ECOWAS Court clarifies its human rights jurisdiction: no time limit barring human rights complaints and continuing violations are recognised

ECOWASToday, the ECOWAS Community Court of Justice clarified a long-outstanding point of contention: there is no time limit for filing complaints concerning human rights violations. This was held in the case of FAJ and Others v. The Gambia. The Court also clarified that it accepted the doctrine of continuing human rights violations. Judgment was read in court, with the full written judgment expected to be published next week.

Whether or not the ECOWAS Court had a time limit that could bar its jurisdiction over human rights claims brought before it had been unclear for some time. In the case of Femi Falana & Anor. v. The Republic of Benin & 2 Ors. the Court looked at Article 9 of the Court’s Supplementary Protocol to determine whether an application filed in October 2007 regarding an alleged human rights violation that had taken place in April 2004 was admissible. Article 9 sets out the Court’s jurisdiction, specifying in 9(1) and (2) its jurisdiction regarding the interpretation and application of the Community Treaty, directives, and regulations, and acts or omissions by its officials. This is followed by Article 9(3), which read as follows:

“3. Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.”

This is then followed by Article 9(4), which sets out the Court’s jurisdiction in human rights matters:

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

No specific indication regarding the time limit in human rights matters – as is present regarding actions brought against the Community or its members – is included in the Protocol. In the Femi Falana case, however, the Court interpreted the time limitation in Article 9(3) as applying to human rights claims as well. As freedom of movement did not constitute a “gross violation of human rights”, in which case no statute of limitation could have applied in accordance with UN GA Resolution 60/147.

The Court clarified today that, for interpretation purposes, the French version of the Supplementary Protocol is the preferred version. It reads as follows:

“L’action en responsabilite contre la Communauté ou celle de la Communauté contre des tiers ou ses agents se prescrivent par trois (3) ans à compter de la réalisation des dommages.”

Accordingly, the Court said, claims for the enforcement of human rights against Member States cannot be barred by the limitation period stated in the Supplementary Protocol. The Court explicitly stated that any previous decisions stating the contrary had hereby  been overruled.

The Court also took the opportunity to address the issue of continuing violations, which so far had never been clarified explicitly by the Court. While in the case of Alade v. Federal Republic of Nigeria the Court considered on the merits a case filed in 2011 by a Nigerian citizen who had been imprisoned since 2003, the issue of continuing violations was not expressly considered in the judgment.  A similar approach was taken in the case of Hydara v. The Gambia.

The Court cleared up any doubts today, when it stated that it recognised the concept of a “continuing harm” in relation to the applicants who had brought a claim concerning their existence in exile from The Gambia – the Court relied on the case of Randolph v. Togo, decided by the UN Human Rights Committee, to reach the conclusion that forced exile was a human rights violation of a continuing nature.

With this decision, the ECOWAS Court establishes itself as currently the most progressive human rights court in Africa when it comes to temporal jurisdiction. Within the region, the East African Court of Justice – which does not have explicit human rights jurisdiction, but can consider complaints about a violation of the East African Community Treaty and also concern human rights – is the most strict. The Court maintains a time limit of 2 months after the violation occurred for filing a claim before it (Article 32 of the Treaty Establishing the East African Community) and in the case of Emmanuel Mwakisha Mjawasi and Others v. The Attorney General of Kenya explicitly rejected the concept of continuing human rights violations. The African Court on Human and Peoples Rights’ rules do not impose an explicit time bar to human rights claims, but do state that applications should be filed “within a reasonable time from the date local remedies were exhausted” (Rule 40 of the Court’s Rules of Procedure). In Mtikila v. Tanzania, the African Court confirmed its recognition of the doctrine of continuing violations.

Looking further afield, the Inter-American Commission of Human Rights, which can refer cases on to the Inter-American Court maintains a time limit of 6 months (Article 32 of the Rules of Procedure). The European Court of Human Rights’ time limit to receive applications is 6 months upon exhaustion of (effective) domestic remedies (Article 35(2) of the European Convention), which will be shortened to 4 months when Protocol No. 15 to the European Convention enters into force.

The ECOWAS Court’s judgment helps in furthering its firm establishment as a human rights court. The Court reportedly ruled on around 249 cases since it commenced its activities in 2001. While statistics on the exact number of human rights applications and rulings are not available, the Court’s human rights mandate has, in the Court’s own words “become the centerpiece of its judicial activities.”

Nani Jansen Reventlow is the former Legal Director of the Media Legal Defence Initiative, one of the parties representing the applicants in this case, and was involved in litigating the case until her departure from MLDI in June 2016.

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Kenyan court knocks down criminal defamation, safeguards freedom of expression

Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.

The harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society”, Judge Mativo of the High Court of Kenya pronounced in his judgment.

The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.

Criminal defamation continues to prominently feature in Penal Codes of African countries especially in East Africa. The High Court of Kenya is the first court in the region to declare that criminal defamation violates the right to freedom of expression.

The case in Kenya arose from the indictment of two petitioners, Jacqueline Okuta and Jackson Njeru, who were each charged with criminal defamation for allegedly publishing defamatory statements on their Facebook account “Buyer beware-Kenya.” The case complaint was based on a post in which the complainants were pictured and named as being wanted for illegal possession and handling of property, and misuse of a telecommunication device. The petitioners then sought to challenge section 194 of the Penal Code before the Constitutional and Human Rights division of the High Court, arguing that the provision was unconstitutional and violated the right to freedom of expression.

A key question is what impact the decision from Kenya’s High Court will have in East Africa, and possibly in the wider African region. The judgment follows and references the landmark decision of the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso, but goes further than that Court’s finding that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It does so by finding that “any continued enforcement of criminal defamation laws by the government would be a violation of the fundamental and constitutionally guaranteed right to the freedom of expression.”

This corresponds with the minority dissenting opinion in the African Court case, in which 4 of the 10-judge bench found that the “’State’s duty to enforce collective security, morality and common interest’ cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanctions together with specifically defined crimes for safeguarding national security, public peace and the common interest should be sufficient.”

The Kenyan case highlights the potential of strategic litigation as an effective tool in bringing about social change where lobbying efforts have failed. It reinforces the efforts of other national courts in Africa like Zimbabwe that have decriminalized defamation twice, once under its previous and once under its current constitution. Other countries in the region, such as Ghana, abolished criminal defamation laws through law reform. This is in line with the continental campaign to decriminalize defamation by the African Union Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Efforts to do the same in East Africa have so far been without result, especially where countries like Uganda previously upheld the constitutionality of criminal defamation laws on grounds that they are “relevant” in protecting reputation.

cbs-radio-journalist-ronald-ssembuusi-middle-leaving-court-with-hrnj-uganda-lawyer-catherine-anite-left

Journalist Ronald Ssembuusi (middle) leaving court with lawyer Catherine Anite (left). Photo courtesy of HRNJ-Uganda.

A challenge to Uganda’s criminal defamation laws is currently pending before the East African Court of Justice. The case, brought on behalf of the now-deceased Ugandan journalist Ronald Ssembuusi, argues that his conviction to a prison sentence of one year was in violation of Uganda’s obligations under the East African Community Treaty. The matter has garnered much interest from the international community, with not only the African Union and United Nations Special Rapporteurs on freedom of expression having requested to make amicus submissions in the case, but also a coalition of 20 African and international NGOs. It will be interesting to see what impact the Kenyan judgment might have on the case. If the East African Court rules in favor of Ssembuusi, the judgment will positively impact all East African Community countries, which include Kenya, Tanzania, Uganda, Rwanda Burundi and South Sudan.

This post was co-authored by Catherine Anite, a human rights lawyer from Uganda and part of the legal team litigating the Ssembuusi case. Nani Jansen Reventlow was lead counsel on the Konaté case. This post has been cross-posted from Harvard’s Cyberlaw Clinic blog.

Race to the top? African women judges and international courts

What do we know about African women as subjects of international law? More so, what do we know about African women judges who sit on international courts at the regional and international levels? These questions are central to moving forward the agenda on increasing the number of women on international courts, especially considering that most judges (though not all) on international courts are also judges at the domestic level. Countries across Africa have made substantial gains in the numbers and leadership roles of women judges, as documented in Gender and the Judiciary in Africa: From obscurity to parity? Across, the continent, women occupy important leadership positions such as that of Chief Justices and Heads of Constitutional Courts (for more see Her Ladyship Chief Justice).

Developments at the domestic levels have been replicated at the international level with a growing number of African women judges serving on international courts. The diversity of the continent of Africa, its peoples, culture and rich history cannot be simply qualified by one word “African”, however, for purposes of creating a uniform understanding of who I am referring to, I use the word “African” to denote women who hail from a country in Sub-Saharan Africa. In “African women judges on international courts: symbolic or substantive gains?”, I have argued that the presence of African women judges challenges notions of tokenism;  indeed they are highly qualified to be in those positions. The professional achievements of these women indicate that they have stellar academic backgrounds, outstanding professional qualifications, trailblazing achievements, and some of them have earned the status as “first” in their various professional endeavors. Notwithstanding these observations, women’s entry into international courts appears to be a road less travelled for various reasons as documented by IntLawGrrl Nienke Grossman. A critical rule of thumb remains that appointments to international courts involve a great deal of domestic politics and women have to find strategies to combine their professional experiences with other political considerations in creative ways. As fellow IntLawGrrl Fionnuala Ní Aoláin notes,

By accessing elite judicial institutions, women exert agency by taking    ‘strategic, creative and intuitive action’, to generate individual opportunity as well as to enable dynamic entry to gendered institutional environments that have been, as a practical matter, closed to the female sex since their inception (231).

 The persistent trend of gender imbalance in international courts is more disturbing when viewed in the light of the fact that international courts are perceived as arenas for fighting injustice and inequality. Increasingly, research has demonstrated that courts, both domestic and international, continue to be informed by masculine expectations, often operating within institutional selection cultures that view the qualifications of women as secondary to those of men, as argued by Terris, Romano and Swigart (another IntLawGrrl).  In essence, Mackenzie et.al remind us that the playing field is not equal for men and women.

That being said, we are seeing some preliminary advancements in the number of women sitting on the benches of international courts. Women judges on the International Criminal Court (ICC) represent the different geographic regions of the world, yet, we see that some countries have had success in nominating women to the court and not so for others.  For instance, women represent about fifty percent of all judicial positions in France’s judiciary. Yet, France has yet to successfully nominate a woman judge to sit on the ICC or the International Criminal Court (ICJ).  Similarly, in Great Britain, women are said to account for about fifty percent of the judiciary, though a dismal number occupy positions on the higher courts. This poor record of women on higher courts may provide some preliminary explanation for its failure to nominate a woman to sit on the ICC, though the first woman to sit on the ICJ in 1995, Judge Rosalyn Higgins, was from Great Britain.  In the case of Uganda, we see success in producing two women on international courts, one on the ICJ -Judge Julia Sebutinde and the other on the African Court on Human and Peoples’ Rights (ACtHPR).- Judge Solomy Balungi Bossa. Continue reading

On the Job! University of Copenhagen Seeks Professor of International Law

The University of Copenhagen is looking for a professor of international law who specializes in international courts. The professor will be affiliated with iCourts, which is the Danish National Research Foundation’s Centre of Excellence for International Courts. The position involves both teaching and research, as well as some management and administrative duties. More information can be found here, and the application deadline is September 12, 2013.