum until the said sum is liquidated.

AND FOR SUCH FURTHER OR OTHER ORDERS as this Honorable Court may deem fit to make in the circumstances.

The Respondent’s defense

The Respondent denies the Applicant’s narration of facts and states that the Applicant was an early candidate of EBID disciplinary committee on account of gross misconduct. That as a probationary employee he breached his duty of fidelity and confidentiality by speaking directly to a third party in unflattering terms and making derisive and negative comments concerning a decision taken by management of EBID.

The Respondent contends that due to the Applicant’s misconduct, the Respondent queried the Applicant and subsequently meted out disciplinary measures against him by extending his confirmation as permanent staff by a period of one year. The Respondent states that no fraud, irregularities and or flaws were responsible for the non-recruitment of the Applicant for the position of Director, Public Sector Operations but that it made considerable effort to make sure that the Applicant was shortlisted by KAPI Consult after he had not being initially shortlisted by KAPI.

The Respondent alleges that the shortlisting exercise conducted was not on basis of the Applicant’s numerous protest letters but on EBIDs principle of giving priority to internal candidates which was extended to all internal candidates for various positions. Respondent further averred that KAPI Consult and MCA were involved in the recruitment exercise and the conduct of the psychometric online assessment respectively and that they discharged their duties satisfactorily. That their recruitment was also in accordance with due process.

The Respondent states that the Applicant was not the only internal candidate who was unsuccessful in the exercise and that in fact all the internal candidates were unsuccessful. That when the Applicant got a glimpse that he was unsuccessful for the position, his started to consistently complain and display acts of indiscipline.

The Respondent avers that the Applicant’s appointment was terminated on grounds of his blatant indiscipline and insubordination which was incompatible with its standards, values and culture of any corporate environment such as the Respondent’s Bank. That the said termination was as a result of several acts of misconduct deserving disciplinary action which resulted in the lawful termination of the Applicant’s appointment in accordance with the Rules and Regulations governing his employment.

The Respondents list the acts of misconduct as follows:

i)        The disgraceful encounter with AMBA Immobilizer.

ii)       The Hillacondji Boarder violence in 2014 which resulted in the Respondent’s Bank being involved by mobilizing resources to intervene and save the Applicant and his family from a violent incident involving the Applicant.

iii)      A mission to Cote d’Ivoire where the Applicant proceeded to embark on leave without notice knowing how important his duty was to the Ivorian authorities.

iv)      The Applicant’s blatant indiscipline towards the management of the Respondent’s Bank which culminated in his appointment being terminated.

In view of the Respondent’s defense, it submitted that the Applicant’s action lacks merit and that he was rightfully terminated in accordance with the Rules and Regulations of the bank and therefore not entitled to the reliefs sought.

The Respondent therefore are seeking the following:

a.  An order dismissing the Applicant’s application with substantial costs.

b.  An order compelling the Applicant to return the Respondent all properties including laptop/computer unlawfully detained by the Applicant since the lawful termination of his appointment.

ISSUES FOR DETERMINATION

1.  Whether the Court has the competence to hear and determine the application.

2.  Whether the application is admissible.

3.  Whether the Applicant was unfairly dismissed by the Respondent.

ISSUE 1: Whether the Court has competence to hear and determine the application.

Competence is a jurisdictional issue that is settled by law. Generally, the Court by itself cannot assume competence to exercise jurisdiction on any matter except by means of statutory provisions conferring on it the competence to exercise jurisdiction on any issue that comes before it.

The Court is aware that amongst the several grievances contained in the application of the Applicant, there is an allegation of violation of right to fair hearing by the Respondent, failure by the Respondent to comply with the Provisions of the Staff Rules and Regulations in the recruitment exercise conducted to fill the vacant position of Director , Public Sector Operation of the Respondent’s Bank and the unfair dismissal of the Applicant without due process and in blatant contravention of the relevant provisions dealing with discipline and dismissal. The Applicant alleged that by letter and a memoranda dated 14th April 2017, 4th May 2017 and 23rd May 2017, he wrote to the Board of Directors of the Respondent protesting of the fraudulent act that marred the recruitment exercises. That the Respondent in response expressed its satisfaction with the way and manner the said recruitment exercise was conducted. The Applicant avers that in a bid to seek amicable redress in respect of the said recruitment exercise and injustice meted on him, he requested the Respondent to invoke a mediation mechanism for the settlement in accordance with Article 76 and 77 of its Staff Rules and Regulations (EBID). That rather than addressing the Applicant’s complaints, the Respondent summarily and capriciously terminated his appointment without due process and without affording him any opportunity to defend himself.

In effect the Applicant’s grievance is that his employment with the Respondent Bank was terminated following a protest letter he wrote directed to the Board of Directors without giving him the right to present his case. It is no doubt that one of the reliefs being sought by the Applicant in his application is a declaration that the Respondent acted arbitrarily, capriciously and in breach of the Respondent’s right to fair hearing. The right to be heard is a fundamental human right which is in accordance with the Principles of Natural Justice. The Applicants having alleged violation of such right invoked a human right issue and this therefore gives the Court the competence to hear the application in accordance with Article 9 (4) of the Supplementary Protocol (A/SP.1/01/05) amending the Protocol of the Court (A/P1/7/91). It provides that the Court shall have jurisdiction to determine cases of human rights violation that occur in Member States.

In addition to the above, this Court has made several decisions on competence relying on Article 9 (4) of the Supplementary Protocol and has concluded in series of their decision that mere allegation of human rights is sufficient to invoke the jurisdiction of the Court. See: BAKARRE SARR (ECW/JUD/03/11), HADIJATOU KAROU (ECW/CCJ/JUD/06/08). On the basis of the foregoing analysis this Court holds that it has the competence to hear and determine this application.

ISSUE 2: Whether the application is admissible.

On the issue of whether the application is admissible, the Court notes that the Applicant filed his application pursuant to the following provisions:

i.     Article 11 of the Protocol of the Court (A/P1/7/91)

ii.     Article 33 of the Rules of Procedure of the Court

iii.     Article 7 of the ECOWAS General Conditions on the privileges of ECOWAS Community Staff & Revised Treaty

iv.     Article 4(2), 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations.

Article 11 prescribes the mode of bringing applications before the Court and Article 33 of the Rules of Procedure provides for the form an application of this kind as referenced in Article 11 of the Protocol. Article 7 of the ECOWAS General Conditions on the privileges of ECOWAS Community Staff & Revised Treaty is self-explanatory. Article 4(2), 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations which deals privileges and immunities, separation from services and appeals for arbitration. The Court notes that with the exception of reference to Article 4 (2) 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations all the other references are not applicable to the present application. However, this does not mean that the application is not admissible because the Court notes that the Applicant has sought to rely on Article 4(2), 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations is the internal working guide that regulates the relationship between management and its employees.

In determining whether this application is admissible the Court will assess the grievances of the Applicant which falls into three categories: violation of right to fair hearing, non-adherence to internal staff rules and regulations, and unfair dismissal.

The Court notes also that in spite of the fact that the Applicant relied on the wrong provisions of the statute, the Court can nonetheless admit the application on the rational that as long as there is a claim for violation of right the application will be admissible. However, reliance on the Staff Rules and Regulations of the ECOWAS Bank for Investment and Development as contained in the application will suggest that there is a dispute between the employee and the management. As such the Court is guided by the provisions of Article 9 (1) (f) of the Supplementary Protocol (A/SP.1/01/05) amending the Protocol of the Court which reads thus:

“(1) The Court has competence to adjudicate on any dispute relating to the following:

f. the Community and its officials.

This conclusion is based on the fact that the Applicant in this case was an employee of the ECOWAS Bank of Investment and Development (hereinafter EBID) and the Respondent being an institution of ECOWAS and the grievances contained in the application justifies that there is a dispute between the employee as an official and the Bank as an institution of ECOWAS. Therefore, Article 9 (1) (f) of the Supplementary Protocol is directly applicable to this application. On the strength of the reference to Article 9 (1) (f) (supra) the Court holds that this application is admissible and accordingly declares it as admissible.

ISSUE 3: Whether the Applicant was unfairly dismissed by the Respondent.

The Court will determine whether the Applicant was unfairly dismissed by addressing the following: the law governing dismissal - Dismissal in fact, the right to be heard and non-compliance with the rules in the recruitment process.

·   T​he law governing dismissal : Dismissal in fact

The Applicant averred that he was appointed by way of letter dated 8th October, 2012 marked as Exhibit 2 and that he was later confirmed by way of letter dated as 1st April, 2015 and marked as Exhibit 3 of the Applicant’s annexure. The Respondent confirms the appointment and further affirmed that the Applicant’s appointment was governed by the Staff Rules and Regulations. However, the Respondent states that the Applicant failed to be confirmed upon completion of his probation and was confirmed a year later due to disciplinary measures taken against the Applicant, and relies on a letter dated 26th December, 2013 marked as Exhibit 7 in the Respondent’s annexure.

The fact of the relationship between the parties was clearly illustrated in the case of Ifeta v. Shell Pet. Dev. Co. Ltd (2006) 7 MJSC 121 at page 133, para. G, Mohammed JSC had this to say: "In the determination of this issue, I need to emphasize the binding-ness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are, invariably, the guide to its interpretation. On this premise, the material question is; what did the parties in the instant case agree with respect to the termination of the contract of service”.

The Court notes that the parties in this action have become embroiled in a dispute in which the Applicant submits, inter alia, a prayer that the Court makes “A Declaration that the Respondent acted arbitrarily, capriciously and in breach of the Applicant’s right to fair hearing when the Respondent terminated the Applicant’s appointment with the Respondent in May, 2017 without having given the Applicant notice of allegations of any wrong doing and the opportunity of defending himself before the Applicant’s appointment was terminated.” The Court recalls that the employment of the Applicant was governed by the Staff Rules and Regulations (EBID) therefore, should any dispute arise between the parties, they will have recourse to the same. The said Staff Rules and Regulations (EBID) has provisions governing dispute, discipline, and dismissal, the parties having agreed that this is the prevailing law, they are therefore bound by its application.

The ECOWAS Bank for Investment and Development Staff Rules and Regulations in Article 1.5 defines “employee/Staff member” as any person recruited by the Bank under a fixed-term contract (FTC) or an open-ended contract (OEC) or a temporary appointment. Having concluded, from the Letter of Appointment and Confirmation (supra) and the subsequent corroboration by the Respondent that the Applicant was a staff member and the parties confirming that their relationship is bound by the Staff Rules and Regulations (EBID), the Court will set-forth the provisions governing dismissal.

The Court recalls Article 10 of the Staff Rules which states:

1.  A staff member who infringes the standards of conduct stipulated in the Staff Rules and Regulations or who infringes generally accepted conduct expose themselves to the disciplinary measures stipulated in the Staff Regulations. Depending on the seriousness of the offence, the disciplinary measures taken by the Institution in each particular case may range from a warning to a suspension with or without salary, or with reduced salary, to demotion, or dismissal as provided for in Article 9 of the Staff Rules. A Staff member may also be suspended with pay, pending the investigation of charges laid against them and pending a decision on their case.

2.  Any disciplinary measure taken against a staff member shall be notified to the latter in writing.

Further, Article 9 of the Staff Rules and Regulations (EBID) provides that a staff member can be terminated for unsatisfactory performance or misconduct. Notwithstanding the aforementioned provisions, Article 11 of the Staff Rules and Regulations (EBID) states that a staff member should be heard i.e. they possess the right of appeal. The Court also notes that Article 63 (1) of the Staff Rules and Regulations (EBID) defines dismissal as “separation from service at the initiative of the Bank. Dismissal shall be decided by the President.”

The Applicant avers that he was unfairly dismissed by the Respondent by way of letter dated 10th May, 2017 which is marked and Exhibited as 16 of the Applicant’s annexure. The authenticity of the letter is not in dispute and the Respondent, in terminating the Applicant, relied on the following provisions of the Staff Rules and Regulations; Article 63 (3) (h), Article 72 (2) (d) and Article 72 (4). The Court is inclined to set out the aforementioned provisions for clarity. Article 63 (3) (h) provides that: “A staff member’s appointment may be terminated without notice…for any serious offence as defined in Article 72 (2) and (4) of the Staff Regulations.” Article 72 (2) (d) states that: “The following are offences which when committed by a staff member shall be punishable by the sanctions set forth in Article 75 paragraph 2 of the Staff Regulations.” Further, Article 72 (4) provides that:

a)  The gravity of the offence committed shall be assessed in relation to the circumstances (aggravating or extenuating) surrounding the events, the personality of the officer concerned and the latter’s responsibilities, the repetitive nature of the offence, the past conduct of the officer, the impact of the consequences of the offence on the integrity, reputation or interests of the Bank, the intentional or non- intentional nature of the offence or the negligence giving rise to it.

b)  Any offence may lead to a disciplinary measure which shall be in proportion to its seriousness.

Having considered the relevant provisions applicable to dismissal, the Court will now proceed to determine whether the said dismissal was fair. In doing, so the Court will examine the facts of the Applicants alleged misconduct as outlined in the Termination Letter (supra) by the Respondent are listed thus:

·   That the Applicant had an extended probationary period because he misconducted himself and spoke directly to a third party. That he made comments about decision taken by management which were abusive to wit: “it is annoying to hear this”, “it is disappointing and time wasting;”

·   That he was queried for his conduct and his response was unsatisfactory to his superior who submitted the issue for disciplinary measure, the outcome of which was a delay in his confirmation;

·   That his landlord made certain complaints which resulted in him being asked to vacate the premises;

·   That whilst travelling between Nigeria and Togo with his family he had been detained the border police for misconduct;

·   That the Applicant had abandoned a mission unceremoniously which resulted in Management writing him a letter of advice to refrain from unprofessional and disrespectful conduct;

·   That he had sent a letter complaining of irregularities in the recruitment exercise and that he had attacked Management’s credibility in the said letter by using unprintable words like “manipulation” and “change of scores in favor of Management.”

The conclusion made by the Respondent from the alleged infractions cited was that the Applicant was a very intolerable and ungovernable staff. The Court notes that the above outlined misconducts of the Applicant have been dealt with by management and disciplinary action have been taken against the Applicant and therefore it cannot be relied on by management as justification for terminating the employment of the Applicant because the issues have been spent,

In determining whether the actions of the Respondent was lawful the Court will again refer to the Staff Rules and Regulations (EBID), which states that the Respondent can separate any staff member on its own initiative pursuant to Article 9 (3) of the Staff Rules and Regulations (EBID) and that the said act will in itself be a disciplinary measure pursuant to Article 9 of the of the Staff Rules and Regulations (EBID). However, the exercise of this power dictates that it should be done fairly. Accordingly, the of the Staff Rules and Regulations (EBID) provides that the Bank sets up an appeal mechanism so that the aggrieved staff member will be given the opportunity to present his case or have recourse to defend his action without fear of reprisal pursuant to Article 11. The intent of the latter Article is to guarantee the right to fair hearing, and the compliance with due process in such a circumstance. Due process in the instant case is the right to be heard, to be fairly treated, efficiently and effectively by the management in the administration of justice especially when dealing with issues of misconducts that will give rise to disciplinary actions. The rights to due process therefore places limitations on the exercise of disciplinary powers, in order to guarantee fundamental fairness and justice. The Court in the case of Dr. Rose Mbatomon Ako V. West African Monetary Agency & ORS. (ECW/CCJ/JUD/01/13), noted that “the termination of appointment under regulations of any institution of ECOWAS including West Africa Monetary Agency is under statutory obligation to follow for terminating employment of staff.

The Respondent alleges misconducts by the Applicant for which he was queried during the period of his probation yet, the Court notes that he was duly confirmed and made a permanent staff. The Court is inclined to view this as an indication of settlement on the issue as the Respondent had the option pursuant to Article 21 (4) of the Staff Regulations to terminate the Applicant’s appointment at this stage. Further, the Court notes that the Respondent’s aim was to canvas a pattern of behavior that will justify the act of dismissal of the Applicant. Whilst the acts listed have been explicit, the Respondent failed to keep in view the intention of the drafters of the Staff Rules and Regulations (EBID), which is to safeguard due process at all times.

In the case of Edoh Kokou V. ECOWAS COMMISSION (2010) ECW/CCJ/JUD/03/10 2010 pg. 38 para 54, this Court noted that Article 59(d) and 69(6) of the ECOWAS Staff Regulations makes provision for the guarantee of fair proceedings to staff members of the Institution, in such manner as to protect them against arbitrariness, particularly in matters concerning dismissal. Hence, any dismissal effected without the observance of this guarantee, violates the provisions of Article 59(d) and is thereby illegal, null and void.

The Court therefore finds that dismissal based on the Staff Rules and Regulations (EBID) was not complied with i.e. Article 10, 9 (3) and 11 and therefore, the act of terminating the employment of the Applicant is of no legal effects and devoid of safeguard to due process and the Court so hold.

·   The ri​ght to be heard

At this point the Court notes that the Staff Rules and Regulations deems dismissal, among others, as a disciplinary measure for serious offences pursuant to Article 10 (1) and that Article 11 makes room for any staff member in this predicament to be heard. Article 11 (2) specifically states that a staff member can appeal to the ECOWAS Court for measures taken by the Respondent where there is an allegation of non-compliance with service conditions or question a disciplinary measure.

The Applicant, by way of memo dated 30th August, 2016 requested for a mediator in accordance with Article 77 of the Staff Regulations. The Respondent’s Staff Rules and Regulations specifically Article 76 states that one of the principles guiding an appeal is access to mediation at any moment. The Court notes that the Respondent failed to comply with its own Staff Regulations in its response dated 2nd September, 2016. The same read thus:

“Referring to Article 77 of the Staff Rules and Regulations, senior management in consultation with staff representatives designated a staff member to mediate in the conflict resolutions. This designation could not be effected since the adoption of the Staff Rules and Regulations, the true reflections for this purpose have in particular not been able to succeed up to this moment. Your memorandum has the advantage to challenge us on the question to any arrangements to be taken.”

The Court finds this response from the Respondent is ambiguous and that it failed to comply with the provisions of the Staff Rules and Regulations at the time management of the Bank terminated the appointment of the Applicant. The Applicant submitted that his solicitors wrote a letter (Exhibit 18) to the Respondent stating that they had failed to accord him the benefits of Article 78 of the Staff Rules and Regulations and sought several reliefs therefrom. The Respondent in their argument maintained that the President had absolute powers of dismissal on grounds of misconduct and gross insubordination.

The Court notes the words and phrases of the Applicant which the Respondent submitted as abusive language such as: “manipulation,” “it is annoying to hear this, “it is disappointing and time wasting” etc. were in the ordinary sense of the words and phrases and the ordinary meaning attach to them not abusive to justify the reprisal that follows. Having due regard of Article 11 of the of the Staff Rules and Regulations (EBID) which requires that a staff member be heard without the fear of reprisals and given the ordinary meaning of the words and phrases submitted as abusive, the Court deems the act of termination on said grounds to be excessive and tantamount to the act of reprisal in itself. Further, that the Respondent failed to allow the Applicant to defend himself even after dismissal to which he had a right pursuant to the Staff Rules and Regulations. The general objective of the ECOWAS Community is that staff members of ECOWAS should be able to work in an environment devoid unfairness by affording them the right to due process. The Respondent’s failure to hear the Applicant’s appeal depicts a unilateral exercise of discretionary powers by the Bank without recourse to the laid down procedure which was arbitrary and not in the best interest of the institution in particular and the ECOWAS Community in general and the Court so holds.

·   No​n-compliance with the rules in the recruitment process

The Applicant’s claim is that the Respondent failed to comply with the provisions of its Staff Rules and Regulations in the recruitment exercise conducted to fill the position of Director, Public Sector Operations in the Respondent’s institution. Coupled with this is the subsequent termination of the appointment of the Applicant for protesting against the said non- compliance. He further submits that Article 6 of the Respondent’s Staff Rules and Articles 13 and 14 of the Regulations provides for the conditions for the recruitment of professional staff. Particularly sub paragraph 2 of Article 13 of its Staff Regulations which states that priority should be given in descending order to applicants with equal qualifications and skill in the following order:

a.  staff serving at EBID;

b.  Nationals of Member States which are least represented among the staff at the Bank;

c.  Staff of other ECOWAS institutions;

d.  Nationals of other Member States.

The Applicant supports his claim of possessing the necessary qualification and skill with Exhibit 1 which is labeled as “A copy of the Plaintiff’s Curriculum Vitae.” He also submits Exhibits 2 and 3 respectively, which are letters of Appointment dated 8th October, 2012 and Confirmation of Appointment dated 1st April, 2015 as evidence of being a staff of the Respondent at the time of the recruitment for the post of Director, Public Sector Operations. The Applicant submitted his nationality via his curriculum vitae as Nigerian, thereby making him a citizen of the Community: See Exhibit 1. The Respondent admits that the Applicant was duly appointed and subsequently confirmed after a prolonged probationary period.

In interpreting Article 13 aforementioned, the Court notes that whilst the requirement for priority is in descending order favoring candidates within the institution, it does not mandate exclusive recruitment of said candidates. Black’s Law Dictionary, Sixth Edition at page 1194, defines priority inter alia as “When two persons have similar interests in respect of the same subject-matter, but one is entitled to exercise his right to the exclusion of the other, he is said to have priority.” The Court is mindful that the entitlement comes on the premise of equal qualification and skill; Article 13 (2) therefore serves as a mechanism of distinction in the event of equal qualification and not as a tool for discrimination of candidates. Article 13 of the Regulations is to be read at all times in tandem with Article 6 of the Staff Rules which states that whilst priority is given to the highly qualified staff, geographical distribution, physical fitness for the post, and manner of appointment are also considerations of merit. Further, the Court deems Article 14 as the personification of non-discrimination in the recruitment of professional staff. However, Article 13 (3) gives the internal staff member a priority by being exempted from the age limitation set out in recruitment.

The evidence submitted by the Applicant is that a vacancy was advertised by the Respondent, one for which he applied; the Court notes Exhibit 5 attached in support of this. The Applicant also submitted Exhibit 6 which is a letter to the President of the institution protesting for not being shortlisted in the recruitment exercise. The Court also notes that whilst the Respondent alleges that the Applicant vehemently attacked the credibility of management in this letter the content of the letter denotes an enquiry as to why the Applicant was not short listed and recounts the qualifications of the latter, whilst imploring for an investigation into what he called an abnormality. Further in Exhibit 13, put forward by the Respondent, a memo dated 29th August, 2016 by the Applicant the crux of it is a plea for review of the process and a reiteration of qualification and skill for the post, whilst stating rumors about the reasons for the alleged abnormality. The Court is seised with evidence of the qualification and skill of the Applicant and the fact that he was a staff of the institution. The fact that the Applicant tried to notify the management as to the necessity of applying Article 14 of the ECOWAS Bank for Investment and Development Staff Rules and Regulations is not lost on the Court.

Given the preponderance of evidence, the Court notes that the Respondent did not directly rebut the evidence adduced but submitted Exhibits 15 as their rebuttal. Exhibit 15 is a letter dated 6th June, 2017 from KAPI CONSULT, agents for the recruitment process. This piece of evidence adduced was a claim of the score of the Applicant in the initial stage of the recruitment leading to his disqualification. This was supported during oral testimony to wit:

IGWILO: Thank you My Lords. Can you tell My Lords the outcome of the assessment? Thank you Sir.

PW1: My Lord, in the first phase of our mission with EBID, as I explained, we produced a report and on the basis of the assessment of the candidates that we have received, we suggested the candidates that has passed for the next stage. And we were surprised to see two years or three years after, a letter from the bank informing us that one of the candidates have suggested that there has been fraud in the mission which we have completed as well as the premature suspension of our contract. And we sent a letter to the bank that our contract had never been terminated prematurely because we carried out our duty to the last and we submitted our report. But with regard to the candidate that has complained in this letter, making reference to our report, we have given the result of what this candidate scored and it would not be allowed at our level to qualify him because all the candidates scored thirty, and of course to be admissible you need to have twenty five over thirty but the candidate had (23.5). Therefore, he wasn’t qualified, he was not admitted and we reported to the bank in that manner by giving them a new copy of our report. And reported to the bank that it is the decision of the bank to admit only the internal candidates, those that were already employees of the bank. It is the bank that allowed them to continue the process even if they haven’t got the average in the pre-qualification and that is what we have summarized in the letter which we have sent to the bank with regards to the allegations made.

Therefore, in the instance of rebutting the intention of Article 13 (2) of the Staff Rules, especially given the evidence of qualification that the Applicant adduced, the Respondent led evidence through the consultant who disclosed that the Applicant did not obtain a pass mark during the course of interview and therefore was not qualified for the job. The Respondent’s witnesses who were the consultants that were engaged for the recruitment process and who actually conducted the interview for the recruitment gave evidence before the court that the applicant did not obtain pass mark required of him to be recommended for the job. As such, the burden of proof now shifted to the Applicant to show to the Court by way of proof of evidence that he scored the highest mark in the interview. A burden that the Applicant failed to sufficiently discharge. Since the burden of proof shifted to the Applicant it remain his duty to discharge this burden of proof in accordance with the principle that he who alleges must proof the truthfulness of his allegation. In the case of FEMI FALANA & ANOR V. REPUBLIC OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12, this Court held that “as always, that the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the court to believe the statement of the claim”. On this note, the Applicant did not sufficiently discharge the burden of proof that shifted on him when the Respondent witnesses led evidence before this Court that he did not obtain any pass mark that will warrant him to be recommended for the job and therefore not qualified for the job.

In determining whether the process of recruitment of the Respondent did not comply with the rules as submitted by the Applicant, the Court will analyze the evidence in support of the claim. The Applicant submits that his letter of protest dated 4th July, 2016 seeking for investigation of the process, shows that at some point the process became marred with irregularity. In response to the Applicant’s Counsel’s question the Respondent’s witness, KAPI CONSULT who had submitted a letter stating that the Applicant scored 23.5 out of a score of 30, testified to wit:

ADEDEJI: That’s alright. Will you be surprised to be aware today that the Defendant participated in subsequent interviews? Will you be surprised? Will it surprise you?

PW1:  In the screening interview process I was not surprised because I was informed by the bank that after our shortlisting, they have decided that all the internal candidates, that’s people that are already working in the bank and that are candidates that have not passed the shortlisting stage, the bank decided on the own that all those that have about twenty five will be retained for the next stage. Therefore, I know that some candidates will redo that. (Bold for emphasis)

The Respondent submits Exhibit 17, a letter dated 28th April, 2017 as its rebuttal to the claims of irregularity alleged by the Applicant. In the letter, the Respondent reminded the Applicant that the same process which he condemns as being fraught with irregularity was the one used in his initial recruitment. In a twist, the Respondent’s submits the Applicant’s letter dated 8th May, 2017 and marked as Exhibit 18 which ironically maintains the claim of the Applicant that the process was illegal but fails to rebut the evidence in the Respondent’s Exhibit 17 which is the Letter reminding the Applicant that the process was fair because it was the same one used to employ him in the first instance. The issue before the Court is non- compliance with the Staff Rules and Regulations of the Respondent pursuant to recruitment of the position for Director, Public Sector Operations not a prior process. The Court notes also that the said Staff Rules and Regulations provides that a staff member can question the conditions of service if they feel that it goes contrary to the law.

Therefore, as to whether the Applicant submitted evidence in support of his claim of non-compliance with procedure by the Respondent in the recruitment process, the Court finds that he did not sufficiently discharge the burden of proof required of him. In adducing evidence of qualification and skill and being a member of staff pursuant to Article 13 (2) of the Staff Regulations, the Court further finds that the Applicant partially discharged his burden of proof. The Applicant having failed to submit evidence in support of his scores been the highest of all the scores of the other candidates in the interview process for recruitment and also having failed to adduce evidence of superior qualification and skill of other candidates that were so far selected, failed to sufficiently discharge his burden of proof in accordance with standard of proof required of him. In view of this analysis, the Court notes that whilst the Respondent had denied the allegation of non-compliance with the rules during the recruitment process, the Applicant did not adduce sufficient evidence to either rebut the evidence led by the Respondent nor did he do so during cross-examination to support this claim as alleged. The Applicant has therefore failed to discharge the burden of proof required of him to support the claim the allegation of non- compliance by the Respondent with the rules in the recruitment exercise and the Court so holds.

DE​CISION

For the reasons stated above, the Community Court of Justice, sitting in public after hearing the parties, and their submissions duly considered in the light of the provisions of the ECOWAS Bank for Investment and Development’s Staff Rules and Regulations and the Supplementary Protocol of the Court, hereby declares as follows:

1.  That the Court declares itself competent and the application is admissible.

2.  The Respondent acted arbitrarily and unfairly in terminating the Applicant’s appointment in May 2017 without affording him the opportunity of defending himself, thereby making the act illegal.

3.  That the claim by the Applicant with respect to the Respondent’s act of excluding the Applicant in the selection process contrary to Article 13 (2) & (3) of the ECOWAS Bank for Investment and Development’s Staff Rules and Regulations cannot be sustained and therefore dismissed.

In consequence of which the Court orders the Respondent to pay the Applicant as follows:

1.  That the Respondent pays Seventy Five Thousand United State Dollars ($75,000) as damages for unfair termination.

2.  The Court dismisses all other claims brought by the Applicant against the respondent in this application.

3.  Orders the Applicant to return to the Respondent all properties in his possession that belong to the Respondent and was giving to him upon his employment with the Respondent Bank.

4.  Orders the Respondent to pay to the Applicant the costs of this action in the sum of two million Nigerian Naira (2,000,000.00) Naira.

5.  The Court order either party to comply fully with the terms of this judgement within a time frame of one (1) month from the date of this order.

THIS ​DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 3rd February, 2020.

Hon. Justice Gberi-Be OUATTARA, Presiding

Hon. Justice Keikura BANGURA, Rapporteur

Hon. Justice Januaria T. Silva Moreira Costa, Member

Mr. Tony Anene MAIDOH, Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 44 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Moreira-Costa JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, NIGERIA

ON FRIDAY, THE 11TH DAY OF OCTOBER 2019 SUIT NO: ECW/CCJ/APP/44/2016

JUDGMENT NO: ECW/CCJ/JUD/29/19

BETWEEN:

PRIVATE BARNABAS ELI                                                       APPLICANT

AND

THE FEDERAL REPUBLIC OF NIGERIA                                    RESPONDENT


COMPOSITION OF THE COURT


Hon Justice Gberi-Be OUATTARA                                    Presiding Judge

Hon. Justice Dupe ATOKI                                                 Judge Rapporteur

Hon Justice Januaria COSTA                                             Member

 

Assisted by:

Tony ANENE-MAIDOH                                                      Chief Registrar

 


REPRESENTATION TO PARTIES


Sola Egbeyinka, Esq. LLM                                                  - For Applicant

The Federal Government of Nigeria was not represented.


JUDGMENT


This is the judgment of the Court, which was rendered in default in open Court


PARTIES


1.  Private Barnabas Eli (hereinafter referred to as “the Applicant) is a citizen of the Federal Republic of Nigeria by birth and is therefore a community citizen of the Economic Community of West African States (ECOWAS).

2.  The Application was filed against the Federal Republic of Nigeria (hereinafter referred to as “the Respondent State”), a member State of the ECOWAS and signatory to the ECOWAS Treaty.


SUMMAR​Y OF FACTS


3.  The Applicant avers that he was recruited into the Nigerian Army, a military institution of the Respondent State on 14 August 2009. Subsequently, he was commissioned as a soldier of the Nigerian Army, following a successful recruitment exercise, on 14 January 2010 and issued with Army Number 09NA/64/4667.

4.  The Applicant states that after he was commissioned as a soldier, he was drafted to 1 Battalion of the Nigerian Army. He states that sometime in January 2011, he was detailed to participate in a National Assignment known as Special Task Force (STF), Operation Save Haven in Jos Plateau State and he resumed at the STF headquarters in Jos. He states that while he was on the said national assignment, he was posted to Kassa checkpoint sector 7.

5.  The Applicant further states that on 6 April 2012, while on duty at the Kassa checkpoint, he suddenly developed a stomach upset, which became uncontrollable. He then went to the nearest chemist to get medication. He states that upon his return, he discovered that unknown persons had burgled his residence and a rifle allocated to him, belonging to the Nigerian Army was stolen.

6.  He then lodged a complaint with his after which he was led to the Barkin Ladi Police Station where was detained. He was later moved to the 3 Division of the Nigerian Army in Jos, which had jurisdiction over the matter. On 9 December 2013, he was arraigned before a Military Court Martial and sentenced to a term of two years imprisonment.

7.  The Applicant alleges that he was first detained at the Provost Group Guardroom in Jos and thereafter transferred to Jos Main Prison where he served the remaining part of his sentence. He states that on 8 December 2015, he was released from prison after having served the two-year prison term.

8.  The Applicant alleges that the Confirming Authority of the Nigerian Army till date has not confirmed the sentence of a term of two years passed on him by the Military Court Martial, as provided for under Section 148 of the Armed Forces Act.

9.  The Applicant further states that since his release from prison, he has not been reinstated into the Nigerian Army, despite concerted efforts and letters through his Counsel to the Nigerian Army requesting his reinstatement. The Applicant alleges that the GOC only responded to one of the letters, dated 27 August 2012, via a letter dated 4 September 2014, wherein he declined to accede to the Applicant’s formal request for a release on the grounds that the sentence of the Applicant was still running. The last letter by his Counsel, dated 24 March 2016, was written to the Chief of Army Staff, wherein the Counsel requested the Nigerian Army to review the case of the Applicant with a view to readmitting him into the Nigerian Army and that all arrears of salaries and other entitlements should be paid to him. The Applicant alleges that Chief of Army Staff did not respond to the said letter neither was action taken in respect of the requests.

10. The Applicant states that following his irregular and unlawful dismissal from the Nigerian Army, he has become an idle young man residing at Bandawa Lugere Lamurde Local Government Area of Adamawa State with no reasonable and feasible means of sustenance.

Alleged Violations

11.  The Applicant alleges the following violations of his rights:

i.     That while in the custody of the Respondent State, he was physically, psychologically, mentally and emotionally traumatized, in violation of Article 5 of the African Charter on Human and Peoples’ Rights (the Charter).

ii.     That the Respondent State failed to substantiate the false and baseless allegation of missing rifle made against him before the General Court Martial till date.

iii.     That the Respondent State failed and willfully refused to confirm the spurious findings of the General Court Martial till date.

iv.     That the Respondent State violated the following fundamental human rights under Articles 1, 2, 3, 4, 5, 6, 7 and 15 of the Charter; Articles 1, 2, 4, 5,6,7,9 and 23 of the Universal Declaration of Human Rights (UDHR); Articles 5 and 6 of the International Covenant on Economic Social and Cultural Rights; Principles 1, 5, 6, 8,32, 35, 36, 37 and 38 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

RELIEF​S SOUGHT BY THE APPLICANT.

12. The Applicant prays the Court to order the following reliefs:

a.  Declaration that the arrest and subsequent detention of the Applicant at the Barkin Ladi Station in Plateau State on 7 April 2012, at the instance of the Respondent State without being duly informed of the nature and reason for his arrest is illegal, unlawful, null and void as same is contrary to the provisions of Article 7 of the African Charter on Human and Peoples’ Rights, Principles 10 and 12 of the Body of Principles for the Protection of all Persons under any form of Detention or imprisonment, Section 35 (3) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration Act) As Amended.

b.  A Declaration that the continuous detention of the Applicant at the Special Task Force Guard Room in Jos, Plateau State from 8 April 2012 to November 2013 without being charged before any Court of Competent Jurisdiction in Nigeria for a written offence, is contrary to the provision of Section 35 (4), (5), (6) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) Third Alteration Act, Principle 11 of the Body of Principle for the Protection of all Persons under Any Form of Detention or Imprisonment and Principle 36 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment.

c.  A Declaration that the arraignment of the Applicant before the General Court Martial on 4 December 2013 and the subsequent sentence of a term of two years imprisonment passed on the Applicant thereafter on 9 December 2013 without the confirmation of the designated Nigerian Army Authority is illegal, ultra vires, null and void, as same contravenes the provisions of Article 6 of the African Charter on Human and People Rights, Principle 2 of the Body of Principles for the Protection of all Persons under Any form of Detention or Imprisonment, Principles 3, 4, 9 and 39 of the Body of Principles of the Protection of All Persons under any form of Detention or imprisonment.

d.  An Order of this Honourable Court compelling the Respondent State, its agents, assigns, privies, servants and by whatsoever name called to pay over to the Applicant, the sum of N 10 000, 000.00 (Ten Million Naira) only as general damages for the psychological, physical, mental, inhuman and degrading treatment the Applicant was subjected to following his illegal arrest and subsequent detention at various military formations and Police cell at the instance of the Respondent State.

e.  An Order of this Honourable Court compelling the Respondent State, its agents, assigns, privies, servants and by whatsoever name called to immediately reinstate the Applicant into the Nigerian Army as a soldier on the rank his colleagues with whom he was commissioned into the Nigerian Army as soldiers on the same date are presently occupying.

f.   An Order of this Honourable Court compelling the Respondent State, its agents, assigns, privies, servants and by whatsoever name called to pay over to the Applicant, his monthly salaries from the month of March 2015 in the sum of N45, 000.00 (Forty Five Thousand Naira) only, as operation allowance being a Soldier that participated in the Special Task Force Federal Government National Assignment from the month of April 2015 to the date the Judgment of this Honourable Court is enforced.

g.  An Order of this Honourable Court by way of a perpetual injunction restraining the Respondent State, its agents, assigns, privies and by whatsoever name called, from intimidating, harassing, arresting or incarcerating the Applicant in respect of this suit as presently constituted.

h.  And for such or further orders as this Honourable Court may deem fit and proper to make in the circumstance.

APPLIC​ATION FOR A DEFAULT JUDGMENT

13. The Respondent State did not file a Defence to the Application. Consequently, by Motion on Notice dated 10 October 2018, the Applicant prayed the Court to enter a default judgment for the Applicant against the Respondent State, for the failure of the latter to file a Defence to the Application and prays the Court to grant the following:

i.     An Order entering a default judgment in this suit in favour of the Applicant, against the Respondent State for failure to file a defence to the suit;

ii.     An Order deeming that a default judgment has been entered in favour of the Applicant in this suit;

iii.     And for such order or further orders as this Court may deem fit and proper to make in this circumstance.”

14. The grounds adduced by the Applicant in support of the prayers are as follows:

i.     That the Applicant filed the originating process in this suit on 14 December 2016 at the Registry of the Court;

ii.     That the Respondent State was duly served with the Applicant’s originating process by the Registry of the Court;

iii.     That the time stipulated by the Rules of the Court for the Respondent State to file a Defence has since elapsed;

iv.     That it is almost two years that the Respondent State received the originating process.

ISSUES FOR DETERMINATION

The court has formulated the following issues for determination

i.     Whether the Application for a default judgment satisfies the requirements of Article 90 (4) of the Rules of the Community Court of Justice ECOWAS (hereinafter referred to as “the Rules”).

ii.     Whether the sentence of the Applicant to two years imprisonment following his conviction by the military court martial without the required confirmation by the appropriate authority as provided in Section 148 of the Armed Forces Act is unlawful and therefore void and contrary to section 6 of the African Charter.

iii.     Whether the allegation of violation of other rights of the Applicant as claimed has been proved.

iv.     Whether in the light of the facts and evidence adduced, the Applicant is entitled to the reliefs sought.


A​NALYSIS OF THE COURT


ISSUE​ NO 1

Whether the Application for a default judgment satisfies the requirements of Article 90 (4) of the Rules of the Community Court of Justice ECOWAS.

15. The initiating application in the present case was filed at the Registry of the Court on the 14th of December 2016. On the 16th of December 2016, the Defendant was duly served with the initiating application. Under the Rules of Procedure of the Court, the Defendant is obliged to lodge its defence or enter appearance within one month of service on him of the initiating application. The Defendant has however failed, refused and or neglected to put up a defence.

16. In compliance with Article 90 of the Rules, the Plaintiff on the 18th of October, 2019 filed at the Registry of the Court its application for default judgment. Again, the Defendant though duly served with the application on the 24th October 2018 failed to put up a response.

17. In the absence of compliance by the Defendant with the procedure, the Court is entitled to reach a default decision. In so doing, the Court will be guided by the provisions of the Rules to determine whether or not the case of the Plaintiff meets the criteria for judgment to be entered in default.

18. Article 35 of the Rules provides that: Within one month after service on him of the Application, the defendant shall lodge a defence…”

19. Article 90 (1) of the Rules provides: “If a defendant on whom an application initiating proceedings has been duly served fails to lodge a defence to the application in the proper form within the time prescribed, the applicant may apply for judgment in default.”

20. Article 90 (4) further provides that: “Before giving judgment by default, the Court shall, after considering the circumstances of case, consider: Whether the initiating application initiating the proceedings is admissible; whether the appropriate formalities have been complied with; and whether the application appears well founded”.

21. In Chude Mba v The Republic of Ghana, Judgment N°ECW/CCJ/JUD/10/13, the Court spelt out conditions to be satisfied for the Court to grant an application for default judgment in the following words:

“Pu​rsuant to the provisions of Article 90(4), this Court in deciding whether or not to grant the application for default judgment has to consider the issue of admissibility of the action, the fulfilment of the procedural requirements as well as the sufficiency of facts adduced by the applicant to warrant the granting of the default judgment”.

22. In the same vein, in Mohammed El Tayibbah v. Republic of Sierra Leone, ECW/CCJ/JUD/ 11/15 the Court found that in determining an application for default judgment, it must consider issues of competence, admissibility and proof before determining the case on its merits.

23. The Court will now analyse the facts of the case to determine compliance with these requirement.

On​ admissibility of the Application

24. In determining this requirement, the court must establish that the subject matter is within the competence of the court, that the parties can access the court and that they have the requisite standing.

i.  Jurisdiction

25. Jurisdiction is the authority the Court has to decide matters litigated before it. It serves as the lifeline and the only channel that rationalizes any adjudication. Thus where a Court has no jurisdiction, its proceedings however well conducted remain a nullity. Article 9 of the 2005 Supplementary Protocol of the Court stipulates the jurisdiction of the Court with Article 9 (4) of the said 2005 Protocol being the most relevant and it provides:

“The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.”

26. This Court has in its flourishing jurisprudence held that the mere allegation that there has been a violation of human rights in the territory of a member state is sufficient to justify its jurisdiction on the dispute, surely without any prejudice to the substance and merits of the complaint which has to be determined only after the parties have been given the opportunity to present their case, with full guarantees of fair trial. See SERAP v. FRN & 4 Others ECW/CCJ/JUD/16/14.

27. Also in Kareem Meissa Wade v. Republic Of Senegal, ECW/CCJ/JUD/19/13, at pg. 259 Para. 95 (3), this Court held that: “Simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.” See also Bakare Sarre v Mali (2011) CCJELR pg. 57 and Dr. George S. Boley v The Republic Of Liberia & 3 Ors. ECW/CCJ/JUD/24/19.

28. The claim of the Applicant is premised on a plethora of allegation of violation of his rights as listed in paragraph 13 iv supra. In line with the above jurisprudence of the Court vis-à-vis the facts of the present application, it is our view, that the Court has the requisite competence to determine the application submitted by the Plaintiff same been premised on allegation of human rights contained in his initiating documents.

ii. Access to court

29. In determining persons who can access the Court, Article 10 (d) grants access to:

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i. Not be anonymous; nor

ii.  Be made whilst the same matter has been instituted before another International Court for adjudication.

30. The application is obviously not anonymous and the Court has no record that the same matter has been instituted before another International Court for adjudication

31. In light of these considerations, the Court finds that the Application has met the requirements for admissibility and so declares.

On​ whether the application has met the appropriate formalities.

32. Article 35 of the Rules provide that “Within one month after service on him of the application, the defendant shall lodge a defense…”

33. The Court notes that in the settlement of a dispute before any domestic or international court, there are certain formalities that must be complied with at the commencement of a suit. One of such requires the initiating party to serve all processes on the party against whom such a suit is instituted. Article 34 of the Rules, provides that “an application shall be served on the defendant”. The purpose of service of a process is to give appropriate notice to the other party and adequate time for response to the allegations. It also enables the judicial body to assert its jurisdiction over the case. In this vein the Court in the case of Chude Mba supra stated that,

“​the first formality that must be observed throughout the process has to do with the adversary principle which aims at notifying the defendant that an application has been filed against him/her at the court and offering him/her the opportunity to defend”

34. In the instant case, the initiating application was filed at the Registry of the Court on the 14th of December 2016. On the 16th of December 2016, the Defendant was duly served with the initiating application. Having failed to file a response the Applicant filed an Application for Default Judgment, which was equally served on the Respondent. The Court therefore holds that all appropriate formalities have been complied with.

On​ whether the Application is well founded

35. Regarding this requirement, the Court must consider the sufficiency of the facts adduced by the Applicant to ground the default judgment. To ground a well- founded application, the Court must come to a conclusion that the facts are sufficient to support the claims against the Respondent State. This principle was reflected in the case of Vision Kam Jay Investment Limited v President of ECOWAS Commission, when the Court stated that,

“…entering judgment is not a matter of course. The Court must examine the totality of the evidence provided by the plaintiff to determine whether there is a cause of action and if the claim has been satisfactorily proved”

36.         Similarly, in Mohammed El Tayyib Vs Republic of Sierra Leone, the Court held: 

“However, the granting of the application for default judgment against the Defendant does not automatically mean entering judgment on the substantive suit in favour of the Applicant. The court must consider issues of competence, admissibility and proof before determining the case on merit.”

37. The Court will on no occasion give judgment in favour of an applicant based on mere application for a default judgment; the facts in this case, though uncontroverted must establish the merits of the case. In the words of the Court in the above referred case it concluded and held that: 

“As earlier noted, in considering the merits of the case, it is necessary to evaluate the evidence adduced by the Applicant so as to determine whether it is sufficient to ground a decision of this court in his favour”

The court will now proceed to consider the merits of the case.


MERI​TS

 


 

ISSUE NO 2

Whether the allegation that the sentence of the Applicant to two years imprisonment following his conviction by a military court martial without the required confirmation by the appropriate authority as provided the Armed forces Act, is unlawful and therefore void and constitutes violations of Article 6 of the provisions of the African Charter and other international human rights instruments ratified by the Respondent State.

38. From the facts presented for consideration, the Applicant, was a member of the Nigerian Army posted to sector 7 Riyom, in Plateau State. The Applicant averred that sometime in 2012, in the course of his official duty, a Rifle belonging to the Nigerian Army in his possession was stolen at his duty post. On this premise, the Applicant was arrested, detained and subsequently tried and convicted to a term of 2 years imprisonment by a Court Martial. The Applicant further states that his conviction was not confirmed by the relevant confirming authority and as such is illegal and amounts to a nullity. Consequently, the Applicant approached this Court to adjudge that his arrest, detention, trial, conviction and subsequent dismissal by the Respondent is illegal, ultra vires, null and void and contravenes the provisions of Article 6 of the African Charter, Principle 2 of the Body of Principles for the Protection of all Persons under Any form of Detention or Imprisonment, Principles 3, 4, 9 and 39 of the Body of Principles of the Protection of All Persons under any form of Detention or imprisonment . The Respondent did not put up a defense in rebuttal to the claims of the Applicant.

39. The following sections of the Armed Forces Act (AFA) Cap A20. Laws of the Federation of Nigeria (LFN) are relevant in determining the issue raised above.

40. Section 68 (1)(a) of the Armed Forces Act provides,

“A person subject to service law under this Act who loses a public or service property of which he has the charge or which forms part of the property of which he has the charge or which has been entrusted in his care, is guilty of an offence under this section and liable, on conviction by a court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

41. Section 148 of the Armed Forces Act also provides that any finding of guilt and sentence for a criminal charge by a court-martial must be transmitted to the confirming authority for confirmation of the finding and sentence. It also provides in Subsection (2) that where the record of proceedings of a court- martial… are not transmitted within sixty days as aforesaid, and the accused remains in custody, he shall be released unconditionally pending such confirmation or review.” It further states that until the required confirmation is made, such finding or sentence shall not be treated as a finding or sentence (Subsection 3). The said Section 148 (3) provides:

“A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court-martial until it is confirmed: Provided that:

a) this subsection shall not affect the keeping of the accused in military custody pending confirmation, where the sentence is a term of imprisonment or a higher sentence, or the operation of sections 149 and 150 of this Act, or the provisions of this Act as to confirmation or approval;

42. Section (a) above contemplates that when the sentence is a term of imprisonment a confirmation at some point is necessary though detention within the waiting period is authorized. In the instant case, the Applicant remained in detention without a confirmation order. More importantly, he served his two years prison term without the said confirmation. The question to be determined at this point is whether the sentence passed on the Applicant is deemed valid in the absence of a confirmation order from the confirming authority?

43. It is evident from the provisions of the AFA that the Confirming Authority plays an indispensable role in virtually all matters relating to the Court Martial. Also, the wordings of the AFA in relation to the confirming authority embodies a continuous use of the word “shall” which denotes the doing of a mandatory act. To buttress this assertion, Section 151 (1) of the AFA provides the responsibilities of the said confirming authority in relation to the court martial in the following words:

“Subject to the provisions of section 150 of this Act and to the following provisions of this section, a confirming authority shall deal with the finding or sentence of a court-martial—

1.  by withholding confirmation, if of the opinion that the finding of the court-martial is unreasonable or cannot be supported, having regard to the evidence or to the fact that it involves a wrong decision on a question of law or that on any other grounds there was a miscarriage of justice; or

2.  by confirming the finding or sentence; or……..

(c) by referring the finding or sentence or both for confirmation to a higher confirming authority”.

44. From the above provisions, the Court notes the following:

a.  The loss of a public or service property by a person subject to service is criminalized and subject to prosecution by a court martial

b.  Upon conviction, records of proceedings must be transmitted to the authorizing authority within 60 days of conviction

c.  The concerned person if in custody must be released unconditionally pending such confirmation or review.

d.  Even where the sentence is a term of imprisonment and therefore authorized to be detained, a confirmation must still be made.

e.  Where no confirmation is made, such finding or sentence shall not be treated as a finding or sentence.

45.A careful perusal of section 150 (a) of the above provision shows that a confirmation by the confirming authority can be withheld where it finds the decision of the court martial to be unreasonable, or where such finding/sentence will lead to a miscarriage of justice. It can therefore be deduced that the role of the confirming authority is key as it holds the powers to confirm, withhold, or make a referral in the circumstances of each case. The confirming authority is thus in a position of an appellate or reviewing authority over the decision of the court martial. The decision of the court-martial can therefore not be executed without such approval or confirmation by the reviewing authority. Where therefore the authority neither confirms nor approves the decision, the position presents itself as a “no show” which is analogous to what will be referred to under the juris system as a “hung jury”. Consequently, such a decision by the court martial becomes inoperative. See the decision in United States v. Perez (U.S) 579 (1824). See also Logan v. United States, 144 (U.S) 148 (1891).

46. In the instant case, there was no confirmation by the confirming authority to validate the decision of the court martial and no this court has no records to show that the court martial acted within the exemptions under section 150 of the AFA. The failure to confirm the decision of the court martial is therefore tantamount to its rejection without cause. It follows therefore that the judgment of the court martial, which is subject to, and dependent on the confirmation by the confirming authority was improperly executed. The execution of that judgment is thus a violation of the right of liberty of the Plaintiff.

47. In conclusion, we are of the view that though the arrest, and trial of the Applicant were in order, the conviction having not been confirmed as required by the AFA above is null and void. In the absence of any defense by the Respondent, this allegation is well founded. The Court therefore finds that the detention in prison of the Applicant was arbitrary and consequently a violation of his right to liberty contrary to the Section 6 of the African Charter.

IS​SUE NO 3

Whether the allegation of violation of other rights Applicants as claimed have been proved.

Apart from the allegation of the violation of the right to liberty already analysed above, The Applicant also alleges the violation of the following rights: right to non- discrimination (Article 2 of the Charter); equality before the law and equal protection of the law (Article 3 of the Charter), right to life and integrity of his person (Article 4 of the Charter), right to respect of dignity inherent in a human being and prohibition from torture, cruel, inhuman and degrading punishment and treatment (Article 5 of the Charter); to have his cause heard (Article 7 of the Charter); right to work (Article 15 of the Charter, Article 23 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Economic, Social and Cultural Rights). He also alleges the violation of his rights as protected under the Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment, as regards to the way he was treated while in detention and his detention prior to his trial and conviction.

As earlier noted, the Court will examine the facts adduced to determine if they avail the applicants of his claims.

O​n the right to non-discrimination

48. The Applicant alleges that his right to non-discrimination was violated by the Respondent State, contrary to Article 2 of the Charter and Article 2 of the UDHR. They provide for the enjoyment of human rights and freedoms without discrimination based on race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.

For an allegation under this head to succeed, there must be established a different treatment in a similar or identical case. The Court recalls the case of Justice Paul Uuter Dery v. The Republic of Ghana Jud. No. ECW/CCJ/JUD/17/19, para, 88 in which it stated thus

“For a​n action of discrimination to succeed under the articles listed above, there must be established a difference of treatment in an identical or similar case.”

The facts of the case as presented by the Applicant does not show that he was discriminated against on the grounds, on race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status, neither has he presented any evidence to show a similar case where a different treatment was effected. The Court is of the view that it is not sufficient to make sweeping allegations but such allegations must be substantiated with sufficient facts and evidence. Based on this consideration, the allegation of discrimination not been well founded, fails and is accordingly dismissed.

4​9. On the right to equality before the law and equal protection of the law.

a)  Right to equality before the law

The Applicant alleges that his right to equality before the law was violated by the Respondent State. Article 3 of the Charter provides:

“1. Eve​ry individual shall be equal before the law

2. Right to equal protection of the law”

The Court recalls its finding in Badini Slafo v The Republic of Burkina Faso, Judgment No ECW.CCJ/JUD/13/12, where it stated that,

“Equ​ality before the law presupposes that equal treatment is accorded people finding themselves in similar situations. Thus, examining the allegation of the violation of the principle of equality requires that at least two similar legal situations be put side by side as to compare and find out whether an ill treatment was concretely meted out to either one or both of them.”1

The Court notes from the facts of the case that the Applicant has not shown any proof that the treatment he received from the Nigerian Army, was different from the treatment meted to another person who was tried and convicted of a similar offence. In other words the Applicant has not proved that the Respondent’s action towards him during his trial by the Military Court Martial was discriminatory under the applicable law, which is the Armed Forces Act. The Applicant having not established this claim, the relief sought fails and is therefore dismissed and the Court so holds.

b) Rig​ht to equal protection of the law.

On the other hand, the right to equal protection of the law in the context of the right to a fair trial, as provided for under Article 14(5) of the ICCPR states that, Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

The court is unable find any documentary evidence before it to reach a conclusion that this allegation has been established. The claim being unfounded and is therefore dismissed and the Court so holds.

50.   0n​ the right to life

The Applicant alleges that his right under Article 4 of the Charter was violated. Article 4 of the Charter provides:

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”


The Court notes that this provision deals exclusively with the fundamental right to life and the prohibition of the deprivation of this right arbitrarily. It envisages a complete annihilation of a human being which though must not be arbitrary, in other words a victim of the violation of the right to life is expected to be dead and not able to speak for him/her self. From the submissions of the Applicant, it is clear that he is very much alive and well. Specifically, the Court notes his averment in paragraph xl of his statement of fact, in which he stated that, “The Applicant aver that following his irregular and unlawful dismissal from the Nigerian Army, he has been made to be an idle young man residing at Bandawa Lugere Lamurde Local Government Area of Adamawa State without no reasonable and feasible means of sustenance.” This is a clear indication that the Applicant is alive and resides in Adamawa state.

The Court finds that the Applicant’s claim is baseless, unfounded and therefore holds that the Applicant’s right to life has not been violated.

5​1. On The right to respect of the dignity inherent in a human being and prohibition from torture.

The Applicant alleges that while he was in detention, he was physically, psychologically, mentally and emotionally traumatised, which is a violation of his rights under Article 5 of the Charter. Article 1 (1) of the United Nations Convention Against Torture (UNCAT), which is the internationally recognised instrument on torture, defines torture as:

“…any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

52. With regards to the allegation of torture, the Court recalls that an allegation of torture will be established when an Applicant provides a medical report which shows that injury is consistent with the torture alleged, as stated in the case of Federation of African Journalists and Others v. The Republic of the Gambia, Judgment No: ECW/CCJ/JUD/04/18, Pg. 54 this court held that,

“It is trite that the burden of proof rests on he who asserts the affirmative and not on he who denies.”

Furthermore, the Court stated that,

“The burden therefore, lies on the Applicant to establish their allegation. The 4th and 5th Applicants in establishing their claim attached a medical report from an independent forensic experts group. In the report, the experts stated that the 4th and 5th Applicants suffered from chronic physical issues as well as heavy symptoms of post- traumatic stress disorder. The physical and psychological findings when considered separately and together are highly consistent with the act of torture and ill-treatment that they allege. This report has not been contested by the Defendant and in the absence of any refute, this amounts to an admission.”

53.  The Court notes that in the instant case, the Applicant has not shown any proof, including a medical report that indicates that the Respondent State through the Nigerian Army carried out any of the acts listed amounting to torture during his detention. The Court will not conclude that detention automatically amounts to being tortured within the meaning of the provisions of the UNCAT. Such allegation must be proved. The Court therefore holds that the allegation of torture fails

54.  Allegation of cruel, inhuman and degrading punishment and treatment Cruel, inhuman and degrading treatment and punishment entails acts which do not fall within the ambit of torture but which nonetheless dehumanize and degrades the human being. Instances of overcrowding in detention places, sleeping on bare wet floor, and inappropriate clothing in extreme weather. See European Court of Human Rights’ Judgment in Application no. 2346/02 Pretty v United Kingdom, Judgment of 29 April 2002, para 52 and Application no. 44558/98 para 117 Valasinas v Lithuana, Judgment of 24 July 2001, para 117, where it was held that,

Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3…”

55. In addition, the Court further notes the European Court’s case law, which refers to ill treatment as “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering.”

The Court notes that the Applicant has also not adduced any evidence that shows he was subjected to any cruel, inhuman and degrading treatment or punishment by the Respondent State during his detention. The Court will not hold that his detention alone meets the required threshold of severity and intention established under international law for establishing cruel, inhuman and degrading treatment or punishment. The Court therefore finds that the Applicant’s right under Article 5 of the Charter as it relates to any cruel, inhuman and degrading treatment or punishment has not been violated as the claim is unfounded and the Court so holds. The claim is therefore dismissed.

56.  On the right to have his cause heard within a reasonable time.

The Applicant contend that the Respondent State violated his right to have his case tried within a reasonable time contrary to the provisions of Article 7 of the Charter, having been detained for a period of 19 months from April 2012 prior to his trial, to 9 November 2013, without trial. Section 7 1(d) of the C53harter guarantees the right of an accused to be “tried within a reasonable time by an impartial court and tribunal”. This guarantee is one of the fundamentals of the right to fair hearing. This Court recognizes this guarantee when it held in Tandja v. Republic of Niger (2010 CCJELR) pg. 130 and in Federation of African Journalists and Others v. The Republic of the Gambia Pg. 50 that A person detained on a criminal charge has the right to trial within a reasonable time or to be released pending trial.” The Court also held In Col. Mohammed Sambo Dasuki (Rtd) V. Federal Republic of Nigeria ECW/CCJ/JUD/23/16 Unreported, that:

“Deprivation of a person’s liberty must at all times be objectively justified in that the reasonableness of the grounds of detention must be assessed from the point of view of an objective observer and based on facts and not merely on subjective suspicion”.

57. Other international law jurisprudence have affirmed same as seen in decisions of the Inter-American Court on Human Rights, in Application No 17140/05, Judgment of 24 April 2008; Kempf and others v Luxembourg, para 48; European Court of Human Rights in Ruiz Mateos v Spain, Judgment of 23 June 1993 para 30; Application No 21444/11, Judgment of November 5 2015, Henrioud v France, para 58; and the African Court on Human and Peoples’ Rights in AfCHPR Application No 005/2013 Alex Thomas v United Republic of Tanzania, Judgment of 20 November 2017, para 104.

58. Under this principle, three elements should be taken into account to access reasonableness of time to conclude judicial proceedings. These elements are: a) the complexity of the matter, b) the procedural activities carried out by the interested party, and c) the conduct of judicial authorities – See Alex Thomas v Tanzania (supra). In Buzadji V. The Republic of Moldova application No.23755/07 Judgment Strasbourg, 5 July 2016 Para. 91 the ECHR held that:

“It primarily falls on the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time”.

59. In the instant case, the Court is of the considered opinion that the matter regarding the Applicant was not one of such serious complexity, to justify the incarceration of the Applicant for 19 months before trial and conviction. After all it was a case of a missing rifle which the applicant himself reported. The Respondent State had the responsibility under international law, to ensure the Applicant was tried promptly.

60. Furthermore, it is instructive that the Armed Forces Act itself has clear provisions with regards to timeline for detention of persons subject to service. Section 122 of the AFA provides:

“Subject to the provisions of subsection (2) of this section, the allegations against a person subject to service law under this Act who is under arrest shall be duly investigated within reasonable time and as soon as may be, either proceedings shall be taken for punishing his offence or he shall be released from arrest within 24 hours.

(2)The commanding officer shall have power to determine whether further detention shall continue beyond a period of 24 hours.

(3)Where a person subject to service law under this Act, having been taken into service custody, remains under arrest for a longer period than eight days without a court-martial for his trial being assembled—(a) a special report on the necessity for further delay shall be made by the commanding officer to the prescribed authority in the prescribed manner; and(b)a similar report shall be made to the like authority and in the like manner every eight days until a court- martial is assembled or the offence is dealt with summarily or the person is released from arrest, the total period of such further detention not exceeding ninety days”.

From the above provision, it is clear that a person under service law who has been remanded in custody must be brought before a court-martial within a period not exceeding ninety (90) days. The Applicant in this case was detained from 8th April 2012 to 9th November 2013 approximately 19 months without trial. This is in clear violation of the laid rules in the AFA as shown above.

61. From the analysis deriving from this Court, the international jurisprudence and the provision of the Armed Forces Act on the reasonableness of detention period, The Court can only come to the inevitable conclusion that the pre-trial detention of the Applicant for 19 months was The Court finds was inordinate and unjustified. The allegation is well founded and the Court holds that the Respondent has violated the Applicant’s right to have his cause heard within a reasonable time contrary to Article 7 of the Charter.

62.  On the right to be promptly informed of the charges at the time of arrest. Article 9 (2) of the International Covenant on Civil and Political Rights provides:

“Everyone who is arrested shall be informed, at the time of arrest, of the reas​ons for his arrest and shall be promptly informed of any charges against him.

The Human Rights Committee in its General Comment 35 on Article 9 of the ICCPR (Liberty and Security of Person), has recognized that not only must the deprivation of liberty be in accordance with laid down laws, but must also be accompanied with procedural safeguards to ensure that such deprivation is not arbitrary. One of these procedural safeguards is that an arrested person must immediately be informed at the time of arrest, of the reasons for his arrest and charges against him. See African Court decision in Application No 005/2013 Alex Thomas v United Republic of Tanzania

63. In the instant case, The Applicant states that at the time of his arrest, he was not informed of the nature and reasons for his arrest before he was detained. It is curious that the Applicant who is a military man and who reported the loss of the rifle allocated to him pursuant to which, he was arrested can deny knowledge of the reason for his arrest. In light of this consideration, the Court finds that this allegation is unfounded and it is therefore dismissed.

64.  On the alleged violation of the right to work

The Applicant alleges that the Respondent State violated his right to work because of his irregular and unlawful dismissal from the Nigerian Army. He claims that after he had served his prison sentence and was released, he was not reinstated to his position at the Nigerian Army, despite several letters demanding his reinstatement, written by his counsel to the authorities of the Nigerian Army.

Article 23 of the Universal Declaration of Human Rights, which is reechoed in Article 15 of the Charter and Article 6 of the International Covenant on Economic, Social and Cultural Rights provides:

“Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”

The Court recalls its jurisprudence the case of Justice Paul Uuter Dery and others v Republic of Ghana, Judgment No. ECW/CCJ/JUD/19, para 82, where it stated, “The violation of the right to work contemplates a severance from work which permanently deprives the employee of the job under a condition that is manifestly unfair”.

In the instant case, The Applicant’s contention is that he is entitled to be restored to his position haven served the requisite sentence. All entreaties by his legal representatives to the Nigerian Army to that effect have failed. The Court notes that Section 68(1) of the AFA which prescribes 2 years imprisonment or less for the loss of a service property does not preclude a reinstatement after prison sentence has been completed. The Court also notes its earlier holding that the prison sentence was unlawful comes to the conclusion that the refusal of the Respondent to reinstate the applicant is a violation of his right to work contrary to Art 15 of the Charter,

6​5.  On the violation of Article 1 of the Charter

Article 1 of the Charter obligates all States Parties to the Charter to take measures to guarantee respect for human rights. It provides as follows:

“The member States of the Organisation of the African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.”

The Court notes that though the Applicant has not made any submissions in support of the contention that Article 1 of the Charter was violated by the Respondent State, the Court will however exercise its discretion to consider whether this Article has been violated. Article 1 of the Charter places responsibility on all States Parties to take legislative and other measures to ensure that rights in the Charter are respected.

66. In the instant case, the Court has found the Respondent State in violation of several rights contained in the Charter, which means that the Respondent State did not take measures to ensure that the rights in the Charter are respected. The violation of the abovementioned rights therefore brings about the concurrent violation of Article 1 of the Charter. The Court therefore finds that the Respondent State has violated the provisions of Article 1 of the Charter.

I​SSUE NO 4

67. Whether in the light of the facts and evidence adduced the Applicant is entitled to the reliefs sought.

It is an established principle recognised in international law, which has been reiterated by the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, that when a State has violated the rights of an individual as enshrined in the Charter, it should take measures to ensure that the victims of human rights abuses are given effective remedies including restitution and compensation.” See Communications 279/03 and 296/05 Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE) v Sudan, Twenty Eighth Activity Report: November 2009-May 2010 para 229 (d); Reverend Christopher R. Mtikila v United Republic of Tanzania (reparations)(2014) 1 AfCLR 72, para 29.

The Court in the course of its analysis above, has come to the conclusion that the following rights has been violated for which appropriate remedy are ordered: The right to liberty (Article 7) of the Charter), to have his cause heard (Article 7 of the Charter); right to work (Article 15 of the Charter) and Article 1of the Charter.

68. Having found that the Respondent State has violated several rights of the Applicant contrary to the provisions of the Charter and other international human rights instruments ratified by the Respondent State, the Court finds that the Respondent State is liable and responsible under international law for remedying the violations against the Applicant.

69. The court however notes that with regards to the applicant’s application for an order for payment of his monthly salary in the sum of 50,000 naira from March 2015 to date of judgment and also the sum of 45,000 naira as operation allowance from March 2015 to date of judgment, no documentary evidence was provided to support these amounts. In that wise the Court is unable to award the claimed sum. However, since the applicant would have been entitled to salary and the operation allowance within these periods, the court directs the Respondent who is the natural custodian of these information to calculate and pay the Applicant the applicable amount up to the time of release from detention.

COSTS

70. Article 66 (11) of the Rules provides, “If costs are not claimed, the parties shall bear their own costs.” The Court notes that the Applicant did not make any claim as to costs; the Court therefore decides that he shall bear his own costs.

DECISION

71. The Court declares:

i.     That the Application meets the requirements for a default judgment under Article 90 (4) of the Rules;

ii.     That the Respondent State violated the Applicant’s right to liberty;

iii.     That the Respondent State violated the Applicant’s right to be heard within a reasonable time;

iv.     That the Respondent State violated the Applicant’s right to work;

v.     That the Respondent State violated Article 1 of the Charter;

vi.     That the Respondent State did not violate the Applicant’s right to equality before the Law;

vii.     That the Respondent State did not violate the Applicant’s right to equal protection of the law;

viii.     That the Respondent State did not violate the Applicant’s right to non- discrimination;

ix.     That the Respondent State did not violate the Applicant’s right to protection from torture, cruel, inhuman and degrading treatment and punishment;

x.     That the Respondent State did not violate the Applicant’s right to life

72. The court orders the Respondent State to:

a.  Calculate and pay all salary arrears and other entitlements owed to the Applicant from March 2015 to the date of judgment.

b.  Pay the sum of ten million naira only (NGN 10, 000,000), to the Applicant as compensation for the violation of his rights.

On Costs:

102. Decides that the Applicant shall bear his own costs.

Thus pronounced and signed on this 11th Day of October, 2019 in the Community Court of Justice, ECOWAS, Abuja, Nigeria.

AND THE FOLLOWING HAVE APPENDED THEIR SIGNATURES:

Hon justice Gberi-Be OUATTARA                                     Presiding Judge

Hon. Justice Dupe ATOKI                                                  Judge Rapporteur

Hon Justice Januaria COSTA                                             Member

 

A​ssisted by

Tony ANENE- MAIDOH                                                   Chief Registrar.

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 27 of 2019
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Bangra JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC

COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA 

SUIT NO: ECW/CCJ/APP/27/1

JUDGMENT NO: ECW/CCJ/JUD/01/20

 

BETWEEN:

1.   Ousainou Darboe

2.   Kemmesseng Jammeh

3.   Femi Peters

4.   Lamin Dibba

5.   Lamin Jatta

6.   Yaya Bah

7.   Baboucarr Camara

8.   Fakebba Colley

9.   Ismaila Ceesay

10. Mamodou Fatty

11. Dodou Ceesay

12. Samba Kinteh

13. Mamudu Manneh

14. Nfamara Kuyateh

15. Fanta Darboe-Jawara

16. Lamin Njie

17. Juguna Suso                                                                               -   APPLICANTS

18. Momodou L. K Sanneh

19. Yaya Jammeh

20. Masaneh Lalo Jawlan

21. Lamin Sonko

22. Modou Touray

23. Lansana Beyai

24. Lamin Marong

25. Alhagie Fatty

26. Nogoi Njie

27. Fatoumata Jawara

28. Fatou Camara

29. Kafu Bayo

30. Ebrima Jadama

31. Modou Ngum

32. United Democratic Party (UDP), The Gambia, (suing for itself and for the Estate of Ebrima Solo Sandeng (deceased)

AND

THE REPUBLIC OF THE GAMBIA          -           RESPONDENT

 

COMPOSTION OF THE COURT

Hon. Justice Edward Amoako Asante                             - Presiding

Hon. Justice Gberi-Be Ouattara                                      - Member

Hon. Justice Keikura Bangura                                        - Member

Assisted By:

Tony Anene-Maidoh – Chief Registrar


JUDGMENT


Parties

The Applicants are Citizens of the Republic of Gambia and Citizens of the Community who are ordinarily resident in the Republic of Gambia. The Respondent is the Republic of Gambia and a Member State of the ECOWAS Community.

S​ubject Matter of the Proceedings

The Applicant’s claim is for the violation of the human rights pursuant to Articles 4, 5, 6, 7, 10, 11 & 13 of the African Charter on Human and People’s Rights; violation of Articles 3, 4(1) and 25 (a) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa; violation of Article 1 (j) of the ECOWAS Protocol on Democracy and Good Governance.

S​ummary of Facts

The Applicants, 1st to 31st, aver that they are members of the 32nd Applicant who were arrested during peaceful protests on the 14th April, 2016 and were detained and severely tortured by the Respondent. That one of the detainees, Ebrima Solo Sandeng, died from torture inflicted by the Respondent, which the latter confirmed in a sworn deposition (Annexure B2) that the deceased died whilst in detention. The Applicants aver that the protests were disrupted by the police and were not allowed to disperse. That the police used more force than was necessary and randomly arrested persons in the vicinity of the protests.

The Applicants contend that the provisions of the Public Order Act of the Respondent are inconsistent with the Provisions of the African Charter on Human and Peoples Rights ( hereinafter ACHPR or African Charter) and other relevant Human Rights Instruments.

The Applicants aver further that some of the persons arrested were taken to the maximum security prison without remand warrant, whilst some were detained at the National Intelligence Agency Headquarters in Banjul. The detainees claimed that they were questioned and tortured and that the Respondent had asked whether they had knowledge of the 1st Applicant.

The Applicants claim that during detention seven detainees were hospitalized due to injuries sustained after various forms of torture and ill- treatment. That Ebrima Solo Sandeng died from said torture and ill- treatment and his remains were never handed over to his family.

The 32nd Applicant undertook a peaceful march on the 16th April, 2016 from the place of the 1st Applicant, demanding for the release of Ebrima Solo Sandeng. That during the protests the protesters locked hands in solidarity but were intercepted by Police Intervention Unit (hereinafter PIU) officers in riot gear who attacked them with batons, teargas and the butts of their gun. That they were thrown in trucks where the beating continued and they were detained at the PIU Headquarters until the 17th April, 2016 when they were transported to the maximum security prison without a remand warrant. That they were tortured and put in solitary confinement.

The Applicants aver that an application for Habeas Corpus was filed on behalf of the deceased on the 26th May, 2016. That the State filed two affidavits on the 13th and 22nd June, 2016 respectively confirming that the deceased had died in the process of arrest and detention and the primary cause of death was shock and the secondary cause was respiratory failure. The Applicants submitted Annexure B2 and B3 which is a Death Certificate that puts the time of death at 15th April, 2016 at 4:20 a.m. but that his remains were not handed to his family neither were they informed.

The Applicants further aver that they were all in bad physical conditions during detention and several of them had injuries on various parts of their bodies and some were limping or had difficulty moving. That they were sentenced to three (3) years in prison on the 20th July, 2016 in a trial that was devoid of fair hearing. That the 1st Applicant was denied his right to make a statement on his sentencing before he was sentenced.

The Applicants specifically contend that the Public Order Act (of the Respondent), by its Section 5, is an unjustifiable as its provisions restrict Rights under Article 7 of the ACHPR.

RELIEF​S SOUGHT BY THE APPLICANTS

1.  A DECLARATION that Section 5 of the Public Order Act of the Republic of the Gambia Chapter 22-01 is in violation of Article 11 of the African Charter on Human and People’s Rights.

2.  A DECLARATION that the arrest, detention, charge, purported trial and imprisonment of the Applicants for offences under the Public Order Act were in violation of Articles 4-7 and 11 of the ACHPR.

3.  A DECLARATION that the arrests and detention of the Applicants on the 14th April, 2016 and 16th April, 2016 were arbitrary, unlawful and in violation of Article 11 of the ACHPR.

4.  A DECLARATION that the torture and/or cruel, inhuman and degrading treatment of the Applicants by the Respondent and its agents violated Articles 4 and 5 of the ACHPR.

5.  A DECLARATION that the purported trial of the Applicants without giving them the opportunity to be defended by Counsel of their choice violated Articles 6 and 7 of the ACHPR.

6.  A DECLARATION that torture and/or cruel, inhuman and degrading treatment and abuse of the 27th and 28th Applicants, violated Articles 3, 4(1) and 25 (A) OF THE Protocol of the African Charter on Human and People’s Rights on the Rights of Women in Africa.

7.  A DECLARATION that the torture to death, and/or arbitrary and extra judicial killing of Ebrima Solo Sandeng (deceased) in circumstances admitted by the Respondent amounted to violation of Article 4 of African Charter on Human and People’s Right.

8.  A DECLARATION that the arrest, detention, trial and imprisonment of the Applicants have the consequences of denying the 32nd Applicant, as an opposition political party, from effectively participating in the general elections slated for later 2016 and denying the Applicants their right to participate in the elections as a result of their political opinion or affiliation, therefore violates Article 2 and 13 of the African Charter on Human and People’s Rights.

9.  A DECLARATION that the Respondent has failed to recognize, promote and protect the rights of the Applicants and to take measures to give effect to their rights as provided under Article 4, 5, 6, 7 and 11 of the African Charter on Human and People’s Rights.

10.       A DECLARATION that the Respondent has failed to recognize and promote principles of democracy and good governance as envisaged by the ECOWAS Protocol on Democracy and Good Governance.

11.       AN ORDER directing the Respondent to set up an independent panel of inquiry to look into events of the 14th and 16th April 2016, and also determine the persons responsible for the torture and ill- treatment of the Applicants and to provide credible measures taken to discipline, dismiss and prosecute the police officers involved.

12.       AN ORDER nullifying the purported charge, trial and imprisonment of the Applicants on the basis of the Public Order Act and immediate release of the Applicants from prison.

13.       AN AWARD of damages in the sum of 10 million Dalasi to each of the 1st to 31st Applicants for injuries sustained by the Applicants as a result of their torture and physical abuse by agents of the Respondent and their arrest, and unlawful detention.

14.       AN AWARD of compensation in the sum of 30 million Dalasi to the Estate of Ebrima Solo Sandeng (deceased) through the 32ND Applicant for unlawful deprivation of life, and associated loss to the relatives and family members.

15.       AN ORDER directing the Respondent to release the body of Ebrima Solo Sandeng (deceased) to his family and to the 32nd Applicant for proper burial in accordance with highly respected African values and culture.

16.       AN ORDER restraining the Respondent from harassing, arresting, detaining charging trying or otherwise intimidating any member of the 32nd Applicant in respect of this matter or any other matter, and to allow the members of the 32nd Applicant exercise their rights to participate, vote and elect their representatives and express political opinion as enshrined in Article 2 and 13 the African Charter on Human and People’s Rights.

17.       Any other order the Honorable Court considers necessary and which the justice of this case, including any order to ensure that the implementation of the judgement and orders made in this case are monitored.

The​ Respondent’s defense

The Respondent denies paragraph 1 of the Applicants’ claim and states that they were arrested pursuant to law after undertaking an unlawful public procession. That the 1st to 31st Applicants were not tortured but that the arrest and prosecution followed due process. That the procession was in defiance of an order of police and posed real and imminent danger to public peace.

The Respondent denies further, paragraph 2 of the Applicants’ claim and submits that the deceased, Ebrima Solo Sandeng, died from shock and respiratory failure.

The Respondent contends that the Public Order Act is not contrary to Article 11 of the African Charter on Human and People’s Rights. That the Applicants were arrested and detained because they violated the Public Order Act Cap 22 vol. 4 of the Gambia 2009.

The Respondent avers that the Applicants were duly arraigned in court but that the High Court ordered for their remand in custody pending trial. That they were allowed access to family, Counsel and medical care. That they were allowed Counsel of their choice until Counsel withdrew his representation and the Applicants continued their defense.

The Respondents aver that the Applicants were not subjected to torture or inhumane and degrading treatment but that the investigation was pursuant to the unlawful processions of 14th and 16th April 2016 and its attendant disorder.

The Respondent maintains that the treatment of the Applicants did not amount to torture and ill treatment, that 18th detainee and Ebrima Solo Sandeng were never subjected to torture particularly subjected to torture.

The Respondent states that the Applicants were not beaten or brutalized but that reasonable force was used to disperse the crowd.

The Respondent admits paragraph 16 of the Applicants claim and affirms the sentence of three years in prison but states that the Applicants were accorded fair hearing during the trial. The Respondent states that the Applicants have filed an Appeal in the Court of Appeal against their conviction.

The Respondent contends that the application of the Applicants lacks merit and is therefore not eligible for the reliefs sought. That the Court should dismiss the application for lack of merit.

The Applicants’ Response to the Respondents’ Statement of Defense

The Applicants’ maintained the facts averred in the initiating application. The Applicants specifically contend that they were denied Counsel, family and medical care and refer to the proceedings of THE STATE V. OUSAINOU DARBOE & ORS (2016) CRIMINAL CASE NO: HC/179/16/CR/059/AO.

The Applicants aver that the Counsel representing them (in the domestic case) was compelled to withdraw representation cited many instances leading to this including the fact that there was an atmosphere of intimidation in the way proceedings were conducted. The Applicants contend that the Court (domestic) ordered that they represent themselves when Counsel withdrew without giving the Applicants the opportunity to obtain new Counsel.

The Applicants contend that they were prosecuted and convicted because they associated with the 1st and 32nd Applicants.

The Applicants aver that they were remanded in prison before they were arraigned in court. The Applicants maintain that the records of proceedings will indicate apparent physical injuries on the 26th to 31st Applicants, that they were arraigned on the 4th May, 2016 which was two weeks after the arrest, allowing injuries to heal.

The Applicants submit that facts not challenged are deemed admitted; the Respondent’s admission as contained in their statement of defense proves the Applicants’ reliefs sought.

The Respondent responded to the Applicants reply and maintained their defense.

Ap​plicants’ Reply

The Applicants filed their reply to the Respondent’s defense on the 28th September, 2016. They maintained that the 21st to 31st Applicants were arrested on the 14th of April, 2016 alongside the late Ebrima Solo Sadeng. That the 1st Applicant then received information that the persons arrested were subjected to torture by the security officials of the Respondent and that Ebrima Solo Sadeng had died as a result injuries sustained from the torture. That the 26th-28th Applicants were seriously injured and on the brink of death.

That it was on this premise the 1st Applicant and others decided to walk towards the head-quarters of the Police intervention unit to demand the release of the deceased and other detainees but were indiscriminately attacked by the agents of the Respondent. That the attack was characterized by excessive force, tear gas, batons and gun butts which made it disorderly, as a result of which the 1st- 19th Applicants were injured. The Applicants added that the said injuries were apparent when the Applicants appeared before the Court in the Gambia and the record of proceedings of the 20th of April 2016 would indicate that the Court was informed of the injuries which was not denied by the Respondent. That the force used by the agents of the Respondent was disproportionate in the circumstance.

The Applicant’s further narrated that sometime on the 14th June, 2016 some 14 out of the 25 persons arrested on 14th April, 2016 were released when it became apparent that they were not members of the United Democratic Party (UDP). That the 1st -19th Applicants who were transferred to the Central Prison in Mile 2 from the Police intervention unit on the 17th April, were remanded without a remand warrant or Court order up until the 20th April when they were brought to Court. That six (6) out of the detainees were held in solitary confinement at the prison. The Applicants referred to the record of proceedings of the national court to confirm this position.

The Applicants’ reiterated that they were denied access to Counsel, family members and medical treatment. That even the Court to which they were charged ordered that they be granted access to Counsel and medical treatment but the Respondent failed to comply with the said order. The Applicants’ added that they had to attend Court with the same clothing they had since they were arrested and that on the 21st April, the Court had to make a second order urging compliance with its first order.

The Applicants states that their Counsel was compelled to withdraw its representation because the Court consistently refused all applications made on their behalf and that their case was transferred to another Court two hundred (200) kilometers away from the scene of the alleged offence which lacked jurisdiction to entertain the matter. The Applicants assert that they addressed a letter of complaint to the Chief Justice dated 24th May, 2016 in protest but to no avail. That the conduct of proceedings and atmosphere was characterized by intimidation especially with the presence of dozens of armed security personnel with weapons in and around the Court room. That even the Counsel was not permitted to consult with the Applicants in private and when the attention of the Court was drawn to intervene, it found nothing wrong with the actions of the security officers.

That without reference to the Applicants, the Court ordered that trial be continued and Applicants defend themselves without giving them the opportunity to engage another Counsel of their choice.

Th​e Respondent’s Reply

In its rejoinder, the Respondent denies subjecting the Applicants to any form of torture or ill treatment and denied that Ebrima Solo Sandeng died as a result of injuries sustained from torture.

The Respondent stated that on the issue of the Applicants’ Counsel’s withdrawal that the High Court of Gambia can sit at any designated place in the Gambia. That the security personnel in the Court premises were only deployed to maintain order in the face of the unruly conduct of the Applicants’ supporters and to ensure a hitch free proceeding. They added that the Counsel had unfettered access to the Applicants throughout the course of trial both at the prison and in the Court room.

The Respondent avers that the arrest and prosecution of the Applicants had no political consideration and profiling but was necessitated by their participation in an unlawful procession and further stated that the death of Ebrima is not a justifiable grounds for the Applicants to have embarked on an unlawful procession.

The Respondent maintained that the investigation resulted into the death of Ebrima Solo and denied the allegation of undue delay in bringing the Applicants to Court after being arrested. They submitted that the Applicants were arraigned within seventy-two (72) hours of arrest and that the Applicants have not established a prima facie violation of Article 11 of the African Charter.

In conclusion, the Respondent submits that in seeking an order to nullify the purported charge, trial and imprisonment of the Applicants on the basis of the Public Order Act and subsequently direct an immediate release of the Applicants from prison, will amount to seeking to impose the powers of the Court to review the decision of the High Court of Gambia for which this Court lacks the competence to do.

ISSUES FOR DETERMINATION

·   WHETHER THE COURT HAS THE COMPETENCE TO HEAR AND DETERMINE THE CLAIM BROUGHT BY THE APPLICANTS.

·   IF THE ANSWER IS IN THE AFFIRMATIVE, THE COURT MUST DETERMINE WHETHER THE APPLICANTS HAVE ESTABLISHED A VIOLATION OF THEIR RIGHTS AS CLAIMED.

·   WHETHER OR NOT THE PROVISIONS OF SECTION 5 OF THE PUBLIC ORDER ACT OF THE GAMBIA CONTRAVENES THE PROVISIONS OF ARTICLE 11 OF THE AFRICAN CHARTER.

·   WHETHER THIS COURT HAS COMPETENCE TO DECLARE THE JUDGEMENTS OF NATIONAL COURT NULL AND VOID.

·   WHETHER THE 32ND APPLICANT HAS CAPACITY TO INITIATE THIS APPLICATION ON BEHALF OF EBRIMA SOLO SANDENG (DECEASED).

ISS​UE 1: WHETHER THE COURT HAS THE COMPETENCE TO HEAR AND DETERMINE THE CLAIM BROUGHT BY THE APPLICANTS.

Competence is a matter of statutory provision. The Court by itself cannot assume jurisdiction to adjudicate on any matter except by clear mandate conferred on it by statutory provisions. Jurisdiction therefore is the mandate and power conferred on the Court to adjudicate on any matter that is brought before it. In this instance, the jurisdiction of this Court is provided for by Article 9 of the Supplementary Protocol (A/SP.1/01/05 Amending Protocol (A/P1/7/91)) and the Court recognizes that the basis of the Applicants claim is specifically anchored to the Provisions of Article 9 (4) of the said Supplementary Protocol Amending the said Protocol of the Court to wit:

“T​he Court has jurisdiction to determine cases of violation of human rights that occur in the Member States.”

Article 10 (d) specifically grants access to the Court to individuals wo are seeking relief for violation of their Human Rights and it further provided the conditions precedent :

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i.          Not be anonymous; nor

ii.          Be made whilst the same matter has been instituted before another International Court for adjudication.”

The Court has held severally that a mere allegation of a violation of human rights in the territory of a Member State is sufficient, prima facie, to justify its jurisdiction. In the case of MOUSSA LEO KEITA V. THE REPUBLIC OF MALI (2007) ECW/CCJ/JUD/03/07, the Court held that it has a competence to adjudicate matters involving the violation of human rights within its Member State. Therefore the threshold is simply that the application should contain an allegation of a violation for it to be deemed admissible: See SERAP V. FEDERAL REPUBLIC OF NIGERIA & 4 ORS (2014) ECW/CCJ/JUD/16/14.

The Applicants have contended that the Respondent’s act of arrest, detention and prosecution whilst exercising their fundamental human rights, especially their right to peaceful assembly, fair trial and the right to life is in violation of their right. Further, that the alleged torture, inhuman and degrading treatment meted out on them whilst in custody of the Respondent is an affront to their dignity. Furthermore, the Applicants also challenge the alleged death of one of them (Ebrima Solo Sadeng) in custody of the Respondents as a violation of his right to life.

Subject to the above averments, the Applicants relied on the provisions of Articles 4, 5, 6, 7, 10, 11 & 13 of the African Charter on Human and People’s Rights, Articles 3, 4(1) And 25 (a) of The Protocol to The African Charter On Human and People’s Rights on the Rights of Women in Africa and Article 1 (j) of the ECOWAS Protocol on Democracy and Good Governance. In relying on the said provisions, the Applicants are in tandem with the ratio in the case of KAREEM MEISSA WADE V. REPUBLIC OF SENEGAL (2019) ECW/CCJ/JUD/13/19, at pg. 259 Para. 95 (3), where the Court held that: “simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.” See also BAKARE SARRE V MALI (2011) ECW/CCJ/JUD/03/11 and Dr. GEORGE S. BOLEY V. THE REPUBLIC OF LIBERIA & 3 ORS. (2019) ECW/CCJ/JUD/24/19.

In line with the above jurisprudence of the Court vis-à-vis the facts of the present application, the Court holds itself competent to hear and determine the matter.

ISSUE 2: IF THE ANSWER IS IN THE AFFIRMATIVE, THE COURT MUST DETERMINE WHETHER THE APPLICANTS HAVE ESTABLISHED A VIOLATION OF THEIR RIGHTS AS CLAIMED.

The Applicants in their application have contended that the Respondent’s act of arrest, detention and prosecution whilst exercising their fundamental human rights, especially their right to peaceful assembly, fair trial and the right to life is in violation of their right. Further, that the alleged torture, inhuman and degrading treatment meted out on them whilst in custody of the Respondent is an affront to their dignity. Furthermore, the Applicants also challenge the alleged death of one of them (Ebrima Solo Sadeng) in custody of the Respondent as a violation of his right to life. Subject to the above averments, the Applicants relied on the provisions of Articles 4, 5, 6, 7, 10, 11 & 13 of the African Charter on Human and People’s Rights, Articles 3, 4(1) And 25 (a) of The Protocol to The African Charter On Human and People’s Rights on the Rights of Women in Africa and Article 1 (j)  of the ECOWAS Protocol on Democracy and Good Governance.

To determine the series of Human Right violations alleged by the Applicants, the Court will now outline the series of Human Right violations alleged, examine and assess the facts and arguments as canvassed by the Applicants in the pursuit of proving their case before it. The same will be done according to the thematic issues raised in the Application hereunder.

i.     ARREST AND DETENTION

The Applicants aver that in the exercise of their right to assembly, they embarked on a peaceful protest on the 14th and 16th of April 2016 respectively. In the course of the protest, they were arrested and detained by agents of the Respondent on grounds that they failed to produce a license permitting them to hold the said protest amongst others.

The Respondent, on the other hand, contended that the interference with the Applicants’ rights to liberty was executed within the context of the provisions of Article 6 of the African Charter. That the Applicants were arrested and detained for embarking on an unlawful and violent procession which disrupted public peace and constituted an imminent threat. That they behaved in an unruly manner and failed to comply with a dispersal order, throwing missiles at the Police and thereby causing the law enforcement agency to resort to force within the confines of the law. The Applicants maintained that the protest was peaceful as they were unarmed, walking together with locked arms and chanting “release Ebrima Solo Sadeng dead or alive”. They further contend that their detention was prolonged and in contravention of the Gambian Constitution which provides a maximum period of seventy-two (72) hours before being charged to Court. They argued specifically that the detention of the 26th-31st Applicants lasted more than two weeks.

In rebutting the claim of prolonged detention, the Respondent relied on the provisions of Section 32 of the Interpretation Act of the Gambia to justify the extra days. The Applicants however challenged the applicability of the said provisions of the Constitution. It must be noted that right to liberty and assembly are rights to which the state as a signatory is under obligation to protect though not absolute and the exercise of which is regulated by law. This means simply that such rights can be derogated from within the frame work of the law. It is therefore important to examine the provisions of Article 6 of the African Charter on Human and People’s Rights provides:

“Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

The Court notes that the Gambian Criminal Procedure Code was drafted having in mind the desire to provide absolute protection for the sovereignty of the State. The Respondent’s defense is that the provisions of the Criminal Procedure Code, Article 5 of the Public Order Act, as well as Section 19(1) of the Constitution of the Gambia are in tandem with the provision of Article 6 of the African Charter on Human and People’s Rights (ACHPR). They also maintained that the detention was in compliance with a valid order of Court following the due process of the law. Section 15 of the Criminal Procedure Code Cap 11 Vol 3 Laws of The Gambia, Revised Edition 2009, permits a police officer without a warrant to arrest any person whom he suspects on reasonable grounds of having committed a cognizable offence, any person who commits a breach of peace in his presence and any person who obstructs a police officer in the execution of his duty. They further relied on Section 73 of the Criminal Code Cap 10 Vol. 3 Revised Laws of The Gambia 2009 which provides:

“If on the expiration of a reasonable time after the proclamation is made, or after the making of the proclamation has been prevented by force, twelve or more persons continue riotously assembled together, a person authorized to make proclamation, or a police officer, or any other person acting in aid of the person or police officer, may do all things necessary for dispersing the persons so continuing assembled, or for apprehending them or any of them, and, if a person makes resistance, may use all such force as is reasonably necessary for overcoming the resistance, and shall not be liable in any criminal or civil proceeding for having , by the use of such force, caused harm or death to any person”.

Consequently, the Respondent submits that the interference with or deprivation of liberty of the Applicants in pursuance of and in accordance with the legal principles in the Gambia, are well within the permissible exceptions enshrined in Article 6 of the African Charter and therefore does not constitute violations of the applicant’s rights to liberty within the meaning of the said Article.

The Court is mindful of the fact that an arrest and detention premised on lawful grounds cannot be seen as a violation of the guaranteed right to liberty. See BARTHELEMY DIAS V. REPUBLIC OF SENEGAL (2012) ECW/CCJ/JUG/05/12 and ALHAJI HAMANI TIDJANI V. FEDERAL REPUBLIC OF NIGERIA AND 4 ORS. (2007) ECW/CCJ/JUD/04/07.

In determining the legality of the alleged arrest and detention the Court will consider whether or not the alleged unlawful and violent procession resulted in the disruption of public peace as the Respondent would want this Honorable Court to believe. Whether the Respondent has shown any credible evidence documentary or oral before the Court to establish the Applicants unruly behavior and subsequent failure to comply with dispersal orders which has resulted to breach of Public Oder, threat to Public safety as the Respondent averred in his defense.

It is trite law that the burden of proof rests on the person making the allegation to ascertain the truth of his assertion. Such a person can succeed or fail on the strength of his evidence. In the case of FEMI FALANA & ANOR V. REPUBLIC OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12, this Court held that “as always, that the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the court to believe the statement of the claim”. Also, in SIKIRU ALADE V. FEDERAL REPUBLIC OF NIGERIA (2012) ECW/CCJ/JUD/10/12 the Court found that every material allegation of claim must be justified with credible evidence and the defense should also sufficiently satisfy every defense and put forward what will rebut the claim or take the risk of putting nothing at all if the claim by their estimation is weak and unproven. In the instance case, it is the expectation of the Court that the Respondent would have tendered hospital report of treatment of agents of the Respondent as a result of injuries sustained from the missiles alleged to have been thrown by the Applicants and even pictures of destructions alleged to have been done by the unruly behavior of the Applicants.

The Court notes that Article 11 of the African Charter provides that:

“Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the Safety, heath, ethics and rights and freedom of others”.

Section 5 (5) of the Public Order Act of the Laws of the Gambia on the other hand provides that going on any procession without a license or one in which a license has been issued and the terms of the said license is violated constitutes a cognizable offence” for which an arrest can be made without a warrant.

The Respondent has made a blanket denial to Applicants allegation therefore, it is imperative on the part of the Applicants to prove their allegation by way of credible evidence that the act of the Respondent amounted to a violation of their Rights to peaceful possession. However, the Applicants failed to tender evidence to establish proof that the protest was with the approval of the Inspector General of Police of the Gambian Police Force and did not lead evidence either by means of oral or documentary in form of pictures or video to establish that indeed the acts of the Applicants was peaceful. The Applicants therefore failed to show that their act was lawful and peaceful.

In light of the above and in the absence of such evidence to rationalize the alleged acts of the Respondent, the Court finds that though the protest was a peaceful protest it was nevertheless without license and therefore illegal. That the arrest that followed was not arbitrary because it was done pursuant to the Gambian Law. However, the detention that followed was nonetheless arbitrary as the period of detention went beyond the limit permitted by the law of the Gambia before the Applicants were brought to Court.

ii.     TORTURE, INHUMAN AND DEGRADING TREATMENT.

The Applicants alleged that they were subjected to torture, inhuman and degrading treatment by agents of the Respondent from the time of arrest to the period in detention. The Respondent however denied subjecting them to any form of torture, inhuman or degrading treatment. The Respondents relied on the definition of the United Nations Convention against torture to wit:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain arising from, inherent in or incidental to lawful sanctions”.

The Respondent went on to state that for an act to constitute a violation of Article 5 of the African Charter, the following three elements must be proved beyond reasonable doubt:

a.  The infliction of severe pain or suffering;

b.  By or with the consent or acquiesce of the state authorities;

c.  For a specific purpose, such as giving information, punishment or intimidation.

They submitted that none of the above elements have been proven by the Applicants.

The Applicants argued that the physical injuries suffered by the 1st to 19th Applicants were apparent when they were brought before the Court on the 20th April, 2016. That the record of proceedings will show that the Court was informed of the injuries of which the Respondent did not deny at that time. See proceedings of 20th and 21st April, 2016.

The Court notes that Article 5 of the African Charter provides:

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

The depositions made on oath by the Applicants contain consistent allegations of acts of torture, inhuman and degrading treatment meted on them by the officers of the PIU unit, to wit agents of the Respondent.

The 1st Applicant deposed that he was slapped by an officer. He alongside the 4th and 5th Applicants were assaulted which resulted in profuse bleeding. That they were made to seat on the bare floor for forty-five (45) minutes and were not given medical attention. However, the Inspector General of Police (IGP) came and told them that they would be taken to the clinic. The 1st Applicant further averred that he sustained a wound on his head which was so deep that it was sutured. He also alleged that they were kept in solitary confinement.

The 3rd Applicant alleged being assaulted by the PIU officers who hit him with their batons and kicked him with their boots on his left hip where he once had a fracture. That he was forcefully thrown into the truck. He however affirmed that those who were injured were given medical attention the next day. He also stated that they were taken to mile 2 prison where photographs of them were taken. While some were escorted to solitary confinement without access to a lawyer. That the cell he was taken to was two (2) meters wide with a small door, with no matrass and full of cockroaches, rats, and mosquitoes. That he stayed there for three (3) days after which he was moved to a different cell.

The 4th Applicant affirmed that he was hit on the back twice by a PIU officer and on turning to see who it was, alas, he was hit on his face (forehead) and his chest. That he had eight (8) stitches on the wound on his forehead. That they were taken to the PIU camp where they were detained before being transferred to Mile 2 prison.

The 15th Applicant who was a passerby at the time of the protest was also arrested, dragged and slapped by the PIU officers. She alleged that they kept on beating her from the time she was arrested to the time they arrived the PIU camp. That on reaching the camp, the officers pushed her off the truck with so much force that she landed on her feet hence her inability to walk properly. That they were taken to Mile 2 prison on Sunday the 17th of April.

The 17th Applicant on the other hand averred that he was arrested but not beaten. He was only asked who he will vote for during the election.

The 31st Applicant alleged that the officers put a black mask round his face and tied his hands and legs with ropes which was used to drag him on the floor into a dark room. That he was beaten mercilessly as a result of which he was wounded on his arms and thighs. That the NIA brought a doctor who gave them certain medicines and rubbed Chinese balm on their wounds. That they wore their clothes for nine (9) days until they began to smell. He further averred that the NIA officers brought kaftan, a pair of jeans and shirt for him to wear and told him that the kaftan is to be worn on the day they were appearing in Court. That the condition in Mile 2 prison was very bad and they were given small amounts of sub-standard food. That they were in detention from the 27th April to 4th May, 2016 when they were finally taken to Court for the first time.

The 26th Applicant was also beaten by the PIU officers, carried into the truck and handcuffed. They tied a rope around her legs, pulled it tight as a result of which she fell off, bent and broke her little left finger which was swollen and was left without medical attention. She averred that the officers tore her clothes and left her naked except for a short wrapper she wore underneath her cloth. That she was taken to another room where she was told that she will cry until her mouth tears up and no one will hear her. That she was given another round of merciless beating with hose pipes and batons for about an hour leaving her whole body bloody and damaged while the officers continued to pour water on her. That they slapped her on both ears simultaneously and kept asking her questions as to why she is with the opposition party. That they later called a medical doctor to check on her and other detainees.

The 27th Applicant, who is the youth wing President of the party, was on her way back from school when she was chased, caught up and thrown into the truck with the officers stamping on her with their feet. When she demanded to know why she was arrested, one of the officers slapped her. That they used her head tie to cover her head, face and mouth and also asked questions about her political affiliation. That they took her to a dark room, undressed her and beat her seriously until she collapsed. That they called about 10 fat men to rape her but she insisted she has not known any man before except her husband and it will be better for them to kill her. When they heard this, they stopped. She further averred that she was asked to make a statement under duress. That they poured water on her and threw her on the floor without clothes. She had to be assisted on a wheel chair to use the bathroom by two women. That she collapsed and was taken to the clinic in NIA. She started urinating blood and was at the clinic for about thirteen (13) days. She was also bleeding all over. That afterwards, the officers brought very good medicines to heal their wounds before they were taken to Court. Subsequently, they were taken to Mile 2 prison with poor food, no access to medicine and family visit. That the Doctors in NIA said they should bath with hot water because of the injury, however, they had no access to hot water in Mile 2 prison.

The 28th Applicant alleged that she was put in a truck, handcuffed and taken to Mile 2 prison. That one of the officers kicked her on the back and used her veil to cover her face. That she was asked to lie down on a table, open her mouth and stick out her tongue. She further alleged that the officers used vulgar languages on her while being beaten and slapped. She was left with a swollen face and her ears burst to the extent that she lost consciousness. That they later kept on pouring water on her until she regained her consciousness. That she lost consciousness a second time and sustained injuries all over her body. That the beatings were severe and that she was urinating blood, after which she was carried on a wheel chair to the NIA clinic.

The 30th Applicant, asserted that he was on his way from a business transaction when he was arrested, handcuffed and put in a truck. That the handcuff injured him on the wrist. That the officers took his statement and put it in writing but was not given the opportunity to read the statement before being asked to sign. His face was covered with a black cloth and he was taken to another room where he was beaten up, placed on a table and poured water on him. That the beating was severe and he was in much pain.

The 5th Applicant who is the vice chairman of the UDP party was attacked by the officers with batons and guns and he sustained injuries on the head. That he was kept in solitary confinement and released only once a day to bath. He also stated that the food given to him in detention was extremely terrible.

The Respondent in response negated all the allegations above and reiterated that the Applicants were not treated inhumanly without more. By its very nature, documents made under oath are reflective of the true position in a matter. It is well-settled that averments in supporting affidavits are evidence upon which the Court may, in appropriate case act.

In the case of MAGNUSSON V. KOIKI (1993) 9 NWLR (PT. 317) 287 SC, the Supreme Court observed that affidavit evidence upon which applications or motions are largely decided are not the same thing as pleadings in a civil suit, which are written statements (and not evidence generally) of facts relied upon by a party to establish his case or answer to his opponent's case.

In the instant case, in their deposition on oath, Applicants presented a prima facie substantiation of an interference with their rights and arguable basis for violation. Where evidence is produced that suggests the victim suffered ill-treatment while in the custody of State authorities, the burden may shift to the State to produce evidence to show that the State was not responsible as was held in the case of MR. NIAN DIALLO V (2019) ECW/CCJ/JUD/14/19

In this instance, proof is what allows one to establish the value of truth or falsity, regarding a statement or a fact that is judicially relevant. To this end, it is submitted that mere averments in pleadings does not amount to proof. In case of OBIOMA C. O. OGUKWE V REPUBLIC OF GHANA (2016) ECW/CCJ/JUD/20/16 Para.8 @ page16 this Court held that:

Generally, the burden of proof rests on he who alleges. Where however that person makes a prima facie case, he carries the benefit of presumption and the obligation to prove then shifts to the other party who has the burden of presenting evidence to refute that presumption”.

Under the principle of proof, where the Applicants make depositions on torture, inhuman and degrading treatment, the Respondent needs to go beyond mere denial to adduce evidence to show that the Applicants were treated with respect and dignity. No single person was brought before the Court to testify in this regard neither was there any form of documentary evidence to persuade the Court to reason with the Respondent as to the falsity of the Applicants claims. In the absence of convincing evidence, the Court is again inclined to believe that the allegations of the Applicants in this regard were true. Article 5 of the African Charter promotes respect for dignity and expressly prohibits all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.

In the case of GABRIEL INYANG V. REPUBLIC OF NIGERIA (2018) ECW/CCJ/JUD/20/18 the Court relying on the decision in M.S.S. v. Belgium and Greece [GC], no. 30696 para ECHR 2011 stated thus:

“Treatment is considered to be “degrading” within the meaning of Article 3 of European convention which is pari materia to the provisions of Article 5 of the ACHPR, when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance

The court went further to state that in order for treatment to be “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment.”

The Court in the case of FEDERATION OF AFRICAN JOURNALISTS V. REPUBLIC OF THE GAMBIA (2018) ECW/CCJ/JUD/04/18 relied on the decision in Loayza Tamayo V. Peru judgment of September 17, 1997. Series C No. 33, para 57, where the Inter-American Court held that: “the violation of the right to physical and psychological integrity of persons is a category of violation that has several gradation and embraces treatment ranging from torture to other types of humiliating or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation. The European Court of Human right has declared that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical moral resistance”.

The act of slapping, kicking, masking, blind folding, being stripped naked, handcuffing, unconsciousness/fainting, confined in a dark room and inadequate feeding come with their physical and psychological effects. A slap on its own amounts to humiliation with a considerable impact on the person receiving it in terms of his identity, sight, speech and hearing as the face is the center of his senses. This is capable of arousing in the victim a feeling of arbitrary treatment, injustice and powerlessness. In the case of BOUYID V. BELGIUM (2015) Application no. 23380/09 ECHR, the European Court of Human Rights found that persons under the control of the police or a similar authority, are in a situation of vulnerability as the authorities who are under a duty to protect them flout this duty by inflicting the humiliation of a slap. The Court also found that the fact that the slap may have been administered thoughtlessly by an officer who was exasperated by the victim’s disrespectful or provocative conduct was irrelevant as the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned.

The Court considers the acts of the Respondent as alleged diminished the dignity of the Applicants and was therefore a violation of Article 5 of the Charter. As to the conditions in the prison cells where the Applicants claimed to have been kept, the Respondent also failed to lead evidence to rebut these claims. We submit that silence without more is deemed admission. The European Court of Human Rights in the case of TIREAN V. ROMANIA (2014) Application no. 47603/10 ECHR where the applicant complained about the conditions of his detention while serving a four-year prison sentence, the applicant further alleged he was beaten up by police officers during the criminal investigation against him and that the medical care during his pre-trial detention was inadequate. The Court concluded that the physical conditions of the applicant’s detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment prescribed by Article 3 of the Convention. A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3.

Also, in the case of the European Court of Human Rights KARABET AND OTHERS V. UKRAINE (2013) Applications nos. 38906/07 and 52025/07 in an allegation of ill treatment amongst others, where the applicants were brutally beaten by masked security officers and by prison guards to the point of fainting in the case of some. They had been tightly handcuffed, ordered to strip naked and adopt humiliating poses; and were transported in an overcrowded van. Further, they were deprived of access to water or food and exposed to a low temperature without adequate clothing; and, no adequate medical assistance was provided to them. The Court found that the authorities’ brutal action had been grossly disproportionate given that, there had been no transgressions by the Applicants. The Court also found that the Applicants had been subjected to treatment which could only be described as torture. The Court accordingly found a violation of Article 3.

In the instant case, the Respondent denied all the allegations made by the Applicants in their depositions. There was however no specific response to the alleged acts of torture and humiliating treatment while in custody of the agent of the Respondent. In custody situations it is incumbent on the State to provide a plausible explanation for injuries. The Respondents failed to annex any evidence to proof that the Applicants were not subjected to any form of torture inhuman or degrading treatment. No pictures to convince the Court that the Applicants came in and remained in good condition while in detention. The Applicants however provided a series of corroborative depositions on oath which was arguably the best they could provide considering their incarceration.

Therefore the principle of presumption of innocence until proved guilty was as a matter of obligation supposed to have been observed and applied to the inmates by the Respondent to the extent that bail was supposed to have been granted especially when the Court observed that the offence alleged to have been committed was a felony but a Public Order offence. There is no evidence before this Court rebutting these allegations of the Applicants who claimed to have been kept in terrible prison conditions.

In light of the foregoing, the Court holds that the treatment given to the Applicants while in custody is in violation of the Applicants rights guaranteed under Article 5 of the African Charter.

iii.     ACCESS TO FAMILY

The Applicants submitted inter alia that they were not allowed family visits while in detention. In challenging the Applicants assertion in this wise, the Respondent claimed to have annexed the daily occurrence book emanating from the prison which shows records of prison visitation to the Applicants by counsel and family members.

However, having critically scrutinized all the documents and annexures before the Court, we find no document of such nature emanating from the Respondent. As a matter of fact, the burden of proof lies on the person alleging the existence of facts. (See FEMI FALANA supra). However, where the adverse party expressly states that there was no such denial of visits, then it behooves on him to lead evidence to discredit the claims of the Applicants. More so, it is incumbent on the Respondent to annex such evidence having expressly referred to same in his pleadings. The Court notes that the denial of family visits while in detention will have a disproportionate effect on detainees and the aim of reintegration and rehabilitation.

The Court therefore finds that in the absence of such record in proof of the existing visitation record, that the Applicants families’ and Counsel were not allowed access to visit their love ones whilst families which directly affects the Applicant right to the dignity of their family.

iv.     RIGHT TO FAIR TRIAL

The Applicants alleged that throughout the entire trial at the national court there was an environment of intimidation characterized by fear and denial of their right to fair hearing and the right to make a statement before sentencing, the Respondent maintained that the rights to a fair hearing was adequately complied with all through the proceedings at the national Court. Right to fair hearing includes amongst others the Right to:

a.  Right to be presumed innocent until proven guilty by a neutral Court of competent Jurisdiction.

b.  To be heard before a free and fair Court of Competent Jurisdiction

c.  To be defended including the Right have counsel of Choice

d.  Right to access the courts devoid of any intimidation

e.  Right to Appeal

f.   Right to Equality before the Law

g.  Unfettered accessed to counsel.

The provision of Article 7 (c) of the ACHPR provided as follows:

Every individual shall have the right to have his cause heard. This comprises:

“The right to defense, including the right to be defended by counsel of his choice”

In more clear terms, Article 14 (3) (d) International Convention on Civil and Political Rights provides as follows:

I​n the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

“To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”.

The Constitution of the Respondent also guarantees the right to be defended by Counsel. Section 24 (3) of the Gambian Constitution provides that:

“Every person who is charged with a criminal offence-

(a) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice;”

The Applicants maintained that the Counsel representing them were compelled to withdraw their representation because the Court refused every application made on their behalf. That the presence of armed security personnel in and around the Court room during proceedings prevented their Counsel from consulting with them privately. That after Counsel withdrew their representation, the Court ordered that the Applicant defend themselves without giving them opportunity to engage another Counsel of their choice. Conversely, the Respondent argued that the Applicants were accorded the full guarantees of a fair trial and represented by Counsel of their choice until when counsel opted out and they elected to represent themselves. That the whole process was in conformity with the provisions of Article 7 of the Charter.

The Court having analyzed the annexures to the Applicants’ initiating application, it is clear that the trial Court categorically asked the Applicants in clear terms if they were ready to enter their defense or if they wish to wait for their Counsel but they failed to answer. (See para 29 Exhibit B 10, Judgment of the High Court of the Gambia Suit No. HC/179/16/CR/060/AO). Prior to this, the Applicants were called upon to prepare and enter their defense on the adjourned date and the 1st Applicant responded saying:

“I wi​ll say that our rights have been infringed by this court so I will not participate in a trial where our rights have not been protected. (…) I will therefore not participate in the proceedings”.

Similarly, when the Applicants were asked the number of days they required to file their written address, the 1st Applicant responded thus:

“I have said that I don’t wish to participate in this proceedings so I will not file any address. When I am convicted as I know I will, I will have something to say why sentence should not be passed on me”.

Furthermore, all other Applicants who were unrepresented by Counsel were informed of their rights and options in entering their defenses in accordance with the Criminal Procedure Code of the Gambia. This was communicated to them in their different languages but they remained silent and offered no word or gesture. By implication, it can be inferred that the Applicants waived their right to defense and to be represented by Counsel of their choice.

In HARUN GÜRBÜZ v. TURKEY (2019) (Application no.68556/10) the European Court of Human Rights in analyzing the provisions of Article 6 of the Convention which is in tandem with Article 7 of the African Charter and Article 14 of the ICCPR reiterated:

“Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest.

It must be pointed out that the grant of applications before a Court is at the discretion of the Court, albeit judicially and judiciously. The fact that a party is unsuccessful in any application should not be misconstrued as a violation of the party’s right to fair hearing. In JUSTICE PAUL UTTER DERY & 2 ORS v. THE REPUBLIC OF GHANA ECW/CCJ/JUD/17/19, as it relates to fair hearing, the Court found that failure to secure a favorable judgment is not tantamount to a denial of the right to fair hearing. The Court however notes the statement by the 1st Applicant indicating his unwillingness to participate in his own trial and that such statements constitutes a waiver of right thus the maim that no wrong will emerge out of an act for which consent has been given in other words “volenti non fit injuria.” It is important to note here that the mere presence of armed guards in the course of a trial at the National Court which the Respondent did not deny cannot not the mean absence of Equality before the Law and cannot be interpreted to amount to a violation of the Right to fair trial and on this note the court observed that there is no proof before it from the Applicant to support the allegation that the entire trial process at the National Court was marred with intimidation and deprivations of access to counsel of choice. The Court therefore finds that the Respondent did not violate the Applicants Right to fair hearing and fair trial. In the circumstances as in the instance case the Court hold that the Applicants Rights to fair hearing was not violated by the Respondent and the court so hold.

ISS​UE 3: WHETHER OR NOT THE PROVISIONS OF SECTION 5 OF THE PUBLIC ORDER ACT OF THE GAMBIA CONTRAVENES THE PROVISIONS OF ARTICLE 11 OF THE AFRICAN CHARTER.

The Applicants avers that a fundamental issue to the effect that Section 5 of the Public Order Act of the Gambia violates Article 11 of the African Charter on Human and Peoples Rights. They argued that the provisions of the said Article 5 are too stringent and amount to turning “the fundamental human right of assembly, peaceful protests, processions and demonstrations into a privilege to be conferred at the discretion of the authorities.” The Applicant further claims that the Public Order Act violates the Gambian Constitutional provisions on fundamental freedoms and is therefore void.

The Respondent on the other hand contends that the said acts in no way violates the provisions of Article 11 of the African Charter as the said Article 11 is not absolute but subject to certain limitations. Article 11 of the African Charter provides:

“Every Individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others”.

Section 25 (1) (d) of the Gambian Constitution puts it thus:

“Every person shall have the right to freedom to assemble and demonstrate peaceably and without firearms”.

Furthermore, Section 25(4) of the same Constitution provides-

“​The freedoms referred to in subsections (1) and (2) shall be exercised subject to the law of The Gambia in so far as the law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of the Gambia, national security, public order, decency, or morality, or in relation to contempt of court”.

Section 5 of the Public Order Act which is being contested provides:

(1​) The Inspector-General of Police in the city of Banjul or the Kanifing Municipality or; in any of the regions, the Governor or other person authorized by the president may direct the conduct of all public processions and prescribe the route by which and the times at which any procession may pass.

(2) A person who is desirous of forming any public procession shall first make application for a license to the Inspector- General of Police or the Governor of the region, or other person authorized by the President, as the case may be, and if the Inspector-General of Police or the Governor of the region or other person authorized by the President is satisfied that the procession is not likely to cause a breach of the peace , he or she shall issue a license specifying the name of the license and defining the conditions on which the procession is permitted to take place.

(3) A condition restricting the display of flags, banners, or emblems section shall not be imposed under subsection (2) of this section except such as are reasonably necessary to prevent risk of a breach of the peace.

(4) A magistrate or police officer not below the rank of Sub- inspector may stop any public procession for which a license has not been issued or which violates any of the conditions of a license issued under subsection (2) of this section, and may order it to disperse.

(5) A public procession which-

(b) Takes place without a license under subsection (2) of this section, or

(c) Neglects to obey any order given under subsection (4) of this section, is deemed to be an unlawful assembly, and all persons taking part in the procession, and in the case of a public procession for which no license has been issued, all persons taking part in the convening, collecting or directing of the procession commit a cognizable offence and on summary conviction before a Magistrate, are liable to imprisonment for a term of three years

The Public Order Act Cap 4 laws of the Gambia, is an extant legislation of the Gambia, duly enacted by the National Assembly of The Gambia. The provisions contained therein are clear and unambiguous.

Section 5 of the Public Order Act specifically calls for a license to be issued by the Executive or law enforcement authority of The Gambia before processions can be held. Similarly, Article 11 of the African Charter provides for that the exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others.

While it is submitted that the restrictions contained in Section 5 of the Public Order Act should not be seen as a tool in the hands of the Executive and law enforcement agencies to impinge on the guaranteed rights of persons under Article 11 of the Charter making it impracticable for individuals to enjoy their Human Rights, the positive obligation of ensuring national security, safety, peace and order should not be disregarded.

The Respondent further argued that the Applicants have not established a violation of Article 11 and that in any event it does not reside in this court to embark on an examination of laws of Member States but rather to protect the rights of citizens when violated.

In the case of FEDERATION OF AFRICAN JOURNALISTS V. REPUBLIC OF THE GAMBIA, (2108) ECW/CCJ/JUD/04/18, the Court having reiterated its human rights competence found that it has the powers to go into the root of the violation i.e. those laws which the Applicants are contesting to establish whether or not they are contrary to the provisions of international human right laws on freedom of expression.

The Respondent further argued that the tenor of the Public Order Act is regulatory of the right to assembly rather than prohibitive and the provisions are reasonably necessary to achieve legitimate aims to ensure public safety and public order. Assemblies of a public character raise a number of practical issues that ought to justify at least a minimum amount of consultation with the authorities regarding time, location, traffic management and other factors. These issues may include safety, security and inconvenience or even economic loss to those affected by the peaceful assembly. Hence, certain forms of regulation, such as the requirement to give prior notice or obtain an authorization or permit for an assembly, do not constitute an interference with the right to freedom of peaceful assembly. However it must be noted that the manner of exercising a Right under any given statute may lead to such action being negative and will therefore undermine the objective intended to be served. The action of the agents of the Respondent could assessed against this background in line with the provisions of Article 11 (2) of the ACHPR. From the provisions of Section 5 of the Public Order Act above, it can be inferred that the whole essence of imposing the need for a license is to ensure law and order, as well as a violent free processions in the overall interest of the populace.

In the case of ÉVA MOLNÁR V. HUNGARY (2009) APP. NO. 10346/05 FINAL, EUR. CT. H.R. the European Court of Human Rights’ position was that prior notification served not only the aim of reconciling, on the one hand, the right to peaceful assembly and, on the other hand, the rights and lawful interests (including the freedom of movement) of others, but also the prevention of disorder or crime. In order to balance these conflicting interests, the institution of preliminary administrative procedures is common practice in Member States when a public demonstration is to be organized, and that such requirements do not, as such, run counter to the principles embodied in Article 11 of the Convention, as long as they do not represent a hidden obstacle to the freedom of peaceful assembly protected by the Convention. Further, in case of LINDA GOMEZ & 5 ORS V. REPUBLIC OF THE GAMBIA (2012) ECW/CCJ/APP/18/12 at pg. 27, the CCJ stated that it lacks the jurisdiction to annul domestic legislations of ECOWAS Member States.

In light of the action of the agents of the Respondents in the instant case, the Court holds that the provisions of section 5 of the Public Order Acts of the Republic of the Gambia did not violate the provisions Article 11 of the African Charter and further holds that the Public Order Act section 5 of the Laws of The Gambia and is in tandem with permissible restrictions in ensuring law and order. However, the requirement of having to obtain the approval of the Inspector General of Police of the Gambian Police Force will undermine the exercise of such right and therefore needs a review.

IS​SUE 4: WHETHER THIS COURT HAS COMPETENCE TO DECLARE THE JUDGEMENTS OF NATIONAL COURT NULL AND VOID.

Finally, the Applicants urged this Court to declare the decision of the national Court of the Gambia null and void. This Court has in its flourishing jurisprudence held that it lacks the jurisdiction to sit on appeal over decisions of National Courts. In BAKARY SARRE & 28 ORS V. THE REPUBLIC OF MALI (2011), ECW/CCJ/JUD/03/11 the Court in determining the application filed by the Applicants held that: “The said application substantially seeks to obtain from the Court a reversal of judgment delivered by the Supreme Court of Mali and seeks to project the Court of Justice of ECOWAS as a Court of cassation over the Supreme Court of Mali. Viewed from that angle, the Court declared that it had no jurisdiction to adjudicate on the matter.” Also in OCEAN KING V. REPUBLIC OF SENEGAL (2011)ECW/CCJ/JUD/07/11 Para 66 @page 161.The Court reiterated its position to the effect that it does not compose itself as an appellate court over decisions of National courts. See also SIKIRU ALADE V. FEDERAL REP. OF NIGERIA (2012) ECW/CCJ/JUD/10/12; MUSA LEO KEITA V. MALI (2007) ECW/CCJ/JUD/03/07 @ pg. 72 para 26; DR. JERRY UGOKWE V. FRN & 1 OR, (2005) ECW/CCJ/JUD/03/05.

The Court therefore aligns itself to its precedents and holds that it lacks the powers to declare the decision of the national Court of the Respondent null and void.

ISSUE 5: WHETHER THE 32ND APPLICANT HAS CAPACITY TO INITIATE THIS APPLICATION ON BEHALF OF EBRIMA SOLO SANDENG (DECEASED)

Article 10 (d) of the Supplementary Protocol (A/SP.1/01/05 Amending Protocol (A/P1/7/91) specifically grants access to the Court to individuals who are seeking relief for violation of their Human Rights and it further provided the conditions precedent :

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i.          Not be anonymous; nor

ii.          Be made whilst the same matter has been instituted before another International Court for adjudication.”

Article 10 (d) requires that Applicants seeking relief for violation of their rights must establish the status of a victim who must have suffered a personal loss capable of being ascertained. The import of Article 10 (d) is that only persons who qualifies as victims of Human Rights violations can access the Court to seek relief for violation of their Human Rights. This Court has held in series of decisions that to qualify for relief in respect of Human Right violation the Applicant must establish his capacity as a victim. In the case of CENTER FOR DEMOCRACY AND DEVELOPMENT V. MAMADOU TANJA & REPUBLIC OF NIGER (2011) ECW/CCJ/JUD/05/11 @ 27, the Court has this to say:

‘​‘Cases shall be brought before the court by natural or legal person endowed, within the framework of their national laws, with the required Legal capacity, and who, in addition, shall justify their condition of being Victim…the Court recalls that when an application on human rights. Violation is brought before it, it is so done necessarily by a person who is a victim of the said violation against one or several Member States.’’

Also in the case of MUSA SAIDYKHAN V. REPUBLIC OF THE GAMBIA (2012) ECW/CCJ/JUD/08/12 @ page 43, this Court held that:

“Prin​cipally the object of an award in human rights violation is to vindicate the injured feelings of the victim and to restore his rights and human dignity.’’

It can be concluded from the above decisions that only persons who can justify their claims of being directly affected have the standing to seek reliefs for violations of human rights from the Court.

The question to determine now is whether the Applicants in the instant case are victims within the meaning of Article 10(d) of the Protocol and this leads the Court to determine who is a victim of Human Rights violation. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Survivors of Violation of International Human Rights and Humanitarian Law, was defined in GA Res 60/147,pmbl, Sec IX, UN Doc A/RES/60/147(March 21, 2006), defines:

“ A victim is anyone who suffers individual or collective harm ( or pain) such as physical or mental injury, emotional suffering, economic loss or generally any impairment of Human Rights as a result of acts or omissions that constitutes gross violation of Human Rights or serious violations of Humanitarian Law norms”

As noted above, it is without doubt that the 32nd Applicant is not victim within the meaning of the definition of who is a victim for the purpose of Article 10(d). However, the Court notes that it endorses on the face of the Application that it is coming before this Court in a representative capacity. The 32nd Applicant having endorsed its claim in a representative capacity, it behooves on it to establish by a credible documentary evidence by way of a Letters of Administration or an Authority to show that it has the capacity to represent the estate of Ebrima Solo Sandeng as the deceased Personal Representative. In the absence of this evidence the action fails. To date there is no evidence before this Court to show that the 32nd Applicant in this suit has the capacity required by law to represent the Estate of Ebrima Solo Sandeng (deceased) as his Personal Representative for it to institute this action. On this note, the action of 32nd Applicant fails See the case of the Trustees Jamaa’ a Foundation & 3Ors vs. The Federal Republic of Nigeria& ors. ECW/CCJ/APP/26 /13.

De​cision

For the reasons stated above, the Community Court of Justice, sitting in public after hearing the parties, and their submissions duly considered in the light of the provisions of the African Charter on Human and People’s Rights, as well as the Supplementary Protocol of the Court and the Court’s Rules of Procedure, hereby declares as follows:

1.  That the 32nd Applicant lacks the locus standi to represent the Estate of Ebrima Solo Sandeng in this action, he having been denied locus standi.

2.  That section 5 of the Public Order Act does not violate Article 11 of the African Charter as claimed.

3.  That prayers 7, 14 and 15 of the Applicants on grounds of locus standi are hereby dismissed.

4.  That the arrest and detention of the 1st, 3rd, 4th, 5th, 15th, 17th, 26th, 27th, 28th, 30th and 31st Applicants was lawful and did not violate Articles 5, 6 and 11 of the African Charter. However, the detention that followed was arbitrary as the period of detention went beyond the limit permitted by the law of the Gambia before the Applicants were brought to Court.

5.  Declares that the acts of torture, inhuman and degrading treatment meted out on the 1st, 3rd, 4th, 5th, 15th, 26th , 27th, 28th ,30th and 31st Applicants violates Article 5 of the African Charter.

6.  That the claim for violation of the right to fair hearing of the applicants fails and is hereby dismissed.

7.  That prayer 8 is denied.

Orders​ and awards

In consequence of which the Court orders the Respondent as follows; In consequence of which the Court orders the Respondent as follows;

1.  To pay the sum of One Hundred Thousand United States Dollars (100,000 USD) equally to the 1st, 3rd, 4th, 5th, 15th, 17th, 26th, 27th, 28th, 30th for the hardships ad violations of their Human Rights caused to them by agents of the Respondents.

2.  That the Respondent sets up an independent panel of inquiry to look into the events of the 14th and 16th of April 2016, and also determine the persons responsible for the arrest, detention, torture and other forms of ill- treatment of the Applicants be made to give account of their actions by Putting in place effective measures to discipline and prosecute the police officers involved.

3.  That the Parties bear their own costs.

THIS​ DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 20th January, 2020.

Hon. Justice Edward Amoako ASANTE, Presiding

Hon. Justice Gberie-Be OUATTARA, Member

Hon. Justice Keikura BANGURA, Rapporteur

 

Mr Tony Anene MAIDOH, Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 19 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Bangra JA
Search summary

 

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

Holden at Abuja, Nigeria

On Wednesday, the 30th day of October 2019

Suit No. ECW/CCJ/APP/19/17

Judgment No. ECW/CCJ/JUG/31/19

 

BETWEEN

Ham​a Amadou                                                                                           APPLICANT

Assisted by Maître Francois Serres and

Maître Mike Bul (Lawyers registered respectively with the Bar Association of Paris and Niamey)

AND

Rep​ublic of Niger                                                                                      DEFENDANT

Represented by Secretary General of the Government Defence Counsel: Maître Moussa Coulibaly (Barrister-at-Law)

 

BEFORE THEIR LORDSHIPS

 

1.  Hon. Justice Edward Amoako Asante                  Presiding

2.  Hon. Justice Gberi-Bé Ouattara                           Member

3.  Hon. Justice Keikura Bangura                              Member

 

Assisted By: Maître Athanase Atannon                     Registrar

Delivers the following Judgment:

 


THE COURT,


-     Having regard to the 24 July 1993 Revised Treaty establishing the Economic Community of West African States (ECOWAS);

-     Having regard to the 6 July 1991 and the 19 January 2005 Protocols on the ECOWAS Court of Justice;

-     Having regard to the 3 June 2002 Rules of Procedure of Procedure of the Court;

-     Having regard to the 10 December 1948 Universal Declaration of Human Rights (UDHR);

-     Having regard to the 27 June 1981 African Charter on Human and Peoples’ Rights (ACHPR);

-     Having regard to the International Covenant on Civil and Political Rights (ICCPR);

-     Having regard to the Initiating Application of the above-cited Applicant, received at the Registry of the Court on 5 April 2017;

-     Having regard to the Defence of the Republic of Niger received at the Registry of the Court on 28 June 2017;

-     Having regard to the Reply of the Applicant received on 1 August 2017;

-     Having regard to the Rejoinder of the Defendant received at the Registry of the Court on 22 November 2017;

-     Having heard each Party through their respective Counsel; and

-     Upon deliberation in accordance with the law;

 


FAC​TS AND PROCEDURE


1.  By Application received at the Registry of the Court on 5 April 2017, Hama Amadou filed a case before the Community Court of Justice, ECOWAS asking the Court to:

-     Declare that the Republic of Niger violated Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR) regarding right to security;

-     Declare that the Republic of Niger violated Article 26 of ICCPR and Article 3 of ACHPR regarding equality before the law;

-     Declare that the Republic of Niger violated Article 15(1) of ICCPR and Article 7(2) of ACHPR regarding the law of nulla poena sine lege;

-     Declare that the Republic of Niger violated Article 14 of ICCPR and Article 7 of ACHPR regarding the right to fair hearing;

-     Declare that the Republic of Niger violated Article 13 of ACHPR regarding the right to participate freely in the government of his country;

-     Declare that the Republic of Niger violated Articles 17 and 23(1) of ICCPR and Article 18 of ACHPR regarding the right to family life;

-     Find that the charges laid were made without legal basis and in violation of the principles of fair trial;

-     Order the Republic of Niger to refrain from implementing the decision made, and to derive all the legal consequences thereof, capable of depriving the Applicant of his rights, either as a litigant or as a citizen, as stipulated in texts subscribed to by the Republic of Niger on human rights; the Court is further requested to restore the Applicant back to his original situation in which he would have found himself, had the said violations not occurred;

-     Ask the Republic of Niger to pay to Amadou Hama the sum of CFA F 3,280,000,000 (Three Billion Two Hundred and Eighty Million CFA Francs) as costs incurred in connection with the instant action.

2.  In support of his Application, by way of written pleadings submitted by his Counsel Maîtres Francois Serres and Maître Mike Bul, Hama Amadou averred that on 25 June 2014, a report by a Police Commissioner was brought to the attention of the Public Prosecutor, highlighting suspicions of the involvement of Madam Adizatou Hama, wife of Amadou Hama, on charges amounting to the fraudulent offer of children to women who were not their biological mothers.

3.  That the statement from the report, which equally indicted other personalities, in the terms of which: “in most of the cases, it was the wives who financed the costs”, did not concern him in any way whatsoever. That even before he was heard on the charges, on 16 July 2014, upon summons from the Public Prosecutor, the Minister of Justice brought the matter before the Council of Ministers, for the purposes of “lifting the parliamentary immunity” on him; and following the summons before the Council of Ministers, the Prime Minister, in turn, brought the matter before the Bureau of the National Assembly, for a trial to be instituted against him.

4.  That in reaction to this manner of proceeding with the case, which he deemed irregular, he challenged, via a mail addressed to the Prime Minister, the procedure adopted, citing violation of the relevant rules of law and procedure.

5.  That his arguments were dismissed by the Prime Minister, and he brought the case before the Constitutional Court to request the opinion of the Court regarding violation of procedure, and to seek suspension of the procedure unlawfully instituted before the Bureau of the National Assembly.

6.  That without waiting for the Court’s opinion, which was still in expectation, and in the absence of the President of the Bureau of the National Assembly (since the National Assembly was not in session), the Bureau was convened by its Vice-President (who is a member of the Majority) and indeed, not by its President; that under utterly irregular conditions, composed of 7 out of the 11 members, the Bureau voted by a simple majority to authorise a trial to be instituted against him. That the decision, as adopted by the Bureau, was taken while he had not even been summoned by the Public Prosecution Office, and while the latter had not ordered any proceedings to be brought against him.

7.  That due to the obvious violations involved in the procedure for removing his immunity, and the risks confronting him, concerning his safety and his life, on 28 August 2014, he was compelled to go into exile in France.

8.  That on 15 September 2014, the Public Prosecutor notified the trial judge of a substituted summons indicating that an authorisation for arrest had been approved by the National Assembly to re-open trial proceedings against him.

9.  That on 23 September 2014, it was observed that he was no more at his home, and a court order was issued to search for him, but to no avail; that on the basis of that fruitless search, on 25 September 2014, the Public Prosecutor instructed the investigating judge to prepare a warrant for his arrest, which was complied with. That on 4 December 2014, the order for closure of the trial proceedings and transfer before the criminal court, stated that his case must be transferred before the criminal court of Niamey.

10. That upon his return to his home country, he was picked off the staircase of the aircraft and sent to the Niamey civilian, that his imprisonment was effected without him appearing before the Public Prosecutor of the area of his arrest nor before another judge. That the detention lasted from 14 November 2015 to 16 March 2016, still without him having appeared before the judge who was investigating the case (who, therefore, did not hear him), nor before another judge.

11. That at any rate, all the other key figures indicted in the procedure were free, and requests for the release of Amadou Hama were systematically rejected upon the pretext of preventing every collusion with the other persons charged with other offences, whereas the investigation at that stage had closed and the case had already been tried in first instance and at appeal stage, and was pending before the Cour de cassation (Cassation Court).

12. That he was thus detained by virtue of an arrest warrant issued on 25 September 2014 whose validity and enforceability cannot be sustained before the decision made by the judges of the court of first instance on 30 January 2015, who ruled that the procedure initiated had no legal basis unless there was a prior decision by a civil court on the issue of parentage and blood relationship.

13. That contending that his human rights were violated, he brought the matter before the Community Court of Justice, ECOWAS for violation of his right to security, his right to equality before the law, his right regarding violation of the law of nulla poena sine lege, his right to fair hearing, and his right to family life.

14. That in response, the Republic of Niger argued, through the written pleadings of his Counsel Maître Moussa Coulibaly, that in 2014, the Nigerian media reported on the discovery of a huge inter-State child trafficking syndicate in the sub-region. That under aegis of a police co- operation framework among ECOWAS Member States, a dispatch was sent from within the Niger Police Force to Nigeria to investigate, and in their report, they made mention of the dismantling of a child trafficking network named ‘baby factories’. That searches conducted on the premises of those ‘baby factories’ led to the discovery of young ladies who were held in captivity till they give birth, and their babies were sold by one Agoundeji Happiness, at 800,000 Naira for a boy and between 300,000 to 400,000 Naira per girl.

15. That the preliminary inquiry of the Criminal Investigation Division (CID) of the Niger Police led to the arrest of 18 persons for questioning including Madam Adizatou Amadou Dieye, the wife of the Applicant.

16. That Madam Adizatou Amadou Dieye challenged the charges made against her and stated that she gave birth to a set of twins on 1 September 2012 without indicating the health centre where she gave birth. That questioned on the birth certificates of the children concerned, she asked the investigators to find out from Hama Amadou, her husband, disclosing further that the children are holders of diplomatic passports of Niger.

17. That in closing the trial of the criminal procedure instituted in connection with the case, the investigating judge pointed out that there were serious and corroborating indications standing against Hama Amadou and testifying that he was accomplice to the offence of fraudulently offering children to women who were not their biological mothers, committed by his wife Adizatou Amadou Dieye, forgery of civil documents through falsification of the birth certificates of Lilian- Guel and Lalia-Fadima, use of forged civil documents by tendering false birth certificates for the purpose of procuring passports for the said two children.

18. That being the President of the National Assembly, and therefore a member of the state parliament, the trial judge transferred the case- file on the proceedings to the Public Prosecutor to enable the procedure to follow its course as required by law.

19. That applying that procedure meant that the Applicant had to be brought to trial.

20. That recognising that the Bureau of the National Assembly was incompetent to authorise him to be brought to trial, and that the authorisation for arrest did not constitute removal of parliamentary immunity, Hama Amadou and a group of opposition parliamentarians brought the case before the Constitutional Court.

21. That by Judgments of 4 and 9 September 2014, the Constitutional Court the then Bureau of the National Assembly was competent, outside its session periods, to authorise the arrest of a parliamentarian, and that the authorisation for arrest given by the Bureau of the National Assembly constituted a removal of parliamentary immunity.

22. That in conclusion, the Honourable Court is principally requested to declare that it has no jurisdiction to hear the case, and alternatively, it is prayed to declare that the Application is inadmissible on the ground of res judicata, and on a further alternative plea, may it please the Court to declare that the Application is ill-founded.

23. That considering that the instant procedure is frivolous in nature and an abuse of court procedure, it requests, as a counter-claim, that the Applicant pay damages of a symbolic 1 CFA Franc to the Republic of Niger and CFA 500,000,000 (Five Hundred Million CFA Francs) as unrepeatable costs.

24. Hama Amadou responds in his Reply, received at the Registry of the Court on 1 August 2017, that the violations he submitted before the Court are:

-     Violation of his parliamentary immunity;

-     Violation of the principle presumption of innocence;

-     Political instigation of members of the parliamentary majority of the Bureau;

-     Violation of the right to effective remedy;

-     Violation of the right to return to one’s country;

-     The expired nature of the arrest warrant issued against him.

25. That it was in the light of these allegations that the Court must examine whether there is any relevance of res judicata as pleaded by the Republic of Niger. That the action brought before the Court by him is founded upon violation of the right to security, violation of the right to equality before the law, violation of the principle of nulla poena sine lege, violation of the principle of fair trial, and violation of the right to family life.

26. That the Honourable Court is competent to determine the case and that there is no re judicata.

27. In its Rejoinder dated 12 January 2018 received at the Registry of the Court on 15 January 2018, the Republic of Niger argues that the Reply lodged by Hama Amadou on 22 November 2017, after closure of the written procedure, and in violation of the provisions of Articles 37(2)(3) and 40(1)(2) of the Rules of Procedure of the Court, must be dismissed. Alternatively, the Republic of Niger pleads incompetence of the Court, and on a further alternative ground, asks the Court to dismiss all the claims brought by the Applicant, in their intents and purposes. The Republic of Niger also asks the Court to order DNA tests to be carried out on Adizatou Amadou Dieye and on the alleged two children of Hama Amadou and Adizatou Amadou Dieye, as a married couple.

28. Hama Amadou argues that the provisions of Articles 37 and 40 invoked above the Defendant were not violated. That the Court has jurisdiction to hear the dispute and that his rights are violated by the Republic of Niger. That in the absence of any relevant law of Niger on the matter, no DNA test must be ordered by the Court to be conducted on his wife or his children.

29. Upon examining the pleadings in the case, it is apparent that the Court must make pronouncements on the following issues:

(1) Jurisdiction of the Court;

(2) Admissibility of the Application and res judicata;

(3) Violation of human rights;

(4) Damages on human rights violation;

(5) Damages on vexatious court process.

 


ANALYSIS OF THE COURT


A.  REGARDING THE JURISDICTION OF THE COURT

30. First and foremost, it is appropriate to stress that the Republic of Niger raised as a principal defence the issue of lack of jurisdiction of the Honourable Court.

31. The Court recalls that in every instance where an application is brought before it, it is binding upon the Court to examine its jurisdiction, as to whether, all things well considered, the incompetence of the Court is advanced as a principal plea for defence; the Court must therefore make a pronouncement on its jurisdiction.

32. It can be deduced from the provisions of Article 9(4) of Supplementary Protocol A/SP.1/01/05 amending Protocol A/P.1/7/91 on the Community Court of Justice, that the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.

33. In that light, the Applicant invokes violation of human rights under Article 9 of the 19 January 2005 Protocol, alleging that he is a victim of that violation.

34. In several cases, including Mamadou Tandja v. Niger and El Hadj Aboubacar Tijani v. BCEAO, the Honourable Court declares that for the Court to uphold its human rights mandate, citing human rights violation suffices.

35. It is apparent from the Initiating Application that Hama Amadou is asking the Court to declare that the Republic of Niger violated the provisions of: Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR) regarding right to security; Article 26 of ICCPR and Article 3 of ACHPR regarding equality before the law; Article 15(1) of ICCPR and Article 7(2) of ACHPR regarding the law of nulla poena sine lege; Article 14 of ICCPR and Article 7 of ACHPR regarding the right to fair hearing; Article 13 of ACHPR regarding the right to participate freely in the government of his country; Articles 17 and 23(1) of ICCPR and Article 18 of ACHPR regarding the right to family life.

36. He further asks the Court to: find that the charges laid against him were made without legal basis and in violation of the principles of fair trial, and order the Republic of Niger to refrain from implementing the decision made, and derive all the legal consequences thereof, capable of depriving him of his rights, either as a litigant or as a citizen, as stipulated in texts subscribed to by the Republic of Niger on human rights; to restore him back to his original situation in which he would have found himself, had the said violations not occurred.

37. The Court notes that it has jurisdiction to hear human rights violations arising from provisions of the ACHPR and the ICCPR, which the Applicant claims to be a victim of, as may have been perpetrated by the Republic of Niger, a Member State of the Economic Community of West African States (ECOWAS).

38. On the other hand, as regards the request before the Court, to examine the legality or otherwise of the charges made against him by the law-enforcement agencies of the Republic of Niger, the Court recalls that as far as that specific request is concerned, there is a well- established case law of the Court according to which applications brought against decisions of the national courts of Member States shall be considered to be outside the remit of the powers of the Court.

39. The Court held so in Case Concerning Jerry Ugokwe v. Federal Republic of Nigeria (7 October 2005).

40.  In Case Concerning Al Hadji Hammani Tijani v. Federal Republic of Nigeria and Others (28 June 2007), the Court was of the view that: “Admitting this application will amount to this Court interfering in the criminal jurisdiction of the Nigerian Courts, without justification” §45

41. Similarly, in the judgment on Alimu Akeem v. Federal Republic of Nigeria (28 January 2014), the Court recalled that: “It is trite that in those cases where the subject-matter of the dispute essentially had to do with a re-examining of judgments already delivered by the domestic courts, the Honourable Court held that they be dismissed.”

42. Finally, in the judgment of CDS Rahama v. Republic of Niger (23 April 2015), the Court ruled that: “On the basis of the principle behind this standpoint, it can be deduced that the requests of CDS Rahama concerning the decisions of the local courts of Niger cannot be granted, the reason being that the Court has no remit for examining such decisions; and more generally, after decisions are made by the domestic courts of Niger, the Court has no jurisdiction to examine whether those local courts of Niger adhered or not to their jurisprudence or generally, to the national law of Niger. ” (§51).

43. Such abundant and relevant jurisprudence urges the Court to decline jurisdiction on that aspect of the Application which concerns the domestic law.

44. Whatever the case may be, it is undoubted that in the Application brought before the Court on 5 April 2017 by Hama Amadou against the Republic of Niger, he equally alleges violation of human rights, notably violation of the right to security, violation of the right to equality before the law, violation of the principle of nulla poena sine lege, violation of the right to fair trial and violation of the right to family life.

45. In accordance with Article 9(4) of the January 2005 Protocol, in the terms of which “The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State”, and in line with Article 10(d) of the same Protocol which provides that “Access to the Court is open to ... individuals on application for relief for violation of their human rights ...”, the Honourable Court is competent to hear the instant case.

 

B.  REGARDING ADMISSIBILITY OF THE APPLICATION AND THE FORCE OF RES JUDICATA

46. In the terms of Article 10(d) of Supplementary Protocol A/SP.1/01/05 of 19 January 2005: “Access to the Court is open to ... individuals on application for relief for violation of their human rights ...”.

47. The application thus submitted shall not be anonymous nor be made whilst the same matter has been instituted before another International Cour for adjudication.

48. In the present case, the Court notes that an application for human rights violation has been submitted before it by Hama Amadou, claiming to a victim of those human rights violations as enumerated in the Initiating Application.

49. Upon scrutiny, the Application is not anonymous and the Applicant has not lodged the same matter before another International Court for adjudication. The Court is therefore, in principle and on the face of it, declares the Application admissible.

50. All the same, it is worthy to recall that in the Defence against the Application filed by Hama Amadou, the Republic of Niger invoked res judicata, which, legally speaking, is a foreclosure (an estoppel).

51. The Court emphasises that res judicata is the sum total of effects arising from a court decision in such manner as to render the decision not contestable except under legally open channels.

52. A court decision is binding on the parties and all the courts of justice; a court decision thus prevents other courts from settling the same dispute for a second time.

53. However, res judicata only concerns the subject-matter of the decision made in court.

54. The orders sought must have been made by the same parties and against the same parties, and must be based on the same cause; what is asked for from the court must remain the same.

55. Incidentally, the Republic of Niger avers that the present case is exactly the same as the one Hama Amadou filed before the Honourable Court (ECW/CCJ/APP/32/15) which was decided on its merits in Judgment ECW/CCJ/JUD/20/16; the Republic of Niger consequently affirms that the force of res judicata is applicable.

56. On the contrary, Hama Amadou maintains that the present procedure is completely different from the first one in the sense that unlike the first one, he is now invoking violations of: right to security, right to equality before the law, right regarding violation of the law of nulla poena sine lege, right to fair hearing, and right to family life.

57. The Court must conduct a critical analysis of the facts, so as to determine if in the instant case, there is indeed res judicata.

58. The first procedure, Suit No. ECW/CCJ/APP/32/15, was between Hama Amadou, as Applicant, and the Republic of Niger, as Defendant.

59. The present procedure, ECW/CCJ/APP/19/17, is between Hama Amadou, as Applicant, and the Republic of Niger, as Defendant.

60. The two suits therefore involve the same Parties coming before the Court, in their same respective capacities.

61. The following facts can be gathered from the judgment delivered on the first case, as delivered by the Court:

-     The Applicant, former President of the National Assembly of Niger, filed a case before the Court for human rights violation;

-     Initially an ally of the government in place, after the 2011 elections, he had to leave the political alliance, following internal disagreements regarding the alliance. He contends that during the month of February 2014, various measures were taken by the government authorities primarily aimed at stripping him of police protection. But of special note is that in the month of June 2014, and after the press had reported on a big case of child trafficking, whose principal transit points were located in the Republic of Benin, the Republic of Niger and the Federal Republic of Nigeria, police investigations led to the indictment of the Applicant’s wife, and subsequently the Applicant himself, in connection with the case. Inquiries were thus launched against them, and on 22 June 2014, Mrs. Hama Amadou was summoned for questioning; she was placed in police custody and accused of fraudulent sale of children to women who were not their biological mothers, forgery and use of forged documents and criminal association;

-     On 15 September 2014, the Prosecutor brings the matter before the dean of investigating judges, for trial proceedings to be instituted against Hama Amadou, under the same counts of charges;

-     Indeed, due to the status of the Applicant as a parliamentarian, and moreover as the President of the National Assembly, a special procedure was required for effecting his arrest. It was within that context that the Prime Minister served an application on the Bureau of the National Assembly to produce Hama Amadou for prosecution. The Bureau acceded to the request, informing the President of the Appeal Court of Niamey;

-     The same day, on 26 August 2014, in writing, Hama Amadou writes to the following authorities, and brings the matter before them, considering the approach adopted by certain state institutions, in bringing him before trial, as an illegal procedure: the Prime Minister himself, the Vice- President of the National Assembly, and particularly, strictly legally speaking, the Constitutional Court (for interpretation of Article 88 of the Constitution of Niger, regarding parliamentary immunity and the conditions for the arrest of a parliamentarian);

-     Almost a month later, on 25 September 2014, an arrest warrant was issued against the Applicant, who quickly left the country. He stays ‘in exile’ for more than one year. It was upon his return to the country, particularly to participate in the presidential election, that he was arrested and detained;

-     It was under those circumstances that he decided, by an application which reached the Registry of the Court on 3 November 2015, to file his case before the ECOWAS Court of Justice, claiming that the state authorities of Niger violated his rights;

-     At the same time, the Applicant lodged an application requesting the Court to hear the case under expedited procedure, claiming urgency. The Court, in an order, dismissed the request and ordered the proceedings to continue;

-     The Republic of Niger, on its part, lodged a defence on 1 December 2015, and an ‘additional’ memorial in defence, on 4 December 2015.

62. Upon examining the foregoing facts, one is left with no doubt that the same facts are at play in the two procedures; since the delivery of the said Judgment by the Honourable Court on 1 July 2016, similar charges have not been filed against Hama Amadou, the Applicant.

63. In the first case, Hama Amadou pleaded that these facts constitute human rights violation and he asked for monetary compensation; in the present case, he equally pleads human rights violation and asks for relief for the harm the violations may have caused him.

64. The Court finds therefore that in the present case, the Application is made by the same Applicant, Hama Amadou, against the same Defendant, the Republic of Niger. The Court equally finds that the Application is based on the same cause, that is to say, human rights violation. The purpose of the request is also the same, in the sense that in both proceedings, the order sought is payment of damages.

65. Now, very obviously, the Honourable Court has sat on this case and already adjudicated and concluded that the Applicant did not produce any decisive proofs capable of establishing evidence of violation of rights. His Application was therefore dismissed.

66. Since Judgment No. ECW/CCJ/JUD/20/16 of the Court is not subject to appeal, it automatically means that the judgment is res judicata, such that that very case which gave rise to the said judgment cannot be brought before the Court for a second time without invoking new facts before the Court.

67. Therefore, irrespective of its apparent consistency with formality, the Application of Hama Amadou is inadmissible before the Court.

68. Since the Application is inadmissible on grounds of res judicata, the Court cannot make any pronouncement on the alleged human rights violation, much less, on the request for damages in reparation for the said violations.

 

C.  REG​ARDING COUNTER-CLAIMS AND DAMAGES FOR ABUSE OF COURT PROCESS

69. The Court recalls that abuse in the exercise of a right is constituted by a manifest offence such as fraud or bad faith, a gross misdemeanour of deceit, or an intention to cause harm.

70. In the case at hand, the pleading of the Republic of Niger describes the instant procedure as an abuse of court process. It also claims that the action is vexatious and of bad faith towards the interests of the Republic of Niger, but it does not bring evidence of the offence committed by the Applicant who initiated the process, his alleged gross misdemeanour, his bad faith, or his intention to harm.

71. Consequently, the said request, as made by the Republic of Niger, is ill- founded.

72. The request is hereby dismissed.

 

D.  RE​GARDING COSTS

73. In the terms of Article 66 of the Rules of Procedure of the Community Court of Justice, ECOWAS, “The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.”

74. In the instant case, both Parties are unsuccessful.

75. Moreover, each of the two Parties expressly applied for costs to be awarded against the other.

76. Thus, each Party shall bear its own costs.

 


FOR THESE REASONS


The Court,

-     Adjudicating in a public session, after hearing both Parties, in a matter on human rights violation, in first and last resort;

-     Declares that it has no jurisdiction to adjudicate on all the issues raised by the Applicant, concerning the decisions of the domestic courts of the Republic of Niger;

-     Declares that it has jurisdiction to adjudicate on the other matters pleaded in the Application;

-     Finds that the dispute is between the same Parties, maintaining the same former status respectively as Applicant and Defendant, with both Parties pleading the same cause, and for the same purpose;

-     Adjudges that the force of res judicata is upheld and sustained;

-     Adjudges therefore that the Application of Hama Amadou is inadmissible;

-     Entertains the counter-claim and application for damages brought by the Defendant;

-     Adjudges, however, that the counter-claim and application for damages brought by the Defendant are ill-founded;

-     Dismisses the counter-claim and application for damages brought by the Defendant;

-     Adjudges that each Party shall bear its own costs.

 

Made and declared on the day, month and year indicated above.

 


AND THE FOLLOWING HEREBY APPEND THEIR SIGNATURES


 

1.  Hon. Justice Edward Amoako Asante                                   Presiding

2.  Hon. Justice Gberi-Bé Ouattara                                           Member

3.  Hon. Justice Keikura Bangura                                              Member

 

Assisted By: Maître Athanase Atannon                                     Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 41 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Search summary

 

 

JUDGMENT No. ECW/CCJ/JUD/12/19

---

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN

STATES (ECOWAS)

HOLDEN AT ABUJA, NIGERIA

ON WEDNESDAY, THE 28TH DAY OF FEBRUARY 2019

 

IN THE CASE BETWEEN

NANCY BOHN-DOE, a citizen of Liberia and former First Lady of Liberia, resident at 9th Street Sinkor, Montserrado County, Republic of Liberia: Administratrix of the intestate estate of her husband the late Dr. Samuel Kanyon Doe Sr., former President of the Republic of Liberia, whose counsel is constituted by Cllr. Milton D. Taylor of Law Offices of Taylor & Associates Inc., Front Street, Monrovia, Liberia.

APPLICANT

AND

THE REPUBLIC OF LIBERIA, represented by the Solicitor-General of the Republic of Liberia, Cllr. Betty Lamin-Blamo, in association with Cllr. Emmanuel B. James and Cllr. Rosemarie B. James, both Counsellors-at-Law with the International Group of Legal Advocates and Consultants, 4 Clay Street, Crown Hills Monrovia, Liberia.

 

FIRST DEFENDANT

 

The Second and Third Defendants, being, respectively: The Central Bank of Liberia and The Attorney General of the Republic of Liberia, whose joint address is at 9th Street Sinkor, Montserrado County, Republic of Liberia.

Suit registered and heard under No. ECW/CCJ/APP/41/16 on the General List.

 

BEFORE THEIR LORDSHIPS

1.  Hon. Justice Edward Amoako Asante                        Presiding

2.  Hon. Justice Gberi-Be Ouattara                                 Judge Rapporteur

3.   Hon. Justice Dupe Atoki                                           Member

Assisted by Barrister Tony Anene-Maidoh                     Chief Registrar

Hereby delivers Judgment No. ECW/CCJ/JUD/12/19 as follows:

 


 

THE COURT,


 

-     Having regard to the Revised Treaty of 24 July 1993 establishing the Economic Community of West African States (ECOWAS);

-     Having regard to the 6 July 1991 Protocol on the Community Court Justice, ECOWAS and the 19 January 2005 Protocol on the Community Court Justice, ECOWAS;

-     Having regard to the 3 June 2002 Rules of Procedure of the Community Court Justice, ECOWAS;

-     Having regard to the 10 December 1948 Universal Declaration of Human Rights;

-     Having regard to the 27 June 1981 African Charter on Human and Peoples’ Rights;

-     Having regard to the above-mentioned Initiating Application received at the Court Registry on 7 December 2016;

-     Having regard to the Defence by the Republic of Liberia received at the Court Registry on 15 February 2017;

-     Having heard each Party through their respective Counsel; and

-     Upon deliberation in accordance with the law;

 


II. FACTS AND PROCEDURE


 

By Application dated 17 November 2016, received at the Court Registry on 7 December 2016, Mrs. Nancy Bohn-Doe pleads as follows:

That she is the administratrix of the intestate estate of her late husband the late President Samuel Kanyon Doe, who was captured and killed on 10 September 1990 in the course of the Liberian civil war.

That while he was alive, the late President Samuel Kanyon Doe was the owner of several bank accounts opened at banks in Liberia and outside Liberia, including the local branch of Bank of Credit and Commerce International (BCCI).

That before the events which cost the late President Samuel Kanyon Doe his life, she and the other members of his family fled into exile; during the exile period, the Applicant went to the Cayman Island, with the hope of retrieving the funds her late husband had lodged in the accounts of the BCCI branch in Liberia. Since she had no documents to prove that she was the administratrix of the intestate estate of her late husband, she could not return to the Cayman Island to pursue the procedure further.

That in 1993, the National Bank of Liberia, which had become the Central Bank Liberia, wrote to the Monthly and Probate Court of Montserrado County in respect of Account Number 02016498 opened by her late husband at a local bank (LUBI), that the sum of 148,196.50 US Dollars had been illegally withdrawn with the complicity of the agents of the Defendant State.

That on 1 December 1994, the Central Bank of Liberia wrote to her late husband, although the Central Bank perfectly knew that he had died 4 years before then, to inform him of the winding up of BCCI, calling on him to report to the bank within 30 days to identify himself and confirm the accounts and deposits at the BCCI, deposits evaluated at 4,173,154.99 US Dollars. From the time that mail was sent, more than 23 years have elapsed.

That the sole motive of the Defendant in addressing the said letter to the owner of the account, whereas it was widely known that the said owner had died several years before then, was to deprive her (the Applicant) and the other legitimate intestate successors, of the bank deposits, in flagrant violation of their right to property, as guaranteed under Article 14 of the African Charter on Human and Peoples’ Rights.

That the late President had equally made deposits in US Dollars in other banks which had wound up under the instructions and supervision of the Central Bank of Liberia; with the result that the total amount of deposits would rise to 5,521,945.53 US Dollars, to be re-evaluated at 6% interest, so as to arrive at a total amount the Applicant is claiming from the Defendant, in the sum of 18,130,778.09 US Dollars, plus 2% successful attorney’s fees (342,625.57 US Dollars).

That on 30 June 2001, the Attorney General and Minister of Justice of Liberia signed an attestation in the terms of which the Defendant State acknowledged that it had no claim or grievance against the late President Samuel Kanyon Doe, and thus reaffirmed the right of his family to enjoy all the intestate assets of the deceased.

That in violation of the said commitment and the assurance derived therein for the family of the deceased, the Government of Liberia undertook negotiations and concluded a final bank-accounts settlement with the bank at the Cayman Island in respect of the bank deposits of the deceased Samuel Kanyon Doe and his wife. That consequently, the Plaintiff Counsel produced before the Defendant, in July 2011, a mail of the bank announcing the closure of the matter regarding the said commitment.

That the BCCI funds belonging to the deceased Samuel Kanyon Doe was thus transferred to the Central Bank of Liberia, and the latter took possession of the funds; that these are funds belonging to the deceased and his family. The Central Bank of Liberia effected the measure of possession of the funds through various procedures of winding up the local banks, in total violation of the right to property and the intestate rights of the heirs to the deceased Samuel Kanyon Doe.

That despite the numerous efforts and steps taken by the Applicant to seek information from the Governor of the Central Bank of the Defendant State, regarding the bank accounts and deposits made by the late President in financial institutions in Liberia and outside Liberia, the Defendant stubbornly refused to grant the Applicant access to any of the pieces of information she requested, thus violating her right to information as enshrined in Article 9 of the African Charter on Human and Peoples’ Rights.

That to terminate those violations, she sued the Central Bank of Liberia on 30 November 2011. After 4 long years of legal battle, characterised by ploys aimed at blocking the trial proceedings or delaying the procedure, the Commercial Court finally delivered judgment in favour of the Applicant and her family on 14 November 2015. The Central Bank of Liberia was thus asked to pay 10,482,299.99 US Dollars plus interest, in addition to successful attorney’s fees.

That to frustrate that decision, the Central Bank of Liberia filed an application before the Supreme Court, and the Supreme Court was equally seised by an application from the Attorney General and Minister of Justice of the Defendant State, requesting the intervention of the State in the procedure, accompanied by a writ of prohibition requesting suspension of proceedings on the application lodged by the Central Bank of Liberia.

That by these manoeuvres, the Defendant and its agents succeeded in blocking the flow of the trial procedure, which continued to remain pending before the Supreme Court, with no court trial having been conducted since March 2016, despite the vehemence of the Applicant for her cause to be listed and heard.

That exasperated by the long wait to retrieve the funds left by her late husband for the family, the Applicant filed her case before this Honourable Court for violation of her human rights, notably for violation of Articles 1, 2, 3,9,14 and 19 of the African Charter on Human and Peoples’ Rights, and Articles 6, 7, 17 and 25 of the Universal Declaration of Human Rights.

Consequently, the Applicant asks that it may please the Court to make the following declarations:

·   A declaration that denying the Applicant access to the lawful monies deposited by the late Dr. Samuel K. Doe, Sr. in other commercial banks in Liberia, including BCCI, is a violation of her human rights;

·   A declaration that the refusal of the Defendants to provide information or documents that could help the Applicant to discover other deposits that might have been made by the deceased in those banks, including information or documents on the deceased’s account in Rovia Bank, amounts to a violation of human rights;

·   A declaration that Defendants pay the Applicant the amount of US$5, 521,945.53 deposited in accounts herein above mentioned that have presently been made known to the Applicant, plus 6% interest per annum as per local law, the total amount, including the principal herein mentioned, standing at US$18, 130, 778.09;

·   A declaration that the Defendants pay the Applicant US$ US$ 148, 196.50 illegally withdrawn under their authority to the then Bank Examiner of the 3rd Defendant, plus 6% interests per annum;

·   A declaration that the Defendants provide the ledger of depositors with other liquidated commercial banks to help the Applicant in the search of other deposits that might have been made in those banks by the deceased;

·   A declaration that the Defendants pay the sum of USD$9,000,000.00 (Nine Million United States Dollars) as compensation for violation of the rights of the Applicant, subjecting the Applicant and the heirs to the absence of basic needs and a decent living standard, as well as quality education and better health care for the children and grandchildren of the deceased.

By its Memorial in Defence deposited on 28 January 2017, received at the Registry on 28 February 2017, the Republic of Liberia raised the following Preliminary Objections and maintained on its own part:

That the Application is inadmissible before this Honourable Court as it fails to state or demonstrate any act or conduct on the part of the Defendants that are indicative of a characteristic violation of a fundamental human right of the Applicant.

That the amounts claimed, in the Applicant’s own words, may be in the possession of the Central Bank of Liberia, which explains why the Applicant sued the Central Bank of Liberia before the Commercial Court. That neither the State nor the Attorney General and Minister of Justice were party to the domestic procedure. According to the defendant, that is the proof that the Applicant has no charge against the State and as such it will be inadmissible to drag it before the ECOWAS Court for failure to implement a decision delivered against a third party.

That it is therefore obvious that the against the State, the Court may legitimately exercise its jurisdiction but no blame has been laid against the State apart from the application it lodged before the Supreme Court for stay of proceedings, an act the Defendant deems totally justified in the light of the rules of procedure in force in the country.

The Defendant claims that the Central Bank of Liberia, the target of the essential complaints filed, has no capacity to plead a case before the instant Court, no more than the Attorney General and Minister of Justice. That these two persons have thus been erroneously sued before the instant Court and concludes thereby that the action brought against the Central Bank of Liberia and the Attorney General and Minister of Justice is inadmissible.

The Defendant State equally blames the Applicant for not invoking even once before the domestic courts, human rights violation, and for bringing her case before the ECOWAS Court at a time when the action for retrieving her assets and credits is still pending before the Supreme Court of Liberia. The Defendant State maintains that if the national procedure was not progressing at a rate that meets her satisfaction, she was free to file an action before the Supreme Court itself, rather than to blame the Defendant State, whereas the latter has no control over the scheduling of the hearings before the national courts.

Besides, the Defendant State maintains that the action brought by is statute barred pursuant to the provisions of Article 9(3) of the Supplementary Protocol on the Court. That indeed, 27 years had passed since the assassination of her husband, and that she is unforgivably to be blamed for negligence because she had been aware of her status as the intestate heir to her deceased husband since 18 February 2004.

Consequently, the Defendant asked for the following remedies from the Court:

·   Sanction the Applicant’s negligence or failure to use the channels of redress available to her under the Constitution of Liberia and the national laws of Liberia, by declaring her Application purely and simply inadmissible;

·   Find that the Applicant has not demonstrated any violation that may be attributable to the Defendant or likely to render it liable for any offence;

·   Ask the Applicant to pay to the Defendant the sum of 150,000 US Dollars as costs it had incurred due to the trial;

·   Impose a fine on the Plaintiff Counsel or impose an exemplary sanction on him for abuse of the court process.

 


III. ANA​LYSIS OF THE COURT


 

AS TO JURISDICTION OF THE COURT

The Republic of Liberia, Defendant in the instant proceedings, raised a Preliminary Objection regarding the competence of the Court. That the Applicant’s action is inadmissible before this Honourable Court, as it fails to state or demonstrate any act or conduct on the part of the Defendants that are indicative of a characteristic violation of a fundamental human right of the Applicant, apart from the application it lodged before the Supreme Court for stay of proceedings, an act which the Defendant deems totally justified in the light of the rules of procedure in force in the country.

In the instant case, the widow Mrs. Nancy Bohn-Doe, intestate successor of the late Samuel Kanyon Doe, former President of Liberia, based her claims on Articles 1,2,3,9, 14 and 19 of the African Charter on Human and Peoples Rights and on Articles 6, 7, 17 and 258 of the Universal Declaration of Human Rights, international instruments subscribed to by the Republic of Liberia.

Therefore, it is erroneous for the Defendant to attempt to contest the jurisdiction of the Court, whereas the consistently held case law of the Court has always been that it suffices for an applicant to make reference to the international instruments on human rights, for the provisions of Articles 9(4) and 10 of Supplementary Protocol A/P1/01/05 on the ECOWAS Court to apply, in regard to human rights violation.

The Court recalled this principle in Judgment No. ECW/CCJ/JUD/09/11 of 7 October 2014 in Ameganvi Manavi Isabelle and Others v. Republic of Togo.

Consequently, the Court dismisses the objection regarding lack of jurisdiction, as raised by the Defendant, and declares that the Court is competent to adjudicate on the case brought before it.

 

AS TO THE PRELIMINARY OBJECTION REGARDING FORECLOSURE

The Republic of Liberia maintained that the Applicant’s case is foreclosed in the sense that more than 27 years had passed since the death of her husband, invoking in that regard, the provisions of Article 9, paragraph 3 of Supplementary Protocol A1/01/05 on the Court.

The Court recalls that the said Article 9(3) is worded as follows: “Any action by or against a Community Institution or against any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.”

Quite clearly, the said provision of Article 9 of the Supplementary Protocol concerns matters bordering on commission of offences and they are solely applicable to offences committed by the Economic Community of West African States (ECOWAS) as defined under Article 2 of the 24 July 1993 Revised Treaty, and also applies to third parties and agents of ECOWAS, as an entity, but not to the Member States.

Since the legal basis of the objection regarding foreclosure is erroneous, it shall be appropriate to dismiss it and pursue the procedure further.

 

AS TO ADMISSIBILITY OF THE APPLICATION

By Application dated 7 December 2016, the widow Mrs. Nancy Bohn-Doe filed a suit before this Honourable Court, respectively, against the Republic of Liberia, the Attorney General and Minister of Justice of the Republic of Liberia and the Central Bank of Liberia.

In matters concerning human rigths violation, the jurisprudence of the Court is well established regarding the fact that only States shall be Defendants, as the principal subjects of international law, and not individuals.

In Judgment No. ECW/CCJ/RUL/04/10 of 11 June 2010 on the Peter David case, and in Judgment No. ECW/CCJ/JUD/05/10 of 8 November 2010 on Mamadou Tandja v. Republic of Niger and General Sabou Djibo, and ECW/CCJ/APP/20/16, ECW/CCJ/JUD/05/18, Judgment on Case Concerning Baba Boubie and 10 Others v.  Republic of Cote d’Ivoire and BCEAO, this Honourable Court recalled the general principle recognised in international law according to which actions for human rights violation are brought against States and not individuals, in that the rights in contention are derived from international conventions which have been accepted and assented to by the States which have committed themselves to adhere to them and safeguard them.

It follows thus that since the Central Bank of Liberia and the Attorney General and Minister of Justice of Liberia are not signatories to the African Charter on Human and Peoples’ Rights nor to the Universal Declaration of Human Rights, they cannot be sued before this Court, and the action cannot be admitted as nominally filed against them.

 

AS TO THE MERITS OF THE CASE

Regarding violation of right to property

The Applicant requested that the Republic of Liberia be made to pay: the sum of 5,521,945.53 US Dollars, re-evaluated at 6% interest per annum in accordance with the domestic law, thus amounting to 18,130,778.09 US Dollars; plus the sum of US$ US$ 148, 196.50 Dollars, with an interest of 6% interest per annum; and an additional US$ 148, 196.50 Dollars; all representing, respectively, the amounts of bank deposits made by the deceased, the sum illegally withdrawn from the account domiciled at Rovia Bank, and reparation for all the violations suffered by her and all the other intestate successors, pursuant to Articles 1,2,3,9, 14 and 19 of the African Charter on Human and Peoples Rights and on Articles 6, 7, 17 and 258 of the Universal Declaration of Human Rights.

As to any form of response which may have been formulated against this request, apart from the objection regarding foreclosure, which has already been dismissed, the Republic of Liberia maintains that apart from the application for stay of proceedings which it had lodged before the Supreme Court of Liberia, no grievance has been made against the Republic of Liberia, and the Republic of Liberia, at any rate, blames Mrs. Nancy Bohn-Doe for not invoking violation of her human rights before the domestic courts, and for bringing her case directly before the ECOWAS Court of Justice at a time when her action for the retrieval of her assets and credits was pending before the Supreme Court of Liberia. The Defendant State avers that the Applicant was free to bring an action against the Supreme Court of Liberia, and not against the Republic of Liberia, in so far as the Republic of Liberia has no control over the management of cases pending before the national courts.

The Court recalls that it has consistently held that direct access before the Community Court of Justice, ECOWAS without exhaustion of local remedies is a possibility for litigants, all the more so when non-exhaustion of local remedies prior to accessing the Court does not affect the admissibility of the action. The Republic of Liberia therefore advances such weak argument in vain.

In terms of the merits of the case, the Republic of Liberia seems to have forgotten that as a Member State of ECOWAS, it is signatory to the African Charter on Human and Peoples’ Rights and other international instruments of human rights protection, and in that capacity, the obligation rests solely on the Republic of Liberia to protect and defend the rights deriving from those international instruments. It shall be inappropriate indeed in the instant case for the Defendant State to maintain that it has no control over the activities of the domestic courts of the Republic of Liberia whereas it is incumbent upon the Republic of Liberia to ensure the effective functioning of the all the State organs, ministries, departments and agencies, including the State judicial system. Besides, the Court finds that the Republic of Liberia did not file among the court pleadings any evidence of the court proceedings by virtue of which it seized the assets of the late Samuel Kanyon Doe, to the detriment of his family, thus denying all his intestate successors of their property. Incidentally, without considering the situation of the family, in terms of having to restore the funds to them, the Defendant State, having acknowledged its responsibility of protector and defender of human rights, did put forth however certain irrelevant arguments like foreclosure, non-exhaustion of local remedies and absence of control over the domestic courts, without challenging the fact that it did block the said funds while expecting the deceased to come forth and justify the source of those funds, nor did the Defendant State contest the amounts of the said funds, without stating whether it had any reason whatsoever to suspect the legality otherwise of the source of those funds.

In the light of the foregoing, it cannot be contested that the Republic of Liberia violated the Applicant’s right to property and the right to property of the other intestate successors of the late Samuel Kanyon Doe, as established and enshrined in the African Charter on Human and Peoples’ Rights and the Universal Declaration of Human Rights.

As regards the amounts requested, it shall be appropriate to point out that the Applicant does not bring any evidence of withdrawal of the sum of 148,196.50 US Dollars by the Liberian authorities from the alleged account of his late husband, and also, she does not provide any justification for the nature and quantum of the harm she claims to have suffered such as may serve as a basis for the damages evaluated at USD$9,000,000.00.

The Court cannot therefore favourably accept these two ill-founded requests.

Concerning restoration of the sum of 18,130,778.09 US Dollars which should correspond to the bank account balance of the deceased, i.e. 5,521,945.53 US Dollars plus 6% annual interest, in accordance with domestic law, it is appropriate to emphasise that the Republic of Liberia did not contest the said amount. As a defence, the Republic of Liberia did put forth an argument on foreclosure and on non-exhaustion of local remedies.

Whereas it shall be appropriate here to grant the request of the Applicant.

 

Regarding violation of right to information

The Applicant averred that she contacted the Central Bank (BCCI) for documents and information on other accounts which were owned by her late husband, but in vain, that such refusal constitutes violation of her right to information as provided for and enshrined in Article 9 of the African Charter on Human and Peoples’ Rights.

Article 9(1) of the said Charter provides that: “Every individual shall have the right to receive information”.

It was recalled above that only States, in their capacity as the principal subjects of international law, and signatories to international instruments establishing human rights, are liable to accusations of the human rights violation in question, but not natural or legal persons. In the instant case, BCCI, which has in its possession, and is required to provide the information on the bank accounts of the deceased, is not a party to the proceedings, and is not a State. Moreover, the information at stake under Article 21 of the African Charter on Human and Peoples’ Rights concerns the duty imposed on States to provide indispensable information reagrding life, health, security, education, culture and others, and not ordinary banking information which is governed by a private relationship between a legal person (i.e. a banking institution) and its client.

Very obviously, the facts alleged do not constitute in any way whatsoever violation of the right to information. The request thus made by the Applicant in that respect is ill-founded and is hereby dismissed.

 

Regarding Defendant’s requests as counter claims

C​oncerning legal fees

 

The Republic of Liberia requests that the Court ask the Applicant to pay to it 150,000 US Dollars to cover legal costs;

In the terms of Article 66 of the Rules of Procedure of the Community Court of Justice, ECOWAS the unsuccessful party shall bear costs;

The Court finds that the Applicant is not totally unsuccessful in the instant procedure;

This request is thus dismissed as ill-founded.

C​oncerning imposing a fine on Plaintiff Counsel

 

In the terms of Article 28 of the Rules of Procedure of the Community Court of Justice, ECOWAS: “Agents, advisers and lawyers appearing before the Court or before any judicial authority to which the Court has addressed letters rogatory, shall enjoy immunity in respect of words spoken or written by them concerning the case or the parties.”

The Republic of Liberia requests that a fine be imposed on Plaintiff Counsel for abuse of court process.

The Court finds that Plaintiff Counsel is not a party to the trial between the Republic of Liberia and the Applicant; he acts for and on behalf of his client, and in that respect, enjoys immunity.

Moreover, a fine is a sanction of a criminal nature which may not be imposed on the Applicant.

The Court therefore dismisses that request.

 

As​ to costs

The Republic of Liberia, being unsuccessful, shall, in compliance with the provisions of Article 66 of the Rules of Procedure of the Community Court of Justice, ECOWAS, bear the costs.

 


F​OR THESE REASONS


The Court,

Adjudicating in a public hearing, after hearing both Parties, in a matter on human rights violation, in first and last resort;

Dismisses the objection regarding lack of jurisdiction as raised by the Republic of Liberia;

Adjudges that the Court is competent to adjudicate on the case;

Dismisses the objection regarding foreclosure as invoked by the Defendant;

Declares that Mrs. Nancy Bohn-Doe’s action against the Republic of Liberia is admissible;

Adjudges that the cause of Mrs. Nancy Bohn-Doe is partly well-founded;

Adjudges that Mrs. Nancy Bohn-Doe’s right to property was violated by the Republic of Liberia;

Finds, on the other hand, that there is no violation of the right to information;

Orders the Republic of Liberia to pay the sum of 18,130,778.09 US Dollars to the administratrix of the intestate succession of the late Samuel Kanyon Doe;

Dismisses the requests concerning the sum of 148,196.50 US Dollars and the sum of USD$9,000,000.00 as claimed in damages;

Dismisses the counter claims made by the Republic of Liberia; Asks the Republic of Liberia to bear the costs.

 


AND THE FOLLOWING HE​REBY APPEND THEIR SIGNATURES:


 

1.     Hon. Justice Amoako Asante                                    Presiding

2.  Hon. Justice Gberi-Be Ouattara                                   Judge Rapporteur

3.  Hon. Justice Dupe Atoki                                              Member

 

Assisted by: Barrister Tony Anene-Maidoh                      Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 12 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Moreira-Costa JA
Search summary

 

IN THE COURT OF JUSTICE OF THE ECONOMIC COMMUNITY

OF THE WEST AFRICAN STATES (ECOWAS)

HELD IN ABUJA

 

ON SEPTEMBER 26th, 2019

PROCEEDING N.º ECW/CCJ/APP/12/18

 

JUDGMENT N.º ECW/CCJ/JUD/26/19

 

 

BETWEEN:

SALIFO SAWADOGO                                                                                      APPLICANT

 

AND

 

THE STATE OF BURKINA FASO                                                                       DEFENDANT

 

COMPOSITION OF THE PANEL

 

Honorable Judge Gberi-Be OUATTARA -                            President

Honorable Judge Dupe -ATOKI -                                       Member

Honorable Judge Januária Tavares Silva Moreira COSTA - Member/Rapporteur

 

Assisted by: Athannase Atannon                                    – Deputy Chief Registrar

 

ON THE REPRESENTATION OF THE PARTIES

ON BEHALF OF THE APPLICANT:

The Lawyers: Maitre Hamidou SAVADOGO and Maitre Seydou Roger YAMBA

 

ON BEHALF OF THE DEFENDANT:

Agent Judiciare du Tresor

 

1. ON THE PROCEDURE

 

The applicant, Mr. SALIFOU SAWADOGO came, by means of an application initiating proceedings (doc.1) registered at the Court Registry on 23rd February 2018, to initiate the present action against the STATE of BURKINA FASO, claiming infringement of the parliamentary immunity he enjoys under Articles 86 (2 and 3) of the Rules of Procedure of the National Assembly of Burkina Faso, 1 of the ECOWAS Supplementary Protocol A/SP.1/12/01 of 21st December 2001 on Good Governance and Democracy, 21 of the Additional Act A/SA/1/12/16 relating to the Enhancement of the Powers of the ECOWAS Parliament, 8 of the Regulation of the 4th Legislature of the ECOWAS Parliament of 8th February 2016 and 206 And 52 of the Burkina Faso Code of Criminal Procedure.

He gathered documents, a total of 16 Annexes.

The Defendant State was duly summoned on 26th February 2018 and it presented its defense (doc.2), which was registered with the Court Registry on March 20th, 2018 and notified to the applicant on 10th April 2018.

The parties were heard at the sitting at this Court on 14th May 2019.

 

ON​ THE FACTS CLAIMED BY THE APPLICANT

 

1. The applicant, Mr Salifou SAWADOGO, has been a burkinabe Member of Parliament since 30th December 2015, elected under the banner of the Congress for Democracy and Progress abbreviated "CDP" (opposition party). ; (Annex 1)

2.  In addition, he was elected Member of the ECOWAS Parliament, as set out in the sworn statement of 4th February 2016; (Annex 2)

3.   On September 13th, 2016, by letter N.º16-511/TMO/P, the Government Commissioner at the Ouagadougou Military Court appealed, through the Minister of Justice, to the H.E the President of the National Assembly of Burkina Faso to request authorization to prosecute or waive the parliamentary immunity of Parliament Member SALIFOU SAWADOGO; (Annex 3)

4.  To support such a request, the Government Commissioner at the Ouagadougou Military Court claimed that after an attempted Coup d'état orchestrated in Burkina Faso on September 16th, 2015, the applicant's criminal liability had to be clarified for the following offenses:

-       Criminal association;

-       Acts of vandalism;

-       Aggravated intentional degradation or destruction of movable or immovable property belonging to others;

-       Involvement in attack on State security;

-       Any other consequential infringements.

5.  Upon receipt of the request, the National Assembly of Burkina Faso withdrew Parliament Member Salifou SAWADOGO's parliamentary immunity; (Annex 4):

6.   The applicant was therefore brought before the investigating judge of the Ouagadougou Military Court, where he was heard, imprisoned and then notified to appear before the Investigating Control Chamber, who referred him to the Military Court for trial on 27th February 2018 following the prosecution decision; (Annexes 5 and 6)

7. In the procedure for waiving his Parliamentary Immunity by the National Assembly of Burkina Faso, the request was made by the Government Commissioner of the Ouagadougou Military Court and not by the Attorney General, as required by Article 86 of the Rules of Procedure of the National Assembly; (Annex 3)

8. In Burkina Faso, before the courts, the Public Prosecution Service is represented by a Faso Prosecutor or Government Commissioner and before the Courts by Attorney Generals;

9. The Government Commissioner at the Ouagadougou Military Court, who requested the waiver of parliamentary immunity, is the equivalent of a Faso Prosecutor at the Court;

10. This authority cannot request the waiver of parliamentary immunity of a Parliament Member;

11. Only the Attorney General at the Ouagadougou Court of Appeal could request the waiver of the Parliament Member´s parliamentary immunity before possibly making him available to the Government Commissioner at the Ouagadougou Military Court;

12. The waiver of his parliamentary immunity was made in breach of the rules of law governing the matter, namely Article 86 of the Rules of Procedure of the National Assembly of Burkina Faso;

13.  That from the beginning of the investigation until the prosecution hearing, no request for a persecution permit was sent by the investigating judge or another Burkina Faso authority to the ECOWAS Parliament;

14. That the judge was aware that he was not dealing with a case of flagrant crime, as he requested the waiver of his immunity from the Burkinabe National Assembly;

15.  And that it could not have been otherwise, because the facts for which he was prosecuted in December 2016 occurred on 16th September 2015 and following days, according to the procedural act;

16. The State of Burkina Faso attempted to rectify the situation by submitting a request for waiver of his immunity to the ECOWAS Parliament in accordance with letter No. 2017/034/AN/PRES/SG dated 5th May 2017; (Annex 10)

17. That there was no waiver of the applicant's immunity as an ECOWAS parliamentary until the referral judgment was addressed;

18.  That he continues to be a Community Parliament Member, as is clear from the invitations to do activities of the ECOWAS Parliament and the authorizations to leave the territory granted by the military justice authorities; (Annex 11)

19. That the applicant enjoys immunity as an ECOWAS parliamentarian throughout the Community, including in Burkina Faso;

20.  That the waiver of his parliamentary immunity by the Burkina Faso National Assembly, as long as that of the ECOWAS Parliament exists, is ineffective;

21. That at the end of the investigation procedure and before the Investigative Control Chamber, the applicant raised the nullity of the proceedings brought against him for breach of Articles 86 of the Rules of Procedure of the Burkina Faso National Assembly, on the one hand, and on the other hand, 20 and 21 of Supplementary Protocol A/SA/1/12/16 on Enhancement of the Powers of the ECOWAS Parliament, Article 1 of the ECOWAS Supplementary Protocol A/SP/1/12/01 of 21/12/2001 on Good Governance Democracy and 8 of the Rules of Procedure of the 4th Legislature of the ECOWAS Parliament of 8th February 2016;

22. That this entity was responsible for ensuring the compliance of the acts and of the whole procedure followed during the proceedings and the investigation;

23. But in order to reject the claim for invalidity concerning breach of Article 86 of the Rules of Procedure of the National Assembly of Burkina Faso, the Control Chamber concluded that:" In accordance with Article 86 of the Rules of Procedure of the National Assembly, the request for waiver of immunity of a parliamentarian must be made by the Attorney General; whereas, however, only the National Assembly remains competent to assess the validity of the petition, since Article 86 (2) gives it the opportunity to declare the application inadmissible; whereas, therefore, it is not for the Chamber to rule on the compliance of the consultation of the National Assembly"

24.  That the Chamber of Control itself acknowledges that this provision has been infringed, but considers that it has no competence to declare invalidity, whereas the Article 206 of the Code of Criminal Procedure gives it the power to verify the compliance of the proceedings brought before it;

25. That it was wrong and in flagrant violation of Articles 206 of the Code of Criminal Procedure and 101 of the Code of Military Justice that the Chamber of Control issued the Judgment No. 076 of 12/29/2017;

 

3​. The Applicant's Conclusions:

 

The applicant thus formulates the following requests:

With regards to the form that the application be considered admissible;

In terms of merits that it be considered well-founded and consequently be evidenced the violation of the rights of the applicant and be declared irregular the proceedings against him and be ordered that he be reinvested into his rights.

 

4. ARGUMENTS PLEADED BY THE DEFENDANT IN ITS DEFENSE:

 

1. Following the failure of the military coup d'état in Burkina Faso on 16th September 2015, judicial information was opened against all persons who participated as author, co-author or accomplice of the coup;

2. Accordingly, there were apparent elements from the investigation of this process likely to determinate the criminal liability of the applicant, Mr SAWADOGO Salifou, then a Parliament Member in the National Assembly;

3. In view of the gravity of the facts, the Military Court wanted the applicant's criminal liability to be invoked, as those of other persons persecuted for the same facts;

4. It then appealed, through the Minister of Justice, to His Excellency, President of the National Assembly, for permission to bring an action against the applicant and to waive his parliamentary immunity;

6. Upon receipt of the request, was set up an ad hoc commission composed of fifteen (15) members appointed on a proportional representation of parliamentary groups;

7.  The discussion at the meeting dealt with the ad hoc committee's conclusions formulated in a motion for a resolution which is limited only to the facts mentioned in the request and transmitted to the President of the National Assembly by the Minister of Justice;

8. On December 6th, 2016, the Members considered the request for the waiver of the parliamentary immunity of the Parliament Member Salifou SAWADOGO;

10. And at the end of a vote by secret ballot, the Members authorized, by 86 in favor and 33 against, 00 abstention, 4 invalid votes, the waiver of parliamentary immunity of the concerned Parliament Member;

11. It was following this parliamentary authorization that the investigating judge accused Mr SAWADOGO and that he was incarcerated at the Army Detention and Correctional Center from December 15, 2016;

12. The admissibility of the request for the purpose of waiving parliamentary immunity is the responsibility of the addressee of the document, namely the Burkina Faso National Assembly;

13.  Pursuant to Article 86 of its Rules of Procedure, only the Burkina Faso National Assembly may consider the admissibility of the application submitted to it;

14.   There is no violation of Article 1 of ECOWAS Supplementary Protocol No. A/SP1/12/01 of 21st December 2001 on Democracy and Good Governance;

15.  As to the alleged infringement of Articles 20 of the Additional Act A/SA/1/12/16 relating to the Enhancement of the Powers of the ECOWAS Parliament and 8 of the Rules of Procedure of the Fourth Legislature of the ECOWAS Parliament of 8 February 2016, the above provisions should be regarded as conferring full powers on the ECOWAS Parliament to stay proceedings or detention of a Parliament Member of the Community;

16. In the present case, after sending a new information mission to Burkina Faso, the ECOWAS Parliament has indeed taken a decision on the circumstances of waiver of parliamentary immunity and imprisonment of the applicant;

17.  Instead of using its powers, that Parliament reminded the Burkina Faso National Assembly that it had an obligation to submit to it in advance the request for waiver of the immunity of the concerned Parliament Member;

18. In its report on its first ordinary session of 2017, held in Abuja from 10 to 25 May 2017, the ECOWAS Parliament welcomed the provisional release of the applicant;

19. Until the judgment of the case, Burkina Faso received no decision from the ECOWAS Parliament ordering the suspension of the proceedings or of the arrest of the applicant;

20. The Chamber of Control found that the investigating judge, acting in the context of a flagrant crime, was not required to request the waiver of Honorable Salifou SAWADOGO's parliamentary immunity;

21.  This process lost its purpose because the trial, which was postponed to February 27th, 2018, resumed on March 21, 2018 and would continue on March 26th and the following days;

22. In the present case, the Chamber of Control has stated that the admissibility of the request for the waiver of the applicant's parliamentary immunity can only be assessed by the addressee of the document, namely the Burkina Faso National Assembly, so that it was not for it to decide on the compliance of the consultation of the National Assembly;

24. The resolution 022-2016/NA relating to the waiver of Parliament Member SAWADOGO Salifou's parliamentary immunity is not a judicial act, but rather a deliberation of the National Assembly;

 

Conclu​sions of the Defendant State

 

The defendant ended by claiming that the applicant's claims should be rejected.

 

On the Issues to Be Decided

 

It is for the Court to determine its jurisdiction for the present case and to decide whether the applicant's claims are well founded.

 

5. O​N THE ANALYSIS BY THE COURT

 

O​n the jurisdiction of the Court:

The jurisdiction of the Court depends on the nature of the question referred to the court by the applicant, based on the facts alleged by him/her.

In this case, the applicant's petition is based on claims of no compliance in the procedure leading to the waiver of his parliamentary immunity at national level and, in the absence of waiver of his parliamentary immunity at ECOWAS level, having thus been filed a criminal case against him under national jurisdiction, which he considers to be violators of his rights, which, however, he does not identify.

The applicant claims that the procedure followed should be declared unlawful and that the criminal proceedings against him be declared void.

The applicant alleges that were infringed:

- The Article 86 of the Rules of Procedure of the Burkina Faso National Assembly;

- The Article 1 of Supplementary Protocol A/SP.1/12/01 of 21st December 2001 on Good Governance;

- The Article 21 of Additional Act A/SA/1/12/16 on Enhancement of the Powers of the ECOWAS Parliament;

- The Articles 52 and 206 of the Burkina Faso Code of Criminal Procedure.

The applicant claims that his rights have been infringed, but he does not substantiate them, although he invokes the jurisdiction of this Court, as provided for in Article 9 (4) of Supplementary Protocol A/SP.01/01/05 of 19/01/2005, to hear cases of human rights violations in any of the member States.

Indeed, it is stated in Article 9 (4) of the Supplementary Protocol that: "The Court has jurisdiction to determine case of violation of human rights that occur in any Member State."; And of article 10 (d) of the same law where it is stated that: "Can consult the court: … Anyone who is a victim of human rights violations…. ”

And it is case-law of this Court, that its jurisdiction can not be called into question whenever the facts being claimed are related to Human Rights. Cf. the Judgments # ECW/CCJ/RUL/032/2010 of 14th March delivered on the case ECW/CCJ/APP/07/08 between Hissène Habré and the Republic of Senegal, # ECW/CCJ/JUD/05/10 of 8th November 2010, delivered in the case #ECW/CCJ/APP/05/09 case between Mamadou Tandja and the Republic of Niger; # ECW/CCJ/RUL/05/11 pronounced in the case ECW/CCJ/APP/03/09 between Private Alimu AKeem and the Federal Republic of Nigeria.

The Article 10 of the same Protocol states in turn that individuals may consult the Court in order to obtain compensation for Human Rights, provided that the request is not anonymous and that the same case is not pending before another competent international court.

First, it appears that the applicant, in his original pleading, does not specify or identify his human right violated by the Defendant State.

The applicant has the status of national and ECOWAS Community Parliament Member.

The applicant has alleges the violation of parliamentary immunity which he has, in the course of criminal proceedings brought against him and that is being carried under domestic or national court.

 

It remains to be ascertained whether the breach of parliamentary immunity c​onfigures a violation of a human right:

The Constitution of the Republic of Burkina Faso, in its Articles 95 and 96, grants to the national Parliament Members the parliamentary immunity, while the Regulation of the National Assembly of the same State, approved by the Resolution Nº 001/2016/AN, in its article 86, establishes the procedure to waive the parliamentary immunity enjoyed by its Members.

In turn, the Protocol on the Parliament of the Community (A/P.2/8/94), and the Supplementary Protocol A/SP.3/6/06, that amendments it, define the mode of election of the Parliament Member of the Community (Article 7) and confers parliamentary immunity on its members in all Member States (Article 9), while the Rules of Procedure of the ECOWAS Parliament, lays down The procedure for waiving parliamentary immunity (art. 8).

Also the Additional Act /A/SA.1/12/16 Relating to the Enhancement of the Powers of the ECOWAS Parliament at its Article 20, in line with the ECOWAS General Convention on Privileges and Immunities of 1978, reproduces in the same vein the content of Article 9 of the Protocol on Parliament (cited above), reiterating parliamentary immunity and stating that any request for waiving of a Member's immunity shall be addressed to the President of Parliament (Article 21).

Within the framework of parliamentary immunities, there is a difference between irresponsibility or material immunity and inviolability (also referred to as substantial criminal immunities and procedural criminal immunities or immunity in the strict sense).

The parliamentary irresponsibility (or material immunity) means that Parliament Members do not incur civil and disciplinary liability because of the votes and opinions they cast in the performance of their duties. It is absolute, perpetual and permanent, and Parliament Members are free from civil, criminal and administrative actions which, pursuant to the opinion votes expressed in the performance of their duties, may be directed against them.

The inviolability (or procedural or immunity in the strict sense) shall mean that Parliament Members shall not be subjected to detention, imprisonment, mere hearing (as deponent or defendant) or trial for any other acts, save as otherwise provided in the Constitution or the Law and with the formalities provided for therein.

That is, this immunity does not to exempt the Parliament Member from being detained, arrested, heard or tried, but it only prohibits it without the authorization of the Assembly, which will then be able to check whether there is any indication that justify maintaining these immunities.

Unlike the parliamentary irresponsibility, the immunity in the strict sense has a limited, provisional and temporary character and is valid only in criminal proceedings and extends only for the duration of the mandate.

The deliberation of the assembly on immunity, as a rule, takes the form of resolution (as proceeds in the Defendant State) - This resolution is a legal-constitutional act with a political nature, as it represents the exercise of a faculty directly conferred by the Constitution that defines its requirements and its object.

Thus, this is an act of relationship between two organs of sovereignty (National Assembly and the Court) that represents in practice a conditioning of the Judiciary by the Parliament, with scope beyond the mere procedural effects, as it configures as an instrument for the affirmation and independence of the legislative power, and is therefore on the same level as legislative acts coming from a sovereign body or a supreme State body, with an individual and concrete nature, similar in their content to administrative acts.

Parliamentary immunity, either the national (of the concerned State Member) or the Community (ECOWAS) immunity enjoyed by the applicant is not a personal privilege of the Member of Parliament, but prerogatives or guarantees granted to Parliament Members with a view of ensuring them the protection and independence necessary for the performance of their duties. Therefore, they are ultimately aimed at preserving the dignity, integrity and independence of Parliaments as a whole, vis-à-vis other State bodies or any other authorities.

Therefore, it appears that the parliamentary immunity itself does not constitute a human right.

However, violations of parliamentary immunities may lead to violations of human rights provided for in international instruments, such as the Universal Declaration of Human Rights and the African Charter on Human and Peoples' Rights, including the rights to freedom of expression, equality under the law and fair trial. (See Conclusions OF ADVOCATE GENERAL NIILO JÄÄSKINEN delivered on 9th June 2011 (1) on the Proceedings C-163/10 of the European Court of Justice).

In this case, none of these or other human rights have been claimed by the applicant.

Whereas by virtue of the combined provisions of Articles 9 and 10 of the Supplementary Protocol A/SP.01/01/05 of 19/01/2005, this Court has jurisdiction only in cases of human rights violations, provided that the petitions meet the conditions laid down therein.

The applicant has come in this application to ask this Court of Justice of the Community to determine that his rights have been infringed – which he does not materialize – and declare the proceedings against him non compliant and order the be reinvested on him his rights.

In this case, the alleged breach of parliamentary immunity, as the applicant admitted, merely generates procedural nullity in the criminal proceedings brought against him and which is under national jurisdiction.

So much so, that the applicant sought from the Investigative Control Chamber, the declaration of procedural nullity claimed, having that entity issued Judgment No. 076 of 12/29/2017, in which it stated that it had no jurisdiction to address the claimed defect.

It means that what the applicant is seeking now is to obtain from this Court a ruling reviewing the invalidity claimed and prosecuted in the domestic court.

This Community Court of Justice has repeatedly reiterated that “In accordance with its area of competence, it is not for it to assess the legality of decisions taken by the national courts of the Member States" - See Judgment delivered on 23 April 2015 in ECW/CCJ/APP/19/14 in the case of Tidjani Abdoulkarim and others versus Republic of Niger.

In addition, it has contended in several cases that it is outside its mandate to examine a decision taken by a court of a State Member in accordance with its constitutional provisions and that it is not a court of appeal, cassation or reformatio of decisions taken by the jurisdictions at national level. Cfr- Judgments ECW/CCJ/JUD/06/13 in case ECW/CCJ/APP/19/11, between Kpatcha Gnassimbé versus Republic of Togo (in CCJLR 2013 pag.151paragraph 36) and ECW/CCJ/JUD/03/07 delivered in case ECW/CCJ/APP/05/06 between Sieur Moussa Leo Keita versus State of Mali.

In this sense, it is not for the Court to address the invalidities generated in criminal proceedings - unless there is an claim of the infringement of a human right - especially when they have already been dealt with at national level, such as the present case - under penalty of breach of the principle of res judicata, as, as has been pointed out, this Court is not an appeal body against judgments pronounced in domestic courts.

That is why this Court also has ruled “That in order to make his cause prosper the applicant must indicate the human rights being violated and prove the such violations. “-Cf. Judgment of 23 April 2015 in ECW/CCJ/APP/19/14 between Tidjani Abdoulkarim and Others against the Republic of Niger.

In the present case, the facts claimed by the applicant not only do not specify the human rights allegedly infringed by the State of Burkina Faso, but also from the analysis of the facts, this Court did not uncover the violation of any human rights.

Thus, since the infringement of any human rights has not been alleged nor demonstrated, this Court has no jurisdiction to hear the case.

 

6. D​ECISION

 

In the light of the foregoing, the Court finds that it has no jurisdiction to hear the case and, consequently, it dismisses the application initiating proceedings as inadmissible.

 

Expenses:

That the applicant shall bear the costs in accordance with the Article 66 (1) of the Rules of Procedure of the Court of Justice.

This judgment was declared and pronounced in a public court hearing held in Abuja by the Court of Justice of the Community on 26th of September 2019.

 

B​y the Judges:

Honorable Judge Gberi-Be OUATTARA -                               President

Honorable Judge Dupe -ATOKI -                                           Member

Honorable Judge Januária Tavares Silva Moreira COSTA -       Member/Rapporteur

 

Athannase ATHANNON -     Deputy Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 55 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Bangra JA
Search summary

 

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN

STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA

Monday, 4th March 2019

 

Bet​ween

 

KARIM MEISSA WADE                                                                             APPLICANT

Plaintiff Counsel: Maîtres Ciré Clédor Ly,

Michel Boyon, Demba Ciré Bathily, Mohamed Seydou Diagne

And

REPUBLIC OF SENEGAL                                                                            DEFENDANT

Defence Counsel: Defendant was represented by Antoine Diome

(State Judicial Officer of Senegal), and Maîtres Yérim Thiam, Papa Moussa Felix Sow,

Samba Biteye, Bassirou Ngom, all lawyers registered with the Bar Association of Paris

 

General List: No. ECW/CCJ/APP/55/18                Judgment No. ECW/CCJ/JUD/13/19

 

BEFORE THEIR LORDSHIPS

 

1.  Hon. Justice Gbéri-bè Ouattara                                              Presiding

2.  Hon. Justice Dupe Atoki                                                         Member

3.  Hon. Justice Keikura Bangura                                                 Member

Assisted By: Maître Aboubacar Djibo Diakité                              Registrar

Delivers the following Judgment:

 


THE COURT,


 

-     Having regard to the 24 July 1993 Revised Treaty establishing the Economic Community of West African States (ECOWAS);

-     Having regard to the 6 July 1991 and the 19 January 2005 Protocols on the ECOWAS Court of Justice;

-     Having regard to the 3 June 2002 Rules of Procedure of Procedure of the Court;

-     Having regard to the 10 December 1948 Universal Declaration of Human Rights;

-     Having regard to the 27 June 1981 African Charter on Human and Peoples’ Rights;

-     Having regard to the International Covenant on Civil and Political Rights;

-     Having regard to the Initiating Application of the above-cited Applicant, received at the Registry of the Court on 18 December 2018;

-     Having regard to the Defence of the Republic of Senegal received at the Registry of the Court on 18 December 2018;

-     Having heard each Party through their respective Counsel; and

-     Upon deliberation in accordance with the law;

 


FACT​S AND PROCEDURE


 

By Application received at the Registry of the Honourable Court on 13 December 2018, Karim Meissa Wade, whose Counsel was constituted by Ciré Clédor Ly and three other barristers-at-law, brought his case before the ECOWAS Court of Justice, for the purposes of pleading that it may please the Court to declare as follows:

That the Honourable Court has jurisdiction to adjudicate on the case; That the Application is admissible;

That the Republic of Senegal violated Karim Meissa Wade’s right to participate freely in the public affairs of his country;

To adjudge that the Applicant’s right to vote is violated and that his right of eligibility to stand for election in the 24 February 2019 election is violated;

To order the Republic of Senegal to restore his name immediately on the electoral roll for the 24 February 2019 election and to issue him with a voter’s card;

To adjudge that the Senegal Electoral Code as amended by Law No. 2018-22 of 4 July 2018 in its Article L57 of the Electoral Code is a violation of the right to free participation in elections;

To order the Republic of Senegal to remove all the obstacles to the Applicant’s participation in the Presidential elections of 24 February 2019 originating from the said amendments to the law;

To find that Karim Meissa Wade’s right to effective remedy before the law courts is violated;

To order the Republic of Senegal to strictly observe the international instruments binding on it in regard to respect for Karim Meissa Wade’s rights; and

To ask the Republic of Senegal to bear the costs.

On the same day as his Initiating Application, Karim Meissa Wade filed before the Court an Application for Expedited Procedure, seeking the same remedies.

On 18 December 2018, the Republic of Mali, represented by the State Judicial Officer and assisted by Maître Yérim Thiam and four other lawyers, raised the question of prima facie incompetence of the Court.

Relying on his written pleadings and on the defence put up by his lawyers Maître Ciré Clédor Ly and three others, Karim Meissa Wade contended that since the date for the presidential elections in Senegal was fixed for 24 February 2019, in his capacity as the candidate for the opposition political party known as Parti Démocratique Sénégalais (PDS), on 16 April 2018, he went before the Administrative Commission which sat at the Embassy of Senegal in Kuwait, the latter Commission having been empowered to receive Senegalese citizens in regard to election matters, to submit his application to have his name featured on the electoral roll, in compliance with Law No. 2018-476 of 20 February 2018 on Extraordinary Revision of the Electoral List; that the said Commission received and registered his application, and that on the same day, the Commission issued him with a receipt, with number 80651515. Karim Meissa Wade averred that before the revision exercise, he already had a voter’s card and was legally registered on the electoral roll.

He further argued that whereas his registration on the electoral roll was consistent with the provisions of Article 4 (1) of the above-cited Law No. 2018- 476 of 20 February 2018, he noticed that his name was among a list of persons whose registration on the electoral roll had been rejected on the ground that he was not entitled to be registered on the list he intended, in compliance with Article L.31 of the Electoral Code.

That on 2 July 2018, the central administrative units of the Ministry of Interior, through the agency of the Director of Training and Communication at the lection headquarters, acknowledged that the decision to reject his registration on the electoral roll originated from them.

That on 4 July 2018, i.e. less than 48 hours after that decision, the Republic of Senegal promulgated Law No. 2018-22 on Revision of the Electoral Code, with a new Article L.57, in the terms of which for one to be eligible for the presidential election, one must be sponsored by a list of voters, and for one to be sponsored, one must be a qualified voter. That the law was published in Official Journal No. 7106 of the Republic of Senegal the following day, 5 July 2018.

He claims that with a view to contest the rejection of his application to be registered on the electoral roll, he, on 7 July 2018, filed an application before the Tribunal d’Instance Hors Classe (TIHC) of Dakar against the Minister of Interior, seeking restoration of his registration. That by Order No. 470 made on 23 July 2018 in first and last resort, the President of the said TIHC of Dakar declared that he had no jurisdiction to adjudicate upon the matter.

That on 2 August 2018, he filed an appeal before the Supreme Court seeking to quash the said Order No. 470. However, the Supreme Court, by Judgment No. 49 delivered on 30 August 2018, dismissed his appeal.

In blaming the Republic of Senegal, that by its actions, it had violated Article 13 (1), (2) of the African Charter on Human and Peoples’ Rights, Articles 2, 14(1) and 25 of the International Covenant on Civil and Political Rights, Paragraph A.1 of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Articles 34 and 35 of the Criminal Code of Senegal, Articles L.31 and L.57 of the Electoral Code of Senegal, Article 7 of the African Charter on Human and Peoples’ Rights, Karim Meissa Wade brought his case before the Community Court of Justice, ECOWAS requesting the Court to declare sanctions against the Republic of Senegal for violation of his rights as enumerated above.

He thus requests that it may please the Court to make the following declarations:

That it has jurisdiction to hear the case; That the Application is admissible;

That the Republic of Senegal violated his right to participate freely in the public affairs of his country;

To adjudge that the Applicant’s right to vote is violated and that his right of eligibility to stand for election in the 24 February 2019 election is violated;

To order the Republic of Senegal to restore his name immediately on the electoral roll for the 24 February 2019 election and to issue him with a voter’s card;

To adjudge that the Senegal Electoral Code as amended by Law No. 2018-22 of 4 July 2018 in its Article L57 of the Electoral Code is a violation of the right to free participation in elections;

To order the Republic of Senegal to remove all the obstacles to the Applicant’s participation in the Presidential elections of 24 February 2019 originating from the said amendments to the law;

To find that Karim Meissa Wade’s right to effective remedy before the law courts is violated;

To order the Republic of Senegal to strictly observe the international instruments binding on it in regard to respect for Karim Meissa Wade’s rights; and To ask the Republic of Senegal to bear the costs.

By a separate application dated 6 November 2018 and received at the Registry of the Community Court of Justice, ECOWAS on 13 November 2018, Karim Meissa Wade requested that his case be heard under expedited procedure.

To buttress his request for expedited procedure, he again claims that his application for his name to be put on the electoral roll for the presidential election of 24 February 2019 was rejected by the administrative units of the Ministry of Interior for the purposes of excluding him from the election, whereas he had already been recognised officially by the first national opposition party, the Parti Démocratique Sénégalais (PDS).

He further pleads that on 22 January 2018, the President of the Republic of Senegal fixed by law 24 February 2019 as the date for the next presidential elections; that the Constitutional Council shall publish the provisional list of candidates at least 35 days before the election date of 24 February 2019; that the final list of candidates will then be made public by the Constitutional Council after examining the complaints of those whose candidatures were rejected, following the publication of the provisional list; thus, he pleaded that there was obvious urgency for the ECOWAS Court to hear with minimum delay, under expedited procedure, the case of violation he had suffered. He maintains that under the prevailing conditions, if his substantive application should be heard under the ordinary procedure, his requests will have no interest and will turn out as devoid of purpose; he pleads that his request for expedited procedure is justified on the ground that the electoral process had already commenced.

In response, the Republic of Senegal, represented by the State Judicial Officer, and a Defence Counsel constituted by Maître Yérim Thiam and four others, asked the Court to dismiss the entire Application brought by Mr. Karim Meissa Wade as ill-founded and also ask him to bear the costs.

The Republic of Senegal contends that the subsidiary reconstitution of the electoral roll as instituted by Law No. 2016-27 of 19 August 2016 went hand-in- hand with the introduction of the ECOWAS electronic biometric card ushered by Law No. 2016-09 of 14 March 2016; that in the terms of the provisions of Article 4(1) of the law thus reconstituting the electoral roll: “Upon completion of the reconstitution exercise, only voters who had presented themselves physically and gone through the formality as well as those newly registered shall feature on the electoral roll”; that Mr. Karim Meissa Wade did not go to the accredited bodies mandated to carry out that exercise for him either in Senegal or abroad; consequently, his name no more featured on the electoral roll, in compliance with the provisions of Article 4(1) cited above, and since his name no more appeared on the electoral roll, Mr. Karim Meissa Wade could not obtain the new ECOWAS electronic biometric voter’s card.

That all the same, the extraordinary revision of the electoral roll for the presidential elections of 24 February 2019, decided via Law No. 2018-476 of 20 February 2018, notably gave the opportunity to all Senegalese whose names were still not found in the voter’s register to apply to have their names registered;

That Mr. Karim Meissa Wade, like any other interested citizen, went before the administrative commission of the Senegalese Embassy in Kuwait and requested for the issuance of the ECOWAS identity card and the voter’s card; that in the course of processing the data for the revised electoral roll, certain names were rejected and the application of Mr. Karim Meissa Wade for his name to be registered on the electoral roll was rejected on the basis of Article L31 of the Electoral Code; that in its Article 11(2), Law No. 2018-476 on the extraordinary revision of the electoral list for the purposes of the presidential election of 24 February 2019, provided that that the time limit for receiving complaints relating to the final list thus drawn up was fifteen (15) days starting from 3 July 2018 and that: “From 3 July 2018, to reclaim his rights, any voter omitted or a victim of a purely technical error of his registration, and in possession of his receipt, shall have fifteen (15) days to report the matter directly or through the CENA or the Presiding Judge in his area of jurisdiction, or through the Head of Diplomatic Mission or Consulate, if he resides outside Senegal”.

That in the case of Mr. Karim Meissa Wade, who resides in Qatar, and who applied in Kuwait for his name to be registered on the electoral roll, he rather chose to bring his case before the Tribunal d’Instance Hors Classe (TIHC) of Dakar, whose jurisdiction covers the administrative zones of Dakar and Rufisque only, instead of complaining to His Excellency the Ambassador of Senegal in Kuwait.

That the said court therefore declined jurisdiction to hear the case in an order made on 23 July 2018, which decision he appealed by filing an application before the Administrative Chamber of the Supreme Court of Senegal, seeking to quash the earlier decision made by TIHC of Dakar; that his application was dismissed in a Supreme Court judgment dated 30 August 2018; that upon his application having been thrown out, he brought his case before the ECOWAS Court of Justice for violation of his right to vote, his right of eligibility to stand for elections, and his right to effective remedy.

Concerning the application for expedited procedure, the Republic of Senegal maintains that Mr. Karim Meissa Wade simply argues that since the electoral process had already begun, “any delay, very characteristic of the ordinary procedure of the Court, runs the risk of extinguishing the essence of his Application, and render his substantive request purposeless,” without demonstrating whether he was prevented in any way whatsoever from filing his application earlier than he did; the Republic of Senegal puts up the defence that the only urgency Mr. Karim Meissa Wade may be feeling, as hanging on him, is the one created by his own failings by deliberately choosing to ignore the opportunity open to him by the applicable Senegalese law to enable him put his name on the electoral register.

The Republic of Senegal therefore requests that the application for expedited procedure be rejected as ill-founded and Karim Meissa Wade be asked to bear all the costs.

At the hearing of 8 February 2019, the matter was heard under expedited proceedings.

 


ANALYSIS OF THE COURT


 

REGARDING JURISDICTION OF THE COURT

The Republic of Senegal argues that prima facie, the Court has no jurisdiction over the matter.

In the terms of the provisions of Article 9(4) of Supplementary Protocol A/SP.1/01/05 amending Protocol A/P.1/7/91 on the Community Court of Justice, the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.

In compliance with these provisions, the Honourable Court has affirmed on numerous occasions that allegations of violation of human rights in an application suffice on their own for the purposes of upholding the jurisdiction of the Court without prejudging the veracity of the facts alleged; this was notably the decision made in Les Etablissements VAMO and Pascal Kuekia v. Republic of Benin (Judgment No. ECW/CCJ/JUD/12/15 of 20 April 2015), and El Hadj Mame Abdou Gaye v. Republic of Senegal (Judgment No. ECW/CCJ/JUD/01/12 of 26 January 2012).

The Applicant is necessarily required to invoke violation of his human rights; in that the Applicant must prove that the facts are indeed related to acts he considers prejudicial to his rights, before the jurisdiction of the ECOWAS Community Court of Justice may be upheld; reference may be made to Jamal Oliver Kane v. Republic of Mali (Judgment No. ECW/CCJ/JUD/10/17 of 16 October 2017).

In the case at hand, the Applicant invokes violation of his right to participate in the public affairs of his country, violation of his right to vote, and violation of his right of eligibility to stand for elections.

The Court observes that the personal rights listed out by the Applicant form part of the human rights whose protection is within the ambit of the powers of the Court; thus, the Court hereby declares that it is competent to adjudicate on and determine the allegations of human rights violation which the Applicant claims to have been a victim of, brought against the Republic of Senegal, a Member State of the Economic Community of West African States (ECOWAS).

 

REGARDING ADMISSIBILITY OF THE APPLICATION

In the terms of Article 10 (d) of Supplementary Protocol A/SP.1/01/05 of 19 January 2005, access to the Court is open to individuals on application for relief for violation of their human rights.

The application thus submitted shall not be anonymous nor be made whilst the same matter has been instituted before another International Court for adjudication.

In the case at hand, the Court notes that Karim Meissa Wade has brought before it a claim that he is a victim of the violation of his rights.

Since the application is not anonymous and the applicant has not instituted the same proceedings before another International Court for adjudication, the Honourable Court declares that the application is admissible.

 

REGARDING VIOLATION OF HIS RIGHT TO PARTICIPATE FREELY IN THE PUBLIC AFFAIRS OF HIS COUNTRY

The Court admits that it is apparent from the provisions of Article 13 of the African Charter on Human and Peoples’ Rights, that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

Every citizen has the right, and is entitled to, without any unreasonable discrimination or restriction:

To participate freely in the government of his country, either directly or through freely chosen representatives;

To access, vote and be voted for during periodic, transparent elections, in a universal and egalitarian suffrage of secret ballot, in expression of the free will of the voters.

In the instant case, Karim Meissa Wade avers that he is a victim of the violation of his right to vote and of his right of eligibility to stand for elections, because according to him, even though he had a voter’s card, and his name had been registered on the electoral roll, by virtue of the extraordinary revision of the electoral list for the purposes of the presidential election of 24 February 2019, the central administrative units of the Ministry of Interior rejected his registration on the ground that the new Article L57 of the Electoral Code first required that every candidate for said presidential election shall first of all be a qualified voter; that he was thus denied his right as a voter and as a person eligible to stand for elections.

As pleaded by the Republic of Senegal however, it is apparent from the facts that it was in compliance with Article L31 of the Electoral Code that his application for registration on the electoral list was rejected; that Article L31 of the said Electoral Code provides that:

“S​hall not be registered on the electoral roll:

(1) persons convicted of crime;

(2) persons sentenced to non-custodial prison terms or to custodial prison terms exceeding one (1) month, with the option of a fine, for any of the following offences – theft, fraud, abuse of trust, drug trafficking, embezzlement and corruption in public office, bribery, undue influence peddling, counterfeiting, and in general terms, any offence liable to imprisonment for a term not less than five (5) years;

(3) persons sentenced to custodial prison terms exceeding three (3) months or to a non-custodial prison term exceeding six (6) months, for offences other than those enumerated in paragraph 2 above, subject to the provisions of Article L30;

(4) persons who have not put in any appearance in court;

(5) unredeemed bankrupt persons whose bankruptcy may have been declared in Senegalese courts, or whose bankruptcy may have been declared outside Senegal but enforceable in Senegal;

(6) persons whose right to vote may have been banned by a criminal court of general law;

(7) adult persons suffering from one form of incapacity or the other.”

Now, Karim Meissa Wade had once been sentenced to a custodial prison term of six (6) months for illicit wealth and to a fine of One Hundred and Thirty-Eight Billion Two Hundred and Thirty-Nine Million Eighty-Six Thousand Three Hundred and Ninety-Six CFA Francs (CFA F 138,239,086,396).

In compliance with the text cited above, the Republic of Senegal refused to register his name on the electoral roll.

It is worthy to recall that in line with its case law, the ECOWAS Court of Justice has already held in its judgment of 13 July 2015 on CDP v. Burkina Faso, that a state may impose restrictions on access to suffrage.

Besides, on the international stage, in Pakas v. Lithuania, the Grand Chamber of the European Court of Human Rights, in its Judgment of 6 January 2011, declared that: “In the Court's view, it is understandable that a State should consider a gross violation of the Constitution or a breach of the constitutional oath to be a particularly serious matter requiring firm action when committed by a person holding that office. (Paragraph 104, Application No. 34932/04).

The Court finds that the refusal to put Karim Meissa Wade’s name on the electoral roll whereas he was aspiring to occupy the highest function in the State, does constitute a restriction upon his right to vote, but such restriction was imposed in consonance with the law, notably Articles 34 and 35 of the Criminal Code and Article L31 of the Electoral Code of Senegal. The law is intended to repress outrightly certain lines of conduct if they should be committed by certain persons invested with public authority, entrusted with public-service responsibilities or in whom an elective public mandate is vested; such denial of the exercise of the right to suffrage is implicitly embedded in various criminal charges which may not have to be expressly pronounced by the judge who decides such measures.

The restriction decided in the case in point is therefore legitimate and necessary.

Hence, the Applicant cannot legitimately claim that the application of the said Electoral Code by Republic of Senegal amounts to human rights violation.

 

REGARDING VIOLATION OF THE RIGHT TO EFFECTIVE REMEDY

Article 14(1) of the International Covenant on Civil and Political Rights provides that: “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.”

Acc​ording to Article 2 of the same Covenant: “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (...) (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; ...”.

The Court notes that Article 11(2) of Law No. 2018-476 on the extraordinary revision of the electoral list for the purposes of the Presidential election of 24 February 2019, provides that: “From 3 July 2018, to reclaim his rights, any voter omitted or a victim of a purely technical error of his registration, and in possession of his receipt, shall have fifteen (15) days to report the matter directly or through the CENA or the Presiding Judge in his area of jurisdiction, or through the Head of Diplomatic Mission or Consulate, if he resides outside Senegal”.

In the instant case, it is incontrovertible that the Applicant was resident in Qatar and applied in Kuwait for his name to be registered on the electoral roll at the Diplomatic Mission of Senegal in Kuwait. In compliance with the above-cited law, Karim Meissa Wade should have brought his application before the Head of the Diplomatic Mission in Kuwait to request for the restoration of his name on the electoral roll. By choosing to bring his application before the Tribunal d’Instance Hors Classe (TIHC) of Dakar, Karim Meissa Wade took the wrong judicial step in seeking justice. It was therefore well-founded that the Tribunal d’Instance Hors Classe (TIHC) of Dakar before which he came declared that it had no jurisdiction to adjudicate upon the matter he brought. Thereafter, the appeal he filed against the said order made by the TIHC was dismissed by the Administrative Chamber of the Supreme Court.

The foregoing thus demonstrates that the Applicant exercised the effective remedy available to him. The Republic of Senegal did not therefore violate the Applicant’s right to effective remedy in so far as the text cited above made provision for persons who may have claims in regard to their registration on the electoral roll, to submit them.

 

F​OR THESE REASONS

The Court,

 

Adjudicating in a public hearing, after hearing both Parties, in a matter on human rights violation, in first and last resort,

Declares that it has jurisdiction to adjudicate on the dispute;

Declares that the Application filed by Karim Meissa Wade is admissible; Declares however that the said Application is ill-founded;

Dismisses the Application;

Asks the Applicant to bear the costs.

 

AND THE​ FOLLOWING HEREBY APPEND THEIR SIGNATURES

 

1.  Hon. Justice Gbéri-bè Ouattara                                               Presiding

2.  Hon. Justice Dupe Atoki                                                           Member

3.  Hon. Justice Keikura Bangura                                                   Member

 

Assisted By: Maître Aboubacar Djibo Diakité                                Registrar

 

Author
Judgment date
Case number
ECW/CCI/APP/ 46 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE

OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN IN ABUJA-NIGERIA

ON FRIDAY, THE 28TH DAY OF JUNE 2019.

SUIT NO: ECW/CCI/APP/46/17

JUDGMENT NO: ECW/CCJ/JUD/24/19

 

 

BETWEEN:

DR. GEORGE S. BOLEY, FORMER VICE CHAIRMAN,

TRANSITIONAL LEGISLATIVE ASSEMBLY-----------------------APPLICANT

AND

1. REPUBLIC OF LIBERIA

2. MINISTRY OF FINANCE AND DEVELOPMENT PLANNING, REPUBLIC OF LIBERIA

3. THE CIVIL SERVICE AGENCY, REPUBLIC OF LIBERIA

4. MINISTRY OF JUSTICE, REPUBLIC OF LIBERIA                                RESPONDENTS

 

COMPOSITION OF THE COURT:

Hon. Justice Edward Amoako Asante     - Presiding

Hon. Justice Gberi-Be Quattara              - Member

Hon. Justice Dupe ATOKI                        - Member/Judge Rapporteur

Assisted by

Athanase ATANNON                                - Deputy Chief Registrar

 

REPRESENTATION TO THE PARTIES

Cllr. S.L. Lofen Keneah, Jr.           } For Applicant

 

Cllr. J. Daku Mulbah

Betty Lamin Blauq                       } For Respondents


PARTIES


1.  The Applicant is Dr. George S. Boley, former Vice-Chairman, Council of state, Republic of Liberia and a Community Citizen of ECOWAS. The Republic of Liberia is a Member State within the meaning of Article 1 of the Protocol (A/P1/7/91) relating to the definition of Member state, and a signatory to the Revised Treaty Establishing the Economic Community of West African States (ECOWAS).

2.  The Ministry of Finance and Development Planning is an agency of the 1st Respondent, which is responsible for the approval and payment of retirement benefits of retired members of Legislatures of Liberia, including former members of the Counsel of State, Republic of Liberia.

3.  The 3rd Respondent, the Civil Service Agency, is an Agency of the 1st Respondent that manages the benefits of former Legislatures of Liberia, including former members of the Counsel of States, Republic of Liberia, by preparing and submitting monthly payment request to the Ministry of Finance and Development Planning for approval and payment.

4.  The 4th Respondent, Ministry of Justice is the legal arm of the 1st Respondent, which is the Chief Law Officer of Liberia.

 

APPLICANTS CASE:

5.  The Applicant averred that after the Civil war in Liberia, following various negotiations and agreements which culminated into the drafting of the Abuja peace agreement on August 19th 1995 (Abuja Accord), a Transitional Council was created to forestall peace and oversee the process of enabling the establishment of a democratically elected government within one year. Applicant continued that he was a Vice Chairman in the Transitional Council with the mandate of a 12 month tenure but was however allowed by the provision of Abuja agreement to resign three months before election, if they wish to contest and also allowed to suggest a candidate for their own replacement. That while serving as a vice Chairman of the Transitional Council, an Act was enacted to provide retirement benefit for all officials serving in the council immediately after the swearing in of the new democratically elected government.

6.  The Applicant stated that he resigned to contest election and thereafter nominated another candidate to take his place in the council pursuant to the provision of the Abuja accord. That after the newly democratically elected government came into office, he has written several letters to the Respondent who has refused till date to respond nor pay him his retirement entitlement. He contended that nevertheless his diplomatic passport which is part of his retirement benefit is being continually renewed by the Respondent as at when due.

7.  The Applicant aver that the refusal to pay his retirement benefit affected his family life to the extent he became incapable of supporting his family leading to a divorce in his marriage and the deterioration of his health.

8.  The Applicant by an originating application lodged at the registry of the Court on 18th December 2017, therefore allege the violation of his rights to retirement benefit and discrimination due to the refusal of the Respondents to pay his entitlements after several unfruitful efforts to secure same. He therefore sought the following reliefs for the violation of his human rights as provided for under the following Human Rights instruments:

1.  The denial of Applicant’s rights to his legal retirement benefits by the Respondents from 1997 to present is contrary to the provision of the Retirement Benefit Act.

2.  The violation of the legitimate rights of Applicant, as enshrined in Articles 1, 2, 3, 4, and 19 of the African Charter on Human and Peoples Rights (ACHPR).

3.  Violation of Applicant rights as enshrined in Articles 6, 7, 22, and 25 (1) of the Universal Declaration of Human Rights (UDHR).

4.  Violation of the legitimate rights of Applicant as enshrined in Articles 2(1), 9, and 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

5.  Violation of Applicant’s rights as enshrined in Article 20(a) of the 1986 Liberian Constitution on the rights of property.

6.  Violation of Applicant’s rights as provided for in An Act to Provide for Retirement Benefits for Former Interim President, Chairman, and Vice Chairman of the Council of State, Speakers, Deputy Speakers and Members of the Transitional Legislative Assembly, Chief Justices and Associate Justices of the Supreme Court.


SUMMARY OF PLEAS IN LAW OF APPLICANT:


9.  The Applicant submitted that Articles 9(4) of the 1991 Protocol and 10(d) of the Supplementary Protocol on the Court of Justice (A/SP.1/01/05) support the competence of the Community Court of Justice in any application filed by individuals which alleges human rights violation:

Article 9(4):

The court has jurisdiction to determine cases of violation of human rights that occur in any member state

Article 10(d):

Access to the court is open to individuals on application for relief for violation of their human rights, the submission of application for which shall;

i) not be anonymous; nor

ii) be made whilst the same matter has been instituted before another International court for adjudication.

It is the argument of the Applicant that these provisions enable an individual to access the Court directly on human rights issues, and gives the Court competence to entertain such application. The Applicant submitted that the case of AlHAJI HAMMANI TIDJANI V. THE FEDERAL REPUBLIC OF NIGERIA & 4 OTHERS, ECW/CCJ/APP/01/06 supports his pleas on access to the Court.

10.      The Applicant also premised his plea on Articles 1, 2, 3,4 and 19, of the African Charter on Human and People’s Rights,( ACHPR) Article 25 of the Universal Declaration of Human Rights,(UDHR) the Abuja Accord of 19th August 1995, International Covenant on Economic, Social and Cultural Rights,( ICESCR) as well as Article 20 (a) of the Republic of Liberia Constitution of 1986 and The Act to Provide Retirement Benefits for Former Interim President, Chairman and Vice Chairman of the Council of State, Speaker, Deputy Speaker and Members of the Transitional Legislative Assembly, Chief Justices and Associate Justices of the Supreme Court of 1997 ( which will henceforth be referred to as The Retirement Benefit Act) which provides in Section 1 (1) as follows:

Former Interim President, Chairman, and Vice Chairman of the Council of State, Speaker, Deputy Speakers, and Members of the Transitional Legislative Assembly, Chief Justices and Associate Justices of the Supreme Court shall receive 50% (fifty percent) of the salaries per annum of the incumbents of the respective offices. In addition, the Chairman shall be provided with personal staff and facilities for the rest of his life. The amount for this purpose Shall not be less than USD$5, 000.00(Five Thousand United States Dollars) on a quarterly basis (every three months). Upon leaving Office honorariums shall be disbursed as follow: Chairman, US$25, 000.00; Vice Chairman, US$20, 000.00; Speakers, US$12, 800.00; Deputy speakers, US$10, 000.00; Chief JusticeUS$12, 800.00; Associate Justices, 10, 000.00 and TLA Members, US7, 500.00.”

11.  Based on the provisions of the above laws and International Human Rights instrument, Applicant sought an end to the continuous violation of his human rights whereof he claims against the Respondents as follows:

ORDERS SOUGHT BY APPLICANT.

1.        A declaration that the denial of the Applicant access to receive his pension benefits is a violation of his human rights contrary to the various articles of the laws above highlighted.

2.        A declaration that Respondents pay Applicant the amount of US$726, 982.00 which constitutes the amount due to him as of the date and time of filing this action, plus 6% interests per annum; that thereafter the payment of his pension benefits, be made current.

3.        A declaration that Respondents pay Attorney fees of 2% of the principle amount owe to the Applicant.

4.        A declaration that the Respondents pay the sum of USD$2, 000,000.00 (Two Million United States Dollars) as compensation for the violation of the Applicant rights and injury caused him, his family for the absence of basic needs, such as food, decent living standard, befitting a former Vice Chairman of State which contributed to the breaking up of his family.

THE RESPONDENTS CASE:

12.      After seeking extension of time within which to respond, the Respondents filed an application for preliminary objection and statement of defense which was lodged at the registry on May 2, 2018. The preliminary objection was however withdrawn at the hearing on the 6th of May 2019 because it sought the same reliefs in the statement of defense.

13.      The Respondent in its statement of defense denied any violation of the right of the Applicant and contend that their decision not to pay pension is consistent with The Retirement Benefit Act. The Respondents argued there is no provision in the Act that members who resigned from their positions and did not complete their terms in office are eligible to receive retirement benefits. Furthermore, since the Applicant was not retired by the Government of Liberia, he is not a retiree within the contemplation of the law.

14.      The Respondent submitted that the consequences of resignation from the Government to contest the 1997 elections stripped Applicant of the qualification as a retiree of the government of Liberia and therefore not entitled to any retirement benefit or any other benefits enumerated under The Retirement Benefit Act because he resigned his post and did not complete his tenure.

15.      They contended that Applicant’s allegation that he was discriminated against by the omission of his name from the payment requests submitted by the Civil Service Agency to the Ministry of Finance & Development Planning is baseless and unfounded. This they argue is because the Applicant was never eligible for retirement benefits in the first place therefore, the Civil Service Agency could not have included his name amongst honorable retirees.

16. Further, The Respondent submitted that because the Applicant has taken up another job as an elected member of the current Parliament in Liberia, he is not a retiree and therefore urge the Court to hold that the Applicant is not retired.

17.      The Respondent submits that during the period Applicant worked for the Government of the Republic of Liberia, he was duly compensated to commensurate with his status. Applicant voluntarily resigned his position to contest for the presidency in 1997. Hence, he is ineligible to reap retirement benefits from the Government of Liberia because he is not a retiree. Applicant further argue that to award any amount of money to the Applicant would be tantamount to unjust enrichment and the law abhors unjust enrichment.

18.      The Respondents are emphatic they have not injured Applicant in any form and manner as far as the records are concerned and neither have they violated his rights at any time and as such they are not indebted to the Applicant for the amount of US$726,982.00 (Seven Hundred Twenty-six Thousand, Nine Hundred & Eighty-Two United States Dollars). The Respondent concluded that refusal to allow Applicant to unjustly enrich himself at the detriment of the citizens of the Republic of Liberia does not amount to the violation of the Applicants human rights within the context of the UDHR, ACHPR, ICESCR and ICCPR as claimed by the Applicant.

SUMMARY OF THE PLEAS IN LAW OF RESPONDENT:

19.      The Respondents contend that the Applicant lacks capacity to bring this suit before this Honorable Court because Applicant does not meet the criteria to qualify as a retiree. Therefore, since he is not a retiree, he lacks the standing/capacity to institute this suit as it is inconsistent with Section 11.2 (e) of Title 1 of the Civil Procedure Laws of Liberia.

20.      Furthermore the Respondents contend that the reliefs sought by the Applicant is not admissible because Article 9(4) of the Supplementary Protocol (A/SP.1/01/05 of the Community Court of Justice provides that:

“The Court have jurisdiction to determine cases of violation of human rights that occur in any member state.”

The Respondent argued that in the instant case, Applicant has not shown nor advance any evidence of any characteristic violation of his human rights nor attached to its application the specific instances how his rights were violated to trigger the jurisdiction of the court as held by this Court in the case of Moussa Leo Keita V. The Republic of Mali ECW/CCJ/JUD/03/07:

“It has a competence to adjudicate matters involving the violation of human rights within its Member State. This Court also held that the Applicant must show proof indicative of a characteristic violation of a fundamental human rights: “and in the absence of any such violation application must be declared inadmissible.”

The Respondent also cited the cases of; Hope Democratic Party and Alhaji Haruna Yahara Shaba V. The Federal Republic of Nigeria and 5 others ECW/CCJ/JUD/19/15 and Dr. Malachi Z. York V. The Republic of Liberia ECW/CCJ/JUD/5/16, which are both cases decided by this very court, in support of its contention.

21. The Respondent further argued that Applicant is ineligible to benefit as a retiree because he resigned his appointment before the expiration of his tenure. They cited the Abuja Agreement of 19/8/1995 which Supplements the Cotonou and Akosombo Agreement as subsequently clarified by the Accra Agreement which provides at Section 3 that:

“Holders of positions within the Transitional Government as defined by the Cotonou Accord who wish to contest the election provided for under the Schedule of Implementation shall vacate office three months before the date of elections. They shall be replaced by their nominees or by persons nominated by the parties represented in the Council of State”.

The submission of the Respondent is that Applicant is not a retiree and therefore not entitled to any retirement benefits. Having resigned his appointment to contest for another position in the government of Liberia, and therefore denial of the retirement benefits does not amount to violation of the human rights of the Applicant. The Respondent submited specifically that Articles 2, 6, 7, 22 and 25 of the UDHR nor Articles 2(1), 9, and 11 of the ICESCR. The Respondent further argued that equality before the law is a basic tenet of the Liberian Government as contained in Article 11(c) & (d) of the 1986 Constitution of Liberia, Constitution.

22. The Respondent therefore sought the following reliefs:

ORDER SOUGHT BY THE RESPONDENTS:

1.  A declaration that the Application is inadmissible as the Respondents are not in violation of the human rights of the Applicant as alleged under:

- Articles 1,2,3,4 & 19 of the ACHPR.

- Articles 6,7,22 and 25(1) of the UDHR.

- Articles 2(1), 9, & 11 of the ICESCR.

2.  The Applicant should pay all the cost of litigation incurred for the unnecessary expenditure the Applicant has caused the Respondents as a result of this frivolous suit.

3.  A fine or any other punitive measure to be meted out against the Counsel of the Applicant for initiating a frivolous and unmeritorious suits which has the tendency to waste the Court’s time and undermine the authority, dignity, and integrity of the Court of Member States.


 

ANALYSIS OF THE COURT


23. The Court having heard the argument and written submission of the parties distilled three issues for determination to wit:

1.  WHETHER THE APPLICATION IS ADMISSIBLE BY THE COURT.

2.  WHETHER THE APPLICANT HAVING RESIGNED CAN STILL CLAIM THE STATUS OF A “FORMER” MEMBER OF THE TRANSITIONAL COUNCIL.

3.  WHETHER IF ISSUE [2] ABOVE IS RESOLVED IN THE AFFIRMATIVE, THE APPLICANT IS ENTITLED TO HIS CLAIMS.

24. Before proceeding to analyze the facts of this case, the Court must first address the capacity of the 2nd to 4th Respondents who are the agents of the 1st Respondent – The Republic of Liberia. It is trite law that only parties to treaties can be bound and held responsible for their implementation. This Court has held on several occasions that agents of member state of the ECOWAS treaty are not proper persons capable of being sued before this Court for the violation of the said treaty or other relevant international Human rights instruments signed by member state of the ECOWAS.In the case of JOHNNY KING & 10 Ors V. FEDERAL REPUBLIC OF NIGERIA & 9 Ors ECW/CCJ/RUL/06/19, the Court held that:

“The Court has looked at the laws regarding its jurisprudence as well as precedents in this Court, and it is so clear that, it is only member states of ECOWAS who are signatories to the treaties can be brought before this Court for human rights violations and this Court has maintained that position in all its decisions.”

Similarly in SERAP V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & Ors ECW/CCJ/RUL/07/10, The Court confirms that:

“In the context and legal framework of ECOWAS, the court stands by its current understanding that only member States and Community Institutions can be sued before it for alleged violation of human right as laid down in Peter David v. Ambassador Ralph Uwechue delivered on 11th day of June 2010”.

25.      The Respondent having failed, refused/neglected to raise a preliminary objection in this regard, the Court will suo moto rule on the capacity of the 2nd to 4th Respondents. Consequently, the 2nd to 4th Respondent, not being proper persons and devoid of capacity to be sued are hereby struck out of the list of the Respondents to this suit. 

 

The Court will now proceed to analyse seriatim the issues for determination as already distilled.

26. WHETHER THE APPLICATION IS ADMISSIBLE BY THE COURT.

The Applicant approached this Court for alleged violation of his human rights occasioned by the refusal of the Respondent to pay his retirement entitlements and other benefits attached to his office as a former Vice Chairman of the Transitional Council of Liberia contrary to Articles 1,2,3,4 & 19 of the ACHPR, Articles 6,7,22 and 25(1) of the UDHR and Articles 2(1), 9, & 11 of the ICESCR.

The Respondent on the other hand contends that the Applicant has not shown any characteristic violations of his human rights to trigger the jurisdiction of this Court and therefore urges the Court to declare the application inadmissible.

27.      The Court in coming to a decision on this issue, affirms its human rights mandate as provided in Article 9(4) of the 2005 Supplementary Protocol on the Court (A/SP.1/01/05) as follows in

“The court has jurisdiction to determine cases of violation of human rights that occur in any member state.”

This Court has held in many of its flourishing jurisprudence that mere allegation of violation of human rights is sufficient to trigger the jurisdiction of this Court and the Court will assume jurisdiction without necessarily examining the veracity of the allegation. In Kareem Meissa Wade v. Republic of Senegal, ECW/CCJ/JUD/19/13, at pg. 259 Para. 95 (3), this court held that:

“Nevertheless, that simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.”

Similarly, In BAKARE SARRE V MALI (2011) CCJELR pg. 57, the court stressed that:

“Once human rights violations which involves international or community obligations of a member state is alleged, it will exercise its jurisdiction over the case.”

This position is further supported by the decision of the Court in SERAP V. FRN & 4 ORS, (2014) ECW/CCJ/JUD/16/14 where this court held that:

“the mere allegation that there has been a violation of human rights in the territory of a member state is sufficient prima facie to justify the jurisdiction of this court on the dispute, surely without any prejudice to the substance and merits of the complaint which has to be determined only after the parties have been given the opportunity to present their case, with full guarantees of fair trial.”

See also the case of His Excellency Vice-President Alhaji Samuel Sam-Sumana v. Republic of Sierra Leone.-SUIT NO: ECW/CCJ/APP/38/16 and JUD NO: ECW/CCJ/JUD/19/17 (At page 14 of the judgment) and Mamadou Tandja (2010) CCJELR pg. 109 & Bakare Sarre & 28 Ors v. Mali (2011) (CCJELR) pg. 57.

28.      Based on the above jurisprudence, and being satisfied that the case is premised on the allegation of violation of human rights, the Court holds that the case is admissible.

The Court will now proceeds to analyse the second issue for determination which is

29.      WHETHER THE APPLICANT HAVING RESIGNED CAN STILL CLAIM THE STATUS OF A “FORMER” MEMBER OF THE TRANSITIONAL COUNCIL.

The Applicant avers that he served in the transitional government as a Vice Chairman of the Transitional Council of the Republic Liberia by virtue of which he is entitled to a retirement benefit and all the other privileges provided for in The Retirement Benefit Act. It is the case of the Applicant that he resigned his position in the former transition council three months before the end of his tenure to contest election in accordance with the provisions of the Abuja Accord of 19thAugust, 1995.

30.      The further contention of the Applicant is that his Diplomatic Passport which is a benefit under the retirement Act has consistently been renewed since 1997 to the date of commencement of this action. Indeed according to him, the last renewal was dated 04/24/2017 with an expiration date of 04/23/2019. The case of the Applicant is that his resignation from the Transitional Council does not affect his right as a former member of the Transitional Council. This fact he claims is supported by the continuous renewal of his diplomatic passport which is one of the retirement benefits for former members of the TC provided in the Act.

31.      The Respondent contended that premised upon the circumstances under which Applicant vacated the office of the Vice Chairman of the Council of State; that is to say, by his premature and voluntary resignation, he is ineligible for the retirement benefits as provided for under the above stated Act. In justifying the refusal to pay the allege entitlement, they argued that the Applicant is fully aware that the resignation from the Government to contest the 1997 elections stripped him of the qualifications as a retiree of the Government of the Respondent and therefore not entitled to any of the benefit under The Retirement Benefit Act

32.      It is the further argument of the Respondent that the Applicant is not a retiree within the contemplation of The Retirement Benefit Act because he is currently serving as a member of the Parliament having been elected in that capacity by district 2 during the recently concluded democratic general election in Liberia.

33.      The strong contention of the Respondent is that the Applicant was not retired by the Government of the Republic of Liberia, therefore he is not a retiree within the contemplation of the Act and is precluded from enjoying all the benefits therein.

34. The definition of retirement will help to put the meaning of retiree in perspective.

Black’s Law Dictionary (10th Edition) Bryan A. Garner defines retirement as:

“Termination of one’s own employment or career, especially upon reaching a certain age or for health reasons; retirement may be voluntary or involuntary.”

The above definition categorizes retirement as either voluntary and involuntary; the involuntary retirement implies that upon attaining certain age or fulfilling recommended conditions in service, an employee is expected to withdraw from service without any option, while the voluntary retirement captures a situation where the employee for other reasons which may be for health concerns or in pursuant of other personal goals or objectives decides to leave the service on his/her own accord before attaining the mandatory retirement age.

35.      The Respondent in canvassing their case contended that a voluntary resignation does not amount to retirement and the Applicant having resigned from his office as Vice Chairman of the transitional council to contest an election, was “never honorably retired by the government of the Republic of Liberia”. It is the opinion of the Court that a disengagement whether voluntary or otherwise from office can be classified as resignation or retirement and to the extent that it was not an impeachment or based on infraction of law amounts to retirement within the law. In the instant case, the Applicant falls within the voluntary act of disengagement from service and therefore is properly regarded as a retiree albeit voluntary. The Court must now determine whether resignation robs the Applicant the status of a “former member” of the transitional council making him ineligible for the benefits specified in The Retirement Benefit Act. It is noteworthy that the Respondent hung most of their defense on the fact that the Applicant is not a retiree and their pleas is replete with the word “retiree”.

36.      In this wise, it becomes imperative to analyse The Retirement Benefit Act with a view to discerning the spirit behind it and the contemplation of its makers. For the purpose of clarity, The Retirement Benefit Act is reproduced again.

An Act to Provide for Retirement Benefits for Former Interim President, Chairman, and Vice Chairman of the Council of State, Speaker, Deputy Speakers, and Members of the Transitional Legislative Assembly, Chief Justices and Associate Justices of the Supreme Court:

Section 1:

“That from and Immediately after the passage of this Act, all Former Interim President, Chairman, and Vice Chairman of the Council of State, Speaker, Deputy Speakers, and Members of the Transitional Legislative Assembly, Chief Justices and Associate Justices of the Supreme Court of Liberia in the Transitional Legislative Assembly are hereby entitled to and shall receive from the Republic of Liberia, commencing as of the date of Inauguration of the first democratically, post war elected President, as follow to wit:

Section 1 (1):

Former Interim President, Chairman, and Vice Chairman of the Council of State, Speaker, Deputy Speakers, and Members of the Transitional Legislative Assembly, Chief Justices and Associate Justices of the Supreme Court shall receive 50% (fifty percent) of the salaries per annum of the incumbents of the respective offices. In addition, the Chairman shall be provided with personal staff and facilities for the rest of his life. The amount for this purpose Shall not be less than USD$5, 000.00(Five Thousand United States Dollars) on a quarterly basis (every three months). Upon leaving Office honorariums shall be disbursed as follow: Chairman, US$25, 000.00; Vice Chairman, US$20, 000.00; Speakers, US$12, 800.00; Deputy speakers, US$10, 000.00; Chief JusticeUS$12, 800.00; Associate Justices, 10, 000.00 and TLA Members, US7, 500.00.”

Section 1 (6):

“Appropriate diplomatic, protocol, accommodation, courtesy and facilities, and;

Section 1 (7):

“Such other social amenities, privileges and benefits appropriate to commensurate with the status of a former public official of similar standing,”

37. It is informative from the content of the Act that the purpose is to provide appropriate retirement benefits for all former members of the transitional council that have served in the respective capacities mentioned therein, which is befitting to former public official of similar standing. The key operative word to qualify for the entitlement provided in The Retirement Benefit Act is to have been a former office holder. The Act did not specify whether resignation from office automatically ousts the official from being regarded as a former member. A close look at the Act shows that other than the title where the word “Retirement” was used once, the word “former” appears in three places in the body of the Act which is emphatic enough to explain the purposive interpretation of the Act that retirement benefits are meant for former members of the Transitional Council of Liberia. Furthermore a close look at the provision of Article 1(1) of the Act shows that payment of honorarium is merely based, “upon leaving office”. There is no stipulated mode of leaving office in the Act to qualify one for the stipulated benefits. Black’s law dictionary defines “leave” simply as departure or act of going away. The wordings of Act is clear and unambiguous and as such no extraneous meaning should be imported into to it. In CAMINETTI V. UNITED STATES, 242 U.S. 470 (1917), the Court while applying the Literal rule of interpretation in its reasoning held thus:

"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."

38. The Court must also examine the provision of the Abuja Accord to reach a determination as to its import on the status of the Applicant. While it is incontestable that the beneficiary of the said retirement benefits must be a member, the provision of the Act must be juxtaposed with the Abuja Accord to determine the consequential effect of resignation before the end of the tenure. Article 3 of the Abuja Accord states:

“Holders of positions within the Transitional Government as defined by the Cotonou Accord who wish to contest the election provided for under the Schedule of Implementation shall vacate office three months before the date of elections. They shall be replaced by their nominees or by persons nominated by the parties represented in the Council of State”.

39.      The Court is of the opinion that it will be disingenuous in the light of the provisions of above Accord to hold that the Act contemplates a full completion of tenure to qualify for the benefits therein, in essence making resignation punitive. It is clear from the above that the resignation of member from the Council of State was anticipated and approved and the Abuja accord is a necessary provision to enable a smooth/seamless continuation of the transition process. In fact it is the opinion of the court that this gesture was geared towards a realisation of democratic governance in enabling participation in a democratic process. Had the Applicant resigned for purposes in variance with the Act, the court will all probability have come to a different conclusion. Therefore resignation cannot rightfully be concluded to waive the benefits provided for former members of the transition council and in the instant case the Applicant.

40. In reaching the above conclusion, the Court is persuaded by the opinion of legal experts of similar situations in the international domain. In a report prepared for the congress of the United States of America in August 22, 2008, Wendy Ginsberg an Analyst in American National Government and Finance Division reporting on Former Presidents: Pensions, Office Allowances, and Other Federal Benefits confirm that:

“According to a 1974 Department of Justice opinion concerning President Richard Nixon’s resignation from office, a President who resigns before his official term of office expires may be entitled to the same lifetime pension and benefits that are authorized for Presidents who complete their term. A President who is removed from office by impeachment, however, may forfeit his pension and related benefits.”

Similarly, in a report prepared by the Ministry of Interior and Kingdom relation of the Government of Netherlands, the entitlement of the Executive and political appointees after resignation is captured as follows:

“Members of the executive are accountable to the municipal council for their decisions. Portfolio holders are sometimes made to resign if the council thinks they are not doing their work properly. They may also have to resign if their party loses so many seats in an election that it is no longer represented in the executive. In that case, they will resign once the new executive has been appointed. Former members of the executive are entitled to a benefit under the General Pensions (Holders of Political Office) Act, regardless of the reason for their resignation.”

41.      The case of the Applicant is further strengthened by the continued renewal of his diplomatic passport one of the benefits provided for in Section 1 (6) of The Retirement Benefit Act which states that former member shall be entitled to:

“Appropriate diplomatic, protocol, accommodation, courtesy and facilities, and;”

The Applicant in substantiating his case , attached to his plea a copy of his current Diplomatic Passport issued on 24/4/2017 with expiry date at 23/4/2019. The act of the Respondent in according the Applicant the privileges of diplomatic courtesy provided for in The Retirement Benefit Act by issuing a diplomatic passport puts him out as a former Vice chairman of the Transition Council. The question to ask is whether following from such show, Applicant can be estopped from claiming the rights accruable from such status?

In the instant case, possession and usage of a diplomatic passport is one of the retirement entitlements of a former member of the transitional council. The passport was not cancelled after his resignation rather it was consistently renewed till date. The renewal of the Applicant’s Diplomatic Passport is a recognition of his status as a former Vice Chairman of the transition council with all the rights to the benefits provided in The Retirement Benefit Act. Having held the Applicant out as a former Vice Chairman, a claim of bar due to resignation cannot avail the Respondent.

42.      With regards to the assertion by the Respondent that the Applicant is not a retiree having taken up another full time employment at the Parliament, the Court is of the opinion that this argument is neither here nor there. Retirement of a person does not translate to inactivity or recuse from productive engagement in any chosen field. Situations abound where retired political appointees continue to engage in active service in governance, non-governmental activities like charitable causes and other fields of endeavor including getting elected into parliament as the case is in most African Countries, European Countries and other jurisdictions all over the world. The Court therefore holds that the argument of the Respondent is not tenable and is without any probative value.

43.      In all, based on the above analysis and the established practices from other nations, the Court holds that Applicant’s resignation is within the contemplation of the law and he therefore remains a former member of the Transitional Council. The Court will now proceed to determine the next issue, which is;

44. WHETHER IF ISSUE [2] ABOVE IS RESOLVED IN THE AFFIRMATIVE, THE APPLICANT IS ENTITLED TO HIS CLAIMS.

Having concluded that the Applicant remains a former member of the Transitional Council, the Court will now determine whether the Applicant is entitled to the claims provided for in The Retirement Benefit Act viz a viz the various human rights instruments cited. The Court is not unmindful of the fact that a right might be guaranteed but it can be derogated from if provided for by law, and if necessary; in a democratic society.

45. Before proceeding to determine the issue above, it is important at this stage to quickly make a short diversion to state that the fixed retirement benefit is equally referred to as pension. The Black’s Law Dictionary, Ninth Edition defines pension as:

“A fixed sum regularly paid to a person or to the person’s beneficiaries by an employer as a retirement benefit.”

In the instant case, the fixed retirement benefits which Respondent provided for former members in The Retirement Benefit Act in the form of a fixed amount based on 50% the President’s salary can rightly be classified as pension.

Consequently the Court will henceforth address these fixed sums in The Retirement Benefit Act as pension and others entitlements as retirement benefits.

46. Now, regarding the 3rd issue for determination, the Court has taken the liberty to reproduce the content and context of various Human Rights instruments upon which the Applicant based his claim to enable a determination whether the claims are situated within them and whether the Applicant has proved his claim.

The Applicant alleged the violation of Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which is pari-material with the provision of Article 1 of the ACHPR which states:

“The Member States of the Organization of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.”

The obligations of Member States to protect the human rights of their citizens are entrenched in the above instruments and they are expected to take measures to guarantee the rights of its citizens in order not to be in violation of their obligations under the human rights instruments to which they are signatories. The above articles are not autonomous. Their operation is dependent on the violation of other rights contained in the other instruments. Consequently a failure or otherwise of the Respondent can only be determined after concluding that the Applicant has proved his claim.

47.      The Applicant also alleged the violation of Article 9 of the ICESCR which is pari- material with Article 22 of the UDHR which read as follows:

“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co- operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”

The above captures and recognizes the right of everyone to social security including social insurance which includes retirement benefits to ensure qualitative and financial future for retirees.

48.      Furthermore, the Applicant alleged the violation of Article 25 (1) of the UDHR which is pari- material with Article 11of the ICESCR provides as follows:

“Everyone has the right to a standard of living adequate for the Health and well-being of himself or herself and of his or her family, including food, clothing, housing and medical care and necessary social services, and the rights to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

This article deals with a wide range of subjects; such as right to health, housing, food and other means of livelihood which could occasion the violation of human rights if the state by its act or omission fails to make provision for them to be affordable and available to its citizens.

49. The Applicant also alleged the violation of Article 4 of the ACHPR which provides:

“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”

This article prohibits the arbitrary deprivation of life which amounts to violation of the rights to life. In a situation where the State denies access to the means of livelihood which includes the denial of the right to pension, it has been held to amount to a violation of right to life.

50.      The Applicant equally alleged the violation of Article 2 of the ACHPR which is pari material to Article 7 of the UDHR which provides :

“Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status”

This article is clear in its context as preventing discrimination based on the above listed grounds against which the facts of the Applicant will be examined

51. Lastly, the Applicant alleged the violation of Article 20 (a) of the 1986 Liberian Constitution which reads thus:

“No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law. Justice shall be done without sale, denial or delay; and in all cases not arising in courts not of record, under courts martial and upon impeachment, the parties shall have the right to trial by jury.”

With regards to the above, most of the rights guaranteed therein except the right to property are equally captured in the various articles earlier cited. The Court notes that the right to property is also provided for in Article 14 of the ACHPR as thus;

“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”

52. The allegation of the violation of the Applicant’s human rights under the above international human rights instrument cited can be summarized as follows:

1.  Violation of the right to life and dignity contrary to Article 4 of the ACHPR.

2.  Violation of the right to a standard of living adequate for the Health and well- being including food, clothing, housing and medical care contrary to Articles 25 of the UDHR and 11 of the ICESCR Section 20 (a) of the 1986 Liberian Constitution .

3.  Violation of the right to social security and dignity contrary to Articles 22 of the UDHR and 9 of the ICESCR.

4.  Violation of the right to property contrary to Article 14 of the ACHPR and 20(a) of the 1986 Liberian Constitution.

5.  Violation of freedom from discrimination contrary to Articles 2 of the ACHPR and 7 of the UDHR.

6.  Violation of the duty and obligation of the Respondent to protect the Applicant’ human rights contrary to Articles 2 of the ICESCR and Article 1 of the ACHPR.

From the summary of the rights above, it is clear that the case of the Applicant is that the denial or refusal to pay his pension and other entitlements is a violation of his rights to life, right to health, right to human dignity, right to Property and freedom from discrimination. The Court will now examine each of these articles to determine whether the Applicant’s rights have been violated as claimed.

53. Violation of the right to health, dignity and life.

The crux of provision of Article 25(1) UDHR is the guarantee of a standard of living adequate for the Health and well-being. The rights to life, health and dignity are intertwined such that a violation of one can lead to the violation of the other. It follows that the enjoyment of a healthy life is dependent on the ability to afford good medical services which in turn is dependent on the financial security sufficient for maintenance of good health. Payment of pension implicates the ability of pensioners to enjoy these guarantees. . The allegation of the violation of the right to life does not necessarily entail the actual loss of life or merely physical act of breathing, neither does it connote mere animal existence or continued drudgery through life. It has a wider meaning which includes right to live with human dignity, right to livelihood, right to health and many more. Consequently, the refusal to pay retirement benefits can occasion the violation of the right to health and thus a violation of the right to life. Of course the dignity of a person is implicated if due to lack of means traceable to denial of pension, the person becomes a relic of the society falling from his/her ordinary standard in life with the likelihood of becoming a beggar.

54.      The Court further notes that the combined interpretation of Articles 22 and 25 of the UDHR with Articles 9 and 11 of ICESCR situates pension as a social security which obliges the State Parties to comply with their obligations under articles 1 ACHPR and 2 of the ICESCR. The obligation of State Parties to provide social security including pension as envisaged in Article 25 of the UDHR has been well articulated as follows by a legal expert; Z. Vorslava in his book titled: Legal Aspects of Right for a Pension as a Human Rights;

“which basically means also a right to receive state`s social security, including social risk situations. The right to social security is a basic human right (which pertains to the social, economic and cultural rights – the second generation of human rights). Thus, the right to a state pension is among the basic human rights and their implementation is one of the fundamental principles of the judicial state. The right to social security is closely linked to the right to life, liberty and security of a person, provided in the Article 3 of United Nations Universal Declaration of Human Rights. Restriction of the social rights, including restriction of rights to the pension, may indirectly affect a person`s right to life.”

55.      In further support of the relationship of pension and social security, Justice D Y Chandrachud of the Bombay High Court held in the landmark case of Manager, Solapur Municipal Corporation and Others v. Devidas Mahadev Potdar and Others, Bombay High Court (10 December, 2008). that pension is a vital aspect of social security and that the right to receive it constitutes a right to life under Article 21 of the Indian constitution which is pari material with Article 4 of the UDHR and in addition opined as follows:

''Deprive a pensioner of the payment and you deprive him or her of the right to life. Delayed pensionary payments place a pensioner in a position of uncertainty and dependence which impinges on the quality of life under Article 21, and the right to dignified existence of the aged,''

In Further examination of the right to medical care and its dependence on financial security, Z. Vorslava has this to say:

“The right to receive state pension are also provided by the United Nations Universal Declaration of Human Rights that states that the right to health has to be understood as a right to such conditions, services and goods that are necessary to obtain the highest level of health protection.”

56. The decided cases above further strengthen the court’s opinion of the inter- relationship between denial of pension on one hand and the attendant implication on the rights to health, dignity and life. The allegation of the violation of the right to life in the instant case does not necessarily entail the actual loss of life or merely physical act of breathing, neither does it connote mere animal existence or continued drudgery through life. It has a wider meaning which includes right to live with human dignity, right to livelihood, right to health and many more. It suffices to be established that the Applicant is entitled to pension and other retirement benefits which if paid would have enabled him live a life that is meaningful, dignified and healthy in relation to his entitlements and taking into consideration the standard of life commensurate to the expected pension.

Having said that, the Applicant has the burden to proof that the denial of his entitlement under the act has rendered him incapable of living a life with dignity. The court has no evidence to support the fact that the Applicant is unable to afford the bare necessities, minimum and basic requirement to live a life worth living. Having not discharged this burden, the claim of violation of his rights to life, dignity and health does not avail him.

57. Violation of the right to property

A further claim of the Applicant is that denial of his pension is a violation of his right to property under Article 20 (a) of the Constitution of Liberia. The Court recalls that Article 14 of the ACHPR also guarantees the right to property. Though the Applicant did not refer to this article, it will nevertheless address the alleged violation of the right to property together with the provision of the Liberian constitution. The Blacks’ Law Dictionary, 9th Edition defines property in its widest sense to include all of a persons’ legal right of whatever description. A man’s property is all that is his in law. The question to ask is whether pension amounts to property.

This Court has also held that pension is a property right and refusal to pay same constitutes violation of Article 14 of the ACHPR. In the case of Registered Trustees of Association of Former Telecom Employees of Nigeria &17,102 Ors. V. Federal Republic of Nigeria & Ors; ECW/CCJ/JUD/20/19 it held as follows.

“In light of the above, the Court holds the view that pension is property which can be vested on an individual the denial of which therefore constitutes a violations of Right to property.”

The United States Claim Tribunal in AMOCO INTERNATIONAL FINANCE CORPORATION V. IRAN, Award No 310-56-3 (14 July 1987), 15 Iran-US C.T.R. 189- 289, held that:

“Under the Protocol 1 of the European Convention on Human Rights, the concept of property is very broadly defined by reference to all the proprietary interests of an individual. It covers a range of economic interests: “movable or immovable property, tangible and intangible interests, such as shares, patents, an arbitration award, the entitlement to a pension, a landlord’s entitlement to rent, the economic interests connected with the running of a business and the right to exercise a profession...” (Protocol I of the ECHR is pari material with Article 14 of the ACHPR) In further support of the above opinion the ECHR has held in the case of BÉLÁNÉ NAGY v. HUNGARY (Application no.53080/13) JUDGMENT STRASBOURG 10 February 2015 @ 36 that:

“Article 1 of Protocol No. 1 places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - whether conditional or not on the prior payment of contributions - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements”

58. The court notes that the combined reading of article 20 (a) of the 1986 Liberian Constitution and Article 14 of the ACHPR guarantees the right to property. Following from the analysis and the jurisprudence from different jurisdiction, the court re- affirms and holds that pension is property with attendant right to be protected in accordance with the law. While the court has held that pension is property to which a proprietary right can be claimed, it should however be noted that this right is not absolute as it can be derogated from in accordance with the law or when necessary in a democratic society. The Court, in its analysis of the instant case finds no specific provision of the law which entitles a denial of the Applicant’s pension and other entitlements. Even though the Respondent contended that based on the Applicant’s resignation as provided for in the Abuja Accord, he is precluded from claiming the rights under the Act, the Court has already ruled that the Abuja Accord which allows resignation before the end of the Applicant’s tenure does not constitute a bar to his entitlement. Additionally the Respondent has not justified the denial of the pension rights as necessary in a democratic society. The court has therefore come to the inevitable conclusion that the justification to deprive a right to property has not been substantiated. The denial of the Applicant’s pension and other retirement benefits therefore amounts to the violation of his right to property contrary to Articles 14 of the ACHPR and 20(a) of the Constitution of the Republic of Liberia and the court so holds.

59. Violation of the right to equality before the law and freedom from discrimination

The Plaintiff averred that the act of the Defendant in omitting his name from the payment request and the subsequent payment to his colleagues amounts to a discrimination against his person. The Defendant on the other hand contends that the Plaintiff has not proved that payments were made to other members of the Council of State who resigned prior to the 1997 elections for the purpose of contesting for the presidency. For an action of discrimination to succeed under the articles listed above, there must be established a difference of treatment in an identical or similar case. In BADINI SALFO V THE REPUBLIC OF BURKINA FASO JUD NO: ECW/CCJ/JUD/13/12, the Court while relying in its judgment in CNDD v. COTE D’ IVOIRE (2009) Para 55, and PROF. ETIM MOSES v. REP OF GAMBIA, (2007) Para 31, held that:

“Equality before the law presupposes that equal treatment is accorded people finding themselves in similar situations. Thus, examining the allegation of the violation of the principle of equality requires that, at least two similar legal situations be put side by side as to compare and find out whether an ill treatment was concretely meted out to either one or both of them”.

In the case AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS V. REPUBLIC OF KENYA APPLICATION No. 006/2012 JUDGMENT 26 may 2017, which deals with the violations of various rights of the indigenous people of Ogiek tribe in Kenya forest, the African Court on Human and Peoples Rights ruling on allegation of discrimination based on differential treatment of the tribe by the government of Kenya in comparison to other tribes in similar situation held as follows:

“The Court accordingly finds that, if other groups which are in the same category of communities, which lead a traditional way of life and with cultural distinctiveness highly dependent on the natural environment as the Ogieks, were granted recognition of their status and the resultant rights, the refusal of the Respondent to recognize and grant the same rights to the Ogieks, due to their way of life as a hunter gatherer community amounts to 'distinction' based on ethnicity and/or 'other status' in terms of Article 2 of the Charter.”

The European Court of Human Rights in the case of RATZENBÖCK AND SEYDL v. AUSTRIA (Application no. 28475/12), in an action of discrimination for refusal to register a same sex marriage in Austria held as follows:

“In order for an issue to arise under Article 14 of the European Convention on Human Rights (which is in pari-material with Article 14 of the ICCPR) there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently. However, not every difference in treatment will amount to violation of article 14.

60. In the instant case, the case of the Applicant is that he has been discriminated against by the denial of his benefits whilst others were paid. The Respondent on the other hand stated that indeed two other members of the Council in persons of Charles Taylor and Alhaji G Koromah resigned to contest the presidential election and that none of them was paid any benefits under the Act. To succeed in a claim of discrimination, the Applicant must established that having regard to denial of the retirements benefits due to his resignation, other members who also resigned were nevertheless paid their entitlements. The Applicant while contesting otherwise annexed payment vouchers of several legislators who were not shown to have resigned to contest the election. In essence, the court has no record indicating payments made to other ranking members who resigned to contest the 1997 election.

61.      It is trite law that he who alleges bears the burden of making out a prima facie case in support of his averments, the court in its consideration reiterated the cardinal principle of law that “he who alleges must prove”. Therefore, where a party asserts a fact, he must produce evidence to substantiate the claim. The Applicant has not been able to establish that he was treated differently from other members in similar situation with him. In the absence of evidence to support a different treatment in similar situations, the Applicant’s claim of violation of equality before the law and freedom from discrimination is hereby dismissed

62. Closely linked to the right to pension and retirement benefits is the concept of legitimate expectation. In the instant case the Plaintiff served as Vice Chairman of the State of Liberia before he voluntarily resigned. Having spent time in active service of the Government of the Respondent, the Applicant is legitimately expected that upon leaving office, he will be entitled to some benefits. A legitimate expectation encapsulates the need to ensure legal certainty. Lord Fraser of Tullybelton in ATTORNEY-GENERAL OF HONG KONG V. NG YUEN SHIU (1983) 2 A.C. 629 said that,

“When a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty”.

The rationale behind the doctrine of legitimate expectation is the need to prevent administrative authorities from exercising their discretionary powers so as to defeat legitimate expectations of individuals, which have been engineered by the prior conduct of those administrative authorities. Thus, the doctrine strives to make sure that administrative authorities are bound by their undertaking. In the case of ČAKAREVIĆ V. CROATIA (Application no. 48921/13) 26 April 2018, the ECHR Court held that, as a rule, a legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a “sufficient basis in national law”.

63.  In the instant case, the Respondent argue that the Applicant did not complete his term in office because he resigned to contest an election and he is therefore not entitled to any pension regardless of the fact that there is no provision of the law to back up the argument. To deny the Applicant his legitimate expectation to pension after retirement without any provision of the law to substantiate such decision constitutes a violation of his human rights. This Court in Registered Trustees of Association of Former Telecom Employees of Nigeria &17,102 Ors. V. Federal Republic of Nigeria & Ors; ECW/CCJ/JUD/20/19, emphasised that:

“The Respondent must ensure that no Applicant is denied life pension entitlement due to reasons of not attaining pension age. It is trite law that a legitimate expectation is capable of sustaining a claim on the right to property as same is subject to protection.”

Applying the above decisions which are quite persuasive, the court holds that the Applicant, placing reliance on the provision of The Retirement Pension Act that upon leaving the office as a Member of the Transitional Council, he will be entitled to receive all the benefits provided for as a former member of the Transitional Council in which he was a former Vice Chairman is a valid legitimate expectation which this court will protect. The Court therefore holds that the denial of the Applicants pension is a denial of his legitimate expectation.

64. Having held that the denial of the Applicant’s pension and retirement benefits is a violation of his rights as claimed, the Court will now address the reliefs sought by the Applicant same being reproduced here for ease of reference.

The Applicant sought the following reliefs:

1.  A Declaration that the denial of the Applicant to received his pension benefits is a violation of his human rights.

2.  A declaration that Respondent pay the Applicant the amount of US$726, 982.00 which constitutes the amount due him as of the date and time of filing this action, plus 6% interests per annual; that thereafter the payment of his pension benefits, be made current.

3.  A declaration that Respondent pay successful Attorney fees of 2% of the principle amount owe Applicant.

4.  A declaration that the Respondent pay the sum of USD$2, 000,000.00 (Two Million United States Dollars) as compensation for the violation of the rights of Applicant, and injury caused him, his family to the absence of basic needs, such as food, decent living standard, befitting a former Vice Chairman of State, etc., which contributed to the breaking up of his family.

65. With regards to relief one, the court has based on the analysis under the various heads declared that the denial of the Applicant’s pension and other retirement benefits did not constitute a violation of his rights as claimed save the allegation of violation of his right to property which the court upheld.

66.      The Court will now proceed to address relief two which is the payment of the amount due to the Applicant as pension at the time of filing of this suit calculated at US$726, 982.00 (United States Dollars) plus 6% interest. To substantiate the above claim, the Applicant attached as annexure 6 to the originating application a breakdown of the amount allegedly due to him from the Respondent as follows:

1.  Honorarium upon leaving office-------------------------------- US$20,000.00

2. 50% of V. President Sal. pension 1997 to 2006($18,000x10)-US$180,000.00

3. 50% of V. President Sal. Pension 2006/2007----------------------US$11,028.00

4.  Half of V. President Sal. Pension 2007/2008--------------------- US$22,684.00

5.  Half of V. President Sal. Pension 2008/2009--------------------- US$22,684.00

6.  Half of V. President Sal. Pension 2009/2010--------------------- US$28,772.00

7.  Half of V. President Sal. Pension 2010/2011--------------------- US$36,472.00

8.  Half of V. President Sal. Pension 2011/2012--------------------- US$36,472.00

9.  Half of V. President Sal. Pension 2012/2013--------------------- US$42,174.00

10.Half of V. President Sal. Pension 2013/2014--------------------- US$42,174.00

11. Half of V. President Sal. Pension 2014/2015---------------------US$42,174.00

12. Half of V. President Sal. Pension 2015/2016---------------------US$42,174.00

13.Half of V. President Sal. Pension 2016/2017----------------------US$42,174.00

14. Security salary @US$200 Monthly 1997 to 2017-------------- US$48,000.00

15. Transportation of size and quality 1997 to 2017------------------US$110,000.00

 

GRAND TOTAL------------------------------------------------------ =US$726,982.00

 

67. Items 1 to 13 of the above is based on the calculation of honorarium and 50% of salary of former and incumbent Vice President from 1997 till 2017 as Provided in The Retirement Benefit Act amounting to $568,982. The Court notes that the Applicant did not provide any official document to authenticate his claim. For instance, an official gazette indicating the salaries within the stated period of past and the incumbent vice presidents, or any other official document to support the figures quoted in the reliefs. The court is not expected to accept any unsupported figures submitted by the Applicant. The court therefore holds that the specific amount in the sum of $568,982 claimed by the Applicant, being devoid of details is unsubstantiated and therefore denied. The claim is denied based on the unsupported quantum and not the substance. It is to be noted that the inability of the Applicant to provide the correct records of payment made to the previous and incumbent vice president does not necessarily vitiate his right to the pension due to him as a Former Vice Chairman of the State Council in accordance with the provisions of The Retirement Benefit Act.

68. It is trite law that when a document is in the custody of the adverse party, the burden of proof of same shifts from the claimant to the custodian of the document. It is common knowledge that information about pension benefits especially the matrix of calculation is domiciled with the employer. The employee, more often than not upon retirement is presented with the total entitlement due same having been calculated by the employer. Thus when the records and the metric of calculation are in the custody of the employer, as in this instant case, the Respondent, the onus lies on them to provide.

This was the position held by this court in the case of Registered Trustees of Association of Former Telecom Employees of Nigeria &17,102 Ors. V. Federal Republic of Nigeria & Ors; ECW/CCJ/JUD/20/19, when this court held that:

“It follows therefore that once the claimant makes out a prima facie case of entitlement to pension, by proof of employment but lacks access to the key information needed to substantiate his claim same being in the control of Respondent, such claim cannot fail due to being unsubstantiated. It is a recognized fact that salary records and computations matrix are in the normal cause of events in the custody and preserve of the employer in this case the Respondent. The burden to provide records of the pension entitlement of the Applicant having shifted to the Respondent, the Applicants are exonerated from proving their entitlement.”

See also ESTATE OF BARTON V. ADT SECURITY SERVICES PENSION PLAN No. 13- 56379 (9th Circuit, April 2016) when the European Court held

“Though the claimant bears the burden of proving entitlements, this burden must shift where the defending entity solely controls the information that determines entitlement leaving the Claimant with no meaningful way to meet his burden of proof.”

Following from the above reasoning, the Respondent being the employer and the natural custodian of relevant information/data about the pension and other retirement entitlements of all officials named in the said Act, the Court therefore orders the Respondent to calculate the honorarium and the amount due to the Applicant as pension based on 50% of the salaries of previous and incumbent vice presidents in accordance with the Act and pay same forthwith.

69. With regards to the second part of relief two, the Applicant’s claim is for the sum of $158,000 as refund for the payment for the Security services he incurred and the vehicles he purchased covered by items 14 and 15 of reliefs listed above. He based his claim on the provision of Sections 6 and 7 of The Retirement Benefit Act which states other entitlement to include;

“Section 1 (6):

“Appropriate diplomatic, protocol, accommodation, courtesy and facilities, and;

Section 1 (7):

“Such other social amenities, privileges and benefits appropriate to commensurate with the status of a former public official of similar standing,”

The Court notes that the Applicant has not substantiated this claim by submitting evidence in the form of receipts for purchase of the said vehicle and any form of document evidencing payment of salaries either personally to the security officers or to a security recruitment agency. As decided above, the court holds that though the Applicant has not proved the quantum of relief sought under this head, by virtue of the Sections 6 & 7 of the Act he is entitled these privileges. The Respondent having provided these privileges to other former members of the council and being the natural custodian of the documents evidencing the cost of the vehicles and fees for security services, is obliged to monetise the value of these entitlements and pay same to the Applicant forthwith. The court so orders.

70. On the relief that the Court should make a declaration that Respondent pay successful Attorney fees of 2% of the principle amount owed to Applicant. The applicant has not provided the details of cost implication to convince the court of the entitlement so claimed. The blanket claim of 2% of principal amount owed is denied. However noting that it is in evidence the Applicant engaged an attorney to whom he must enumerate, the court in its discretion awards the cost of $2,000 against the Respondent.

71. With regards to relief four, the Applicant claimed the sum of USD$2, 000,000.00 (Two Million United States Dollars) as compensation for the violation of his rights, and injury caused him, his family due to the absence of basic needs, such as food, decent standard of living, befitting a former Vice Chairman of State which contributed to the breaking up of his family. The Applicant attached a copy of the Bill of Divorcement Certificate from the Montserrado County Court issued in the City of Monrovia Liberia, dated 29th of April 2019 and marked as annexure 7 to substantiate the claim of divorce. The Respondent in contention urged that the claim should be denied as it is an attempt to mislead the Court on the grounds that it was the Applicant who filed the divorce proceeding and not the wife as claimed.

72. The Court after a careful perusal of the Certificate of Divorce, notes that the cause of divorce was not indicated therein and indeed the Applicant is the initiator of the divorce proceedings. To sustain a claim that the denial of his retirement and the attendant lack of funds to sustain his home led to the divorce, the Applicant must prove in the least that his wife indeed initiated the divorce proceedings against him due to his inability to provide for her sustenance. The court takes note of the alleged lack of sustenance due to non-payment of his pension, but the applicant must prove that the divorce was due to same. The divorce certificate is silent on the cause of the separation. In this regard, the Court is precluded from imputing the alleged lack of resources by the Applicant as the cause for the divorce. The claim for the sum of USD$2, 000,000.00 (Two Million United States Dollars) having being unsubstantiated, is hereby dismissed.

73. Following from all the above, the Court adjudicating in a public hearing, in the first and last resort, after hearing parties on matter of human rights violation, decides as follows:


 

DECISIONS:

DECLARES:

1.  That the Court has jurisdiction to entertain this suit.

2.  The applicant’s rights to life pursuant to article 4 of the ACHPR has not been violated.

3.    The Applicant’s right to health pursuant article 25 of the UDHR and 11 of the ICESCR Section 20 (a) of the 1986 Liberian Constitution has not been violated

4.  The Applicant’s right to dignity pursuant to Articles 22 of the UDHR and 9 of the ICESCR has not been violated.

5.  That the Applicant’s right to equality before the law and freedom from discrimination pursuant to article Articles 2 of the ACHPR and 7 of the UDHR has not been violated.

6.  That the Applicant’s right to property pursuant to articles 14 of the ACHPR and 20 of the Liberian Constitution has been violated by the Respondent.

ORDERS:

1.    The Respondent to calculate and pay to the Applicant his entitlement from 1997-2017 in accordance with the provision The Retirement Benefits Act.

2.  The Respondent to calculate and pay to the Applicant as refund due to him for security and transport allowance based on the amount budgeted for same for other former members.

3.    The Respondent to immediately restore the pension and other retirement benefits due to the Applicant as former Vice Chairman from the date of this judgment in accordance with The Retirement Benefit Act.

4.  That the Respondent file a notice of compliance with above orders on or before 120 days from date of this judgement.

5.  The Respondent to pay the Attorneys fees of $2,000 United States dollar as cost to the Applicant

DISMISSES;

6.  The claim for the sum of $20,000,000 for violation of right to family life and break up family.

Thus pronounced and signed on this 28th Day of June, 2019 in the Community Court of Justice, ECOWAS Abuja, Nigeria.

AND THE FOLLOWING HAVE APPENDED THEIR SIGNATURES:

Hon. Justice Edward Amoako Asante         - Presiding

Hon. Justice Gberi-Be Quattara                 - Member

Hon. Justice Dupe ATOKI                          - Member/Judge Rapporteur

 

Assisted by

Athanase ATANNON                                   - Deputy Chief Registrar