|
 |
AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS |
 |
This section contains summaries of the reparation aspects of key cases.
| 1992 |
 Jean Yakovi Degli on behalf of Corporal N. Bikagni, Union Interafricaine des Droits de l'Homme, Commission International de Juristes v. Togo, Communications 83/92, 88/93, 91/93 |
| Commission Nationale des Droits de l'Homme et des Libertés v. Chad, Communication 74/92 |
| Krishna Achuthan on behalf of Aleka Banda, Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communication 64/92, 68/92, 78/92 |
| 1991 |
| Civil Liberties Organization vs. Nigeria, Communication 67/91 |
| Constitutional Rights Project v. Nigeria, Communication 60/91 |
| Louis Emgba Mekongo v. Cameroon, Communication 59/91 |
| Various communications v. Mauritania, Communications 54/91, 61/91, 96/93, 98/93, 164/97-196/97, 210/98 |
| Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa vs. Sudan, Communication 48/90, 50/91, 52/91, 89/93 |
| 1989 |
| OMT, Association Internationale des Juristes Démocrates, Commission Internationale des Juristes and Union Interafricaine des droits de l'homme v. Rwanda, Communication 27/89, 46/91, 49/91, 99/93 |
| Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah vs. Zaire, African Comm. Hum. & Peoples' Rights. Communication No. 25/89, 47/90, 56/91, 100/93 |
|
Henry Kalenga vs. Zambia, Communication 11/88
| | Facts: | The Complainant alleged that he had been detained without trial at the order of the President.
There are a number of other cases like this where the Commission finds the case amicably resolved - in these instances the fact that the person is released is deemed sufficient reparation. See Communication 31/89 Maria Baes v. Zaire; Communication 55/91 International PEN v. Chad; Communication 62/91 Committee for the Defence of Human Rights in respect of Ms Jennifer Madike v. Nigeria; Communication 93/93 International PEN v. Ghana; * Pagnoule v. Cameroon.
| | | Violations: | Article 6 (right to liberty; prohibition of arbitrary detention)
| | | Legal Basis for Reparation | Whilst the Commission takes welcome note of the release of the complainant, this action cannot abrogate its responsibility for any violations that may have occurred (para 9)
| | | Forms of Reparation | The Commission welcomed the fact that the applicant was released from prison and interpreted the fact that he had failed to continue corresponding with the Commission as evidence of his satisfaction with the outcome.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Comité Culturel pour la Democratie au Benin vs. Benin, Communications 16/88, 17/88, 18/88
| | Facts: | Communication 16/88 concerns the arrest of students, workers and pupils and their detention without trial (some for several months), during which they were tortured and maltreated. Communication 17/88 concerns the applicant's arrest under suspicion of involvement of conspiracy against the government. He was kept under surveillance and deprived of his liberty for two years. His salary was suspended and his bank accounts frozen. On 7 September 1992 that applicant wrote to the Commission informing it had been released on 10 January 1990 but that no measure had been taken for his rehabilitation.
Communication 18/88 concerns the detention and torture of the applicant for more than seven years without charge or trial, the absence of food for long periods, the blocking of his bank account, and the use of his money without his permission. He demanded restitution of funds and just satisfaction for the moral, physical and material prejudice that he and family members had suffered.
| | | Violations: | Article 5 (right to respect for human dignity; prohibition of torture)
Article 6 (right to liberty; prohibition of arbitrary detention)
Article 18.1 (respect for family life)
(Communication 18/88 declared inadmissible for non-exhaustion of domestic remedies as the applicant's request for reparation was pending before the national courts.)
| | | Legal Basis for Reparation | Communication 16/88 alleges serious and massive violations of human rights. The Commission finds that in such circumstances it is clear that the state has had ample notice of such violations. The Commission [.] cannot hold the requirement of exhaustion of local remedies to apply literally in cases where it is impractical or undesirable for the complainant to seize the domestic courts in respect of each individual complaint. This is the case where there are a large number of victims. Due to the seriousness of the human rights situation and the large number of people involved, such remedies as might theoretically exist in the domestic courts are as a practical matter unavailable or, in the words of the Charter, "unduly prolonged". (para 27.)
The Commission took note that Benin had undergone an important political change since these events. However the Commission also noted "international law does stipulate that responsibility for a previous government's violations falls to the new government" (para 38).
| | | Forms of Reparation | The Commission further noted, "in these cases there is evidence that the new government has attempted to remedy the injustices committed by the previous administration. It has repealed many of the laws such that detention of individuals on the basis on which the persons in these communications were held would no longer be possible. In addition, the Commission notes the release of political prisoners and of the introduction of amnesty laws. All of the individuals in these particular cases have been released as a result of the new government's actions" (para 39). In addition some of the applicants were reinstated to their previous employments (paras 36 and 37).
The Commission assumed "that the actions taken by the government remedy the prejudices complained" (para 40).
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah vs. Zaire, African Comm. Hum. & Peoples' Rights. Communication No. 25/89, 47/90, 56/91, 100/93
| | Facts: | Comm. 25/89 alleges the torture of 15 persons by a Military Unit, on or about 19 January 1989, at Kinsuka near the Zaire River. On 19 April 1989 when several people protested their treatment, they were detained and held indefinitely.
Comm. 47/90, dated 16 October 1990, alleges arbitrary arrests, arbitrary detentions, torture, extra-judicial executions, unfair trials, severe restrictions placed on the right to association and peaceful assembly, and suppression of the freedom of the Press.
Comm. 56/91, dated 27 March 1991, alleges the persecution of the Jehovah's Witnesses, including arbitrary arrests, appropriation of church property, and exclusion from access to education.
Comm. 100/93, dated 20 March 1993, makes allegations of torture, executions, arrests, detention, unfair trials, restrictions on freedom of association and freedom of the press. It also alleges that public finances were mismanaged; that the failure of the Government to provide basic services was degrading; that there was a shortage of medicines; that the universities and secondary schools had been closed for two years; that freedom of movement was violated; and that ethnic hatred was incited by the official media.
| | | Violations: | The Commission holds that the facts constitute serious and massive violations of the African Charter, namely of Articles 4,5,6,7,8,16 and 17.
| | | Legal Basis for Reparation | Due to the seriousness of the human rights situation as well as the great number of people involved, such remedies as might theoretically exists in the domestic courts are as a practical matter unavailable [.] (para 57)
An inevitable condition for the respect of the right of an individual to have his case heard by impartial courts and tribunals is that this imposes a duty on the State to provide the structures to enable this to be carried out. However, insufficient information was available to enable the Commission to take decisions on violations [.] (para 85)
| | | Forms of Reparation | (The Commission did not address this issue.)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
OMT, Association Internationale des Juristes Démocrates, Commission Internationale des Juristes and Union Interafricaine des droits de l'homme v. Rwanda, Communication 27/89, 46/91, 49/91, 99/93
| | Facts: | The complaints referred to: the expulsion of Burundi nationals who had been refugees without the opportunity to defend themselves at trial; arbitrary arrests and summary executions; the detention of thousands of people by the armed forces on the basis of ethnic origin; the destruction of Tutsi villages and massacre of Tutsis.
| | | Violations: | Art 2 (non-discrimination)
Article 4 (right to life)
Art 5 (torture)
Art 7.1(a) (fair hearing)
Art 12 (expulsions)
Arts 6, 7
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The Commission requested that Rwanda should adopt measures in conformity with this decision.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Pagnoulle (on behalf of Mazou) v. Cameroon, Communication 39/90
| | Facts: | The victim was sentenced to five year's imprisonment by a military tribunal without trial, witnesses or right to defence. He remained in detention until an amnesty law was passed. He wanted to be reinstated as a magistrate.
| | | Violations: | Article 7.1 (b) and (d) (fair trial and presumption of innocence)
Article 6 (liberty and security)
Article 15 (right to work)
| | | Legal Basis for Reparation | The Commission held that although the court proceedings at issue began before the Charter came into force, it could still pronounce on irregularities in the original sentence that has consequences constituting a continuing violation.
| | | Forms of Reparation | The Commission found that Cameroon should draw all the necessary conclusions to reinstate the victim in his rights. [Restitution]
*A similar finding was asked of Angola in Communication 159/96 Union Interafricaine des droits de l'homme - Association Malienne des droits de l'homme au Angola v. Angola (relating to expulsion of aliens).
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Njoku v. Egypt, Communication 40/90
| | Facts: | The complainant was arrested while in transit waiting for his connecting flight in Egypt: his passport was stamped with a false entry visa and therefore he was searched and drugs were found. He alleged that the suitcase containing the drugs was not his.
| | | Violations: | The Commission did not find any violations. It noted that, apart from certain points of convergence, the rest of the communication contains serious divergences as regards the information provided by the parties. It does not however behove the Commission to judge the facts. This is the responsibility of the Egyptian courts. (para. 60) The role of the Commission in such a case is to ensure that during the process from the arrest to a the conviction of Mr. Ngozi Njoku, no provision of the African Charter on Human and Peoples' Rights was violated. It is also incumbent on it to ensure that the defendant state respected and indeed enforced its own law in total good faith. To all these questions, the Commission responded in the affirmative. (para. 61)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | However, it gave the mandate to Commissioner Nguema to pursue his good offices with Egypt with a view to obtaining clemency for the complainant on purely humanitarian grounds.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Peoples' Democratic Organisation for Independence and Socialism v. The Gambia, Communication 44/90
| | Facts: | The complaint alleges that voter registration in the constituencies of Serrekunda West, Serrekunda East and Bakau was defective because those registering were not required by the law to give an address or identification. The complainant argued that the absence of a requirement to produce an address or compound number makes it possible for the voter to forge his right to vote in the constituency, or to vote several times.
| | | Violations: | Article 13
| | | Legal Basis for Reparation | In 1994 there was a change of government in The Gambia. The present government recognizes that it has inherited the previous government's rights and obligations under international treaties. (para 23) The present government has a different view of voter registration. It concedes that the grievances expressed by the complainants are valid and logical. It describes that it is in the process of establishing an independent electoral commission and has commissioned a team of experts to review the present electoral law. (para 24)
The Commission held that the communication reached an amicable resolution. (findings)
| | | Forms of Reparation | The Commission deemed the case resolved as the government accepted the complainant's contentions (relating to political participation) and agreed to review the current electoral law.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa vs. Sudan, Communication 48/90, 50/91, 52/91, 89/93
| | Facts: | The Communications deal with arbitrary arrests and detentions, as well as torture, that took place following the coup of 30 July 1989. Executions are also alleged to have been carried out by militia groups which are believed to have close connections with and the support of the government. No independent inquiry has been conducted into their activities nor have any persons been prosecuted in connection with such killings.
| | | Violations: | Article 2
Article 4 (right to life)
Article 5 and 6 (torture and ill-treatment)
Article 7.1(a), (c) and (d) (fair hearing)
Article 8 (freedom of conscience and religion)
Article 9 (freedom of expression)
Article 10 (freedom of association)
Article 26 (judicial independence)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The investigations undertaken by the Government are a positive step, but their scope and depth fall short of what is required to prevent and punish extra-judicial executions. Investigations must be carried out by entirely independent individuals, provided with the necessary resources, and their findings should be made public and prosecutions initiated in accordance with the information uncovered. Constituting a commission of the District Prosecutor and police and security officials, as was the case in the 1987 Commission of Enquiry set up by the Governor of South Darfur, overlooks the possibility that police and security forces may be implicated in the very massacres they are charged to investigate. This commission of enquiry, in the Commission's view, by its very composition, does not provide the required guarantees of impartiality and independence.
The Commission appreciates the fact that the government's has brought some officials to trial for torture, but the scale of the government's measures is not commensurate with the magnitude of the abuses. Punishment of torturers is important, but so also are preventive measures such as halting of incommunicado detention, effective remedies under a transparent, independent and efficient legal system, and ongoing investigations into allegations of torture. (para 56)
The remedies provided for under the 1990 national security law do not conform to the demands of protection of the right to a good administration of justice, to the extent that the appeals provided for in this law cannot be brought before a judge. (para 34)
The Commission recommends strongly to the Government of Sudan to put an end to these violations in order to abide by its obligations. (findings)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Various communications v. Mauritania, Communications 54/91, 61/91, 96/93, 98/93, 164/97-196/97, 210/98
| | Facts: | The Commission said that the detentions were arbitrary because they were not in conformity with international norms relating to fair trial (para 113).
The Commission particularly refers to the beatings (para 8), being forced to make statements (paras 8 and 11), being denied the opportunity to sleep (para 10), solitary confinement (paras 5, 8, 10-12), the conditions of detention (including lack of food, being kept in chains, overpopulated cells, being burnt and buried in sand and left to die, electrical shocks, heads plunged in water, pepper smeared on eyes and being kept in small, dark or underground cells) (para 116). The Commission also refers to the "Jaguar" position (paras 20, 22 and 117) and rape (para 20 and 117).
The Commission found that denying people food and medical attention, burying them in the sand and subjecting them to torture to the point of death show a lack of respect for life (para 120).
The communications relate to the situation in Mauritania between 1986 and 1992 during which the government marginalized black Mauritanians. They allege arbitrary arrests and detention, racial discrimination, long periods of detention without trial, statements taken under duress, unfair trials and use of a special summary procedure for a trial without prior investigation, torture and killings, poor conditions of detention, expulsion, slavery.
| | | Violations: | Article 2 (non discrimination)
Article 4 (right to life)
Article 5 (ill-treatment)
Article 7.1(a) (b) (c) and (d) (fair trial)
Article 9.2 (freedom of expression)
Article 10.1 (freedom of association)
Article 11 (freedom of assembly)
Article 12.1 (freedom of movement and residence)
Article 14 (right to property)
Article 16.1 (right to enjoy physical and mental health)
Article 18.1 (respect for family life)
Article 26 (independence of the courts)
| | | Legal Basis for Reparation | The Commission noted the various reparations that the government had done already. Namely, it granted amnesty to those accused of perpetrating the series of murders for which the beneficiaries of the victims are claiming compensation of injuries suffered (para 57). The Commission also stated that the fact that the government had paid compensation to the beneficiaries of the victims couldn't invalidate the Commission's deliberations (para 61). It also noted that an amnesty law adopted with the aim of nullifying suits or other actions seeking redress that may be filed by the victims or their beneficiaries, while having force within Mauritania, cannot shield that country from fulfilling its international obligations under the Charter (para 83).
The Commission recommended to the government that it:
· Arrange for an independent enquiry;
· Replace the national identity documents of the said persons;
· Ensure payment of a compensatory benefit to the widows and beneficiaries of the victims;
· Reinstate rights;
· Carry out an assessment of degrading practices with a view to identify the causes and put in place a strategy aimed at their total and definitive eradication;
· Enforce the ordinance on the abolition of slavery.
| | | Forms of Reparation | (The Commission did not address this issue.)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Louis Emgba Mekongo v. Cameroon, Communication 59/91
| | Facts: | The applicant was arrested as a result of peaceful political activities and was imprisoned for 4 years. He was eventually charged and convicted with crimes of a financial nature. He appealed the conviction in February 1982 and it had yet to be heard; he also launched a number of other legal actions relating to bias and prejudice in the case.
| | | Violations: | Article 7.1(a) and (d) (right to have cause heard within a reasonable time)
| | | Legal Basis for Reparation | The Commission cannot pronounce on the equity of the court proceedings that took place before the African Charter entered into force in 1986. However, irregularities in the original proceedings aside, the pending of the Complainant's appeals for 12 years constitutes a continuing violation of the African Charter [..] (para 28)
| | | Forms of Reparation | The Commission "finds that the complainant is entitled to reparations [compensation] for the prejudice he has suffered" (findings). "The valuation of the amount should be determined in accordance with the legal system of Cameroon" (findings).
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Constitutional Rights Project v. Nigeria, Communication 60/91
| | Facts: | The victims were sentenced to death under a Decree that creates special tribunals composed of one serving or retired judge, one member of the armed forces and one member of the police force. There is no possibility of appeal and sentences are subject to confirmation or disallowance by the Governor of a state. The persons claimed that they had been tortured to extract confessions while they were in custody: "no further details of the acts alleged to have constituted torture are given. Without specific information as to the nature of the acts themselves, the Commission is thus unable to find a violation of Article 5" (para 27).
| | | Violations: | Article 7.1(a) (right to appeal)
Article 7.1(c) (right to a defence)
Article 7.1(d) (right to be heard within a reasonable time by an impartial tribunal)
Article 26 (independence of courts)
| | | Legal Basis for Reparation | The Robbery and Firearms Act entitles the Governor of a state to confirm or disallow the conviction of the Special Tribunal. This power may be described as a discretionary, extraordinary remedy of a non-judicial nature. The object of the remedy is to obtain a favour and not to vindicate a right. [.] This remedy is neither adequate nor effective. (para 24)
[.] While punishments decreed as the culmination of a carefully conducted criminal procedure do not necessarily constitute violations of these rights [life and liberty], to foreclose any avenue of appeal to "competent national organs" [under the Civil Disturbances Act] in criminal cases bearing such penalties clearly violates art 7.1 (a) of the Charter, and increases the risk that even severe violations may go unredressed. (para 30)
| | | Forms of Reparation | The Commission decided that the Government of Nigeria should free the complainants (findings).
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Civil Liberties Organization vs. Nigeria, Communication 67/91
| | Facts: | The communication concerns the unsuccessful coup attempt against the Nigerian government on 22 April 1990, after which a large number of military and civilian people were arrested, including friend and family of the suspected plotters. The arrests were effected under the Sate Security and Detention Persons Decree. The compliant alleges that the arrest and the detentions violate provisions of the Charter. It alleges, in particular, that the continued detention of Glorian Morwarin, despite a court order calling for her release, is gross abuse of the judicial process. (para 1)
| | | Violations: | Articles 7(1)(a) and (c)
| | | Legal Basis for Reparation | The release of the alleged victims does not nullify any violation of the victims' rights. If the allegations are true the government is guilty [.] and does not absolve it of liability in respect of nay violations that may have occurred. (para 5)
| | | Forms of Reparation | In this instance, however, the complainant is a well-known NGO with other communications before the Commission. The Commission must interpret the complete lapse of communication as lack of desire to pursue the communication. Given the release of the individual on whose behalf the communication was brought, the likelihood is that the complainant considers the case satisfactorily resolved. (para 8)
For these reasons the Commission welcomes the release of detainees, finds the communication satisfactorily resolved. (findings)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Krishna Achuthan on behalf of Aleka Banda, Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communication 64/92, 68/92, 78/92
| | Facts: | Examples of torture were defined as: ill treatment and punishment for disciplinary reasons including reduction in diet, chaining for two days of the arms and legs with no access to sanitary facilities, detention in a dark cell without access to natural light, water or food, forced nudity, and beating with sticks and iron bars (para 33). The general prison conditions in Malawi also amounted to a violation of Article 5: shackling in the cell so that the prisoner is unable to move (sometimes during the night and day), serving of rotten food, solitary confinement, overcrowding in cells (200 people in a cell for 70), inability for prisoners to leave their cell for up to 14 hours at a time, lack of organised sports, lack of medical treatment, poor sanitary conditions, lack of access to visitors, post and reading materials (para 34).
Banda had been imprisoned for 12 years without legal charge or trial. Orton and Vera Chirwa were taken into custody and sentenced to death for treason - they claimed at this trial that they were abducted from Zambia and returned by force to Malawi. Their sentences were commuted to life imprisonment in extremely poor conditions. Other applicants represented by Amnesty International were arrested and tortured while in detention, and others were shot during demonstrations and riots by trade unionists and students.
| | | Violations: | Article 4 (respect for life)
Article 5 (prohibition of torture)
Article 6 (right to liberty and security and not to be arbitrarily detained)
Article 7.1 (a), (c) and (d) (right to have cause heard and to be tried by impartial court speedily, with the assistance of counsel)
| | | Legal Basis for Reparation | Where the remedy is at the complete dissertation of the executive the existence of local remedies is futile [.] (para 20)
Due to the seriousness of the human rights situation as well as the great numbers of peoples involved, such remedies as might theoretically exist in the domestic court are as a practical matter unavailable [.] (para 25)
Mr Banda was not permitted recourse to the national court to challenge the violation of his fundamental right to liberty [.] he was detained without a trial [.] the Commission finds that Mr Banda's imprisonment violated art 7 [.] (para 38)
"Principles of international law stipulate [.] that a new government inherits the previous government's international obligations, including the responsibility for the previous government's mismanagement. The change of government in Malawi does not extinguish the present claim before the Commission. Although the present government of Malawi did not commit the human rights abuses complained of, it is responsible for the reparation of these abuses" (para 43).
| | | Forms of Reparation | [.] the Commission found that, as there had been no response from Malawi despite the repeated notifications, the alleged facts given in the communications would be declared proven and that this decision be made known to all concerned, including the victims or their relatives. (para 18)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Commission Nationale des Droits de l'Homme et des Libertés v. Chad, Communication 74/92
| | Facts: | The complaint alleged that journalists had been harassed and persons arbitrarily arrested, as well as several accounts of killings, disappearances and torture during detention. The complaint alleged that not only did government agents commit violations, but also that Chad failed to protect the rights from violations by other parties. Chad claimed that it had no control over non-State agent as it was in a state of civil war. The Commission held that it was responsible despite the state of civil war (paras 39-41).
| | | Violations: | Article 4 (right to life and prohibition of arbitrary killings) This was defined as victims who did not have the benefit of any charge or trial before they were killed (para 43)
Article 5 (prohibition of torture) This was defined as covering incidents where hands are bound behind the back and persons are suspended by their feet, violent beatings, electricity burns, deprivation of food and water and sexual assaults (para 46).
Article 6 (right to liberty and not to be arbitrarily detained) This included situations where the government denies knowledge as to the whereabouts of individuals in respect of forced disappearances (para 49).
Article 7 (right to have cause heard) The subsequent lack of investigation of the killings fell within a denial of this article (paras 50-51).
Article 9 (freedom of expression)
| | | Legal Basis for Reparation | [.] the very fact that the alleged events, if true, would constitute a "series of serious or massive violations" it is clear that the Sate of Chad had ample notice of the human rights situation prevailing in its territory. (para 30)
Due to the seriousness of the human rights situation as well as the great number of people involved, such remedies as might theoretically exist in domestic courts are as a practical matter unavailable [.]. (para 31)
[.] A blanket denial of responsibility by a government is not sufficient to abdicate its responsibility and specific details are required. (para 35)
The Charter specifies in Article 1 that the states parties shall not only recognize the rights duties and freedoms adopted by the Charter, but they should also "undertake.measures to give effect to them." In other words, if a state neglects to ensure the rights in the African Charter, this can constitute a violation, even if the state or its agents are not the immediate cause of the violation. (para 49)
The subsequent lack of investigation of the killings presents a special question [.] criminal cases such as these are considered to affect the rights of all in society, and the responsibility falls to the government to vindicate the rights of its citizens. (para 50)
[.] The failure of the government to investigate these assassinations or prosecute those concerned constitutes a violations of Art 7. (para 51)
[.] the government has a duty to ensure the rights of its citizens, thus, even if the harassment of journalists is not carried out by government agents, the government is responsible for failure to protect the journalists in question. (para 54)
| | | Forms of Reparation | (The Commission did not address this issue.)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Jean Yakovi Degli on behalf of Corporal N. Bikagni, Union Interafricaine des Droits de l'Homme, Commission International de Juristes v. Togo, Communications 83/92, 88/93, 91/93
| | Facts: | Corporal Bikagni was arrested and tortured until he confessed under duress that he was planning a coup against the government of Togo. The other communications relate attempts at assassination of opposition leaders and killings in villages and during demonstrations. In fact the Commission only found a violation of Article 12.1.
| | | Violations: | Article 12.1 (right to freedom of movement and residence)
| | | Legal Basis for Reparation | While the Commission considers that conciliation, reconciliation and pardon are very important, responsibility for human rights abuses must always lie with the government for violations of human rights. (para 39) [.] the government acknowledged that the communications concern violations of the Charter, and that these had occurred in the process of the transition to democracy. The violations took place at a time that the political insecurity of Togo was particularly bad and caused general insecurity. In this general confusion the government itself was guilty of criminal acts. (para 44) While the Commission welcomes the actions taken by the new government [.] international law stipulates that a government inherits the previous administration's responsibilities (para 47).
| | | Forms of Reparation | The Commission took note that the violations took place during the transition to democracy. Since then an amnesty law has been introduced under which all assassinations, terrorism, injuries, damage and political crimes are covered. The law also provides for the release of political prisoners (para 45). The government states that after a fair trial Corporal Bikagni was sentenced to a term of imprisonment. His family has been released under the amnesty laws. (para 46)
The Commission welcomed the continued efforts of the government to remedy the violations (findings).
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Constitutional Rights Project (in respect of Zamani Lekwot and six others) v. Nigeria, Communication 87/93
| | Facts: | The complaint was on behalf of seven men who were arrested and sentenced to death under a Special Tribunal Decree which did not provide for any appeal from the special tribunals. During the trial the accused and their counsel were harassed.
| | | Violations: | Article 7.1(a)(c) and (d) (right to have cause heard by impartial tribunal and subject to appeal)
Article 26 (independence of courts)
| | | Legal Basis for Reparation | While punishment decreed as the culmination of a carefully conducted criminal procedure do not necessarily constitute violations of these rights, to foreclose any avenue of appeal to "competent national organs" in criminal cases bearing such penalties clearly violates Art 7.1 (a) of the African Charter, and increases the risk that even severe violations may go unredressed. (para 28)
The right to the individual in Article 7 must be met by duty of the government to provide the structures to enable the right to be exercised. By failing to provide courts which operate independently of the executive the Government of Nigeria has violated Article 26. (para 33)
| | | Forms of Reparation | The Commission recommended that the government should free the complainants (findings). [Restitution]
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Modise v. Botswana, Communication 97/93
| | Facts: | The complainant was the founder of an opposition party in Botswana and was deported a number of times on the grounds that he did not have Botswanian nationality - he was in fact stateless. He claims that his deportations exposed him to personal suffering and indignity in violation of the right to freedom from cruel, inhuman or degrading treatment guaranteed under Article 5.
| | | Violations: | Article 3(2)
Article 5 (torture)
Article 12(1) and (2) (right to a nationality)
Article 13 (1) and (2) (political participation)
Article 14
Article 18(1)
| | | Legal Basis for Reparation | The Commission urges the government of Botswana to take appropriate measures to recognise Mr. John Modise as its citizen by descent and also compensate him adequately for the violations of his rights occasioned.
| | | Forms of Reparation | (The Commission did not address this issue.)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Civil Liberties Organisation (on behalf of the Nigerian Bar Association) v. Nigeria, Communication 101/93
| | Facts: | The complaint was brought in respect of the retrospective Legal Practitioner's Decree that established a new governing body of the Nigerian Bar Association, namely the Body of Benchers. Of the 128 members, only 31 are nominees of the Bar Association, the rest being appointees of the government. The decree excludes recourse to the Courts and makes it an offence "to commence or maintain an action or any legal proceeding whatever relating to or connected with or arising from the exercise of any of the powers of the Body of Benchers".
| | | Violations: | Article 6
Article 7.1(d) (right to have cause heard within a reasonable time by impartial court)
Article 7.2 (prohibition on retroactivity)
Article 10 (freedom of association)
Article 26
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The Commission recommended that the decree be annulled (findings).
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Abubakar v. Ghana, Communication 103/93
| | Facts: | The complainant was arrested and detained without trial for 7 years until he escaped.
| | | Violations: | Article 6 (length of pre trial was excessive)
Article 7.1(d) (length of criminal trial excessive)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The Commission found that Ghana should repair the prejudice suffered.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Civil Liberties Organization vs. Nigeria, Communication 129/94
| | Facts: | The communication concerns the enactment by the military government of Nigeria of various decrees in violation of the African Charter, specifically the Constitution (Suspension and Modification) Decree No. 107 of 1993, which not only suspends the Constitution but also specifies that no decree promulgated after December 1983 can be examined in any Nigerian Court; and the Political Parties (Dissolution) Decree No. 114 of 1993, which in addition to dissolving political parties, ousts the jurisdiction of the courts and specifically nullifies any domestic effect of the African Charter.
| | | Violations: | Art. 7 (the right to be heard)
Art. 26 (the obligation to establish and protect the courts)
| | | Legal Basis for Reparation | The communication also complains that this ouster of the jurisdiction of the courts deprives Nigerians of their right to seek redress in the courts for government acts that violate their fundamental rights, in violation of Articles 7 (1) (a) of the African Charter. (para 3) The ousting of jurisdiction of the courts of Nigeria over any decree enacted in the past ten years, and those to be subsequently enacted, constitutes an attack of incalculable proportions on Article 7. The complaint refers to a few examples of decrees which violate human rights but which are now beyond review by the courts. An attack of this sort on the jurisdiction of the courts is especially invidious, because while it is a violation of human rights in itself, it permits other violations of rights to go unredressed. (para. 17)
While Article 7 focuses on the individual's right to be heard, Article 26 speaks of the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual's rights against the abuses of State power. (para. 19) Any doubt that may exist as to Nigeria's obligations under the African Charter is dispelled by reference to Article 1 of the Charter, which reads: "The Member States ... 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." (para. 22)
| | | Forms of Reparation | Findings of violations to arts. 7 and 26
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
International PEN et al on behalf of Ken Saro-Wiwa Jr v. Nigeria, Communications 137/94, 139/94, 154/96 and 161/97
| | Facts: | The Commission stated that this "includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience" (para 79).
The Commission referred to a decree which allowed the government to arbitrarily hold people critical of the government for up to 3 months without having to explain themselves and without any opportunity for the complainant to challenge the arrest and detention (para 83).
The Communications alleged violation of articles 1, 4, 5, 7, 9, 10, 11, 16 and 26.
| | | Violations: | Inter alia
Article 5 (torture)
Article 6 (right to liberty)
Article 7
| | | Legal Basis for Reparation | The Commission, when looking at admissibility, held "in light of the fact that the subjects of the communications are now deceased, it is evident that no domestic remedy can now give the complainants the satisfaction they need" (para 77). They were executed despite the communications being before the Commission and the Commission having requested that the government avoid any "irreparable prejudice" to the complainants before the Commission was able to review the communications (paras 103 and 114). The complaint was therefore admissible.
| | | Forms of Reparation | The Commission found many violations but did not mention specific reparation measures.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
International PEN on behalf of Senn and Sangare v. Ivory Coast, Communication 138/94
| | Facts: | Two journalists Senn and Sangare published an article that had appeared in Jeune Afrique about President Bédié. They were charged and fined while the appeal was pending. They were again detained, charged and imprisoned for writing another article but subsequently released in an amnesty. The complainant maintains that there has been a violation of Article 9.
| | | Violations: | Case declared inadmissible. (The complainant did not provide the Commission with any information as to whether national procedures have been pursued to seek reparations.)
| | | Legal Basis for Reparation | *Although the case was declared to be inadmissible as the complainants had been released and not sought remedies domestically, the Commission found that "this does not extinguish the responsibility of the government for any violations that it may have committed in respect of their imprisonment. A cause of action may still stand for reparations for the prejudice suffered by imprisonment" (para 7).
| | | Forms of Reparation | (The Commission did not address this issue.)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Decision Regarding Communication No. 155/96, Communication 155/96
| | Facts: | The communication alleged that Nigeria has been directly involved in oil production operations that caused environmental degradation and health problems among the Ogoni people, destroyed villages and involved the forcible remove members of the Ogoni communities. The Commission found that Nigeria has facilitated the destruction of Ogoniland and given the green light to private actors to affect the well being of the people - it quoted Velazquez-Rodriguez and X and Y v. Netherlands (ECHR).
| | | Violations: | Article 2
Article 4 (right to life)
Article 14 (right to property)
Article 16 and 24 (right to health and to a satisfactory environment)
Article 18.1 (right to family life)
Article 21 (right to freely dispose of wealth and natural resources)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The Commission appealed to the Nigerian government to:
- Stop all attacks on Ogoni communities and permit citizens and independent investigators free access to the territory;
- Conduct an investigation into the violations and prosecute officials of the security forces and relevant agencies;
- Ensure adequate compensation to victims, including relief and resettlement assistance to victims of government sponsored raids, and undertake a comprehensive clean up of land and rivers;
- Ensure that appropriate environmental and social impact assessments are prepared for future oil development;
- Provide information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Ouédraogo v. Burkina Faso, Communication 204/97
| | Facts: | The complainant was a judge who had been wrongfully dismissed and was still awaiting compensation. He claimed to have suffered harassment and intimidation. He also referred to cases of disappearances and extrajudicial killings.
| | | Violations: | Article 3 (non-discrimination)
Article 4 (right to life)
Article 5 and 6 (torture - disappearances)
Article 7.1(d) (fair hearing - delay)
Article 12.2 (freedom of movement)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | Burkina-Faso should
- Identify and take to court those responsible;
- Accelerate the judicial process of the cases pending before the courts;
- Compensate the victims of the human rights violations stated in the complaint.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Legal Resources Foundation v. Zambia, Communication 211/98
| | Facts: | The complaint addressed a constitutional amendment which provided for new rules as to who could stand for presidential election. It had the effect of prohibiting the former president from contesting the elections.
| | | Violations: | Article 2 (non-discrimination)
Article 3.1 (equality before the law)
Article 13 (right to participate in elections)
| | | Legal Basis for Reparation | The Commission held that although it had no locus standi to adjucate on the validity of domestic law, it did have a duty to give its views or make recommendations to governments, and to formulate and lay down principles and rules aimed at solving legal problems.
| | | Forms of Reparation | Zambia was strongly urged to bring its laws and constitution into conformity with the Charter, and was requested to report back on measures taken to comply with this recommendation when submitting its next country report under Article 62 of the Charter.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Amnesty International vs. Zambia, Communication 212/98
| | Facts: | The Communication concerns two deportations from Zambia to Malawi. The Complainant alleges that attempts to seek redress through existing national legal remedies both in Zambia and in Malawi have been futile.
| | | Violations: | Article 2
Article 7.1(a)
Article 8
Article 9.2
Article 10
Article 18.1 and 18.2
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The Commission had requested provisional measures in terms of Rule 111 of the Rules of Procedure. Zambia must be required to allow the return of William Steven Banda with a view to making application for citizenship by naturalisation. No evidence was led before the Commission for compensation. The evidence is that Banda had lost his job as governor after the 1991 elections. No award for compensation is called for. (para 47)
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Law Office of Ghazi Suleiman v. Sudan, Communication 222/98 and 229/99
| | Facts: | The Complainant alleges that in the two months of their detention, the suspects were imprisoned, tortured and deprived of their rights.
The Complainant informs the African Commission that there exists no effective means of obtaining redress, and that even when an appeal is made to the Constitutional Court, this has no effect because of the state of emergency in force. He added that lack of appropriate means of obtaining redress is a result of political restrictions which prevent its implementation.
| | | Violations: | Article 5 and 6 (torture and ill-treatment)
Article 7.1(d) (fair trial)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The African Commission appreciates the Government's action of taking legal action against those who committed torture but the scope of the measures taken by the Government is not proportional to the magnitude of the abuses. It is important to take preventive measures such as stopping secret detentions, the search for effective solutions in a transparent legal system and continuation of investigations of allegations of torture.
The African Commission urges the Government of Sudan to duly compensate the victims.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Law Office of Ghazi Suleiman v. Sudan, Communication 228/99
| | Facts: | The alleged victim was invited by a group of human rights defenders to deliver a public lecture in Sinnar, Blue Nile State. He was prohibited from travelling by some security officials who threatened that if he made the trip, he would be arrested. He also alleges various arrests and an attack on himself and his office.
| | | Violations: | Article 6
Article 9 (freedom of expression)
Article 10 (freedom of association)
Article 11 (freedom of assembly)
Article 12 (freedom of movement)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The African Commission requests the government of Sudan to amend its existing laws to provide for de jure protection of specified human rights.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Curtis Francis Doebbler v. Sudan, Communication 236/2000
| | Facts: | Eight students were arrested for violating "public order," though they claim to have participated in only kissing, wearing trousers, dancing with men, crossing legs with men, etc. They were convicted and sentenced to fines and/or lashes. The Complainant alleges that the punishments meted out were grossly disproportionate and therefore constitute cruel, inhuman and degrading punishment.
The Complainant submits on the issue of exhaustion of local remedies that since the sentences have already been executed, domestic remedies would no longer be effective.
| | | Violations: | Article 5 (cruel, inhuman and degrading treatment)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The African Commission requests the Government of Sudan to:
· Immediately amend the Criminal Law of 1991, in conformity with its obligations under the African Charter and other relevant international human rights instruments;
· Abolish the penalty of lashes;
· Take appropriate measures to ensure compensation of the victims.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Purohit and Moore v. The Gambia, Communication 241/2001
| | Facts: | The Complainants allege that legislation governing mental health in the Gambia is outdated and that there is overcrowding in the Psychiatric Unit, no requirement of consent to treatment or subsequent review of continued treatment. The Complainants notify the African Commission that there is no provision for legal aid and the legislation in place does not make provision for a patient to seek compensation if his/her rights have been violated.
| | | Violations: | Articles 2 and 3 (non-discrimination and equal protection of law)
Article 5 (respect for human dignity and prohibition against ill-treatment)
Article 7.1(a) and (c) (fair hearing - delay)
Article 13.1 (participation in government - right to vote)
Article 16 (health)
Article 18.4 (protection of aged and disabled)
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | The legislation in question does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate Medical Certificates, which constitute the legal basis of their detention. These omissions in the legislation clearly violate Articles 7(1)(a) and (c) of the African Charter.
The guarantees in Article 7 (1) extend beyond hearings in the normal context of judicial determinations or proceedings. Thus Article 7 (1) necessitates that in circumstances where persons are to be detained, such persons should at the very least be presented with the opportunity to challenge the matter of their detention before the competent jurisdictions that should have ruled on their detention.
The African Commission strongly urges the Government of The Gambia to:
· Repeal and replace the Lunatics Detention Act;
· Pending the above, create an expert body to review the cases of all persons detained under the Lunatics Detention Act and make appropriate recommendations for their treatment or release;
· Provide adequate medical and material care for persons suffering from mental health problems.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
Jean Simbarakiye v. Democratic Republic of Congo, Communication 247/2002
| | Facts: | The Complainant is a national of Burundi currently a refugee in Togo. All violations are alleged to have taken place in the DRC by the DRC government.
| | | Violations: | Case declared inadmissible due to failure to exhaust local remedies.
| | | Legal Basis for Reparation | (The Commission did not address this issue.)
| | | Forms of Reparation | Admissibility:
The Government of DRC explains that local remedies exist and are available and that even in Togo, the Complainant had the possibility of taking legal action before bringing the matter before the African Commission.
Considering that the Complainant left DRC, there is no indication that he attempted to exhaust local remedies whilst in Togo nor did his wife (who remained in DRC until November 2002) attempted to take any action to exhaust local remedies.
| | | Reparation Afforded to Victim or his/her Family | (The Commission cannot award reparation directly, but can only recommend it to the State party.)
|
|
|
|
