22nd session: Commissioner Ondziel-Gnelenga
23rd session: Commissioner Ondziel-Gnelenga
24th session: Commissioner Ondziel-Gnelenga
25th session: Commissioner Ondziel-Gnelenga
26th session: Commissioner Rezag-Bara
27th session: Commissioner Rezag-Bara
28th session: Commissioner Rezag-Bara
29th session: Commissioner Rezag-Bara
30th session: Commissioner Rezag-Bara
31st session: Commissioner Rezag-Bara
32nd session: Commissioner Rezag-Bara
33rd session: Commissioner Rezag-Bara
34th session: Commissioner Rezag-Bara
35th session: Commissioner Rezag-Bara
SUMMARY OF FACTS
1. In November 1975, four years after the death of his mother, Mr. Bah Ould
Rabah, a Mauritanian national (the plaintiff) and his family were forcefully
expelled from their ancestral domicile by the man named Mohamed O. Bah on
the grounds that the mother of the plaintiff, the late Aichetou Valle, was
his slave and that subsequently, the house bequeathed to her descendants and
the whole estate around it became legally the property of Mohamed O. Bah,
the alleged ”owner” of the deceased.
2. When the plaintiff approached them, the local authorities and the courts
decided in favour of his opponent and the Supreme Court upheld this
decision. The plaintiff wrote to the highest authorities, including the
President of the Republic, to contest this decision which he qualifies as
“flagrant support of the Government to the illegal institution of slavery”.
To date, however, he has received no reply.
3. The Communication alleges violation of Articles 2, 3, 4, 5, 6, 7, 9 and
11 of the African Charter.
4. Communication 197/97 is dated 11th April 1997.
5. The African Commission assumed jurisdiction in the case during its 21st
ordinary session held in Nouakchott, Mauritania, in April 1997.
6. On 7th July 1997, a note verbale of notification was sent to the
Government concerned urging it to reply to the allegations contained in the
7. On 7th July 1997, the plaintiff was informed of the decision of seizure.
8. During the 22nd ordinary session, the Commission deferred any decision on
this Communication pending the reception of the comments from the Government
of Mauritania on the report of the mission undertaken to that country.
9. The African Commission continued the process of exchanging information
between the parties.
10. The African Commission considered this communication at its 35th
Ordinary Session held in Banjul, The Gambia and decided to deliver its
decision on the merits.
11. 11. Article 56(5) of the African Charter on Human and Peoples’ Rights
requires that Communications received within the context of the provisions
of Article 55 should be submitted “after exhaustion of all local remedies,
if they exist, unless it is clear to the Commission that this procedure is
being unduly prolonged”.
12. In the case under consideration, the plaintiff filed court decisions
attesting that he used and exhausted the remedies before the competent
national courts with a view to obtaining compensation for the alleged
violation of his rights.
13. The Complainant furnished the African Commission with the judgement of
the Boutilimitt District Court of 26th December 1998, the decision of the
Rosso Regional Court if 11th March 1990 and the decision of the Supreme
Court of Mauritania in Nouakchott of 11th November 1990.
14. The African Commission contacted the Respondent State demanding for
information with respect to exhaustion of local remedies and the Respondent
State responded by stating that local remedies had been exhausted.
15. It is therefore unquestionable that the Complainant had met the
provisions of Article 56(5) of the African Charter.
16. On these grounds, the African Commission declares the Communication
17. The Complainant alleges a violation of the following Articles of the
a) Article 2: right to enjoyment of the rights and freedoms recognized and
guaranteed in the Charter, such as the right to property, without any
b) Article 3: right to equality and to equal protection of the law;
c) Article 4: inviolability of the human being, the right to physical and
d) Article 5: right to human dignity, recognition of his legal status,
prohibition of all forms of exploitation and degradation, particularly
e) Article 6: right to liberty and security;
f) Article 7: right to have his cause heard (particularly paragraph 1(d),
impartiality of the courts);
g) Article 8: freedom of conscience;
h) Article 9: right to information, freedom of opinion;
i) Article 11: right to assemble freely with others.
18. The Complainant states that in particular that his sisters, brothers and
himself have been deprived of the inheritance of their parents, 4 years
after the death of his mother, by Mr. Bah Ould Mohamed, on the grounds that
their late mother was his slave.
19. In order to get round the ban on slavery in force in Mauritania, Mohamed
Moustapha made mention of a donation supposedly given to him by the late
mother of the plaintiff.
20. In a letter of 7th April 1990 addressed to the Head of State by Bah Ould
Rabah (the Complainant) and copied to the case file, it is stated that to
support his claims on the property of his late mother, Mohamed Moustapha
(his opponent) had produced the certificate of occupancy No. 453 dated 24th
21. This permit produced by Mohamed Moustapha had been prepared by the Cadi
on the basis of evidence relating to the donation made by the late mother of
the plaintiff to Mohamed Moustapha, his opponent.
22. The donation to Mohamed Moustapha was supposedly meant to render freedom
to Lady Merien, daughter of the plaintiff’s mother, his slave, but Mohamed
Moustapha’s submissions show no tangible evidence of the reason for his
being the beneficiary of this donation.
23. The Complainant alleges that some of the witnesses who supported the
argument of donation to his opponent later retracted, and he made mention of
names such as Imam Mohamed Hamed and others in the letter addressed to the
Head of State.
24. The Complainant further alleges, in the same letter, that in opposition
to the certificate of occupancy produced by opponent, he had produced a
certificate occupancy No. 66 of 24th April 1971, issued in the name of his
mother a few months before her death; that the said document dates before
that produced by his opponent.
25. The Complainant also pointed out serious procedural irregularities in
the processing of the case in that he had requested the competent legal
Authorities in vain, to order an investigation which would have proved
Mohamed Moustapha’s allegations baseless and proved as a result, the
pertinence of the said violations of Article 14 of the African Charter
relating to the guarantee of his and his family’s right to property.
26. The Government of the Islamic Republic of Mauritania provided an
explanation, through the statement made by its delegation at the 29th
Ordinary Session of the African Commission; this statement was confirmed and
supplemented by a document dated 19th June 2001 filed in court. From these
documents it would appear that where the Respondent State is concerned:
j) The Communication 197/97 introduced against the State of Mauritania by
Mr. Bah Ould Rabah is based on a dispute relating to the ownership of a real
estate which opposes two Mauritania citizens, Mr. Bah Ould Rabah (the
Complainant) and Mr. Mohamed Moustapha Ould Bah;
k) This case is simply a classical dispute about real estate property
between members of the same family in which the intervention of the Cadi is
in keeping with the existing law and practice in Mauritania;
l) It was on the request of Mr. Bah Ould Rabah that the Mauritian Courts,
had, within a reasonable period, passed judgement through the District Court
of Boutilimitt on the 26th December 1998, the decision of the Regional Court
of Rosso on the 11th March 1990 and the decision of the Supreme Court of
Mauritania in Nouakchott on 11th November 1990;
m) It would appear from his own submission that the plaintiff recognized
that the Courts seized had arrived at a final decision on the basis of facts
derived from the documents presented by himself and his opponent (namely the
certificates of occupancy), which is in conformity with the rules within
their competence and thereby indicates that the dispute relates to the right
to ownership of property and that the conflicting parties have enjoyed the
conditions of a fair trial, with the participation of their lawyers in the
proceedings and in the hearings;
n) His allegations relative to slavery and the violation of his rights were
o) The Government of Mauritania admits that undoubtedly the consequences of
slavery, against which it continues to fight, still linger on in the
country. But this is not sufficient to justify the allegations of Rabah Ould
Bah (the Complainant) relative to the issue of slavery raised by Mohamed Bah
(his opponent) before the Mauritanian Courts, in violation of the African
Charter and its provisions as mentioned above;
p) Accordingly, Bah Ould Rabah (the Complainant) should have all his claims
27. The African Commission has noted that no document exists in the case
file which clearly delineates the reason for the donation made to Mohamed
Moustapha by the late mother of the Complainant and also that there is no
opposing statement to the effect that the witnesses named by the plaintiff
had retracted their statements after having given evidence before the Cadi
in support of Mohamed Moustapha.
28. The African Commission realises that Mr. Bah Ould Rabah had enjoyed all
the conditions of a fair trial and had thus exhausted all the local
remedies. The fact that he had lost the case after exhausting the procedures
he had initiated was due to a weak judicial system and not on the basis of
the practice of slavery or slave like practices. In fact, slavery had been
abolished (order No. 81.234 of 9th June 1981 and 1991 Constitution).
29. The African Commission further noted that from the information in its
possession (report of the mission to Mauritania, statements made by NGOs and
the delegates from Mauritania during the various Sessions of the African
Commission as well as from diverse documents from the Government of the
Republic of Mauritania), that the consequences of slavery still persist in
Mauritania and that, for people to act as Mohamed Moustapha Ould Bah has
done has become common practice in the country.
30. Furthermore in the African Commission’s view, to accept that someone,
and a mother for that matter, can deprive her own children of their
inheritance for the benefit of a third party, with no specific reason as in
this case, is not in conformity with the protection of the right to property
(Article 14 of the African Charter).
31. The African Commission thus calls upon all the public institutions in
the Islamic Republic of Mauritania to persevere in their efforts so as to
control and eliminate all the offshoots of slavery.
FOR THESE REASONS
a) The African Commission considers that the dispossession of the plaintiff
of part of his mother’s heritage, through a donation without
well-substantiated reasons, constitutes a violation of Article 14 of the
African Charter on Human and Peoples’ Rights.
b) The African Commission recommends to the Government of the Islamic
Republic of Mauritania to take the appropriate steps to restore the
plaintiff his rights.
DISSENTING OPINION BY COMMISSIONER YASIR SID AHMAD EL HASSAN,
VICE-CHAIRPERSON OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
1. This is a dissenting opinion from the one that was adopted by a simple
majority [FN1] of the members of the Commission on communication 197/1997
during the 35th Ordinary Session of the African Commission on Human and
Peoples’ Rights held from 21st May to 4th June 2004. The present dissenting
opinion is based on facts and arguments derived from the original documents
[FN2] contained in the communication file.
[FN1] The decision on merits of the communication was taken in the absence
of two Commissioners including the one who was the second rapporteur on the
case. A third Commissioner abstained from the process because he is a
national of the respondent state. Two other Commissioners did not take part
in the deliberations made in Pretoria, South Africa upon and which the
decision in this communication was taken by the Commission.
[FN2] The decision on this communication was taken on the basis of the
deliberations that took place during the 31st session of the Commission in
Pretoria, South Africa in May 2002. The Secretariat of the Commission was
requested to provide the Commissioners with transcripts of the oral
statements by Commissioners. However, the Secretariat failed to make
available the transcripts of the deliberations made in Arabic because of its
inability to address the matter in Arabic due to the fact that no staff of
the Secretariat can work in Arabic.
2. Furthermore, most of the documents submitted by the parties to the
communication were originally in Arabic and were never translated into
English or French, the languages of the Commissioner, who was the first
rapporteur or the legal officer working on the file at the Secretariat of
the Commission. These documents contained the ruling of different local
courts of the respondent state. So the Commissioners made a decision relying
only on the short and inaccurate summary of file that was given to them.
3. The essence of facts of this communication as extracted from the file
shows that it was a normal civil litigation between two members of the same
family over a plot of land. The complainant, a banker born in 1949, filed in
1986, a lawsuit in local courts in which he claimed the full title over this
4. The complainant originally argued before courts that the disputed land
belongs to his father, and that his mother has no separate title to dispose
of the land. The respondent [FN3] claimed that the mother of the complainant
has a separate property and transferred to himself and his sisters by the
way of donation, this plot of land which constitutes part of her property.
He further claimed that he was de facto in peaceful, continuous and
uninterrupted possession of that land for 27 years consecutive before the
claim of the complainant, which was brought before the courts only in 1986.
[FN3] Mohamed bin Mohamed Almustaffa
5. A decision of the District Court of Boutilimitt, the Court of Rosso,
dated 26/12/1988, a decision of the Court of Appeal of Nouakchott dated
11/3/1990, and a decision of the Supreme Court dated 5/11/1990, ruled all in
favour of the respondent on the grounds that the failure of the complainant
to refute the strong evidence composes of antiquity of deeds and testimonies
of reliable and credible witnesses as well as de facto possession of the
disputed land. The Final ruling from the Supreme Court was delivered on
6. On April 11, 1997, the complainant filed this communication 97/1997
against the Islamic Republic of Mauritania.
7. The complainant claimed before the commission that in November 1975, that
is four years after the death of his mother, he himself and his family were
forcefully expelled from their ancestral home by Mohamed Ould Bah (his
opponent) on the grounds that the complainant’s mother, Aichetou Valle had
been his slave and that, the house and the surrounding land therefore
rightfully belonged to him.
8. The complainant further claimed that the courts of his country, which are
State institutions, deprived him from his property and since then he wrote
to the highest governmental authorities including the President of the
Republic, protesting against this blatant governmental support for the
illegal institution of slavery, but has received no reply as of this date.
9. Article 56 paragraph 6 of the African Charter on Human and Peoples’
Rights requires that communication should be submitted within a reasonable
period from the time when local remedies have been exhausted or from the
date the Commission is seized with the matter
10. The complainant resorted to local courts only in 1986 whereas he alleged
that he had been forcefully expelled from his home in 1975. And again he
took more than six years after the Supreme Court delivered its final
decision to submit his communication to the Commission in April 1997. In my
view, this can be considered as unreasonable period in term of Article 56
paragraph 6 of the African Charter, and accordingly the Commission ought to
declare this communication inadmissible.
11. From the documents in the file, which contains the rulings of the
Mauritanian courts at all levels and which were submitted to the Commission
by both parties, it was not indicated anywhere that the recipient of the
donation had claimed that the complainant’s mother had donated the land
because she was the slave of the recipient. On the contrary, the recipient
indicated clearly that the complainant’s mother donated the land to him
because of the existence of good ties and relationship between the two of
them. The complainant himself stated in his memo to the Court of Appeal of
Nouakchott that his family is well-known for its good reputation and
12. The documents from the communication file also show that the claimant
had neither raised these matters before the District Court of Boutilimitt,
nor before the Court of Rosso or before the Court of Appeal.
13. The claimant has come up before the Commission with new arguments that
he did not advance before the courts in Mauritania in the process of his
case. Consequently, by bringing new elements which are neither raised nor
disputed before national courts he wanted to use this Commission as a court
of first instance. In my view, this is another reason for declaring this
14. The inability of the Secretariat of the Commission to work in Arabic
whereas the original documents of the communication file are in this
language, do inhibited the Commissioners ability to have first hand
information. This made the Commission to act only on the translated summary
of part of the documents of the communication, which in my view, was not
built on facts but on the mere allegations of the complainant. Allegations,
which were neither raised before National Courts nor well substantiated
before the Commission.
15. The Commission in acting upon the assumption that those allegations are
facts, wrongly decided that the Islamic Republic of Mauritania has violated
Article 14 of the African Charter on Human and peoples` Rights.
16. The date of claim of donation (by opponent to the complainant) goes back
to 1959 - according to complainant - or to 1975 when the complainant claims
that the forceful eviction from disputed land took place.
17. One must note that the practice of slavery was legal in 1959 and 1975.
Slavery was banned by the Mauritanian authorities in 1980. The recipient
could therefore have easily based his claim of property over the disputed
land on slavery. However, he did not do that. Instead, he claimed that the
land was donated to him because the good relationship he had with the mother
of the complainant.
18. The events in question took place by any way before 1986 when Mauritania
became a party to the African Charter on Human and Peoples’ Rights; the
admissibility of such a communication raises the question of the principle
of retroactivity of laws which was not discussed by the commission in this
19. The erection of building permissions No.453 dated 24th November, 1972,
and No.66 of 24th April, 1971, (and not certificate of occupancy as
mentioned in paragraphs 46 and 50 of the commission ruling) both discussed
by Courts and ruled over that the later does not relate to the same plot of
20. I do agree with the Commission’s conclusion that there is no evidence
brought before the Commission that the witnesses retracted from their
statements made before the Cadi in support of donation as stated in the last
part of paragraph 53 the communication decision. This part of the
above-mentioned mentioned paragraph negates the complainant’s allegations as
stated in paragraph 49 of the same document, and contradicts the final
findings of the Commission.
21. Paragraphs 51 of the decision of the Commission states that the
plaintiffs (complainant) requested an investigation to prove as a result,
the pertinence of the said violations of article 14 of the African Charter
on Human and peoples` Rights. This paragraph does not reflect the accuracy
that the complainant claimed the violation of Article 14 of the Charter. The
lengthy discussions by Commissioners, on whether the Commission could invoke
article 14 of the charter that was not mentioned by the complainant prove
this. Moreover, paragraphs 3 and 43 of the decision did not mention article
14 of the Charter.
22. The Mauritanian courts cannot restrain the right or freedom of the
claimant’s mother to dispose part of her property by way of donation to a
member of her family without a legal basis, neither do they have the right
to compel the claimant’s mother to explain the reasons why she donated such
property to one of her family members, while she is sane, mature and not
restrained from disposing her property by a court order.
23. Had the Mauritanian courts prevented the claimant’s mother from
disposing of part of her property by donating it to a relative and deprived
her son of that portion of property, they would have violated Article 14 of
the African Charter on Human and Peoples’ Rights, which related to the right
to property and also embodies the rights to freely dispose of one’s
24. The Mauritanian courts, by confirming the right of ownership of the
claimant’s mother and confirming her right to dispose of part of her
property by the way of donation, confirmed that the claimant’s mother’s
freedom to own her property and to dispose of it. By doing so, Mauritanian
Courts furthermore, proved that she was neither a slave nor a servant.
25. The Commission, by deciding that the Islamic Republic of Mauritania had
contravened Article 14 of the African Charter on Human and Peoples’ Rights
and recommending that the government should return the property to the
claimant, had deprived the recipient from a property that was donated to
him. The Commission has also, without a legal basis, restrained, the right
and freedom of the claimant’s mother to freely dispose of a part of her
property in a manner she deemed fit. The Commission wanted to protect what
it considered to be the right of a citizen (the complainant). However, in
doing so it advised the government to do what constitutes a violation of the
rights of two citizens: the mother of the complainant and the recipient.
26. For all the foregoing reasons, I believe that the Commission had erred
in this communication, by deciding that the Islamic Republic of Mauritania
had violated the provisions of Article 14 of the African Charter on Human
and Peoples’ Rights.
Done at the 35th Ordinary Session held in Banjul, The Gambia from 21st May
to 4th June 2004.