Questionable Precedent: The First Ruling by the African Court on Human and Peoples' Rights

Questionable Precedent: The First Ruling by the African Court on Human and Peoples' Rights

JURIST Guest Columnist Roland Adjovi of Arcadia University in Arusha, Tanzania, says that to gain and maintain credibility in the wake of its first judgment, the African Court on Human and Peoples' Rights should streamline its policy rationale and procedure, thereby expediting its decision-making process….

On December 15, 2009, the African Court on Human and Peoples’ Rights issued its first ever judgment. The Court convened to consider a petition filed by Michelot Yogogombaye encouraging the dismissal of charges pending in Senegal against former Chadian president Hissein Habre. Yogogombaye is believed to have been a minister for a short time under Habre’s former regime.

Yogogombaye was born on October 1, 1959. He is the founding president of the Rassemblement Démocratique pour la Paix et la Liberté au Tchad (RDPL), an opposition political party in Chad. He is also the self proclaimed president of the military rebellion in Europe against the current Chadian regime. In the late 1980’s, while Habré was still in power, Yogogombaye was arrested but freed some two weeks later, even though he seems to have been a supporter of Habre’s regime. In December 1990, after Idriss Déby won the presidential election against Hissein Habré, Yogogombaye maintained some political activities until 1992 when he quickly fled the country for Switzerland, where he currently resides. It appears therefore that he has consistently and openly supported Habré. In August 2008, he even stated that he was ready to testify before the Senegalese judges to support “[his] President, El-Hadj Hissein Habré”.

The purpose of the preceding consideration of the applicant is twofold. First, it is difficult to make sense of the interest Yogogombaye has in the case again Habré which would have supported his application, thus giving him standing. In addition, it is clear that Yogogombaye has a political agenda which led him to file the application in the first place. In that context, his adherence to the military opposition against the current regime in Chad is a key additional element. In his application, Yogogombaye argued that being a citizen of Chad is sufficient grounds for the jurisdiction ratione personae of the Court, and such argument could have been easily dismissed.

The application was dated August 18, 2008, delivered to the African Union Commission (AUC) by e-mail on August 19, 2008, and addressed to the African Court both directly and indirectly (through the AUC). But it was only effectively delivered to the African Court on December 29, 2008 (with a cover letter dated November 2008 from the Legal Counsel) through the African Union Commission. In the application, Yogogombaye requested that the African Court order the discontinuance of the case against Habré in Senegal, particularly on the bases of a purported violation of the non-retroactivity principle and alleged political abuse of the universal jurisdiction principle. Yogogombaye also requested the use of Ubuntu, a typically African means for conflict resolution. The aim of the application is certainly to put an end to the saga against Habré and to free Habre after years of house arrest.

The pleadings of the Republic of Sénégal were centered on the Court’s lack of jurisdiction on the basis that Senegal has not consented to the right of individuals to lodge cases against it before the Court.

The Court’s December 15th judgment seems quite straightforward as well as in line with the pleadings of Sénégal. The 1998 Protocol establishing the Court states that an individual can only lodge a case against States who have made a declaration to the effect of granting individuals such right. In the present case, despite a statement by the applicant to the contrary, the Court found that the Republic of Senegal has never granted individuals the right to lodge any case against it before the Court.

Such a simple response does not warrant six months of deliberation, let alone nearly twelve months of deliberation. In fact, in his separate opinion Judge Ouguergouz, producing a reason very much enriched by his prior experience at the International Court of Justice, stated that the Applicant ought to know why it took so long for the Court to come to a decision.

Judge Ouguergouz went on to detail his own thorough analysis of the complexity of the case as far as jurisdiction is concerned. In that framework, he developed the concept of forum prorogatum, which would have led the Judges to think that the Republic of Sénégal, through its attitude, seems to have consented to the proceedings. He consequently questioned whether any application should ever have just been dismissed by the Registry when it could not be excluded that the State would consent to such application. While the argument remains technical — even though quite well explained — it is difficult for one to satisfy oneself with this first judgment of the Court.

Although the simplicity of the questions posed by the Court would seem to warrant simple and clear responses, it took almost a year for the Court to come up with a decision. In addition, the judgment was only 13 pages long, with some three pages dedicated to an elucidation of the Court’s actual reasons and the remaining pages being devoted to the facts and procedural details. What message does such management of the first case convey to the communities in Arusha, in Africa, and worldwide? Will the Africans and the residents in Africa still believe that the Court is going to do justice to them? The Court will need to improve its pace in deciding cases and the caliber of its reasoning.

In addition, there have been issues with the transparency of the proceedings; for instance, the judgment reveals that some interim orders were made during the course of the proceedings. But none of those orders were ever made public even though nowhere in the Judgment was it stated that they were confidential. Moreover, the references in the judgment to those orders were missing, and one cannot trace them for a comprehensive understanding of the case and the procedure. The same can be said for the case file: the documents of the proceedings (especially the application and the pleadings) have not been published to the best of our knowledge even though the Court has not stated whether they are confidential or not. However, those documents are summarized in the Judgment without any further explanation. Can justice be seen to have been served in such circumstances? The Court will gain respect, prestige, and good publicity if its judges and civil servants streamline the Court’s procedure and policy.

Finally, one might wonder whether the parties were duly informed of the issuance of the Judgment as neither of the two was present. It seems unlikely that such absence should be analyzed by a lack of interest from each of them, especially from the Applicant’s side.

In conclusion, this judgment was slightly deceptive, but one must hold on to the hope hope that in serious cases
— possibly regarding Burkina Faso or Mali, the two countries that have granted individuals the power to lodge applications against them — the Court will be able to substantially serve justice.

Roland Adjovi is the academic director of the Nyerere Centre for Peace Research and the Centre for East African Studies of Arcadia University's College of Global Studies in Arusha, Tanzania.

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