Tuesday, March 23, 2010

African human rights court ruling on Habré among topics at ASIL session this week

To little fanfare, the new African Court of Human and People's Rights issued its first ruling at the end of last year declaring itself without jurisdiction to hear a challenge to the universal jurisdiction prosecution of former Chadian President Hissène Habré.
By way of background, the Court was established by a Protocol to the African Charter on Human and Peoples' Rights, which was adopted by Member States of what was then called the Organisation of African Unity (OAU) in Ouagadougou, Burkina Faso in June 1998. (The OAU became the African Union in 2002). The Protocol entered into force in January 2004, and, as we've posted, the 1st judges chosen in 2006. Although this relationship remains to be sorted out, it is envisioned that the Court will complement the work of the existing African Commission on Human and Peoples' Rights along the lines of the relationship between the Inter-American Commission on Human Rights and the Inter-American Court.
At the moment, the Court features two female judges, Vice President Sophia A.B. Akuffo of Ghana (right) and Justice Kelello Justina Mafoso-Guni from the Kingdom of Lesotho (left). Prior to her election for a two-year term on the Court, Justice Akuffo was a judge at the Supreme Court of Ghana and served on the Advisory Committee of the Commonwealth Judicial Education Institute. Justice Mafoso-Guni studied law at the Universities of Lesotho and Edinburgh before becoming Crown Counsel in her home country. She was a member of the U.K. civil service and magistrate in Zimbabwe -- the first woman to be appointed to the bench. Returning to Lesotho, Justice Mafoso-Guni took up a position at the High Court Bench, another post to which she was the first female appointee. She will serve for four years on the Court.
Pursuant to Article 5(3) of the Protocol to the African Charter On Human And Peoples' Rights On The Establishment of An African Court On Human And Peoples' Rights, the Court is accessible to individuals and non-governmental organizations:
The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.
Article 34(6) states that the respondent state must submit a declaration to the Court allowing for such NGO and individual petitions:
At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.
Absent such a declaration, the Court is accessible only to the Commission, states, and African intergovernmental organizations.
Michelot Yogogombaye (left), the former Secrétaire Général Adjoint of Chad currently "in exile" in Switzerland, is the source of the first judgment of the Court. His petition (see also here for a statement) sought to compel Senegal to suspend the criminal proceedings against Hissène Habré, the former Chadian dictator who has been accused of committing crimes against humanity in Chad during his reign from 1982-1990. As grounds, he argued that Senegal's prosecution under a law amended in 2007 to enable Habré's prosecution violated the ex post facto prohibition contained in Article 7(2) of the African Charter of Human and People's Rights, which states:
No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed.
He also claimed that Senegal was using "its services as a legal agent of the African Union for financial gain" by opting for a "judicial solution" rather than an "African solution" in accordance with the principle of ubuntu (reconciliation through dialog, truth and reparations). He also sought declaratory relief to the effect that the prosecution was an abuse of the principle of universal jurisdiction and could negatively impact the political, economic, social, and cultural development of Africa and African foreign relations.
The Court (judges at right) unanimously ruled that because Senegal had not lodged a declaration pursuant to Article 34(6) allowing for individual petitions, it was without jurisdiction to hear the case.
Apropos of this ruling, the increased use of international law by African courts is the subject of a panel at the upcoming Annual Meeting of the American Society of International Law, about which we've already posted here, here, and here. The panel will begin at 10:45 on Friday, March 26th, and will be chaired by Angela Banks (left) of William and Mary Law School.

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